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Bhanwar Lal Nahar v. State Of Rajasthan

Rajasthan High Court
May 14, 1958
Judgment
Subsequent
References
CaseIQ
Case Information
CITATION CODES
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CASE NO.

D.B.C Writ petition No. 265 of 1956

Attorney(S)

R.C Jain, for Petitioners;

G.C Kasliwal, Advocate General

JUDGES

Mr. K.L. Bapna

Mr. D.M. Bhandari

ACTS

Commercial Establishments Act, 1956 (Ajmer Act No. IV of 1956) (hereinafter called the Act)

provisions of secs. 21 and 26 of the Government of Part-C States Act, 1951 (Act

provisions of the Ajmer Shops and Commercial Establishments Act, 1956,

GOVERNMENT OF PART C STATES ACT 1951

void.17. Sec. 22 of the Government of Part C States Act

sec. 38(2) of the Government of Part C States Act 1951,

sec. 22 of the Government of Part-C State Act, 1951.5.

Commercial Establishments Act, 1956.14.

Commercial Establishments Act, 1956.

GOVERNMENT OF INDIA ACT

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Judgment Summary — Bhandari, J.: Ajmer Shops and Commercial Establishments Act, 1956

Factual and Procedural Background

This is a writ petition under Article 226 of the Constitution of India filed by shopkeepers carrying on business at Ajmer (petitioners). The Legislative Assembly of the (former) State of Ajmer enacted the Ajmer Shops and Commercial Establishments Act, 1956, which received the President's assent on 25 June 1956 and came into force on 1 August 1956. On 17 December 1956 the petitioners were called upon to register their shops for 1957 under section 4 of the Act by payment of Rs. 2 per year as registration fee. The petition was instituted on 20 December 1956 challenging the validity of the Act on multiple grounds (competence, conflict with the Weekly Holidays Act, repeal by section 43, repugnancy, infringement of Article 19(1)(g), mode of bringing the Act into force, and delegation concerning the registration fee).

Legal Issues Presented

  1. Whether the Legislative Assembly of the former State of Ajmer was competent to enact the Ajmer Shops and Commercial Establishments Act, 1956 (i.e., whether the Act was within the legislative power of the Assembly under the Government of Part-C States Act, 1951 and the Seventh Schedule)?
  2. Whether the provisions of the Ajmer Act conflict with the Weekly Holidays Act (Act No. XVIII of 1942) as applied to Ajmer?
  3. Whether section 43(1) of the Ajmer Act, which purported to repeal the Weekly Holidays Act in Ajmer, was valid (i.e., could the Legislative Assembly of Ajmer directly repeal the Weekly Holidays Act)?
  4. Whether any repeal of the Weekly Holidays Act occurred by implication as a result of enactment of the Ajmer Act?
  5. Whether the Ajmer Act infringed Article 19(1)(g) (right to carry on trade, business or profession) and, if so, whether the restrictions were reasonable and in the public interest?
  6. Whether the Act could be brought into force by notification of the Chief Commissioner of Ajmer (given Article 239 and the administration of Ajmer by the President through the Chief Commissioner)?
  7. Whether the imposition/collection of the registration fee under section 4 (and rule-making/delegation under section 42) was an improper delegation of taxation power because the fee was in the nature of a tax?

Arguments of the Parties

Petitioners' Arguments (summary)

  • The Legislative Assembly of Ajmer lacked competence to enact the Act and the Act was ultra vires the Assembly.
  • The provisions of the Act conflicted with the Weekly Holidays Act (already in force in Ajmer).
  • Section 43 purported to repeal the Weekly Holidays Act, but the Ajmer Legislature was not competent to repeal that Act.
  • Where provisions are repugnant, the Weekly Holidays Act continued to operate and the Ajmer Act provisions would be void to the extent of repugnancy under Article 254 and section 22 of the Government of Part-C States Act, 1951.
  • The Act infringed Article 19(1)(g); restrictions were not reasonable or in the public interest.
  • The Act's commencement mechanism and the definition of "State Government" (as Chief Commissioner, Ajmer) offended Article 239 — the Act could only be brought into force by order of the President and not by the Chief Commissioner.
  • The registration fee imposed by section 4 was in the nature of a tax and the power to fix such a tax could not be delegated to the executive (the Chief Commissioner / rule-making authority).

