Dantuluri Ram Raju & Ors Vs. State
of Andhra Pradesh & ANR  INSC 350 (16 December 1971)
KHANNA, HANS RAJ KHANNA, HANS RAJ MITTER,
SIKRI, S.M. (CJ) SHELAT, J.M.
CITATION: 1972 AIR 828 1972 SCR (2) 900 1972
SCC (1) 421
E 1973 SC1374 (12) R 1980 SC1382 (75)
Andhra Pradesh (Krishna and Godavari Delta
Area) Drainage Cess Act 1968-Whether violative of Art. 14 of the Constitution.
The vires of the Andhra Pradesh (Krishna and
Godavari Delta area) Drainage Cess Act 1968 has been challenged in C.A. No.
223 of 1970 and in writ petition No. 251 of
1971. The Act of 1968 applies to all the lands comprised within the delta areas
of Krishna & Godavari rivers in the State of Andhra Pradesh. The Act
provided for levy and collection of drainage cess on all lands comprised within
the delta area of Krishna & Godavari rivers, for the purpose of raising
funds to meet the expenses incurred on drainage schemes undertaken in the said
area for its protection from floods and for matters connected therewith, Under
the Act, for 6 years, a tax at the rate varying from Rs. 10/for the Godavari
eastern Delta to Rs. 20/per acre per annum for Godavari Western Delta was
levied. A number of points were raised by the Appellants but the High Court
rejected all their contentions.
In appeal, the Appellants contended that the
provisions of the Act is violative of Art. 14 of the Constitution, that the
right of appeal provided by 5 of the Act is illusory and lastly, there is
excessive delegation of the legislative function inasmuch as no minimum rate of
the cess has been prescribed. Dismissing the appeal and the writ petition,
HELD : (1) The provisions of the impugned Act
at,not violative of Art. 14 of the Constitution. The floods and drainage problems
of all the lands in the delta area were not similar or of equal magnitude. They
varied considerably from one part of the delta area to the other and the
estimated cost of the proposed work also varied from area to area. The flood
strike equally all lands in the area and make no discrimination so far as
quality and productive capacity of those lands are Concerned. In the
circumstances, it appears to be just and reasonable that each acre in a
division should bear equal burden of the amount which is sought to be raised to
fight the danger of flood and provide for an efficient system of drainage.
Further as the cost of drainage scheme varies
in the different divisions, the rate of cess has been fixed at different rates
for the divisions keeping in view the cost of drainage scheme in each division.
The differential in the cost of drainage schemes for the four divisions has
been properly reflected in the varying rates of cess for each division. In the
present case, the Act contains sufficient guidelines for the fixation of rate
of cess and there is justification for a uniform rate of cess for each acre of
land in a division of the deltaic area. Therefore, there is no discrimination
and the provisions of the impugned Act are not violative of Art. 14 of the Constitution.
The fact that on account of topographical situation some land-owners get
greater benefit of the drainage scheme because of their lands being more prone
to damage by floods is a fortuitous circumstance and the same would not be a
valid ground for striking down the impugned legislation. [916 D-917 G] 901
(2)The right of appeal provided sec. 5 of the Act is not illusory. An aggrieved
person can agitate in appeal about the area for which the cess is levied or the
ownership of that area or that he owned an area which is less than that for
which a cess is levied. Therefore, this right is no, (3) There is also no
excessive delegation of the legislative power. The State has adhered to the
maximum prescribed by the Act. The absence of minimum limit will not vitiate a
Khandige shah Bhat & Others v. The
Agricultural Income-tax Officer, 1,  3 S.C.R. 809, East India Tobacco Co.
v. State of Andhra Pra 1 S.C.R. 404, Twyford Tea Co. Ltd v. The State of
Kerala,  3 S.C.R. 383, State of A.P. v. Nalla Raja Reddy,  3 S.C.R.
28, State of Kerala v.Haji K. Haji K. Kutty Naha,  1 S.C.R. 645 referred
CIVIL APPELLATE JURISDICTION: C.A. No. 223 of
Appeal from the judgment and order dated
March 27, 1969 of the Andhra Pradesh High Court in Writ Petition No. 998 of
AND ORIGINAL JURISDICTION: Writ Petition No.
251 of 197 1.
Under Article 32 of the Constitution of India
for the enforcement of the Fundamental Rights.
L.M. Singhvi, Krovidi Narasimhan, S. K.
Dhingra and A. Subba Rao, for the appellants (in C.A. No. 223 of 1970).
K.R. Chaudhuri and K. Rajendra Chowdhary for
the petitioners (in W.P. No. 251 of 1971):.
P.Ram Reddy and P. Parameswara Rao, for
respondents (in both the matters).
The Judgment of the Court was delivered by
Khanna, J. The vires of the Andhra Pradesh (Krishna and Godavari Delta Area)
Drainage Cess Act, 1968 (Act No. 11 of 1968), hereinafter referred to as the
Act, has been challenged in Civil Appeal No. 223 of 1970 as well as in Writ
Petition No. 25 1 of 1971. Civil Appeal No. 223 has been filed on a certificate
granted by the Andhra Pradesh High Court against the judgment of that Court
whereby petition under article 226 of the Constitution of India presented on
behalf of the eight appellants to assail the vires of the Act was dismissed at
the stage of admission.
