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V. Padmanabha Ravivarma Rajah and ors. Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 948 of 1959, 188, 189, 241, 265, 351, 457, 509, 595 and 958 of 1960 and 255 of 1961
Judge
Reported inAIR1963Ker31
ActsConstitution of India, Articles 14, 19, 19(1) and 226; Madras District Boards (Amendment) Act 1957 - Sections 2, 3, 4, 5 and 6; Kerala District Boaeds (Amendment) Act, 1958; Madras District Boards Act, 1920 - Sections 78, 79 to 86; Travancore-Cochin Land Tax Act, 1955 - Sections 11 and 12
AppellantV. Padmanabha Ravivarma Rajah and ors.
RespondentState of Kerala and ors.
Appellant Advocate C.K. Viswanatha Iyer, Adv. (in No. 948/59),; T.S. Venkiteswara Iyer, Adv. (in No. 958/60),;
Respondent AdvocateGovt. Pleader
Cases ReferredAluminium Industries Ltd. v. The Agrl. Income Tax and Rural Sales
Excerpt:
constitution - validity of land tax - articles 14, 19 and 226 of constitution of india and sections 11 and 12 of travancore-cochin land tax act, 1955 - whether levy of land cess valid - contended that levy of land cess at uniform rate irrespective of quality of lands illegal, discriminatory and void - state had no power to levy such tax - levy on land cess based on 10% of basic tax - since levy of basic tax itself ultra vires levy of land cess based upon basic tax also ultra vires - held, petitioner not liable to pay land cess as same declared to be void. - - 3. in order to appreciate the contentions of learned counsel appearing in the various petitions, as well of the learned advocate general, who has appeared on behalf of the state, it is desirable to set out the circumstances.....orderc.a. vaidialingam, j.1. in all these eleven writ petitions, the common question that arises for consideration is as to whether the levy of land cess under the provisions of the madras district boards act, 1920, madras act 14 of 1920, as amended by the madras district boards (amendment) act, 1957, kerala act 4 of 1958, is valid and could be sustained.2. there are also, no doubt, some special points raised in some of these writ petitions; and i will advert to them, after i consider the main grounds of attack that have been made regarding the validity of kerala act 4 of 1958. according to- the petitioners, the levy of land cess at a uniform rate, irrespective of the quality of the lands, is 'illegal, discriminatory and void and therefore, kerala act 4 of 1958 is an invalid piece of.....
Judgment:
ORDER

C.A. Vaidialingam, J.

1. In all these eleven writ petitions, the common question that arises for consideration is as to whether the levy of land cess under the provisions of the Madras District Boards Act, 1920, Madras Act 14 of 1920, as amended by the Madras District Boards (Amendment) Act, 1957, Kerala Act 4 of 1958, is valid and could be sustained.

2. There are also, no doubt, some special points raised in some of these writ petitions; and I will advert to them, after I consider the main grounds of attack that have been made regarding the validity of Kerala Act 4 of 1958. According to- the petitioners, the levy of land cess at a uniform rate, irrespective of the quality of the lands, is 'illegal, discriminatory and void and therefore, Kerala Act 4 of 1958 is an invalid piece of legislation. On the other hand, the learned Advocate General, appearing for the State, has sustained the levy under the Act, in question, as a levy which is within the competence of the State Legislature and that the Act is a valid piece of Legislation.

3. In order to appreciate the contentions of learned counsel appearing in the various petitions, as well of the learned Advocate General, who has appeared on behalf of the State, it is desirable to set out the circumstances under which these writ petitions have been filed. It is not necessary to go into the various other matters of detail mentioned in the individual petitions. I will refer only to the allegations in O. P. No. 948 of 1959 which may be considered to more or less represent the grounds of attack formulated as against the levy of land cess in these writ petitions; and substantially the allegations in all the other writ petitions are also to the same effect. Similarly, I will refer only to the counter-affidavit filed on be half of the State in O. P. No. 948 of 1959 because that also represents, broadly, the stand taken by the State Government to sustain the levy, in question.

4. In O. P. No. 948 of 1959, the averments are briefly as follow: The petitioner owns large tracts of land, including forests in the State, and he has received a notice from the Adhikari of the Village, calling upon him to pay land cess in respect of the lands covered by patta standing in his name. The patta covers forest, garden and paddy lands. It is also averred that the said land cess is based on 10 per cent of the Basic Tax, in respect of the said lands. The amount is directed to be remitted within the particular time mentioned in the notice.

5. It is the case of the petitioner that originally the land cess is levied by virtue of Section 78 of Madras Act 14 of 1920 as it originally stood and under the particular section land cess is to be levied on the basis of the annual rental value of all occupied land on whatever tenure held. The levy in the particular case is made at 10 per cent of the Basic Tax, on the footing, according to the petitioner, that the Basic Tax represents the annual rental value.

6. Then there is a reference to the Travancore Cochin Land Tax Act XV of 1955, as amended by Kerala Act 10 of 1957, levying a uniform rate ol Basic tax at Rs. 2 per acre on all lands irrespec-tive of whether they are productive or unproductive, surveyed or unsurveyed, waste or barren lands incapable of yielding any income. The petitioner refers to a writ petition filed by him in the Supreme Court under Article 32 of the Constitution, challenging the levy of the said Basic tax under the Travancore-Cochin Act XV of 1955, as amended by Kerala Act 10 of '1957 as also the grounds of attack raised before the Supreme Court.

7. After referring to the various grounds of attack raised against the imposition of Basic Tax before the Supreme Court, the petitioner states that so far as the present levy of land cess is concerned, it is also, according to him, based on 10 per cent of the basic tax. Since a levy of the Basic tax itself is ultra vires, the levy of land cess based upon the Basic tax is also ultra vires. The petitioner further alleges that the levy of land cess is either to stand or fall, according as to whether the Basic tax is sustainable or not, as both the levies suffer from common legal infirmities,

8. The petitioner further avers that he owns about 25000 acres of forest lands besides other lands and land cess calculated at 10 per cent of the Basic tax as demanded of him will come to about Es. 3000/- in respect of those forest lands alone. It is absolutely impossible for the petitioner to pay that tax from his income from his forests, in view of the various restrictions imposed upon owners of private forests by the Madras Preservation of Private Forests Act, Madras Act XXVII of 1949. The levy of land cess at a flat rate on all lands, irrespective of whether the land is productive or not and whether it is rocky of barren, yielding no income, is stated to be illegal. The levy is also alleged to operate as an unreasonable restriction, on the petitioner's fundamental right to hold and enjoy property.

9. The petitioner has filed certain supplementary affidavits wherein he has specifiaclly referred to the provisions of Madras District Boards Act, 1920, as they stood prior to the amendment by Kerala Act 4 of 1958. According to the petitioner, Kerala Act 4 of 1958 effected modifications in the parent Act, by which a uniform rate of cess is sought to be levied; and there were also various amendments effected therein, deleting provisions relating to the calling for objections and of opportunity being given to parties like the petitioner for placing their objections and also a right to challenge the order of the Collector regarding the levy by taking up the matter in appeal before the Board of Revenue. According to the petitioner the deletion of provisions giving such valuable rights, by virtue of the Amending Act has effected the fundamental rights guaranteed to him of holding property under Article 19(1)(f). There is also an attack based upon Article 14 of the Constitution of gross discrimination.

