Twyford Tea Co. Ltd. & ANR Vs. The
State of Kerala & ANR  INSC 4 (15 January 1970)
15/01/1970 HIDAYATULLAH, M. (CJ)
HIDAYATULLAH, M. (CJ) SHELAT, J.M.
GROVER, A.N. RAY, A.N.
CITATION: 1970 AIR 1133 1970 SCR (3) 383 1969
SCC (1) 633
D 1972 SC 828 (20,25) R 1972 SC 845 (15)
Kerala Plantation (Additional Tax) Act, 1960
(Act 17 of 1960) and the Kerala Plantation (Additional Tax)Amendment I Act 1967
(Act 19 of 1967),s. 3-Constitution of India, Art.l4-Charge of uniform tax from
plantations alleged to be defferently situated-Validity of tax-Competency of
Kerala legislature to levy land tax in absence of enabling entries in Seventh
Schedule, Constitution of India.
In the Kerala Plantation (Additional Tax) Act
1960 (Act 17 of 1960) there is a levy of additional tax on plantations.
"Plantations" mean land used for
growing cocoanut, Areca nut, Rubber, Coffee, Tea, Cardamom and Pepper. Under s.
3 of the Act, for each financial year a Plantation tax additional to the basic
tax charged on land tax under the Land Tax Act 1955 is payable at the rate
mentioned in Schedule I of the Act, the said rate being Rs. 8 per acre.
Plantations of 5 acres or below held by a Person do not attract tax. For the
purpose of finding out the extent of the; Plantation in acres held by a person
a method of calculation is laid down in Schedule 11. Act 17 of 1960 was
-amended by the Kerala Plantation (Additional Tax) Amendment Act 1967 (Act of
1967). By the amending Act the word 'additional' is 'removed from all places
and it is declared that the tax is additional to land revenue or any tax in
lieu thereof, if any, payable in respect of such land. The unit of assessment
is charged from acre to hectare, and the rate of tax in Schedule I is raised to
Rs. 501per hectare. The tax is payable in respect of plantations of two
hectares or more with an exemption for the first hectare. According to the new
Schedule II the extent of the, plantation for the purpose of tax in-the case of
cocoanut, areca nut, rubber, coffee and pepper plantations is arrived at by
dividing the total number of trees, plants or vines standing thereon by a
number specified in each case. In the case of tea and cardamom the extent of
the plantation is the extent of lands on which these plants are grown and have
begun to yield crops.
The petitioner company was incorporated in
India and the majority of its share-holders were Indians. It owned a tea estate
in the Kuttikenam area in the Peermade Hills in Kerala State. The company paid
without protest the additional tax levied on plantation by Act 17 of 1960. When
the rate became heavier as a result of the amendments made.
by Act 19 of 1967 the company field the
present petitions under Art. 32 of the Constitution. The challenge was based mainly
on Art. 14 of the Constitution. It was urged that there were differences of
fertility and rainfall in the different areas where the plantations were
Figures cornpiled by the Tea Board were
submitted to show the difference in yield between different estates. Relying on
Moopil Nair's case it was argued that the uniform tax on unequals resulted in
discrimination (a) as between the tea plantations themselves and (b) as between
different kinds of plantations. The competence of the Kerala Legislature to
levy a land tax was also challenged.
HELD: Per Hidayatullah, C.J., and
Vaidialingam and Ray, JJ.--The Petitions must be dismissed.
(i) The legislature has a wide range of
selection and freedom in appraisal not only in the objects of taxation and the
manner of taxation but also in the determination of the rate or rates
applicable. If production were always to be taken into account there will have
to be a settlement for every year and the tax will become a kind of income-tax.
The burden of proving discrimination is
always heavy and heavier still when a taxing statute is under attack.. The
burden is on the person complaining of discrimination. The burden is proving
not possible 'inequality' but hostile 'unequal' treatment. This is more so when
uniform taxes are levied. The State cannot be asked to demonstrate equality.
Simply stated the law is this : Difference in
treatment must be capable of being reasonably explained in the light of the
object for which the particular legislation is undertaken.
This must be based on some reasonable
distinction between the cases differentially treated. When differential
treatment is not reasonably explained and justified the treatment is
discriminatory. If different subjects are equally treated there must be some basis
on which the differences have been equalised, otherwise discrimination will be
found. To be able to succeed in a charge of discrimination, a person must"
establish conclusively that persons equally circumstanced have been treated
unequally and vice versa. [393 C-D, H; 394 E-G] (ii) Applying the above.
principles the impugned law does not single out any particular plantation for
hostile or unequal treatment. The Legislature thinks that Rs. 50 per hectare in
the case of cardamom and tea is reasonable levy and this is equal to other
plantations, where the crop yielding plants and trees have to be converted into
hectares according to a formula. It is obvious that the legislature has made an
attempt at equalisation of tax burden for different plantations. [395 C] In
Moopil Nair's case this Court considered the tax therein impugned to be
discriminatory because it paid no heed to quality or productive capacity of
land and the tax was also held to be confiscatory since owners of unproductive
land were liable to be eliminated by slow degrees. The present was however not
a case where barren lands have been subjected to equal tax with productive
lands. The tax is only levied on crop yielding land. In some cases where the
crop may be scattered over a wide area, there is an elaborate mechanism to
determine the: extent of the crop yielding plantation. [389 E-F, 391 F] As
between different tea gardens it was not possible to say that the difference in
yield was entirely due to natural circumstances and no other cause.
It may be conceded that a uniform tax falls
more heavily on some plantations than on others because the profits are widely
discrepant. But that by itself cannot involve discrimination, for then hardly
any tax direct or indirect would escape the same sensure. The rich and the
-poor pay the same taxes irrespective of their incomes in many instances such
as the sales-tax and profession tax etc. [389 H-390 B] Nunnathat Thathunni
Moopil Nair v. The State of Kerala,  3 S.C. R. 77, State of Andhra
Pradesh v. Nalla Raja Reddy, [19671 3 S.C.R. 28, New Mank Chowk Spinning and
Weaving Mills Co. Ltd. v. Municipal Corporation of the City of Ahmedabad,
 2 S.C.R. 679 and The State of Kerala v. Haji K. Haji K. Kutty Naha
A.I.R. 1969 S.C. 378, distinguished.
385 Shri Ram Krishna Dalmia v. Shri Justice
S. R. Tendolkar and Others, [ 1 9591 S. C. R. 279, Fast Indian Tobacco Co. v. Stute
of Andhra Pradesh,  1 S.C. R. 404 and Khandige Sham Bhat and Others, v.
The Agricultural Income Tax Officer,  3 S.C.R. 809, applied.
Thuttampara Planting Co. v. Tahsildar,
Chittur, 1964 Kerala L.T. 47, Essa Ismail and another v. State of Kerala and
others, I.L.R. (1965) Kerala 619 and States in Madden v. Kentucky, (1940) 309
U.S. 83; 84 L.Ed. 590, -referred to.
(iii) immediately after the Travancore-Cochin
Land Tax Act, 1955 as amended by the Travancore-Cochin Land Tax Act 10 of 1957
was declared invalid by this Court in Moopil Nair's case, the Kerala Land Tax
Act 1961 was passed following an ordinance. That Act was included in the 9th
Schedule to the Constitution at No. 38 and received the protection of Art.
31-B. The competency of the Kerala Legislature to impose land tax was therefore
no longer open to dispute.
Per Shelat and Grover, JJ. (dissenting).--The
petitions must be allowed.
Like Moopil Nair's case the present case also
was one where inequality emerged as a result of imposing an ad hoc tax
uniformly levied without making any rational or intelligible classification.
