JUDGMENT C.A. Vaidialingam, J. 1. In all these three original petitions, the respective petitioners challenge the orders of the Sales Tax Department claiming licence fees at an enhanced rate either on the basis of the rules made by the Madras State or on the basis of the rules made by the Kerala State. 2. In OP 1157/59 the petitioner claims to be a registered dealer under S.8 of Madras Act IX of 1939. The assessment period in question in respect of the licence fee is 1955-56 and it is also seen that on the basis of the Madras rules, as it originally stood, the petitioner paid a sum of Rs. 1,000/- as licence fees and a licence was actually granted in favour of the petitioner. But in consequence of a subsequent Government order namely, G. O. 2044 Revenue dated 30th June 1955 increasing the licence fee to Rs. 2,000/- an additional sum of Rs. l,000/- was claimed. The petitioner now no doubt, appears to have made the payment under protest and challenged those orders before the appropriate authorities. But he has uniformly failed before all the appropriate authorities and therefore in consequence, he seeks to challenge the orders Exts. A, B, C, and D. 3. In O. P. 150/60 the same petitioner in O. P. 1157/59 again claims to be a registered dealer originally under S.8 of the Madras General Sales Tax Act - Madras Act IX/1939 and later under S.9 of the General Sales Tax Act, 1125 Act XI/1125. In that case the period in question relates to grant of licence for the year 1959-60 and the demand has been made at an enhanced rate of Rs. 5,000/- in consequence of a rule enacted by the Kerala State. Those rules will be considered at its appropriate stage. The order levying this licence fee at an enhanced rate is Ext. B and that order is sought to be quashed. 4. In C. P. 320/60 the petitioner attacks the same rule which is attacked in O. P. 1157/59, namely, the Government order of the Madras State G. O. 2044 Revenue dated 30th June 1955 enhancing the rate of licence fee from Rs. 1,000/- to Rs. 2,000/-. The period for which the enhanced licence fee is claimed, is for the year 1955-56. In C. P. 320/60 the petitioner attacks the same rule which is attacked in O. P. 1157/59, namely, the Government order of the Madras State G. O. 2044 Revenue dated 30th June 1955 enhancing the rate of licence fee from Rs. 1,000/- to Rs. 2,000/-. The period for which the enhanced licence fee is claimed, is for the year 1955-56. In this case, the petitioner is a person to whom a licence has been granted under S.5 of the Madras General Sales Tax Act - Act IX of 1939. According to the petitioner, that rule namely, G. O. No. 2044 Revenue dated 30th June 1955, has come up for consideration before the Madras High Court and the Madras High Court has struck down the rule as unreasonable having no proportion to the services rendered by the State in this behalf to persons situated like the petitioner. On that basis, the petitioner made an application challenging this order in revision, but the Revisional Authority merely dismissed it on the ground that it has been filed out of time. The order levying the licence fee is Ext. A and therefore the petitioner seeks to have the order Ext. A quashed and also to direct the State to refund the amount. 5. Excepting in O. P. 320/60, the State has not filed a counter affidavit in the other two original petitions. In the counter affidavit filed in O. P. 320/60, the State takes up the contention that the order passed by the revisional authority was perfectly justified and this application has been made to this court long after a period of limitation prescribed even for a suit that could be instituted by the petitioner in circumstances like this. There is also a contention taken that the right of the assessee, if any under S.72 of the Contract Act is not liable to be enforced under Art. 226 of the Constitution. 6. There is also a contention taken that the right of the assessee, if any under S.72 of the Contract Act is not liable to be enforced under Art. 226 of the Constitution. 6. There is another point taken by the State that the decision of the Madras High Court in Guruviah Naidu and Brothers v. State of Madras (8 Sales Tax Cases 690), on the basis of which the petitioner in O. P. 320/60 was seeking refund of the collection, what according to him was excess licence fees, does not, according to the State, lay down the correct law and the State further takes up the position that the assumption made by the learned Judges in the Madras decision that the levy in these cases is by way of licence fees and not as a tax, is not correct. The State also takes up the position that the amount imposed, assessed and collected under the Act, though called a licence fee, is really a tax on the sale of goods, charged on the turnover of a dealer and therefore the State further contends that it is not open to the objection that the fees levied in this case which is really a tax, is not commensurate with the alleged services done by the State to the licensees. No doubt, there is also another aspect dealt with in the counter affidavit to the effect that the decision of the Madras High Court is not binding on this Court nor on this State. 