10. According to the petitioner, the provisions of Kerala Act IV of 1958 are ultra vires of the Constitution because :

'(1) The levy of an uniform rate of cess on a flat rate of one Naya Paisa on every five cents of land is opposed to Article 14 of the Constitution of India as the inequality is writ large on the Act' and is inherent in the very provision of the taxing section.

(2) The provision which vests in the Government the power wholly or partially to exempt any land from the provisions of the Act is clearly discriminatory in its effect and offends Article 14 of the Constitution.

(3) The Act being silent as to the machinery and procedure to be followed in making the assessment leaves it to the executive to evolve the the requisite machinery and procedure. There is no procedure prescribed for obtaining the opinion of a superior Civil Court and there is no provision even for issuing any notice or hearing the assessed and there is no right of appeal against the order of assessment and the Act is thus confiscatory in character.

(4) The State Legislature has no power to impose any tax on forest as 'Forests' is a Central subject'.

11. At the time of hearing, as the Supreme Court had in the meanwhile held the levy of Basic tax, at a uniform rate of Rs. 2 per acre on all lands illegal, the petitioner quite naturally relied very strongly on the decision of the Supreme Court, reported in T. Moopil Nair v. State of Kerala, 1961 Ker LJ 143 : (AIR 1961 SC 552). That decision, as mentioned earlier, was given in the attack made by the various parties, including the petitioner, regarding the levy of Basic tax under the Travancore-Cochin Land Tax Act 1955. as amended by Kerala Act 10 of 1957. The State attempted to enforce a uniform rate of levy and collection of Basic tax at Rs. 2 per acre. The challenge made against the levy of Basic tax was accepted by the Supreme Court on various grounds; and I will have to refer to the judgment of the Supreme Court, when dealing with the various grounds of attack that have been made as against the levy in these cases. According to the petitioners the levy is illegal and void and that Kerala Act 4 of 1958 has to be struck down as unconstitutional.

12. The State Government takes up the position in these writ petitions, that the attack made against the levy of land cess cannot be sustained. According to the State Government, this levy is not similar to the levy, which was before the Supreme Court, and no support could be derived by any of the petitioners in these writ petitions, from the decision of the Supreme Court referred to earlier. In the Supreme Court, an assessment to uniform levy of land revenue was challenged and upheld by the Supreme Court. The levy in that case was one made under Entry 45 of the State List. On the other hand, the levy in these cases is a levy by way of tax on land under Entry 49 of the State List, in VIIth Schedule of the Constitution.

13. When a tax on land is so levied, the question as to whether the property is productive or not or as to whether the property brings in income or is even capable of bringing an income, according to the State, is of no consequence. Those considerations have no relevancy when a uniform and low rate of tax is sought to be levied by the State, by virtue of the powers vested in it under Entry 49 of the II List of Schedule VII of the Constitution. The productivity of land or yielding capacity of land may be a relevant factor to be taken into account, when considering the rate at which land revenue is to be assessed; but those considerations are irrelevant in the matter of levy of tax on land. No doubt, the State also refers to its defence regarding the various attacks that have been made against the levy of Basic tax at Rs. 2/- per acre. We are not now concerned with that view of the State, and more especially after the decision of the Supreme Court, holding against the State.

14. According to the State, land cess, at the rate of 1 nP. per every 5 cents of land is levied under Section 78 of the Madras District Boards Act, as amended by Kerala Act 4 of 1958. The object of the said section, is to levy tax on all lands at a very low and uniform rate, to raise funds to be utilised for purposes enumerated in Section 112 of the Act. The State further avers that the levy is neither arbitrary nor unreasonable and it is the holding of the land that makes the owner liable to pay the tax. It is also the further case of the State that the quantum of the tax can be reasonably linked with the quantum of the holding itself.

15. All attacks based upon Article 19(1) (f) and (g) of the Constitution are also controverted by the State; and according to the State, the tax has been imposed for the legitimate revenue purposes, in the interests of the public. As the levy is only at a very low rate of one naya paisa for five cents of land, there is no question of the cess being considered confiscatory or unreasonable. The provisions of Sections 78 to 90 of the Madras District Boards Act, as amended, constitute only reasonable restrictions on the fundamental rights mentioned in Article 19(1)(f) and (g).

16. The State further controverts the contention of the petitioners that the State has no legislative competency to levy a tax on forest lands. As pointed out earlier, the specific stand taken by the State is that the levy of land cess, in this case, is fully within the legislative power of the State under Entry 49 List II of VIIth Schedule of the Constitution and that entry gives powers to Government to levy land cess on all classes of lands.

17. The State again avers that the fact that the petitioner's enjoyment of the forest land is restricted by the provisions of the Madras Preservation of Private Forests Act, in the sense that indiscriminate and destructive felling of trees is not being permitted, does not in any way affect the validity of the levy of the land cess at such a very low rate of 20 nP. per acre. The State also controverts the assumption of the petitioner that the land cess is based on the Basic tax. Ultimately the State supports the legislation in this respect and in consequence the levy, and prays forthe dismissal of these writ petitions.

18. I may also state that in some of these writ petitions, the petitioners have taken the stand that lands in their possession have not been surveyed; and therefore without ascertaining the extent of the lands, the demands made are illegal. The state has taken up the position in those cases, that demands are made for payment of land cess only in respect of surveyed lands.

19. From the above, it will be seen that the main question that arises for consideration is as to whether the levy of land cess at a uniform rate on alt lands, under the Madras District Boards Act, 1920, as amended by Kerala Act 4 of 1958, is valid or not.

20. Before I consider the various aspects that have been presented before me, this is a convenient stage to refer to the provisions of the Madras District Boards Act, 1920, as they stood originally as also the amendments that have been made to the said Act, by virtue of Kerala Act 4 of 1958. Original Section 74-B and certain other sections occur in Part III, dealing with Finances, and in particular in Chapter VI, dealing with Taxation. Section 74-8 provided that in every District a land cess being a tax on the annual rent value of lands shall be levied in accordance with the provisions contained in the said Act. The other group of sections beginning from Section 74-C to Section 77, is not necessary to be noted.

21. Section 78, dealing with land cess, provided that land cess shall be levied on the annual rent value of all occupied lands on whatever tenure held and shall consist of a tax of two annas in the rupee of the annual rent of all such lands in the District. This is the main charging section. It will be noticed that under Section 74-6, the land cess being a tax on the annual rent value of land, is to be levied in accordance with the provisions contained in the Act. Under Section 78, it will be seen that the land cess is to be levied (a) on the annual rent value, (b) of all occupied lands on whatever tenure held and (c) the levy is to be of a tax at two annas in the rupee, of the annual rent value of all such lands in the District. . The expression 'of all such lands in the District', must refer to all occupied lands in respect of which an annual rent value can be fixed. Section 79 deals with as to how the annual rent value of the various categories of land for purposes of Section 78, is to be calculated. This becomes important, because under Section 78 read with Section 74-B, the cess is to be levied on the annual rent value of all occupied lands. Section 79, when it refers to the various aspects to be considered, in arriving at an annual rent value, on the basis of which the land cess is to be levied, clearly shows, in my opinion, that levy of land cess under the Act is closely related to the nature of the land as well as its yielding capacity by way of rent or equivalent thereto.

