AJIT K.SENGUPTA, J - (1.)This appeal is from an order dated 7/05/1992 vacating an earlier order dated 10/12/1991 of stay of recovery of cess on coal made in an application filed under Art. 226 of the Constitution. It is submitted on behalf of the appellant/writ petitioner that the controversy lies within a short compass and the basic questions involved are concluded by the judgments of the Supreme Court in India Cement Limited v. State of Tamil Nadu, AIR 1990 SC 85 and Orissa Cement Ltd. v. State of Orissa, AIR 1991 SC 1676.
(2.)According to the appellants the 3 levies under the three Acts namely, Cess Act, 1880, West Bengal Primary Education Act, 1973 and the West Bengal Rural Employment and Production Act, 1976 in so far as they purport to levy cess on the basis of despatches of coal are beyond the legislative competence of the State legislature on the principles laid down in the aforesaid Supreme Court decisions in India Cement and Orissa Cement (supra). The appellants contend that this court is only to examine whether the 3 levies (including the amendments thereof) which are in question are pari materia with the levies which were declared to be unconstitutional by the Supreme Court in India Cement (supra) and Orissa Cement (supra).
(3.)The writ petition was filed in Sept. 1991. On 10/12/1991 the learned trial Judge made an interim order restraining Eastern Coalfields Limited and Coal India Limited from including in the sale bills of coal any amount representing any levy of cess under the Cess Act, 1980. The West Bengal Primary Education Act, 1973 and West Bengal Rural Employment and Production Act, 1976 as well as an injunction restraining the State of West Bengal from realising any cess through the said coal companies under the aforesaid 3 Acts. This order was made presumably on the basis of the order of the Supreme Court dated 18th Nov. 1991 in Writ Petition (Civil) No. (s) 993/91 (Coal Consumers Association of Eastern v. State of West Bengal) where on a petition filed under Art. 32 of the Constitution by the Coal Consumers Association of Eastern India challenging the three levies, the Supreme Court had granted an ex parte stay of realisation of cess. It appears that by a subsequent reasoned order dated 20/12/1991 the Supreme Court vacated the order of stay made on 18th Nov. 1991. The interim order granted by the learned trial Judge in this matter on 10/12/1991 was subsequently continued by him by order dated 12/03/1992. But on 7/05/1992 the learned trial Judge vacated the interim order. It is pointed out that the learned trial Judge did so after his attention was drawn to the order dated 20/12/1991 made by the Supreme Court in the writ petition filed by the Coal Consumers Association of Eastern India. The propriety of vacating the interim order dated 10/12/1991 as continued by 12/03/19921 is questioned in this appeal.
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