15 of 1959 14 of 1960 and 21 of 1959
Petitions under article 32 of the Constitution of India for enforcement of Fundamental Rights
Frank Anthony and J B Dadachanji for the petitioners In Petns
Nos 15 and 21 of 1959
612 H J Umrigar O P Rana and A G Ratnaparkhi for the petitioners In Petn
No 14 of 1960
L K Jha and section P Varma for the respondent In Petn
No 15 of 1959
C K Daphtary Solicitor General of India M Adhikari Advocate General for the State of Madhya Pradesh and I N Shroff for the respondent In Petn
No 14 of 1960
H N Sanyal Additional Solicitor General of India and C P Lal for the respondent In Petn
No 21 of 1959
November 23
The Judgment of the Court was delivered by section K DAS J
These three writ petitions have been heard together as they raise common questions of law and fact
They relate however to three different enactments made by the Legislatures of three different States Bihar in writ petition No 15 Uttar Pradesh in writ petition No 21 and Madhya Pradesh in writ petition No 14
The petitioners in the several petitions have challenged the validity of a number of provisions of the enactments in question and in some cases also of the rules made thereunder
The impugned provisions are similar in nature but are not exactly the same
Therefore we shall first state in general terms the case of the petitioners and then consider in detail and separately the impugned provisions in each case
But before we do so it is necessary to refer to some background history of the legislation under consideration in these cases
In the year 1958 this Court had to consider the validity of certain provisions of three Acts 1 The Bihar Preservation and Improvement of Animals Act Bihar Act II of 1956 2 the Uttar Pradesh Prevention of Cow Slaughter Act 1955 U P Act 1 of 1956 and 3 the Central Provinces and Berar Animal Preservation Act 1949 C P and Berar Act LII of 1949
The Bihar Act put a total ban on the slaughter of all 613 categories of animals of the species of bovine cattle
The U P Act put a total ban on the slaughter of cows and her progeny which included bulls bullocks heifers and calves
The C P and Berar Act placed a total ban on the slaughter of cows male or female calves of cows bulls bullocks and heifers and the slaughter of buffaloes male or female adults or calves was permitted only under a certificate granted by the proper authorities
These three Acts were enacted in pursuance of the directive principle of State policy contained in article 48 of the Constitution
The petitioners who challenged the various provisions of the aforesaid Acts in 1958 were engaged in the butcher s trade and its subsidiary undertakings they challenged the constitutional validity of the Acts on the ground that they infringed their fundamental rights under articles 14 191f and g of the Constitution
In the decision which this Court gave in Mohd Hanif Quareshi vs The State of Bihar 1 it held i that a total ban on the slaughter of cows of all ages and calves of cows and of she buffaloes male or female was quite reasonable and valid ii that a total ban on the slaughter of she buffaloes or breeding bulls or working bullocks cattle as well as buffaloes so long as they were capable of being used as milch or draught cattle was also reasonable and valid and iii that a total ban on slaughter of she buffaloes bulls and bullocks cattle or buffalo after they ceased to be capable of yielding milk or of breeding or working as draught animals was not in the interests of the general public and was invalid
In the result this Court directed the respondent States not to enforce their respective Acts in so far as they were declared void by it
This led to some amending or new legislation and we are concerned in these three cases with the provisions of these amending or new Acts and the rules made thereunder
In Bihar Writ Petition No 15 of 1959 the impugned Act is called the Bihar Preservation and Improvement of Animals 1  78 614 Amendment Act 1959 which received the assent of the Governor on January 13 1959
in Uttar Pradesh Writ Petition No 21 of 1959 the impugned Act is called the Uttar Pradesh Prevention of Cow Slaughter Amendment Act 1958 and in Madhya Pradesh Writ Petition No  14 of 1960 a new Act was passed called the Madhya Pradesh Agricultural Cattle Preservation Act 1959 Act 18 of 1959 which received the assent of the President on July 24 1959 and came into force on January 15 1960
The rules made there under are called the Madhya Pradesh Agricultural Cattle Preservation Rules 1959
The general case of the petitioners who are several in number in each of the three cases is that they are citizens of India and carry on their profession and trade of butchers they allege that the various provisions of the impugned legislation infringe their fundamental rights in that they for all practical purposes have put a total ban on the slaughter of she buffaloes bulls or bullocks even after such animals have ceased to be useful and have virtually put an end to their profession and trade
It is pointed out that the age up to which the animals referred to above cannot be slaughtered 20 or 25 years has been put so high that the practical effect is that no animals can be slaughtered and the amending or new legislation has put in other restrictions so arbitrary and unreasonable in nature that in effect they amount to a prohibition or destruction of the petitioner s right to carry on their trade and profession
