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PETITIONER: KUNNATHAT THATHUNNI MOOPIL NAIR

       Vs.

RESPONDENT: THE STATE OF KERALA AND ANOTHER(with connected petitions)

DATE OF JUDGMENT: 09/12/1960

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER SARKAR, A.K. SUBBARAO, K. SHAH, J.C.

CITATION:  1961 AIR  552            1961 SCR  (3)  77  CITATOR INFO :  R          1962 SC 123  (12)  R          1962 SC 148  (1)  R          1962 SC1006  (37,38,78,799)  RF         1962 SC1371  (42)  R          1962 SC1406  (37)  RF         1962 SC1563  (22)  R          1962 SC1621  (31,55,109,121)  R          1962 SC1733  (3A)  RF         1963 SC 591  (7)  RF         1963 SC1667  (12)  RF         1964 SC 370  (10)  R          1964 SC 925  (45)  R          1964 SC1013  (25)  R          1966 SC 619  (7)  E          1967 SC 691  (26,66)  F          1967 SC1458  (23)  R          1968 SC 658  (8)  RF         1969 SC 378  (3)  RF         1970 SC 169  (11)  R          1970 SC1133  (5,7,8,18,23,24,25,26,29,30,31  D          1971 SC1321  (11,14)  RF         1971 SC1801  (4)  R          1972 SC 828  (27)  D          1972 SC 845  (5,14,25,30)  RF         1972 SC2563  (16)  R          1974 SC 497  (21)  R          1974 SC 543  (32)  D          1974 SC 849  (19)  RF         1975 SC 511  (17)  RF         1975 SC1208  (28)  R          1979 SC 321  (5)  F          1980 SC 271  (43,49)  E          1980 SC 286  (51,52)  RF         1980 SC1789  (36)  D          1983 SC 762  (12)  D          1986 SC1668  (11)  D          1986 SC1930  (18)  R          1990 SC  40  (8)  RF         1992 SC 999  (12)

ACT:

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Land Tax-Constitutional validity of enactment-Uniform  basic tax on all lands-Classification--Tax on forest  areas-Legis- lative  competence of State--Government’s power  to  exempt- Provisional  assessment-Validity-Travancore-Cochin Land  Tax Act, 1955 (Travancore-Cochin 15 of 1955), as amended by  Act 10  of 1957, ss. 4, 5-A, 7-Constitution of India, Arts.  14, 19(1)(f), 31, 265, Schedule 7, List II, Entries 19, 49.

HEADNOTE: The  Travancore-Cochin Land Tax Act, 1955 was passed by  the legislature  of  the  State  of  Travancore-Cochin  and  was amended  by Act 10 of 057, by the State of Kerala.  By s.  4 Of  the Act all lands in the State of  whatever  description and held under whatever tenure were to be charged and levied a uniform rate of tax to be called the basic tax.  Section 7 gave power to the Government to exempt from the operation of the Act such 78 lands  or  class  of  lands which  the  Government  may,  by notification, decide.  Section 5A which was introduced  into the Act by the Amending Act enabled the Government to make a provisional  assessment of the basic tax in respect  of  the lands  which  had not been surveyed by  the  Government  and provided  that  the Government after conducting  the  survey shall  make  a  regular assessment and  make  the  necessary adjustments  in respect of the amounts paid already.   There was, however, no time fixed for the conduct of the survey. The  petitioners who owned forest in the  State,  challenged the  constitutional validity of the Act on the grounds  that the provisions of the Act contravened Arts. 14, 19(i)(f) and 31(1)  of the Constitution of India inasmuch as (1) the  Act did  not have any regard to the quality of the land  or  its productive capacity and the levy of a tax at a flat rate  of RS. 2 per acre imposed very unreasonable restrictions on the right  to hold property, (2) the.  Act did not lay down  any provision  calling  for a return from the  assessee  for  an enquiry  or  investigation of facts before  the  provisional assessment  was  made or any right of appeal to  any  higher authority  and,  in  fact, did not make  any  provision  for hearing  the assessee at any stage, (3) S. 7 gave  arbitrary power to the Government to pick and choose in the matter  of grant  of total or partial exemption from the provisions  of the  Act,  and  (4)  the  tax  proposed  to  be  levied  had absolutely  no  relation to the production capacity  of  the land sought to be taxed or to the income they could  derive, and  therefore  the Act had been conceived with  a  view  to confiscating  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  petitioners also challenged the legislative  competence of  the legislature of the State to levy a tax on  lands  on which  forests  stood.  The case on behalf of the  State  of Kerala,  inter alia, was that the Act had its  justification in  Art.  265 Of the Constitution of India,  which  was  not subject  to the provisions of Part III of  the  Constitution and  that,  therefore,  Arts. 14, 19 and  31  could  not  be pressed in aid of the petitioners. , Held,  (Sarkar, J., dissenting), that the  Travancore-Cochin Land  Tax Act, 1955, infringed the provisions of Art. 14  Of the Constitution of India. The Act obliged every person who held land to pay the tax at the flat rate prescribed, whether or not he made any  income out  of  the property, or whether or not  the  property  was

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capable of yielding any income.  Consequently, there was  no attempt  at classification in the provisions of the Act  and it  was one of those cases where the lack of  classification created inequality.  It was therefore hit by the prohibition to deny equality before the law contained in Art. 14. Section 5A of the Act which enabled the Government to make a provisional assessment of the basic tax payable by the 79 holder of unsurveyed land imposed unreasonable  restrictions on the rights to hold property safeguarded by Art.  19(1)(f) of the Constitution, inasmuch as (1) the Act did not  impose an   obligation  on  the  Government  to  undertake   survey proceedings  within any prescribed or ascertainable  period, with  the  result that a landholder might  be  subjected  to repeated  annual  provisional assessments on  more  or  less conjectural  basis and liable to pay the tax  assessed,  and (2)  the Act being silent as to the machinery and  procedure to  be  followed  in making the assessment left  it  to  the Executive,  completely ignoring the legal position that  the assessment of a tax on a person or property was at least  of a quasijudicial character. Section  7 of the Act which vested the Government  with  the power wholly or partially to exempt any land from the provi- sions  of the Act did not lay down any principle  or  policy for  the  guidance  of the exercise  of  discretion  by  the Government  in respect of the selection contemplated by  the section,  and was, therefore, discriminatory in  effect  and offended  Art. 14.  The section was not severable  from  the rest  of the Act as both the charging sections, S. 4 and  S. 7,  authorising the Government to grant exemptions from  the provisions  of  the  Act were the  main  provisions  of  the statute. Shri  Ram  Krishna Dalmia v. Sri justice  S.  R.  Tendolkar, [1959] S.C.R. 279, relied on. The  Act was also confiscatory in character inasmuch as  the provisions  of  the Act had the effect  of  eliminating  the private  owners  through the machinery of the  Act,  without proposing  to  acquire the privately owned  forests  in  the State  after satisfying the conditions laid down in Art.  31 of the Constitution. Per  Sinha, C.J., Imam, Subba Rao and Shah, JJ.-Article  265 of the Constitution which provided that the State shall  not levy or collect a tax except by authority of law referred to a  valid law, and in order that the law might be valid,  the tax  proposed  to be levied must be within  the  legislative competence of the Legislature imposing a tax and authorising the  collection  thereof  and, secondly,  the  tax  must  be subject to the conditions laid down in Art. 13, by which all laws  inconsistent with or in derogation of the  fundamental rights in Part III shall be void. Per Sarkar, J.-(1) The object of the Act was to tax land  in the  State for raising revenues by providing for a  low  and uniform  rate of basic tax replacing all other dues  payable to  the  Government  and  the  tax  payers  were  classified according  to  the  area  of lands held  by  them.   Such  a classification had an intelligible basis and had a  rational relation to the object of the Act.  As tax was to be  levied not because the land was productive but because the land was held in the State, the classification did not offend Art. 14 Of  the  Constitution, even though it might  impose  unequal burden of the tax on the owners of land on account of owners of less productive land being put on a larger burden. 80 (2)Section 5A did not offend Art. 14 and in the absence of express  provisions laying down the procedure  according  to