There is no indication in the Act and none was sought to be shown as to how and
on what basis the uniform rate of Rs. 50 per hectare was fixed and whether it
had any reference to the productive capacity of the lands.
[406 D-F] As regards tea plantations, the tax
is uniformly levied merely on the footing of the land being used for growing
tea, without any regard to its potentiality, situation, the kind of tea which
can suitably be grown at a particular place, its geographical and other
features etc. No doubt, the State in exercise of the taxing' power can select persons
and objects for taxation but if it is found that within the range of that
selection the law operates unequally by reason either of classification or its
alsence, such a provision would' be hit by the equality clause of Art.
14. 1408 DI Even among the selected
plantations inequality as a result of uniformity of tax must result because it
is possible that the user of the land for one specified purpose may give a
better and a more valuable yield than the user of another land though situated
in the same area for another specified purpose. , This had happened in the case
of tea plantation with which alone the present petitions were concerned.
Therefore to the extent that Act 17 of 1960
as amended by Act 19 of 1967 imposes the tax on holdings of tea plantations, it
is violative of Art. 14 and therefore void.
[408 D-F] Moopil Nair's case applied Case-law
ORIGINAL JURISDICTION : Writ Petitions Nos.
135-137 of 1969.
Petitions under Art. 32 of the Constitution
of India for enforcement of the fundamental rights.
M. C. Setalvad, Joy Joseph, B. Datta, J. B.
Dadachanji, O. C. Mathur and Ravinder Narain, for the petitioners.
Sarjoo Prasad and M. R. K. Pillai, for
respondent No. 1.
386 The Judgment of M. HIDAYATULLAH, C.J., C.
A. VAIDIALINGAM and A. N. RAY, JJ. was delivered by HIDAYATULLAH, C.J. Dissenting
Opinion of J. M. SHELAT and A. N. GROVER, JJ. was delivered by SHELAT, J.
Hidayatullah, C.J. These are three petitions
by Twyford Tea Company and one of its directors under Art. 32 of the
Constitution seeking appropriate writ, order or direction to declare the Kerala
Plantation (Additional Tax) Act, 1960 (Act XVII of 1960) and the Kerala
Plantation (Additional Tax) Amendment Act, 1967 (Act XIX of 1967)
unconstitutional and void. In addition the petitioners ask that the notices
annexures B, C and D demanding payment of the tax be also quashed and a sum'
of. Rs. 1,02,106.02 already paid as tax to the Kerala Government ordered to be
refunded. They further seek a mandamus restraining the State of Kerala and
Tehsildar Peermade from using the two Acts against the petitioners.
The petitioner company is incorporated in
India and the majority of its shareholders are Indians. It owns a tea estate in
Kuttikanam area in the Peermade hills in Kerala State. The estate consists of
1006 hectares equal to 2486 acres of which 491 hectares equal to 1214 acres are
tea plantations. According to the petitioners Peermade hills are in the Western
Ghats and are divided into two main parts. Kuttikanam area roughly 33 sq. miles
is situated at an altitude of 3400 to 3700 ft. and receives 150 to 200 inches
of rainfall annually. The Periyar valley area roughly 60 sq. miles is situated
at an altitude of 2800 to 3200 ft. and receives 100 to 150 inches rainfall
The Periyar valley area is more fertile than
the Kuttikanam area. According to the petitioners' statement M/s. Parkins
Private Ltd., are the Managing Agents of Twyford Tea Company and also the
Haileyburia Tea Estate. The former is in Kuttikanam and the latter in Periyar area.
The extent of produce from these two areas is very different. Between the years
1963 to 1967 Twyford Tea Company produced 959 to 1211 kgs. per hectare while
Haileyburia produced 1461 to 1845 kgs. per hectare. The other tea-estates
disclosed the same differences in production. Examples are given of Penshurat,
Karimtharuvi estates under the same management and of Stagbrook and
Cheenthalaar and other estates. The Twyford Tea Company's net profits have
declined from Rs. 2,28,222 (1963) to Rs. 59,938 (1967). The net profits of
Twyford Tea Company after taxation per hectare ranged from Rs. 122.00 (1967) to
Rs. 465.00 (1963) with loss in 1966, while the profits of Heileyburia ranged
from Rs. 909.00 (1963) to Rs. 770.00 (1967) with Rs. 245.00 in 1966. This difference
is attributed to the differences in fertility between the Kuttikanam and
Pariyar areas. The petitioners state that similar differences exist in the
Vandiperiyar and Nelliampathy areas. The petitioners point cut 387 that for
purposes of excise duty these areas have been formed into different zones and
different rates of excise duty are leviable in these zones.
The two statutes which are impugned here
imposed a tax on plantations. In the Act XVII of 1960 there is a levy of "
additional tax" on plantations. The Act came into force on April 1, 1960.
"Plantations" mean land used for growing seven kinds of crops. They
are (1) Cocoanut, (2) Arecanut, (3) Rubber, (4) Coffee, (5) Tea, (6) Cardamom
and (7) Pepper. Section 3 of Act XVII of 1960 is the charging section. Under
that section for each financial year a plantation tax additional to the basic
tax charged as land tax under the Land Tax Act, 1955 is payable at the rate
mentioned in Schedule I of the Act. This Schedule states that no tax is payable
if the aggregate extent of plantations held by a person is below five acres.
But if the plantations held by a person is 5 acres or more, -a tax of Rs. 8/per
acre is payable with exemption for the first two acres. For purposes of finding
out the extent of the plantations in acres held by a person a method of
calculation is added in Schedule II. It is not necessary to quote this schedule
because it has been amended by Act XIX of 1967 and that schedule will be quoted
presently. By the Amended Act the name of the tax is changed. The word
"additional" is removed in all places and it is declared that the tax
is additional to land revenue or any tax in lieu thereof, if any, payable in
respect of such land. The rate of tax is altered in Schedule I to Rs. 501/per
hectare which is payable in respect of plantations of two bectares or more with
an exemption for the first 'hectare. The method of calculation of the extent of
plantation in hectares is restated in, Schedule II as follows "Schedule II
For the purposes of the assessment of plantation tax payable by a person, the
extent of plantations held by him shall be deemed to be the aggregate of the
following, expressed in hectares, namely :(i) the quotient obtained by dividing
the total number of bearing cocoanut trees standing on all lands held by him by
(ii) the quotient obtained by dividing the
total number of bearing arecanut trees standing on all lands held by him by
(iii) the quotient obtained by dividing the
total Dumber of yield in rubber plants standing on all lands held by him by
(iv) the quotient obtained by dividing the
total number of yielding coffee plants standing on all lands held by him by
388 (v) the quotient obtained by dividing the
total number of yielding pepper vines standing on all lands held by him by
(vi) the extent of lands on which tea plants
are grown which have begun to yield crops;
(vii) the extent of lands on which cardamom
plants -are grown which have begun to yield crops;
Provided that where the total extent of land
held by a person, which is cultivated with the aforesaid crops, is less than
the aggregate calculated as above, the actual extent alone shall be deemed to
be the extent of plantations held by him." The petitioners paid tax under
the old Act without objections -They state that they did so without realising
their rights. They were issued three demands for the assessments years 1960-61
to 1968. They had already paid between April 10, 1961 and October 18, 1968 a
sum of Rs. 1,02,106.02. It is because of this additional demand arising from
the increase in the rate of tax from Rs. 8/per acre or Rs. 20/per hectare to
Rs. 501per hectare that they have challenged the constitutionality of the two
The contention of the petitioners is that
there is no rational :classification of plantations; that unequals have been
treated as equal and that a flat rate imposed upon all the plantations
irrespective of their yield is arbitrary.
