Gopalan Nambiyar, J.
1. This Writ Appeal and these writ petitions were heard together as they raise the question of vires of the Kerala Land Tax Act (Act 13/1901), hereinafter referred to as the Act, unless the context indicates otherwise. The validity of the demand for tax and the steps taken to recover the tax due under the Act have been challenged also on the merits.
2. The Act has a legislative history. It is not necessary to trace it earlier than to the provisions of the Travancore Cochin Land Tax Act 15/ 1955. (referred to where necessary as the 1955 Act) applicable in the Travancore-Cochin State. After the re-organisation of States and the formation of the Kerala State, the 1955 Act was made applicable from 1-9-1957 by Act 10/1957 to the Malabar area, newly included to form the Kerala State. A short summary of the main provisions of the said Act would be helpful. The preamble set out that it was necessary to provide for the levy of a low and uniform rate of basic tax on all lands in the State. Basic tax was defined as a tax imposed under the provisions of the Act. By Section 3, the arrangement made under the Act for the levy of basic tax was to be deemed to be a general revenue settlement. Section 4, the charging section, indicated that there will be charged and levied in respect of all lands in the State a uniform rate of tax called the basic tax. Section 5 laid down the rate of the tax as Rs. 2/- per acre. Section 6 enacted that any stipulation in any contract or agreement or lease or other transaction to pay the land revenue assessment of any land shall be construed as a stipulation for payment of the amount of basic tax as charged and levied under the Act. It is unnecessary to notice the remaining sections.
By Act 10/1957, Section 5-A was introduced which was as follows:
'Section 5-A, Provisional assessment of basic tax in the case of unsurveyed lands-- (1) It shall be competent for the Government to make a provisional assessment of the basic tax payable by a person in respect of the lands held by him and which have not been surveyed by the Government and upon such assessment such persons shall be liable to pay the amount covered in the provisional assessment.
(2) The Government after conduct-ins a survey of the lands referred to inSub-section (1) shall make a regular assessment of the basic tax payable in respect of such lands. After a regular assessment has been made, any amount paid towards the provisional assessment made under Sub-section (1) shall be deemed to have been paid towards the regular assessment and when the amount paid towards the provisional assessment exceeds the amount payable under the regular assessment, the excess shall be refunded to the person assessed.'
The 1955 Act was struck down by the Supreme Court in Kunnathat Thathunni Moopil Nair v. State of Kerala, AIR 1961 SC 552. The Supreme Court noticed that unlike other taxing statutes, the 1955 Act did not make any provision for the issue of notice to the assessee, nor any provision for submission of return. It did not make any provision for appeals. Whereas Section 5-A authorised a provisional assessment, not even the time-limit for making a regular assessment was indicated, beyond the indefinite future after completion of survey. Observed the Supreme Court;
'The Act could not have been cast in more general terms and the proceedings under the Act could not have been more summary. It has thus the merit of brevity as also of simplicity, derived from the fact that a tax is levied at a flat rate, irrespective of the quality of the land and consequently of its productive capacity. Under the Act, the charge has to be levied, whether or not any income has been derived from the land. The Legislature was so much in earnest about levying and realising the tax that it could not even wait for a regular survey of the lands to be assessed with a view to determining the extent and character of the land.' It was ruled that inequality was writ large on the 1955 Act and was inherent in the very provisions of the taxing section.
Dealing with the attack based on Article 19(1)(f), the absence of a machinery for making the assessment was stressed. It was observed:
'That the provisions aforesaid of the impugned Act are in their effect confiscatory is clear on their face. Taking the extreme case, the facts of which we have stated in the early part of this judgment, it can be illustrated that the provisions of the Act, without proposing to acquire the privately owned forests in the States of Kerala after satisfying the conditions laid down in Article 31 of the Constitution have the effect of eliminating the private owners through the machinery of the Act. X X X X
X X X X X
The legal consequences of his making a default in the payment of the aforesaid sum of money will be that the money will be realised by the coercive processes of law. One can easily imagine that the property may be sold at auction and may not fetch even the amount for the realisation of which it may be proposed to be sold at public auction. In the absence of a bidder forthcoming to bid for the offset amount the State ordinarily becomes the auction purchaser for the realisation of the outstanding taxes. It is clear, therefore, that apart from being discriminatory and imposing unreasonable restrictions on holding property, the Act is clearly confiscatory in character and effect. It is not even necessary to tear the veil, as was suggested in the course of the argument to arrive at the conclusion that the Act has that unconstitutional effect. For these reasons, as also for the reasons for which the provisions of Sections 4 and 7 have been declared to be unconstitutional, in view of the provisions of Article 14 of the Constitution, all these operative sections of the Act, namely 4, 5-A and 7, must be held to offend Article 19(1)(f) of the Constitution also.' (Underlining ours).
We have quoted the above passage from the majority judgment of the Supreme Court in extenso, as the precise grounds on which the Act was struck down by the Court is a matter of acute controversy before us. To that aspect of the matter, we shall presently revert, but for the present we shall resume the legislative history.
3. After the 1955 Act was struck down, the Legislature enacted the impugned Act 13/1961. Section 3 is the definition section. Section 4 enacts that the arrangement made by the Act for the levy of basic tax shall be deemed to be a general revenue settlement of the State. Section 5 is the charging section. Sub-section (2) of the section imposes a liability on the 'land-holder', defined by Section 3. to pay the basic tax. There is a proviso to the sub-section that where any land is in the possession of a tenant or other person not being the landholder and the income obtained by the landholder from that land is less than the basic tax payable thereon, the excess of the basic tax over such income shall be paid by the tenant or other person in possession. Clause (3) of Section 5 provides that the basic tax shall be deemed to be public revenue and shall be recoverable under the provisions of the Revenue Recovery Act.
Section 6(1) provides that the basic tax shall, subject to the provisions of Section 7, be charged at the rate ofRs. 2/- per acre per annum. Section 6 (2) enacts that where the landholder or other person liable, proves to the satisfaction of the 'prescribed authority' (defined by Section 3) that the gross-income from any land was less than Rs. 10/- per acre per annum the basic tax payable shall be at a rate fixed by that authority calculated at one-fifth of the gross-income of such land. There is a provision to the sub-section that pending fixation of the rate of basic tax under the sub-section, the landholder shall be liable to pay the tax at the normal statutory rate, and on fixation be entitled to a refund of the excess paid or collected, if any. We are leaving out the explanations to the sub-section. Sub-section (3) of the Section provided that an application for fixation of basic tax under Sub-section (2) 'shall be in the form specified by the Government' by notification in the gazette and shall be made to the 'prescribed authority' within four months from the date of publication of the Act in the Gazette. The 'prescribed authority1 was to pass orders as far as possible within six months from the date of first appearance of the applicant. The order shall be communicated to the landholder concerned and any other person liable to pay the tax (Clauses (4) and (5)). Section 7 dealt with unsurveyed lands. Under Sub-section (1) of the Section, the prescribed authority was to call on the landholder or other person concerned, to furnish particulars relating to the lands. Sub-section (2) authorises provisional assessment on the basis of the return and Sub-section (3), such an assessment to the best of judgment. There is provision for affording the landholder or any other person concerned on opportunity to show cause. Sub-section (4) requires the order under Sub-section (3) to be communicated; Sub-section (5) authorises the recovery of the tax provisionally assessed, in the same manner as basic tax. Sub-section (6) requires the Government, as soon as possible, and in any case before the expiry of 5 years from the publication of the Act, to cause a survey to be conducted of unsurveyed lands, and enjoins the prescribed authority to make a regular assessment of basic tax in respect of such lands.
The provisions of Section 6 are to apply to such regular assessment with the modification that the time limit of four months fixed under Sub-section (2) of the Section shall be reckoned from the date of completion of the survey. There is provision for adjustment of the amounts collected under provisional assessment against the amount of tax finally assessed and refund of the balance if any. Section 9 provided for appeals against the orders of the pre-scribed authority under Sub-section (2,) of Section 6 or Sub-section (3) of S. 7. No appeal would lie unless the tax was paid. Section 10 provides for a reference to the District Court on questions of law, and Section 11 gives power to the Board of Revenue to call for and examine the record of any proceeding pending before or disposed of by the appellate authority and revise the same. Section 12 provides that any stipulation in any contract or agreement to pay land revenue assessed on any land, shall be considered as a stipulation to pay the amount of basic tax levied under the Act.
Section 16 empowers the Government to appoint such officers as they deem necessary for the purpose of this Act, by notification in the gazette. Section 17 bars proceedings against the Government in respect of anything done, or any order passed under the Act. Section 18 contains a provision for rectification of mistakes within a period of four years from the date of the order, by the prescribed authority, the appellate authority or the Revisional Authority, Section perhaps also Article is the rule making section.
4. The provisions of the Act above summarised were challenged again in this Court, and the Act was struck down in Padmanabha Ravi Varma Raja v. Deputy Tahsildar, Chittoor, 1963 Ker LT 15 = (AIR 1963 Ker 155). One of the infirmities of the Act, pointed out by the learned Judge was that no form had been specified by Government by notification as required by Section 6(3) of the Act and that therefore the petitioners before the court could not exercise the right of making an application under Section 6(2) of the Act, to get the benefit of a concessional assessment. (Vide paragraph 79). The learned Judge noted In paragraph 126 the attack made by the petitioners that there was no machinery for apportioning liability for the tax as between the landholder and the tenant under the proviso to Sub-section (2) of S. 5; and observed in paragraph 147 that there is no machinery provided under Sub-section (1) of Section 6 for raising any objections either in regard to incidence of liability or its extent, and that the procedure for assessment was entirely left to the executive authority. Paragraph 150 of the judgment pointed out that although the authority to whom applications are to be filed under Sub-section (3) of Section 6 was indicated for the first time only in Rule 5 of the Rules published on 11th July 1961, the form for making the application was not prescribed even then.