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which  the  provisional assessment was to be made,  the  Act could not be held invalid on the ground that it was  against the rules of natural justice. (3)Section  7, even if it were considered invalid  on  the ground  that it gave arbitrary power to the  Government  and offended Art. 14, was severable from the rest of the Act and would not affect the other provisions of the Act. (4)The Act did not infringe the fundamental rights in Art. 19(1)(f) as the rate of tax fixed by the Act was a very  low rate and the restrictions on those rights were reasonable. (5)  The Act was not in its nature expropriatary and did not offend  Art.  31.   As  there was  no  want  of  legislative competence, theAct could not be assailed as a piece  of colourable  legislation on the ground that though in form  a taxing  statute it, in effect, was intended  to  expropriate lands by imposing a tax too heavy for the land to bear. (6)The word "land" in Entry 49 of List II, Sch. 7, of  the Constitution, included "land on which a forest stands"  and, therefore,  under  that  Entry taxation  on  land  on  which forests   stood  was  permissible  and  legal.    The   Act, therefore,  could  not  be challenged as  being  beyond  the legislative competence of the State Legislature.

JUDGMENT: ORIGINAL JURISDICTION: Petitions Nos. 13 to 24, 42 and 46 to 54 of 1958. Petitions under Article 32 of the Constitution of India  for enforcement of Fundamental Rights. M.C.  Setalvad, Attorney-General for India, Syed  Mahmud, J.  B.  Dadachanji, S. N. Andley, Rameshwar Nath and  P.  L. Vohra, for the petitioners in petitions Nos. 13-18, and  46- 54 of 1958. C.K.  Daphtary, Solicitor-General of India, Syed  Mahmud, J.  B.  Dadachanji, S. N. Andley, Rameshwar Nath and  P.  L. Vohra, for the petitioners in Petitions Nos. 19-24 of 1958. S.N.  Andley, Rameshwar Nath, J. B. Dadachanji and P.  L. Vohra, for the petitioner in petition No. 42 of 1958. K.V.  Suryanarayana Iyer, Advocate General of Kerala  and Sardar Bahadur, for the respondents. 1960.  December, 9. The Judgment of Sinha, C.J., Jafer Imam, Subba Rao and Shah, JJ., was delivered 81 by Sinha, C. J. Sarkar, J., delivered a separate Judgment. SINHA, C. J.-In this batch of 22 petitions under Art. 32  of the    Constitution,    the    petitioners    impugn     the constitutionality of the Travancore-Cochin Land Tax Act,  XV of  1955,  as  amended by  the  Travancore-Cochin  Land  Tax (Amendment)  Act,  X  of 1957,  which  hereinafter  will  be referred to as the Act.  The Act came into force on June 21, 1955,  and  the  Amending  Act  on  August  6,  1957.    The petitioners  are owners of forest areas in certain parts  of the  State  of Kerala, which, before the  reorganisation  of States, formed part of the State of Madras.  The respondents to  the petitions are: (1) the State of Kerala and  (2)  the District Collector, Palghat: These petitions are based on allegations, which are, more or less,  similar, and the following allegations made  in  Writ Petition  No.  42  of 1958 may be taken as  typical  and  an extreme case, which was placed before us in detail to  bring into  bold  relief the full significance and effect  of  the legislation  impugned  in these cases.   The  petitioner  in Petition 42 of 1958 is a citizen of India, who owns  forests in certain parts of Palghat Taluk in Palghat District, which

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was part of the State of Madras before the reorganisation of States.   These forests are now in the State of Kerala.   Up to the time that these forests were in the State of  Madras, as  it then was, the Madras Preservation of Private  Forests Act, Madras Act XXVII of 1949, governed these forests.  Even after  these areas were transferred to the State of  Kerala, the  said Madras Act, XXVII of 1949, continued to  apply  to these  forests.   Under the said Madras Act  the  owners  of forests,  like  the petitioner, could  not  sell,  mortgage, lease  or  otherwise alienate any portion of  their  forests without the previous sanction of the District Collector; nor could they, without similar permission, cut trees or do  any act likely to denude the forest or diminish its utility,  as such.   The  District Collector, in exercise of  the  powers under  the  Act, does not ordinarily permit the  cutting  of more than a small 82 number of trees in the forest.  Thus the petitioner has  not the  right fully to exploit the forest wealth in his  forest area  and has to depend upon the previous permission of  the Collector.  In exercise of the powers given to the Collector under the Madras Act aforesaid, the petitioner’s lessee  was given  permission to cut certain trees in his forest,  which brings to the petitioner by way of income from. the  forest, a  sum of Rs. 3,100 per year.  Under the Act, a  tax  called land  tax at a flat rate of Rs. 2 per acre has been  imposed on  the petitioner.  In pursuance of the provisions  of  the Act,  as  amended as aforesaid, the  District  Collector  of Palghat, purporting to act under the provisions of s. 5A  of the  Act,  issued a notice to the  petitioner  provisionally assessing  the petitioner’s forest under the said Act  to  a sum  of  fifty thousand rupees per annum and  informing  the petitioner that, if no representation was made within thirty days, the said provisional assessment would be confirmed and a  demand  notice  would be issued.  As there  has  been  no survey  of  the  area of forest  land  in  the  petitioner’s possession, the District Collector has conjectured the  said area  to be twenty-five thousand acres.  The Petitioner  had made  an  application to the District  Collector  under  the Madras Preservation of Private Forests Act for felling trees in  an  area of one thousand acres, but  the  Collector  was pleased to grant permission to out trees from 450 acres only in the course of five years at the rate of 90 acres a  year. The petitioner has leased out that right to another  person, who  made  the  highest bid of Rs. 3,100 per  year,  as  the landlord’s  fee for the right to cut and remove  the  trees, and other minor produce.  Besides the demand aforesaid,  the revenue  authorities have levied about four thousand  rupees as  tax  on  the  surveyed  portions  of  the  forest.   The petitioner’s  forest has large areas of and rocks,  rivulets and   gorges.   The  petitioner,  in  those   circumstances, questions  the  constitutional  validity  of  the  Act,  the provisions of which will be examined hereinafter. These  petitions  have been opposed on behalf of  the  first respondent and the allegations and submissions 83 made  in  the petitions are sought to be controverted  by  a counter affidavit sworn to by an Assistant Secretary of  the Kerala  Gover nment  in the Revenue Department.   It  is  in similar terms, as a matter of fact printed in most of  these cases.  It is contended therein on behalf of the  respondent that  the  petitions are not maintainable in as much  as  no fundamental  rights of the petitioners have been  infringed; that the allegations about the income, from the forest lands are  not admi tted; and by way of submission, it  is  added,