7. The State finally contends that in any event, the petitioners have not made a request to the State for refund of the amount and therefore, they are not entitled to ask for direction from this court. 8. So far as the last point adverted to by me namely, that the petitioners have not made any demand to the State for refund is concerned, ordinarily I would have been inclined to entertain an objection like this from the State, if the State, which is a party in these proceedings, has stated in the affidavit filed on its behalf that they are willing to investigate the claim, consider it on merits and take a decision thereon. That is not the attitude taken by the State in these proceedings and as I mentioned earlier, their contention is that the amount imposed in this case, though called a licence fee, is really a tax which the State is entitled and authorised to impose in the circumstances of this case. Therefore, that is a point which will have to be investigated by me later in these proceedings. 9. So far as the other minor contentions that have been raised namely, that the applicant has come to this court long after the period fixed for even instituting a suit is concerned, that also does not seem to be correct, because admittedly this writ petition has been filed in this court on 18-3-1960 within three years of the order of assessment which is attacked in this case. Again there is another contention based upon S.72 of the Contract Act. That is, according to the State, the party who may be entitled to the relief under S.72 of the Contract Act, is not liable to enforce that claim under Art. 226 of the Constitution. That contention has only to be negatived, in view of the categorical statement of law laid down by their Lordships of the Supreme Court as well as by my Lord the Chief Justice sitting with Mr. Justice Raghavan in other connected original petitions to the effect that if a party is emitted to claim by way of refund under S.72 of the contract Act in a suit, the proceedings by way of Art.226 are not in any way eliminated or will not stand against the petitioner for granting adequate relief. 10. Therefore, the only question arising on the basis of the counter affidavit filed by the State in O. P. 320/60 is as to whether the contention of the State that the levy in these cases, though called licence fees, is really a levy as and by way of tax, the reasonableness or unreasonableness of which is not liable to be challenged by the petitioner on any of the grounds mentioned in the respective petitions, is correct or not. 11. 11. According to the petitioners in all these original petitions, the levy is as and by way of 'licence fee' and that will be dealt with by me with reference to the sections as well as to the relevant rules bearing on this matter, and therefore, the levy must have a reasonable proportion to the services rendered by the State to the persons situated like the petitioner in this case, and that there is no material placed by the State to show that there was any justifying circumstances for increasing the licence fee for one case from Rs. 1,000/- to Rs. 2,000/- or in the other case from Rs. 1,000/- to Rs. 5,000/-. 12. The contention of the State, as I have mentioned earlier, is that the amount imposed is not a 'licence fee' though it is called like that, but really by way of tax. Therefore, I am stressing this aspect of the matter because once I am not able to accept the contention of the State that the imposed levy in the circumstances of this case, is a tax and not really a licence fee, no materials have been placed before me by the State to satisfy me that even as a licence fee, the impost can be sustained because of the proportionate increase in the nature of services rendered by the State to the persons situated like the petitioner. Therefore, that aspect need not be investigated, once I reject the contention of the State that the levy in this case, is a tax and not really a licence fee. 13. Before I deal with this contention, this is a convenient stage to refer to some of the relevant provisions of both the Madras General Sales Tax Act - Act IX of 1939 as well as the General Sales Tax Act, XI of 1125, and also the relevant rules framed both by the Madras State as well as by the Travancore Cochin State under the relevant statutes. The statute in operation in the Travancore Cochin State is the General Sales Tax Act, 1125 viz., Act XI of 1125. S.2 of the Madras Act gives the definition of the various terms. In particular S.2(b) defines a 'dealer' as any person who carries on the business of buying or selling goods. The corresponding section in the Act of 1125 is again S.2(b) having the same definition. S.2 