Writ Petition No. 251 of 1971 has been filed
by 434 petitioners. The respondents in the appeal are the State of Andhra
Pradesh and the Collector of West Godavari District while those in the writ
petition are the State of Andhra Pradesh and the Collector of Krishna District.
The appellants in the civil appeal belong to
different Taluks of the West Godavari District and own extensive areas of land
in 10-L736S,SupCl/72 902 that district. As such, they are liable to pay land
revenue. Petitioners Nos. 1 to 38 in the writ petition are residents of Tenneru
within the area of Vijayawada Taluk.
They own about 500 acres of land in and
around that village.
The rest of the petitioners are residents of
different villages in Krishna district and own an area of about 4,000 acres in
As the petition under article 226 of the
Constitution of India which is the subject of civil appeal was dismissed at the
stage of admission, no affidavit on behalf of the respondents was filed in the
High Court. The respondents were consequently permitted to file an affidavit in
this Court. Affidavit of Shri D. Venkatdri, Assistant Secretary, and Government
of Andhra Pradesh was thereafter filed on behalf of the respondents. A more
detailed supplementary affidavit of Shri Venkatdri has also been filed on
behalf ,of the respondents and the same officer has filed his affidavit in
opposition to the petition under article 32 of the Constitution.
Before dealing with the different provisions
of the Act and the contentions advanced, it would be apposite to reproduce the
Statement of Objects and Reasons of the Bill for the purpose of understanding
the historical background and the antecedent state of affairs leading up to the
impugned legislation. The Statement of objects and Reasons reads as, under :
"The 'coastal districts of East
Godavari, West Godavari, Krishna and Guntur are being subjected to floods every
year which cause immense damage to crops as well as private properties besides
disrupting rail and road communications for considerable periods in the year.
The intensity of the floods which occurred in 1953, 1962 and 1964 have highlighted
the need for immediate action for solving this recurring problem and to suggest
remedial measures for mitigating or avoiding in future the damage to crops and
property in the area on account of similar floods. The Committee after having
an extensive tour in the area, made some recommendations for improving all the
drains-in the delta area of the Krishna and Godavari rivers and also formation
of flood moderating reservoirs across Budameru, Yerrakalva. Tammileru etc.
The total cost of all the drain improvement
schemes As well as the flood moderating reservoirs as recommended by the Expert
Committee is estimated roughly to be Rs. 27 crores. It is considered that it
might be necessary to undertake in the delta area not only the schemes and
works suggested by the Expert Committee but also some other schemes and works
for the purpose in view. The actual cost of all the schemes and works required
to be undertaken in the 903 delta area is likely to exceed the cost, as
estimated above. In view of the present difficult ways and means position, it
is not possible to provide the necessary funds required for the purpose either
under the flood control sector or under the irrigation sector of the, State. It
is, therefore, considered necessary to levy a drainage cess on all the lands
'comprised within each of the divisions in the delta of the Krishna and Godavari
rivers, for a period of six years, at a rate not exceeding rupees ten per acre
per annum in respect of lands in the Godavari eastern deltaic division and
Godavari Central deltaic division, rupees twenty-five per acre per annum in
respect of lands in the division comprising the Godavari western deltaic
division and the Krishna eastern and Krishna Central deltaic divisions and at
rupees fifteen per acre per annum in respect of lands in the Krishna western
It is also proposed to constitute the
proceeds of the drainage cess into a separate fund and to establish a Board to
administer the said Fund and to apply the proceeds of the drainage_cess derived
in a division towards meeting the cost of drainage schemes undertaken in that
This Bill is intended to give effect to the
above objects." The Act came into force on 20th December, 1968. It applies
to all the lands comprised within the delta areas of Krishna and Godavari
rivers in the State of Andhra Pradesh.
According to the preamble of the Act, it is
"an Act to provide for the levy and collection of drainage cess on all
lands comprised within the delta area of the Krishna and Godavari rivers in the
State of Andhra Pradesh for the purpose of raising funds to meet the expenses
incurred on drainage schemes undertaken in the said delta area and for matters
connected therewith." Section 2 of the Act contains various definitions,
"Board" has been defined in clause (a) to mean the Krishna and
Godavari Delta Drainage Board established under section 7 of the Act.
"Delta area according to clause, (c) means the area comprising the lands
in the deltas of Krishna and Godavari rivers, irrigated whether by flow or
lift, under the network of canals taking off from the barrage near Vijayawada
on the Krishna river and the anicut near Dowlaishwaram on the Godavari river.
"Division" has been defined in clause (d) to mean any of the
following, divisions in the delta area, namely (i) the Godavari eastern delta;
9 04 (ii) the Godavari central delta;
(iii)the area comprising the Godavari western
delta, the Krishna eastern delta and the Krishna central delta;
(iv) the, Krishna western delta;
According to clause (e), "drainage cess'
means the tax leviable and collectable under section 3. Clause (f) defines
drainage scheme" as under :
"(f) "drainage scheme" means
any scheme for the improvement of drains in the delta area and for the
formation of flood moderating reservoirs in the upland areas across the rivers
and streams flowing into the delta area and includes any scheme relating to the
following works in the delta area which are owned or controlled by the
Government or constructed or maintained by them and not handed over to any
person :(i)channels, whether natural or artificial, for the discharge of waste
or surplus water, and escape channels from an irrigation work, together with
dams, embankments, weirs, sluices, groynes, pumping sets and other works
connected with or auxilliary to all such channels;
(ii)all works for the protection of lands
from floods or from erosion;
Explanation For the purpose of this clause,
any part or stage of a scheme shall be deemed to be a scheme."