In conclusion the learned Judge declared the provisions of Sections 5, 6 and 7 which are the material provisions of the Act ultra vires and unconstitutional as being violative of Articles 14 and 19(1)(f) of the Constitution. As without these provisions the Act cannot stand, and the Rules by themselves cannot have any existence without the Act, the learned Judge struck down both the Act and the Rules. The decision was rendered on 11-10-1962.
5. Then came the 17th Amendment of the Constitution and the Act was included as Item 38 in the 9th Schedule on 20-6-1964. Subsequently certain amendments have been made to the Act to which we shall, in due course, refer.
6. The validity of the Act was again challenged in a series of writ petitions filed, among others, by the persons now before us. The Division Bench of this Court which dealt with the matter considered it unnecessary to deal with all the questions raised, because, the cases could be disposed of on the ground of non-compliance with two sections of the Act. It directed that the authority to function for the purpose of Section 6, will be prescribed afresh, and the form in which the application should be made for the purpose of Section 6 would also be prescribed under the Act. (It was brought to the notice of the Division Bench by the Advocate-General that a form had been prescribed for the application under Section 6(2) of the Act, and that the prescribed authority had been notified under the provisions of Ordinance 2 of 1961 which preceded the Act. We find it was just the other way). The Division Bench also felt that in the circumstances, it was necessary that the time limit for making the application fixed by Section 6(3) should be altered so as to give the petitioners atleast four months' time from the date of prescription of the authority and the form. The Bench was assured by the learned Advocate-General that the question would be examined and necessary amendments, if any, effected. It directed that till the question of the liabilities of the petitioners the income from whose properties did not exceed Rs. 10/- a year had been determined after the prescription of the authority and the form for making the application, no attempt would be made to collect the tax under the provisions of the Act. In respect of un-surveyed lands the Bench directed that the provisional orders of assessment will be communicated to the petitioners and only thereafter, the Act would be applied to them. The decision of the Division Bench is reported as Mohammed Kunju v. Tahsildar, Hosdrug, 1966 Ker LT 1022.
7. Although the decision of the Division Bench was rendered on 7th July1966, the 'prescribed authority' was notified only by a notification dated 28th August 1968 published in the Kerala Gazette dated 24-9-1968. By another notification, -- or rather as part of the same notification -- of the same date. published also in the same gazette, the form for application for fixation of rate of basic tax, under Section 6(2) was also prescribed. Certain amendments were also carried out to the Act, presumably in pursuance of the above Division Bench ruling. The time-limit of four months from the date of the publication of the Act, under Section 6(3) was altered to four months from the date of the publication of the notification, by the amending Act 22 of 1968 with effect from 1-4-1968. By the same Act other amendments were also made in Section 6. The rate of basic tax was fixed as Rs. 4.94 per hectare in the place of Rs. 2/- per acre. A proviso was newly introduced in Section 5(1) exempting altogether from payment of basic tax with effect from 1-4-1968, the land of the landholder if the aggregate extent of land held by him is less than 0-810 hectare. By an amendment to Section 7(4) a provision was made that a provisional order of assessment under Sub-section (2) shall also be communicated to the landholder. In Sub-section (6) of Section 7 the time-limit for conducting the survey of unsurveyed lands, was fixed as before 31-12-1968, in the place of the original provision of within five years from the date of the publication of the Act. (It now stands extended upto 31-12-1970). By the Amending Act 17 of 1969 a provision was made for submission of a return in cases where the extent of lands is below the limit indicated in the newly added proviso to section 5(1).
8. The Act with the amendments noticed above is attacked before us. The grounds of challenge are, that the Act is a colourable piece of legislation, is confiscatory in character, and violative of Article 265 of the Constitution; and that these grounds of attack are available despite its inclusion in the IX Schedule and the protection afforded by Article 31-B of the Constitution; and that the demand and recovery of basic tax from some, atleast of these petitioners, are precluded by reason of the final and concluded order of mandamus prohibiting such demand and collection issued on the earlier occasion in the decision reported in 1963 Ker LT 15 = (AIR 1963 Ker 155).
9. We entertain no doubt that the Act is open to attack on the ground that it is a colourable piece of legislation and violates Article 265, despite its entrenchment in the IX Schedule and the cloak of protection afforded by Article 31-B. No argument that the Act is not covered by Entry 49 of List II of the Seventh Schedule of the Constitution was advanced before us. The argument as to colourable legislation was on the ground that the Act is confiscatory in character and that this was a separate and independent ground to condemn the Act, quite apart from its violation of Articles 14 and 19. Considerable controversy centred round the exact import of the passage from the judgment of the Supreme Court in Thathunni Moopil Nair's case, AIR 1961 SC 552, which we have extracted earlier, and the relevant portion of which we have stressed. Support was sought to be gained for the petitioners contention, from the explanation of Thathunni Moopil Nair's case, AIR 1961 SC 552, by the Supreme Court itself in the later case of Raja Gazannath Baksh v. State of Uttar Pradesh, AIR 1961 SC 1563 paras 21 and 22. It was claimed that the decisions of the Supreme Court in Raj Ramakrishna v. State of Bihar, AIR 1963 SC 1667 para 12; in State of Andhra Pradesh v. Nallaraja Reddy, AIR 1967 SC 1458 paras. 21 and 22; in State of Kerala v. Haji K. Kutty Naha, AIR 1969 SC 378 para 3, in Assistant Commissioner, Urban Land Tax, Madras v. Buckingham and Carnatic Co. Ltd., AIR 1970 SC 169 para 11 and again in the recent decision regarding the validity of the Kerala Plantation Additional Tax Act, 1970-1 SC WR 219 at p. 236 = (AIR 1970 SC 1133 at p. 1142) have explained the decision in Thathunni Moopil Nair's case, AIR 1961 SC 552 on the basis that the Act was confiscatory.
10. Giving the matter our careful attention we feel that when the Supreme Court in Thathunni Moopil Nair's case, AIR 1961 SC 552 described the 1955 Act as being confiscatory in character, and explained the decision on the same basis in subsequent cases, it did not formulate the confiscatory nature of the Act as an independent ground for invalidation apart from the violation of Articles 14, 19 and 31 of the Constitution. We rather feel that the confiscatory nature of the Act sprang from, and was referable to, one or more of these Articles of the Constitution. At page 558 of AIR Report in Thathunni Moopil Nair's case, AIR 1961 SC 552 the attack made by the petitioners is noticed as proceeding on the ground that the true character and effect of the Act was not to levy a tax but to expropriate the private owners of forests without payment of any compensation whatsoever, and that the whole Act was meant with a view to confiscate private property, there being no question of any compensation being paid to those who may be expropriated as a result of the working of the Act. The argument seems to us to sound in the realms of Articles 19 and 31.
The concluding sentence of the very passage in paragraph 10 of the decision in Thathunni Moopil Nair's case, AIR 1961 SC 552 (which we have extracted in para. 2 of this judgment) stated that the operative sections of the Act must be held to offend Articles 14 and 19(1)(f) of the Constitution, from which we gather that the confiscatory character was also referable to these Articles. We might, for this purpose, refer to the dissenting judgment of Sarkar, J. The learned Judge in para. 30 noticed the argument based on Article 19, and in para 32, the argument based on the contravention of Article 31(1) and (2), and rejected both. In para 33, the learned Judge noticed the argument that the Act is a colourable piece of legislation, in effect intended to expropriate property. This again was rejected on the ground that there was no want of legislative competence, and therefore no question of colourable legislation; and that the tax imposed by the Act was not excessive and the Act was not expropriatory. We thus feel that the decision in Thathunni Moopil Nair's case, AIR 1961 SC 552 itself affords sufficient indication as to the reasons for describing the 1955 Act as confiscatory. In Balaji v. The Income-tax Officer, AIR 1962 SC 123. Thathunni Moopil Nair's case, AIR 1961 SC 552 was referred to as having struck down the 1955 Act as violative only of Articles 14 and 19 of the Constitution.
11. We are of the opinion that the provisions of a taxing statute can be referred to as confiscatory or expropriatory only if it offends Articles 19(1)(f) or Article 31(1) and perhaps also Article 14. Kochunni's case, AIR 1960 SC 1080 affords an instance of an Act the Madras Marumakkathayam Removal of Doubts Act 32/1955 having been condemned as expropriatory as it violated Article 19(1)(f). The Court expressed itself thus:
'The impugned Act is only a legislative device to take the property of one and vest it in another without compensation, and, therefore, on its face stamped with un-reasonableness. In short, the impugned Act is expropriatory in character and is directly hit by Article 19(1)(f) and is not saved by Clause (5) of Article 19.' The opinion of certain well known commentators on the Constitution of India also point to the same conclusion. (See Seervai's Constitutional Law, page 270, paragraph 11.97; See also Basu's Constitution of India page 746 of Vol. I of the 1965 Edn. We are not citing these living authors as authorities, but only noting their opinion).