22. Section 80 (i) of the Act makes it obligatory on the Collector, in fixing the rent value of the class of lands covered by Section 79 (iii) to require the land-holders or the sub-landholders, as the cess may be, to furnish lists of (a) lands held by them, (b) whether they are occupied by tenants or by them and (c) the various other particulars mentioned in Sub-section (2) of Section 80.

23. Section 81 deals with the assessment to be made by the Collector, if he is satisfied with the list furnished, by the landholder or sub-landholder, in compliance with the direction made under Section 80 (1). Section 82 deals with penalty for failure to comply with the requirements of the Collector made under Section 80. Then Section 83 gives power to the District Collector to fix the annual rent value in cases where no such list is furnished by the party concerned within the period mentioned therein. Section 84 deals with the powers of the Collector for ascertaining as to whether the list furnished by the landholder is correct or not. Section 85 (i) is to the effect that if after due enquiry the Collector is dissatisfied with the list furnished by the landholder, he shall amend the list and send to the landholder a copy of the list so amended.

Under Sub-section 2 of Section 85, provision is made for the District Collector making assessment on the land-holder or sub-landholder for the period in question, based upon the average annual rent value of the lands as disclosed by the list. It also provides for the Collector furnishing the landholder with a statement showing the annual rent value of his lands as fixed for the particular period. Section 86 gives a right of appeal, to the party aggrieved, against an order of assessment made by the District Collector under Section 85 (2) and that appeal is to be made to the Board of Revenue within the period mentioned in Section 86 (2). Section 87 again relates to the land cess being entered in the, pattas of the ryotwari lands. These were the various sections relating to land cess in the Act as it stood originally, prior to the amendment of the Madras District Boards Act, 1920, by Kerala Act 4 of 1958.

24. From a perusal of the various provisions mentioned above, it will be seen that the land cess, which is considered as a tax, by the Act itself, is to be levied on the annual rent value of the lands. It is further only a levy, on all occupied lands, at the rate of 2 annas in the rupee of the annual rent value. There are various provisions regarding as to how exactly the annual rent value is to be fixed. There are also provisions giving an opportunity to the landholders to furnish a list of the lands, in their possession giving the various' particulars referred to above. Then there was a provision for the Collector considering the correctness of the list furnished by the landholder; and also provisions giving power to the Collector himself to fix the annual rent value. It is only after such enquiry that ultimately the District Collector is to make an assessment on the landholder for the particular period in question, having due regard to the average annual rent value of the lands and on furnishing the landholders with these statements? There was also a right of appeal to a party, aggrieved by the decision of the District Collector, and that appeal, as mentioned earlier, was to the Board of Revenue. This was the position prior to the passing of Kerala Act IV of 1958.

25. Kerala Act IV of 1958, namely, the Madras District Boards (Amendment) Act) 1957, came into force in 1958, The preamble to the Act is

'Whereas it is necessary to amend the Madras District Boards Act, 1920, for the purposes hereinafter appearing Be it enacted in the. Eighth Year of the Republic of India as follows :'

The Amendment Act itself contains very few sections. Section 1 deals with short title and commencement. Section 2 of the Amendment Act amends Section 74-B of the parent Act, by deleting the words 'being a tax on the annual rent value of the lands'. Therefore, after the amendment, Section 74-B will be to the effect that in every District a land cess, shall be levied in accordance with the provisions hereinafter contained in the Act.

26. Section 3, deleted Section 78 of the original Act and incorporated the new Section 78, which is severely attacked in these writ petitions. Section 78, as it now stands, is as follows :

'The laud-cess shall be levied on all lands in the district, other than any land or class of lands which the Government may, by notification in the Gazette, exempt and shall consist of a tax of one naya paisa per annum for every five cents of land or part thereof.'

Under this section, it will be seen that the land cess is to be levied on all lands in the district. There is also power given to the State Government, by notification in the Gazette, to exempt any land or any class of lands from the levy. The tax is to be at a uniform rate of one naya paisa per annum for every five cents of land or part thereof. But it must be noted that even under this section, the levy is by way of 'a tax'. Therefore, Section 78 now provides for a uniform levy of land cess at 20 nP. per acre on all lands in the District. Under Section 78 as it originally stood, as I have already indicated, the land cess is to be levied on the annual rent value and that can be only on all occupied lands and the rate was 2 annas in the rupee on the annual rent value of all such occupied lands.

Therefore, under the new Section 78, as incorporated by Section 3 of the Amending Act, it will be seen that the land cess is to be levied on all lands irrespective of the fact whether they are occupied or unoccupied; and such levy is not also based upon the annual rent value but at a uniform rate of 1 nP. per annum for every five cents of land or part thereof. There is also power given under Section 78, as it now stands to the State Government to exempt any land or class of lands from the operation of the levy. J may also indicate that the provision contained in this section, giving what, according to the petitioners, is a very unrestricted, absolute and arbitrary power to the State Government to grant exemption is also illegal and void. There are no principles laid down by the statute which should govern the exercise of the power to grant exemption.

27 Section 4 of the Amending Act omitted Sections 79 to 86 of the original Act. I have al-rearly indicated the nature of the provisions contained in Sections 79 to 86. In short, they related to the question as to how exactly the annual rent value is to be calculated, and the Collector asking the landholders to furnish lists containing the various particulars mentioned in the sections and assessment being made by the Collector and also the party being given a right of appeal, to challenge the order of assessment! made by the Collector, by carrying the matter to the Board of Revenue. By virtue of Section 4, of the Amendment Act, the entire body of Sections 79 to 86 of the orginal Act has been completely taken away from the Statute. There are two other consequential amendments made to the original statute, by Sections 5 to 6 of the Amending Act. They may be considered to be more or less consequential in view of the other amendments effected by the statute. Section 5 deleted certain words from Section 87 and Section 6 deleted Section 90 from the Statute. It may be stated that Section 90 related to remissions of cess.

28. Mr. C. K. Viswanatha Iyer, learned Counsel for the petitioner, in O. P. No. 948 of 1959, whose contentions have been adopted and accepted by Mr. T. S. Venkiteswara Iyer, Mr. P. C. Balakrishna Menon, Mr. D. A. Krishna Warrier, Mr. Mohammed Naha, Mr. Shamsuddin and Mr. K. A. Mohammed, learned counsel appearing for the various other petitioners, advanced the leading contentions in these writ petitions.

29. According to Mr. Vishwanatha Iyer, the same grounds of attack that were made against the Travancore-Cochin Land Tax Act, 15 of 1955, as amended by Kerala Act 10 of 1957, and which were the subject of consideration by the Supreme Court are available regarding the particular enactment, namely, Kerala Act 4 of 1958. So far as I could see, the provisions of Madras Act 14 of 1920, as they stood prior to the amendment by Kerala Act 4 of 1958, are not as such being challenged, though no doubt there is a particular attack made by Mr. D. A. Krishna Warrier, learned counsel for the petitioner in O. P. No. 189 of 1960 that the State has no power or jurisdiction to levy a tax on forests and that the State has no power to levy any further cess in view of Section 12 of T. C. Act XV of 1955, as amended by Kerala Act X of 1957. This aspect will be considered by me later. Apart from this special ground that is also urged, the levy of land cess, on the annual rent value of occupied lands as was being done under Madras Act 14 of 1920, prior to its amendment in 1958, is not challenged.

