A.P. PAPER MILLS LTD. ETC. ETC.

A v.

GOVERNMENT OF A.P. AND ANR.

,:;

SEPTEMBER 28, 2000

[K.T. THOMAS, D.P. MOHAPATRA AND R.C. LAHOTI, JJ.] B

Labour Laws :

Factories Act, 1948-Section 6(/)(d)-The Andhra Pradesh Factories c Rules, 1950-Rule 5-Licencefee-Applicability of the principle of quid pro quo-Held, since it is a regulatory fee and not a fee for special services rendered the principle of quid pro quo does not apply.

Andhra P.radesh Factories Rules, 1950-Government Order enhancing the licence fee from Rs. 10, 000 to Rs. 18, 00, 000-Whether valid-Held, it is D grossly high and excessive and therefore arbitrary.

Appellants filed Writ Petitions before the High Court challenging the - steep increase in licence fees levied by the respondents, through a Government Order under the provisions of the Andhra Pradesh Factories Rules, 1950.

The appellants contended, among various grounds before the High Court, that E there is no quid pro quo in the revision of fees and the services rendered by the respondents. The appellants further contended that the revision of fees is too high and arbitrary. Respondent-Government submitted that the licence fee was compensatory in nature and there was a nexus between the fee collected and the services rendered by various departments under the Factories Act,

1948. High Court, while dismissing the Writ Petitions, concluded that the F

major part of the amount received as licence fees has been spent for services rendered to the factories under the Act.

In appeal to this Court, the appellants contended that since the licence fee is a fee and not a tax, the respondents has not satisfied the principal of G quid pro quo for its validity and sustainability. ~

Allowing the appeals, this Court

HELD: 1.1. From the provisions of the Factories Act, 1948 and the -

provisions of the Andhra Pradesh Factories Rules, 1950 relating to grant of H 513

A licence it is clear that the licence fee in this case is a regulatory fee and not a fee for special services rendered. Indeed there is no mention of any special service to be rendered to the payer of the licence fee in the provisions. The purpose of the licence is to enable the authorities to supervise, regulate and monitor the activities relating to factories with a view to secure proper B enforcement of the provisions. Thus it is clear that the impugned licence fee is regulatory in character. Therefore, stricto senso the element of quid pro quo does not apply. (521-E; 529-B)

1.2. On a first look it appeared that the enhancement from Rs. 10, 000 to Rs. 18,00,000 (maximum), was too high. No material was placed on record C to show that there was justification for the enhancement of the fee to the extent prescribed. There was also no material on record to show existence of corelation between the expenditure incurred by the Government for enforcement of the Act and the Rules and the enhanced levy. When this Court enquired the State Government about any reconsideration and fresh decisions taken regarding the extent of the licence fees, it stated that some.decisions have D been taken regarding revision of the licence fee particularly the maximum licence fee/renewal fee to be levied on factories using power of 20, 000 HP and engaging 20,000 workers and above shall be limited to Rs. 2,50,000 per annum as against the present limit of Rs. 18,00,000 per annum. (529-E-G)

1.3. The statement made by the Government gives a sort of assurance E for revising the fee structure by adopting slab rates. But the decision does not set out the slabs so as to find out the exact scaling down of the fee. No notification has yet been issued and no time is appointed within which such notification shall be issued. Further the statement made by the Government does not make it clear whether it will be prospective or retrospective with F effect from the date of the impugned enhancement. In such circumstances the information contained in the statement is of little avail for deciding the case. [529-H; 530-AJ

1.4. The revision of licence fee introduced by the Government Order is quashed. It is made clear that this judgment will have only prospective G operation and no amount collected as licence fee unde, r the impugned Government Order shall be refunded. [530-C)

The Commissioner Hindu Religious Endow_ments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, (1954) SCR 1005~

Sreenivasa General Traders & Ors. etc. v. State of Andhra Pradesh & Ors.