"Government" according to clause (g) means the State Government,
while., "land" has been defined in clause (h) to mean wet or dry
land. Clause (j) defines "owner" in relation to any land as meaning
the person liable to pay the land revenue due on the land and includes a ryot
having a permanent right of occupancy withIn the meaning of the Andhra Pradesh
(Andhra Area) Estates Land Act, 1908.
According to the explanation to that clause,,
the expression "person liable to pay the public revenue" in relation
to any land in respect of which no public revenue is payable means the person
who would have been liable to pay public revenue had it been payable on such
Section 3 of the Act deals with levy and
collection of drainage cess. According to sub-section (1) of the section, there
shall be levied and collected by the Government, for a period of six years from
the date of the commencement of the Act, as a drainage cess on every land in
the delta area comprised within a division specified in column (2) of the
Schedule, for the purposes of this Act in that division, a tax at such rate per
acre per annum, not exceeding the rate specified in the corresponding entry in
column (3) 905 thereof, as the Government may, by notification, specify in
respect of that division. According to sub-section (3) of that section, the
drainage cess leviable under the section on any land shall be payable by the
owner of such land while according to subsection (2), nothing in sub-section
(1) shall prevent the Government from levying and collecting at any time after
the expiration of the period of six years the drainage cess or any arrears
pertaining thereto, which is leviable or collectable during the said period of
The Schedule referred to in the section fixes
the maximum rate at which drainage cess may be collected and according to it
the maximum rate shall be Rs. 10 per acre per annum for the Godavari eastern delta
and the Godavari central delta, Rs. 20 per acre Per annum for the area
comprising the Godavari western delta, Krishna eastern delta and the Krishna
central dealta and Rs. 15 per acre per annum for the Krishna western delta.
Section 4 of the Act gives the procedure to
be followed before levying drainage cess. According to this section, the
collector before levying the cess in respect of any land, shall cause a notice
to be served on the owner of the land, requiring him to make payment of the
amount of the drainage cess within 45 days of the service of the notice.
Section 5 gives a right of appeal to the person aggrieved by the levy of the
drainage cess, while section 6 makes provision for order in revision by the
Government. Section 7 provides for the establishment of the Krishna and
Godavatri Delta Drainage Board. Provision for the constitution of the proceeds
of the drainage cess into a fund and its administration and application is made
in section 8 which as under " 8(1) The proceeds of the drainage cess I
vied and collected under this Act, reduced by the cost of collection as
determined by the Government, shall after due appropriation made by the State
Legislature by law, be constituted into a fund to be called the "Krishna
and Godavari Delta Drainage Cess Fund.
(2)In addition to the proceeds referred to in
subsection (1), any moneys received from the State or Central Government or any
other source for the purposes of this Act, shall be credited to the Fund.
(3)The Fund shall vest in, and be administered
by the Board in such manner as may be prescribed.
(4)The Fund, in so far as it relates to the
proceeds of the drainage cess levied and collected in a division, shall be
applied towards meeting the cost of the drainage schemes which the Board may,
with the concurrence of the Government, undertake in that division.
9 06 The expenses of the Board and its
Committees shall also be met out of the Fund Provided that it shall not be
necessary to obtain the concurrence of the Government as aforesaid in respect
of such class of drainage schemes as may be prescribed;
Provided further that the expenditure
incurred by the Board for any purpose common to all or any of the divisions
shall be apportioned among the divisions concerned in such manner as may be
prescribed." According to section 9, the drainage cess payable under the.
Act by an owner in respect of any land shall
be deemed to be public revenue due upon the said land and the provisions of the
Andhra Pradesh Revenue Recovery Act, 1864, shall apply.
Section 10 gives power to the Government to
fix installments for payment of drainage cess while section I I empowers the
Government to grant exemption or make reduction in case of undue hardship on
account of unseen calamity or any other reasonable cause to an owner or class
of owners of land.
Section 12 pertains to the bar of
jurisdiction of civil courts in respect of matters falling within the scope of
the authorities acting under the Act. According to section 13, the provisions
of the Andhra Pradesh Irrigation (Levy of Betterment Contribution and Advance
Betterment Contribution) Act, 1955 in so far as they relate to drainage work,
shall not apply to any drainage scheme under the Act. Section 14 gives powers
to the Government to give directions to the Board. Rules under the Act are made
by the Government under section 15 of the Act for carrying out all or any of
the purpose--, of the Act.
The Krishna and Godavari Delta Drainage Board
Rules made under section 15 of the Act were
issued in April 1969. It is not necessary to refer to the different rules.
For our purposes, it would suffice to
reproduce clauses (1) to (3) of rule 21 as, under :
"(1)The drainage cess shall be collected
along with the land revenue and credited To "M.H. IX-Land Revenues".