30. No doubt, some of the demand notices, which are the subject of attack, in these writ petitions, also cover a demand by way of Basic Tax. Though the original levy of Basic Tax has been cancelled by the Supreme Court, the State has not passed a new Act regarding such a levy. I have not heard any arguments regarding the levy of Basic tax nor on the validity or otherwise of the new Act, viz., Kerala Act XIII of 1961. Therefore, I make it clear that my decision in these cases, does not at all in any manner, relate to the validity or otherwise of the tax demanded by way of basic tax from all or any of the petitioners in these writ petitions. The only point that has been argued and is considered and decided is the attack made against the demands, made by way of land cess alone, as against the various petitioners, under the Madras District Boards Act, 1920, as amended by Kerala Act 4 of 1958.

31. Mr. Viswanatha Iyer, learned counsel, urged that the Amending Act 4 of 1948 is discriminatory and therefore violates the provisions of Article 14 of the Constitution. The learned counsel also urged that under the amending Act, all persons who hold land irrespective of the capacity of the lands to yield any income or irrespective of the fact whether the landholders get any produce or income from the lands in question have been made liable to pay a uniform levy 'of 1 nP, for every 5 cents of land or part thereof. A person who owns five cents of good and fertile land in a very well developed area and getting income from that property has to pay a land cess of 1 nP.; and a person who owns 5 cents of land, which is rocky or barren and is incapable of exploitation and from which no income is or could be derived is also made to pay 1 nP. as land cess. The learned counsel also stressed the grievance mentioned in the affidavits by the various petitioners that most of the lands for which land cess is sought to be collected are incapable of being put to any productive use. And this results in inequality. According to the learned counsel, a similar levy of Basic Tax, which was before the Supreme Court has been held by the Supreme Court to be invalid and discriminatory and opposed to Article 14.

32. The learned counsel also urged that the Amending Act violates the fundamental rights ol persons like the petitioners to hold and enjoy property guaranteed under Article 19(1)(f) of the Constitution inasmuch as it imposes unreasonable restrictions. In this connection, the learned counsel placed considerable reliance upon the absence of (a) any notice being sent before making assessment, (b) any right given to persons, like the petitioners, to challenge the proceedings' that may be taken by the District Collector in the matter of assessment to cess on the ground that they are not liable for the said assessment or on the ground that the petitioners are not in a position to meet the liability sought to be cast upon them by way of a cess and (c) of any provision for filing objections. The learned counsel relied upon the deletion of the Original Sections 79 to 86 of the Madras Act, 14 of 1920, by Section 4 of the Amending Act, Kerala Act 4 of 1958, in support of his contention that even the elementary safeguards provided for a tax-payer have been done away with. All these according to the learned counsel, amount to an infringement of the fundamental rights guaranteed to persons like the petitioners. In short levy and collection of tax is treated as of a purely administrative character.

33. Mr. Viswanatha Iyer also urged that the power given to Government under Section 78 to grant exemption is also invalid as it amounts to conferring arbitrary powers, without the legislature laying down any principles for the guidance of the executive.

34. On the other hand, the learned Advocate General appearing for the State, very strenuously , urged, that the question of productivity or other-wise of the particular lands in question for purpose of levy of land cess, does not arise for consideration, in view of the fact, that the levy in all these cases, is not an assessment to revenue under Entry 45 of List II of the VIIth Schedule, but really a tax on land under Entry 49 of List II of VIIth Schedule. The learned Advocate General further urged that whatever considerations may be relevant in an assessment to revenue under Entry 45, those considerations are absolutely foreign where the State exercises its undoubted jurisdiction by levying tax on land under Entry 49. The very holding of land makes the owner liable to tax.

The learned Advocate General further urged that as the cess or tax in these cases, is really a tax on the holding or ownership of property, the fact that there is no provision made for receipt of objections before assessment or for challenging the assessment by way of appeal is of no consequence, affecting the legality of the levy as such. That is, according to the learned Advocate General, if the State's jurisdiction or power to levy a low and uniform rate of tax on all lands, under Entry 49, irrespective of the productivity or otherwise of the property in question is accepted and according to him, it should be accepted then the question of the amount of tax payable by a particular person reduces itself only to this, namely, of finding out the actual extent of land that a particular person may be possessed of for the time being. Details regarding extents of land will be found in the patta.

35. Therefore, the learned Advocate General urged that so long as the amount sought to be collected is in accordance with the extent shown in a land-owner's patta, he can have no grievance. Even if the demands are made for larger amounts, due to some mistake or other, the petitioners and other landowners can always draw the attention of the Revenue authorities. Though no specific provisions are made in that regard, courts can trust the State and its officers to correct the mistakes, if any, and if they are satisfied.

36. The power to exempt, given to the Government under Section 78, is according to the learned Advocate General, neither invalid nor arbitrary. The State will exercise a proper discretion when considering the question of granting an exemption. If in any individual case, discretion is not properly exercised or is exercised arbitrarily that may be attacked. But the mere circumstance that discretion may be exercised improperly is a remote contingency and on that ground, the power given should not be declared invalid.

37. No doubt, there is an attack made in some of these writ petitions to the effect that the forest lands in the possession of some of these petitioners have not yet been surveyed and therefore the actual extent of their possession cannot be stated with accuracy at present. So far as this is concerned, as I have mentioned earlier, the State has taken up the position that the assessment is sought to be made only in respect of lands that have been surveyed. But that question does not assume much importance, in the view that I take upon the major ground of attack regarding the sustainability of the levy of cess made by thesepetitioners.

38. The learned Advocate General was no doubt faced with the decision of the Supreme Court rendered in the Travancore-Cochin Land Tax Act case and the various principles laid down by the learned Judges therein. But according to the learned Advocate General, the Supreme Court has occasion to consider only the legality of an assessment to land revenue which is directly taken in by Entry 45 of the State List and the Supreme Court had no occasion to consider the validity or otherwise of an absolute levy like the present one, based upon the powers vested in the State Legisture, under Entry 49 of List II of the VIIth Schedule. Therefore, according to the learned Advo-cate General, the Supreme Court decision will not apply.

39. Finally, the learned Advocate General urged that there is no discrimination and Article 14 is not violated; and no rights of the petitioners to hold and enjoy property have been affected and so Article 19(1)(f) Is not violated and that Kerala Act 4 of 1958 is a valid piece of legislation.

40. The learned Advocate General also referred me to certain passages from American Jurisprudence and also the Taxation Commission Reports, Vol. III, regarding the basis of levy of tax on lands.

41. After a consideration of the various aspects presented before me by the learned counsel for the various petitioners as well as, by the learned Advocate General appearing for the State, in my view, the attack made on Kerala Act 4 of 1958, has to be decided mainly on the basis of the principles laid down by the Supreme Court in the decision rendered by them, in the Travancore-Cochin Land Tax Act case, which decision is reported in 1961 Ker LJ 143 : (AIR 1961 SC 552).