H etc., (198313 SCR 843; Corporation of Calcutta and Anr. v. Liberty Cinema,

(1965] 2 SCR 477; Shannon v. Lower Mainland Dairy Products Board, (1938) A AC 708; Delhi Cloth & General Mills Co. Ltd v. Chie/Commissioner, Delhi & Ors., (1970] 2 SCR 348; Vam Organic Chemicals Ltd and Anr. v. State of

U.P. and Ors., (1997) 2 SCC 715; State o/Tripura and Ors. v. Sudhir Ranjan Nath, (1997] 3 SCC 665; Secunderabad Hyderabad Hotel Owners's Association and Ors. v. Hyderabad Municipal Corporation Hyderabad and B Anr., [1999) 2 SCC 274 and P. Kannadasan v. State of T.N., (1996] 5 SCC 670, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6317 of 1997.

From the Judgment and Order dated 12.12.96 of the Andhra Pradesh C High Court in W.P. No. 19274of1994.

WITH

Civil Appeal Nos. 6335/97, 6337-6344/97, 6336/97, 6345/97, 6348/97,

6346197, 6349197, 6319-6330/97, 6347/97, 6318/97,6333-34/97, 6331-6332/97, 7215/ D 97, 7216/97, 7217/97, 7218/97, 7546/97, 1098-1100/98, 6616/97 and C.A. No. 559112000.

S. Gambhir, Joseph Vellapally, Ms. K. Amareshwari, T.N. Singh, S. Ganesh, Ms. Mayuri Nayyar, K.J. John, Y. Raja Gopala Rao, P.S. Narasimha, P. Sridhar, K.N. Jha, V.G. Pragasam, A.T.M. Sarnpath, V. Balaji, Kailash Vasdev, V. Shekhar, E Ms. B. Sunita Rao, Anil Kumar Tandale, G. Venkatesh, S.W.A. Qadri, Y.P.

Mahajan and S.K. Dwivedi for the appearing parties.

The Judgment of the Court was delivered by

D.P. MOHAPATRA, J. Leave granted in S.L.P.(C) No. 12499of1997. p

The controversy raised in all these appeals relates to validity of the revision of licence fee under the Andhra Pradesh Factories Rules, 1950 (hereinafter referred to as the 'Rules') which was introduced by the State Government by G.O. Ms. No. 154, EF Deptt. Dated 26.07.1994. Since common questions of fact and law are involved in the cases, they were heard together G and they are being disposed of by this common judgment.

The appellants who are owners of factories located in the State of Andhra Pradesh challenged the levy of revised licence fee by filing writ petitions before the High Court of Andhra Pradesh. The challenge was on several grounds some of which are not relevant for the purpose of the present H

A proceedings. Suffice it to state that the main grounds on which the revised licence fee was challenged were;

(i) that the Factories Act, 1948 (hereinafter referred to as the 'Act') does not impose licence fee as there is no charging section;

B (ii) that the fee imposed amounts to a fee on production of goods

and therefore it is a 'tax'. The State has no power to levy the tax;

(iii) that the Rules or the Act do not provide any criteria or guidelines for fixation of the licence fee;

(iv) that collection of exorbitant fee to meet the State budget is a colourable exercise of power, so there is legal ma/a fide in enhancing the licence fee;

(v) that the State has no power to impose or enhance the licence fee for any alleged service rendered or proposed to be rendered under other legislations other than the Act, as the power is delegated under the Act only;

(vi) that the proposed strengthening of the department and additional activities which are to be approved by the State Government cannot be a ground for revising the licence fee prior to increasing such expenditure. The proposal of strengthening the department is with reference to other enactments also;

(vii) the classification shown in the Schedule to Rule 5 itself shows that the classification is discriminatory and unreasonable. So it is violative of Article 14 of the Constitution of India.

F In the counter affidavit filed on behalf of the respondents the stand taken was that the fee is compensatory in nature. It was averred in counter affidavit inter a/ia that due to progressive policies of the Government there is a tremendous growth of activity in the State; besides the phenomenal growth of number of factories, complexity of problems which are brought by G the hazardous/major factories is multifaceted, thus the problems to be tackled by the Factories Department have become more multifarious and complex.

Setting out the various types of jobs handled by the Factories Inspectorate it was stated in the counter affidavit that at present there are about 26, 650 factories in the State iind 39 Inspectors of Factories in the field. It is further averred in the affidavn Lhat the Factories Department is a Statute enforcing H Department for ensuring safety, health and welfare of industrial workers.

It is also stated in the counter affidavit that the department proposes A to intensify the activities by strengthening and better equipping the department from the additional licence fee.

