G. Ramanujam, J.
1. These two writ petitions have been filed by the same petitioner in respect of the same property but for two different reliefs....
2. Writ Petition No. 4946/78 has been filed for the issue of a writ of declaration declaring that the provisions of the Tamil Nadu Urban Land Tax Act, 1966 are void and unenforceable in respect of the petitioner's land comprised in Door No. 51, Ward 27, Survey No. 1330/1.
3. Writ Petition No. 9179 of 1981 is for the issue of a writ of certiorarified mandamus to quash the order of the third respondent dated 8th May, 1978 refusing to grant exemption under the Urban Land Tax Act and to direct the third respondent to grant the exemption in respect of the petitioner's land referred to above.
4. In Writ Petition No. 9179/81, the petitioner seeks exemption for the lands in question under the provisions of the Tamil Nadu Urban Land Tax Act. I therefore proceed to deal with the petitioner's contention in Writ Petition No. 9179/81 in the first instance before dealing with the case of the petitioner in W.P.No.4946/78 on merits.
5. The facts which led to the filing of these writ petitions by the petitioner may briefly be noted. The petitioner herein admittedly owns an extent of 53 grounds and 130 sq.ft., comprised in Mylapore in T.S.No. 1330/1 in Block No. 27, Door No. 50, Muthiah Mudali Street, Vtllala Teynampet, Madras-86. In the said urban land, there are a large number of coconut trees and a portion of the land has also been used for growing vegetables, plantain and other crops. The said land was originally in the Ayacut of Mylapore Tank. After the Mylapore Tank became useless and ceased to be a source of irrigation the lands were being irrigated with the use of two wells in which electric pump sets had been installed. After the coming into force of the Tamil Nadu Urban Land Tax Act, 1966, which came into force in the City of Madras on 1.7.63, till 1975, the petitioner has been filing return on the basis that the lands are agricultural lands and therefore they are not liable to be taxed under the Tamil Nadu Urban Land Tax Authorities. However, from the year 1970 onwards, attempts have been made to bring the said urban land under the said Act. The petitioner therefore, filed an application on 11.7.75 seeking exemption for the said urban land from the purview of the Act. Pending consideration of that application, the Government stayed the collection of Urban Land Tax from the petitioner in Memorandum No. 72378-R1/75-1 dated 24.7.75. However, the Government later suo motu vacated the stay and rejected the petitioner's request for the grant of exemption by its Memorandum No. 68524/U1/dated 6.5.78. It is at that stage, the petitioner filed the first Writ Petition No. 4946/78 seeking declaration that the said Act is void and inoperative so far as the petitioner's land is concerned. The said writ petition was resisted by the State contending that the petitioner's lands will not fall within the exemption contemplated under Section 29 of the Act. Pending that writ petition, the petitioner became aware of the two Government Orders which granted exemption in respect of certain lands on the ground that if the lands situated in the urban area registered as house sites is under cultivation with wet or dry crops they would be entitled to an exemption from the payment of urban land tax. The said two Government Orders are G.O.Ms.No. 288, Revenue, dated 13.2.76 and G.O.Ms.No.3526, Revenue, dated 15.6.73. According to the petitioner even as per the said two Government Orders, her lands are liable to be exempted under the provisions of the Act and the Government has not been right in rejecting the petitioner's application for exemption under the provisions of the Act in respect of her lands. Thus the substantial question that arises for consideration in W.P.No. 9179/81 is as to whether the petitioner is entitled to claim exemption in respect of the lands in question on the basis of the said two Government Orders as contended by the petitioner. In this light it has become necessary to consider the scope of the two Government Orders stated as above.