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they are irrelevant for the purposes of these petitions.  It is  stated that the Act was passed with a view  to  unifying the system of land tax in the whole of the State of  Kerala. It  is  submitted  that the validity of the Act  has  to  be determined in the light of Art. 265 of the Constitution  and that  Arts.  19 and 31 were wholly out of the  way.   It  is denied  that the tax imposed was harsh or arbitrary, or  has the  effect of violating the petitioner’s right  of  holding property;  and  it  was asserted  that  the  allegations  in respect of income from the forests are entirely  irrelevant, as  the tax was not a tax on income, but was an  "impost  on land".   It  is  equally  irrelevant  whether  the  land  is productive  or not.  It is also contended that, in  view  of the provisions of Art. 31(5)(b)(i) of the Constitution, Art. 31(2)  could  not be relied upon by  the  petitioners.   The allegation  of the petitioners that the Act is a  device  to confiscate private forests is denied.  It is admitted  that, except  in certain cases, the entire area is unsurveyed  and that steps are being taken for surveying those areas.  It is also  stated that the areas shown in the notices  served  on the  petitioners are based on information available  to  the Collector  of  the District; and lastly, it is  stated  that only notice has been issued calling upon the petitioners  to make   their  representations,  if  any,  to  the   proposed provisional assessments.  The assessments have not yet  been made, and, therefore, there is no question of demand of  tax being  enforced  by  coercive  processes.   Finally,  it  is suggested  that the Act has been enacted for the  legitimate revenue purposes of the State. Before entering upon a discussion of the points in 84 controversy,  it  is convenient at this  stage  to  indicate briefly the relevant provisions of the Act which is impugned by  the  petitioners as ultra vires the  State  Legislature. The preamble of the Act is in these terms:-               "Whereas it is deemed necessary to provide for               the  levy of a low and uniform rate  of  basic               tax  on all lands in the State of  Travancore-               Cochin." Basic  tax  has been defined as "the tax imposed  under  the provisions  of  this  Act".  Section 3 lays  down  that  the arrangement made under the Act for the levy of the basic tax shall  be  deemed  inter  alia  to  be  a  general   revenue settlement  of  the State, notwithstanding anything  in  any statute, grant, deed or other transaction subject to certain provisos  not  material  for  our  present  purposes.    The charging section is s. 4, which is in these terms:-               "Subject to the provisions of this Act,  there               shall be charged and levied in respect of  all               lands  in the State, of  whatever  description               and held under whatever tenure, a uniform rate               of tax to be called the basic tax." Section  5  lays  down the rate of the  tax  which,  by  the Amendment,  has been raised to Rs. 2 per acre (two pies  per cent.  of  land  per annum) and the basic  tax  charged  and levied  at  that  rate  shall be  the  tax  payable  to  the Government  in lieu of any existing tax in respect of  land. Section 6 lays down that any stipulation in any contract  or agreement or lease or other transaction to pay land  revenue assessment of any land shall be construed as stipulation for the  payment  of the amount. of basic tax,  as  charged  and levied under the Act.  Section 7 is in these terms:-               "This  Act is not applicable to lands held  or               leased by the Government or any land or  class               of   lands  which  the  Government   may,   by

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             notification in the Gazette, either wholly  or               partially  exempt from the provisions of  this               Act." Sections  8  and  9  provide  for  the  continuance  of  the liability to pay certain dues in respect of existing tenures in addition to the basic tax in respect of lands covered  by those tenures.  Section 10 abolishes the 85 irrigation assessment charged on certain tank beds and other water  reservoirs  named and described therein.  Section  11 preserves  the  right  of the  Government  to  levy  certain irrigation and water cesses and lays down that the Act shall not  affect the power of the Government to levy any rate  or alter  any existing rate of irrigation or water cess on  any land, as they deem fit.  Cesses, other than those  mentioned in  s.  11,  are  also  abolished  by  s.  12.   Section  13 authorises  the Government to appoint such officers as  they deem necessary for the purpose of the Act.  Section 14  lays down  the bar of suits against the Government in respect  of anything done or any order passed under the Act.  Section 15 saves the right of the Government which accrued to it before the  Act  came  into force as also  the  conditions  of  any agreement. grant or deed relating to any land, except to the extent   indicated  in  the  Act.   Section  16  vests   the Government  with the power to make rules for  carrying  into effect the provisions of the Act, with particular  reference to  the  power to make rules for the  apportionment  of  the basic tax charged on certain kinds of holdings, for defining the  powers and duties of the officers appointed  under  the Act  and  for determining the kist instalments and  the  due date  for  the  payment thereof.  These  in  short  are  the provisions  of  the Act.  The Act, as indicated  above,  was amended by Act X of 1957 which substituted the words  "State of  Kerala" for the words "State of Travancore-Cochin"  and made certain other consequential changes.  The Amending  Act introduced section 5A, which has been very much assailed  in the  course of the argument before us and it is,  therefore, necessary to set it out in full.  It is in these terms:-               "S.  5A.  Provisional assessment of basic  tax               in the case of unsurveyed land8.-(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 person shall be liable to pay the  amount               covered in the provisional assessment.               86               (2)The Government after conducting a survey               of  the lands referred to in  sub-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." By s. 9, s. 3 of the Madras Revenue Recovery Act, 1864,  has been substituted in these terms:               "3.  Landholder when and to whom to pay kist.-               Every landholder shall pay to the Collector or               other officer empowered by ’him in this behalf