It is also stated in the counter affidavit that the department not only issue licences but also undertakes statutory inspections, safety training programmes etc., for better compliance of various statutory provisions to B ensure safety in the industries and in order to concentrate and better monitor these major industries to prevent occurrence of accidents resulting in loss of lives and limbs of workers and loss of properties of the factory, it is essential that the Factories Department should strengthen itself by augmenting its resources and hence the amendment of existing licence fee schedule. Therefore, C it was the contention of the respondents that this should not be construed as a tax for the purpose of raising revenue.

In the judgment under challenge the High Court formulated the following pomts for consideration:

Whether the fee to be charged under the impugned G.O. amounts to tax or fee?

2 Whether the fee levied has got any quid pro quo?

Whether it is exproprietory or exorbitant and if so whether it amounts to tax, but not fee.

Whether the impugned G.O. is arbitrary and discriminatory as no guidelines are provided in the Act?

Whether there is a delegation of power by the Parliament to the State Government and the same is excessive, unguided and in violation of provisions of the Constitution of India ?

The High Court observed "the first and foremost point to be considered in this batch of Writ Petitions is-Whether the fee levied amounts to tax"?

After discussing in detail the legal positions with reference to several decisions of this Court, the High Court summed up its conclusion on Uie G point in the following words:

"We can safely say that the distinction between a 'tax' and a 'fee' lies primarily in the fact that a 'tax' is imposed for public purposes and is not, and need not, be supported by any consideration of service rendered in return; whereas a fee is levied essentially for services H

rendered and as such there is an element of quid pro quo between the person who pays the fee and the public authority which imposes it. Thus in 'fees' there is always an element of quid pro quo, which is absent in a 'tax'.

Testing the facts of the case in the light of the principles n.)ted above B the High Court came to the conclusion that since the major part of the amount received as licence fee is spent for the services rendered to the factories and the persons working therein, and since there is a nexus between the licence fee and the services rendered it cannot be said that the levy is a tax and not a fee. The High Court recorded the finding that the fats and circumstances C mentioned in the counter affidavit clinchingly establish that the Government is rendering services to the factories as provided under the Act and also other acts where obligation is imposed on the Inspector of Factories, and therefore, the contention raised on behalf of the petitioners that there is no quid pro quo in the fee collected and the services rendered by the department is not tenable. The High Court also repelled the contention raised on behalf of the D petitioners that the impugned Government Order is arbitrary and discriminatory as there is no guideline provided under section 6 of the Act. The contention that the classification of the factories for the purpose of levy of licence fee based on installed horse power and number of workmen employed in the industry is arbitrary, was also rejected by the High Court as without any E substance. On these findings all the writ petitions were dismissed. The writ petitioner have filed these appeals challenging the common judgment passed by the High Court dismissing the writ petitions.

The main thrust of the submissions of learned counsel appearing for the appellants was that the enhancement of the licence fee from Rs. 10, 000 to F Rs. 18,00,000 (maximum rates) is arbitrary, grossly high and has no co-relation with the services rendered or proposed to be rendered by the respondents to the holders of the licence. It was the further submission of the learned counsel that since the licence fee in question is a fee and not a tax it has to satisfy the principle of quid pro quo for its validity and sustainability; on the facts emerging from the pleadings of the parties, particularly the counter G affbdavit filed by the respondents, the principle of quid pro quo is not at all satisfied in the case. Therefore, submitted the learned counsel, the amended rule in which was introduced the revised set of licence fee should have been struck down as invalid and inoperative and the High Court erred in dismissing the writ petitions.

H The learned counsel appearing for the respondents, on the other hand

:" ·.

supported the judgment of the High Court. He contended that the quantum A of fee collected has a nexus with the services rendered by the department of the State Government incharge of enforcement of different laws governing factories in the State and keeping in view the large number of industrial units, particularly heavy industries which have come up in the State, the workload of the Directorate of Factories and the administrative department of the State B Government has increased m;; tnifold requiring expansion of their establishments.

In the circumstances submitted the learned counsel, the principle of quid pro quo is squarely complied with in the case.

Before discussing the merits of the contentions raised on behalf of the parties we may clarify the position that it was not the case of the appellants C that the State Government has no power to levy the license fee in question.

