1. These two petitions and several others had been filed on the Original Side before a learned Single Judge challenging the provisions of the Maharashtra Tax on Residential Premises Act, 1974 (Act No. 19 of 1974), as being void and unenforceable.
2. When the first of such petitions was presented before the learned Single Judge, he granted rule and admitted the petition. When the question of interim relief was argued before the Court, Mr. Gursahani, who appeared for the State of Maharashtra, stated that the petitioner was not a representative one and the State Government was not in a position to give an undertaking to refund the tax. In view of this attitude of the State Government, several citizens of Bombay, who were affected by the provisions of this Act, gradually began filing petitions after petitions. However, on July 13, 1978, a Press-note was issued by the State Government which contained a clarification of the attitude of the Government. In this Press-note, the Government of Maharashtra clarified that in the event of the High Court and/or the Supreme Court ultimately declaring the Maharashtra Tax on Residential Premises Act, 1974, to be ultra vires the provisions of the Constitution of India and as such invalidated and if no fresh legislation is undertaken by the State Government for validating thelevy of the tax, the tax paid by the public will be refunded within a reasonable time. It was stated before us that in view of the Press-note issued by the State Government, the Counsel who were being consulted by the other litigants advised them not to file petitions challenging the same Act. It was immediately made clear that this has no direct bearing upon the merits of the petition before this Court, but if the Government were not to refund the tax amount collected even if the tax was invalidated, the other affected person or persons would be able to make use of this statement and the advice given by the lawyers as an excuse for condoning delay. We have merely noted this fact as it was stated before us.
3. When all the parties concerned in the litigation appeared before the learned Single Judge on the Original Side on 21st July 1978, Rege, J. passed an order under Rule 59 requesting the Chief Justice to place the matter before the Division Bench. In view of the importance of the matter, the Chief Justice passed an order referring the petition itself to a Division Bench and it is in view of that order that we have placed these petitions for hearing before us. Though several petitions are notified for hearing, only two mentioned above, were called out. Since the facts of the other petitions are not in dispute, tin's decision will automatically govern the other petitions.
4. In Miscellaneous Petition No. 214 of 1978 the petitioner is a Co-operative Housing Society. The Society owns a building having six floors. From the ground to the 5th floor there are two flats each and on the 6th floor there is only one flat. What is the floor area of each of these flats is a matter of some difference of opinion between the petitioner-Society and the Corporation authorities. However, nothing turns upon that, as each of the flats in this building is admittedly more than 125 square meters in its floor area and as such falls within the taxable limit under the impugned Act, It is not, therefore, necessary to burden the judgment with the details of measurements of each of the fiats.
5. In the other petition, which is called out along with this, viz. Miscellaneous Petition No. 530 of 1978, there are thirteen petitioners who are all tenants in a building named 'Shiv Shanti Bhuvan', located at 146, Maharshi Karve Road, Bombay. All the flats involved in this petition have a floor area in excess of 125 square meters and fall within thetaxable limit of the impugned Act. The exact area of each flat is not a subject matter which was agitated, and we are not expressing any opinion upon the same.
6. Since it is an admitted position that each of the flats has a floor area of more than 125 square meters, and would be liable to pay the tax if the impugned Act were a valid piece of legislation, the attack and arguments of both the petitioners are confined to the pure question of law relating to the validity and constitutionality of Act No. 19 of 1974.
7. Two challenges are held out against the validity of the Act. The first one is that the provisions of the Act violate the equality clause of Article 14 of the Constitution. The selection of certain flats on the footing of their floor area is not a rational grouping and suffers from the vice of putting together dissimilar accommodations area-wise and subjecting them to a uniform tax under the Act. The second challenge is that each flat is sought to be separately taxed on the basis of the floor area. The State Government undoubtedly has a right to levy appropriate tax under Entry No. 49 of List II of the 7th Sch. However, that Entry refers to land and building -- Though it is possible to tax land alone, or the building and land, or, even assuming for arguments' sake, the building alone, that Entry does not permit a part of the building being separately taxed by treating it as a 'building' falling under that Entry. What was sought to be argued was that the State Government can tax the building as a unit and levy appropriate tax as it likes, but it cannot further sub-divide the building and levy a tax under that Entry on a portion of that building.