42. The various provisions of the Madras Act XIV of 1920, as they stood prior to the amendment by Kerala Act 4 of 1958, and the basis for levy of the land cess, viz., annual rent value of occupied lands, the method of calculation of annual rent value as also the various safeguards given to landholders, of furnishing lists and of giving a right to appeal to challenge the orders of assessment made by the Collector have already been adverted to by me. I have also referred to the changes effected by Kerala Act 4 of 1958. By the amendments effected under Kerala Act 4 of 1958, the principle of a levy of land cess based upon annual rent value and that on occupied lands has been given the go by. All lands are treated alike and there is a uniform rate of levy on all lands, irrespective of the fact whether the lands yield any income or not. A land which is rocky and barren and incapable of yielding any income, in spite of best efforts, is made liable for land cess at the same rate and in the same manner as a most fertile land yielding good income to its owner.

I am aware of the contention of the learned Advocate General that once the basis of the levy, namely, of its being a tax under Entry 49, is accepted the question of the productivity of the soil or the capacity of a particular land or the individual does not come into the picture at all.The State can succeed not by merely showing that this is a levy under Entry 49, but, in my view, they must be able to further establish, that in respect of a levy of tax on land, under Entry 49, State can levy tax at any rate it leases, without any regard to the nature, quality or yielding capacity of a land. The learned Advocate General has not been able to refer to any decision of any Court where such an unrestricted power in the State has been recognised. In fact, as I will show presently, the Supreme Court has negatived such a power. I will assume that the State has got competency to levy this tax on land under Entry 49 of State List.

43. I am not inclined to accept the contention of the learned Advocate General that the decision of the Supreme Court rendered in the Travancore-Cochin Land Tax Act case, does not at all apply to the cases on hand on the ground that the Supreme Court was dealing with an assessment to land revenue, based upon Entry 45, of List II, whereas the assessment in these proceedings is a levy of tax on land under Entry 49 of List II. Nor am I inclined to accept the contention of the learned Advocate General that the various principles laid down by the Supreme Court in that case do not apply to the matters on hand.

44. In my view, the various observations of the learned Chief Justice, who delivered the majority judgment in the Travancore-Cochin Land Tax Act Case do not attempt to make any distinction regarding the principles applicable to the levy of a tax pure and simple and the levy of land revenue on a particular property. No doubt, the Act, which the learned Judges were dealing with, contained in Section 3, a provision to the effect that the Act is to be considered to be 'a general revenue settlement of the State'. It is really on this particular observation that the learned Advocate General has placed reliance in support of his contention that the observations of the learned Chief Justice, must be strictly confined to levy or assessment by way of land revenue and not to other levy by way of tax. I do not seel any warrant for making this distinction. In my view, the observations occurring at page 151 (of Ker LJ) : (at p. 558 of AIR) clearly show that the various principles laid down by the Supreme Court, apply not only to a levy of land revenue, but also to levy of a tax on land. At page 151 (of Ker LJ) : (at p. 558 of AIR) the learned Chief Justice observes as follows : -

'Ordinarily, a tax on land or land revenue is assessed on the actual or the potential productivity of land sought to be taxed. In other words, the tax has reference to the income actually made, or which could have been made, with due diligence, and, therefore, is levied with due regard to the incidence of the taxation.'

Therefore, it will be seen that according to the learned Chief Justice a tax on land should have a reference to the income that is actually made or which could have been made with due diligence, and therefore, is levied with due regard to the incidence of taxation. Therefore, if I may say so with respect, the learned Chief Justice is prepared to proceed on the basis that there is no material difference in the application of the principles to a tax on land or a land revenue and both of them must have reference to the actual or potential productivity of the land, and that the particular levy must have also a reference to the income that is actually made or which could have been made with due diligence and is levied with due regard to incidence of taxation.

As I pointed out earlier, under Section 74-B read with Section 78, as they stood prior to the amendment in 1958, the position was that land cess is a tax levied on the annual rent value of lands and that also in respect of occupied lands or whatever tenure held at a rate of 2 annas in the rupee. Section 79 of the original Act clearly shows that annual rent value has direct relation to the income accruing from the land also. But the position after the amendment, in 1958 is that land cess is levied at a uniform rate of 1 nP for every 5 cents of land and part thereof, irrespective of the fact whether the properties are occupied lands or not and that levy is not based upon the annual rent value of the lands either and it is not based upon the actual or potential productivity of land. On the other hand, rocky, barren, sandy or marshy lands yielding no income are treated on a par with very good and fertile lands yielding good income. Therefore, it is clear that inequality is writ large on the Act and there is no attempt at classification either. Therefore, Kerala Act 4 of 1958 is, in my view, hit by the prohibition to deny equality before the law, contained in Article 14 of the Constitution.

45. The Supreme Court had to consider the validity of an enactment, levying a uniform rate of Rs. 2 per acre by way of Basic Tax on all lands, without any reference to its actual or potential productivity. Against such a levy, an attack was made based upon Article 14 of the Constitution and that attack was sustained. In my view, the observations of the learned Chief Justice, again regarding the provisions of that Act, being violative of Article 14 apply with full force to the levies in these matters also. At page 150 (of Ker LJ) : (at p. 557 of AIR) the learned Chief Justice categorically states that the guarantee of equal protection of law must extend even to taxing statutes and it is also the view of the learned Chief Justice that a taxing statute is not wholly immune from attack on the ground that it infringes the equality clause in Article 14, though the Courts are not concerned with the policy underlying a taxing statute or whether a particular tax could not have been imposed in a different way or in a way that the Court might think more just and equitable. These observations clearly show that even a taxing statute must be struck down as unconstitutional, if it. Infringes the provisions of Article 14 of the Constitution.

46. In considering the direct attack made on the levy of Basic Tax at a uniform rate, based on Article 14 of the Constitution, the learned Chief Justice, at page 150 (of Ker LJ) : (at p. 557 of AIR) lays down the principles which are to be taken into account to find out whether a particular levy violates the provisions of Article 14 of the Constitution as follows :

'The guarantee of equal protection o laws must extend even to taxing statutes. It has not been contended otherwise. It does not mean that every person should be, taxed equally. But it does mean that if property of the same character has to Be taxed, the taxation must be by the same standard, so that the burden of taxation may fall equally on all persons holding that kind and extent of property. If the taxation, generally speaking, imposes a similar burden on every one with reference to that particular kind and extent of property, on the same basis of taxation, the law shall not be open to attack on the ground of inequality even though the result of the taxation may be that the total burden on different persons may be unequal. Hence if the legislature has classified persons or properties into different categories, which are subject to different rates of taxation with reference to income or property, such a classification would not be open to the attack of inequality on the ground that the total burden resulting from such a classification is unequal. Similarly, different kinds of property may be subjected to different rates of taxation but so long as there is a rational basis for the classification, Article 14 will not be in the way of such a classification resulting in unequal burdens on different classes of properties. But if the same class of property similarly situated is subject to an incidence of taxation, which results in inequality, the law may be struck down as creating an inequality amongst holders of the same kind of property.'