It was also not contended on their behalf that the levy suffers from any other illegality or infirmity except the non-compliance with the principle of quid pro quo.

On the contentions raised on behalf of the parties as noted above the D question that arises for determination is whether the enhancement of license fee under the Act is hit by the principle of quid pro quo. For answering the question it is necessary to find out whether the element of quid pro quo is applicable to the levy in question and if so, whether a reasonable co-relation between the quantum of fee and services rendered is established on the materials on record.

Taking up the first question it is necessary to ascertain the nature of license fee under the Act, is it obligatory in character or is it a levy in lieu of some special services rendered to the payer of the fee.

Section 6( l) ( d) of the Act provides that the State Government may F make Rules requiring the Registration of licensing of factories or any class or description of factories, and prescribing the fees payable for such registration and licensing and for the renewal of licenses. The section reads.

"6. Approval, licensing and registration of factories- (I) The State G; vemment may make rules.

xxx xxx xxx

( d) requiring the registration and licensing of factories or any class or description of factories, and prescribing the fees payable for such registration and licensing and for the renewal of licences."

SUPREME COURT REPQRTS [2000] SUPP. 3 _5.C.R.

A Chapter II (Sections 8 to 10) of the Act contains the provisions regarding the inspecting staff and the powers conferred on them. In Chapter III (Sections 11 to 20) are included the provisions relating to health in the premises of a factory. Similarly in Chapter IV (Sections 21 to 41) are incorporated the provisions regarding safety of the buildings and machineries. In Chapter IV- A (Sections 41 A to S 41 H) are included provisions relating to hazardous B processes. In Chapter V (Sections 42 to 50) the provisions regarding welfare of the persons working on the factory premises are contained Chapter VI (Sections 51 to 66) contains the provisions regarding working hours of adult workmen. Chapter VII (Sections 67 to 77) deals with provisions regarding employment of young persons. Chapter VIII (Sections 78 to 84) deals with C annual leave with wages of the workers of factories. Chapter IX (Sections 85 to 91A) contains the special provisions dealing with the matters provided therein. In Chapter X (Sections 92 to 106A) are included the provisions regarding penalties for offences under the Act and in Chapter XI (Sections

107 to 120) are included the supplemental provisions like Section 107-appeals, Section I I I-Obligations of Workers, Section I I IA-Rights of Workers, Section D 112- General power to make rules, etc. in Section 112 of the Act it is laid down that the State Government may make rules providing for any matter which, under any of the provision of the Act, is to be or may be prescribed or which may be considered expedient in order to give effect to the purposes of this Act.

The Andhra Pradesh _Factories Rules, 1950 were framed in exercise of the power conferred under Section 112 of the Act. In Rule 4 thereof it is laid down that the occupier of every factory shall submit to the Inspector an application in the prescribed Form No. 2 in duplicate for registration of the factory and the grant of licence thereof.

In Rule 5 in which provisions are made for grant of license it is laid down in sub-rule (3) that an occupier shall not use any premises as a factory or carry on any manufacturing process in a factory unless a licence has been issued in respect of such premises and is in force for the time being, pr.:>vided, that, if a valid application for grant of licence has been submitted and the G required fee has been paid, the premises shall be deemed to be fully licenced until such date as the Inspector grants or renews the licence or refuses in writing to grant for renew the licence. In the Schedule to this rule the different amounts of licence fee to be paid by the applicant depending on the installed horse power and the number of persons employed in the factory are set out.

H In Rule 7 provision is made regarding renewal of licences in sub rule

(3) thereof it is laid down inter a/ia that some fee shall be charged for the A renewal of licenses as for the grant thereof.

In Rule I I the mode and manner of demand of fee is laid down. In subrule (I) of the said Rule it is laid down inter alia that every application under these rules shall be accompanied by a treasury receipt showing that the appropriate fee has been paid into the local treasury under the appropriate B head of account, provided that the appropriate fee may alternatively be paid by a crossed cheque or a Bank Draft drawn on any nationalised bank in favour of Inspector of Factories in whose jurisdiction the Factory is situated.

In sub-rule (2) of the said Rule provision for refund of fee paid by the C applicant in case his application for grant/renew/transfer or amendment of licence is rejected is made.