The following allegations quoted from one of the petitions Writ Petition No 15 of 1959 give a general idea of the nature of the case which the petitioners have put forward That there is good professional authority for the view that even in countries where animal husbandry is organised on a highly progressive and scientific basis cattle seldom live beyond 15 or 16 years
That there is also good authority to the effect that even pedigree breeding bulls are usually discarded at the age of 12 or 14 years
 That in India bulls and bullocks and she buffaloes rarely live even up to the age of 15 years draught bullocks begin to age after eight years 615 That the raising of the age limit from 15 to 20 years is arbitrary unreasonable and against the general public interests and is repugnant to and infringes the fundamental rights of the petitioners under Article 19 1f and g of the Constitution
That section 3 of the amending Act is a mala fide colourable exercise of power repugnant to the fundamental rights of the petitioners under Article 19 1f and g
That this arbitrary raising of the age limit will be against the public interests For the following among  other reasons i That there will in fact be no bulls or bullocks or she buffaloes available for slaughter as few if any of such animals survive in India up to the age of 15 years ii that the profession trade and occupation of millions of Muslims will be permanently and irreparably injured iii that millions of members of the minority communities such as Christians Scheduled Castes Scheduled Tribes and Muslims for whom cattle beef is a staple item of their diet will be deprived of this diet iv that the menace of the rapidly increasing uneconomic cattle population in such matters as the destruction of crops being a public nuisance will be accentuated by this arbitrary age limit and in effect will ensure that bulls and bullocks cannot be slaughtered v that the menace of the rapidly increasing population of uneconomic cattle to the fodder and other animal food resources of the country will be accentuated
vi that the competition between the rapidly increasing cattle population a large percentage I of which is uneconomic and useless add the human population for available land will be accentuated vii that this piece of legislation will ensure the steady increase of useless bulls and bullocks and must react disastrously against any attempt to improve milk production bullock power or animal husbandry generally 616 Similar allegations have been made in the other two petitions also
The correctness of these allegations has been con
tested on behalf of the respondent States which through some of their officers have filed affidavits in reply
We shall presently examine at greater length the averments made in these affidavits but we may indicate here in broad outline what their general effect is
In Bihar the age below which the slaughter of she buffaloes bulls and bullocks is prohibited is 25 years
The respondent State has taken the plea that the usefulness or longevity of live stock for breeding and other purposes depends to a very great extent on a better animal husbandry facilities like feeding and management and b control of animal diseases and as these facilities are now available in a greater measure the legislature came to the conclusion that a bull or bullock or a she buffalo below 25 years of age continues to remain useful if a bull bullock or shebuffalo is permanently incapacitated below that age the impugned provision permits its slaughter and therefore the legislation which is challenged conforms to the decision of this Court and does not violate any fundamental right
In Uttar Pradesh the age is 20 years as respects bulls or bullocks with a further restriction to be referred to later
The reply of the res pondent State is that bulls or bullocks do not become unfit at the age of 12 or 14 years as alleged by the petitioners on the contrary they continue to be useful and at no time they become entirely useless
It is then stated in the affidavit As a matter of fact the age up to which the animals can live and are serviceable depends upon the care and attention they receive and the quality of the grass on which they are grazed     According to a high authority the average age of an ox under favourable conditions would be between 15 to 20 years
Even under conditions prevailing in Uttar Pradesh bulls can live upto 20 years or more as would appear from an analysis of a survey report of the animal husbandry department
 617 On these averments the respondent State contends that the legislation is valid
In Madhya Pradesh also the age is 20 years
The Under Secretary to the State Government in the Agricultural Department  has made the reply affidavit in which it has been stated inter alia that conditions in Madhya Pradesh are different from conditions in other States
The affidavit then states The State of Madhya Pradesh has a total area of 107589000 acres out of which total cropped area is 43572000 acres
