LAWS(KER)-1963-4-2

VARKEY AND SONS Vs. STATE OF KERALA

Decided On April 15, 1963
VARKEY AND SONS Appellant
V/S
STATE OF KERALA Respondents

JUDGEMENT

(1.) Latham, C. J., said in Mathews v. Chicory Marketing Board 60 CLR 263 at 276:

(2.) The passage from the judgment of the learned Chief Justice has been relied on by the Supreme Court in Hingir Rampur Coal Co. Ltd. v. The State of Orissa AIR 1961 SC 459 for distinguishing a tax from a fee. Said Their Lordships of the Supreme Court:

(3.) Counsel for the petitioners in these Original Petitions advanced a more fundamental argument that S.309 of the Kerala Municipalities Act, 1960, extracted above, is bad as amounting to excessive delegation. He relied on the ruling of the Supreme Court in Mohammad Hussain Gulam Mohammad v. The State of Bombay AIR 1962 SC 97 and urged that the section gives uncontrolled power to the Municipal Council to levy any fees that they like, that the power so granted is unchannelled and there are not even any indications or guidance regarding the limits of the exercise of that power. It is contended that not even a maximum has been indicated in the section or by any other provisions in the Act or the Rules framed under the Act. The power granted by S.309 is only to levy a fee. A fee must be related to the services rendered and cannot be excessive or unreasonable with reference to the services rendered. The very term "fee" has a particular significance and connotes a specific thing and therefore denotes a limited levy which from its very nature has fairly well defined boundaries. The power to impose such a limited levy too is thus a defined and controlled power. In other words, by the use of the word "fee" in the section it is not an unbridled or an uncontrolled power that has been conferred on the Municipal Council, but power which necessarily has limitations. These limitations have been indicated in the passage from the judgment of the Supreme Court which I have extracted above. The contention that in every case where a power has been granted to a Local Body or a State Government to impose a fee the granting of the power amounts to excessive delegation cannot, therefore, be accepted. There can, of course, be cases where such a power may be abused. Those abuses can certainly be corrected, if proved, but the mere possibility of abuse is not sufficient to strike down the section. In fact when there is abuse, the impost will be different from the impost of a fee -- perhaps a tax -- and, therefore, the exercise of a power not conferred by the section. This aspect I have already dealt with and I have come to the conclusion that it has not been made out that there has been any abuse of the power conferred by S.309. I also reject the contention that S.309 amounted to excessive delegation.