Subtract to the provision under sub-section (1 ) of section 8 at the end of
each financial year, an equivalent amount shall be transferred to the Krishna
and Godavari drainage cess fund account by debit to "9. Land
(2)The expenditure on the drainage schemes
shall be debited to the' appropriate head of account within the Consolidated
Fund of the State, either in the revenue or capital head according to the
expenditure falling under revenue or capital head and at the end of each
financial year, an equivalent amount shall be transferred from the Krishna and
Godavari Drainage Cess Fund account to the concerned head by means of a deduct
(3)The expenditure incurred by the Board for
purposes common to all or any of the divisions, like the establishment, tools
and plants, shall be apportioned among the division concerned as far as
possible in the proportion in which the expenditure is incurred on the drainage
schemes in these respective divisions." Following notification was issued
on December 17/20, 1968 under subsection (1) of section 3 of the Act :
"In exerciseof the powers conferred by
subsection (1) of section 3 of the Andhra Pradesh (Krishna and Godavari Delta
Area) Drainage Cess Act, 1968 (Andhra Pradesh Act 11 of 1968:), the Governor of
Andhra Pradesh hereby specifies in column (3) of the Table below in respect of
the division mentioned in column (2) thereof, the rate of tax per acre 'per
annum that shall be levied and collected by the Govemment for the first year
commencing on the 20th December, 1968 (date of commencement of the Act) as
drainage cess on every land in the delta area comprised within the said
division :TABLE Sl. Name of the divisionRate of drainage cess leviable No. and
collectable 1 2 3 1.The Godavari Eastern Delta Rs. 10;per acre per annum.
2.The Godavari Central Delta Rs. 10/per acre
3. The area comprising the Rs. 20/-per acre
Godavari western Delta, the Krishna Eastern
Delta and the Krishna Central Deta.
4. The Krishna Western Delta Rs. 15/per acre
The High Court while dismissing the
appellants writ petition repelled the contention that the provisions of the Act
were violative of article 14 of the Constitution and that the levied by the Act
was a fee ,and not a tax Likewise, the argument put forth on behalf of the
appellants that the state Legislature was not competent to levy drainage cess
and there were no effective provisions for appeal and revision not find favour
with the High Court.
908 In appeal Dr. Singhvi on behalf of the
appellants has challenged the vires of the provisions of the Act on three
grounds. It is urged in the first instance that' the, provisions of the Act are
violative' of article 14 of the Constitution. Secondly, according to the
learned counsel, the right of appeal provided by section 5 of the Act is
illusory. Lastly, it is submitted, there is excessive delegation of the
legislative function inasmuch as no minimum rate of the cess has been
prescribed. The grounds that drainage cess amounted to fee and that the State
Legislature was not competent to enact the Act have not been pressed in appeal.
In the writ petition under article 32 of the
Constitution, Mr. Choudhury on behalf of the petitioners, has adopted the
contentions advanced by Dr. Singhvi.
The above contentions have, been controverted
by Mr. Reddy on behalf of the respondents and according to him, the provisions
of the Act suffer from no legal or constitutional infirmity.
Before dealing with the question as to
whether there has been an infringement of article 14 of the Constitution, we
may mention that the material on record shows that the State of Andhra Pradesh
is one of the major rice producing State in the country. The Krishna Godavari
Delta area has most fertile lands and paddy crop is raised there-on at an
extensive scale. The Krishna-Godavari Delta system provides irrigation
facilities primarily for paddy crop over an ayacut area of about 22 lakh acres
annually in the coastal districts of Guntur, Krishna, West and East Godavari.
The irrigated lands in the above delta system are subject to frequent floods
and drainage congestion resulting in heavy loss of crores of rupees per annum
because of the damage to the crops. The floods are caused mainly by rivers like
Budameru, Thammileru and Yerrakalva. Apart from causing damage to crops, the
floods disrupt rail and road communications for long periods. Plans for
ameliorating the situation were under consideration for nearly half a century.
The floods of 1964 highlighted the need for immediate action for solving the
recurring problem. The Government of India in the Ministry of Irrigation and
Power as per resolution dated October 9, 1964 constituted an Expert Committee
under the Chairmanship of Shri A. C. Mitra, Engineer-in-Chief, Uttar Pradesh
for suggesting a comprehensive plan for controlling the floods. The terms of
reference of the Committee were :
"(i) To suggest a comprehensive Plan for
control of floods in the coastal rivers like Budameru, Thammileru and
Yerrakalva by construction of detention reservoirs or by diversion into
adjoining valley or any other methods.
9 09 (ii) To consider and recommend proposals
for lowering the flood level of Kelleru lake either by improving the outfall
channel Upputeru or by Pumping or by both.
(iii) To consider and recommend proposals for
improving the drainage system in the area and;
(iv) Any other recommendation that the
Committee desires to make for prevention of floods and inundation." The
Committee in its report submitted in January 1966 suggested various measures
and schemes for tackling the problem of floods and drainage. The Committee
noted that most of the existing drains were small in size and short in length.
One of the recommendations of the Committee was that the aforesaid drains
should be improved by deepening and widening the to suitable sections.
