Syed Shah Mohammed Quadri, J. - (1.)This appeal arises from the judgment and order of a Division Bench of the High Court of Kerala at Ernakulam upholding the constitutional validity of S. 4(2) read with S. 2(d) of the Kerala Fishermen's Welfare Fund Act, 1985 (Act 30 of 1985) (as amended by Act 15 of 1987) (for short 'the Act') in O.P. No. 19806 of 1995 and the batch by the common judgment dated August 22/23, 1996.
(2.)On September 25, 1997 when this appeal came up for hearing before a Bench of two learned Judges of this Court, it was noticed that a Bench of three learned Judges of this Court in Gasket Radiators Pvt. Ltd. vs. Employees' State Insurance Corporation and another (1985) 2 SCC 68 had taken the view that any contribution imposed by State Legislation under Entry 23 of the Concurrent List would not amount to either tax or fee, which was relied upon by the respondent-State and that the appellant placed reliance on decisions of the Constitution Bench of this Court in the Corporation of Calcutta and another vs. Liberty Cinema (AIR 1965 SC 1107) and M/s. Hoechst Pharmaceuticals Ltd. and another vs. State of Bihar and others (AIR 1983 SC 1019). It was submitted that compulsory impost could be either by way of tax or fee and that the definition of 'taxation' as found in Art. 366(28) of the Constitution of India and the said cases were not considered in Gasket Radiators (supra). The appeal was, therefore, referred to a Bench of three learned Judges. The Bench of three learned Judges opined that in Gasket Radiators (supra), a concept of impost in the form of compulsory contribution had been given birth to and whether such birth should further multiply was a question touching the interpretation of the Constitution and referred the appeal to a Constitution Bench of five Hon'ble Judges. That is how this appeal has come up before us.
(3.)Mr. A. K. Jain, the learned counsel appearing for the appellant, contended that the appellant was a purchaser and exporter of fishes and there was no relationship of employer and employee between the appellant and the fishermen as such the Legislature cannot levy impost by way of contribution on it under S. 4(2) of the Act and that the impugned provision was bad for want of legislative competence.