8. There was a third challenge under Article 19, as being an unreasonable restriction on the acquisition and holding of property under Clause (f) of Sub-article (1) of Article 19.
9. After having heard the learned Counsel, we felt that the challenge under Article 14 was insurmountable in view of an earlier decision of the Supreme Court. We have not heard the learned Counsel fully on the question of legislative competence under Entry No. 49, and that question is expressly left open. In view oi what follows in our discussion under Article 14, it is unnecessary to express any further opinion so far as the challenge under Article 19 is concerned.
10. The principal argument that was addressed to us is that the Act as hasbeen passed by the Maharashtra Legislature is directly in violation of what was laid down by the Supreme Court in the case of State of Kerala v. Haji K. Kutty Naha : 1SCR645 . The petitioners also rely on an earlier decision of the Supreme Court in New Manek Chowk Spinning and Weaving Mills Co. Ltd. v. Municipal Corporation of the City of Ahmedabad : 2SCR679 . According to the petitioners, the provisions of the Maharashtra Act are almost identical with the provisions of the Kerala State Act, which was struck down by the High Court, and which judgment was upheld by the Supreme Court. That being the principal argument, it would be worthwhile to have a look at the scheme of the Maharashtra Act and the scheme of the Kerala Act.
11. We would first refer to the provisions of the Kerala Act as it is an earlier piece of legislation and was subjected to examination by the High Court and the Supreme Court. In the Supreme Court judgment referred to above, paragraph 2 gives all the details which are relevant For our purpose. That Act extended to the whole of the State of Kerala. Its name was Kerala Buildings Tax Act (Act 19 of 1961). It came into force on 2nd March 1961, and an assessee was defined Section 2 (b) as meaning a person by whom building tax or any other sum of money is payable under the Act and includes every person in respect of whom any proceeding under the Act has been taken for the assessment of building tax payable by him. Section 2 (d) defines 'building' as meaning a house, out-house, garage or any other structure or part thereof whether of masonry, bricks, woods, metal, or other material, but does not include any portable shelter or any shed constructed principally of mud, bamboos, leaves, grass or thatch or a latrine which is not attached to the main structure. 'Floorage' was defined by Section 2 (e) as meaning the area included in the floor of a building, and where a building has more than one floor, the aggregate area included in all the floors together. By Section 3 of that Act, buildings owned by the State Government, the Central Government or any local authority, and buildings used principally for religious, charitable or educational purposes, or as factories or workshops were exempt from payment of tax under the Act. By Section 4, it was provided that there shall be a tax in respect of every building, the construction of which is completed on or after Mar. 2, 1961, andwhich has a floor area of one thousand square feet or more, and that the building tax shall be payable by the owner of the building. The Schedule to the Act sets out the rates of building tax. Buildings having a total floor area of less than 1000 square feet are not liable to pay tax.
12. The Supreme Court then points out the incidence of that tax on various buildings having more than 1000 square feet of floor area. The figures worked out on the basis of the Schedule are not very important. This Act had been struck down by the Supreme Court on the ground that for determining the quantum of tax, the sole test was the area of the floor of the building. Undoubtedly, that was an Act applicable to the whole State. The Supreme Court, therefore, pointed out that the location of the building, whether in a large industrial town or in an insignificant village, has not been given any importance at all. The rate of tax is determined by the floor area, it does not depend upon the purpose for which the building is used, the nature of the structure, the town and locality in which the building is situate, the economic rent which may be obtained from the building, the cost of the building, and other related circumstances which may appropriately be taken into consideration in any rational system of taxation of building.