In Chaota Rai v. Union of India, AIR 1962 SC 1006, the Supreme Court noticedsome American decisions which held the provisions of certain taxing statutes as arbitrary and capricious and therefore to amount to confiscation. It proceeded to observe that the course of even the American decisions on the point was not uniform, and there were undoubtedly decisions holding the other way. But what is material to notice is that in America, the unconstitutionality of a taxing statute on the ground of its severity or harshness is tested on the 'vague' contours of the 5th Amendment'. Rottschaeffer in his treatise on Constitutional Law (p. 625) states that it would violate the due process clause, if the form of taxation were a mere disguise under which the State exercised its power of confiscating property. (See also Willis; Constitutional Law p. 598).
12. We may finally notice that although the Indian Courts have not so far run the whole hog of Chief Justice Manshall's dictum that 'the power to tax includes the power to destory', it has been ruled by our Supreme Court that a taxing statute is not open to attack on the ground that its operation is harsh and excessive. In Hari Krishna Bhargav v. Union of India, AIR 1966 SC 619 it was observed:
'A taxing statute may accordingly be open to challenge on the ground that it is expropriatory, or that the statute prescribes no procedure or machinery for assessing tax, but it is not open to challenge merely on the ground that the tax is harsh or excessive.'
It was also ruled in AIR 1962 SC 1563, that:
'Article 31(2) would be inapplicable to a taxing statute because the taxing statute does not purport to acquire or requisition any property. It may be that the imposition of the tax levied by the statute is excessive and may ultimately lead to the loss of the assessee's property, but even so, it cannot be said that by virtue of the Act, the property has been acquired or requisitioned. Article 31(2-A) clearly brings out the limits of the application of Article 31(2). Similarly, Article 31(5)(b)(i) specifically provides that nothing in Clause (2) shall affect the provisions of any law which the State may hereafter make for the purpose of imposing or levying any tax or penalty. Thus, it is clear that the provisions ol Article 31(2) cannot be invoked in impeaching the validity of a taxing statute and so, we come back to the position that a taxing law which does not offend against any of the fundamental rights guaranteed by Part III would justify the imposition of a tax and would meet the requirements of Article 31(1). Therefore, in our opinion the challenge to the validity of the Act on the ground that it contravenes Article 31(2) is not well founded'.
In view of these considerations, we are unable to subscribe to the proposition that the Act can be condemned as con-fiscatory on account of the harshness or severity of its provisions, or that these afford a ground to strike down the Act as confiscatory, quite apart from its violation of Articles 14, 19 and 31(1).
13. Except feebly, the argument was not attempted before us that the Act deals with acquisition and requisition of property. In view of the pronouncement in Jagannath Baksh's case, AIR 1962 SC 1563, we should think that the argument is not open. And even if the Act be viewed as relating to acquisition and requisition of property under Entry 42 of List III, its entrenchment in the IX Schedule and Article 31-B afford full protection against any attack based on Part III of the Constitution.
14. Assuming that the confiscatory nature of the Act is available as an independent ground of attack, we are further of the opinion that on the provisions of the Act as they stand at present, the Act cannot, in the main, be condemned as confiscatory. The provisions now introduced by the amendments to which we have referred, and those incorporated since the Supreme Court's pronouncement show; (1) that there is no levy of basic tax at all on and from 1-4-1968, if the aggregate extent of lands held by a landholder is less than 0.810 hectares (2) that on proof that the gross-income from the land was less than five times the basic tax payable, the latter is to be charged only at the rate of one-fifth of the gross income from such lands, which, logically should yield the result that if the income from any land was nil, the basic tax payable thereon should also be nil; (3) that remedies fay way of appeal, reference to District Court, revision by the Board of Revenue, and rectification of mistake, are available, which, to a great extent soften the rigour of the provisions of the Act noticed by the Supreme Court in Thathunni Moopil Nair's case, AIR 1961 SC 552; (4) that if the income obtained by the landholder from any land in the possession of a tenant is less than the basic tax payable on it, the excess of the tax over the income is to be paid by the tenant or other person in possession, under the proviso to Section 5(2). From the fact that if the basic tax is kept in arrear the land is liable to be sold in public auction under the provisions of the Revenue Recovery Act, and to be purchased ultimately by the Government if there are no bidders, we are not prepared to infer that the Act is confiscatory in nature or that the real object and intent of theAct is not to levy a tax but to confiscate property. The preamble to the Act and the provisions of the charging section, clearly manifest the legislative intent; and on a conspectus of its provisions, we are not satisfied that confiscation, and not the raising of revenues for the purpose of the State, was the real obiect of the statute. We therefore repel the ground of attack that the Act is confiscatory in nature.
15. At the same time, we would like to point out what appears to us to be certain glaring anomalies and inconsistencies in the provisions of the Act which seem to call for urgent notice. Under the provisions of the Act as they now stand, even if a landholder derives only an income of Rs. 2/- per acre (or 4.54 rupees per hectare from his tenanted lands he is still liable to pay the entire income as basic tax, leaving nothing for himself. Again, an important change in the incidence of liability to pay tax, brought about by the provisions of the Travancore-Cochin Kanam Tenancy Act 1955, has not been taken note of at all by the Act. Section 3 of the Kanam Tenancy Act declares that the jenmi is not to have any right or interest in any land except the right to receive the 'jenmi karam', thereof, and that the kanam tenant shall be deemed to be the owner of the land subject only to payment of 'jenmikaram'. Under Section 16 (5) of this Act notwithstanding any usage or contract to the contrary the kanam tenant shall be liable to pay all Government and local taxes in respect of the land comprised in such holdings, whether existing at the time of the demise, or imposed afterwards. In view of this categoric provision in the Kanam Tenancy Act we see little justification for imposing liability to pay basic tax on the 'landholder', in cases where the Kanam Tenancy Act has application. The provisions of the latter Act were apparently lost sight of. And so too, were the provisions of several Acts passed within the past two decades and more prohibiting realisation of arrears of rent through courts and also granting relief to the tenants by providing for discharge of the arrears in whole or in part, and by relieving their agricultural indebtedness.
The legislative reform has now turned full circle and divested the landholders of their title to the lands and vested the same in the Government for transference to the tenants. Still, to fasten liability on the landholder on the basis of registry of lands, which once were his, appears inequitable. Sections 6(5) and 7(4) require communication of orders to other person liable to pay the basic tax, or the provisional assessment,but there is apparently no machinery for notice to those 'other persons' of the proceedings which result in the orders communicated. Regardless of these, the. impugned Act has been installed in the IX Schedule and projected back in its operation to 1956 and 1957 in the different areas of the State with all the resultant rigours of the coercive processes of the Revenue Recovery Act for recovery of arrears. Even if the constitutionality of the measure be not open to attack, its reasonableness is certainly open to review at Governmental level.
16. It was argued that Article 31-B and the IX Schedule of the Constitution were really intended to protect legislations for Agrarian Reforms and not a fiscal statute such as the impugned Act. The contention that Article 31-B is to be controlled by the language of Article 31-A has been effectively answered by the Supreme Court as early as in the State of Bihar v. Sir Kameshar Singh, AIR 1952 SC 252, Sastri, C. J. observed:
'The opening words of Article 31-B are only intended to make clear that Article 31-A should not be restricted in its application by reason of anything contained in Article 31-B and are in no way calculated to restrict the application of the latter article or of the enactments referred to therein to acquisition of 'Estates'. The decision cited affords no useful analogy.' (Para 23 of the A. I. R. Report)
And Mahajan, J., added:
'Article 31-B specifically validates certain Acts mentioned in the Schedule despite the provisions of Article 31-A and is not illustrative of Article 31-A but stands independent of it'. (Para 159 of the A. I. R. Report). In Jeeieebhoy's case, AIR 1965 SC 1096, it was observed: 'The words 'without prejudice to the generality of the provisions', indicate that the Acts and regulations specified in the Ninth Schedule would have the immunity even if they did not attract Article 31-A of the Constitution, if every Act in the Ninth Schedule would be covered by Article 31-A, this Article would become redundant. Indeed, some of the Acts mentioned therein, namely, Items 14 to 20 and many other Acts added to the Ninth Schedule, do not appear to relate to estates as denned in Article 31-A(2) of the Constitution. We therefore, hold that Article 31-B is not governed by Article 31-A and that Article 31-B Is a constitutional device to place 'he specified statutes beyond any attack on the ground that they infringe Part III of the Constitution.'
The correctness of this ruling with respect to Article 31(2) has been somewhat shaken by the later pronouncement in the State of Gujarat v. Santhilal Manual Das, AIR 1969 SC 634. But its authority on the inter-relationship of Articles 31-A and 31-B has in no way been affected.
17. The further argument that even if the Act is included in the IX Schedule it cannot have operation in respect of the period antecedent to its inclusion, appears to us to be of no sub-, stance. On its inclusion in the IXj Schedule, Article 31-B gives vitality and power to the Act from the date of its enactment. On the strength of its own provision in Section 1 then, it is projected back in its application to the different areas of this State, to the dates mentioned in Clauses (i) and (ii) of Sub-section (3) of Section 1 of the Act. We see nothing to deny the Act this retrospective effect.