According to them some of the plantations
cannot make enough profit to be able to pay tax and in their case the tax
became confiscatory. They also complain of discrimination and question the
legislative competency of the Kerala Legislature to impose plantation tax in
the absence of a specific entry in the 7th Schedule to the Constitution either
in List II or III enabling the State Legislature to impose it. They also say
that the land tax imposed under the Land Tax Act was successfully challenged
before this Court in Kunnathat Thathunni Moopil Nair v. The State of Kerala and
another(') and the change making it additional land revenue imposed an
obligation upon the-State Legislature to make assessment on the basis of the
produce from the land in much the same way as land revenue is calculated after
taking into account the fertility of the soil, its yield and such other
Stated simply there are three contentions.
The first is that the State Legislature lacks competence to impose this tax and
even if it did have the competence it has followed a wrong method in imposing
additional land revenue without effecting proper settle(1)  3 S.C.R. 77.
389 ment. The next contention is that the Act
is discriminatory in that it takes no account of differences in situation,
fertility and yield between the plantations belonging to the same category.
Lastly it is contended that it is discriminatory inasmuch as it, seeks to treat
plantations of different kinds as it they were equal in all respects by
reducing them to a common measure of hectares when it is not possible to do so
regard being had to the different incomes derived from these plantations. We
shall take up these questions one by one.
The first question is of the competence of
the State Legislature. There is no specific entry in the legislative Lists,
Nos. 2 and 3 in the Seventh Schedule to the Constitution. The Land Tax Act
1955, as amended by the Travancore-Cochin Land Tax (Amendment) Act, X of 1957,
was declared unconstitutional in its operative sections in K. T. Moopil
Nair's(1) case. Immediately afterwards the Kerala Land Tax Act, 1961 was passed
following an Ordinance and that Act is now included in the 9th Schedule to the
Constitution at No. 3 8 and receives the protection of Art.
3 1 -B. The competency to impose land tax
thus is no longer open to this pute. The present Act is challenged on the same
lines as the former Act and the argument is rested upon the principles accepted
in K. T. Moopil Nair's(1) case. It is, therefore, necessary to recall what was
Under the Land Tax Act, 1955 all lands of
whatever description and. held under whatever tenure were to be charged and
levied a uniform tax per acre known as the basic tax. Section 7 of the Act,
however, conferred a power on Government to exempt wholly or in part any land.
This Court considered the tax to be discriminatory because it paid no heed to
quality or productive capacity of land and the tax was also held to be
confiscatory since owners of unproductive land were liable to be eliminated by
The power of exemption was also considered
unreasonable because it enabled Government to pick and choose lands arbitrarily
for grant of exemption. -The lack of classification was considered to create
inequality. Sarkar, J. who dissented held that there was an attempt at
classification according to areas, and the tax was levied because land in the
State was held, and not because of its productivity In dealing with this case
the arguments have been, moulded round the observations in that case. In
support of his contention that yield of tea varies from estate to estate and
district to district (of which figures are already quoted in the petition) The
Tea Statistics (1967-68) compiled by the Tea Board of India were also cited. It
is hardly necessary to refer to the findings of the Tea Board because it may be
assumed without discussion that there are differences. It may also be conceded
that the uniform tax falls (1) [19611 3 S.C.R. 77.
Sup./70-10 390 more heavily on some
plantations than on others because the profits are widely discrepant. But does
that involve a discrimination ? If the answer be in the affirmative hardly any
tax direct or indirect would escape the same censure for taxes touch purses of
different lengths and the very uniformity of the tax and its equal treatment
would become its undoing.' The rich and the poor pay the same taxes
irrespective of their incomes in marry instances such as the sales-tax and the
profession tax etc. It may be; remembered that in K. T. Moopil Nair's(1) case
the majority accepted the observations of S. R. Das C.J. in Shri Ram Krishna Dalmia
v. Shri Justice S. R. Tendolkar and others(') at page 299 to the following
effect "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 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 exececise of discretion by the Government in the matter
of the selection or classification. 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." We have always to
see what the statute does to make for equality of treatment.
The contention here is that there is a
uniform rate of tax per hectare which every owner of a named plantation has to
pay irrespective of the extent or value of the produce and, therefore, the law
imposes a uniform tax burden on un-equals.
In our opinion this is a wrong way to look at
the provisions of the Act.
The Act, no doubt, deals with seven different
kinds of plantations and imposes a uniform rate of Rs. 50/per hectare but
itlays down principles on which equal treatment is ensured. In the (1)  3
(2) [19591 S.C.R. 279.
391 case of cocoanut, are canut, rubber,
coffee and pepper plantations, plants capable of yielding produce are to be
counted and then the hectares are determined by dividing the total number of
plants by a certain figure. This is intended to equalise the different
plantations for purposes of taxability. In the remaining two cases the extent
of land yielding crop is itself taken as the measure for the tax because it is
considered fair and just to treat one actual hectare of crop yielding
plantation as equal to the other areas converted into hectares on the basis of
the number of plants or trees. Differences in yield between one plantation and
another having the same crop, no doubt, arise from situation, altitude and
rainfall but they are not the only factors. Otherwise how is it that the same
areas give different yield in different years. The respondents have given the
figures of yield of Glemmari estate contiguous to Twyford estate. The produce
in that estate ranges from 1427 to 1571 kilograms per hectare which is almost
equal to the estates in Periyar area. The yield of Cardamom also varies
similarly. In the Highland Produce Co. Ltd. the per acre yield varied from 5770
1bs. in 1965 to 26,890 lbs. in 1962.
In 1961 the per 'acre yield was 91 lbs. and
in 1962, 254 lbs. It is obvious that there are circumstances other than
situation, rainfall etc. which have made the yield almost 2 1/2 times as much.
The legislature thinks that Rs. 501per
hectare in the case of Cardamom and Tea is reasonable levy and this is equal to
other plantations, where the crop yielding plants and trees have to be
converted into hectares according to a formula.
It is obvious that the legislature has made
an attempt at equalisation of tax burden for different plantations. This is not
a case where barren lands have been subjected to equal tax with productive
lands. The tax is only levied on crop yielding land. In some cases where the
crop may be scattered over a wide area, there is an elaborate mechanism to
determine the extent of the crop yielding plantation.
The differences which have been pointed out
may be the result of some fortuitous circumstance and even bad husbandry. The
Court cannot regard the law to be discriminatory on the evidence produced in
may refer to a few cases which were also
brought to our notice. In State of Andhra Pradesh & Another v. Nalla Raja
Reddy & Ors.(1) the Andhra Pradesh Land Revenue (Additional Assessment) and
Cess Revision Act (22 of 1962) was held to offend Art. 14. That Act was passed
to bring uniformity in assessment of Land Revenue in the Telengana and Andhra
areas of the State of Andhra Pradesh. An additional assessment at the rate of
75% of the yearly assessment was imposed on dry land and the (1) [19671 3
392 total assessment was not to be less than
50 n.p. per acre.
On wet lands the additional-assessment was to
be 100% for lands irrigated from a Government source and 50% in the case of
other wet lands and a minimum total demand was also prescribed. This Act was
considered to be discriminatory as the minimum had no relation to the fertility
of land, there was no relationship between the land and the ayacut to which it
belonged and the procedure for determining the applicable rate was arbitrary.