These observations of the learned Chief Justice will clearly show that if the same class of property similarly situated is subjected to incidence of taxation which results in inequality, the law can be struck down as creating inequality on holders of the same kind of property.

47. That the power to levy tax is not out-side the purview of any constitutional limitation is also established by the decision 'of the Supreme Court reported in Atiabari Tea Co. Ltd. v. State of Assam, AIR 1961 SC 232 where Mr. Justice Gajendragadkar delivering the judgment on behalf of the majority of the court observes :

'..... Though the power of levying tax is essential for the very existence of the Government its exercise must inevitably be controlled by the constitutional provisions made in that behalf. It cannot be said that the power of taxation per se is outside the purview of any constitutional limitations'.

48. The views expressed by the learned Chief Justice in the earlier decision of the Supreme Court in 1961 Ker LJ 143 : (AIR 1961 SC 552) referred to earlier, that taxing statutes are also to be tested in the light of the fundamental rights guaranteed under part III of the Constitution, have also been reiterated in Balaji v. I. T. Officer, AIR 1962 SC 123 where Mr. Justice Subba Rao has delivered the judgment on behalf of the Bench. At page 128 the learned Judge deals with the contention of the Additional Solicitor-General that a tax imposed by authority of law cannot be questioned on the ground that it infringes the provisions of Article 19 of the Constitution and the learned Judge further states that the court does not see any justification for such a contention in any of the Constitutional provisions.

48a. After referring to Articles 13 and 265, the learned Judge again states that a combined and plain reading of the said Articles makes it clear that a law which is inconsistent with any of the provisions of Part XIX is void and the learned Judge is also of the view that in order that the law can be considered to be valid, it must not only be one passed by the legislature in exercise of a power conferred on it but must also be one that does not infringe the fundamental rights declared by the Constitution.

49. The learned Judge then refers to an observation of the Supreme Court in an earlier decision to the effect that the law must satisfy two tests before it can be a valid law, namely (1) that the appropriate legislature has competency, to make the law and (2) that it does not take away or abridge any of the fundamental rights enumerated in Part JI of the Constitution. After laying down the two tests, the learned Judge adverts to Section 16(3)(a) of the Income-tax Act and observes that the said section must pass both the tests to be a valid law and if it violates any of the provisions of Article 19 it will be void to that extent. Then the learned Judge States :

'This view is in consonance with that expressed by this Court in (Petns. Nos. 13 to 24, 42 and 46 to 54 of 1958), D/.- 9-12-1960): AIR 1961 SC 552). There the petitioners impugned the constitutionality of the Travancore-Cochin Land Tax Act, XV of 1955, as amended by the Travancore Cochin Land Tax (Amendment) Act, X of 1957, and Sinha C. J. speaking for the Court held that the Act was void as infringing not only Article 14 of the Constitution but also Article 19(1)(f) thereof. The learned Chief Justice, after considering the relevant provisions of the Act and having regard to the unreasonable nature of the restrictions, came to the conclusion that the provisions of the Act were unconstitutional viewed from the angle of the provisions of Article 19(1)(f) of the Constitution.'

50. In this case, in the affidavits filed in support of these applications, the petitioners have stated that a major part of the forests in their possession consists of arid and rocky soil where no vegetation can grow. Even according to the State, the rate of 1 nP. for every 5 cents of land or part thereof will apply to the entire extent of the property in the possession of the petitioners. I have already stated that there is no attempt at classification. If that is so, inequality is writ large on Kerala Act IV of 1958, and the observations of the learned Chief Justice in 1961 Ker LJ 143 : (AIR 1961 SC 552) directly stand attracted to the levy in the cases, on hand. Therefore I have to conclude that the attack made upon, the levy of land cess in these cases based upon Article 14 of the Constitution has to be sustained.

51. The further attack that is made is the one based, upon Article 19(1)(f) of the Constitution inasmuch as Kerala Act 4 of 1958 places un-reasonable restrictions. Here again; the Supreme Court had to consider the attack made upon the enactment that was the subject of consideration, by the Supreme Court based on Article 19(1)(f). of the Constitution. It is the view of the Chief Justice again that :

'Ordinarily, a taxing statute lays down a regular machinery for making assessment of the tax proposed to be imposed by the statute. It lays down detailed procedure as to notice to the proposed assessee to make a return in respect of property proposed to be taxed, prescribes the authority and the procedure 'tor hearing any objections to the liability for taxation or as to the extent of the tax proposed to be levied, and finally, as to the right to challenge the regularity of assessment made, by recourse to proceedings in a higher Civil Court.'

The learned Chief Justice has taken note of the fact that in that case there were no provisions either for calling for objections or giving an opportunity to the parties concerned of filing their objections regarding the proposed assessment. Nor was a right given to the persons who are called upon to pay the tax in those cases, to challenge the orders of the revenue authorities by taking them before the appropriate appellate authority or challenging before the courts. All these were noted and the learned Chief Justice is of the view that having due regard to these aspects it has to be concluded that the whole thing, from beginning to end, is treated as of a purely administrative character completely ignoring the legal position that the assessment of tax on person or property is at least of a quasi judicial character. The position, in the cases before us, is almost exactly the same. Sections 79 to 86 to Madras Act 14 of 1920 provided for fixation of annual rent value,, landholders being required to furnish lists of lands and other particulars, Collector making an assessment and parties being given a right to challenge orders of assessment by taking up the matter in appeal before the Board of Revenue. But Section 4 of Act 4 of 1958 deleted old Sections 79 to 86 and the levy treated as of a purely administrative character.

As pointed out by the learned Chief Justice at page 152 (of Ker LJ) : (at p. 559 of AIR) :

'The Act thus proposes to impose a liability on landholders to pay a tax which is not to be levied on a judicial basis, because (1) the procedure to be adopted does not require a notice to be given to the proposed assessee; (2) there is-no procedure for rectification of mistakes committed by the Assessing Authority; (3) there is no procedure prescribed for obtaining the opinion of a superior Civil Court on questions of law as is generally found in all taxing statutes and (4) no duty is cast upon the Assessing Authority to act judicially in the matter of assessment proceedings. Nor is there any right of appeal provided to such assessees as may feel aggrieved by the order of assessment.'

Every one of the circumstances referred to in the above extract is present in the cases of levy before me also. Adopting again respectfully, the principles laid down by the Supreme Court regarding Article 19(1)(f), I have to come to the conclusion that in these cases, the attack that there has been a very serious infringement of the fundamental right to hold and enjoy property guaranteed to persons like the petitioners under Article 19(1)(f) Is well founded and on that ground also the provisions contained in Kerala Act 4 of 1958 have to be struck down.

52. Then the other question that has to be considered is regarding the validity of the power of exemption granted to the State Government, under Section 78 of the Act, as it now stands, after its amendment by Kerala Act 4 of 1958. Under Section 78, I have already pointed out that Government is given a power to exempt any land or class of lands from liability to pay land cess. Here, again, the attack that is made by the various petitioners is that a very unrestricted and arbitrary power has been conferred upon the State Government and the legislature has given no guidance nor has laid down any principles which are to be taken into account by the State Government, in considering the question of granting exemption from levy to any land or class of lands.