Forest area is 33443000 acres area not available for cultivation is 11555000 acres uncultivated land is 18405000 acres and fallow land is 5834000 acres
It will thus be seen that this State has a large forest area and plenty of grass land for pasturage
As the forests supply the greater part of the fuel needs of the human population the dung of animals is largely available as manure
The legislature considered that bulls bullocks and buffaloes are useful in this State till they are well past twenty years of age and that they should not be slaughtered till they are past that age and are also unfit for work or breeding
The problem of animals dying of slow starvation or of worthless animals depriving useful animals of fodder needs no consideration in this State
The agricultural community in the State benefits by the existence of animals as long as they are useful
 There are also further averments as to the shortage of breeding bulls working bullocks and she buffaloes in Madhya Pradesh
On these averments the contention of the respondent State is that the cattle in that State are useful up to the age of 20 years
We have indicated above in general terms the case of the petitioners and the reply which the respondent States have given
We proceed now to a detailed consideration of the impugned legislation in each case
1 We take up first the Bihar Preservation and Improvement of Animals Amendment Act 1959 and the rules made under the main Act of 1955
Section 3 of the Act as amended reads section 3


Summary:
The petitioners challenged the constitutional validity of the Orissa Mining Areas Development Fund Act 1952 which by section 3 empowered the State Government to constitute mining areas for the purpose of providing them with certain amenities after hearing objections from the lessees by section 4 to impose and collect a cess not exceeding 5 of the valuation of the minerals at the pit s mouth and by section 5 created a fund to which the cess was to be credited
The petitioners  case inter alia was that the impugned Act and the rules made thereunder were ultra vires the powers of the State Legislature the cess levied thereunder was not a fee but a duty of excise on coal within Entry 84 of List I of the Seventh Schedule to the Constitution and repugnant to Coal Mines Labour Welfare Fund Act 1947 Act XXXII of 1947 and alternatively even supposing it was a fee relatable to Entries 23 and 66 of List II it was hit by Entry 54 of List I read with the Mines and Minerals Regulation and Development Act 1948 Act LIII of 1948 or by Entry 52 of List I read with the Industries Development and Regulation Act 1951 Act LXV of 1951
It was urged on behalf of the State inter alia that the cess was a fee and not a duty of excise and the competence of the State Legislature to levy it was not affected by the Central Acts
Held per Gajendragadkar Sarkar Subba Rao and Mudholkar JJ that the cess imposed by the Act was a fee relatable to Entries 23 and 66 of List II of the Seventh Schedule to the Constitution and the Constitutional validity of the impugned Act was beyond question
Although there can be no generic difference between a tax and a fee since both are compulsory exactions of money by public authorities there is this distinction between them that whereas a tax is imposed for public purposes and requires no consideration to support it a fee is levied essentially for services rendered and there must be an element of quid pro quo between the person 538 who pays it and the public authority that imposes it
While a tax invariably goes into the consolidated fund a fee is earmarked for the specified services in a fund created for the purpose
Whether a cess is one or the other would naturally depend on the facts of each case
If in the guise of a fee the Legislature imposes a tax it is for the Court on a scrutiny of the scheme of the levy to determine its real character
The distinction is recognised by the Constitution which while empowering the appropriate Legislatures to levy taxes under the Entries in the three lists refers to their power to levy fees in respect of any such matters except the fees taken in court and tests have been laid down by this Court for determining the character of an impugned levy
Matthews vs Chicory Marketing Board   The Commissioner Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt   Mahant Sri Jagannath Ramanuj Das  Any
vs The State of Orissa   and Ratilal Panachand Gandhi vs The State of Bombay 1954 SCR 1055 referred to
P P Kutti Keva  Ors
vs The State of Madras AIR  Attorney General for British Columbia vs Esquimalt and Nanaimo Railway Co and Parton  Any
vs Mils Board Victoria 1949 80 CLR 229 considered and held inapplicable
In determining whether a levy is a fee the true test must be whether its primary and essential purpose is to render specific services to a specified area or class it being of no consequence that the State may ultimately and indirectly be benefited by it
So judged the scheme of the impugned Act leaves no manner of doubt that the levy authorised by it is a fee and not a tax
The amount of the levy must depend on the extent of the services sought to be rendered and if they are proportionate it would be unreasonable to say that since the impost is high it must be a duty of excise