This Court examined the matter critically and came to the conclusion that the
assessment was left to the arbitrary discretion of an officer without any
opportunity to question his findings. This Court compared the procedure for
assessment at proper settlements and found that those equitable and reasonable
methods of assessment were abandoned. That case is peculiar to -itself and
cannot be called in aid since in this case there is a reasonable attempt
to-make the burden equal.
Two other cases were referred to but they
bear upon different topic. In New Manek Chowk Spinning and Weaving Milts Co.
Ltd. and others v. Municipal Corporation of the City of Ahmedabad and others(')
and The State of Kerala v. Haji K. Haji K. Kutty Naha and others(') the
question was one of rating. The proposition laid down was that taking only the
floor area of a building as the basis for determination of the tax was an
arbitrary method when buildings must have different rental values depending
upon the nature of the construction, the kind of buildings and the purpose for
which they can be used. These were held vital considerations in the rating of
buildings and could not be ignored. These cases were decided on different
principles and no analogy can be found merely because equal tax was imposed in
As against these cases the otherside relies
upon Thuttampara Planting Co. v. Tehsildar, Chittur(3) and Essa Ismail and
another v. State of Kerala and others (4) where this tax was upheld. in the
second of these cases it was held that the tax was not related to the
productivity of the land but to its user and the method of calculation was
found to be fair and equitable.
We may now state the principles on which the
present case must be decided. These principles have been stated earlier but are
often ignored when the question of the application of Art. 14 arises. One
principle on which our Courts (as indeed the Supreme Court in the United
States) have always acted, is nowhere better stated then by Willis in his
"Constitutional Law" page 587. This is how he put it:
"A State does not have to tax everything
in order to tax something. It is allowed to pick and choose districts (1) 11
9671 2 S.C.R. 679.
(2) A.I.R. 1969 S.C. 378.
(3) [19641 Kerala L.T. 47.
(4) I.L.R.  Kerala 619.
393, objects, persons, methods and even rates
for taxation if it does so reasonably...... The Supreme Court has been
practical and has permitted very wide latitude in classification for
taxation." This principle was approved by this Court in East Indian
Tobacco Co. v. State of Andhra Pradesh(') at page 409.
Applying it, the Court observed:
"If a State can validly pick and choose
one commodity for taxation and that is not open to attack under Art. 14, the
same result must follow when the State picks out one category of goods and
subjects it to taxation." This indicates a wide range of selection and
freedom in appraisal not only in the objects of taxation and the manner of
taxation but also in the determination of the rate or rates applicable. If
production must always be taken into account there will have to be a settlement
for every year and the tax would become a kind of income-tax.
The next principle is that the burden of proving
discrimination is always heavy and heavier still when a taxing statute is under
attack. This was also observed in the same case of this Court at page 411
approving the dictum of the Supreme Court of the United States in Madden v. Kentucky(')
"In taxation even more than in other
fields, Legislatures possess the greatest freedom in classification. The burden
is on the one attacking the legislative arrangement to negative every
conceivable basis which might support it." As Rottschaefer said in his
Constitutional Law at p. 668:
"A statute providing for the assessment
of one type of intangible at its actual value while other intangibles are
assessed at their face value does not deny equal protection even when both are
subject to the same rate of tax. The decisions of the Supreme Court in this
field have permitted a State Legislature to exercise an extremely wide
discretion in classifying property for tax purposes so long as it refrained
from clear and hostile discrimination against particular persons or classes.))
The burden is on a person complaining of
burden is proving not possible 'inequality'
but hostile "unequal" treatment. This is more so when uniform taxes
are levied. It is (1) [19631 IS.C.R. 404. (2) (1940) 309 U.S.
83;84 L.Ed. 590.
394 not proved to us how the different
plantations can be said to be 'hostilely or unequally' treated. A uniform wheel
tax on cars does not take into account the value of the car, the mileage it
runs, or in the case of taxis, the profits it makes and the miles per gallon it
delivers. An Ambassador taxi and a Fiat taxi give different out turns in terms
of money and mileage. Cinemas pay the same show fee. We do not take a
doctrinaire view of equality. The Legislature has obviously thought of equalising
the tax through a method which is inherent in the tax scheme. Nothing has been
said 'to show that there is inequality much less 'hostile treatment'. All that
is said is that the state must demonstrate equality. That is not the approach.
At this rate nothing can ever be proved to be equal to another.
There is no basis even for counting one tree
as equal to another. Even in a thirty years' settlement, the picture may change
the very next year for some reason but the tax as laid, continues. Siwai income
is brought to land levenue on the basis of number of trees but not on the basis
of the produce. This is worked out on an average income per tree and not on the
basis of the yield of any particular tree or trees.
What is meant by the power to classify
without unreasonably discriminating between persons similarly situated, has
been stated in several other cases of this Court. The same applies when the
legislature reasonably applies a uniform rate after equalising matters between
diversely situated persons. Simply stated the law is this: Differences in
treatment must be, capable of being reasonably explained in the light of the
object for which the particular legislation is undertaken. This must be based
on some reasonable distinction between the cases differentially treated. When
differential treatment is not reasonably explained and justified the treatment
is discriminatory. If different subjects are equally treated there must be some
basis on which the differences have been equalised otherwise discrimination
will be found. To be able to succeed in the charge of discrimination, a person
must establish conclusively that persons equally circumstanced have been
treated unequally and vice versa. However, in Khandige Sham Bhat and others v.
The Agricultural Income Tax Officer, at page 817 it was observed "If there
is equality and uniformity within each group, the law will not be condemned as
discriminative though due to some fortuitous circumstance arising-out of a
peculiar situation some included in a class get an advantage over others, so
long as they are not singled out for special treatment. Taxation law is not an
exception to this doctrine: vide Purshottam Govindji Halai (1)  3 S.C.R.
395 v. Shree B. N. Desai, Additional
Collector of Bombay(') and Kunnathat Thatunni Moopil Nair v. State of Kerala (
2 ) . But in the application of the principles, the courts, in view of the
inherent complexity of fiscal adjustment of diverse elements, permit a larger
discretion to the Legislature in the matter of classification, so long it
adheres to the fundamental principles under lying the said doctrine. The power
of the Legislature to classify is of "wide range and flexibility" so
that it can adjust its system of taxation in all proper and reasonable ways."
Taking these principles into consideration we are satisfied that the law does
not single out any particular plantation for hostile or unequal treatment. In
fact it is nowhere proved in this case that tea has been discriminated against
deliberately as between different tea gardens, it is not possible to say, that
the differences in the yield is entirely due to natural circumstances and no
Itis, therefore, not possible to say that
there is discrimination notwithstanding the -uniform rate for each plantation
based on the actual crop yielding, area.
The petitions must therefore fail. They will
be dismissed with costs.
Shelat, J. Petitioner No. 1, a public limited
company, of which the second petitioner is a shareholder, owns the Twyford
Estate situate in Kuttikanam area in Kerala State.
The estate is a tea plantation admeasuring
1006 hectares (2486 acres), out of which 491 hectares (1214 acres) have tea
plants. In these petitions, the petitioners challenge' the constitutional
validity of the Kerala Plantations (Additional Tax) Act, XVII of 1960, as
amended by the Kerala Plantations (Additional Tax) Amendment Act, XIX of 1967
(hereinafter referred to as the Act) The challenge is on the ground that the
Act violates the petitioners' guaranteed rights under Arts. 14, 19(l)(f) and
(g) and 31(l).
Before we set out the facts and the
contentions based thereon, it is necessary to recite briefly the history of the
legislation pertaining to land taxation in the State.