In sub-rule (3) of Rule 11 it is provided that if the Chief Inspector is satisfied that a factory has not worked even on a single day during the period of licence, he may order the refund of the licence fee collected for that period. D

From the provisions of the Act and the provisions of the Rules relating to grant of licence it is clear that the license fee in this case is a regulatory fee and not a fee for any special services rendered. Indeed there is no mention of any special service to be rendered to the payer of the licence fee in the E provisions. The purpose of the licence is to enable the authorities to supervise, regulate and monitor the activities relating to factories with a view to secure proper enforcement of the provisions. From the nature of the provisions it is clear that for proper enforcement of the satutory provisions persons possessing considerable experience and expertise are required. The question is whether the element of quid pro quo as it is understood in common legal parlance is F applicable to a regulatory fee as in the present case. Before adverting to that question it will be helpful to notice a few decisions in which the question has been considered and decision regarding applicability or otherwise of the principle has been taken. The point has been dealt with in umpteen cases, but we propose to notice only a few of them.

In the case of The Commissioner Hindu Religious Endowments, Madras

v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, (1954] SCR 1005, which is commonly referred to as Shirur Mutt case a Constitution Bench of this Court bringing out a distinction between a tax and other forms of impositions made the following observations :

"A neat definition of what "tax" means has been given by Lathan C.J. of the High Court of Australia in Matthews v. Chicory Marketing Board. "A tax" according to the learned Chief Justice, "is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered." This definition brings out, in our opinion, the essential characteristics of a tax as distinguished from other forms of imposition which, in a general sense, are included within it. It is said that the essence of taxation is compulsion, that is to say, it is imposed under statutory power without the tax payer's consent and the payment is enforced by law. The second characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue, which when collected forms part of the public revenues of the State. As the object of a tax is not to confer any special benefit upon particular individual, there is, as it is said, no element of quid pro quo between the taxpayer and the • public authority. Another feature of taxation is that as it is a part of the common burden, the quantum of imposition upon the taxpayer depends generally upon his capacity to pay.

Coming now to fees, a 'fee' is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed. Ordinarily, the fees are uniform and no account is taken of the varying abilities of different . recipients to pay. These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all cases."

In Sreenivasa General Traders and Ors. etc. v. State of Andhra Pradesh G & Ors. etc., [1983] 3 SCR 843, a Bench of three learned Judges of this Court considered the validity of the levy of market fee and the enhancement of its rate under the provisions of Andhra Pradesh (Agricultural Produce and Livestock) Market Act, 1966. Bringing out the conceptual distinction between 'tax' and 'fee' the Court observed.

H "The traditional view that there must be actual quid pro quo for a fee

has undergone a sea change. The distinction between a tax and a fee A lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary motive of regulation in public interest. If the element of revenue for general purpose of the State predominates, the levy becomes a tax. In regard B to fees there is and must always be correlation between the fee collected and the service intended to be rendered. In determining whether a levy is a fee or a tax, the true test must be whether its primary and essential purpose is to render specific services to a specified area or class; it may be of no consequence that the State may ultimately and indirectly be benefitted by it. The power of any C legislature to levy a fee is conditioned by the fact that it must be "by and large" a quid pro quo for the services rendered. However, correlationship between the levy and the services rendered is one of general character and not of Mathematical exactitude. All that is necessary is that there should be a reasonable "relationship" between levy of the fee and the service rendered.

xxx xxx xxx

There is no generic difference between a tax and a fee; both are compulsory exactions of money by public authorities. Compulsion lies E in the fact that payment is enforceable by law against a person inspite of his unwillingness or want of consent. A levy in the nature of a fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that is must have direct relation to the actual service rendered by the authority to each individual who obtains the benefit of the F service. It is now increasingly realized that merely because the collections for the services rendered or for grant of a privilege or licence are taken to the consolidated fund of the State and not separately appropriated towards the expenditure for rendering the service is not by itself decisive. Presumably, the attention of the Court G in the Shirur Mutt case was not drawn to Art. 266 of the Constitution.