of the Madras Act gives the definition of the various terms. In particular S.2(b) defines a 'dealer' as any person who carries on the business of buying or selling goods. The corresponding section in the Act of 1125 is again S.2(b) having the same definition. Again, the expression licence' is defined in S.2(d) of the Madras Act as a licence granted or renewed under this Act. The corresponding provision, in the other statute is S.2(f) and is almost the same. Further, the expression 'turnover' is defined in S.2(i) of the Madras Act 'as the aggregate amount for which goods are either bought by or sold by a dealer, whether for cash or for deferred payment or other valuable consideration provided etc. etc.' The definition in the 1125 Act is contained in S.2(k) and is almost identical. 14. Now coming to the more important part of the Act, S.3 of the Madras Act is, what I may call, the charging section. That section levies taxes on sales of g goods and is to the effect that subject to the provisions of the Act every dealer shall pay for each year a tax on his total turnover for such year; and under clause (b) of sub-s.(1) of S.3 the tax is to be calculated at the rate of three pies for every rupee in such turnover. Then there are other provisions regarding additional rates of tax. It is not really necessary for me to consider them. The only other provision in S.3, is S.3(1A) to the effect that the tax for each year may be assessed, levied and collected in advance during the year in monthly or quarterly instalments and there are also certain consequential matters provided therein. The corresponding section, is S.3 of the 1125 Act and is more or less identical with the provisions that I have referred to above. 15. Sections, on the basis of which the petitioner in O. P. 320 of 1960 claims to have obtained a licence, deals with exemptions and reductions of tax in certain cases. I am stressing the heading of that section because S.5 deals directly with exemptions and reductions of tax in certain cases. The petitioner in O. P. 320/60 claims to be a dealer in cotton yarn and the dealing in cotton yarn, according to him, is exempted by virtue of the licence issued on the basis of S.5. I am stressing the heading of that section because S.5 deals directly with exemptions and reductions of tax in certain cases. The petitioner in O. P. 320/60 claims to be a dealer in cotton yarn and the dealing in cotton yarn, according to him, is exempted by virtue of the licence issued on the basis of S.5. S.5 is to the effect, leaving out the other matters not necessary, that subject to such restrictions and conditions as may be prescribed, including conditions as to licences and licence fees (i) the sale of handspun yarn and of any cloth woven on handlooms wholly with handspun yarn and sold by persons dealing exclusively in such cloth, shall be exempt from taxation under S.3, sub-s.(1). Therefore, the section makes it very clear that apart from the conditions as to licences and licence fees, the object of the section is really to exempt from taxation under the charging section viz., S.3(1) the sale of the articles mentioned in sub-s.(1) of S.5. I am mentioning this aspect because the main contention of the State in these proceedings is that though the levy is called a 'licence fee', what is sought to be collected is really a tax under the provisions of the Act. There is another aspect to be considered in S.5 and that is this; S.5 uses the expression 'licences' and 'licence fees' as contra distinct to another expression used in the same expression exempting the very taxation under S.3(1). The corresponding provision in 1125 Act is also S.5 and that is also in conformity with the provisions that I have referred to. 16. S.6 of the Madras Act gives power to notify exemptions and reductions of tax. That again deals with really matters connected by way of exempting certain transactions or certain articles from the liability to pay tax or giving them the reduction in respect of the payment of tax. It is not really necessary to consider the other parts of the section excepting S.6(2)(b). That again deals with really matters connected by way of exempting certain transactions or certain articles from the liability to pay tax or giving them the reduction in respect of the payment of tax. It is not really necessary to consider the other parts of the section excepting S.6(2)(b). Under sub-s.(2) of S.6 there is a provision that any exemption from tax or reduction in the rate of tax, notified under sub-s.(1) may extend to the whole of the State or to any specified area or areas therein under clause (a) or it may be subject to such restrictions and conditions as may be specified in the notification, including conditions as to licences and licence fees under clause (b). That is, subject to the conditions relating to licences and licence fees, the exemption from tax, it must be noted, or reduction in the rate of tax notified under the main sub-s.