13. The Supreme Court then pointed out that the State Government has the authority under the 7th Sch., List II, Entry No. 49, to levy taxes on lands and buildings. But that power cannot be used arbitrarily and in a manner inconsistent with the fundamental rights guaranteed to the people under the Constitution. No tax may be levied or collected under out constitutional set-up except by authority of law, and the law must not only be within the legislative competence of the State but it must also not be inconsistent with any provision of the Constitution. It has been often expressed by the Supreme Court that the validity of a taxing statute is open to question on the ground that it infringes fundamental rights. The Court then proceeds to reproduce a passage from its earlier judgment in the case of K. T. Moopil Nair v. State of Kerala : 3SCR77 , where this proposition has been very firmly laid clown. Unless a tax proposed is within the legislative competence of the legislature and unless further a tax is valid under the provisions of Article 13 of the Constitution, it cannot be levied upon a citizen. Under sub article (2) of Article 13, a legislature shall notmake any law which takes, away or abridges the equality clause in Article 14, which enjoins the State not to deny to any person equality before the law or the equal protection of the laws of the country. It cannot, therefore, be disputed that where the law infringes the provisions of Article 14 of the Constitution, it must be struck down as unconstitutional.
14. Having made these observations, the Supreme Court then proceeds to examine the principles which have been expounded by it from time to time and to consider some of the earlier judgments which deal with the powers of the legislature in selecting either areas or objects or articles for the purpose of levying a certain tax. It has been conceded that in view of the complex modern life and the economic factors involved, the legislature undoubtedly has a wide choice to make and that choice is fairly flexible. In spite of this principle, which is equally and firmly established, the objection of the Supreme Court to the Kerala law is that it makes no attempt at any rational classification. They again repeat and point out that the Kerala legislature made no attempt to find out the location of the building, the class of building, the place and the nature of construction, the purpose for which it is, used, the situation, the capacity for profitable user and several other relevant circumstances which have a bearing on matters of taxation. The basis adopted for the purpose of imposition of tax is merely floor area. They further observed that where objects, persons or transactions essentially dissimilar are treated as one by the imposition of a uniform tax, discrimination may result, for in their view, refusal to make a rational classification may itself in some cases operate as denial of equality.
15. Against the background of these observations, the Supreme Court refers to its earlier judgment in New Manek Chowk Spinning and Weaving Mills Co. Ltd. v. Municipal Corporation of the City of Ahmedabad : 2SCR679 . According to them, that case laid down that the method of adopting a flat rate for a floor area for determining the annual value adopted by the Corporation of Ahmedabad in exercise of the powers conferred upon it by the Bombay Provincial Municipal Corporations Act (59 of 1949) was against the provisions of the Act, and the Rules made thereunder, as well as all recognised principles of valuation for the purpose of taxation. The levy of tax in a municipal district based onfloor area in respect of a factory building violates Article 14 of the Constitution when the tax is sought to be levied by the Municipal Corporation. If that was so, the view earlier taken in respect of the factory building located within the municipal limits of Ahmedabad alone, the Court observed that they saw no reason to uphold the tax imposed under the Kerala Act when the State imposed liability to lax buildings under the authority conferred by Entry 49, List II, Sch. VII, purely on the basis of floor area. In fact, the Supreme Court points out that the vice of the Kerala Act was more pronounced than that of the imposition of the tax under the Bombay Provincial Municipal Corporations Act. With these observations, the judgment of the High Court declaring the law void was upheld, and the State Government's appeal was dismissed. Appropriate directions were thereafter given for the refund of the tax.
