- (1.) - These two appeals are preferred against what may be described as rather unusual orders of Madhya Pradesh High Court. The facts which we shall presently narrate speak for themselves.
(2.) The Madhya Pradesh legislature enacted Madhya Pradesh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam (Madhaya Pradesh Entry Tax Act) in the year 1976. It provides for levy of tax on entry of goods into a local area for consumption, use or sale therein. The Act is relatable to Entry 52 of List II of the VII Schedule to the Constitution of India. Under the Act, a notification was issued by the Government on 28th June. 1990 prescribing the rates of tax on two items including lime-stone. The levy on lime-stone was at the rate of 10% on the taxable quantum. The validity of the notification was challenged by the respondent herein by way of writ petition in the Madhya Pradesh High Court. It was filed on 31-11-1991 and came up for admission on 6-2-1992. On the same day, and without sending a notice to the respondents in the writ petition, the Division Bench comprising the learned Chief Justice and Justice Issrani struck down the notification, following the decision of this Court in India Cements (1990) I SCC 12 (AIR 1990 SC 85) at the stage of admission itself. The Division Bench referred to Entries 23 and 49 of List II and held that the Act or the notification is not relatable to and is not within the purview of either of the said entries. There is no reference in the judgment to Entry 52 at all. The judgment is exclusively based upon India Cements which is not a decision relating to entry tax. It deals with the levy of cess on minerals by the State Government, which minerals were subject to payment of royalty under the provisions of Mines and Minerals (Regulation and Development) Act, 1957. The learned counsel for the appellant says that the principle of India Cements has absolutely no relevance to the controversy in the writ petition. The respondent's counsel however submits that the principle of India Cements does apply herein and submits further that the Act in question is not relatable to Entry 52. but to certain other entries.
(3.) We are not inclined to go into the merits of the case in view of the fact that we are remanding the matter back to the High Court, in view of the wholly unsatisfactory manner in which the writ petition has been disposed of. The Division Bench not only disposed of the writ petition before it, even before issuing notice to and calling upon the State Government to file its counter, it also disposed of all other matters which were said to be pending in that Court on the said point and which were directed to come up for final hearing four weeks later. The following directions in the judgment may be quoted with advantage: "Such provisions of the State Act can, therefore, which are under attack either in this case or any other such case on this point, may at once be disposed of and such sections of the M.P. State Act. No. 52/76 are struck down as ultra vires. There is no need for any ad interim relief because the petition is allowed here and now and the consequential results of the striking down of such provisions in the M.P. State Act shall inevitably follow such a declaration of the ultra vires nature of the same. Let this order be brought to the notice of the Bench before which the batch of such cases is to be put up for final hearing on 4-3-1991, if this Bench is not available on that date so that only for this reason, if not anything else, while they are supposed to be finally heard, the principles governing the order regarding their ultra vires nature as we have done in this case may after this order has been brought to the notice of the learned Judges hearing those cases, be disposed of in the terms of this order, unless there is any matter which can be said to be made a case distinct from merely challenging the vires of such provisions, but involving the points de hors the question of vires." (Emphasis added);