State's Arguments (summary)

  • The Legislative Assembly of Ajmer had competence to legislate in respect of matters falling in the State List and the Concurrent List (items relied on included Nos. 23, 24 of the Concurrent List and No. 26 of the State List), and the Act was enacted under sections 21 and 26 of the Government of Part-C States Act, 1951.
  • The Bill, after passage by the Assembly, was presented to the Chief Commissioner, reserved for the President, and the President gave assent on 25 June 1956; therefore the Act was within legislative competence.
  • The Weekly Holidays Act was not a Parliamentary enactment that prevailed necessarily over the Ajmer Act in the way contended — the Weekly Holidays Act only came into force in a province/area by provincial notification and the provincial government could withdraw its application; accordingly, the State Government could withdraw its prior application to Ajmer.
  • The Ajmer Act did not infringe Article 19(1)(g) — its provisions were enacted in the interests of public welfare and labour and any restrictions were reasonable.
  • The Chief Commissioner was competent to bring the Act and the rules into force; the definition of State Government as Chief Commissioner did not offend Article 239 because the President may act through the Chief Commissioner and section 38(2) of the Government of Part-C States Act authorises executive action in the name of the Chief Commissioner.
  • The registration fee was not a tax; it was a fee for registration and the Legislature could leave details (including the quantum) to the State Government by rule-making power under section 42.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Manoharlal v. The State Authority referenced in relation to classification of provisions (secs. 11 and 12) as within the legislative lists relied upon (Concurrent and State lists). The court referenced this case in concluding that sections 11 and 12 (opening/closing hours and one-day closure) fall both within item 24 of the Concurrent List and item 26 of the State List.
The Commissioner, Hindu Religious Endowments, Madras v. Shri Lorshmindra Thirtha Swamiar of Sri Shirur Mutt Illustration of the judicial distinction between a tax and a fee (principle regarding characterization of payments demanded by government). Cited as one of the authorities establishing the tax/fee distinction; relied upon to conclude that the registration payment under section 4 is a fee (consideration for services), not a tax.
Ratilal Panachand Gandhi v. State of Bombay Illustration of the tax-versus-fee distinction and related principles of characterization. Cited to support the proposition that fees demanded for registration connected to services are not taxes; used in determining that the registration payment is not a tax.
Jagannath Ramanuj Das v. State of Orissa Another authority addressing the distinction between taxes and fees or similar characterization principles. Cited alongside the other authorities to justify treating the registration payment as a fee (not a tax) and to uphold delegation to the State Government to determine fee details.

Court's Reasoning and Analysis

The court proceeded in distinct analytical steps, applying constitutional allocation of powers and statutory provisions strictly as set out in the opinion:

