Levy and collection of forest development tax under S.75A of the Kerala Forest Act must be authorized by law and must be applicable to the specific forest produce. The court emphasized that the Constitution specifically prohibits the collection of tax except with the authority of law.

K.S. Radhakrishnan, J.

Question that has come for consideration in this case is whether the State Government is justified in demanding forest development tax from the petitioner for the coffee seeds purchased by him in the auction conducted on 19.9.1996 by the Divisional Forest Officer, Kalpetta under S.75A of the Kerala Forest

Act.

2. Divisional Forest Officer, Kalpetta held a public auction on 19.9.1996 for the sale of dried coffee cherry obtained from coffee plants raised in the vested forest of Pambra, Cheeyambam and Kallumala during the year 1995-96. The terms and conditions of auction were published in the Kerala Gazette dated 4.7.1995 and 3.9.1996. Petitioner was the highest bidder and the sale was confirmed in his favour by the Conservator of Forests, Northern Circle, Kozikode by order dated 25.10.1996. The total value of the coffee cherry purchased by him was Rs. 36,36,702/-. As per the sale conditions published in the Gazette notification, he was liable to pay an amount of Rs. 1,81,836/- being forest development tax assessed at 5 % of the sale value. Petitioner remitted the above mentioned amount on 15.11.96. According to petitioner, the levy and collection of forest development tax from the petitioner under

S.75A of the Kerala Forest Act are illegal. Petitioner therefore, filed representations before the authorities for refund of the said amount. Since no action has been taken, he has approached this Court and filed O.P. No. 143 of 1997 which was disposed of by this Court directing the Divisional Forest Officer to pass orders on the petitioner's representation. His representation for refund of the amount was rejected by the said officer on 18.6.1999, stating that amount cannot be refunded. According to the Divisional Forest Officer, payment of forest development tax was exempted by the Government for coffee as per G.O. (MS) No. 64/97 dated 23.8.1997. It is stated since the auction in this case was conducted on 19.9.1996 the said Government order is not applicable. Therefore, petitioner's representation was rejected. Aggrieved by the same petitioner has now approached this Court.

3. The principal contention raised by counsel for the petitioner, Sri. Sreedharan, is that levy and collection of forest development tax are illegal and unauthorised. According to counsel coffee is not a forest produce as per the definition contained in S.2(f) of the Kerala Forest Act, and therefore, S.75 A of the Act is not applicable to the coffee seeds purchased by the petitioner. Counsel also referred to a decision of this Court in Aliyakutty Paul v. State of Kerala 1995 (2) KLT 93, and submitted that a Division Bench of this Court has already held that coffee is not a forest produce.

4. Learned Government Pleader Sri. Noble Mathew on the other hand contended that petitioner, after having participated in the auction with open eyes, and paid the amount, is not entitled to seek refund of the said amount. According to the learned Government Pleader, if tax was not payable, he could have objected to the same then and there. Therefore, other tenders could have participated.

5. In order to appreciate the rival contentions raised by the parties, it is necessary to examine and decide whether the levy and collection of forest development tax is legal or not. Admittedly levy and collection of forest development tax are made under S.75 A of the Act. Relevant portion of the same is extracted below:

75A. Levy of forest development tax: - (1) Notwithstanding anything contained in this Act, in respect of forest produce disposed of by the Government by sale, there shall be levied and collected a tax at the rate of five per cent of the amount of consideration paid therefor:"

Explanation to the sub-section says that the term 'sale' has the meaning assigned to it in the K.G.S.T. Act. Sub-s.(2) also provides that the tax payable under sub-s.(1) in respect of any forest produce shall be collected along with the consideration paid therefor. It is also stat