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             the land tax due from him on or before the day               fixed for payment under the rules framed under               s. 16 of the Land Tax Act, 1955." From  a review of the provisions of the Act, as  amended  as aforesaid,  it will be clear that the provisions of the  Act lay  down in barest outline the policy to impose  a  uniform and,  what is asserted to be, a low rate of land tax on  all lands in the State of Kerala.  Unlike other taxing statutes, it  does not make any provision for issue of notice  to  the assessee,  nor  is there any provision for submission  of  a return  by  the  assessee.   By s.  5A,  it  authorises  the Government to make a "provisional assessment" in respect  of land,  which  has not been surveyed,  and  such  provisional assessment  is made payable by the person made liable  under the Act.  It does not make any provision for any appeals  in cases  where  the assessee may feel  dissatisfied  with  the assessment.   The  Act  does contemplate the  making  of  "a regular  assessment  of  the basic tax".  But  it  does  not indicate  as to when the regular assessment would  be  made, except  indicating that it can be made only after  a  survey has  been  made in respect of the land  assessed.   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 87 from  the fact that a tax is levied at a flat  rate,  irres- pective  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. Such are the provisions and the effect of the Act, which has been  assailed  on  a number of grounds  on  behalf  of  the petitioners.   It is contended, in the first instance,  that inequality is writ large in the provisions of the Act, which is  clearly discriminatory in character and effect and  thus infringes Art. 14 of the Constitution.  As the Act does  not have any regard to the quality of the land or its productive capacity,  and  a tax at a flat rate of Rs. 2  per  acre  is proposed  to  be  levied  under  the  Act,  it  is   further contended, it imposes very unreasonable restrictions on  the right to hold property and is thus an invasion on the rights guaranteed  to  the petitioners under Art. 19(1)(f)  of  the Constitution.   The  Act  does not lay  down  any  provision calling  for a return from the assessee, for any enquiry  or investigation of facts before the provisional assessment  is made or for any right of appeal to any higher authority from the  order of provisional assessment; in fact, there  is  no provision for hearing the assessee at any stage.  The Act is of  an arbitrary character and is thus wholly  repugnant  to the guaranteed rights of the petitioners.  Section 7  quoted above  gives uncanalised, unlimited and arbitrary  power  to the Government to pick and choose in the matter of grant  of total  or partial exemption from the provisions of the  Act. It  also  suffers from the vice of discrimination.   It  has also been vehemently argued that the Act, though it purports to be a tax on land, is really a law relating to forests  in possession of the petitioners and would not come within  the purview  of entry 18 read by itself or in  conjunction  with entry  45 of List II, but is law relating to  forests  under entry 19.  If we tear the veil in which the real 88

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purpose and effect of the Act has been shrouded, ’it will  I appear that the true character and effect of the Act is  not to levy a tax on land, but to expropriate the private owners of   the  forests  without  payment  of  any    compensation whatsoever.   Lastly, it has been urged that the  whole  Act has  been  conceived  with a view  to  confiscating  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.  This last argument is  based  on  the assertion  that  the tax proposed to be  levied  on  private property  in the State of Kerala has absolutely no  relation to  the paying capacity of the persons sought to  be  taxed, with reference to the income they could derive, or  actually did derive from the property. On  behalf  of the State of Kerala,  the  learned  Advocate- General  has argued that, though in most of the cases,  that is to say, except in seven petitions (Petitions 21, 22,  47, 49,  50,  51 and 54) the lands have not been  surveyed,  the areas   mentioned  in  the  notices  proposing   provisional assessment have been ascertained through the local  agencies of the Government.  It was further contended that the  State had only declared the liability to the payment of the tax at a  flat  rate  of  Rs.  2  per  acre  in  respect  of  land, irrespective  of the income to be derived therefrom.   Hence there  was no necessity for making provision for a  detailed enquiry or investigation.  The rate of the tax being  known, and  the  area of the land to be taxed having  been  locally ascertained,  even though without any regular  survey,  what remained  was  merely quantifying the tax, which  was  of  a purely   administrative  character.   The   local   agencies estimated  the  land in possession  of  particular  persons. Those  persons were called upon to pay provisionally at  the rate  fixed  by the statute.  The State  has,  by  executive action,  appointed  authorities who are expected to  act  in accordance  with  the principle of natural  justice.   There was,  therefore,  no  need for  laying  down  any  elaborate procedure  as in other instances of taxing statutes.   There is  a  presumption  that  the  authority  appointed  by  the Government would act bona fide and in a                              89 proper   manner.  If there was any case of unfair  dealings, the  matter could be brought to the Court.  It  was  greatly emphasised  that  as  a  flat  rate  of  taxation  had  been envisaged by the Act and as ultimately the tax at that  rate would  be  realised from land found to be in  possession  of particular  persons  after  a regular  survey,  the  regular survey  to be ultimately made would automatically  determine the amount of tax to be paid and the adjustment of the taxes already  paid  could be made on that basis.   On  the  legal aspect   of  the  controversy  raised  on  behalf   of   the petitioners,   it   was  argued  that  the   Act   has   its justification in Art. 265 of the Constitution, which was not subject  to the provisions of Part III of  the  Constitution and  that, therefore, Arts. 14, 19, 31 could not be  pressed in aid of the petitioners.  It was also contended that  even if  the  Act  is,  in effect,  confiscatory,  it  cannot  be questioned,  being a taxing statute.  Finally, it was  urged that  the  question of the amount of income derived  by  the petitioners  from the property sought to be taxed is  wholly irrelevant,  because the Act was not a tax on income but  it was a tax on the property itself. The most important question that arises for consideration in these  cases,  in view of the stand taken by  the  State  of Kerala,  is  whether  Art.  265 of  the  Constitution  is  a complete answer to the attack against the  constitutionality

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of  the  Act.  It is, therefore, necessary to  consider  the scope  and  effect of that Article.  Article 265  imposes  a limitation on the taxing power of the State in so far as  it provides  that  the State shall not levy or collect  a  tax, except by authority of law, that is to say, a tax cannot  be levied or collected by a mere executive fiat.  It has to  be done  by  authority of law, which must mean valid  law.   In order  that  the law may be valid, the tax  proposed  to  be levied  must  be within the legislative  competence  of  the Legislature  imposing a tax and authorising  the  collection thereof  and,  secondly,  the tax must  be  subject  to  the conditions laid down in Art. 13 of the Constitution.  One of such  conditions  envisaged  by  Art.  13(2)  is  that   the Legislature shall not make any law which 90 takes away or abridges the equality clause in Art. 14, which enjoins the State not to deny to any person equality  before the law or the equal protection of the laws of the  country. It  cannot  be  disputed that if  the    Act  infringes  the provisions of Art. 14 of the Constitution, it must be struck down  as unconstitutional.  For the purpose of these  cases, we shall assume that the State Legislature had the necessary competence  to  enact the law, though the  petitioners  have seriously  challenged such a competence.  The  guarantee  of equal  protection  of the laws must extend  even  to  taxing statutes.  It has not been contended otherwise.  It does not mean that every person should be taxed equally.  But it does mean that if property of the same character has to be taxed, the  taxation  must  be by the same standard,  so  that  the burden  of taxation may fall equally on all persons  holding that  kind  and  extent  of  property.   If  the   taxation, generally  speaking, imposes a similar burden on  every  one with  reference  to  that  particular  kind  and  extent  of property,  on the same basis of taxation, the law shall  not be, open to attack on the ground of inequality, even  though the  result of the taxation may be that the total burden  on different persons may be unequal.  Hence, if the Legislature has   classified  persons  or  properties   into   different categories,  which  are  subjected  to  different  rates  of taxation  with  reference  to income  or  property,  such  a classification would not be open to the attack of inequality on  the ground that the total burden resulting from  such  a classification  is unequal.  Similarly, different  kinds  of property  may be subjected to different rates  of  taxation, but   so  long  as  there  is  a  rational  basis  for   the classification,  Art.  14 will not be in the way of  such  a classification  resulting  in unequal burdens  on  different classes  of properties.  But if the same class  of  property similarly situated is subjected to an incidence of taxation, which  results in inequality, the law may be struck down  as creating  an inequality amongst holders of the same kind  of property.  It must, therefore, be held that a taxing statute is  not  wholly  immune from attack on the  ground  that  it infringes the equality clause ill 91 Art. 14, though the Courts are not concerned with the policy underlying  a  taxing statute or whether  a  particular  tax could  not have been imposed in a different way or in a  way that the Court might think more just and equitable.  The Act has, therefore, to be examined with reference to the  attack based on Art. 14 of the Constitution. It  is common ground that the tax, assuming that the Act  is really  a taxing statute and not a confiscatory measure,  as contended on behalf of the petitioners, has no reference  to income, either actual or potential, from the property sought