(1) of S.6 extends to the matters dealt with in clauses (a) and (b) of sub-s.(2) of S.6. 17. The corresponding section in the 1125 Act is again S.6 and that also contains the same provision as clause (b) of sub-s.(2) of S.6 of the Madras Act to which I have already adverted to. 18. Here again, it must be noted that in the same section where exemption or reduction from a liability for payment of tax is granted, the Legislature uses in another part of the same section a totally different expression namely, licences and licence fees. 19. S.8 on the basis of which the petitioner in O. P. 1157/59 originally claims to have been granted a licence under the Madras Act, again deals with licensing and exemption of agents. That is, it deals with what is called the Registered dealer. There again it is seen that power is given to the State Government, on application and 'on payment of such fee as may be prescribed in that behalf, to license any person under that section under the circumstances mentioned therein and also to 'exempt' from the tax or taxes payable under S.3 such of his transactions as are carried out in accordance with the terms and conditions of his licence. Therefore, here again, the point to be noted is that when an application is made by paying the prescribed fee for grant of a licence under S.8, the State Government is given the power to issue a licence and also to exempt the person from the tax or taxes that will be otherwise payable under S.3. That is, the object of both S.5 and 8, in my view, appears to be to grant a sort of special concession to persons who take out a licence in the manner mentioned therein, by paying the necessary licence fee to get exemption from payment of tax which would be otherwise payable under S.3(1), provided the persons to whom licences are issued, conduct a business in accordance with the terms and conditions of the licence. 20. The corresponding provision in the 1125 Act is S.9 and that also is almost identical with the provisions of the Madras Section that I have already referred to. 21. Here again, in S.8 there are three provisos. But the only proviso, in my opinion, that requires to be adverted to in particular is the last proviso to the effect that the burden of proving that a transaction is exempt by virtue of this section, from the tax or taxes payable under S.3, shall be on the licensee. That is, the Legislature casts a duty upon a person who claims exemption from payment of tax, to show that his transaction is one which is covered by the terms of the licence which he has obtained on payment of the licence fee provided for either under the Act or the Rules. 22. These sections especially S.5, 6 and 8 of the Madras Act as also the corresponding provisions in S.5, 6 and 9 of the 1125 Act clearly make a marked distinction between the payment of tax and exemption from tax on the one hand and also about payment of licence fee for obtaining an exemption from taxation under S.3(1) of the Act. 23. The only other section that requires to be noticed before I pass on to the relevant rules is S.19 of the Madras Act which gives power to the State Government to make rules to carry out the purposes of the Act. 23. The only other section that requires to be noticed before I pass on to the relevant rules is S.19 of the Madras Act which gives power to the State Government to make rules to carry out the purposes of the Act. In particular, sub-s.(2)(b) of S.19 empowers the State Government to make rules regarding the licensing of persons engaged in the sale of goods and of imposing conditions in respect of the same for the purpose of enforcing the provisions of the Act and fees for licences. Obviously, the relevant rules, that I am going to advert to immediately, seems to have been issued on the basis of this clause. The corresponding provision analogous to S.19(2)(b) of the Madras Act in the 1125 Act is to be found in clause (b) of sub-s.(2) of S.24 which is almost identical in phraseology with that of Madras Act. Now I may pass on to the rules themselves which are under attack in these proceedings. 24. The Madras rules bearing on this matter are to be found in the Madras General Sales Tax Rules, 1939. Part II of the said rules deals with licences, Under R.5 it is obligatory upon a person who deals with the matters mentioned therein or who desires to have benefit of the exemption provided in S.5 and 8 of the Act, to make an application for the issue of the necessary licence. There are other matters provided as to within what period the application for licence is to be made. But the point to be noted is that sub-r.(1) of R.5 clearly says that the persons who desire to avail themselves of the exemption provided in S.5 and 8 of the Act and that exemption in my view, as I have already pointed out by reference to the sections themselves, is the exemption from the liability to pay tax under S.3(1) of the Act. In particular, sub-r.