The Constitution nowhere contemplates it to be an essential element of fee that it should be credited to a separate fund and not to the consolidated fund. The element of quid pro quo in the strict sense is not always a sine qua non for a fee. The element of quid pro quo is not necessarily absent in every tax.

xxx xxx xxx

It is not always possible to work out with mathematical precision the amount of fee required for the services to be rendered each year and to collect only just that amount which is sufficient for meeting the expenditure in that year. In some years, the income of a market committee by way of market fee and licence fee may exceed the expenditure and in another year when the development works are in progress for providing modem infrastructure facilities, the expenditure may be far in excess of the income. It is wrong to take only one particular year or a few years into consideration to decide whether the fee is commensurate with the services rendered. An overall picture has to be taken in dealing with the que<>tion whether there is quid pro quo i.e. there is correlation between the increase in the rate of fee from 50 paise to rupee one and the services rendered."

In Corporation of Calcutta and Anr. v. Liberty Cinema, [1965] 2 SCR D 477, a Constitution Bench of this Court by majority upheld the levy oflicence fee under Section 413 read with Section 548 of the Calcutta Municipal Act, I951. Therein this Court observed that in our Constitution fee for licence and fee for services rendered are contemplated as different kinds of levy. The former is not intended to be a fee for services rendered; this is apparent from a consideration of Article I I 0 (2) and Article 199(2) where both the expressions E are used indicating thereby that they are not the same. Referring to the judgment in Shannon v. Lower Mainland Dairy Products Board, (I938) AC

708 this Court quoted with approval the observations that:

"If licences are granted it appears to be no objection that fees should be charged in order either to defray the costs of administering the F local regulation or to increase the general funds of the Province or for . both purposes .... .it cannot as their Lordships think, be an objection to a licence plus a fee that it is directed both to the regulation of trade and to the provision of revenue."

In the case of Delhi Cloth & General Mills Co. Ltd. v. Chief G Commissioner, Delhi & Ors., [1970] 2 SCR 348 a three Judge Bench of this Court considered the question whether the fee charged for annual renewal of licence to tum a factory is in reality a tax or fee and further whether maintenance of Inspectors provides quid pro quo for fee, this Court observed :

"In the return which was filed in the High Court to the writ petition H it was stated in paragraph 8 that the fees were being charged for the

running of the whole establishment including the Factory Inspectorate A which in its tum "provides free inspection and expert technical advice etc., to factory owners in matte.rs connected with safety, health welfare and the allied matters in respect of compliance with the provisions of the Factories Act". It has further been stated that in our country matters relating to health, safety, welfare and employment have to be looked after and the desired results have been sought to be achieved B by the legislature by providing statutory inspection service."

xxx xxx xxx

"A large number of provisions to which reference has been made, particularly in the Chapter dealing with safety, involve a good deal of C technical knowledge and in the course of discharge of their duties and obligations the Inspectors are expected to give proper advice and guidance so that there may be due compliance with the provisions of the Act. It can well be said that on certain occasions factory owners are bound to receive a good deal of benefit by being saved from the D consequences of the working of dangerous machines or employment of such processes as involve danger to human iife by being warned at the proper time as to the defective nature of the machinery or of the taking of precautions which are enjoined under the Act. Similarly, if a building or a machinery or a plant is in such a condition that it is dangerous to human life or safety the Inspector by serving a timely E notice on the manager saves the factory owner from all the consequences of proper repairs not being done in time to the building or the machinery. Indeed it seems to uSthat the nature of the work of the Inspector is such that he is to render as much, if not mote, service than a Commissioner would, in the matter of supervision, F regulation and control over the way in which the management of the trustees of religious and charitable endowment was conducted. The High Court further found, which finding being of fact, must be considered as final that 60% of the amount of licence fees which were being realized was actually spent on services rendered to the factory owners. It can, therefore, hardly be contended that the levy of the G licence fee was wholly unrelated to the expenditure incurred out of the total realisation."

This Court in the case of Vam Organic Chemicals Ltd. and Anr. v. State of U.P. and Ors., [1997] 2 SCC 715, held that there is a distinction between fees charged for licence i.e. regulatory fees and the fees for services rendered H

A as compensatory fees. In the case of regulatory fee like the licence fee existence of quid pro quo is not necessary although the fee imposed must not be, in the circumstances of the case. In support of the view reliance was placed on Corporation of Calcutta v. Liberty Cinema, AIR ( 1965) SC 1107

= [1965] 2 SCR 477. This Court in paragraph 18 of the judgment made the B following observations.