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to be taxed.  Hence, it may be rightly remarked that the Act obliges  every person who holds land to pay the tax  at  the flat rate prescribed, whether or not he makes any income out of  the property, or whether or not the property is  capable of yielding any income.  The Act, in terms, claims to be  "a general   revenue   settlement  of  the   State"   (s.   3). Ordinarily, a tax on land or land revenue is assessed on the actual  or the potential productivity of the land sought  to be  taxed.   In other words, the tax has  reference  to  the income  actually made, or which could have been  made,  with due diligence, and, therefore, is levied with due regard  to the incidence of the taxation.  Under the Act in question we shall take a hypothetical case of a number of persons owning and possessing the same area of land.  One makes nothing out of the land, because it is arid desert.  The second one does not  make  any  income, but could raise some  crop  after  a disproportionately  large investment of labour and  capital. A third one, in due course of husbandry, is making the  land yield  just  enough to pay for the incidental  expenses  and labour  charges besides land tax or revenue.  The fourth  is making  large profits, because the land is very fertile  and capable  of  yielding  good crops.  Under  the  Act,  it  is manifest  that  the fourth category,  in  our  illustration, would  easily  be able to bear the burden of the  tax.   The third  one may be able to bear the tax.  The first  and  the second one will have to pay from their own pockets, if  they could  afford the tax.  If they cannot afford the  tax,  the property is 92 liable to be sold, in due process of law, for realisation of the public demand.  It is clear, therefore, that  inequality is  writ  large  on the Act and is.  inherent  in  the  very provisions  of  the taxing section.  It is also  clear  that there  is no attempt at classification in the provisions  of the Act.  Hence, no more need be said as to what could  have been  the  basis for a valid classification.  It is  one  of those  cases  where  the  lack  of  classification   creates inequality.    It  is,,  therefore,  clearly  hit   by   the prohibition  to  deny equality before the law  contained  in Art.  14  of the Constitution.  Furthermore, sec. 7  of  the Act, quoted above, particularly the latter part, which vests the Government with the power wholly or partially to  exempt any  land  from  the  provisions  of  the  Act,  is  clearly discriminatory in its effect and, therefore, infringes  Art. 14  of  the  Constitution.  The Act does not  lay  down  any principle  or  policy for the guidance of  the  exercise  of discretion  by  the Government in respect of  the  selection contemplated  by  a. 7. This Court has  examined  the  cases decided by it with reference to the provisions of Art. 14 of the Constitution, in the case of Shri Ram Krishna Dalmia  v. Shri Justice S. B. Tendolkar and others (1).  S. R. Das,  C. J.,  speaking  for  the  Court  has  deduced  a  number   of propositions  from  those decisions.  The  present  case  is within  the mischief of the third proposition laid  down  at pages  299  and 300 of the Report, the relevant  portion  of which is in these terms:-               "A statute may not make any classification  of               the  persons  or  things for  the  purpose  of               applying  its provisions but may leave  it  to               the discretion of the Government to select and               classify   persons  or  things  to  whom   its               provisions  are to apply.  In determining  the               question of the validity or otherwise of  such               a  statute the Court will not strike down  the               law out of hand only because no classification

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             appears on its face or because a discretion is               given to the Government to make the  selection               or  classification but will go on  to  examine               and ascertain if the statute has laid down any principle  or  policy for the guidance of  the               exercise  of discretion by the  Government  in               the matter of the selection or classification.               93               After such scrutiny the Court will strike down               the  statute  if  it does  not  lay  down  any               principle  or policy for guiding the  exercise               of discretion by the Government in the  matter               of selection or classification, on the  ground               that  the statute provides for the  delegation               of  arbitrary  and uncontrolled power  to  the               Government so as to enable it to  discriminate               between  persons or things  similarly  situate               and  that,  therefore, the  discrimination  is               inherent in the statute itself" (p. 299 of the               Report). The observations quoted above from the unanimous judgment of this  Court apply with full force to the provisions  of  the Act.    It   has,   therefore,  to   be   struck   down   as unconstitutional.   There  is no  question  of  severability arising in this case, because both the charging sections, s. 4  and s. 7, authorising the Government to grant  exemptions from  the provisions of the Act, are the main provisions  of the Statute, which has to be declared unconstitutional. The  provisions of the Act are unconstitutional viewed  from the  angle  of  the  provisions  of  Art.  19(1)(f)  of  the Constitution, also.  Apart from the provisions of ss. 4  and 7 discussed above, with reference to the test under Art.  14 of  the Constitution, we find that s. 5(A) is  also  equally objectionable  because it imposes unreasonable  restrictions on the rights to hold property, safeguarded by Art. 19(1)(f) of  the  Constitution.   Section  5(A)  declares  that   the Government is competent to make a provisional assessment  of the  basic  tax payable by the holder  of  unsurveyed  land. Ordinarily,  a taxing statute lays down a regular  machinery for  making assessment of the tax proposed to be imposed  by the  statute.  It lays down detailed procedure as to  notice to  the  proposed assessee to make a return  in  respect  of property proposed to be taxed, prescribes the authority  and the  procedure for hearing any objections to  the  liability for  taxation or as to the extent of the tax proposed to  be levied,  and  finally,  as to the  right  to  challenge  the regularity of assessment made, by recourse to proceedings in a   higher  Civil  Court.   The  Act  merely  declares   the competence of the Government to make 94 a  provisional  assessment,  and by virtue of s.  3  of  the Madras  Revenue Recovery Act, 1864, the land-holders may  be liable  to  pay  the tax.  The Act being silent  as  to  the machinery  and  procedure  to  be  followed  in  making  the assessment  leaves  it  to  the  Executive  to  evolve   the requisite  machinery and procedure.  The whole  thing,  from beginning  to end, is treated as of a purely  administrative character,  completely ignoring the legal position that  the assessment  of a tax on person or property is at least of  a quasi-judicial character.  Again, the Act does not impose an obligation on the Government to undertake survey proceedings within  any  prescribed or ascertainable  period,  with  the result  that  a  land-holder may be  subjected  to  repeated annual  provisional assessments on more or less  conjectural basis  and liable to pay the tax thus assessed.  Though  the