6. In G.O.Ms.No. 3526, Revenue, dated 15.6.73, the Government after taking into account the representations made on behalf of the owners of urban lands on the basis of market value of these lands which causes hardship to such of those, owners of the lands, felt that it is necessary to exempt the lands genuinely used for cultivation in the normal course and granted the exemption under Section 27(1) for the following categories of land:
(a) registered as 'wet' and which were under cultivation of 'dry crops' for five fasli years prior to the date of coming into force of the Act in the City of Madras;
(b) registered as 'dry' and which were under cultivation of 'wet' or 'dry crops' for five fasli years prior to the date of coming into force of the Act in the City of Madras;
In the next Government Order in G.O.Ms.No. 288, Revenue Department, dated 13th February, 1976, the Government in exercise of the powers under Section 27(1) of the Urban Land Tax Act, 1966, has granted exemption in respect of urban lands which are registered as house sites and which are under cultivation with wet or dry crops for not less than five years prior to the date of coming into force of the Act in the City of Madras. Thus as per the provisions of the said two Government Orders, wet lands in which either wet or dry crops have been raised for five fasli years prior to the date of coming into force of the Act in the city of Madras, will be entitled to exemption. Similarly lands registered as 'dry' but where dry or wet crops had been raised for five fasli years prior to the date of coming into force of the Act in the city of Madras, fall within the exemption. Even in respect of lands which are registered as house sites and which are used under cultivation with wet or dry crop for less than 5 years prior to the date of the coming into force of the Act, will also fall within the exemption.
7. In this case, the lands in question are said to have been registered as coconut garden. Taking advantage of such a registration, it is the contention of the respondents that the land in question cannot be treated either as wet or dry but it should be treated only as a coconut garden for which case the Government Orders referred to above will have no application. According to the petitioner, however, the registration of land as coconut garden is itself erroneous. Normally the lands either in the Municipal or in the City are registered either as wet or dry and there is no classification as coconut garden. In any event, even assuming that the registration of the land as coconut garden has been properly done, having regard to the fact that in the lands in question coconut crops as well as plants and vegetable crops have been admittedly raised it should be taken to be dry lands wherein wet crops are being cultivated which will come within the scope of exemption contained in G.O.Ms.No.3256, Revenue, dated 15.6.73. The alternative contention is that even if the registration of the lands as coconut garden will prevent the lands being considered either as dry or wet, still the lands having been admittedly laid out as house plots, even before the coming into force of this Act, i.e., as early as 12.6.57 the lands should be taken to be house sites and the crops such as coconut, vegetable, plantain, etc., haying been raised in the lands, the lands will squarely fall within the scope of G.O.Ms.No. 288, Revenue, dated 13.2.1976.
8. It is in the light of these rival contentions that we have to consider the question as to whether the lands belonging to the petitioner will fall within the benefit of the said two Government Orders.
9. It cannot be disputed that the coconut crop can be considered only a 'wet crop'. Though according to the respondent growing of coconut trees in the lands cannot be taken to be a use for agricultural purposes, I am of the view that the user of the land for raising coconut crop is nothing but an agricultural purpose. To say that the raising of coconut crop in the land will not amount to raising of either a wet or a dry crop is to completely overlook the process which is employed in growing and tendering coconut trees. It has been pointed out by a Division Bench of this Court in The Commissioner of Income-tax, Madras v. K.R. Sundara Mudaliar : 18ITR259(Mad) , where the scope and connotation of the word 'agriculture' came up for consideration. While dealing with the scope of the expression 'agriculture', the Court pointed out:
I shall briefly advert to the genesis of the provision exempting agricultural income derived from lands assessed to land revenue, as I consider that the subject matter with which the Legislature was dealing and the facts existing at the time with respect to which the legislation was made are legitimate topic for consideration in ascertaining the object and scope of the exemption from the income-tax conferred on agricultural income....
It is a matter of ordinary experience, at least in this part of the country, that mango, coconut, palmyra, orange, jack arecanut, tamarind and other trees are planted usually in an enclosed land, and that these trees do not yield any fruit or crop in the early years of their growth. They remain on the land for a long number of years yielding fruit only after their maturity. There is no reason why the planting, rearing, watering, fencing and protection of such trees and the gathering of their fruits during the annual seasons should not be held to be 'agriculture'. There is some kind of cultivation or prodding of the soil at the inception when the planting is done and subsequently also at intervals. In the case of coffee grown on hills slopes, there is no ploughing or tillage as in the case of wet and dry fields, but it cannot be maintained that growing coffee is not an agricultural operation.
I am unable to see why these operations are not agricultural operations. Pasture land used for the feeding and rearing of livestock is land used for agricultural purposes.