Recommendation was also made that "all drains should be brought to their
design section and maintained in that condition".
The execution of the schemes and
implementation of the measures suggested by the Mitra Committee along with the
other drainage schemes as might be found necessary after detailed investigation
involved an expenditure of several crores of rupees. As the financial resources
of the Andhra Pradesh Government were already over-strained, the Government had
to think of other measures for raising the necessary funds. The matter was
thereafter discussed with ,he representatives of the people belonging, to the
area and a proposal was adopted for collection of drainage cess for tackling
the problem of floods and drainage in the Krishna Godavari delta. The Estimates
Committee of the Andhra Pradesh Legislative Assembly in its report also
recognized the need for solving the problem of drainage in the area and
observed that the amount of drainage cess collected should be kept separate.
The Bill which formed the basis of the Act was there after introduced in the
Andhra Pradesh Legislative Assembly in June 1968.
The affidavit filed on behalf of the
respondents shows that the floods and drainage problems of all the lands in the
delta area were not similar or of equal magnitude. As such, the need for
improving the existing drainage works and constructing new works for the
control of floods and drainage problems varied considerably from one part of
the delta area to the other. This fact resulted in difference in the magnitude
of the proposed work and the estimated expenditure for one part of the delta
area and those for the other. It was, therefore, considered unjust and
irrational to treat the entire delta area as single unit and collect drainage
cess at a uniform rate from all the lands. The whole delta area 910 was
consequently divided into four compact and contiguous units which were termed
"divisions" by broadly adopting the following criteria :
1. The geographical features of the area.
2. The drainage characteristics and the unity
of drainage system, or systems in the area.
3. The extent of improvement needed in the
existing flood control and drainage work in the area and their estimated
4. The need to construct further flood
control and drainage works in the area and their estimated expenditure.
The four divisions were : (1) Godavari
Eastern Delta; (ii) the Godavari Central Delta; (iii) the area comprising the
Godavari Western Delta, Krishna Eastern Delta and the Krishna Central Delta and
(iv) Krishna Western Delta.
The above division of the delta area into
four units was in accordance with the findings of the Mitra Committee. It was
also felt that in view of the nature of floods and the drainage problems, the
unity of the existing drainage systems, the geographical situation and the
benefits likely to be derived from the improvements proposed, it would be
neither desirable nor technically feasible 'to further subdivide any of the
above divisions into smaller units. On account of the difference in the nature
of problems and the needs of improvement requiring different scales of
expenditure in each division, it was decided that the levy of drainage cess on
the lands in each division should vary in rate in accordance with the estimated
expenditure for drainage work in that division. The Chief Engineer of Andhra
Pradesh expressed the view that the proposed flood control and drainage schemes
could be implemented in a period of six to seven years if adequate financial
resources, including foreign exchange for the required dredging equipment, were
made available. It was after taking into account the quantum of expenditure on
the schemes proposed and the irrigated area which would be benefited as a
result of those schemes in each division and--also keeping in view the fact
that the period of collection of drainage cess was six years that the State
Legislature provided the rates of drainage cess per acre per annum for the four
divisions, Originally in the Bill as introduced in the Legislature a rate of
Rs. 25 per acre per annum was prescribed in division comprising the Godavari
western delta, Krishna eastern delta and the Krishna central, delta, but the
Legislature reduced The rate for that division from Rs. 25,to Ps.,29 per acre
911 At the time the above-mentioned Bill was
introduced in the Legislature in July 1968 the following estimate in tabular
form of the various expenditures was given on behalf of the Government:
S. Name of Division Total estiApproxiMaximum
Total maxiNo mated exmate Ayacut Rate of mum penditure in acres drainage amount
of on schemes cess per drainage in lakhs acre per cess antiRs. annum cipated to
Rs. be collected over 6 years in lakhs Rs.
1. Krishna-Western delta 500 4,86,800 15/438
2. Krishna Central 1,25,500 Krishna Eastern
and 6,12,700 Godavari Western 4,90,000 deltas. 1073 12,28,200 25/1842
3. Godavari Central delta 150 2,00,000 10/120
4. Godavari Eastern 2003, 20,000 10/192 Total
2923 22,35,000 2592 It may be noted that as against the total estimated
expenditure of Rs. 2,923 lakhs, the Government proposed to raise only a suni of
Rs. 2,592 lakhs through collection of drainage cess over a period oil six
years. The estimated expenditure, according to the affidavit filed on behalf of
the respondents, was expected to go up by 10 to 20 per cent during the course
of six to seven years of the completion of the scheme. The total expenditure
was thus expected to go up to Rs. 35 crores and the excess over the anticipated
collection amounting to about Rs. 9 crores would be borne by the State
As regards the argument about the
infringement of the equality clause embodied in article 14, it may be mentioned
that a tax statute is as much subject to article 14 as any other statute. In
the application, however, of the principle embodied in that article, the
Courts. in view of the inherent complexity of fiscal adjustment of divers
elements, permit a larger discretion to the Legislature in the matter of
classification so long it adheres to the fundamental principles underlying the
doctrine of equality.
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. (see Khandige Shah. Bhat and Other
s v. The Agriculture at Income Tax Officer(1); as well as the recent decision
of this Court (1)  3S.C.R.809.