"The High Court in the impugned judgment has drawn a distinction between fees charged for licences, i.e. regulatory fees and fees for services rendered as compensatory fees. The distinction pointed out by the High Court can be seen in clause (2) of Article 110 :

C "110(2) A Bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or D body for local purposes."

The High Court has quoted from this Court's decision in Corporation of Calcutta v. Liberty Cinema, [ 1965] 2 SCR 4 77, which was based on a Privy Council judgment in George Walkem Shannon v. Lower Mainland Dairy Products Board, (1938) AC 708: AIR 1939 PC 36.

E This Court said in the Corpn. of Calcutta v. Liberty Cinema :

"In fact, in our Constitution fee for licence and fee for services rendered are contemplated as different kinds of levy. The former is not intended to be a fee for service rendered. This is apparent from a consideration of Article 110(2) and Article 199(2) where both the F expressions are used indicating thereby that they are not the same."

The High Court has taken the view that in the case of regulatory fees, like the license fee, existence of quid pro quo is not necessary although the fee imposed must not be, in the circumstances of the case excessive. The High Court further held that keeping in view the G quantum and nature of the work involved in supervising the process of denaturation and the consequent expenses incurred by the State, the fee of 7 paise per litre was reasonable and proper. We see no reason to differ with this view of the High Court."

A similar view was also taken by this Court in the case of State of H Tripura and Ors. v. Sudhir Ran} an Nath, [ 1997] 3 SCC 665, in which this Court

considered the validity of levy of application fee for grant of licence under A the Tripura Transit Rules. Discussing the question this Court made the following observations in paras 14 & 15 of the Judgment :

"We next take up the validity of the levy of application fee and licence fee of Rupees one thousand and Rupees two thoqsnd respectively.

In our opinion, the High Court was not right in holding that the said B fee amounts to tax on the ground that it has not been proved to be compensatory in nature. In our opinion the fee imposed by sub-rules

(3) and (4) is a fee within the meaning of clause (c) of sub-section (2) of Section 41. It is regulatory fee and not compensatory fee. The distinction between compensatory fee and regulatory fee is well established by several decisions of this Court. Reference may be made C to the decision of the Constitution Bench in Corp. of Calcutta v.

Liberty Cinema. It has been held in the said decision that the expression "licence fee" does not necessarily mean a fee in lieu of services and that in the case of regulatory fees, no quid pro quo need be established. The following observations may usefully be quoted. D

"This contention is not really open to the respondent for Section 548 does not use the word fee; it uses the words licence fee' and those words do not necessarily mean a fee in return for services. In fact in our Constitution fee for licence and fee for services rendered are contemplated as E different kinds of levy. The former is not intended to be a fee for services rendered. This is apparent from a consideration of Article 110(2) and Article 199(2) where both the expressions are used indicating thereby that they are not the same. In George Walken Shannon v. Lower Mainland Dairy Products Board, (1938) AC 708, it was observed (at pp. 721-722 of AC: F at pp. 38-39 of AIR):

If licences are granted, it appears to be no objection that fees should be charged in order either to defray the costs of administering the local regulation or to increase the general funds of the Province or for both purposes .. .It cannot, as G their Lordships think, be an objection to a licence plus a fee that it is directed both to the regulation of trade and to the provision of revenue.

It would, therefore, appear that a provision for the imposition of a licence fee does not necessarily lead to the conclusion that the fee H

A must be only for services rendered."

"15. This decision has been followed in several decisions, including the recent decisions of this Court in Vam Organic Chemicals Ltd. v.

State.of U.P. and Bihar Distillery v. Union of India. The High Court was therefore not right in proceding on the assumption that every B fee must necessarily satisfy the test of quid pro quo and in declaring the fees levied by sub-rules (3) and (4) of Rule 3 as bad on that basis.

Since we hold that the fees levied by the said sub-rules is regulatory in nature, the said levy must be held to be valid and competent, being fully warranted by Section 41.;,

C Taking a similar view this Court in the case of Secunderabad Hyderabad Hotel Owners' Association and others v. Hyderabad Municipal Corporation Hyderabad and another, [1999] 2 SCC 274, held that licence fee collected by Municipalities for running a lodging house, hotel, restaurant, coffee house, tea stall, eating house, soft drink stall, cafeteria, tiffin room, etc. is a fee and not a tax; and further that the fee being regulatory existence of an element D of quid pro quo is not necessary for levying such fee albeit such fee cannot be excessive. The distinction between the two types of fees, fee which is regulatory and fee for services rendered was expressed by this Court in paragraphs 9 and 12 which are quoted hereunder.