  1. Legislative competence: The court examined the Government of Part-C States Act, 1951 (sec. 21(1)) which authorised the Legislative Assembly of Ajmer to make laws with respect to matters in the State and Concurrent Lists. The court analysed the subject-matter of the Ajmer Act chapter-by-chapter and matched provisions to entries in the Seventh Schedule: - Chapters regulating working hours, overtime, rest intervals, leave and related welfare provisions fall within item 24 of the Concurrent List (labour welfare). - Sections 11 and 12 (opening/closing hours and one-day closure) regulate trade/commerce and were held to fall within item 26 of the State List as well as item 24 of the Concurrent List (the court expressly cited Manoharlal v. The State in this context). On this basis the court rejected the contention that the Assembly lacked competence to enact the substantive provisions (save for the separate question about section 43(1)).
  2. Relationship with the Weekly Holidays Act (1942): The court identified that provisions of the Weekly Holidays Act (central enactment under the pre-Constitution Government of India Act) dealing with shop closing, weekly holidays and related protections overlap substantively with Chapter III of the Ajmer Act and fall within the Concurrent List. The court formulated two focused questions: whether Ajmer's Assembly could directly repeal the Weekly Holidays Act by section 43(1), and whether repeal occurred by implication. The court applied Article 254(1) of the Constitution: where a State law is repugnant to an existing law with respect to matters in the Concurrent List, the existing law prevails and the State law is void to the extent of repugnancy. Because section 43(1) expressly repealed the Weekly Holidays Act as applied to Ajmer, the court held that this provision was directly repugnant to the continuing operation of the Weekly Holidays Act and therefore void under Article 254(1). The court also held that the Weekly Holidays Act continues in force in Ajmer and that any provisions of the Ajmer Act inconsistent with it are void to the extent of inconsistency.
  3. On applicability of section 22 of the Government of Part-C States Act: The court found section 22 not applicable because the Weekly Holidays Act was not made by Parliament post-Constitution but was an existing law enacted prior to the Constitution; the Weekly Holidays Act had been brought into force for Ajmer by provincial action under its own terms, and the provincial government had the power only to bring the Weekly Holidays Act into force by notification under section 1(3) of that Act—not to withdraw it by such notification. The court emphasised that it was the Legislature of Ajmer that attempted repeal (by section 43(1)), which is invalid under Article 254.
  4. On Article 19(1)(g) challenge: The court characterised the Ajmer Act as legislation regulating conditions of work (hours, wages, leave, holidays, terms of service). It concluded that the restrictions imposed were enacted in the interests of the public (the court explained that "in the interests of the general public" is to be understood as public interest or welfare) and therefore not unconstitutional on the face of Article 19(1)(g). The court declined to consider allegations about specific rules being unduly restrictive because the petition did not identify particular rules with sufficient specificity.
  5. On the mode of commencement and the role of the Chief Commissioner (Article 239): The court noted Article 239 allows the President to act through a Chief Commissioner. It further relied on section 38(2) of the Government of Part-C States Act, 1951, which provides that executive action of the Chief Commissioner is to be taken in his name. Because the Act had received the President's assent, the court treated the Chief Commissioner as authorised to bring the Act into force and to make rules; accordingly, there was no flaw in bringing the Act or rules into force by the Chief Commissioner.
  6. On the registration fee and delegation: The court considered whether the registration payment under section 4 was a tax (in which case legislative detail would be required) or a fee (charge for services). Citing authorities on the tax/fee distinction (including The Commissioner, Hindu Religious Endowments v. Sri Shirur Mutt; Ratilal Panachand Gandhi v. State of Bombay; Jagannath Ramanuj Das v. State of Orissa), the court concluded that the registration charge was a fee connected to registration services and enforcement purposes and not a tax in the proper sense. The court accepted that the Legislature set out broad principles and could delegate the determination of detailed fee amounts to the State Government under the rule-making power in section 42; it found no improper delegation.

Holding and Implications

Writ petition dismissed.

Direct holdings and immediate consequences for the parties (as expressed in the opinion):

  • The Ajmer Shops and Commercial Establishments Act, 1956 was within the legislative competence of the Legislative Assembly of Ajmer except for section 43(1).
  • Section 43(1) (which purported to repeal the Weekly Holidays Act, 1942, in Ajmer) is void and of no effect.
  • The provisions of the Weekly Holidays Act continue to remain in force in Ajmer and prevail over any repugnant provisions of the Ajmer Act under Article 254(1); the Ajmer Act is of no effect to the extent of repugnancy with the Weekly Holidays Act.
  • The Ajmer Act did not offend Article 19(1)(g) on the grounds argued in this petition (the restrictions were held to be in the public interest and not unreasonable on the face of the pleadings).
  • The Chief Commissioner could validly bring the Act into force and make rules under it; the Inspector appointed under the Act was entitled to begin registration and collect the registration fee.
  • The registration payment under section 4 was held to be a fee (not a tax), and the delegation to the State Government to prescribe fee details was not an improper delegation.
  • No relief was granted to the petitioners; the writ petition was dismissed and the parties were directed to bear their own costs (no costs awarded to the opposite parties).