In 1955, the Legislature of the then State of
Travancore Cochin passed the Travancore-Cochin Land Tax, Act, XV of 1955 which
by ss. 4 and 5 imposed in respect of all lands, of whatever description and
tenure, -a uniform rate to be called the basic tax at the rate of 3 pies per
cent per amnum in lieu of any existing tax in respect of the said land. -With
the formation of the present State of Kerala under the re-organisation of
States, the (1) [19551 2 S.C.R. 887.
(2)  3 S.C.R. 77.
396 State Legislature passed the
Travancore-Cochin Land Tax (Amendment) Act, X of 1957 by which the expressions
"the State of Kerala" and "the Land Tax Act" were
substituted for the words "the State of Travancore-Cochin" and
"the Travancore Cochin Land Tax Act" respectively. The amendment Act
also added a new section, S. 5A, which inter alia, provided for provisional
assessment of the basic tax for lands so far not surveyed. The constitutional
validity of Act XV of 1955, as amended by Act X of 1957, was challenged in this
Court in Moopil Nair v. The State of Kerala('). The Act was struck down by this
Court, inter alia, on the ground of its being violative of Arts. 14 and
19(1)(f). The judgment of this Court striking down the Act was pronounced on
December 9, 1960.
Before the case of Moopil Nair(') was
decided, the Kerala Legislature passed the impugned Act, XVII of 1960, which
on, receiving the Governor's assent, was published in the Gazette Extraordinary
of August 24 ,1960. Section 2(6) of the Act defined a "plantation" to
mean land used for growing one or more of the seven categories of trees on
plants set out therein, category 5 thereof being tea plants. Thus, the land
used for growing any trees, plants or corps other than these seven categories
is not subject to the -additional tax under the Act. Section 3 provides that
there shall be charged, in respect of the lands comprised in plantations held
by a person, an additional tax or plantation tax at the rate specified in Sch.
I and the person holding such plantation shall be liable to pay the plantation
tax. Sch. I to the Act lays down that the additional tax would not be payable
if the aggregate extent of the plantation held by a person is below 5 acres.
But if it is 5 acres or more, the first two acres thereof would be exempt from
the tax, and the remainder would be chargeable at the rate of Rs. 8/per acre.
Sub-s. 4 of s. 3 provides that for purposes of the assessment of plantation tax
payable by a person under this Act, the extent of plantation held by him shall
be determined in the manner specified in Sch. II Section 3 (5) declares that
the tax charged under this section shall be in addition to the basic tax
payable under the Land Tax Act, 1955. Sections 4 and 5 deal with the returns
relating to the plantations, the determination of the extent of plantation and
the assessment of the tax. The rest of the provisions of the Act provide for
such subjects as the provisional assessment, notice of dem and, appeal and
revision against assessment orders, recovery of the tax, refund etc. Sch. 11
provides that the extent of plantation held by a person shall be deemed to be
the aggregate of the following expressed in acres, namely (1) the quotient
obtained by dividing the total number of bearing cocoanut trees standing on all
lands held by him by 85;
 3 S.C.R. 77.
397 (ii) the quotient obtained by dividing
the total number of bearing areca nut trees standing on all lands held by him
(iii) the quotient obtained by dividing the
total number of yielding rubber plants standing on all lands held by him by
(iv) the quotient obtained by dividing the
total number of yielding coffee plants standing on all lands held by him by
(v) the quotient obtained by dividing the
total number of yielding pepper vines standing on all lands held by him by 400.
(vi) the extent of lands on which tea plants
are grown which have begun to yield crops; and (vii) the extent of lands on
which cardamom plants are grown which have begun to yield crops.
Provided that where the total extent of land
held by a person which is cultivated with the aforesaid crops, is less than the
aggregate calculated as above, the actual extent alone shall be deemed to be
the extent of plantations held by him. Though the Schedule lays down different
quotients in respect of lands cultivated with cocoanut and areca nut trees, rubber
and coffee plants and pepper vines, they cannot achieve equality of the burden
of the tax as yields of even the same crop cannot be equal or approximately
equal by reasons of differences in the lands in one area from those in other
areas depending on their soil, situation and a number Of' other such factors.
Furthermore, no explanation is forthcoming about the principle, if any, on
which the quotient for each of the said categories was fixed and whether they
inter se work out reasonable equality among the plantations cultivating the
said trees and plants.
In the case of tea plants, the holder is
liable to pay tax on the extent of lands on which they are grown irrespective
of the number of tea plants which are or can be grown, their quality Dr their
The Act was amended, as aforesaid, by Act XIX
of 1967 by which the expression 'additional tax' was substituted by the word
'tax', and in s. 4 instead of the measure for changing the tax being 5 acres or
more, the, measure now adopted was 2 hectares and more. The two new Schedules,
which were substituted for those in Act XVII of 1960 provided by Sch.
I that no tax would be payable if the
aggregate extent of plantation was below 2 hectares, but where it is 2 hectares
or more, there would be no tax on the first one hectare but the rest of the
land would be taxed at Rs. 50 per hectare.
With the substitution of hectare as the
measure in 398 place of acre, the quotients were suitably modified in
proportion of a hectare being equal to 2.475 acres. Thus, under the Act, as
amended by Act XIX of 1967, a holder of land, whose land is plantation, is now
required to pay Rs.
50 per hectare instead of Rs. 20 per hectare,
over and above the basic tax payable by him under the Land Tax Act, 1955, as
amended in 1957. The petitioner-company thus is liable to pay Rs. 24,500/as
additional tax on its 491 hectares cultivated for tea plants over and above the
basic tax payable by it. It will be noticed that notwithstanding the reasons on
which in Moopil Nair's(1) decision the Land Tax Act, XV of 1955 was struck
down, no changes in the light of that decision were made in Act XVII of 1960
even when it was amended in 1967.
In consequence of Act XV of 1955 having been
struck down as aforesaid, the Kerala Legislature passed a new Act, called the
Kerala Land Tax Act, XIII of 1961 giving it a retrospective effect by s. 1(3)
thereof. The Act was obviously passed in the light of the observations made by
this Court in Moopil Nair's case('). Section 5 provided that there shall be charged
a tax called "basic tax" on all lands of whatever description and
tenure. Sub-s. 3 of that section provided that the basic tax so charged shall
be deemed to be public revenue due on lands within the meaning of the Revenue
Recovery Act. Section 6(1) laid down the rate of the basic tax. The basic tax
was first. fixed at Rs. 2/per acre Per annum, but subsequently changed to Rs. 9.94
P. per hectare. Section 6 (2) provided that notwithstanding anything contained
in sub-s. 1, where a land-holder liable to pay basic tax proved to the
satisfaction of the prescribed authority that the gross income from any land
was less than Rs. 10 per acre per annum (now changed to Rs. 24-70 P. per
hectare), the basic tax payable on such land shall be at a rate fixed by the prescribed
authority calculated at 1/5th of the gross income from such land. The second
proviso to sub-s. 2 laid down that the Government may, having regard to the
potential productivity of any land used principally for growing cocoanut, areca
nut, pepper, tea, coffee, rubber, cardamom, or cashew or any other special
crop, plant or tea that might be specified by the Government by notification,
levy and collect basic tax at the rate of two, rupees per acre per annum on
such land notwithstanding the fact that such crops, plants or trees have not
begun to yield or bear and that for time being no income is made from the land
or that the income made is less than ten rupees per acre per annum.