Thus it would be clear from the above extract that the cultivation of plaintain, rearing of coconut plants will clearly amount to putting the land to agricultural use. It is only by agricultural operation, the coconut trees could be planted, reared, watered etc., The learned Judges have referred to the definition of 'agriculture' in Murray's Oxford Dictionary which defines 'agriculture' as 'the science and art of cultivating the soil; including the allied pursuits of gathering in the crop. They have also referred to the various definitions occurring in other dictionaries and have ultimately held that the extent and intensity of the cultivation and the quantum of the effort and the plants of crops raised and no particular fixed standard can be prescribed as applicable to all cases. Thus though the standard or the quantum of effort and labour has been made out having regard to the nature of the land or the crops raised, it cannot be said that the coconut trees can be planted, reared and watered without the agricultural pursuits. The said decision of this Court has been approved by the Supreme Court in Commissioner of Income-tax, West Bengal, Calcutta v. Raja Benoy Kumar Sahas Roy : 32ITR466(SC) . Therefore, it can be taken that wherever land has been used for planting, rearing coconut trees the same can be taken to be put to agricultural use. In Gemini Pictures Circuit P. Ltd. v. Commissioner of Income-tax, Tamil Nadu-1 : 130ITR686(Mad) , a Division Bench of this Court held that wherever urban land has been put to agricultural use and it does not lose its agricultural character, the sale of such lands cannot be taken to be a sale of capital asset. Though the said decision was not rendered under the provisions of the Urban Land Tax Act, the principles of the decision that so long as the land retains the agricultural character, it has to be treated as such for the purpose of the Urban Land Tax Act. In this case, the respondents, as already stated, were taking advantage of the entries found in the revenue records that the urban land is a coconut garden. As already pointed out, there would not have been any classification as coconut garden apart from the usual classification as coconut crop apart from usual classification either as 'dry' or 'wet' land or fallow land. If a registration as coconut garden is permissible then the land on which plantain crops are raised, should be registered as plantain garden and where sugar cane is raised, the land should be registered as sugarcane garden. If registration is to proceed on these lines, there cannot be any limit for classification. That cannot be the object which is expected to be achived by registering the lands. If such a classification is to be recognised, then every land will have a separate classification depending upon the crop that is raised on the lands. Therefore even though the land has been registered as coconut garden we have to find whether the land is either wet or dry. In this case, though originally the land had the benefit of irrigational facility from a tank and since that tank has become useless and ceased to exist as an irrigation source, the land has to be treated only as a 'wet land with irrigational facilities from two wells in which two electric pump sets are said to have been installed.- Thus the lands are dry lands in which wet crops such as coconut plantain and other vegetable crops are raised. Therefore it will squarely fall in Clause (b) of the Notification issued in G.O.Ms.No.3526, Revenue, dated 15.6.73. It says that dry land in which 'wet' or 'dry' crops are raised for five fasli years prior to the date of coming into force of the Act in the City of Madras will be entitled to exemption. Even if the land could not be taken as a dry land wherein wet crops are raised, the petitioner's land will clearly come within the scope of the exemption contained in G.O.Ms.No.280, Revenue, dated 13.2.76 for the petitioner's land, though a coconut garden on the ground, has been approved as house sites even in the year 1957 by L.R.72/57. Taking note of the said lay out sanction, the lands should be taken to be house sites on ground which are actually used for cultivation of coconut crop for not less than five fasli years prior to the date of coming into force of the Act in the City of Madras. Thus there is no escape from the position that in any event the petitioner's lands either on the basis that the petitioner's land are dry lands in which wet crops had been raised or on the basis that the petitioner's lands are house sites in which wet or dry crop is raised are certainly entitled to the benefit of exemption under Section 27 of the Act. Thus the contention urged by the petitioner in W.P.No.9179/81 is to be accepted. Hence W.P.No.9179/81 is allowed and the petitioner is entitled to exemption under both the Government Orders.
10. In view of the fact that the said Writ Petition No. 9179/81 has been allowed in which the petitioner has got the relief of exemption, it is unnecessary to go into the question as to whether Urban Land Tax Act is void and ultra vires. Hence W.P.No. 4946/78 is dismissed as unnecessary without going into the merits. There will be no order as to costs.