(4)(a) of R.6 of the 1939 Rules provides that the fees for the grant or renewal of licence shall subject to a maximum of Rs. 1000/-, be as follows. The gradations of the licence fee are given therein. But the only aspect to be considered is that the maximum has been fixed in the sum of Rs. 1,000/-25. In particular, sub-r.(4)(a) of R.6 of the 1939 Rules provides that the fees for the grant or renewal of licence shall subject to a maximum of Rs. 1000/-, be as follows. The gradations of the licence fee are given therein. But the only aspect to be considered is that the maximum has been fixed in the sum of Rs. 1,000/-25. While matters stood thus under R.6(4)(a) of the 1939 Rules, the Madras Government issued G. O. No. 2044 Revenue dated 30th June 1955 under the provisions of S.19 of the Madras General Sales Tax Act, 1939. The relevant part of that G. O. so far as it relates to the matter in question is that in the rule namely, R.6(4)(a) for the words and figures 'subject to a maximum of Rs. 1,000/-' the words and figures 'subject to a maximum of Rs. 2,000/-' shall be substituted. That is, under the original rule as it stood under R.6(4)(a) the maximum licence fee leviable was Rs. 1,000/-. Under the new Government Order the maximum licence fee was fixed at Rs. 2,000/-. As there appears to have been some doubt as to whether this Government Order, which was issued only on 30-6-55, can take effect from the period beginning from 1-4-55 to clarify that aspect, another Government Order was passed namely, G. O. 3616 Revenue dated 23rd November 1955. That Order states that an amendment is to be made to the rule as incorporated on 30th June, 1955 by treating that the amendment made therein shall be deemed to have come into force on 1st April, 1955. That is, G. O. 2044 Revenue dated 30-6-55 read with G. O. 3616 Rev. dated 23-11-55 is intended to have the effect that the increased rate fixing the maximum of Rs. 2,000/- is to come into force with effect from 1-4-55. I may at this stage, mention that one of the contentions in these writ petitions is that the Government had no jurisdiction to retrospectively give effect to the rules in question. That aspect need not be considered by me, in view of my final decision on the main contentions raised by the State in these matters. 26. Therefore, this rule fixing the maximum licence fee at Rs. 2,000/- and Rs. That aspect need not be considered by me, in view of my final decision on the main contentions raised by the State in these matters. 26. Therefore, this rule fixing the maximum licence fee at Rs. 2,000/- and Rs. 1000/- under G. O. 2044 dated 30-6-55 came for direct attack before the Madras High Court and there is no controversy that the Madras High Court has struck down that rule as being unreasonable. That decision is being challenged by the learned Government Pleader and I will have to advert to it when considering the merits of the contentions of both the learned counsel. 27. Therefore, it is really on the basis of these two Government Orders referred to above, that the State in O. P. 1157/59 and 320/60 attempts to support the levy at the rate of Rs. 2,000/-. 28. Then coming to the particular rule which is under attack in O.P. 150/60, as I mentioned earlier, the amount that has been collected as and by way of licence fee, is not either Rs. 1000/- or Rs. 2000/- on the basis of the Madras rule, but a sum of Rs. 5000/- on the basis of a rule made by the Kerala State. Even here, I have already indicated that the rule making power in such matters is contained in S.24(2)(b) of the Act of 1125. So far as the original rule, as it stood prior to the formation of the Kerala State is concerned, it is to be found in R.22(5)(a) where the maximum fees in respect of applications from persons claiming exemption either under S.5 or under S.9 of the 1125 Act was fixed in the sum of Rs. 1000/-. That means that rule was more or less identical with the original R.6(4)(a) of the 1939 Madras General Sales Tax Rules. Here again, under R.21 of the General Sales Tax Rules the procedure for making an application has been given. It is worthy to note that the object of enabling the persons mentioned therein to apply for the issue of a licence is to get exemption as mentioned in those sections and that is really for the purpose of getting exemption from payment of tax under S.3 which is the charging section. 29. Under the 1125 Act also the original maximum licence fee of Rs. 1000/- was enhanced to Rs. 2000/- as was done in the Madras State. 