Untwalia J. - (1.) All these Civil appeals filed on grant of certificates of fitness by the High Court of Kerala have been heard together and are being disposed of by a common judgment as their facts and the points involved in them are identical. The respondents filed various writ petitions questioning the validity of the orders of the State Government of Kerala levying administrative surcharge on the export of tapioca. Respondents are dealers in tapioca and do the business of exporting it also outside the State of Kerala. In their writ petition, they also claimed refund of the amounts realised by the State Government on the basis of the impugned orders. Writ petitions were allowed by a bench of the Kerala High Court and Civil Appeals 729-757 of 1972 are directed against the orders in the writ petitions. Two of the Civil Appeals namely Civil Appeals 514 and 515 of 1973 arise out of the Appellate order of the Kerala High Court dismissing the appeals from the orders allowing the writ petitions.
(2.) In exercise of the powers conferred by sub-section (1) and sub-section (2) of Section 3 of the Essential Commodities Act, 1955 (Central Act; 10 of (1955), hereinafter referred to as the Act, read with the order of the Government of India dated the 9th June, l966 and with the prior concurrence of the Central Government, the Government of Kerala made the Kerala Tapioca Manufacture and Export (Control) Order, 1966. Under Cl. 5 of the said order no person could export tapioca except under and in accordance with a permit issued by the Commissioner or any officer authorised by him in this behalf. Clause 6 of the order provides for the filing of applications for the grant of permits for tapioca in Form III and the permit for the export of tapioca shall be in Form IV. Even before the promulgation of the Kerala Tapioca Manufacture and Export (Control) Order, administrative surcharge was levied under a Scheme formulated by the State Government, on the 15th April, 1966 published in the Kerala Gazette dated 3-5-1966. The rate of administrative charge levied on tapioca in the Scheme dated 15th Apri1, 1966 was varied from time to time and a copy of the order dated 20th October, 1967 specifying the revised rates was Ext. P-1 in one of the writ petitions. A copy of the order dated 15th April, 1966 was given to us by the learned Solicitor General appearing for the appellant State. The respondents' plea that the levy of administrative charges was ultra vires the State Government and unwarranted by law has been accepted by the Kerala High Court. Learned Solicitor General appearing for the appellant State submitted that the orders levying administrative charge on the export of tapioca was in effect and substance a licence fee charged in the exercise of the police powers of the State for permitting the respondents by grant of permits to export tapioca. Such a levy, counsel submitted, can very well be supported with reference to the provisions of sub-section (1) or sub-section (2)' of the Act, whereby the State as a result of the authorisation under Section 5 of the Act is empowered to regulate the transport or export of tapioca an essential foodstuff.
(3.) Learned Solicitor General strenuously attacked the findings of the Kerala High Court that the administrative charge imposed on' the export of tapioca was a fee and since it had no correlation with the service rendered by the State, the impost was bad.;