16. This takes us to the case of New Manek Chowk Spinning and Weaving Mills Co. Ltd. v. Municipal Corporation of the City of Ahmedabad : 2SCR679 , on which also the petitioners heavily rely. This was a case where the property tax was levied under the Bombay Provincial Municipal Corporations Act (59 of 1949) on textile mills, factories, buildings of universities etc. The rules framed under the Act refer to the rateable value which should be the measure of determining the property tax. So far as the abovementioned buildings are concerned, the Ahmedabad Corporation devised a new method of calculation. It laid down that for the purpose of fixing the rateable value of the property a flat rate method of a fixed amount per 100 square feet should be adopted in determining the rental value of the properties. This method was adopted in the case of the abovementioned list of properties. There was a further sub-division into two classes of user of the buildings, either for processing or for non-processing purpose. Forgetting the sub-division, the main attack on the valuation so made was that the rateable value which is the proper basis of levying the property tax cannot be arrived at on a flat rate basis where the floor area alone was the consideration. Under the firmly accepted notions and principles of deciding rateable value, the rent at which a particular building is actually let or could have hypothetically been let is the only guidance for deciding the rateable value. Each building will have a different rateable value, eventhough several buildings may have an identical floor area. The location of the building, the nature of construction, the profitability of making a certain user at that place and such other considerations would vary the letting value of each building, not only varying from building to building, but it will vary from locality to locally in the same town. When therefore, a flat rate system of floor area was devised, it became practically a tax on floor area, or a tax on the basis of floor area being the only measure of calculation. It was this approach of the Ahmedabad Corporation which was struck down as offending Article 14. Dissimilar buildings fetching different rents in the open market leading to a different figure of rateable value under the normally accepted notions thereof were regimented into a uniform return of the rateable value merely on the basis of floor area. This was precisely the approach which put dissimilar properties and property owners into one class and subjected them to a uniform tax, which amounted to discriminatory treatment. Though, therefore, apparently the Ahmedabad Municipality gives reference to rateable value and it has been described as a rate case, in subsequent reference to this judgment by the various Courts, on a proper analysis it appears to us that the basis of levying tax being the floor area, the vice of the Kerala Act and the method of calculating the tax by the Ahmedabad Corporation were quite similar. This is practically a case of floor area being the basis of taxation, though the amount per 100 square feet of floor area was declared to be the rateable value for the purpose of municipal taxation. In principle, therefore, that was a case of floor area being the basis of calculation, though the tax was not called floor area tax. It was still called a property tax based upon the rateable value, out the rateable value was so manipulated as to make it in fact a floor area tax. This was struck down and the Kerala case which, as the Supreme Court points out, was a very pronounced decision offending Article 14, was struck down.
17. Having examined these two judgments, which are the main basis of the attack by the petitioners, let us examine the provisions of the impugned Act. The impugned Act impugned (imposed?) the floor area tax only within the Municipal Corporation areas, as given in the Schedule. The levy of the tax is on the residential premises within Greater Bombay area, as alsowithin the areas of the Municipal Corporations of the cities of Pune, Sholapur, Kolhapnr and the city of Nagpur. It is also extended to certain cantonment areas as indicated in the Act. The floorage, which is the subject-matter of that Act, has been defined in Clause (i) of Section 2 to mean the total area of a premises excluding the thickness ot walls. The residential premises is defined under Clause (e) of Section 2. It may be noted that though the tax is levied on residential premises, 'building' has been defined in Clause (e) to include a house, out-house, shed, hut or any other such structure, whether of masonry, bricks, wood, mud, metal or any other material whatever, but does not include a garage or quarters intended for the use of servants and used as such by them. This definition of a building goes one step beyond the Kerala Act, inasmuch as it includes even u mud structure. This Act applies to a much restricted area as compared to the Kerala Act, but in the areas to which the Act applies, the residential premises having a certain floorage have been subject of taxation in a uniform manner. The charging section is S, 3, which lays down that subject to the provisions of this Act, there shall be levied and collected for every year commencing on the 1st Apr. 1974, a tax on all residential premises on the basis of its floorage situated in corporation areas specified in column 1 of the Schedule at the rates, set out against each such area in column 2 of the Schedule. It may be incidentally noted that within the area of Greater Bombay there is no tax up to 125 square meters area, but residential premises which are in excess of 125 square meters of floor area are liable to tax in a graded manner. There is a certain rate of tax up to 150 square meters and as the floor area goes on increasing from 150 to 200 and above, there is a raised tax per square meter or a part thereof.