53. Here again it will be noted that the Supreme Court, in the decision referred to above, had to consider an analogous provision contained in the enactment before them, namely, Section 7 of the Travaocore-Cochin Land Tax Act, whereby similar unrestricted powers were given to the State Government, to exempt from liability to payment of Basic tax, any land or class of lands they think necessary.

54. The Supreme Court, after quoting an extract from Ram Krishna Dalmia v. S. R. Tendolkar, 1959 SCR 279 : (AIR 1958 SC 538) is of the view that the power given thereunder is very arbitrary and is not regulated by any principles nor has any guidance been furnished by the legislature and in consequence the learned Judges struck down the said provision as unconstitutional.

55. No doubt, the learned Advocate General referred me to the recent decision of the Supreme Court in P. J. Irani v. State of Madras, AIR 1961 SC 1731 wherein the learned Judges had to consider the legality of a power given to the State Government under Section 13 of the Madras Buildings (Lease and Rent) Control Act, 1949 (Madras Act 15 of 1949) to exempt any building or class of buildings from all or any provision of the Act. The Supreme Court, no doubt, has upheld the provisions relating to the grant of such power as valid, because their Lordships are of the view that the preamble to the Act has clearly indicated the policy and purpose of the Act and the power given under Section 13 could only be used in furtherance of the said policy and purpose. The learned Judges also held that if an exemption is granted on grounds which were not germane to the purpose for which power under Section 13 was granted, the order so granting exemption could be struck down as discretionary and violative of Article 14. In fact, in that decision though the constitutionality of Section 13 was upheld both by the Madras High Court and the Supreme Court, the actual order granting exemption was struck down by the High Court and that decision was approved by the Supreme Court also. If I may say so with respect, his Lordship Mr. Justice Rajagopala Iyengar, delivering the majority judgment of the Supreme Court, has exhaustively referred to the decisions bearing upon Article 14. But the point to be noted and as emphasised by Mr, Justice Rajagopala Iyenger is that the preamble and operative sections of the Act in question afforded usefuS guidance to the exercise of power by Government under Section 13.

56. But in the Case before me, no such indication is available either in the preamble or the sections of Kerala Act 4 of 1958 to which I have already referred. Therefore, on such a basis, the powers given under Section 78 of the enactment as it now stands cannot be sustained. Section 78 is analogous to Section 7 of the Travancore-Cochin, Act and the decision of the Supreme Court to 1961 Ker LJ 143 : (AIR 1961 SC 552) that there has been an unrestricted and unguided power given to the State Government in the matter of granting exemption applies and this ground of attack also sustained.

57. Therefore, it follows that the levy of land cess that is made on the basis of Kerala Act 4 of 1958, namely, the Madras District Boards (Amendment) Act, 1957, will have to be held in-valid. The Act itself, namely, Kerala Act 4 of 1958, has to be struck down as unconstitutional and void as being violative of Articles 14 and 19(1)(f). No doubt, there are two sections in the amending Act, Sections 5 and 6, but they are also really, enacted in consequence of the main provisions made in the earlier sections of the amending Act. The other sections, namely, Sections 2, 3 and 4, really are the operative sections of the enactment, which in my view, are violative of. Article 14 of the Constitution and also Article 19(1)(f) of the Constitution. No part of the said sections can be separated from the other, and one section cannot be separated from the other. Sections 5 and 6 are closely allied to and dependent on the other Sections 2, 3 and 4. If those sections are struck down, Sections 5 and 6 also will have to go. Therefore, the entire Act (viz). the Madras District Boards (Amendment) Act, 1957, being Kerala Act 4 of 1957, will have to be struck down as unconstitutional and void.

58. Now I have to consider the special: ground of attack that has been made by Mr. D. A. Krishna Warrier, learned counsel for the petitioner in O. P. No. 189 of 1961, and which ground has also been adopted by Mr. Mohammad Naha, learned counsel appearing for the petitioners in O. P. Nos. 241 of 1960 and 255 of 1961 and 351 of 1960. That ground of attack is that the levy in these cases is a levy of tax on forests and is not a levy on tax on lands, under Entry 49 of List II of the VIIth Schedule. According to the learned counsel, Entry 19 in List II deals with forests and there is no power given to the State Legislature to levy tax in respect of forests. Therefore, inasmuch as the levy in these cases is a levy of a tax on forest such a levy, can if at all be made only by Parliament. The State cannot certainly find support for such a levy on forests, in Entry 49, as that relates only to levy of tax on lands and buildings. No other counsel has taken up the position that if the levy is otherwise valid, the State cannot levy such a tax under Entry 49 of List II of VIIth Schedule.

59. I do not think I can accept this contention advanced by Mr. D. A. Krishna Warrier, learned counsel, in this respect. No doubt, the judgment of Mr. Justice Sarkar, rendered in the 'Tarvancore-Cochin Land Tax Act Case, 1961 Ker LJ 143 : (AIR 1961 SC 552) referred to earlier is a dissenting judgment. Though a specific plea was taken before the learned judges in that case that even the levy of basic tax is a levy, not on land as such, but on forest and therefore the State has no power to levy such a tax, the majority judgment, except taking note of that contention, does not decide that question. But Mr. Justice Sarkar, in considering this aspect, is of the view that it is not necessary to cut down the plain meaning of the word 'land' in entry 49, to give full effect to the word 'forest' in Entry 19. According to the learned Judge, the two entries, 49 and 19, deal with entirely different matters; and it is the further view of the learned Judge that under Entry 49 of List II, taxation on land, on which a forest stands, is permissible and legal. Inasmuch as the majority Judgment has not expressed any view one way or the other, and in view of the clear observations of Mr. Justice Sarkar though in the dissenting judgment referred to above, it follows that the contentions of the learned counsel based upon Entry 19 of List II of VIIth Schedule, have to be negatived, and the levy, if it is otherwise sustainable, can be sustained as a levy of tax on land, under Entry 49 of List II.

60. In O. P. No. 189 of 1960 Mr. Krishna Warrier, learned counsel, has raised a further contention that in view of Sections 11 and 12 of the 'Travancore Cochin Land Tax Act, 1955, namely, T. C. Act 15 of 1955, as amended and extended to Malabar area by Kerala Act 10 of 1957, no further levy by way of cess or tax can be made by the State Government and therefore, the levy of land cess under Madras Act XIV of 1920, as amended, is invalid, illegal and void.

61. Section 11 of the T. C. Act relates to the powers of the Government to levy irrigation or water cess and provides that 'nothing in this Act shall affect the power of the Government to levy any rate, or alter any existing rate, of irrigation or water cess on any land as they deem fit'. Section 12 of the T; C. Act again is to the effect :

'' Except irrigation or water cess referred to in Section 11, all cesses, whether charged on land or not, and customarily levied as public revenue due to the Government, are hereby abolished.'

It is really based upon those two sections, that Mr. Krishna Warrier, urges that the Government have no power to levy any further additional tax or cess on the properties in question.