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Act was passed about five years ago, we were informed at the Bar that survey proceedings had not even commenced.  The Act thus proposes to impose a liability on land-holders to pay a tax  which is not to be levied on a judicial basis,  because (1) the procedure to be adopted does not require a notice to be given to the proposed assessee; (2) there is no procedure for  rectification  of mistakes committed by  the  Assessing Authority;   (3)  there  is  no  procedure  prescribed   for obtaining the opinion of a superior Civil Court on questions of  law, as is generally found in all taxing  statutes,  and (4)  no  duty is cast upon the Assessing  Authority  to  act judicially in the matter of assessment proceedings.  Nor  is there any right of appeal provided to such assessees as  may feel aggrieved by the order of assessment. 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  Art.  31  of  the Constitution,  have  the effect of eliminating  the  private owners through the machinery of the Act.  The petitioner  in petition 42 95 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 s. 5(A).  The petitioner is making an income of Rs. 3,100 per 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  on 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 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.   For   these reasons, as also for the reasons for which the provisions of ss.  4 and 7 have been declared to be  unconstitutional,  in view  of the provisions of Art. 14 of the Constitution,  all these  operative  sections of the Act, namely 4, 5A  and  7, must  be  held to offend Art. 19(1)(f) of  the  Constitution also. The petitions are accordingly allowed with costs against the contesting respondent, the State of Kerala. 96 SARKAR,J.-  These petitions were filed under Art.32  of  the

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Constitution,  challenging the validity of  the  Travancore- Cochin Land Tax Act, 1955, as amended by Act X of 1957.  The principal Act was passed by the legislature of the State  of Travancore-Cochin  and the Amending Act, by the  legislature of  the State of Kerala, in which the State  of  Travancore- Cochin had been merged.  The petitioners are owners of lands in  the State of Kerala.  The Act as amended  and  hereafter referred  to as the Act, levied a certain basic tax  on  all lands in the State of Kerala.  The petitioners say that  the levy is illegal and violates their fundamental rights. It  appears from the preamble that the Act was passed as  it was  deemed necessary to provide for the levy of a  low  and uniform  rate of basic tax on all lands in the  State.   The Act provides that the arrangement made by it for the levy of the  basic  tax  is to be deemed to  be  a  general  revenue settlement  of  the  State.  Section 4 of  the  Act  is  the charging  section  and  it lays down  that  there  shall  be charged and levied in respect of all lands in the State,  of whatever  description  and  held under  whatever  tenure,  a uniform  rate of tax to be called the basic tax.  Section  5 fixes the rate of the tax at 2 n.P. per cent which works out at  Rs.  2 per acre per annum.  This section  also  provides that  the  basic  tax  shall  be  the  tax  payable  to  the Government  in lieu of any other existing tax in respect  of land.   Section  12  abolishes all  cesses  on  land  except irrigation cess. The  first  ground  on  which the validity  of  the  Act  is challenged is that it offends the provision as to the  equal protection  of  the  laws  contained  in  Art.  14  of   the Constitution.  The Act applies to all lands in the State and it  imposes an uniform rate of tax, namely, Rs. 2 per  acre. It  is  said that all lands in the State have not  the  same productive  quality; that some are waste lands  and  others, lands  of varying degrees of fertility.  The  contention  is that  the tax weighs more heavily on owners of  waste  lands than  on  owners of fertile lands.  It is said  that  it  is bound to happen that some owners make no income out of their lands 97 or  make a small income and they would have to pay  the  tax out  of their pocket while the owners of better  classes  of lands  yielding larger income would be able to pay  the  tax out of the income from the lands.  It is contended that  the Act  therefore  discriminates  between  several  classes  of owners  of lands in the State and is void as infringing  the equality  clause  in the Constitution.  It may  be  conceded that  all lands in the State are not of the same  degree  of fertility.  I am however unable to see that because of that, the  Act can be said to discriminate between the  owners  of them. What  is  really  said appears to be that the  Act  makes  a classification  of the owners of lands according  to  areas. Assume that the Act does so.  The question then is, is  such a  classification illegal?  The equal protection  clause  in the  Constitution  does  not mean that  there  shall  be  no classification for the purpose of any law.  It has been said by this Court in Budhan Choudhury v. The State of  Bihar(1): "It  is now well established that while article  14  forbids class   legislation,   it   does   not   forbid   reasonable classification  for the purposes of legislation.  In  order, however, to pass the test of permissible classification  two conditions   must  be  fulfilled,  namely,  (i)   that   the classification   must   be  founded   on   an   intelligible differential which distinguishes persons or things that  are grouped together from others left out of the group and  (ii)

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that  differential  must  have a rational  relation  to  the object. Bought to be achieved by the statute in question". On  the  argument  of  the  petitioners,  the  Act  makes  a classification   between  owners  of  lands  using  as   the differentia,  the  area  of  the land  held  by  them.   The question then, is, is that differentia intelligible and  has that  differentia a rational relation to the object  of  the Act?   Now it seems to me that both the tests are  satisfied in  the  present  case.   The  tax  payers  are classified according to the area of lands held by them.  That is  quite an  intelligible  basis on which to make  a  classification; holders of varying areas of land can (1)  [1955] 1 S.C.R. 1045 1049. 13 98 quite understandably be placed in different classes. Next,   has  such  a basis  of  classification,  a  rational relation  to  the object of the Act?  The Act  is  a  taxing statute.   It  is  intended  to  collect  revenue  for   the governmental business of the State.  It says that one of its objects  is to provide a low and uniform rate of basic  tax. Another  object  mentioned  is to  replace  all  other  dues payable to the Government in respect of the ownership of the land by a uniform basic tax.  Why is it to be said that  the use of the area of land held as the basis of  classification has  no  rational  relation to these  objects.   I  find  no reason.   The  object is to tax land held in the  State  for raising  revenues.   It is the holding of the  land  in  the State  that  makes the owner liable to pay  tax.   It  would follow that the quantum of the tax can be reasonably  linked with the quantum of the holding. Why is it said that the classification on the basis of  area is bad?  It is only because it imposes unequal burden of the tax on the owners of land; because owners of less productive land  would have a larger burden put on them.  Now  if  this argument  is  right, then tax on land can  be  imposed  only according  to its productivity.  I have not been  shown  any authority which goes to this length.  I am further unable to see how productivity as the basis of classification could be said  to  have a more rational relation to the object  of  a statute collecting revenue by taxing land held in the State. The  tax  is not levied because the land is  productive  but because  the  land is held in the State.  Again if  the  tax which  could be imposed on land had to be correlated to  its productivity,  then  the State would have no  power  to  tax unproductive land and the provision in the Constitution that it  would have power to tax land would, to that  extent,  be futile.  It seems to me that a contention leading to such  a result cannot be accepted. Reliance  was placed for the petitioners on Cumberland  Coal Company  v.  Board  of Revision on Tax  Assessments  (1)  in support  of the contention that a tax on land not  based  on its productivity, violates Art. 14. (1)  76 L.Ed. 146. 99 I am unable to hold that this case supports the  contention. What  had  happened  there was that a  certain  statute  had imposed  a tax ad valorem on all coal situated in a  certain area  and in assessing the tax, the coal of  the  Cumberland Coal Company had been assessed by the authorities  concerned at  its full value while the coal of the rest of  the  class liable  to  the  tax had been assessed  at  a  lower  value. Thereupon  it  was  held that  "the  intentional  systematic undervaluation by State Officials-of taxable property of the same  class belonging to other owners contravenes  the  con-