18. We shall now proceed to consider the next main ground of attack, namely that the Act offends Article 265 of the Constitution. The argument covered a wide range. Article 265 enacts that no tax shall be levied or collected save by authority of law. It was contended by referring to the well-known case of Whitney v. Commissioners of Inland Revenue, 1926 AC 37 that there were three stages in the imposition of tax, namely levy, assessment and collection and that unless the taxing statute contains the necessary provisions and the machinery to effectuate the three stages, it cannot be regarded as 'law' within the meaning of Article 265. The argument was elaborated in considerable detail by demonstrating before us that the Act is unworkable, that it provides for no assessing authority or order of assessment or even notice of demand, and that the provisions of the Act are vague and arbitrary and not capable of precise application. The absence of any provision for filing a return showing the extent and particulars of land for which the person is liable to satisfy the tax and the measure of his liability, or any machinery for investigating these, and for apportioning, where necessary, the tax between the landlord and the tenant, and generally, the very summary nature of the provisions made in the Act were all stressed before us. While Section 5(2) lays the liability for the tax on the 'landholder', defined primarily by Section 3(3) as the 'registered holder', the proviso thereto seems to shift the liability in certain cases, and to a certain extent, to the tenant. Yet the Act makes no provision for investigation and apportionment of liability between the two. As to who is a 'registered holder' is left to be inferred from the resourses of the authorities, or according to settled and understood notions of the term.
It was contended that the Rules themselves had been struck down irt 1963 Ker LT 15 = (AIR 1963 Ker 155) and had not been incorporated in the IX Schedule, nor protected by Article 31-B, so that even if the Act be saved. It was incapable of application and enforcement without the aid of the rules, which had not been validated. It was contended again that the definition of landholder primarily as: 'the registered holder for the time being of any land' is vague and unworkable, that there was no way of identifying the registry of land in the Malabar area, and if there was, any attempt to identify the same with reference to the land revenue accounts and registers prepared at the time of the last settlement in Malabar under the provisions of Madras Regulation 26 of 1802 and the Malabar Land Registration Act 1895 (applicable to that area) was quite unwarranted and productive of immense mischief. These were illustrated by reference to the demand made, in some of these Writ Petitions before us, (O. P. Nos. 2181, 2957, 3257 and 2809 of 1969), where, on the basis of the registry of land in the name of a deceased karnavan of the affluent Vengayil tarwad, a demand for over Rs. 4 lakhs has been raised against divided members after the death of that karnavan and fragmentation of the estate by partition. Neither the Patta Number nor particulars of the lands have been specified.
It was stressed that even after the pronouncement of the Division Bench cf this Court on 7-7-1966 in 1966 Ker LT 1022, it took more than one year for the State to notify the 'prescribed authority' and the form for making the application under Section 6(2) of the Act, and the way in which these were notified in the Gazette was so surreptitious as to elude attention. (The Gazette notification under 'I' sets down the form prescribed for making the application, and below that, under 'II' notifies the 'prescribed authority' for the purpose of Section 6(2). The former occupies so much of the space covered by the two notifications, that, to the superficial eye, it may be difficult to discern two separate and independent notifications -- See the notification filed by the Government in W. A. 654/69). For the State, it was contended that the vagueness, the arbitrariness and the unworkability of the provisions of the Act, if established, would only take us to the regions of Articles 14 and 19 of the Constitution, and that any attack based on these has been foreclosed by the inclusion of the Act in the IX Schedule and by Article 31-B.
It was contended that in our country, at any rate, an Act cannot be struck down or declared illegal on the ground of vagueness, incompleteness or unworkability, or inartistic drafting. Our attention was called to the recent pronouncement of the Supreme Court in Municipal Committee, Amritsar v. State of Punjab, AIR 1969 SC 1100 where it was observed that the rule that an Act of a competent Legislature can be ''struck down' by the courts on the ground of vagueness is alien to the Indian Constitutional system.
19.. We do not understand the decision of the House of Lords in 1926 AC 37 as authority for the proposition that unless a taxing statute provides for the three stages therein enunciated and elaborates the machinery for each of them, it is not to be regarded as a 'law' at all for purposes of Article 265. The Act in question does provide for a levy of the tax by Section 5. As the same (subject to insignificant exceptions) is to be at a flat rate of Rs. 4.94 paise per hectare, computation of the tax should be possible by a process of simple arithmetical calculation, and does not call for the making of an order of assessment, as in most taxing statutes, where the assessment depends upon variable factors such as income, turnover, etc. The absence of any provision for filing a return, the issuing an order of assessment or a demand notice, or the affording of any opportunity to dispute liability either with respect to the extent of the land held or the incidence and measure of liability, all seems to take us to the regions of Article 14 or 19(5) of the Constitution, which are foreclosed by reason of Article 31-B.
Collection of the tax is provided for by Section 5(3) which attracts the provisions of the Revenue Recovery Act. So that, even if the three stages contemplated in Whitne's case, 1926 AC 37 have to be delineated in every taxing statute, we should think that two of them have been indicated (levy and collection), and the third, (assessment) has been justifiably omitted. Striking down a law for vagueness or indefinitness or incompleteness, as has been pointed out by the Supreme Court in the decision already referred to, is alien to our system oi jurisprudence. And while we are not to be understood as saying that a one-sentence enactment without more, that:
'There shall be charged a basic tax on all lands in this State, of whatever description and held under whatever tenure, at the rate of 4.94 paise per hectare payable by every landholder' shall pass muster as 'law' for the purpose of Article 265 of the Constitution, we are satisfied that in the instant case, the provisions of the Act are not so exiguous or obscure as to be regarded as no 'law' at all.
20. We are however satisfied that on one short ground the levy and thecollection of the basic tax have to be declared illegal. Section 5 of the Act, the charging section imposes liability to pay the basic tax of the 'landholder' of the lands. It does not specify the authority by whom the tax is to be charged. Sub-section (3) of the section enacts that Basic Tax shall be deemed to be public revenue within the meaning of the Revenue Recovery Act and shall be recoverable under the Act. Limiting the scope of the fiction to the purpose of the enactment, we do not think that this sub-section was meant to do anything more than to attract the coercive process sanctioned by the Revenue Recovery Act. This inference is only strengthened by the provisions of Sub-section (2) of Section 6 which empowers the 'prescribed authority', in the case contemplated, to assess the basic tax at a concessional rate. The 'prescribed authority' by definition in Section 3(7), is to be appointed by the Government by notification in the Gazette. It is a clumsy state of affairs to have a statutory authority to assess at below the normal statutory limit in certain cases, but none at all to do the assessment at the normal statutory rate in disputed cases. No less clumsy are the provisions in Section 9 providing for an appeal against the concessional assessments under Section 6(2) and the provisional assessment under Section 7(3), but none at all against the normal statutory rate of assessment under Section 5, which, under the Act is to be done without any opportunity being afforded to the landholder to satisfy the authorities as to the particulars of the lands held, or the extent and measure of his liability. But so long as the authority to levy the tax is not indicated the mere delineation of an authority for collection or recovery would be of no avail. For, Article 265 enjoins that no tax shall be levied or collected save by authority of law.
In Rayalaseema Corporation's case, AIR 1959 Mad 382 it was held that an unauthorised or incompetent levy of sales-tax on works contracts by a State Legislature, which had no authority to do so can be challenged under Article 265, even at the stage of recovery. The decision was affirmed by the Supreme Court, though there was no discussion on this aspect (See (1966) 17 STC 505 (SC)). In these cases there is no authority to assess. Section 5(2) nowhere uses the words 'prescribed authority'. The same occurs in Section 6(2), and some others, but not in Section 5, although, the definition in Section 3(7) of 'prescribed authority' would indicate it as authority to perform functions under the Act. It is therefore impossible, without legislative sanction, to attribute to the 'prescribed authority' under Section 6. anypower to levy the tax charged by Section 5. We may also note that while, by Section 3(6), the expression 'prescribed' has been defined to mean 'prescribed by Rules, under the Act', Rule 5 of the Rules prescribes the Tahsildar as authority only for the purpose of Sub-section (2) of Section 6.
21. The argument that in some at least of the cases now before us there has been a final and concluded order of mandamus restraining levy and collection of basic tax, in the cases heard and disposed of by the judgment reported in 1963 Ker LT 15 = (AIR 1963 Ker 155), does not appeal to us. It is unnecessary to specify the cases in which this argument is available. The short answer to the argument is, that the attack made on the prior occasion was against the Act before it was enshrined in the IX Schedule and protected by Article 31-B; to leave out of account, the amendments since then. We have no hesitation in repelling this contention.
22. In the result, we hold that the demand, levy and collection of basic tax from the petitioners in these cases and from the appellant in the Writ Appeal before us, are unauthorised and illegal, as no authority has been specified by Section 5 of the Act to levy the tax. The steps taken to demand or recover basic tax in these cases will all stand quashed. In O. P. No. 5128/68 no demand of tax and no steps for recovery have been proved. In view of the declaration made that levy and collection without specifying the authority under Section 5 is illegal, no further relief is called for in this O. P. W. A. No. 654/ 1969 and O. P. No. 2765/1969 from which it arises and all the other remaining writ petitions will stand allowed as above. The State will pay the costs of the appellant in the writ appeal, and of the petitioners in the other writ petitions.