29. Under the 1125 Act also the original maximum licence fee of Rs. 1000/- was enhanced to Rs. 2000/- as was done in the Madras State. That rule also cannot be sustained, once I hold it is a 'fee' and not a tax. But ultimately, the decision is that under R.22(5)(a) as it now stands, the fees for the grant of renewal of licence has been fixed subject to a maximum of Rs. 5000/- in respect of the various matters mentioned therein. There is no controversy that the persons who are entitled to claim exemption either under S.5 or under S.9 of the Act are taken in under the schedules mentioned in the said rule. 30. Therefore it will be seen that the same Madras Rule that was attacked before the Madras High Court successfully namely, G. O. 2044 Revenue dated 30-6-1955 is attacked before me in these proceedings. Again apart from that rule, the particular rule of the General Sales Tax Rules namely, R.22(5)(a) enhancing the licence fee from Rs. 2,000/- to Rs. 5,000/- is also attacked in these proceedings. 31. The main contention, as I mentioned earlier, of the learned counsel Mr. C. K. Viswanatha Iyer appearing for the petitioner in O. P. 320/60 and Mr. G. Balagangadharan Nair, learned counsel appearing for the petitioners in O. P. 1157/59 and O. P. 150/60 is that the levy in both these cases is really as and by way of licence fee and therefore, as a fee, it has to be justified by the Stale that the increase is proportionate to the extra or additional expenses that they may have incurred for services that are rendered by them to the persons situated like the petitioners in this case. Both the learned counsel also relied quite naturally very strongly on the decision of the Madras High Court of Rajagopalan and Rajagopala Ayyengar, JJ. reported in Guruviah Naidu and Brothers v. State of Madras (8 Sales Tax Cases 690) wherein the rule was directly challenged and the challenge was upheld by the learned Judges. On the basis of that decision, the learned counsel for the writ petitioners urge that in this case, in the absence of any materials placed by the state to justify the increase, the increase according to them, is arbitrary and unjust and therefore, the rules have to be struck down. 32. On the basis of that decision, the learned counsel for the writ petitioners urge that in this case, in the absence of any materials placed by the state to justify the increase, the increase according to them, is arbitrary and unjust and therefore, the rules have to be struck down. 32. As I mentioned earlier, the contention of the State in these proceedings is that the levy in question is not a levy as and by way of fee, though it is called like that, but really an impost by way of tax, the reasonableness or unreasonableness of which cannot be challenged by the petitioners and cannot be agitated in these proceedings. 33. When I am adverting to the various sections both in the Madras Act as well as in the 1125 Act, I emphasised that the sections in particular namely, S.5, 6 and 8 refer to an exemption from liability to pay the tax, provided the licence is granted to particular parties mentioned therein. 34. What exactly is the essential distinction between a tax and fee, has been considered by their Lordships of the Supreme Court in various decisions which have been referred to by the learned Judges in their recent decision reported in Hingir Rampur Goal Co. v. State of Orissa ( AIR 1961 SC 459 ). Mr. Justice Gajendragadkar speaking on behalf of the court, has referred to the earlier decisions of their Lordships in Commissioner Hindu Religious Endowments, Madras v. Lakshmindra Swamiar ( AIR 1954 SC 282 ) as well as in Sri Jagannath Ramanuj Das v. State of Orissa ( AIR 1954 SC 400 ) wherein the distinction between a fee and a tax has been, if I may say so with respect, very elaborately dealt with and analysed. The same principles have been reiterated in the recent decision of the Supreme Court also. At page 464 referring to a definition of tax given by Chief Justice Latham, Mr. Justice Gajendragadkar observes: "The neat and tense definition of tax which has been given by Latham C. J., in Mathews v. Chicory Marketting Board (60 CLR 263 at p. 276) is often cited as a classic on this subject. At page 464 referring to a definition of tax given by Chief Justice Latham, Mr. Justice Gajendragadkar observes: "The neat and tense definition of tax which has been given by Latham C. J., in Mathews v. Chicory Marketting Board (60 CLR 263 at p. 276) is often cited as a classic on this subject. 'A tax', said Latham C. J., 'is a compulsory exaction of money by public authority for public purposes enforceable by law, and is not payment for service rendered.' In bringing out the essential features of a tax this definition also assists in distinguishing a tax from a fee. It is true that between a tax and a fee there is no generic difference. Both are compulsory exactions of money by public authorities, but whereas a tax is imposed for public purposes and is not, and need not be supported by any consideration of service rendered in return, a fee is levied essentially for services 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." The learned Judge again observes on the same page : "In regard to fees there is, and must always be, co-relation between the fee collected and the service intended to be rendered. Cases may arise where under the guise of levying a fee Legislature may attempt to impose a tax, and in the case of such a colourable exercise of legislative power courts would have to scrutinise the scheme of the levy very carefully and determine whether in fact there is a co-relation between the service and the levy, or whether the levy is either not co-related with service or is levied to such an excessive extent as to be a pretence of a fee and not a fee in reality." 