S. NARAYANA PILLAI AND ANR. Vs. THE STATE OF TRAVANCORE-COCHIN AND ANR.

JUDGEMENT

(1.) THE Petitioner in O.P. No. 44 is a wholesale licensee for the vend of foreign liquor (P.L. 1) in the Travancore area of the State, i.e., the territory of the erstwhile State of Travancore, and the Petitioner in O.P. No. 47 is a wholesale licensee for the vend of foreign liquor (F.L. 1) in the (Cochin area of the State, i. e. the territory of the erstwhile State of Cochin. The Respondents are (1) The State of Travancore -Cochin and (2) secretary to Government, Revenue in both. The reliefs sought in the two petitions are identical and they are (a) to call for the records of the case and quash by a writ of certiorari or other appropriate writ, order or direction the Revised Rules under the Travancore Abkari 4 of 1073 (in O.P. 44) and under the Cochin Abkari Act, 1 of 1077 (in O.P. 47) dated 17 -1 -1953 framed by the Government or such of the provisions thereof as are repugnant to the Travancore Abkari Act, 4 of 1073 in the one and the Cochin Abkari Act, 1 of 1077 in the other case, and the Constitution of India, (b) to issue a writ of mandamus or other appropriate writ, order or direction, granting such consequential relief and 'inter alia' order refund of any amount by way of license fee, gallonage fee or deposit that may hereafter be collected from the Petitioner, pursuant to the rules, impugned and (c) to pass an order for costs and such other reliefs as the nature of the case requires.

(2.) ABKARI legislation existed as a source of revenue and as a means of combating the evils of intoxication in both the States of Travancore and Cochin as elsewhere from very early times. Similar enactments were made in both the States from time to time generally following the legislation in the Madras State Travancore Act 1 of 1054 amended by Act 1 of 1055 was a reproduction of Madras Act 3 of 1864. Amendments made in Madras from time to time were introduced in these States as well. The Madras Prohibition Act 10 of 1937 was followed, though a few years later, by the Cochin Prohibition Act, 3 of 1123 and the Travancore Prohibition Act, 6 of 1123 with the following preamble:

(3.) (i) Licence Fee. - The question as regards licence fee is whether the impugned rules are 'ultra vires' the Act under which they are framed. The ground on which it is contended that they are 'ultra vires' of the Act is that the Act authorises the Government only to levy a licence fee whereas what the rules do is in effect to impose "a tax or a duty" because the amount of the impost is far in excess of what would be required to meet, or in other words, is not commensurate with, the expenditure necessary for the administration of the provisions of the Act relating to licences. If the Act authorises the impost of a duty or tax in connection with the issue of licences and if the power to make rules conferred by the Act includes a power to frame rules in that regard, then the rules are 'intra vires'. They would also be 'intra vires' if the amounts of impost do not go beyond a fee so as to develop into a tax or duty.