23. Before we part with these cases we wish to impress on the Government the necessity to review the provisions of the Act, and, if necessary even to frame a fresh set of Rules thereunder, rather than to rest content with the entrenchment of the Act in IX Schedule and protection afforded by Article 31-B of the Constitution. The provisions of the 1955 Act were roundly condemned by the Supreme Court in Thathunni Moopil Nair's case, AIR 1961 SC 552; and those of the present Act itself, were condemned by a learned Judge of this Court in Padmanabha Ravi Varma Raja's case, 1963 Ker LT 15 = (AIR 1963 Ker 155). The infirmities in the working of the Act were pointed out in Mohammed Kunhi's case, 1966 Ker LT 1022. It is regrettable to find that in spite of these, and despite the few amendments madeto the provisions of the Act, the Act still leaves much to be desired. The way in which the provisions of the Act have been administered as disclosed by the facts of some of these cases, only serves to strengthen that impression. In more than one of the cases now before us, the Government Pleader had to very frankly state that he could not, on the merits, support the action for the demand or the recovery of the tax, and to assure us that fresh steps would be taken, quite irrespective of our decision, on the validity of the Act.
We have already called attention to the facts in the four writ petitions, relating to the members of the Vengayil tarwad (O. Ps. 2181, 2957, 3257 and 2809 of 1969). In O. P. No. 2013/1969 again, the notice issued does not specify even the patta number or due particulars of the lands in respect of which the petitioner was proceeded against. The demand is for over Rs. 62,000/-. In O. P. 2418/1969 Exts. P1 and P2 notices are on the same pattern, with the addition that not even the amount of basic tax has been specified. The facts in O. P. No. 1909/1969 afford a typical instance of harassment of the citizen. There, without any prior notice of demand for the tax, the petitioners' moveables, including furniture and utensils, were attached (See Ext. P2 dated 29-8-1969). The petitioners are stated to own only about 2.500 acres of Malavaram in Patta 236 covering nearly 3,800 acres and jointly registered in the names of seven persons. The petitioners preferred Ext. P1 representation to the Tahsil-dar in 1967 setting forth in detail their contentions and expressing readiness to pay their due share of tax. No orders were passed thereon. The Act having declared by Section 5(3) that the basic tax shall be deemed to be public revenue due on land, we cannot but regard the attachment of moveables without any effort to recover the tax from the immovable properties on which it is charged, as an act of humiliation and harassment.
In O. P. No. 3877/1969, the petitioner is the karnavan of the Karakkattidethil tarwad and the Uralan of six Devaswoms owned by the tarwad. It is the petitioners' case that there is separate registry for the tarwad lands and for the lands of the Devaswoms. It should be obvious that the tarwad and each of the Devaswoms are separate entities and cannot be clubbed together. Yet in this case, Ext. P3 notice has served demanding payment of over Rs. 7,00,000 (seven lakhs) specifying neither the Patta number nor the Sy. Nos. of the lands, nor their extent nor any particulars. Distraint warrant has been issued andthe petitioners' properties were attached for recovery of the tax (See the averment in paragraph 19). In W. A. No. 654/1969 Ext. P2 notice was issued by the Village Officer threatening revenue recovery. Apart from the question whether the Village Officer was empowered to take steps in this behalf, Ext. P2 again, does not give the Patta number or any of the other particulars of the properties, necessary to fix the liability.
In all these cases, the Government Pleader frankly conceded that it was impossible to support the action taken and assured that fresh steps in accordance with law, would be taken. In O. P. No. 4234/1969, the petitioner's allegations are that he was a kuzikanam lessee in possession of about 128 acres of land under registered document of 1932. The lands are part of Sy. No. 338/2A/IA/IF. The total extent of this sub-division is alleged to be over 838 acres. The extent other than in the petitioner's possession is stated to be partly in possession of other landlords and partly of tenants. The petitioner's application for a separate sub-division of his portion of the lands and registration thereof in his name is alleged to have been rejected. The petitioner gifted his rights and the donees are stated to have paid the basic tax with respect to their portions. The petitioner was served with a notice (Ex. P5) for the basic tax in respect of the entire 800 and odd acres, on the ground that the same was jointly registered in his name also. The petitioner has alleged in paragraph 4 of his petition that he had neither knowledge nor notice of the joint registration.
24. The facts disclosed by the cases above set out, are revealing and require the Government's urgent notice and earnest attention. We have been considerably distressed by the way in which the provisions of the Act have been administered, demanding large amounts in lakhs and thousands of rupees from persons who have not even been told of the particulars of the lands to which the tax relates. The minions of the Government might, in their helplessness, or ignorance of the particulars of the lands, have resorted per force, as we see, to distraint of moveables. But we have no hesitation to deny them our sympathy and to visit them with our judicial disapproval.
Krishnamoorthy Iyer, J.
25. Though I agree with my learned brothers that the writ appeal and the petitions have to be allowed, I prefer to state my reasons.
26. The common question in all these cases relates to the validity of the Kerala Land Tax Act, 1961 (Act 13 of 1961) which provides for the levy of basic tax on lands in the State of Kerala.
27. The Travancore-Cochin Land Tax Act 15 of 1955 which came into force on the 1st of April, 1956 was extended to the whole State of Kerala by the Travancore-Cochin Land Tax (Amendment) Act 10 of 1957. The Travan-core-Cochin Land Tax Act 15 of 1955 as amended by Act 10 of 1957 was challenged under Article 32 of the Constitution. The Supreme Court by the decision in AIR 1961 SC 552 dated 9-12-1960 held that Sections 4, 5-A and 7 of the Act were unconstitutional. The basic tax under the Travancore-Cochin Act could not therefore be collected. To get over the difficulty the Kerala Land Tax Ordinance 2 of 1961 was passed. It was replaced by Kerala Land Tax Act 13 of 1961 which came into force on 5-4-1961. The validity of Act 13 of 1961 was questioned in proceedings under Article 226 of the Constitution in this Court. Vaidialingam, J. by his decision dated 11-10-1962 in 1963 Ker LT 15 = (AIR 1963 Ker 155) held that Sections 5. 6 and 7 of Act 13 of 1961 were ultra vires and violative of Articles 14, 19(1)(f) and 31(1) of the Constitution,
28. The Constitution (Seventeenth Amendment) Act, 1964 came into force on 20-6-1964 because of the decision of the Supreme Court in Kunhiko-man's case, AIR 1962 SC 723, which struck down the Kerala Agrarian Relations Act IV of 1961 regarding ryot-wari lands. Section 3 of the Constitution (Seventeenth Amendment) Act, 1964 included the Kerala Act 13 of 1961 as item No. 38 in the Ninth Schedule to the Constitution. There was thereafter an attempt to enforce the provisions of the Kerala Land Act, 1961. This led to another proceeding in this Court under Article 226 of the Constitution impugning the validity of the Act. The petition was disposed of by a Division Bench on 7th July, 1966. The decision is reported in 1966 Ker LT 1022. Their Lordships without expressing an opinion on the validity of the Act directed that the authority to function for the purpose of Section 6 should he prescribed afresh, that the form in which the application is to be made for the purpose of that Section should be specified under the Act and that the time prescribed by Sub-section (3) of Section 6 should be so altered to give the writ petitioners at least four months' time from the date of prescription of the authority and the form. The Land Tax Act 1961 has been amended by Acts 22 of 1968 and 17 of 1969.
29. The learned counsel appearing for the petitioners attacked the validity of the Kerala Land Tax Act, 1961 on two grounds.
(1) It is a colourable piece of legislation incapable of being enforced; and
(2) It is violative of Article 265 of the Constitution.
30. Both the points can be considered together. In view of the Constitution (Seventeenth Amendment) Act, 1964 the plea against the validity of the Kerala Land Tax Act. 1961 is controlled by Article 31-B of the Constitution- It reads:--
'31-B. Without prejudice to the generality of the provisions contained in Article 31-A. none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.'
The above Article was introduced in the Constitution by Section 5 of the Constitution (First Amendment) Act, 1951.
31. Article 31-B contains a positive declaration that the Acts included in the Ninth Schedule shall continue in force subject to the power of repeal or amendment of the competent Legislature. The said Article has been given retrospective operation. The constitutionality of a post-Constitution Act has to be decided according to the Constitution in force on the date when an Act is passed subject to any retrospective amendment of the Constitution. It is true that a law in contravention of Article 13 of the Constitution is void. It was, no doubt, decided by the Supreme Court in Mahondra Lal v. State of U. P., AIR 1963 SC 1019, that a post-Constitution legislation in violation of Article 13(2) of the Constitution is a stillborn law and cannot be revived by the doctrine of eclipse. This principle has no bearing when the Constitution (First Amendment) Act, 1951 and the Constitution (Seventeenth Amendment) Act, 1964 have been given retrospective operation. These matters were not disputed at the Bar.