18. Section 4 lays down the primary responsibility to pay the tax. If the occupier is the owner, he is primarily liable to pay the tax. In any other case, it the premises are let, primarily the liability will be on the lessor, and if it is sub-let it will be upon the superior lessor. This tax is permitted to be transferred to the tenant where he is the actual occupier and it has been declared by Section 5 that this additional recovery from the tenant will not constitute raising of rent for the purposes of Section 7 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.The machinery has been provided by Section 8, whereby a list of taxable premises or assessable premises is to be prepared and objections are to be called for from the occupants thereof. After hearing the objections, a final list is prepared and that becomes the basis of the assessment of the floor area tax, on the basis of the floor area so noted against each tenement in that list.
19. These are all the relevant provisions of the impugned Act, which need be taken into account for considering the challenge under Article 14 of the Constitution.
20. We hardly find any distinction between the provisions of this Act and the Kerala Act. What was pointed out to us was that the Kerala Act applied to the whole of the State irrespective of the nature of the town, large industrial towns and tiny villages in a far off place were subjected to an identical treatment in the matter of buildings having certain floor area. The other distinction that was pointed out was that the user of the building was not taken into account by the Kerala Act. The Maharashtra Act is restricted to what may be described as advanced towns, as Corporation areas only are taken into account. The choice of the place where the Act is applied is, therefore, not irrational, but has a logic behind it. It was then argued that the use of the premises is specifically taken into account. It is only the residential premises of a certain area and above that are subjected to this tax.
21. Our attention was drawn to the statement of objects and reasons as also the preamble of the Act to indicate the object of this Act. Both read together merely suggest that in addition to the property tax based upon rateable value collected under the municipal tax, the State Government wanted to augment its own income and, therefore, additional property tax was being levied on the basis of the floor area, as indicated earlier. There is, therefore, no doubt that this measure was introduced under the powers vested in the Maharashtra Legislature by Entry 49 of List II of VII Sch. of the Constitution. It is essentially a property tax. This distinction, as pointed out above, does not make the Maharashtra Act a piece of legislation any distinct from the Kerala Act, which was already struck down as unconstitutional. It may be that the area of operation of the present Act is limited to Corporation areas and that the premises which are chosen for imposing the tax are residential premises, as defined in Clause (o) of Section 2 of the Act. This Act on a bare perusal and on the face of it refuses to make any distinction between different areas of the same town and the degree of development which may be different in different localities under the same Municipal administration. In fact, in the arguments addressed to us even references were made to the so-called posh locality of the Fort areas, and the Malabar Hill and the backward areas which still surround the suburbs, and also the erstwhile villages which have all become the Municipal Corporation area of Greater Bombay by virtue of the extension of the area of the Corporation by Government from time to time. Obviously, therefore, all areas are not equally developed and the fact that only a few towns are comprised within the operation of the Act does not distinguish this Act from the Kerala piece of legislation. The essence of the criticism of the Supreme Court so far as the Kerala Act was concerned, was not that it operated in a large field comprising the whole State, but the vice was that the Act operated uniformly to all areas which can be so dissimilar and can have no comparison to one another. That fact is still available for being argued in respect of the towns for which the present Act operates. With the growth of towns when Corporations are required to be set up for better ad-ministration, the State Government has always issued notifications describing the limits of the Corporations. Judicial notice can be taken of all these notifications which include several surrounding villages which are automatically made part of the Corporation areas. It is common knowledge that the newly added areas do not at once improve and come to the standard or level of improvement as in the posh locality or localities in certain areas. Then again the material used, the nature of structure, the cost of construction and the capacity to yield income vary immensely. They are not found to be equal, not only from locality to locality but in certain circumstances from building to building. This being the reality of life, any piece of legislation which forgets this factual aspect and seeks to equalise by mere legislative direction unequal buildings are bound to suffer from the vice indicated by the Supreme Court in the State of Kerela case.