912 in Vivian Joseph Ferreira and Anr. v. The
Municipal Corporation of Greater Bombay & Ors., Writ petition No. 187 of 1970
decided on November 4, 1971). Willis in his Constitution Law has summed up the
position as under on page 587 :
"A State does not have to tax everything
in order to tax something. It is allowed to pick and choose districts, objects,
persons, methods and even rates for taxation if it does so reasonably...... The
Supreme Court has been practical and has permitted a very wide latitude in
classification for taxation." The above principle was approved by this
Court in East India Tobacco Co. v. State of Andhra Pradesh(1) and Twyford Tea
Co. Ltd. and Another v., The State of Kerala and Another(2).
It was also observed in the last mentioned
case that burden is on a person complaining of discrimination and, for this
purpose, it is necessary to prove not possible inequality but hostile unequal
The modern trend in all progressive countries
is towards establishment of a welfare State and with this end in view, the
State has to prepare plans and devise beneficent schemes for the good of the
common people. The implementation of those plans and schemes entails colossal
expenditure. The State has consequently to tap various sources for augmenting
its income and raisin,the revenue. Taxes are levied for this purpose, and the
Stat is given a wide range of choice for the purpose of taxation. It is
axiomatic that different situations call for different fiscal measures. The
State is presumed to know the requirements of the tuition and act accordingly.
No rigidity being possible, it is difficult to apply any set formula. Much
greater latitude and discretion has, therefore, to be allowed to the State for
the purpose of taxation the context of article 1 4 of the Constitution.
Dr. Singhvi on behalf of the appellants has
referred to The fact that there is flat and uniform rate of cess for each acre
in respect of all lands in a division irrespective of the quality and
productive capacity of the land. It is urged that a flat and uniform rate for
all lands in a division results in inequality and is violative of article
14. In this connection, we find that the
material on record, to which reference has been made earlier, shows that the
rate of cess prescribed for each division has a rational nexus with the object
of the Act and is based on intelligible differentia. The object of the Act is
to raise funds for the implementation of schemes to secure protection of the
lands in the deltaic area from ravages of the floods. As the Act is designed to
benefit the land in the divisions of the deltaic area, the levy of cess at
uniform rate for each acre of the land in a division cannot be considered to
offend the (1)  1 S.C.R.404.
(2)  3 S.C.R.383.
913 principLe of equality. The floods strike
equally all lands in The area and make no discrimination so far as the quality
and productive capacity of those lands are concerned. In the circumstances, it
appears to be Just and reasonable that each acre in a division should bear
equal burden of the amount which is sought to be raised to fight the danger of
floods and provide for an efficient system of drainage.
Further, as the cost, of drainage scheme
varies in the different divisions, the rate of cess has been fixed at different
rates for the divisions keeping in view the cost of drainage scheme in each
division. The differential in the cost of drainage schemes for the four
divisions, in our opinion, has been properly reflected in the varying rates of
cess for each division.
Reference has been made on behalf of the
appellants, with a view to show that lack of classification in the matter of
tax can create inequality, to the following cases: :
Kunnathat Thathunni Moopil Nair ,v. The State
of Kerala and Another(1) New Manek Chowk Spinning and Weaving Mills Co. Ltd.
v. Municipal Corporation of Ahmedabad and
Ors. (2) State of Andhra Pradesh & Anr. v. Nalla Raja Reddy & Ors.
(3) State of Kerala v. Haji K. Haji K. Kutt
Naha & Ors. Etc.
(4) In the case of K.T. Moopil Nair this
Court considered the provisions of Travancore Cochin Land Tax Act, 1955 and
found that all lands in the State of whatever description were to be charged
basic tax at uniform rate per acre irrespective of the quality of the land and
the fact whether it yielded or was capable of yielding any income.
In the case of Nalla Raja Reddy this Court
held the provisions of Andhra Pradesh Land Revenue (Additional Assessment) and'
Cess Revision Act, 1962 to be violative of article 14. The said' 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 per cent of the yearly assessment was imposed on dry land and the total
assessment was not to be less than 50 paise per acre. On wet land the
additional assessment was to be 100 per cent for land irrigated from a Government
source and 50 per cent in case of other wet lands. The minimum total demand was
also prescribed. The Act was considered to--be discriminatory as the. minimum
had no(1)  3 S.C.R. 77.
(3)  3 S.C.R. 28.
(2)  2 S.C.R. 679.
(4)  1 S.C.R. 645 914 relation to the
fertility of the land. It was also found that the assessment was left to the
arbitrary discretion of an officer with-out an opportunity to question his
This case, as observed in the later case of
Twyford Tea Co.
v. The State of 'Kerala and Another-(1) was
peculiar to itself.
In the case of New Manek Chowk Spinning and
Weaving Mills and Haji K. Haji K. Kutty Naha, the question was one of rating.
What was held in those cases was that taking only the floor area of a building
as the basis for determination of a tax was an arbitrary method when buildings
had different rental values depending upon the nature of the construction and
the purpose for which they were used These facts were held to be vital in the
rating of buildings. It is manifest that the principle involved in these cases
has not much relevance for the present case.