32. The submission of the petitioners was that even though the Kerala Land Tax Act, 1961 is immune from attack as violative of fundamental rights is should satisfy the requirement of Article 265 of the Constitution. It was contended that a taxing statute to be valid under Article 265 of the Constitution should be within the competence of the Legislature and should provide for the levy, assessment and collection of the tax. The petitioners' counsel said that if a taxing law is confiscatory in character it is acolourable piece of legislation which will affect the competency of the Legislature which passed the law. In striking down the Travancore-Cochin Land Tax Act, 1955 as unconstitutional their Lordships of the Supreme Court in Moopil Nair's case, AIR 1961 SC 552 pointed out:
'That the provisions aforesaid of the impugned Act are in their effect confiscatory is clear on their face. Taking the extreme case, the facts of which we have stated in the early part of this judgment, it can be illustrated that the provisions of the Act, without proposing to acquire the privately owned forests in the State of Kerala after satisfying the conditions laid down in Article 31 of the Constitution, have the effect of eliminating the private owners through the machinery of the Act. The petitioner in petition 42 of 1958 has been assumed to own 25 thousand acres of forest land. The liability under the Act would thus amount, to Rs. 50,000/- a year, as already demanded from the petitioner on the basis of the provisional assessment under the provisions of Section 5(A). The petitioner is making an income of Rupees 3,100/- pec year out of the forests. Besides, the liability of Rs. 50,000/- as aforesaid, the petitioner has to pay a levy of Rs. 4,000/- of the surveyed portions of the said forest. Hence, his liability for taxation in respect of his forest land amounts to Rs. 54,000/- whereas his annual income for the time being is only Rs. 3,100/- without making any deductions for expenses of management. Unless the petitioner is very enamoured of the property and of the right to hold it, it may be assumed that he will not be in a position to pay the deficit of about Rs. 51,000/- every year in respect of the forests in his possession. The legal consequences of his making a default in the payment of the aforesaid sum of money will be that the money will be realised by the coercive processes of law. One can easily imagine that the property may be sold at auction and may not fetch even the amount for the realisation of which it may be proposed to be sold at public auction. In the absence of a bidder forthcoming to bid for the offset amount the State ordinarily becomes the auction purchaser for the realisation of the outstanding taxes. It is clear, therefore, that apart from being 'discriminatory' and imposing unreasonable restrictions on holding property, the Act is clearly confiscatory in character and effect. It is not even necessary to tear the veil as was suggested in the course of the argument, to arrive at the conclusion that the Act has that unconstitutional effect.'
The petitioners' counsel would contend that the position is still the same even Under the Kerala Land Tax Act, 1961 though it has incorporated some additional provisions.
33. It is necessary now to state certain propositions regarding tax law which have been well settled. Article 265 of the Constitution reads:
'No tax shall be levied or collected except by authority of law'. The term 'authority of law' in the above Article means the authority of a valid law.
34. It was at the time thought because of the decision in Ramjilal v. I.T. Officer, AIR 1951 SC 97 that tax laws should conform only to Article 265 and are not controlled by Article 13 of the Constitution. But now the position is that a taxing statute is a law for the purpose of Article 13 and tax laws are not beyond the pale of constitutional limitations under Articles 14, 19 and 31(1) of the Constitution. When a taxing statute is attacked on the ground of violation of any of these Articles the Court is bound to examine the contention on the merits. Article 31(2) will not apply to a taxing statute in view of Article 31(5)(b)(i) of the Constitution. The impact of Article 31(1) on a taxing statute has been decided by a Constitution Bench of the Supreme Court in AIR 1962 SC 1563. Gajendragadkar, J., speaking on behalf of the Court said:
'So for as Article 31(1) is concerned, all that it requires is that no person can be deprived of his property save by authority of law and as we have just observed, the authority of law postulated by Article 31(1) is obviously the authority of a valid law. If the law is not valid because it offends against Article 14 or Article 19 or some other fundamental right guaranteed by Part III, then the imposition of tax levied by it cannot be said to meet the requirements of Article 31(1). But if the act in question is otherwise valid, then the Article 31(1) is complied with.'
35. According to the learned Government Pleader the plea that a taxing law is confiscatory being only germane to Article 19(1) cannot be entertained because of Article 31-B of the Constitution and he relied on the decision of the Supreme Court in Kochuni v. States of Madras and Kerala, AIR 1960 SC 1080 where the constitutional validity of the Madras Marumakkathayam (Removal of Doubts) Act, 1955 was challenged. It was decided that the Act violated Article 19(1)(f) and was not saved by Article 19(5). Their Lordships concluded their discussion thus:
'The impugned Act is only a legislative device to take the property of one and vest it in another without compensation, and, therefore, on its face stamped with unreasonableness. In short, theimpugned Act is expropriatory in character and is directly hit by Article 19(1)(f) and is not saved by Clause (5) of Article 19.' The above passage shows that the validity of the impugned Act was considered only with reference to Article 19 of the Constitution. The decision cannot be understood as saying that when an impugned Act is impeached as a device to deprive a person of his property the said plea is covered only by Article 19 of the Constitution and by no other principle.
36. A decision has to be understood in the light of the facts decided therein. In Quinn v. Leathem, 1901 AC 495, Earl of Halsbury, L. C. said:
'Now before discussing the case of Alien v. Flood, (1898) AC 1, and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.' The same view was expressed by the Supreme Court in State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 547, Hegde, J., observed:
'A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it.'
I am therefore of the view that AIR 1960 SC 1080 does not support the Government Pleader.
37. The learned Government Pleader is correct because of the decisions of the Supreme Court in AIR 1962 SC 123; AIR 1962 SC 1006 and AIR 1962 SC 1563 when he contended that a tax law to be valid under Article 265 of the Constitution, (1) should be within the legislative competence of the Legislature being covered by the legislative entries in Schedule VII of the Constitution; (2) should not be prohibited by any particular provision of the Constitution such as for example, Articles 276(2), 286 etc., and (3) should not be invalid under Article 13 for violation of fundamental rights guaranteed by Part III of theConstitution. The point to be considered is whether the above would exclude the argument that the Kerala Land Tax Act, 1961 is confiscatory in character and therefore a colourable piece of legislation. A plea that a taxing statute is confiscatory really revolves round the question of the competency of the Legislature to pass the impugned law. As was pointed out by Seervai in his book on Constitutional Law of India at page 292.
'the cases in which tax laws were held to be subject to Article 19 were really cases where it could be said that under the guise of imposing a tax, the law confiscated property.'
38. The content of a valid law under Article 265 is that it should provide for the levy, assessment and collection of tax. The words 'levied or collected' in Article 265 are of a comprehensive nature to include all the three stages in the imposition of a tax. Lord Dunedin in 1926 AC 37 stated:
'Now there are three stages in the imposition of a tax; there is the declaration of liability, that is, the part of the statute which determines what persons in respect of what property are liable. Next, there is the assessment. Liability does not depend on assessment. That, ex hypothesi, has already been fixed. But, assessment particularises the exact sum which a person liable has to pay. Lastly, come the methods of recovery, if the person taxed does not voluntarily pay.'
The word 'levied' in Article 265 of the Constitution is therefore used to include the first two stages viz. the levy or the declaration of the liability and the assessment or the determination of the amount of the tax. Rajgopala Ayyangar, J.. pointed out in AIR 1962 SC 1006 that Article 265 merely enacts that all taxation -- the imposition, levy and collection --shall be by law'. The effect of Article 265 is to exclude the administrative authorities from devising measures for assessment and collection of tax. Any attempt to collect tax under a law which does not satisfy the conditions stated in 1926 AC 37 will offend Article 265 and will be invalid. A law which does not provide for levy, assessment or collection of tax will apart from being invalid under Article 265 also offend Articles 19(1)(f) and 31(1) of the Constitution. This view is accepted in AIR 1962 SC 1563 where Gajendragadkar, J., observed:
'If a taxing statute makes no specific provision about the machinery to recover tax and the procedure to make the assessment of the tax and leaves it entirely to the executive to devise such machinery as it thinks fit and to prescribe such procedure as appears to it to be fair, an occasion may arise for the Courts to consider whether the failure to provide for a machinery and to prescribe a procedure does not tend to make the imposition of the tax an unreasonable restriction within the meaning of Article 19(5). An imposition of tax which in the absence of a prescribed machinery and the prescribed procedure would partake of the character of a purely administrative affair can, in a proper sense, be challenged as contravening Article 19(1)(f).' Can such a law be sustained on account of Article 31-B by its inclusion in Schedule 9 to the Constitution? The obvious answer can only be 'no' for the reason that it offends Article 265 and a contention to that effect cannot be barred by Article 31-B.
39. In my view, the position is the same regarding the contention that the Kerala Land Tax Act, 1961 is confiscatory in character and is therefore not a valid law under Article 265. Besides Moopil Nair's case, AIR 1961 SC 552 it is necessary to refer to the decisions of the Supreme Court in AIR 1962 SC 1563 and AIR 1963 SC 1667. In the two later cases Moopil Nair's case, AIR 1961 SC 552 was taken to be illustrative on the question of a confiscatory nature of a taxing statute as a separate ground of attack.
In AIR 1962 SC 1563 it was observed:--
'Though the validity of a taxing statute cannot be challenged merely on the ground that it imposes an unreasonably high burden, it does not follow that a taxing statute cannot be challenged on the ground that it is a colourable piece of legislation and as such, is a fraud on the legislative power conferred on the Legislature in question. If, in fact, it is shown that the Act which purports to be a taxaing Act is a colourable exercise of the legislative power of the Legislature, then that would be an independent ground on which the Act can be struck down. Colourable exercise of legislative power is not a legitimate exercise of the said power and as such, it may be open to challenge. But such a challenge can succeed not merely by showing that the tax levied is unreasonably high or excessive, but by proving other relevant circumstances which justify the conclusion that the statute is colourable and as such, amounts to a fraud............
This decision (Moopil Nair's case, AIR 1961 SC 552) illustrates how a taxing statute though ostensibly passed in exercise of the legislative powers conferred on the Legislature, can be struck down as being a colourable exercise of the said power. In other words, the conclusion that a taxing statute is colourable would not and cannot normally be raised merely on the finding that thetax imposed by it is unreasonably high or heavy, because the reasonableness of the extent of the levy is always a matter within the competence of the Legislature. Such a conclusion can be reached where in passing the Act, the Legislature has merely adopted a device and a cloak to confiscate the property of the citizen taxed. If, however, such a conclusion is reached on the consideration of all relevant facts, that is a separate and independent ground for striking down the Act.'