35. If an amount is collected and there is a challenge that it is not a tax but a fee, the question may have to be considered in the light of the decisions of the Supreme Court as to whether a particular impost is as and by way of a tax or a 'licence fee'. In considering as to whether it is a levy by way of a 'tax' or a 'licence fee' the various tests laid down by their Lordships will have to be applied and a decision arrived at. In considering as to whether it is a levy by way of a 'tax' or a 'licence fee' the various tests laid down by their Lordships will have to be applied and a decision arrived at. But the cases before me stand on a different footing, because the statute clearly describes it as a 'licence fee' and it is the contention of the State that what is collected, is not a 'licence fee' though referred to as such, but only by way of a tax. But here the sections and the rules clearly refer to the two expressions, 'tax' and 'licence fee' and in fact I have already pointed out that the very same sections which are relied upon both by the learned counsel for the writ petitioners as well as by the learned Government Pleader, use the two different expressions namely, 'tax' and 'licence fee' in the same section. 36. I am not inclined to accept the contention of the learned Government Pleader that what is attempted to be collected, though called a 'licence fee' is in essence a 'tax'. Therefore, once I come to the conclusion that what is purported to be collected and levied and actually levied is not a 'tax' but a 'fee' it follows from the various principles laid down by the Supreme Court in the decisions referred to above that in order to justify a fee at a particular rate, the State will have to establish that the services rendered by them, are at any rate approximate or proportionate to the rate at which the licence fee is sought to be collected from the various parties. 37. I am not inclined to accept, as I have indicated earlier, the contention of the learned Government Pleader that the use of the expression 'licence fee' as opposed to the expression 'tax' has no significance whatsoever either under the Madras Act IX of 1939 or under the 1125 Act. I have already emphasised, when dealing with these sections that the object of getting a licence either under S.5 or S.8 of the Madras Act; or under S.5 or S.9 of the 1125 Act, is not to pay a tax as such, but to get an exemption from payment of tax. In fact, S.5 clearly provides for exemptions and reductions of tax and S.8 also. In fact, S.5 clearly provides for exemptions and reductions of tax and S.8 also. I have already pointed out that in issuing the licence the Government may exempt from tax or taxes that may be payable under S.3. Therefore it is idle on the part of the learned Government Pleader to contend that notwithstanding that the object of those Sections is to grant to the persons mentioned therein who may hold a licence on payment of a licence fee to get an exemption from taxation, those very Sections could be considered again to have not the effect of granting an exemption, but of levying a tax in a totally different manner. If the object of the Legislature was really to collect tax even from such persons, there would have been no difficulty for the Legislature to express it in that way. On the other hand, the Legislature uses the expression 'tax' as a contra distinct to licence and licence fee, The licences are issued and applied for, I may once again state even at the risk of repetition, not for payment of the tax under S.3, but for getting exemption from the liability for payment of tax, which otherwise those persons would have to pay under S.3 which is the charging section. 38. Therefore, once I reject the contention of the learned Government Pleader and hold that these amounts are collected and levied only as 'licence fees' and not as a 'tax' the question that will have to be further considered is whether the State has been able to satisfy me that the increase either under the Madras Rule or under the 1125 Act is in any way, justified by any proportionate increase or additional expenditure that the State may be incurring in respect of the services that Will have to be rendered by the State to persons situated like the petitioners. On that aspect, I have already stated that the State did not attempt to justify the levy on the ground that they are incurring any additional expenses for any services that they may be rendering for persons situated