The opinion does not elaborate broader doctrinal implications or declare the setting of any new legal precedent beyond the application of the statutory and constitutional provisions to the facts of this petition.

Show all summary ...

Bhandari, J.:— This is a writ petition under Art. 226 of the Constitution of India.

2. The petitioners are shopkeepers carrying on business at Ajmer in the erstwhile State of Ajmer. The Legislative Assembly of Ajmer passed the Ajmer Shops and Commercial Establishments Act, 1956 (Ajmer Act No. IV of 1956) (hereinafter called the Act) which received the assent of the President of India on the 25th June, 1956, and came into force on the 1st of August, 1956. On 17th December, 1956, the petitioners were called upon to get their shops registered for the year 1957 under sec. 4 of the Act by payment of Rs. 2/- per year as registration fee. The petition was filed on 20th December, 1956, challenging the validity of the Act on several grounds. The material points which are taken up in this petition as amplified at the time or arguments may be summed up as follows:—

1. That the Legislative Assembly of Ajmer was not competent to enact the said Act and it is ultra vires the State Legislature.

2. That the Provisions of the Act are in conflict with the provisions of the Weekly Holidays Act (Act No. XVIII of 1942) which had been made applicable to the State of Ajmer.

3. That by sec. 43 of the Act, the Weekly Holiday Act was repealed on and from the date of the commencement of the Act, but the Legislature of the State of Ajmer was not competent to repeal that Act.

4. That the provisions of the Weekly Holidays Act continued to remain in force, and the provisions of the Act in so far as they are repugnant to the provisions of the Weekly Holidays Act, could not prevail, and were to the extent of repugnancy void by virtue of Art. 254 of the Constitution and also by virtue of sec. 22 of the Government of Part-C State Act, 1951.

5. That the provisions of the Act are void as they infringe the rights of the citizens to practise any profession or to carry on any trade or business, conferred under Art. 19 of the Constitution, and the restrictions imposed by the Act are not saved as they are not reasonable and in the interest of the general public.

6. That under sec. 1(3) of the Act it was to come into force on such date as the State Government may by notification in the official gazette appoint in this behalf and the State Government was defined under sec. 2(1)(w) as the Chief Commissioner, Aimer. This definition was contrary to Art. 239 of the Constitution under which the former State of Ajmer was administered by the President acting through the Chief Commissioner, and the Act could only be brought into force by order of the President and not otherwise. For she same reason the rules framed under the Act could not be brought into force by the Chief Commissioner.

7. That the impositon of the registration fee is in the nature of a tax, the imposition of which could not be delegated to the executive authority.

3. On behalf of the State of Rajasthan it was stated that the Legislative Assembly of the State of Ajmer could make laws for or any part of the State of Ajmer with respect to any of the matters enumerated in the State List or in the Concurrent List of the seventh schedule of the Constitution. It was urged that the provisions of the Act fell within items Nos. 23 and 24 of the Concurrent List and also within item No. 26 of the State list, and that after the bill had been passed by the Legislative Assembly of the State it was presented to the Chief Commissioner, and the Chief Commissioner reserved it for the consideration of the President, and the President assented to it on the 25th of June, 1956. The Act was therefore, within the legislative competence of the Legislature of the State of Ajmer duly made under the provisions of secs. 21 and 26 of the Government of Part-C States Act, 1951 (Act No. XLIX of 1951).

4. With regard to the Weekly Holidays Act, it was submitted that it was not the law made by the Parliament and it could not prevail over the provisions of the Act The Weekly Holidays Act could come in force in a province or in a specified area only if the” provincial Government by a notification in the official gazette so desired, and it was in that manner brought into force in the State of Ajmer. The State Government was fully competent to withdraw its application to the State of Ajmer. It was further submitted that the provisions of the Act did not infringe Art. 19(1)(g) of the Constitution as that law was made in the general interests of the public, inasmuch as it purported to promote the welfare of the labour, and the restrictions, if any, on the right of the citizens to practise any profession or to carry on any trade or business were reasonable. With regard to the bringing into operation of the provisions of the Act, it was submitted that the Chief Commissioner was competent to do it and the definition of the State Government in sec. 2(1)(w) as meaning the Chief Commissioner, Ajmer, did not in any way offend Art. 239 of the Constitution. The same argument was submitted with respect to the framing of the Rules. It was further urged that the Rules were framed after prepublication and they were enforced only after the Act had been brought in to force on the 1st of August, 1956. It was also urged that the registration fee is not in the nature of a tax.