In AIR 1963 SC 1667 it was observed:--
'Where for instance it appears that the taxing statute is plainly discriminatory, or provides no procedural machinery for assessment and levy of the tax, or that it is confiscatory, Courts would be justified in striking down the impugned statute as unconstitutional. In such cases, the character of the material provisions of impugned statute is such that the Court would feel justified in taking the view that, in substance, the taxing statute is a cloak adopted by the Legislature for achieving its confiscatory purposes. This is illustrated by the decision of this Court in the case of AIR 1961 SC 552 where a taxing statute was struck down because it suffered from several fatal infirmities.'
In view of the above decisions it is not possible to agree with the Government Pleader in his contention that the ground that a taxing law is confiscatory can have reference only to an attack based on Article 19(1)(f) read with Article 31(1) of the Constitution and cannot be independent of them. To offend Article 19(1)(f) of the Constitution it is enough for the tax law to impose unreasonable restrictions on holding property and it need not be confiscatory in character. On the other hand, a tax law which is confiscatory in character will also offend Article 19(1)(f) of the Constitution. But it does not thereby mean that an attack based on a confiscatory nature of a tax is always based on Articles 19(1)(f) and 31(1) of the Constitution.
40. Even if the position is considered apart from decisions the result will be the same. A plea that a legislation is colourable really affects the competency of the Legislature to pass the law and has nothing to do with Article 13(1) or 13(2) of the Constitution. If it can furnish a ground of attack independent of any of the provisions in Part III of the Constitution Article 31-B cannot come in the way of the petitioners' raising the plea. It is one thing to say that a court cannot embark upon an enquiry whether a tax is reasonable or unreasonable and it is quite a different thing to say that a tax law is a colourable piece oflegislation being confiscatory and has been adopted as a device and a cloak to confiscate the property of a citizen.
41. It is therefore necessary to have a correct understanding of the term 'colourable legislation'. Their Lordships of the Judicial Committee pointed out in A. G. of Alberta v. A. G. of Canada, AIR 1939 PC 53 that the doctrine of colourable legislation implies that though a Legislature is not fettered in the sphere of its power it cannot
'under the guise or the pretence or in the form of an exercise of its own powers to carry out an object which is beyond its powers and a trespass on the exclusive powers of the other.'
After a survey of the English authorities Mukherjea, J., explained the term in the following manner in K. C. G. Narayan Deo v. State of Orissa, AIR 1953 SC 375:
'The whole doctrine of colourable legislation is based upon the maxim that you cannot do indirectly what you cannot do directly. If a legislature is competent to do a thing directly, then the mere fact that it attempted to do it in an indirect or disguised manner, cannot make the Act invalid.'
His Lordship in the course of his discussion observed at page 378:
'It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of 'bona fides' or 'mala fides' on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all Whether a statute is constitutional or not is thus always a question of power. Vide Cooley's Constitutional Limitations, Vol. 1. p. 379. A distinction, however, exists between a legislature which is legally omnipotent like the British Parliament and the laws promulgated by which could not be challenged on the ground of incompetently, and a legislature which enjoys only a limited or a qualified jurisdiction.
If the Constitution of a State distributes the legislative powers 'amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject-matter of the statute or in the method of enacting it transgressed the limits of its constitutional powers. Such transgression may be patent, manifest or direct, but it may also be desguised, covert and indirect and it is to this latter class of cases that the expression 'colourable legislation' has been applied in certain judicial pronouncements. The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise.'
In this connection the observations in Bank of N. S. Wales v. Commonwealth, (1948) 76 CLR 1 are worth quoting:
'Where, however, a Parliament, as in the case of the Commonwealth Parliament, has only limited powers, the declaration of Parliament that a law is enacted for the purpose of securing the stated objects cannot bring an enactment within power if its operative provisions have no real connection with a subject with respect to which the Parliament has power to make laws. Such a declaration is entitled to respectful consideration, but it cannot be decisive upon a question of validity ............ Each provisionmust be considered in the context of the Act, independently of any such statement of objects -- though such a statement may suggest a connection between the legislation and a relevant subjectmatter.' (pp. 162-63)
Thus when a question arises as to the validity of legislation it is the duty of the Court to determine what is the actual operation of the law in question in creating, changing, regulating or abolishing rights, duties, powers or privileges, and then to consider whether that which the enactment does falls in substance within the relevant authorized subject-matter, or whether it touches it only incidentally, or whether it is really an endeavour, by purporting to use one power, to make a law upon a subject which is beyond power.' (p. 187).
42. It was agreed at the Bar that the Kerala Land Tax Act, 1961 comes under Entry 49 in List II of the Seventh Schedule to the Constitution. In order that the said Act can be stamped as a colourable legislation it should be established that it was introduced under the guise of a taxation statute with a view to accomplish an ulterior purpose, viz., the confiscation of the property belonging to an assessee. It is still necessary to prove that the ulterior purpose is something which lies beyond the powers of the State Legislature. Under Entry 49, List II, it is not open to a State Legislature to provide for the confiscation of property. I am not concerned with the effect of a provision in taxing statute for confiscation of one's property as a penalty. The only other Entry which is relevant in this connection is Entry 42 in List III (Concurrent List) reading 'acquisition and requisitioning of property'. The right to pass a legislation for confiscation of a citizen's property cannot be done under Entry No. 42 in List III. There is no other Entry therefore which gives competency to a State Legislature to pass a law for confiscation of one's property. If the real object of the Kerala Land Tax Act. 1961 is therefore confiscatory in character it is a colourable legislation and is therefore invalid.
43. There is another way of looking at the matter. What is included in the Ninth Schedule to the Constitution is a taxing statute and not a statute the real object of which is the confiscation of property. If therefore the real object of the Kerala Land Tax Act, 1961 is entirely different from what it purports to be it will not secure the protection afforded to it by Article 31-B of the Constitution. I do not want to rest my decision on this view.
44. I shall therefore examine whether the Kerala Land Tax Act, 1961 is a colourable legislation. In Moopil Nair's case, AIR 1961 SC 552 the confiscatory nature of the Travancore-Cochin Land Tax Act (15 of 1955) as amended by Act 10 of 1957 was inferred from Section 5-A thereof which authorised the Government to make a provisional assessment in respect of land which was not surveyed. Though the Act contemplated regular assessment in respect of such land it did not indicate when such assessment would be made except pointing out that it could be made only after a survey has been made of the land assessed. Under Section 5-A the assessment was at a flat rate irrespective of the quality of the land and its productive capacity. In view of these circumstances, their Lordships observed that the Act
''has thus the merit of brevity as also of simplicity, derived from the fact that a tax is levied at a flat rate, irrespective of the quality of the land and consequently of its productive capacity. Under the Act, the charge has to be levied, whether or not any income has been derived from the land. The Legislature was so much in earnest about levying and realising the tax that it could not even wait for a regular survey of the lands to be assessed with a view to determining the extent and character of the land.'
In view of Section 7 of the Kerala Land Tax Act, 1961 it was contended forthe State that the infirmities pointed out by their Lordships of the Supreme Court are no longer in existence. It is true that an inference that a tax law is confiscatory cannot be drawn from the unreasonableness of the impost as the extent of a levy is always a matter for the Legislature. In the course of the discussion at the bar it was contended on behalf oir the State based on the classic statement of Marshall. C. J. in McCulloch v. Maryland, (1819) 4 Wheat 316. 'that the power to tax involves the power to destroy'. It is true that the power to tax people and their property is essential to the very existence of a State. But the Indian decisions have not so far gone to the extent of accepting the dictum laid down by Chief Justice Marshall. The Supreme Court has cautioned in a number of decisions that in such matters much assistance cannot be drawn from the American decisions.
I shall now examine the provisions of the Kerala Land Tax Act, 1961. Section 5 which is the charging section, provides that a tax called basic tax on all lands, of whatever description and held under whatever tenure, shall be levied. Section 5(2) provides that the basic tax shall be paid by the landholder of that land, but where any land is in the possession of a tenant or other person not being the landholder and the income obtained by the landholder from that land is less than the basic tax payable thereon, the excess on the basic tax over such income shall be paid by the tenant or other person in possession. Section 5, Sub-section (3) says that the basic tax shall be deemed to be public revenue due on land within the meaning of the Revenue Recovery Act and shall be recoverable under the provisions of that Act. Section 6 deals with the rate of basic tax payable under Section 5 and under Section 7. The rate of basic tax fixed by Section 6(1) is four rupees and ninety four paise per hectare per annum. Sub-section (2) of Section 6 provides that if a land-holder or other person liable to pay basic tax proves to the satisfaction of the prescribed authority that the gross income from any land was less than twenty-four rupees and seventy paise per hectare per annum, the basic tax on such land shall be fixed at one-fifth of the gross income from such land. But the proviso to Sub-section (2) of Section 6 says that pending the fixation of the rate the landholder shall be liable to pay basic tax at the rate mentioned in Section 6, Sub-section (1) and on fixation of the basic tax under Sub-section (2) the excess tax shall be refunded to the person entitled thereto.