like the petitioner. On that aspect, I have already stated that the State did not attempt to justify the levy on the ground that they are incurring any additional expenses for any services that they may be rendering for persons situated like the petitioner. If in this case, it is only collected as a 'licence fee' in the absence of any materials placed by the State in the manner referred to above, it follows that the enhancements either on the basis of the Madras Rule or on the basis of the T.C. Rules or the Kerala Rules, have both to be struck down. 39. I am fortified in this view by the direct decision of Rajagopalan and Rajagopala Ayyengar JJ. in the decision reported in Guruviah Naidu and Brothers v. State of Madras (8 Sales Tax Cases 690). As I mentioned earlier, the rule namely, G. O. 2044 Revenue dated 30-6-1955 was directly attacked before the learned Judges. No doubt, the system of licensing in general itself was challenged before the learned Judges, but the Madras High Court was not prepared to accept that contention. But so far as the unreasonableness of the enhancement from Rs. 1,000/- to Rs. 2,000/- was concerned, on the basis of the Madras G. O. referred to above, it is seen that the learned Advocate General of the Madras State was not able to satisfy the Court by placing any materials to show that there is justification for the State to make an increase. The learned Judges, however, struck down the said G. O. on the ground that it is an unreasonable levy and cannot be sustained. 40. This decision relating to the unreasonableness of the levy on the basis of the Madras Government Order, has again been accepted and approved by a later Division Bench Judgment of the Madras High Court of Rajagopalan and Srinivasan JJ. reported in State of Madras v. Erode Yarn Stores (XII Sales tax Cases 175). At page 178 it will be seen that they are approving the decision in Guruviah Naidu v. State of Madras (8 Sales Tax Cases 690). 41. I will refer to the recent decision reported in Balakrishna & Sons v. State of Madras ( AIR 1961 SC 1152 ) wherein their Lordships have considered the object of obtaining an exemption under S.5 of the Madras General Sales Tax Act - Act IX of 1939. 41. I will refer to the recent decision reported in Balakrishna & Sons v. State of Madras ( AIR 1961 SC 1152 ) wherein their Lordships have considered the object of obtaining an exemption under S.5 of the Madras General Sales Tax Act - Act IX of 1939. The decision as such is not quite material to the point arising for decision before. But their Lordships have indicated that once a person, in whose favour a licence is granted under S.5 read with the rules, does not conform to the conditions of the licence notwithstanding that he has obtained a licence and paid the licence fee, it is open to the Department to levy tax as such. That means, in my view, the implication of that Judgment is that the levy and collection of a 'licence fee' is something different from levy and assessment of tax as such. Otherwise, it will lead to this conclusion that when once a licence fee is collected as tax then again the tax is sought to be collected in respect of the same transaction; it will mean for the identical dealings a double taxation is sought to be levied which is certainly not the object of the enactment. Therefore, the levy and collection of licence fee under the relevant provisions of the statute and the rules referred to by me, are totally different from the levy and collection of tax as such. 42. In view of the fact that the contentions raised by the learned Government Pleader are negatived and the contentions advanced on the side of the petitioners are accepted by me, it follows that O. P. 1157 of 1959 is allowed and the orders Exts. A to D referred to therein are set aside and quashed. The State is not entitled to collect as and by way of licence fee more than the maximum sum of Rs. 1,000/- 43. O. P. 150 of 1960 is also allowed and the order collecting licence fee at a rate above Rs. 1,000/- namely, in the sum of Rs. 5,000/- under Ext. B is also set aside and quashed. The State here again is not entitled to collect as and by way of licence fee more than the maximum sum of Rs. 1,000/-. 44. In O. P. 320 of 1960, the Order Ext. 1,000/- namely, in the sum of Rs. 5,000/- under Ext. B is also set aside and quashed. The State here again is not entitled to collect as and by way of licence fee more than the maximum sum of Rs. 1,000/-. 44. In O. P. 320 of 1960, the Order Ext. A, in so far as it purports to levy a licence fee of more than Rs. 1,000/- will stand quashed and the State is not entitled to collect as and by way of licence fee any sum more than the maximum of Rs. 1,000/-. 45. Such of the petitioners who have already paid more than the sum of Rs. 1,000/- are entitled to apply to the appropriate authorities for making suitable refunds. There will be no order as to costs in all the Original Petitions.