22. In the course of discussion before us, some instances were taken for illustrating the scheme. If in a better, developed locality, like the Fort area, there is a flat of 150 square meters, floor area, in a pucca built first class construction, and there is another house with similar floor area located on the outskirts of a suburb and built of mud, inferior wood and asbestos sheets, could they be treated equally for the purpose or levying not only the same tax but the same quantum thereof? What is the nexus between the floor area and the tax that is sought to be levied? Even though any legislature has a wide choice in the matter of selecting the objects, articles, persons and properties for the purpose of taxation, there must always be a rational nexus between the tax sought to be levied and the object which is subjected to that tax. On the bare examination of the provisions of the Maharashtra impugned Act, we see no difference between the provisions ot the Kerala Act and this Act in the matter of selecting floor area as a flat basis for imposition of the tax. The fact that residential premises are sought to be taxed under our Act hardly makes it distinguishable from the other. Whereas the Kerala Act sought to tax all houses and buildings, the Maharashtra legislature has chosen to restrict the imposition of tax upon one use thereof, viz. residential premises. This is not a distinction which makes this Act any the different from the one which was already struck down by the Supreme Court.
23. The principle that has been laid down by the Supreme Court is that there are various factors which always enter into consideration in any rational system of taxation of buildings, and unless a piece of legislation exhibits consonance with those recognised principles and factors and devises a method of calculating and levying tax on the basis of these recognised methods, it would be difficult to uphold the provisions of the Act.
24. The learned Advocate-General supported by Counsel Mr. Gursahani tried to argue before us that the Maharashtra legislature has departed from the conventional way of levying tax and has resorted to a new approach. We have anxiously considered this argument and tried to find out what improvements the Maharashtra legislature has made over the Kerala piece of legislation. Apparently, there are some changes but in principle there is neither a departure from what the Kerala legislature did nor any improvement upon it.
25. It was also argued before us that the Maharashtra Act seeks to tax only the floor area and nothing else. No other consideration entered the field, and this is not a tax on rateable value. The learned Advocate-General also tried to show that the levy of property tax need not be confined to rateable value alone; there can be different methods of imposing tax. During the course of discussion we told him very frankly that we do not want to confine ourselves to any orthodox method. If any new and even unconventional but rational method is suggested, we shall consider the merits thereof. However, on a close analysis of the provisions, what is proposed by the Maharashtra Act is nothing but a flat tax on the basis of floor area, ignoring all rational factors which must enter into consideration in levying tax upon properties. It is not so much the form but pith and substance that must be examined, and we do not find any difference between the Maharashtra impugned Act and the Kerala Act, which was already declared void.
26. The learned Advocate-General as also Mr. Gursahani referred to several judgments, but we do not consider it necessary to refer to each one of them. Reliance was placed upon the judgment of the Supreme Court in the case of Twyford Tea Co. v. Kerala State : 3SCR383 . In that case a uniform tax at Rs. 50/- per hectare upon several different types of plantations was upheld by the Supreme Court. The main attack was upon the uniform levy of tax on units of plantations which were essentially different and the uniform levy of tax amounted to hostile discrimination. We will at once point out that though such a challenge was raised, the Supreme Court negatived it on the ground that the Act no doubt dealt with seven different types of plantations and imposed a uniform tax at Rs. 50/- per hectare, but at the same time the Act laid down the principles on which equal treatment was ensured. For calculating one hectare of plantation, an elaborate method was suggested by the Act which took into account several areas where there was growth falling under the Act and those various areas were grouped together for the purpose of finding one hectare of plantation in the said Act. In view of these elaborate provisions, the Supreme Court concludes as a matter of fact that each taxable hectare is now equal or similar to the other taxable hectare and the apparent dissimilar plantations have not been allowed to bring about a uniform levy of tax on dissimilar estate. We wonder how this judgment can help the respondents? Nobody would deny that any such tax would be valid provided effort is made to bring about equality between the two assessees, and it is demonstrated to the satisfaction of the Court that after certain procedure is followed the taxable limit or the assessment, if levied, is not unequal to any of the assessees, under the Act. This case, therefore, would not advance the case of the respondent, on the contrary, it affirms the principle which was uniformly upheld by the Supreme Court, as laid down in the Kerala building tax case.
