Judgment

WANCHOO, J : These five appeals on certificates granted by the High Court of Kerala raise a common question of law and will be dealt with together. Two of them (appeals 89& 90) are from what was formerly the Cochin area and the other three are from what was the Travancore area. They relate to a tax on tobacco in these areas. As the facts, laws and rules in the two areas are similar we propose to deal in detail with the appeals from the Cochin area.

2. In 1909, Act VII of 1084 Was passed by the Maharaja of Cochin to consolidate and amend the law relating to tobacco and was called the Cochin Tobacco Act, VII of 1084 (hereinafter called the Cochin Act). Section 4 of the Cochin Act prohibited the possession for sale, transport, import or export, sale and cultivation of tobacco except as permitted under the Act or the Rules framed thereunder. Section 5 of the Act gave power to the Diwan to make rules from time to time consistent with the Act to permit absolutely or subject to any conditions, & also to regulate the possession for sale, transport, import or export, sale and cultivation of tabacoo as well as the form of duty leviable on the sale of tobacco by retail. The remaining provisions of the Act deal with offences, prosecutions, punishment, confiscation and other ancillary matters such as arrest and seizure, with which we are not concerned in the present appeals. Reference may however be made to S. 18 which provided that

"no action shall lie against the Sirkar or against any officer of the Excise department for damages in any civil court for any act bona fide done or ordered to be done in pursuance of this Act, or of law for the time being in force relating to tobacco revenue".

3. Rules were framed under the Cochin Act called the Tobacco Cultivation Rules, which, by the first rule provided that the cultivation of tobacco plant is prohibited except under a licence and shall be restricted to such parts or localities of the State, as may, from time to time, be fixed by the Diwan. . . . . . . . . . . ." Rule 3 provided for drying curing, manufacturing & storing of the tobacco , cultivated in the State, to be done under these supervision of an officer of the Excise Department in licensed manufacturing yards and store-houses. Rule 4 provided or licences for manufacturing yards and store-houses. Rule 5 laid down that the licences would be in force for one official year and were to be issued on payment of a fee of Rs. 50/- for each licence. Under R. 6, the tobacco crop could only be harvested after permission obtained from the Inspector of Excise and under R. 7 the harvesting was to be done by the licensed cultivator under the general superintendence of the Sub-inspector of the locality in which the area cultivated lay and the harvested crop was to be transporated only under permits granted by him from such area to the manufacturing yard where alone manufacture was to be undertaken. Rule 8 provided for the maintenance of a stock book by a licensee of a storehouse or a manufacturing yard. Rule 13 provided that the licensed manufacturer and the storehouse keeper would sell or otherwise dispose of his stock only to licensed dealers and there was prohibition against the disposal or sale of tobacco to any person who had not the required licence to possess the same. Rule 15 made it an offence for any one to cultivate, dry, cure, manufacture, store, transport, sell or otherwise dispose of tobacco in contravention of the Rules.

4. In addition to these Rules, there were further Rules also framed under the Cochin Act with respect to import of tobacco into the State, and all import was prohibited except under the provisions of the Diwan s notification prescribing the sale of tobacco shops and licences. Possession of tobacco for the purpose of sale was also prohibited except under the provisions for the sale of tobacco shops and licences. Export of tobacco was also prohibited except with the special sanction of the Commissioner of Excise.

5. It