A B ABDUL KADIR Vs. STATE OF KERALA

JUDGEMENT

(1.) Whether the provisions of the Luxury Tax on Tobacco (Validation) Act, (Act 9 of 1964) (hereinafter referred to as the Act) enacted by the State Legislature of Kerala are void on the grounds that (1) the State Legislature lacked the legislative competence to enact that Act, and (2) the provisions of the Act contravened Article 301 of the Constitution and were not protected by Article 304 is the main question which arises for determination in these 16 Civil Appeals Nos.- l689, 1690 and1692 to 1705 filed on certificate against the judgment of the Kerala High Court .A Division Bench of the High Court has upheld the validity of the Act.

(2.) We may set out the chequered history giving rise to Civil appeals 1689 and 1692. Learned counsel for the parties are agreed that it is not necessary to set out the facts of the other cases and that the decision in the above two appeals would also govern those other cases. The appellants were dealers in tobacco and tobacco preparations in Mattancherry in erstwhile Cochin State. In 1909 Cochin Tobacco Act (Act 7 of 1084 M. E.) was enacted by the Maharaja of Cochin. Section 4 of that Act prohibited the transport, import or export, sale and cultivation of tobacco, except as permitted by the Act and the rules framed thereunder. In pursuance of the power given by that Act the Diwan of Cochin made rules relating to matters specified in the Act. Under the rules it became necessary to obtain a licence for cultivation of tobacco plant. Drying, curing manufacturing and the storing of tobacco cultivated in the State was to be done under the supervision of an Excise Officer in licenced manufacturing yards and store houses. The system which was in force for the collection of tobacco revenue upto August 1950 was to auction what were called A class and B class shops. In addition, there were C class shops, the licence for which was granted either on the recommendation of or in consultation with B class licensees. A somewhat similar law was in operation in the erstwhile 'Travancore State. On April 1, 1950 after the Constitution had come in force and Travancore- Cochin had become a Part B State, Finance Act (No. 25 of 1950) extended the Central Excises and Salt Act (No, 1 of 1944) to Part B State of Travancore- Cochin by Section 11 thereof. Section 13 (2) of the Finance Act provided that "if immediately before the 1st day of April, 1950, there is in force in any State other than Jammu and Kashmir a law corresponding to, but other than, an Act referred to in sub-sections (1) or (2) of Section 11, such law is hereby repealed with effect from the said date ............". In consequence of this provision in Finance Act, 1950, the rules which were in force on April 1, 1950 were changed in the Cochin area by notification dated August 3, 1950 and the system of auction sales of A class and B class shops was done away with and instead graded licence fees were introduced for various classes of licensees, including C class licensees. Similar change was made for the Travancore area. Notification dated January, 25. 1951 was issued in this context. A class licensees under the new rules were called stockiest, B class licensees were wholesale sellers and C class licensees were retailers. A class licensees were to pay a specified minimum fee for a fixed maximum quantity of tobacco and tobacco goods possessed by them and an additional fee for an additional quantity. The fee was to be levied only in respect of the tobacco imported into the State. The State of Travancore-Cochin collected licence fee from the appellants for the period from August 17,1950 to December 31, 1957. In 1956 the appellants, who were A class licensees, filed writ petitions in Kerala High Court for refund of the licence fee collected from them on the ground that the Cochin and Travancore Tobacco Acts stood repealed by the Finance Act of 1950 because of the extension of the Central Excises and Salt Act to Part B State of Travancore-Cochin. The petitions were opposed on behalf of the State and it was contended that the Cochin Act or the similar Travancore Act did not stand repealed from April 1, 1950. It was urged that the State was competent to frame new rules under the Cochin Tobacco Act and the corresponding Travancore Act. It was further stated that the tax in question could be validly levied under Entry 60 or 62 of List II of the Seventh Schedule to the Constitution. The High Court dismissed the petitions holding that the laws under which the new rules were framed were in force and were valid under Entry 62 of List II of the Seventh Schedule. The appellants then came up in appeal to this Court. It was held by this Court in its judgment dated January 24, 1962 reported in (1962) 2 Suppl. SCR 741 that the Cochin Tobacco Act of 1084 and the rules frame thereunder as also similar provisions in Travancore, requiring licences to be taken out for storage and sale of tobacco and, for payment of licence fee in respect thereof were law corresponding to the provisions of the Central Excises and Salt Act 1944 and hence stood repealed on April 1, 1950 by virtue of Section 13 (2) of the Finance Act 1950. It was further held that as the parent Acts, namely the Cochin Tobacco Act and corresponding Travancore Act had stood repealed the new rules framed in August 1950 and January 1951 under those Acts for the respective areas of Cochin and Travancore for the issue of licences and payment of fee therefor for storage of tobacco were invalid ab initio. .

(3.) After the above decision of this Court the appellants made a demand to the respondent-State that the amounts of Rs. 1,14,750 collected by the State from them by way of licence fee under the invalid rules might be refunded to them. The Respondent-State refunded Rupees 73,500 to the appellants on April 29, 1963. On July 10, 1963 the appellants filed original petition No. 1268 of 1963 in the Kerala High Court for issue of a writ to the respondent-State to pay the balance amount of Rs. 41,250 which along with interest came to Rs. 52,800 to the appellants. During the pendency of the above petition on December l6, 1963 the Governor of Kerala promulgated ordinance No, 1 of 1963 which was later replaced by Kerala Luxury Tax on Tobacco ( Validation ) Act of 1964 (Act 9 of 1964). This Act received the assent of the President on March 3, 1964 Original petition No. 1268 of 1963 was thereupon amended with a view to challenge the validity of the above mentioned Act. In the meanwhile, on January 21, 1964 demand was made in view of the Ordinance by the State Government calling upon the appellants to pay the amount of Rs. 73,500 which had been refunded to them by the State Government. Original Petition No.934 of 1964 was filed by the appellants in the Kerala High Court to challenge the validity of demand notice dated January 21, 1964 as also the vires of the Act.