27. The other judgment to which reference may be made is Danthuluri Ramaraju v. State of Andh. Pra. : 2SCR900 . Here also the facts show that uniform levy of tax was imposed upon all agricultural lands in a certain division. The reason was that the region was affected by floods and irrespective of the quality of the land and their productive capacity, a uniform tax was levied upon these lands. While negativing the challenge of discriminatory treatment, the Supreme Court pointed out that irrespective of the quality of the land, the danger of the lands being washed away by floods was similar to all, and to avert such a danger if uniform tax is imposed it will be difficult to hold that this is an unequal treatment or a discriminatory treatment violating equality clause of Article 14 of the Constitution. Even here we find that though the facts were different, the principle that was applied is uniformly the same, viz. you must give equal treatment to equals, and you cannot give unequal treatment to equals or equal treatment to unequals. Mr. Seervai pointed out to us, and rightly so, that in the various judgments cited, wherein reference was made to either Haji K. Kutti Naha case : 1SCR645 or the New Manek Chowk Spinning and Weaving Mills Co. Ltd. case : 2SCR679 , the Supreme Court has always approved all those propositions which were pronounced and has either applied or distinguished those cases, depending upon the facts and the circumstances of each case. The Supreme Court has nowhere expressed any view which is inconsistent with or contrary to what has been expressed in those judgments.
28. The learned Advocate-General tried to draw some support from the judgment of Vivian Joseph Ferreira v.Municipal Corporation of Greater Bombay : 2SCR257 . This was a case relating to the levy of cess under Section 27 of the Bombay Buildings Repairs and Reconstruction Board Act (47 of 1969) on residential buildings. The challenge held out to this Act was that the buildings in Bombay are not constructed of uniform material, nor are they constructed in the same year and in the same manner. Older structures would require some repairs and structures with inferior materials would require repairs more often. Structures which are newly built with superior materials may not require repairs at all during the entire period of the Act. How could a tax be levied on all these houses which do not answer to the description of belonging to a particular category or class? This challenge was negatived by pointing out that the primary object of the Act was not to repair all buildings subject to cess but to prevent the annually recurring mischief of house collapses and the human tragedy and deprivations they cause. The cess being levied to prevent such disasters, there is not question of unequal treatment between one class of owners and another. The classification of buildings into three categories is based on their age and the construction in vogue during the period of their erection. It is, therefore, based on an intelligible differentia and is closely related to the objects of the legislation. The judgment, therefore, points out that both things existed which are strictly relevant for imposing a rational tax. The properties have been classified, so that there is proper grouping by looking to the age of the building and the type of construction. Having thus properly classified the buildings and having graded them, better buildings having to pay less and worse buildings having to pay more, this cess is only to prevent house collapses. Therefore, a tax which has been very properly levied by a rational classification of houses has direct nexus to the objects of the Act.
29. The principles on which that piece of legislation was upheld are not at all attracted to the provisions of the impugned Act before us. The floor area of a certain minimum is sought to be uniformly treated, whether it is in a building having the best of materials or the worst; whether the building is One year old or hundred years old; whether the building is located in a locality where the income and dividends will he extremely high or in a locality where the buildings will remain untenanted and will be occupied only if they must for want of other accommodation. None of these factors have been given any consideration in preparing the present law. The learned Advocate-General tried to defend, the Act by saying that one broad class has been indicated, viz. floor area of 125 square meters. This is hardly any classification. We do not, therefore, think that the judgment above-cited is of any assistance to the learned Advocate-General.
30. The learned Advocate-General also referred to the judgment of the Kerala High Court in the case of Kerala Wakf Board v. Union of India : AIR1975Ker123 . That was a case where a certain uniform fee on the gross income of the wakf was levied and it was challenged as voltaic of Article 14.