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stitutional  right  of one taxed on the full  value  of  his property."  On this view of the matter the Supreme Court  of America  directed  readjustment  of  the  assessments.   The statute  with which this case was concerned had  levied  the tax ad valorem which, it may be, is the same thing as a  tax correlated to productivity.  The case had therefore  nothing to do with the question that a tax on coal otherwise than ad valorem  would be unconstitutional.  In fact this  case  did not declare any statute invalid. Then  it  seems  to  me  that  if  the  contention  of   the petitioners  is right, and land could be taxed only  on  its productivity, for the same reason, taxes on all other things would have to be correlated to the income to be derived from them.  The result would be far reaching.  I am not  prepared to  accept  a  contention producing such  a  result  and  no authority has been cited to lead me to accept it. It may be that as lands are not of equal productivity,  some tax  payers may be able to pay the tax out of the income  of the land taxed while others may have to find the money  from another source.  To this extent the Act may be more hard  on some  than on others.  But I am unable to see that for  that reason  it is unconstitutional.  All class legislation  puts some in a more disadvantageous position than others.  If the classification  made by the law is good, as I think  is  the case  with  the present Act, the  resultant  hardship  alone cannot make it bad.  It was said in Magonn v.     Illinois Trust and Savings Bank(1), "It is hardly (1) 42 L.Ed. 1037, 1043. 100 necessary  to say that hardship, impolicy, or  injustice  of state  laws  is  not  necessarily  an  objection  to   their constitutional validity." It  is  then  said that sub-sec. (1) of  s.  5A,  which  was introduced  into the Act by the Amending Act,  offends  Art. 14.  The impugned provision is in these terms:               S.5A.  (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 person shall be liable to  pay               the   amount   covered  in   the   provisional               assessment.  This  section  was enacted as at the date of the  Act,  all lands had not been surveyed and so the areas of all holdings were  not known.  In the absence of such knowledge  the  tax which was payable on the basis of the areas of the  holdings could  not be assessed on unsurveyed lands, so  the  section provides  that pending the survey, the Government will  have power to make a provisional assessment on unsurveyed  lands. This provision was necessary as the survey was bound to take time. The contention is that a. 5A(1) gives arbitrary power to the Government to make a provisional assessment on any person it chooses, leaving out others from the provisional assessment. I am unable to read the sub-section in that way.  It may  be that  it leaves it to the Government to make  a  provisional assessment  if  it  chooses.  This does not  result  in  any illegal  classification.  The surveyed lands and  unsurveyed lands  are  distinct  classes  of  properties  and  may   be differently  treated.  Again, all unsurveyed lands would  on survey have to pay tax from the beginning.  It would  follow that  the  holders of both classes of lands  are  eventually subjected  to  the same burden.  As to the  contention  that under this section the Government has the right to levy  the

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provisional assessment at its choice on some and not on  all holders of unsurveyed lands, I am unable to agree that  this is a proper reading of the section.  In my view, the 101 expression  "a person" in the section does not lead to  that conclusion.  That expression should be read as "all persons" and  it  is easily capable of being so  read.   The  section says, "It shall’ be competent for the’ Government to make  a provisional  assessment  of  the  basic  tax  payable  by  a person".   Now  the  basic tax is  payable  by  all  persons holding  land.  So the provisional assessment, if made,  has to be on all persons holding lands whose lands have not been surveyed.   The  Government  cannot,  therefore,  pick   and choose.   A  statute  is intended to be  legal  and  it  has therefore to be read in a manner which makes it legal rather than in a manner which makes it illegal.  If the  Government did  not make the provisional assessment in the case of  all liable  to  such assessment, then  the  Government’s  action could  be  legitimately questioned.  It has however  not  in fact  been said in these petitions that in deciding to  make the  provisional  assessment  the Government  has  made  any discrimination   between   the  persons   liable   to   such assessment. Section  5A(1)  is also attacked on the ground  that  it  is against  rules  of natural justice in that it does  not  say that in making the provisional assessment, any hearing would be given to the person sought to be assessed or requiring  a return  from him or giving him a right of appeal in  respect of  the provisional assessment made.  It is true  that  the’ section  does  not  expressly provide for  a  hearing  being given.   It  seems to me however that if  according  to  the rules  of  natural justice the assessee was  entitled  to  a hearing,  an  assessment  made without  giving  him  such  a hearing would be bad.  The Act must be read so as to imply a provision  requiring  compliance with the rules  of  natural justice.   Such a reading is not impossible in  the  present case  as  there is nothing in the Act  indicating  that  the rules of natural justice need not be observed. It  was  said in Spack man v. Plumstead Board of  Works  (1) where  a  statute requiring an architect to give  a  certain certificate  which did not provide the procedure as  to  how the   architect  was  to  conduct  himself,  came   up   for consideration that, "No doubt, in the (1)  10 A.C. 229, 240. 102 absence of special provisions as to how the person who is to decide  is to proceed, the law will imply no more than  that the  substantial  requirements  of  justice  shall  not   be violated." Again in Maxwell on Statutes (10th ed.) p. 370 it has  been  said,  "In  giving  judicial  powers  to   affect prejudicially the rights of person or property, a statute is understood as silently implying, when it does not  expressly provide, the condition or qualification that the power is to be  exercised  in accordance with the fundamental  rules  of judicial  procedure,  such,  for  instance,  as  that  which requires  that before its exercise, the person sought to  be prejudicially affected shall have an opportunity of  defend- ing  himself." In so far as this Act confers a power on  the Government  to  discharge  the judicial  duty  of  making  a provisional assessment, which the petitioners say, it  does, it must imply that the judicial process has to be observed. As  regards the return, that seems to me not to be  of  much consequence.   If the assessee is entitled to be heard,  the fact  that  he  is not asked to make  a  return,  would  not constitute  a departure from the rules of  natural  justice.

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Likewise, the absence of a right of appeal is not  something on which the petitioners can rely.  Rules of natural justice do not require that there must always be a right of  appeal. Under  the Act it is the Government which makes the  assess- ment  and it would not be unreasonable to hold that in  view of  the high authority of the person assessing, the  absence of a right of appeal is not likely to cause any  miscarriage of  justice.   I  am therefore unable to hold  that  in  the absence  of  express provisions laying  down  the  procedure according to which the provisional assessment is to be made, the Act has to be held invalid. It may here be stated that in those instances where, in  the present  cases, provisional assessments had been made,  the, assessees  had  either themselves supplied the area  of  the lands  held  by them or the area had been  determined  after giving them a hearing.  After the area has been determine  , the  amount  of  the  tax payable is  decided  by  a  simple calculation at the rate 103 of  Rs. 2 per acre of land held and with regard to this,  no hearing is required. Then  again  sub-see.  (2)  of  s.  5A  provides  that   the Government after conducting a survey of the lands  mentioned in sub-sec. (1) under which provisional assessment is to  be made, shall make a regular assessment and adjustments  would have  to be made in regard to tax already paid on the  basis of the regular assessment.  A point is made that there is no time  limit fixed within which the regular assessment is  to be  made and so the Act leaves it to the arbitrary  decision of the Government when to make the regular assessment.  I do not  think that this contention is correct.  Properly  read, the  section  in the absence of any indication as  to  time, means that regular assessment would have to be made as  soon after the survey, as is reasonably possible. It is also said that s. 7 of the Act offends Art. 14.   This section  gives  power to the Government to exempt  from  the operation  of  the Act such lands or class of lands  as  the Government  may by notification decide.  This  section  does not indicate on what grounds the exemption is to be granted. It  therefore seems to me that it gives arbitrary  power  to the  Government  and offends Art. 14.  But  the  section  is clearly severable from the rest of the Act.  If the  section is  taken out of the Act, the operation of the rest  of  the Act will not in the least be affected.  The only effect will then be that the Government will have no power to exempt any land  from  the tax.  That will not in any  way  affect  the other provisions of the Act.  The invalidity of this section is therefore no reason for declaring the entire Act illegal. It  may  be  pointed  out that it  is  not  alleged  in  the petitions  that  the Government has exempted  any  lands  or class of lands from the operation of the Act. It is contended that s. 8 of the amending Act also shows the arbitrary nature of the Act.  That section provides that  if any difficulty arises in giving effect to the provisions  of this  Act,  the  Government may by  order  do  anything  not inconsistent with such provisions which appears to it to  be necessary or expedient 104 for  removing  the  difficulty.  This is a  common  form  of provision now found in many Acts.  The power given under  it cannot  be said to be uncontrolled for it must be  exercised consistently with the Act and to remove difficulties arising in  giving effect to the Act.  In any event, this  provision is contained in the amending Act only.  Even if the  section be held to be invalid that would not affect, the rest of the