So far as the case of K. T. Moopil Nair is
concerned, we find that the majority quoted with approval the following
observation of Das C.J. in Shri Ram Krishna Dalmia v. Shri Justice S. R
Tendolkar, and Others(2).
"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 at
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.
After such scrutiny the 'Court will strike
down the statute if it does not lay d own 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." Keeping the above
observations in view we find that' in the present case the Act contains
sufficient guidelines for the fixation of the rate of cess and there is also
enough material on record to justify a uniform rate of cess for each acre of land
in a division of the deltaic are. The imposition of tax on land for raising
general revenue is substantially different from the levy of cess for (1) 
3 S.C.R. 383 (2)  3 S.C.R.77 915 implementation of a drainage scheme for
the benefit of lands in an area and the principles applicable in one, case
would not necessarily hold good in the other.
Reference has then been made on behalf of the
appellants to an American case, Village of Norwvod v. Ellen R. Baker(1).
In that case the Court considered special
assessment upon an abutting property by the front door without taking special
benefits into account for the entire cost and expenditure of opening a street.
It was held that the exaction from the owner of a private property of the cost
of public improvement in substantial excess of the special benefits accruing to
him is to the extent of such excess a taking under the guise of taxation of
private, property for public use without compensation. Perusal of that
authority shows that the Court invoked the doctrine of due process of law in
arriving at the above conclusion. The aforesaid doctrine of due process of law
is not applicable to India and, as such, the appellants cannot derive much
assistance from that authority. Another American case referred to on behalf of
the appellants is Kansas City Southern Railway Co. v. Road Improvement Dist.
No. 6 ( 2). The question involved in that case was whether a railway property
in an area is subject to assessment to help cost of constructing a local
improvement in the nature of a country highway. The Court observed :
"Obviously, the railroad companies have
not been ,treated like individual owners, and we think the discrimination so
palpable and arbitrary as to amount to a denial of the equal protection of the
law. Benefits from local improvements must be estimated upon contiguous
Property according to some standard which will probably produce approximately
correct general results. To say that 9.7 miles of railroad in a purely farming
section, treated as an aliquot part of the whole system, will receive benefits
amounting to $ 67,900 from the construction of 11.2 miles of gravel road seems
wholly improbable, it not impossible. Classification, of course, is
permissible, but we can find no adequate reason for what has been attempted in
the present case." The question involved in the above case, in our view,
was materially different and, as such, the appellants cannot derive much
assistance from it also.
it has also been argued on behalf of the
appellants that their lands are not benefited by the proposed drainage schemes
as those lands are not subject to floods. Reference in this context has (1) 43
L. ed. 441.
(2) 65 L. ed. 1157.
916 been made to a statement which
constitutes Appendix F to Vol. II of the report of the Mitra Committee wherein
details are given of ,the areas damaged by floods. According to that statement,
the average area damaged in floods in Godavari western delta, to which the
appellants belong, during the years 1955 to 1964 was 33,091 acres. The land on
which cess is proposed to be levied in the Godavari western delta, according to
the estimate in tabular form given on behalf of the State Government to State
Legislature in July 1968, measured 4,90,000 acres. Dr. Singhvi accordingly
concludes that only 7 per cent of the land in Godavari western delta is to be
benefited as a result of the drainage scheme and that 93 per cent of landowners
in the Godavari western delta are being made to pay the cost of the scheme
which would benefit 7 per cent of the lands in that area.
We are not impressed by the above contention.
The floods have a vagary and caprice of their own, and it is difficult to
predicate about the behaviour of flood waters. The problem which arises in one
year cannot afford a proper, guidance for the following year because the
dimensions of the problems in the subsequent year may be hundredfold compared
to those of the previous year. This is evident from the figures in the table
relied upon by Dr. Singhvi. R would appear there from that in the year 1961
only 1,149 acres of land in the Godavari western delta were damaged by floods,
while in the year 1959 the damage caused by the floods in that area covered
89,528 acres of land. The material on record further shows that during 1969
floods, an area of as much as 3,69,395 acres out of a total of 4,90,000 acres,
that is, about 75 per cent of the appear was damaged by floods in the Godavari
western delta. It is, therefore, plain that we cannot stick to the average
damage referred to by Dr. Singhvi in considering the scheme of drainage. An
effective system of drainage has in the very nature of things to make provision
not only for a normal rainfall but also to meet those contingencies as arise
when there are unusual rains and heavy floods. It is indeed only then that the
efficacy of a drainage system is proved. We also find it difficult to accede to
the submission made on behalf of the appellants that we should not take into
account the figures of damage done in the 1969 floods. The proposed drainage
scheme has to provide for years to come adequate safeguards and protect against
contingencies created by unusually heavy rains and floods. The fact that the
impugned Act enacted in 1968 covered 4,90,000 acres of land in the Godavari
western delta shows. in the light of subsequent 1969 floods, the foresight of
the authors of the drainage scheme which is the subject of the impugned
The an The appellants lands are admittedly
irrigated in the deltaic area. The benefit to the appellants land, in the
circumstances, is implicit in the scheme of drainage. It is not disputed that
proper 917 drainage is an essential concomitant of an efficient system of
irrigation. Without adequate drainage the irrigated land gradually loses its
fertility, becomes saline and water logged. The following extracts from the
proceedings of the First Inter-Society Conferenc on Irrigation and Drainage
would show the importance of drainage for irrigation :
"Drainage is the removal of both excess
water and salines from agricultural soils. Surface drainage is the removal, of
excess precipitation and irrigation wastes at the surface to prevent flooding
and to minify the more costly sub-surface drainage requirements.