"It is, by now, well settled that a licence fee may be either regulatory or compensatory. When a fee charged for rendering specific services, a.certain element of quid pro quo must be there between the services rendered and the fee charged so that the licence fee is commensurate with the cost of rendering the service although exact arithmetical equivalence is not expected. However, this is not the only kind of fee which can be charged. Licence fees can also be regulatory when the activities for which a licence is given require to be regulated or controlled. The fee which is charged for regulation for such activity would be validly classifiable as a fee and not a tax although no service is rendered. An element of quid pro quo for the levy of such fees is not required although such fees cannot be excessive.

In the present case, however, the fees charged are not just for services rendered but they also have a large element of a regulatory fee levied for the purpose of monitoring the activity of the licensees to ensure that they comply with the terms and conditions of the licence. Dealing with such regulatory fees, this Court in Vam Organic Chemicals Ltd.

v. State of U. P., [ 1997] 2 SCC 715 observed that in the case of a

...

regulatory fee, no quid pro quo was necessary but such fee should A not be excessive. The same distinction between regulatory and compensatory fees has been made in the case of P. Kannadasan v.

State ofT.N., [1996] 5 SCC 670, as well as State ofTripura v. Sudhir Ranjan Nath, [1997] 3 SCC 665."

From the conspectus of the views taken in the decided cases noted B above it is clear that the impugned licence fee is regulatory in character.

Therefore, strico senso the element of quid pro quo does not apply in the case. The question to be> considered is if there is a reasonable co-relation between the levy of the licence fee and the purpose for which the provisions of the Act and the Rules have been enacted/framed. As noted earlier, the High C Court has answered the question in the affirmative. We !lave carefully examined the provisions of the Act and the Rules and also the pleadings of the parties.

We find that the High Court has given cogent and valid reasons for the findings recorded by it and the said findings do not suffer from any serious illegality. It is our considered view that the licence fee has co-relation with the purpose for which the statute and the rules have been enacted.

The question that remains to be considered is whether the enhanced licence fee under challenge is grossly high and excessive, and therefore, arbitrary. On a first look it appeared to us that the enhancement from Rs.

10,000 to 18,00,000-(maximum), was too high. We also did not find any material

on record to show that there was justification for the enhancement of the fee E to the extent prescribed. There was also no material on record to show existence of co-relation between the expenditure incurred by the Government for enforcement of the Act and the Rules and the enhanced levy. We therefore inquired from the learned counsel appearing for the Government of A.P. whether the State Government is prepared to reconsider the matter and F take a fresh decision regarding the extent to which the licence fee should be enhanced. In response to the query the learned counsel has filed a copy of the communication bearing Lr. No. 453/Lab.Il/A-3/97 dated 07.07.2000 issued by Govt. of A.P. in Labour Employment Training and Factories (Lab-II) Department in which it is stated that some decisions have been taken regarding revision of the licence fee particularly the maximum licence fee/renewal fee to G be levied on factories using power of20,000 HP and engaging 20,000 workers and above shall be limited to Rs. 2.5 lacs per annum as against the present limit of Rs. 18,00,000 per annum.

The statement made by the Government of Andhra Pradesh gives a sort of assurance for revising the. fee structure by adopting slab rates. But the H

A decision does not set out the slabs so as to find out the exact scaling down of the fee. No notification has yet been issued and no time is appointed within which such notification shall be issued, further the statement made by the Government does not make it clear whether it will be prospective or retrospective with effect from the date of the impugned enhancement. In such circumstances B the information contained in the afore-mentioned is of little avail for deciding the case.

On the discussions made and the reasons set out in the foregoing paragraphs, the appeals are allowed, the judgment under challenge is set aside and the revision of licence fee introduced by G.O. Ms. No. 154, E & F C Deptt. Dated 26-07-1994, is quashed. It is made clear that the judgment will

have only prospective operation and no amount collected as licence fee under the impugned Government Order shall be refunded. There will be no order as to costs.

B.S.

Appeals allowed.