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amending Act or any question that arises on these petitions. The  validity  of the Act is also challenged on  the  ground that  it  infringes Art. 19, cl. (1), sub-cls. (f )  &  (g). This  challenge seems to me to be wholly  untenable.   Apart from  the  question  whether a  taxing  statute  can  become invalid  as offending Art. 19, as to which the  position  on the authorities does not seem to be very clear, it is  plain that  Art. 19 permits reasonable restrictions to be  put  on the rights mentioned in subcls. (f ) & (g).  Now there is no dispute that the rate of tax fixed by the Act is a very  low rate.   It  has  not  been  said  that  the  rate  fixed  is unreasonable.   It clearly is not so.  The  restrictions  on these rights under Art. 19(1), (f) & (g) put by the Act,  if any, are clearly reasonable.  These rights cannot  therefore be said to have been infringed by the Act. The  lands  of  the petitioners are  lands  on  which  stand forests.   It is said that under the Madras Preservation  of Private  Forests Act, (Act XXVII of 1949), which applies  to the  lands with which we are concerned as they are  situated in  an  area which previously formed part of  the  State  of Madras,  the owners of the forests can work them  only  with the permission of the officer mentioned in that Act.  It  is said  that the control imposed by the officer has been  such that  the income received from the forest is much less  than the  tax  payable under the Act in respect of  the  land  on which  the  forest stands.  Taking by  way  of  illustration Petition No. 13, it is pointed out that the income from  the forest  with which that petition is concerned was Rs.  8,477 for the year 1956-57 while the tax payable under the Act for more or less the same period was Rs. 1,51,000.  I am  unable to hold that because of this the Act offends Art. 19(1), (f) and (g).                             105 It  is not stated that the land is not capable of  producing any  income other than the income from the forest   standing on  it.  There is nothing to show that in all times to  come the  income  from  the land including the  income  from  the forest, will be less than the tax imposed on it by the  Act. The  area  of  the  land concerned in  Petition  No.  13  is enormous  being about 75,500 acres.  I am further unable  to hold the impugned’ Act to be invalid because of action  that may be taken under another Act, namely, the Madras Act XXVII of 1949. The  validity  of the Act is challenged also on  the  ground that it offends Art. 31 of the Constitution.  I am unable to see  any  force  in  this contention.   If  the  statute  is otherwise  valid, as I have found the present Act to be,  it cannot, even if it deprives any person of property, be  said to  offend  Art. 31(1).  It has been held by this  Court  in Ramjilal  v.  Income-tax Officer,.   Mohindargarh  (1)  that "clause  (1) of Art. 31 must be regarded as  concerned  with deprivation of property otherwise than by the imposition  or collection  of  tax, for otherwise Art. 265  becomes  wholly redundant." No question of cl. (2) of Art. 31 being violated arises  here for the Act does not deal with any  acquisition of property. It  is  also  said that the Act is  a  colourable  piece  of legislation,  namely, that though in form a  taxing  statute it, in effect, is intended to expropriate lands, held by the citizens  in the State by imposing a tax too heavy  for  the land to bear.  As was said in Raja Bhairebendra Narayan Bhup v.  The  State  of Assam (2)  "The  doctrine  of  colourable legislation is relevant only in connection with the question of  legislative  competency".  In the  present  case,  there being  in my view, no want of legislative competency in  the

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legislature which passed the Act in question, the Act cannot be assailed as a piece of colourable legislation.  I may add that  I  do not accept the argument that the Act is  in  its nature  expropriatary  or-  that the tax imposed  by  it  is really excessive. (1)[1951] S.C.R. 127, 136. (2) [1956] S.C.R. 303. 14 106 I come now to the last argument advanced by the petitioners. It  is  said  that   the  Act  was  beyond  the  legislature competence  of the  State Legislature.  It is conceded  that the  State Legislature has power to   impose a tax  on  land under  entry  49 of List 2 in the Seventh  Schedule  to  the Constitution, but it is said that land as mentioned in  that entry does not include lands on which forests stand.  It  is contended that the State Legislature has power to  legislate about  forests  under entry 19 of that List and also  as  to land under entry 18.  There is however no power to impose  a -axon  forests while there is power under entry 49  of  that list  to tax land.  Therefore, it is said, that there is  no power to impose tax on lands on which forests stand and  the Act in so far as it imposes tax on lands covered by forests, which   the   lands  of  the  petitioners  are,   is   hence incompetent. It  is not in dispute that a State Legislature has no  power to impose a tax on a matter with regard to which it has  the power  to legislate but has been given no express  power  to impose a tax.  Therefore, I agree, that a State  Legislature cannot  impose tax on forests.  I am however  not  convinced that  "land" in entry 49 is not intended to include land  on which  a  forest stands.  No doubt, a forest must  stand  on some  land.  In Shorter Oxford Dictionary, one of the  mean- ings  of  "forest" is given as an extensive  tract  of  land covered  by  trees and undergrowth,  sometimes  intermingled with pastures.  The concepts of forest and land however  are entirely different.  The principal idea conveyed by the word "forest"  is the trees and other growth on the land.   Under entry  19 there may no doubt be legislation with  regard  to land in so far it is necessary for the purpose of the forest growing  on  it.   It  is well known  that  entries  in  the legislative lists have to be read as widely as possible.  It is  not necessary to cut down the plain meaning of the  word ,"land" in entry 49 to give full effect to the word "forest" in  entry 19.  In my view, the two entries namely, entry  49 and   entry  18  deal  with  entirely   different   matters. Therefore, under entry 49 taxation                             107 on land on which a forest stands is permissible and legal. For these reasons I would dismiss these petitions. BY COURT:-In accordance with the opinion of the majority  of the  Court, these Petitions are allowed with  costs  against the contesting Respondent, the State of Kerala. Petitions allowed.