Explanation (I) to s. 6 laid down that for
the purpose of s. 6 gross income shall mean the actual gross income or the
gross income that would be made from the land with due diligence, whichever was
higher. Thus, S. 6(2), the second proviso thereto and Explanations I and 3 to
the section clearly disclose that this time the Legislature taxed the land on
the standard of potential productivity instead of the ad hoc levy originally
provided in the Act of 1955 and also removed the objection as to the absence of
any remedy against assessment by providing appeal and revision. The position,
therefore, is that whereas under the Kerala Land Tax Act, XIII of 1961, as
amended in 1968 and 1969, the basic or land tax is levied on the basis of
potential productivity and yield, the tax as imposed by the impugned Act as a
tax in-addition to the basic tax is a uniform tax at a flat rate without any
regard to the productivity of the land, potential or actual.
According to the petitioners, Peermade Hills,
where their estate is situate, falls roughly into two areas, the Kuttikanam
area .and the Periyar valley area. Though both these areas are situate in high
ranges, they differ in the extent of their productivity and quality, the reason
being that the Periyar valley area is the basin of Periyar river.
The difference in the fertility and the quality
of soil in these two areas is sought to be illustrated by showing that Twyford
estate situate in Kuttikanam area and Haileyburia estate situate in Periyar
valley area, though under common management, give different average yields. The
average yield in 1967 per hectare in Twyford estate was 959 Kgs.
while that of Haileyburia estate was 1542
Kgs. To show such differences also in other areas in the State and elsewhere
the petitioners have furnished various statistics. These statistics first,show
that the average annual yield per hectare in the tea-growing areas in Madras,
Mysore and Kerala for the year 1967 was 1394, 1178 and 1076 Kgs.
respectively. The all India average yield
according to these figures was I 1 00 Kgs. per hectare per year. The average of
tea production per hectare in Kerala State thus compares favourably with that
of the other tea growing regions as also with the all India average. Therefore,
the tea planters in Kerala cannot be said to be backward or less
forward-looking or less venturesome than those in the other regions. Secondly,
these figures also show that the average yield in thee different districts in
Kerala itself varies from district to district ranging from about 350 Kgs. for
the district of Ernakulam to as much as 1850 Kgs. for Trichur district. The
production figure for the whole of the Kerala State appears to have remained
steady throughout 1965 to 1967 as it varies from about 43000 Kgs. to 44000 Kgs.
These figures indicate that different areas in the State where tea is grown differ
in a very large way in productivity and fertility. These figures are taken from
the Reports of the Tea Board, and therefore, can be safely regarded as
In the counter-affidavit filed by the State
these differences, no doubt, are not admitted. To show that such differences do
not exist only. the example of one estate, Glennmari near Kuttikanam, is taken.
It is urged that that estate has a larger production per hectare than the
petitioners' estate though-both happen to be situate 400 in the same area. The
respondents, however, have frankly conceded that the fertility of the land and
the differences in productivity of estates in different areas are not relevant,
for, the impugned tax is levied with reference to the specified user to which
the land is put and not to its productivity, potential or actual.
Counsel for the, petitioners contended that
the tax charged under the Act is discriminatory and arbitrary, and therefore,
violates Art. 14. The argument was that the tax, being an ad hoc levy uniformly
imposed, merely on the basis of the use of the land for any one or more of the
seven kinds of trees and plants selected by s 2(6) of the Act, without any
classification and without any consideration to the situation, the kind of
land, its potential productivity, water-supply, natural or artificial, and
geographical features, falls unequally on the holders of the land. It was
submitted that this inequality arises as a result of the absence of any
rational classification, and the Act, for that reason, suffers from the same
infirmity for which in the Moopil Nair's case(') this Court struck down the
Travancore-Cochin Land Tax Act, 1955, as amended by Act X of 1957. The
contention urged, on the other hand, on behalf of the State was that by
selecting the seven kinds of plantations in s. 2(6), the Legislature has made
an intelligible classification amongst holders of land, that that
classification has a reasonable nexus with the object of the Act, namely, to
obtain additional revenue by imposing tax in addition to the basic tax, that
the Legislature in the matter of taxation has a wide discretion in selecting
persons and properties for imposing a tax, that in exercise of its power to
tax, it was entitled to levy the tax , based on certain kinds of user of land
and was not bound to make a further classification of the land according to its
potential productivity, its situation, its geographical features, income and
other such considerations.
Before we examine these contentions we think
it expedient to consider first the principle-, laid down by this Court in the
matter of the power to levy taxes of the kind we have before us. In Moppil
Nair's case('), this Court laid down the following principles : (1) that Art.
14 read with Art.
13(2) applies to a taxing statute as much as
to other statutes, and therefore, if he impugned statute, even though a taxing
one, violates Art. 14, it has to be struck down as unconstitutional; (2) that
the statute there impugned, namely, the Travancore-Cochin Land Tax Act, 1955,
as amended by Act X of 1957, imposed a uniform tax on all lands, whether
productive or not, and without any reference to their income, actual or
potential; (3) that since the Act in terms claimed by s. 3 thereof to be a
general revenue settlement of the State, the tax being one on land or land
revenue had to be assessed and levied on the actual or potential pro activity
of the land sought (1)  3 S.C.R. 77.
401 to be taxed : in other words, such a tax
has reference to the income actually made or which could have been made, with
due regard to its incidence, and (4) that the inequality writ large on the Act
arose by reason of the absence of any classification of the land on which the
tax was imposed.
The argument which appears to have appealed
to the learned dissenting Judge that the Act made a classification between
holders of land according to the quantum of land held by them and that that
classification was reasonably linked with the object of the Act to raise
revenue for the State, failed to receive the approval of the rest of the Court.
The fact that a person holds a large area of land and is taxed according to the
area he holds cannot by itself mean that in taxing him he is meted out equal
treatment as compared to a person who holds a lesser quantity of land but of a
better and more productive quality, merely on the ground that both hold land
and are taxed according to the quantity each of them holds. A uniform tax
without consideration of its incidence, when actually implemented must result
in inequality of treatment amongst persons similarly situated, and therefore,
would be violative of Art. 14.
In The State of Andhra Pradesh v. Nalla Raja
Reddy(1) the relevant facts were as follows : Originally two different revenue
systems prevailed in Andhra and Telengana. In the former, the principles of
Ryotwari system prevailed which meant that lands were classified under two
principal heads, wet and dry. Lands of similar grain values were bracketed
together in orders called "tarams", each with its own rate of
assessment, which was further adjusted in the case of dry lands with reference
to the nature and quality of water supply. This system prevailed since times
immemorial and by reason of its being equitable had general approval. In
Telengana, the relative scale of soils was classified in terms of annas. The
existing or former rates used to be taken as the basis for the purpose of
resettlements and were adjusted having regard to altered conditions, such as
the rise and fall of prices, increase in population etc.
Besides, the settlement officers used to fix
the rates after ascertaining what profit would be left to the cultivators.
Thus, under the system of assessment which
prevailed in both the areas, the land revenue fixed varied according to the
classification of soil based upon productivity. Later, the Andhra Pradesh Land
Revenue Assessment (Standardisation) Act, 1952 and the Hyderabad Land Revenue
(Special Assessment) Act, 1952 were passed to standardize the rates on the
basis of price level. These two Acts increased the rates by way of surcharge on
the existing rates. In 1958, the State Government appointed a Committee to
examine the existing system of rates of assessment. The Committee inter alia
suggested that assessment should be based on the quality and productivity of
soils, the nature of water supply (1)  3 S.C.R. 28.
