THE STATE OF KERALA ETC. ETC, versus K. P. GOVINDAN TAPIOCA EXPORTER ETC. ETC.

Citation: [1975] 2 S.C.R. 635 · Decided: 07-11-1974 · Supreme Court of India · Bench: A.N. RAY · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
c 
635 
THE STATE OF KERALA ETC. ETC, 
v. 
K. P. GOVINDAN TAPIOCA EXPORTER ETC. ETC. 
November 7, 1974 
[A. N. RAv, C.J., K. K. MATHEW, N. L. UNTWALIA JJ.] 
Essential Commodities Act 1955-The Kera/a 
Tapioca 
Manufacture 
and 
Export (Control) Order 
1966-Administrative surcharged levied under a 
scheme formulated by the State Go1•ernment-Scheme not under any provisio11 
of the Act, if surcharge could be levied. 
The Kerala Tapioca Manufacture and Export 
'(Control) Order, 1966 
was 
made by the State Government under the Essential 
CQmmodities Act 
1955. 
Even before the promulgation of that order the State Government levied an 
administrative surcharge under a scheme formulated· by it. The respondents' 
plea that the levy of administrative surcharge was ultra vfres the State Govern-
ment and unwarranted by law had been accepted by the High Court and their 
writ petitions were allowed. 
On an .appeal by the State it was contended that the administrative surcharge 
on the export of tapioca was in effect and substance a liccmce fee charged in 
exercise of the police powers of the State for granting permission to export 
Tapioca. 
D 
Dismissing the appeal, 
E 
F 
G 
H 
HELD : 
The .administrative surcharge levied by the State Government on 
the export of tapioca was bad. The realisations were without the authority of 
law. 
Assuming that the State has got the police power to charge licence fee, the 
levies were bad as they were not levies of licence fee for regulating the. trade or 
for grant of permits. The scheme was not an 'order under any of the provisions 
of the Essential Commodities Act. 
In substance and in effect it was an impost 
on export which indisputably the State had no power to 
do. 
The 
Kerala 
Tapioca Manufacture Export (Control) Order 1966 did not provide for imposi-
tion of any licence fee for the grant of permits for export of tapioca. 
For the appellants : 
Examining the Act and the provisions of the Section as a whole it is manifest 
that an order providing for the granting of a licence or permit and charging for 
fees is still an order under Sec. 3 (I). 
An order of the nature mentioned in Sec. 3 (2) (ii) is an order for maintaining 
-0r increasing supplies of essential commodities and for securing their equitable 
distribution and availability at fair prices. It is manifestly n~t an order f 
ren-
dering any services and admittedly no service is rendered under the provisions 
of Sec. 3. The power itself is simply for the benefit of the community at large. 
Thus Sec. 3(2)(ii). does not provide for a fee for services rendered. It is mani-
fest from the scheme as a whole that export is banned except under a permit. 
The imposition is connected and is for the purposes of permission to export; 
is precisely what the licence fee may mean. The ground, therefore on which the 
High Court has acted is erroneous. 
For th"· respondents : 
Power under the Essential Commodities Act to make orders under Section 
3(1) and (2) vested in the Central Government. Under Section 5 of the Cent-
ral Government can delegate its powers to State Government subject to such 
conditions as it may choose to imoose. The Central Government has limited the 
powers to delegate by Resolution No. GSR 906 dated 9-6-1966. It delegates the 
powers under Section 3 ( l) for the purposes stated in the different clauses of Sec-
tion 3(2). The general power of regulation claimed by the appellant is there-
fore not available. 
636 
SUPREME COURT REPORTS 
[1975] 2 S.C.R. 
Sec.ond clause in : the delegation •provides that in matters which affect trans-
· A 
port etc. of the commodity wc1uld require the sanction of the Central Govern-
ment. Since imposition of export duty restricts the transport of tile commodity, 
sanciion would be required, which is absent in this case. T)lis also would in· 
validate the lew. 
The levy is really not a licence fees but is on export as it clearly purports to 
be and is a tax. Under rcgUlating powers no such .tax can be _imposed. Article 
366(28) defines a tax in wide terms and all imposts would be tax. Viewed from 
the point of view of even reiUfatory Impost, it is clearly a tax for levyin~ which 
Article 26S requires a legislative en~ctmcnt. All taxing statutes must in clear 
language authorise the levy, and if authorised it must be within the legislatiYe 
(;Ompetence of the State. Admittedly there ls no legislation. The Central Gov· 
ernment alono would have tl~c power to levy the tax and not the Stat

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