The rate specified by section 42 of the Act therefore cannot by itself alter the character of the levy and constitute a trespass by the State Legislature on the legislative powers of the Parliament under Entry 84 of the List I
Nor can the method prescribed by the Legislature for re covering the levy by itself alter its character
The method is a matter of convenience and though relevant has to be tested in the light of other relevant circumstances
It is not permissible to challenge the vires of a statute relatable to an Entry in List II solely on the ground that the method adopted for the recovery of the impost can and generally is adopted in levying a duty of excise
Ralla Ram vs The Province of East Punjab  Byramjee Jeejeebhoy vs The Province of Bombay  Anr
ILR 539 and Governor General in Council vs Province of Madras 1945 LR 72 IA 91 considered
The limitation imposed by the latter part of Entry 23 of List II is a limitation on the legislative competence of the State  Legislature itself and the test whether a statute passed by the State Legislature thereunder was ultra vires would be whether the requisite declaration under Entry 54 List I has been made by Parliament by law covering the same field or not it is not necessary in order to make the declaration effective that rules should also be made and enforced
Although by operation of article 372 of the Constitution Act LIII of 1948 was an existing Act substantially covering the same field as covered by the impugned Act there was no adaptation of section 2 of that Act whereby a declaration implied by it could be said to have been adapted to a declaration by Parliament
Clause 16 of the Adaptation of Laws Order 1950 properly construed cannot be held to refer to the Dominion Legislature and equate it with the Parliament
It can be resorted to only where the existing law expressly refers to some authority that can be equated with the corresponding new authorities
Since the Dominion Legislature was not so referred to its competence under the Constitution Act of 1935 repealed by the Constitution of India was clearly outside the clause
Nor can Cl
21 of the order be of any help to the petitioners
Consequently in the absence of the requisite Parliamentary declaration the competence of the Orissa State Legislature under Entry 23 read with Entry 66 of the List II was not impaired and the impugned Act must be deemed to have repeal ed the Central Act so far as that State was concerned
This case incidentally discloses that in regard to the requisite Parliamentary declaration prescribed by Entry 54 in List I in its application to the pre constitution Acts under corresponding Entry 36 in List I of the Constitution Act of 1935 there is a lacuna which has not been covered by any clauses of the Adaptation of Laws Order 1950
Nor was the impugned Act ultra vires the State Legislature by operation of Entry 52 of List I read with section 2 of the Industries Development and Regulation Act 1951 LXV of 1951
That Act in pith and substance deals more directly with the control of certain specified industries including the coal industry while the impugned Act is concerned with the development of the mining areas notified under it
The field covered by the two Acts was not therefore the same
per Wanchoo J
In order to determine whether a levy is a tax or a fee what has to be considered is the pith and sub stance of the levy
Where the levy in pith and substance is not essentially different from a tax it cannot be converted into a fee by crediting it to a special fund and attaching certain services to it
540 The Commissioner Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt   Mahant Sri Jaannath Ramanuj Das vs The State of Orissa  and Ratilal Panachand Gandhi vs The State of Bombay 1954 SCR 1055 discussed
A duty of excise in pith and substance is primarily a duty levied on a manufacturer or producer in respect of the commodity manufactured or produced
It is different and distinct from a sales tax and in law they do not overlap
Governor General in Council vs Province of Madras 72 IA 91 referred to
What the impugned Act did was to provide for the levying of the cess on the goods produced at a rate not exceeding five per centum of the value at the pit s mouth
The cess was therefore in pith and substance a duty of excise falling within Entry 84 of List I which the State legislature could not levy
It was not correct to say that the method employed by the impugned Act for realising the cess was a mere method of quantification and did not affect its character which was that of a fee
In the present case the very mode of the levy of the cess is nothing other than the levy of a duty of excise and therefore the principle of quantification for purposes of a fee could not be so extended as to convert what was in pith and substance a tax into a fee
Sri Byramjee Jeejeebhoy vs The Province of Bombay ILR  Municipal Corporation Ahmedabad vs Patel Gor dhandas Hargovandas ILR and Ralla Ram vs The Province of East Punjab  considered
K C Gajapati Narayan Deo vs The State of Orissa   referred to
The cess levied under section 4 of the Act could not be justified as a tax on mineral rights under Entry 50 of List II of the Seventh Schedule and the impugned Act was in effect a colourable piece of legislation