B R JOSE Vs. STATE

JUDGEMENT

(1.) THESE writ appeals, and writ petitions, challenge the levy of what is called 'tree-tax' under the Abkari Act 1 of 1077 M. E. (referred to hereinafter as the Act ). A learned judge of this Court, in a series of writ petitions, heard and disposed of by a common judgment, held the levy to be valid. The Writ Appeals have been preferred against the said judgment; and the connected petitions are among the rest of the applications which challenge the validity of the levy. Arguments were advanced only by counsel in Writ Appeal Nos. 114,145 and 158 of 1973; and the fate of the rest of the cases was left to depend upon the result of the contentions advanced in these three writ appeals.

(2.) IN Writ Appeal No. 114 of 1973, the 1st appellant is an abkari contractor who bid in auction certain toddy shops in Alwaye Range, for the years 1971 to 1973 for a sum of Rs. 10,00,000/-, and started the business of vendin toddy from these shops after furnishing the necessary security and surety. The 2nd appellant is the one who stood surety.

(3.) S. 3 (8) of the Act defines "toddy" as "fermented or unfermented juice drawn from a coconut, palmyra, date, or any other kind of palm tree". S. 3 (10) defines "liquor" as "including spirits of wine, methylated spirits, spirits, wine, toddy, beer, and all liquid consisting of or containing alcohol". S. 12 of the Act prohibits, inter alia, the manufacture of liquor and the tapping of any toddy producing tree and the drawing of toddy from such tree except under the authority and subject to the terms and conditions of a licence to be granted by the appropriate authority. S. 17 provides that a duty of excise or luxury-tax or both, shall, if the Government so directs be levied on all liquors and intoxicating drugs which are inter alia manufactured under any licence granted under S. 12 S. 18 (1) (e) provides: "18- How duty may be imposed. (1) Such duty of excise may be levied (a) ~~~ ~~~ ~~~ ~~~ (b) ~~~ ~~~ ~~~ ~~~ (c) ~~~ ~~~ ~~~ ~~~ (d) ~~~ ~~~ ~~~ ~~~ (e) in the case of toddy, or spirits manufactured from toddy, in the form of a tax on each tree from which toddy is drawn to be paid in such instalments and for such period as the Government may direct. " and S. 18 (3) (1) (iii) reads: (3) The duty of excise under sub section (1) and the luxury tax under sub section (2) shall be levied at such rates as may be fixed by the Government, from time to time, by notification in the Gazette, not exceeding, the rates specified below: By notification No. 2184/g. 2/69-1/rd dated 141969 published in Kerala Gazette dated 141969 the rates for each half-year or part thereof have been fixed at Rs. 10/-per palmyra tree, Rs. 20 per coconut tree and Rs. 40/-psr sago (Choondapana) tree. S. 69 of the Act enacts that all rules and notifications made or issued under the Act shall be published in the gazette and shall thereupon have the force of law and be read as part of the act, and may, in like manner be varied suspended or annulled. In exercise of the power conferred by. S. 4 (5), 24 and 29 of the Act, the Tree-Tax Rules have been framed. Under R. 6, the tree-tax is to be paid in three instalments as provided therein. Under Clause (f) of the Rule, in case of default of payment of any of the instalments on the due dates, interest at 6% per annum shall be charged and the arrears if any shall be adjusted as security and recovered under the revenue Recovery Act. Reference to the other provisions of the Act and the rules, will be made where necessary.