5. The former State of Ajmer had no Legislature when the Constitution of India came into force. Under Act, 240(1), the Parliament was empowered to enact a law creating for any State specified in Part-C of the First Schedule, a body to function as a Legislature for the State with such constitution powers and functions as may be specified in that law. Such law was enacted by the Parliament and called the Government of Part-C States Act, 1951. Under sec. 21(1) of this Act, the Legislative Assembly of the State of Ajmer could make laws for the whole or any port of the State with respect to any of the matters enumerated in the State list and the Concurrent list subject to certain exceptions with which we are not concerned here.

6. We have to see whether the Act in question has been made in conformity of the powers granted to the Legislative Assembly of the former State of Ajmer.

7. The main provisions of the Act relate to the regulation of the working hours, payment of wages, leave, holidays, terms of service and other conditions of the work of persons employed in the shops and other commercial establishments.

8. The substantial provisions begin with Chapter III. Sec. 7 provides that no employee in any establishment shall be required or allowed to work for more than ten hours on any day and 54 hours in a week. Sec. 8 provides for extra wages for overtime work. Sec. 9 relates to interval for rest. Sec. 10 provides for the period of work as to be spread over. These provisions are clearly for the welfare of the labour including the conditions to work and fall within item No. 24 of the Concurrent list.

9. Sec. 11 provides for opening and closing hours of an establishment, and sec. 12 provides that every establishment shall remain closed for one day. These two sections relate to the regulation of trade and commerce. Regulation of trade and commerce comes under item No. 26 of the State list. Secs 11 and 12 of the Act also fall under item No. 24 of the Concurrent list. Reference maybe made to Manoharlal v. The State (1). We hold that secs. 11 and 12 of the Act fall both within item 24 of the Concurrent list and item 26 of the State list in the seventh schedule of the Constitution.

10. Chapter IV provides for leave with wages, Chapter V for payment of wages, and Chapter VI deals with employment of children and women. They are for the welfare of the labour and fall within items No. 24 of the Concurrent List. The other Chapters except sec. 43(1) declaring the repeal of the Weekly Holidays Act, 1952, are ancillary provisions for the enforcement of the provisions of Chapters III to VI. Thus except for sec. 43(1), it cannot be said that the Legislative Assembly of the State of Ajmer was not competent to enact the provisions of the Act We, therefore, reject the first contention of the learned counsel for the petitioners and hold that it was within the competence of the Legislative Assembly of Ajmer to enact the Ajmer Shops and Commercial Establishments Act, 1956. We shall deal with sec. 43(1) separately.

11. The contentions Nos. 2, 3 and 4 raised on behalf of the petitioners raise allied questions. The Central Legislature under the Government of India Act enacted the Weekly Holidays Act (Act No. XVIII of 1942). It was brought into force in the area covered by the former State of Ajmer.

12. We may examine some of the provisions of that Act. Sec. 3 deals with the closing of the shops. Sec. 4 deals with weekly holiday in shops, restaurants and theatres. Sec. 5 deals with additional half day closing or holiday. Sec. 6 deals with the provision that no deduction or abatement to be made from wages. These provisions are of the same nature as contained in Chapter III of the impugned Act, and fall within item 27 of the Concurrent List.

13. Two questions, therefore, arise in this connection:—

1. Whether the Legislative Assembly of the State of Ajmer could directly repeal the Weekly Holidays Act by sec. 43(1) of the Act? and

2. Whether there is a repeal by implication of any provisions of the Weekly Holidays Act by the enactment of the Ajmer Shops and Commercial Establishments Act, 1956.