62. I am not inclined to accept this contention of the learned counsel. The prohibition that is contained in Section 12 of the T. C. Act is clear, namely, that except irrigation or water cess referred to in Section 11, all cesses whether charged on land or not and customarily levied as public revenue due to government are abolished. In my view, the levy in this case, if otherwise legal, is a levy imposed by virtue of power conferred upon the State Government under Entry 49 of List II, and which has to be paid over to the District Board, concerned for being utilised for the purposes mentioned in Section 112 of the Madras Act referred to earlier. Such a levy cannot certainly be considered to be a cess customarily levied as a public revenue due to the Government. It is only such cess as is customarily levied as public revenue due to Government that is covered by Section 12. Such levy is, as is well known, land revenue, under Entry 45 of List II.

63. That expression 'public revenue due to the Government' occurring in Section 12 has got a very special significance; and as pointed out by the learned Advocate General, that levy is really to be found in the power vested in the State Government, under Entry 45 of List II of the VIIth Schedule of the Constitution. Therefore, I am not inclined to accept this contention of Mr. Krishna Warrior.

64. I may also refer to some special allegations made in the affidavit filed in support of this writ petition, O. P, No. 189 of 1960, wherein the petitioner gives the income that he actually derives from the property in question, and the amount of land cess levied on his lands. The petitioner points out that from the entire income, it is absolutely impossible for him to meet the land cess which has been levied and is sought to be collected from the petitioner under the provisions of the Madras District Boards Act. If the tax is to be paid, the petitioner states, that it can be only from his other income. This allegation has not been controverted by the State; but its contention already dealt with is that the income derived from a property has no relevancy. This contention of the State has already been negatived by me.

65. Now the nature of the actual relief that has to be granted, to each one of the petitioners will have to be considered.

66. In O. P. No. 948 of 1959 the demand made of the petitioner is only, as and by way of land cess, and for reasons mentioned above, it follows that the demand has to be quashed and the writ petition allowed. Parties will bear their own costs.

67. O. P. No. 958 of 1960. It will be seen that the State has already levied and collected land cess for Fuzlis 1368 and 1369 and the relief asked for is for quashnig those assessments and also for the issue of a writ of mandamus directing the State Government to refund of illegal tax collected from the petitioner. So far as claim for refund is concerned, the position is now clear in view of the decision of the Supreme Court reported in Sales-tax Officer v. Kanhaiya Lal, AIR 1959 SC 135 and adopted by this court in Aluminium Industries Ltd. v. The Agrl. Income Tax and Rural Sales-tax Officer, 1961 Ker LJ 1336 that in such circumstances a writ of mandamus may be issued to the State Government, to refund any tax which may have been illegally collected. Adopting respectfully the view expressed therein, in view of what I have stated earlier regarding the illegal nature of the levy, it follows that the orders of assessment of land cess for Fuzlis 1368 and 1369 will stand cancelled and there will also be a direction to the State Government, to refund the amounts that have been collected as and by way of land cess. Therefore, the writ petition is allowed and parties will bear their own costs.

68. In O. P. No. 188 of 1960 the demand tinder attack, no doubt, is a combined demand for both Basic tax and land cess. In view of what I have already mentioned, the notices, insofar as they relate to a demand for land cess alone will stand quashed and vacated and the writ petition is allowed to the extent indicated above. Parties will bear their own costs.

69. In O. P. No. 189 of 1960, the petitioner seeks the issue of a writ of prohibition restraining the State Government and its officers from enforcing the notice, which has been issued to the petitioner, asking the latter, to pay land cess for the period in question. In the view that I have already expressed, it follows that the demand for land cess is illegal and ultra vires and as such there will be a direction as prayed for in this writ petition. The parties will bear their costs.

70. In O. P. No. 241 of 1960 the petitioner seeks the issue of a writ of prohibition restraining the State Government and its officers from enforcing the notice, which has been issued to the petitioner, asking the latter to pay land cess for the period in question. In the view that I have already expressed, it follows that the demand for land cess is illegal and ultra vires and as such there will be a direction as prayed for, in this writ petition. The parties will bear their own costs.

71 In O. P. No. 265 of 1960 the petitioner prays for the issue of a writ of prohibition restraining the State Government from proceedings with the demand, already made under Ex. P-1 for payment of land cess. In the view that I have taken, it follows that the notice, Ex. P-1, cannot be sustained and there will be a writ of prohibition issued against the respondents in the manner asked for. The writ petition is allowed. Parties will bear their own costs.

72. O. P. Nos. 225 and 351 of 1960. It is seen that there has already been an attachment effected by the State Officials, in respect of the notice already issued, for payment of land cess for the years in questions. From what I have already stated, it follows, that the levy of land cess is illegal and ultra vires and therefore the attachment effected by the State officials is also considered illegal and ultra vires. The property is released from attachment and the State is prohibited from taking any action for the collection of the land cess as per demand. The writ petitions are allowed in the manner indicated above, and there will be no order as to costs.

73. In O. P. No. 457 of 1960, several notices have been issued calling upon the petitioner to pay land cess under the enactment already discussed. In view of what I have expressed, it follows that the State is not entitled to levy land cess and therefore, the notices insofar as they relate to the demand for payment of land cess, are cancelled. The writ petitions are allowed to the extent indicated above, and parties will bear their own costs.

74. In O. P. No. 509 of 1960, the demand for payment of land cess has been made and the petitioner seeks the issue of a Writ of prohibition restraining the State Government and its officials from enforcing such demand. In the view that I have taken on the question of land cess, it follows that there should be a direction as prayed for in this writ petition. The writ petition is allowed and the parties will bear their own costs.

75. In O. P. No. 595 of 1960 it is mentioned by the petitioner that a demand for the year 1957-58 has been made and an attachment has also been effected on 8-4-1960 for the period beginning from 1957-58 to 1959-60, for the sum of Es. 1014.27 nP. No doubt, the petitioner says it is not clear as to what is the nature of the payment that is sought to be made by the petitioner, whether by way of cess or Basic tax. But it is also stated in the affidavit that the third respondent to the application, has orally stated that the demand, in respect of which attachment has been effected, is for non-payment of land cess by the petitioner.

76. Though no counter-affidavit has been filed on behalf of the State in the said O. P., the learned Government Pleader quite fairly stated that the demand, for which the attachment has been made, and which is challenged relates to levy of land cess. In view of this statement, it follows that the petitioner is not liable to pay land cess as the same has been declared to be illegal and void. Therefore, it further follows that the attachment, stated to have been effected by the respondents, must also be vacated and a writ of prohibition will issue, as against the respondents restraining them from enforcing any demand for recovery of land cess. The writ petition is allowed to the extent indicated above. Parties will bear their own costs.

77. Once again, I have to state that in some of these writ petitions, the question of levy of Basic tax which is also found to be a part of the demand, has been raised. That question has not been directly put in issue in these proceedings and I have had no occasion to consider the attack regarding the collection and levy of Basic tax by the State Government. If the petitioners have got any contentions regarding those aspects, I make it very clear, that I have expressed no opinion one way or other regarding the attack against the levy of Basic tax sought to be recovered from any of these petitioners in these proceedings. This position I have to make clear because in some of these petitions there are some general allegations made that the levy of Basic tax is illegal. The new Act, Kerala Act XIII of 1961, has not been the subject of consideration by me in any of these writ petitions.


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