402 and the prices. The State Legislature
then -passed the impugned Act, Andhra Pradesh Land Revenue (Additional
Assessment) and Cess Revision Act, XXII of 1962, which was amended by Act XXIII
of 1962. Under ss. 3 and 4 of the Act, as amended, a new scheme was laid down
in accordance with which an additional assessment at 75% of the earlier
assessment was charged. But the proviso thereto laid down that the total
assessment should not in any case be less than 50 nP. per acre per year, irrespective
of the quality and productivity of the soil. Every acre of dry land had thus to
bear a minimum assessment of 50 nP. per acre per year. For wet lands also, a
scheme was adopted which took no account of the quality and productivity of the
soil. The Act was challenged on the ground of discrimination arising from the
absence of classification as in the case of Moopil Nair(1). In considering the
challenge the Court observed :
"A statutory provision may offend Art.
14 of the Constitution both by finding differences where there are none and by
making no difference where there is one.
Decided cases laid down two tests to
ascertain whether a classification is permissible or not, viz., (i) the
classification must be founded on an intelligible differentia which
distinguishes persons or things that are grouped together from others left out
of the group; and (ii) that the differential must have a rational relation to
the object sought to be achieved by the statute in question.
The said principles have been applied by this
Court to taxing statutes. This Court in Kunnathat Tha thunni Moopil Nair v. The
State of Kerala [(1961)3 S.C.R. 77] held that the Travancore-Cochin Land Tax
Act, 1955, infringed Art. 14 of the Constitution, as it 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 capable
of yielding any income. It was pointed out that that was one of the cases where
the lack of classification created inequality." The Court observed that in
the case before it the whole scheme of ryotwari system was given up so far as
the minimum rate was concerned. A flat rate was fixed in the case of dry lands
without any reference to the quality or fertility of the soil, and in the case
of wet lands, a minimum rate was fixed and it was sought to be justified by
correlating it to the ayacut. The Court held that that scheme of classification
was adopted without any reasonable relation to the objects sought to be
achieved, namely, fixation and rationalisation of rates, and therefore, clearly
offended the equal protection clause.
(1)  3 S.C.R. 77.
403 In Khandige Sham Bhat v. The Agricultural
Income Officer(1) the Court reaffirmed the principles laid down in Moopil
Nair's case(1) and observed with regard to the provisions there impugned :
"In order to judge whether a law was
discriminatory what had primarily to be looked into was not its phraseology but
its real effect. If there was equality and uniformity within each group, the
law could not be discriminatory, though due to fortuitous circumstances in a
peculiar situation some included in a class might get some advantage over
others, so long as they were not sought out for special treatment.
Although taxation laws could be no exception
to this rule, the courts would, in view of the inherent complexity of fiscal
adjustment of diverse elements permit a larger discretion to the Legislature in
the matter of classification so long as there was no transgression of the
fundamental principles underlying the doctrine of classification. The power of
the Legislature to classify must necessarily be wide and flexible so as to
enable it to adjust its system of taxation in all proper and reasonable
ways." The principle emerging from these decisions is thus fairly
wellsettled. While granting a fairly wide discretion to the legislature in the
matter of fiscal adjustment, the Courtwill at the same time insist that the
statute in question, like any other statute, should not infringe Art. 14 either
by introducing unreasonable or irrational classification between persons or
properties similarly situated or by a lack of classification. Further, in
examining the objection under Art. 14 the Court has not to go by the
phraseology only of the provision under challenge, but its real impact on
persons or properties.
The challenge urged on behalf of the
petitioners may now be examined in the light of these principles. Both the
title and the preamble of Act XVII of 1960 in clear terms call the tax one in
addition, as s. 3(5) declares it, to the basic tax, payable on lands falling
under its purview, i.e., plantations, as defined by s. 2(6). A plantation, as
defined by s. 2(6), means the land used for any one or more of the seven types of
trees and plants set out therein. The tax is thus chargeable in respect of
lands which are plantations and not the rest of the lands however much their
income may be. Apart from that, as stated in the State's counter-affidavit, the
tax is imposed on the ground of the particular use to which the land is put and
not on the basis of its productivity or income, actual or potential. This is
so, although it is a tax in addition to the basic or land tax levied under the
Kerala Land Tax Act, XIII of 1961, (1)  3 S.C.R. 809, 817, (2)  3
404 and although that basic-tax under s. 6 of
that Act depends upon the gross income yielded by the particular land. It is
true that under the second proviso to that section, if the land is used for
growing any of the crops therein mentioned, the Government can impose, having
regard to -its potential productivity; the basic tax at Rs. 2/per acre, even
though the land has not yet begun to yield or bear the crop and no income has
yet begun to be made there from. By subsequent amendment the rate was changed
to Rs. 4.94 per hectare, but the principle of potential productivity was
maintained. The additional tax imposed by Act XVII of 1960, on the other hand,
is on the same land provided it is used for growing any one or more of the
specified trees or plants, originally at the uniform rate of Rs. 8/per acre but
now enhanced by Act XIX of 1967 to Rs. 501/per hectare, i.e., Rs. 20 per acre.
As already stated, the Amendment Act deleted the word 'additional' but the
deletion makes no difference as the tax is still in addition to the basic or
land tax and must, therefore, partake its character, both taxes being taxes in
respect of the same land, where the land is plantation within s. 2(6). Thus, so
far as such 'lands are concerned, the basic tax on them is assessed according
to their productivity or income. But the tax under Act XVII of 1960, as amended
by Act XIX of 1967, is imposed in respect of them as an ad hoc uniform tax,
irrespective of the kind of their soil or their capacity etc. and only for the
reason of their particular user. Prima facie, the incidence of such a tax by
reason of its uniformity is bound to be unequal on persons similarly situated
and would, therefore,, be hit by the equality clause in Art. 14. Even assuming
that the basic tax is a revenue assessment and the additional tax is not, it
would still make no difference in its unequal incidence on these whose lands by
their particular user are plantations. In other words, the burden of the tax on
persons situated in similar circumstances, i.e., those whose lands are
plantations, would be unequal. depending upon the kind of soil, the
geographical situation, water supply, elevation and other relevant factors
touching the lands they hold. The additional tax is by no means low as it is,
after the passing of the amendment Act XIX of 1967, Rs. 50 per hectare,
equivalent to Rs. 20 per acre. A person holding 1,000 acres of land of inferior
soil would, by reason of such, an ad hoc tax, be bound to be hit harder than
the one holding 1,000 acres of superior land with higher fertility or
productivity. Such a result would not occur if the land is classified and the
incidence of the tax is graded according, to its productivity and other relevant
factors, In support of the Act it was argued that the impugned Act not only
makes a classification between those who hold lands which are plantations and
those who hold lands which are not plantations, but also makes a further
classification within that classification by the method provided for
calculating the extent of plantations in Sch. 11. That argument does not appear
to be 405 correct. The Schedule only provides the methods for calculating the
extent of the plantations : (1) by means of quotients and (2) where tea and
cardamom plants are cultivated by the actual extent of the land used for those
purposes. But the Schedule does not solve the difficulty.
A piece of land in one area may have a
certain number of trees or plants of one or more of the specified categories to
make it a plantation. But the incidence of the tax in respect of it would be
unequal as compared to an-other land situate elsewhere by reason of the
latter's better situation or fertility even if the number of plants or trees of
the specified kind are the same, depending upon the situation and the capacity
of the two lands. In such a case the very uniformity of the tax is bound to
result in discrimination on account of the relative potentiality of the two
lands not being taken into account, and the lands not being classified
accordingly. It is, therefore, difficult to say that the Schedule, intended
only for calculating the extent of the plantations, seeks to achieve equality
of treatment between one kind of plantation and another or between plantations
of the same kind, if the principle of their yield or income, actual or
potential, is not taken into account. How is it possible to say that the
uniform burden of Rs. 50/per hectare in the case, say of cocoanut, tea, coffee
or cardamom plantations, is reasonably equal, when the potential yield of each
such plantation is not taken into consideration ? The' same result must also
follow amongst holders of the same kind of plantations if the principle of
yield or income is discarded. Thus, Sch. 11 only provides the two methods, of
calculating the extent of the plantation and does, not make a Classification
within a classification as urged. The only classification made is between those
whose lands fall under the definition of 'plantation' and those whose lands do
not. All those who held lands which are plantations are made liable to pay the
tax at the uniform rate of Rs. 501/per hectare, no matter what kind of crop,
out of the seven kinds mentioned in the Act, is cultivated by them. without regard
to the fact that one kind may be more valuable than the other and irrespective
of their situation, their income-yielding capacity and other factors.