14. Generally, the power of repeal depends upon the competence of the Legislature to enact the provisions of the law which it sought to repeal. If it is exclusively within the competence of the Legislature repealing the enactment to legislate on the subject dealt by the enactment, it has power to repeal it.

15. This can be directly done by repealing it or by enacting any other law which directly covers the field occupied by the repealed enactment. In the second case there is a repeal by implication.

16. The Weekly Holidays Act was an existing law within the definition given to that term in Art. 366(10) of the Constitution. Art. 254(1) lays down that if any provision of law made by the Legislature of a State is repugnant to any provision of an existing law with respect to any of the matters enumerated in the Concurrent List, then the existing law shall prevail, and the law made by the Legislature would, to the extent of repugnancy, be void. By sec. 43(1) of the Act, the Weekly Holidays Act is repealed. This provision is directly repugnant to the continuance in force of the Weekly Holidays Act. Under Art. 254(1), the provisions of the Weekly Holidays Act prevail, and the new law to the extent of repugnancy is void.

17. Sec. 22 of the Government of Part C States Act is really not applicable, as the Page: 681Weekly Holidays Act was not enacted by Parliament but had been enacted prior to the enforcement of the Constitution. Learned Advocate General argued that the Weekly Holidays Act was brought into force by the Provincial Government. The same Government had the right to withdraw its application in future and this is what has been done by enacting sec. 43(1) of the Act. In our opinion this argument has got no force for two reasons. The first is that the Provincial Government had been given the power by sec. 1(3) of the Weekly Holidays Act to bring it into force by notification in the official gazette, but it had no power to withdraw its application. The second reason is that it is not the Provincial Government or the State Government which has withdrawn the application of the Weekly Holiday Act. It is the Legislature of the State which has enacted a law repealing the Weekly Holidays Act, a law in respect of a matter falling in the Concurrent List. As already mentioned, under Act, 254(1) the existing law is to prevail. In our opinion sec. 43(1) of the Act is void and of no effect.

18. For the same reasons the provisions of the Act in so far as they are inconsistent with the provision of the Weekly Holidays Act are of no effect, and under Art. 254(1) the provisions of the Weekly Holidays Act will prevail. It is not necessary for us in this case to enter into detailed discussion the question as to which are the provisions of the Act which are directly repugnant to the provisions of the Weekly Holidays Act. The discussion will only be academic at this stage. But we may point out that there is manifest repugnancy in some respects, e.g, the matter of punishment. Under sec. 35 of the Act, the sentence to be imposed is much more the sentence provided in the Weekly Holiday Act for the same offence

19. we are of opinion that the provisions of the weekly Holidays Act continue to remain in force and the provisions of the Weekly Holidays Act prevail over the provisions of the Act. In other respects the Act is not affected. This disposes of the contentions Nos. 2, 3 and 4 raised on behalf of the petitioners.

20. That fifth contention of the petition is the Act is void, as it infringes the rights of the citizens to practise any profession or to carry on any trade or business conferred under Art. 19(1)(g) of the Constitutions. The Act is a piece of legislation regulating the hours of work, payment of wages, leave holidays, terms of service and other conditions of work of persons employed in the shops and other commercial establishments. The restrictions are obviously in the interests of a section of the public. The phrase “in the interests of the general public” does not mean the interests of the whole of the public. It means what we may call “in public interest”, the provision for better conditions of labour and service are undoubtedly in public interests. Learned counsel for the petitioners urged that certain rules made by the Chief Commissioners, Ajmer, were very stringent and restricted the rights of the petitioners to carry on the trade, occupation or business. In this writ petition it is not stated as to which of the rules unduly restricted the rights of the petitioners. In the absence of specific pleadings on this point, we cannot enter into an academic discussion on this subject.