Section 7(1) of the Act deals with the provisional assessment of basic taxin the case of unsurveyed lands. It is necessary before making provisional 'assessment for the prescribed authority to call upon the landholder and any other person in possession of the lands by notice to furnish such particulars relating to the lands as the prescribed authority considers necessary within such time to be fixed in the notice. The prescribed authority has to make provisional assessment on the basis of the materials furnished and at the rate specified in Sub-section (1) or Sub-section (2) of Section 6. But Sub-section (3) of Section 7 provides that if there is failure to furnish the particulars called for under Sub-section (1) of Section 7 or if the particulars appear to the prescribed authority to be incorrect or incomplete he can make a provisional assessment of the basic tax to the best of his judgment after giving notice to the landholder or the person in possession. Sub-section (6) of Section 7 provides that a survey has to be conducted of unsurveyed lands before the expiry of a period of five years from the date of the publication of the Act in the Gazette which was on 5-4-1961.
By Act 22 of 1968, the period of five years was extended till 31st day of December 1968. The period has been extended till 31st day of December 1970 by Act 17 of 1969. So far no survey operations have been started. It is only after that the prescribed authority shall make a regular assessment of the basic tax in respect of such lands. Section 9 provides for appeals against orders of the prescribed authority under Section 6, Sub-section (2) and Section 7, Sub-section (3), Section 10 provides for a reference to the District Court to decide questions of law raised before the appellate authority. Section 11 confers a power of revision on the Board of Revenue to revise orders passed by the appellate authority under Section 9 of the Act. I shall also refer to Section 3(3) which defines 'landholder'. The said provision reads:
' 'landholder' means the registered holder for the time being of any land and includes his legal representatives and assigns, and also includes any person who under any law for the time being in force is liable for the payment of public revenue due in respect of land held by him and, in the case of lands which have not been surveyed, the proprietor of the land.'2b I am not referring to the other provisions of the Act as they are not relevant to decide the point raised.
45. It is true that by virtue of Section 6, Sub-section (2) basic tax of four rupees and ninety-four paise per hectare per annum is payable only in the case of lands whose gross annual income is twenty-four rupees and seventypaise per hectare per annum. It cannot therefore be contended that there is no relation between the impost and the income of the land. The tax depends upon the productivity of the land. But until the prescribed authority fixes the rate under Section 6(2) the landholder shall be liable to pay basic tax at the rate mentioned in Section 6(1) of the Act. This is the position even for provisional assessments under Section 7(1) in the case of unsurveyed lands. If on account of the delay to dispose of a proceeding under Section 6(2) by the prescribed authority a landholder is compelled to pay basic tax at the rate mentioned in Section 6(1) of the Act, the result envisaged by their Lordships of the Supreme Court in Moopil Nair's case, AIR 1961 SC 552 will follow. There is no knowing when the proceedings under Section 6(2) will be completed. Until it is over a landholder will be compelled to pay at the rate in Section 6(1). This process can go on for a number of years.
Further since 1957 by several legislations the right of the landlord to recover rent from his tenants has been affected to a considerable extent. He has been denied the right to get back the property leased from his tenants. The Kerala Stay of Eviction Proceedings Act, 1957 not only prevented the landlord from claiming back the property leased but prevented him from claiming the rent accrued due before the commencement of the Kerala Stay of Eviction Proceedings Ordinance, 1957. The life of the Act which was temporary one was extended from time to time. The. Kerala Agrarian Relations Act, 1960 even affected the quantum of rent payable under the contract between the parties. Section 34 of the Act provided for the discharge of arrears of rent outstanding on 11th of April 1957 by payment of one year's rent or two years' rent or three years' rent depending upon the extent of the holding. The said Act was struck down by the Supreme Court with reference to ryotwari lands in Kunhikoman's case. AIR 1960 SC 1080. This was followed by the Kerala Land Reforms Act, 1963 (Act 1 of 1964) which was included as Item 39 in the Ninth Schedule to the Constitution by the Constitution (Seventeenth) Amendment Act, 1964. Section 73 of the Act caused substantial reduction in the rent due till the date of Act 1 of 1964 payable by the tenant.
By Act 35 of 1969 a landlord is allowed to realise only one year's rent towards the arrears due before the 1st May 1963 if the tenant is in possession of not more than 5 acres of land; if he is in possession of more than 5 acres and less than 10 acres he need pay only two years' rent and if he is in possession ofmore than 10 acres he need pay only three years' rent. The Kerala Agrarian Relations Act, 1960 (Act 4 of 1961) was passed before the Land Tax Act, 1961. The inclusion of the two Acts namely the Kerala Land Tax Act. 1961, and the Kerala Land Reforms Act, 1962 (Act 1 of 1964) in the Ninth Schedule is by the Constitution (Seventeenth) Amendment Act. The Legislature was therefore aware of the restriction on the right of the landlord to recover possession of the leased property and the arrears of rent when it passed the Land Tax Act. 1961. The proviso to Sub-section (2) of Section 5 of the Kerala Land Tax Act, 1961 makes a landholder liable to pay basic tax in respect of the property in the possession of the tenant only to the extent of the income obtained from the tenant. The landholder is still liable to pay the basic tax for the property in the possession of the tenant even when he is not allowed to recover rent by statutes passed by the Legislature.
When a land is therefore in the possession of a tenant and the rent fixed in the contract of lease is more than the basic tax payable on the property the landholder shall be liable to pay the basic tax in full irrespective of the fact whether he is discharged from recovering the rent. The effect of the enactments referred to will produce the result that a landlord shall be liable for basic tax of a property out of which he received no income. The position is the same when the rent payable is rupees four and ninety-four paise per hectare per annum. The landholder is therefore compelled to pay the basic tax of a property in the possession and enjoyment of another.
46. In respect of jemmies and kanam tenants governed by T. C. Kanam Tenancy Act (Act 24 of 1956) the ienmi's right after the Act is only to collect michavaram and the kanam tenant shall be deemed to be the owner of the land subiect only to the rights of the jenmi to collect michavaram. A jenmi under the Kanam Tenancy Act will be a landholder under Section 3(3) of the Kerala Land Tax Act, 1961. The register prepared under the Kanam Tenancy Act is not recognised by Section 4 of the Kerala Land Tax Act. 1961. The obvious result is therefore that a jenmi coming under the Kanom Tenancy Act is liable for land tax in spite of the fact that his interest in the property has been terminated by the Kanom Tenancy Act He has therefore to look to his other properties for paying the land tax due on the property of which he has ceased to be the owner.
47. In the case of unsurveyed lands, it is not possible to find out the extent of large tract of lands without survey operations. Section 7(1) contemplates provisional assessments in respect of unsurveyed lands. The procedure for ascertaining the extent of unsurveyed lands for making provisional assessment has not been indicated in the Act. Until survey, the landholder shall be liable to pay tax on the basis of the estimate made by the prescribed authority under Section 7(2). The Kerala Land Tax Act, 1961 offends Article 265 of the Constitution also. The definition of the term 'landholder' includes his legal representatives and assigns apart from the persons liable under any law for the time being in force for the payment of public revenue due in respect of land held by him. Section 5(3) provides for the recovery of the basic tax under the provisions of the Revenue Recovery Act. The Act contains no provision for the assessment of the liability. The person to be liable has to be determined under the Land Tax Act. A tax can be recovered only when it is payable and it will be payable only after it is assessed. It is not open to the authorities under the Revenue Recovery Act to decide the person liable for land tax. The recovery under the Revenue Recovery Act can only be from a person who has been assessed to pay the tax under the Land Tax Act. There is therefore no authority prescribed under the Act for assessment of liability.
48. The proviso to Sub-section (2) of Section 5 of the Kerala Land Tax Act, 1961 provides that a person in possession of land as a tenant or otherwise not being the landholder shall be liable to pay land tax under certain circumstances. In such cases there is no liability on the part of the owner or landholder. But who is the authority to decide the question or to apportion the liability as between the tenant and the landholder. This has not been indicated anywhere in the Act. Section 5(2) is a part of the charging section. Unless the machinery for ascertaining the liability of the landholder and the tenant is indicated and provided for by the Act no assessment is possible. The facts in the writ appeal and the original petitions disclose that there are substantial objections raised by the appellant and the petitioners to whom notices were issued by authorities under the Revenue Recovery Act. But they have no power to deal with the objections. No authority has been prescribed under the Kerala Land Tax Act before whom the objections can be raised. The answer by the Government Pleader was that the recovery of land tax being on the basis of a land register no separate order of assessment is necessary as the amount to be recovered is merely a matter of arithmetical calculation. This is not so when a property is in the possession ofa tenant or a person other than the landholder. The names of the tenant or the person in possession will not be shown in the register referred to in Section 3(3) of the Kerala Land Tax Act, 1961. In order that Sub-section (3) of S. 5 can operate, there must be an ascertainment of the liability.
49. It was submitted by the Government Pleader that the authority prescribed under Sections 6(2) and 7(2) can assess the tax payable under Section 5. In view of the definition of prescribed authority by Section 3(7) of the Act, it is not possible to accept the same. The appeal provided for by Section 9 is only against the orders of the prescribed authority under Sub-section (2) of Section 6 or Sub-section (3) of Section 7. There is no authority at all contemplated for a decision of the matters under Section 5(2) or for any of the other matters which can legitimately be brought, under the provisions of the Act.
50. I am therefore satisfied that the Kerala Land Tax Act. 1961 not only offends Article 265 of the Constitution but in view of the several circumstances pointed out coupled with the absence of a machinery for assessment of liability in the Act, it is a colourable legislation being only a cloak to confiscate property of a citizen. I therefore allow the appeal and the Original Petitions.