31. Mr. Gursahani appearing for the State of Maharashtra referred to certain judgments, which allow the legislature considerable latitude and liberty in choosing either things, objects or persons for the purpose of taxation. In fact, in a written slip about the points to be referred, he has referred to these judgments. That proposition has never been in dispute and nothing was argued before us and we are not, therefore, referring to those judgments. Where judgments are cited involving instances, we find that in every case where the tax is upheld, some classification was already made by the statute and the Supreme Court upheld that classification as reasonable. For instance, in the State of Karnataka v. D. P. Sharma : AIR1975SC594 , different amount of lax was levied on contract carriages and the stage carriages. The challenge to tin's varying amount of tax was negatived by the Supreme Court on the ground that the contract carriage permit is essentially different from the stage carriage permit. The buses with Stage carriage permit cover a longer distance, cause more wear and tear of the roads and are entitled to charge higher rates to the passengers. In other words, the Supreme Court accepted the classification made by the Statute as having a rational nexus with the varying amount of tax. When, therefore, such instances are cited by the learned counsel Mr. Gursahani, they support more the petitioner's argument than that of the respondent.
32. These are all the arguments addressed to us, and the judgments cited on either side. We have hardly any doubt that there is no rational classification atall in the impugned Act so far as the different flats are concerned. Merely to say that all flats with floor areas of more than 125 square meters are selected for taxation is not to make a classification at all, much less a rational classification. Not only all buildings are not similar but in an old established town there are bound to be buildings constructed at various times, the materials used in such construction are also changing from time to time. In Bombay, for instance, there would be some buildings almost a hundred years old when reinforced concrete was not known at all. We have already enumerated several factors which make two flats of identical floorage entirely different from each other. There is no need to reiterate the same factors. If, therefore, this Act seeks to treat unequals as equals and imposes a uniform or flat tax irrespective of the various rational considerations which ought to enter a tax structure, the Act and the tax obviously offend the provisions of Article 14. We may state again that there was a second leg to the argument of Mr. Seervai challenging the legislative competence of the State Government in imposing the impugned tax. If the tax is a property tax, he had also asserted that the impugned Act offends Article 19 as well. Since we find that the challenge under Article 14 is insurmountable and that part of the petitioners' challenge is already covered by the decision of the Supreme Court, it is not necessary to consider the other points raised in the petition. We accordingly leave those points expressly open.
33. We, therefore, declare that the Maharashtra Tax on Residential Premises Act (19 of 1974) is ultra vires the Constitution of India and is null and void, and no tax can be recovered thereunder from the petitioners. We accordingly quash all the notices that were issued by the respondent for the recovery of the tax from the petitioners. We further direct that the respondents will refund to the petitioners the actual amount of tax collected from the petitioners under the provisions of the impugned Act. We further restrain the respondents from effecting any further recovery of that tax under the impugned Act from the petitioners.
34. Rule is made absolute in terms of prayer Clauses (a), (b) and (c). This order will also govern the other Miscellaneous Petitions Nos. 446, 530, 568, 569, 570, 571, 572, 573, 574, 575, 576, 607, 608, 609, 610, 625, 627, 628, 629, 630, 662, 668 and 682,all of 1978. Each of the petitioners in all the abovementioned petitions will recover costs separately from respondent No. 1. There will be no order as to costs so far as respondents Nos. 2 and 3 are concerned.
35. So far as Miscellaneous Petition No. 446 of 1978 is concerned, the petitioners had not paid the tax when they filed the Writ Petition and have not, therefore, made a specific prayer for the refund of the tax. However, they subsequently paid up the tax as advised by the Counsel. In the circumstances, even though there is no specific prayer, we direct that the respondent will refund the tax which is actually paid by the petitioners after the filing of the petition but before its disposal. The rest of the order will be as stated above.
36. Mr. Rele asks for suspending the operation of the judgment. However, no orders are necessary as Mr. Seervai states for the petitioners that they will not execute the order for a period of four weeks from today.
37. Mr. Rele orally applies in all the Writ Petitions on behalf of respondent No. 1--State, for leave to appeal to the Supreme Court, which is opposed by Mr. Seervai on the ground that the subject-matter of this petition is already covered by an earlier judgment of the Supreme Court. We agree with this argument and refuse the leave asked for.
38. Order accordingly.