21. Now, we take into consideration the sixth contention raised on behalf of the petitioners. The Act received the assent of the President on the 25th of June, 1956, and was published in the Gazette of India dated the 5th of July 1956. It provided in sec. 1(3), that it shall come into force on such date as the State Government may by notification in the official gazette appoint in that behalf it was brought into force from the 1st of August, 1956, by notification issued by the Chief Commissioner of the State of Ajmer. It is urged that under Art. 239 of the Constitution the State of Ajmer was administered by the President, and it was the President who could have brought it into force and not the Chief Commissioner. This argument overlooks the fact that under Art. 239 the President may act, to such extent as he thinks fit, through a Chief Commissioner. Under sec. 38(2) of the Government of Part C States Act 1951, all executive action of the Chief Commissioner whether taken on the advice of his Ministers or otherwise is to be taken in name of the Chief Commissioner. In the Act which had received the assent of the President, the State Government has been defined as meaning the Chief Commissioner Ajmer. As the Act has received the assent of the President, it may be taken that the Chief Commissioner was authorised by the President to bring the Act into force. Under Art. 239 the President could carry on the business of the Ajmer State through a Chief Commissioner. This postulates that he could authorise the Chief Commissioner to bring the Act into force. There is no flaw in the bringing of the Act Page: 682into force by the Chief Commissioner. This contention of the learned counsel has got no force. For the same reasons the rules under the Act could also be made by the Chief Commissioner. We find no substance in this contention raised on behalf of the petitioners.

22. Now we take up the last contention raised on behalf of the petitioners that the registration fee is in the nature of a tax, the imposition of which could not be delegated to an executive authority. The argument is that the Legislature of the State of Ajmer should have enacted in the Act as to what fees are to be paid on the registration of the establishment, and should not have left it to the Chief Commissioner to frame rules on this point. Under sec. 42 of the Act the State Government is authorised to make rules for the purpose of carrying into effect the provisions of the Act. Sec. 4 of the Act lays down that every establishment shall send to the Inspector of the area concerned a statement in prescribed form together with such fees as may be prescribed. It cannot be said that this recovery of fees is in the nature of a tax. The distinction between a tax and a fee has been pointed out by Their Lordships in a number of cases. Reference may be made to—The Commissioner, Hindu Religious Endowments, Madras v. Shri Lorshmindra Thirtha Swamiar of Sri Shirur Mutt (2), Ratilal Panachand Gandhi v. State of Bombay (3) and Jagannath Ramanuj Das v. State of Orissa (4),

Now in this case the fees are levied on the registration of the establishment. This registration is necessary in order to carry out, the purposes of the Act which is to regulate the conditions of work in employments, shops and commercial establishments. If a sum of money is demanded under sec. 4 from the employer for the registration of establishment, it cannot be said that it is a sum demanded from him for which no benefit or service has been provided. It is levied in consideration of certain services and it is to be utilised for rendering those services. Such a sum cannot be called a tax in the proper sense of the term. The Legislature of the State of Ajmer laid down the broad principles in the Act, and left it to the State Government to work out the details. The determination as to how much fee is to be paid for registration by the establishment is a matter of detail and the Legislature could well have left this matter for the determination of the State Government. We do not think that there has been any improper delegation in the matter of determination of faes by the State of Ajmer. We do not find any force in this contention.

23. This disposes of all the relevant points raised by the petitioners in their writ petition. In our opinion, the Act was within the legislative competence of the Legislature of the State of Ajmer, but it could not repeal the Weekly Holidays Act, 1942. The provisions of sec. 43(1) of the Act are void. The provisions of the Act are also of no effect in so far as they are repugnant to the provisions of the Weekly Holidays Act. The Act did not offend Art. 19 of the Constitution of India. The Act could be brought into force by the Chief Commissioner, and he could also frame rules under the Act. The Inspector appointed under the Act was entitled to take steps for the registration of shops and for the collection of registration fee. The petitioners are, therefore, not entitled to any relief in this writ petition.

24. The writ petition is dismissed. In view of our decision that sec. 43(1) is invalid, and that the provisions of the Weekly Holidays Act prevail over the provisions of the Ajmer Shops and Commercial Establishments Act, 1956, we do not award any costs to the opposite parties. The parties will bear their own costs.

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