The result of such uniform imposition is that
tea planters, who hold lands in Ernakulam, Trichur and Kottayam districts,
would pay the same amount of tax per hectare although the average yield per
hectare in these districts for the years 1965 to 1967 was about 350, 1825 and
1050 Kgs. respectively.
The difference in yield in these different
districts must clearly be due to the difference in the soil, situation and such
other factors, for, it is nobody's case (at least not made out in the
counter-affidavit of the respondents) that the cultivators in Ernakulam
district use inferior seed or are less venturesome than those in Kottayam and
Trichur districts. Such a difference in the average yield per hecL7Sup.CI(NP)/70-11
406 tare occurs also in other tea growing districts, namely, Cannanore,
Palghat, Kozhikode, Trivandrum and Quilon, whose average yield per hectare
during the years 1965 to 1967 was 950, 1490, 1575, 975 and 650. Kgs.
respectively. Since these figures are from the statistics prepared by the Tea
Board, they cannot be disputed. That such differences in the average yield
occur also in the different districts of the States of Madras and Mysore is
also clear. Surely, they cannot arise because the cultivators of one district
are more adventurous or more technology-minded than those of the other
districts. The differences in the yield must, therefore, be attributed to the
differences in the soil, situation, water supply, rainfall etc.
Imposing a uniform rate of tax in respect of
lands where tea is grown, without classifying them on the basis of their productivity,
actual or potential, and without differentiating the inferior from the superior
kind of soil or without taking into consideration the fact of some of these
lands being situated in more advantageous position than the rest, must,
therefore, inevitably result in unequal incidence of the tax on those who hold
those lands. Therefore as in the case of Moopil Nair(1) the present case is
also one where inequality emerges as a result of imposing an ad hoc tax,
uniformly levied without making any rational or intelligible classification.
There is no indication in the Act and none was even sought to be shown as to
how and on what basis the uniform rate of Rs. 501per hectare was fixed and
whether it had any relation to the capacity of those who hold lands with
different average yields ranging from 350 Kgs. per hectare in Ernakulam to
about 1850 Kgs. per hectare in Trichur, in addition to the basic tax also
payable by them.
Obviously, the tax imposed in the manner
pointed out above must result in inequality among the holders who use their
lands for tea growing though they are similarly situated.
The principles laid down in Moopil Nair's
case(1) approved and confirmed in subsequent decisions and which are binding
upon us, apply to the impugned statute.
But in Thuttampara Planting Co. v.
Tahsildar(2) a learned Single Judge of the Kerala High Court repelled the
contention as to the invalidity of Act XVII of 1960 and held that the decision
in Meopil Nair's case(3) did not apply as by adopting the quotients in Sch. 11
the impost had been related to the potentiality of the land and its possible
yield. As already pointed out, even the counter-affidavit filed by the State in
the present petitions, does not claim that the additional tax imposed under
this Act takes into account the potentiality of the land or is possible yield.
It, on the other hand, asserts in -plain
language that the tax is levied by reason only of the particular use to which
the land is put and (1)  3 S.C.R. 77.
(2)  K.L.T. 47.
407 which makes it fall within s. 2(6). If
potentiality of the land and its possible yield had been taken into
consideration, the amount of tax could not have been uniform as its quantum
would have depended on its quality, situation and other factors. Indeed, in
Essa Ismail v. State of Kerala(1) a Division Bench of that very High Court held
that what Act XVII of 1960 did was to tax lands comprised in plantations, not
on the basis of their productivity but an the basis of their user. But the
Division Bench held that the Act was "just and equitable", and therefore,
was not hit by Art. 14. At page 623 of the Report, the learned Judges observed
that the yield would vary from crop to crop and place to place, but "it is
not the productivity of the soil that forms the foundation of the tax but its
user in a specific way for a specific purpose". Though these two decisions
cited Moopil Nair's case (2) , neither of them considered the result of the
lands being uniformly taxed without classifying them according to their
potentiality so that the incidence of the tax may be just and equitable.
How a tax imposed uniformly without regard to
the potentiality of the property taxed and without any classification on any
other just basis works inequality is illustrated by the scrutiny by this Court
of the Kerala Building Tax Act, XIX of 1961 in the State of Kerala v. Haji K.
Kutty(3). After noting the uniform rate of the tax levied according to the
floor area of a building but without taking into account its kind or its
potential yield, the Court observed:
"For determining the quantum of tax the
sole test is the area of the floor of the building. The Act applies to the
entire State of Kerala, and whether the building is situate in a large
industrial town or in an insignificant village, the rate of tax is determined
by the floor area; it does not depend upon the purpose for which the, building
is used, the nature of the structure, the town and locality in which the
building is situate, the economic rent which may be obtained from the building,
the cost of the building and other related circumstances which may
appropriately be taken into consideration in any rational system of taxation of
building." At page 380 the Court further observed :
"But in enacting the Kerala Buildings
Tax Act no attempt at any rational classification is made-As already observed,
the Legislature has not taken into consideration in imposing the tax the class
to which the building belongs, the nature of construction, the purpose for
which it is used, its situation, its capacity for profitable user and other
relevant circumstances which (1) I.L.R.  2 Ker619 (2)  3 S.C.R. 77.
(3)A.I.R. 19 S.C. 378.
408 have a bearing on matters of taxation.
They have adopted merely the floor area of the building as the basis of tax
irrespective of all other considerations. Where objects, persons or
transactions essentially dissimilar are treated by the imposition of a uniform
tax, discrimination may result, for, in our view, refusal to make a rational
classification may itself in some cases operate as denial of equality." On
this reasoning the charging section of the Act impugned in that case was held
violative of Art. 14 and therefore bad.
The same reasoning is, in our view, apposite
so far as the impugned tax is concerned, for, the tax is uniformly levied
merely on the footing of the land being used for growing tea, without any
regard to its potentiality, situation, the kind of tea which can suitably be
grown at a particular place, its geographical and other features etc. No doubt,
the State in exercise of the taxing power can select persons and objects for
taxation but if it is found that within the range of that selection the law
operates unequally by reason either of classification or its absence, such a
provision would be hit by the equality clause of Art. 14. (see East India Tobacco
Co. v. State of Andhra Pradesh.(1) Even amongst the selected plantations
inequality as a result of uniformity of tax must result because it is possible
that the user of the land for one specified purpose may give a better and a
more valuable yield than the user of another land though situated in the same
area for another specified purpose. This, in our view, has happened in so far
as the tax on tea plantations, with which only we are concerned in these
petitions, is concerned, and therefore, to the extent that Act XVII of 1960, as
amended by Act XIX of 1967, imposes the tax on holders of tea plantations, it
is violative of Art. 14 and is, therefore, void.
Accordingly, the petitions are allowed with
ORDER In accordance with the opinion of the
majority, the petitions are dismissed with costs.
(1)  1.S.C.R. 404.