Efficient engineering designs of surface
drains require only an understanding of topographic conditions, pumping.
Effective surface drainage is comparatively inexpensive and is essential to
permanence of irrigation agriculture." The affidavit of Shri Venkatadri
shows that apart from prevention of damage to crop by floods, the following
indirect benefit& are derived by irrigated land as a result of drainage
"(1) Facilitates early ploughing and planting, (2) lengthens the
crop-growing season, (3) provides more available, soil moisture and plant food
by increasing the depth of rootzone soil (4) helps in soil ventilation (5)
decrees soil erosion and gullying, by increasing water infiltration into soils,
(6) favours growth of soil bacteria, (7) leaches excess salts from soil and (8)
assures higher soil temperatures." I There is one integrated drainage
scheme for the division in which the appellants lands are situated and the
appellants, in our opinion, are beneficiaries of that scheme in the same way as
the other landowners in that division. The fact that on account of
topographical situation some landowners get greater benefit of the drainage
scheme because of their lands being more prone to damage by floods is a
fortuitous circumstance and the same would not be a valid ground for striking
down the impugned legislation. It is well established that if there is equality
and uniformity within each group, the law will not be condemned as
discriminative though due to some fortuitous circumstances 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. (Khandige Sham Bhat and
Others v. The Agricultural Income Tax Officer, Supra).
In the case of Vivian Joseph Ferriera and
Anr. v. The Municipal Corporation of Greater Bombay & Ors. (Supra), this
Court dealt with the validity of the Bombay Building Repairs and Reconstruction
Board Act of 1969. The said Act related to the problems arising out of the
collapse of residential buildings and -L736Sup CI/72 918 acute shortage of
housing accommodation. Provision was made in the Act for establishing a Board
to deal with the said problem by carrying out structural repairs to dangerous
buildings by acquiring and reconstructing buildings which were beyond repair
and for the rehousing of occupiers who because of such repairs would be
dishoused. Temporary levy of an additional cess on buildings and lands to meet
the expenditure for the aforesaid purposes was provided for in that Act. One of
the grounds which was urged on behalf of the petitioners was that the Act was
violative of article 14 in that it failed to recognize the material difference
between various buildings with regard to their physical conditions and treated
unequals as equals. The petitioners in that case were owners of a residential
building which by reason of its having been recently constructed was neither
dilapidated nor in dangerous condition. Repelling, the above contention this
Court observed :
"The contention that some of the
buildings falling in categories B and C would not need structural repairs
throughout the life of the Act or that such repairs would be carried out in
buildings not cared for by defaulting landlords, takes no notice of the fact
that the primary object of the Act is not to repair all buildings subject to
cess but to prevent the' annually recurrent mischief of house collapses and the
human tragedy and deprivations they cause. The cess being thus levied to
prevent such disasters, there is no question of unequal treatment between one
class of owners and another." We are, therefore, of the view that the,
provisions of the impugned Act are not violative of article 14 of the
There is no substance in the contention
advanced on behalf of the appellants that the right of appeal provided by
section 5 of the Act is illusory. The legislature has prescribed the maximum
limit of the rate of cess and the notification issued under the Act has fixed
that rate. The procedure to be adopted before the levy of the cess has been
prescribed in section 4 of the Act. Section 5 gives a right of appeal to a person
aggrieved by the levy of the drainage cess under section 4. The matters which
can be agitated in appeal may relate to the area for which the cess is levied
or the ownership of that area. In case a landowner's stand is that the area
owned by him is less than that for which cess is levied or that he has
transferred the said land or part of it, he can agitate the matter in appeal.
The fact that no discretion is given to the appellate authority to determine
the rate of cess would not introduce an infirmity or make the right of appeal
to be illusory.
919 The argument that there has been
excessive delegation of the legislative power in the matter of determining the
rate of cess is equally devoid of force. According to Dr. Singhvi, the
legislature has merely prescribed the maximum rate at which cess may be levied
but has not fixed the minimum rate of the cess. The Precise rate of cess is
left to the Government by section 3 of the Act and, as such, according to the
learned counsel, there has been excessive, delegation of the legislative power.
In this connection, we find that it is open to the legislature to prescribe the
maximum rate of cess. The authority mentioned in the statute, subject to other
legal requirements, can levy cess up to that limit.
As things are the State Government in the
present case has adhered to the maximum prescribed by the Act vide notification
dated December 17/20, 1968. The power of the legislature to fix or change the
limit of tax has been discussed in para 165 of the Law of Taxation by Cooley,
4th Edition, in the following, words :
"Power of legislature to fix or change
In addition to, or in place of,
constitutional provisions, there are statutes in many states limiting the
amount or rate of taxation by a country, town, municipality, or other local
subdivision; and sometimes the limitation imposed upon a municipality is found
in its charter. A valid limitation on the rate, where fixed by the legislature,
is just as binding on counties and municipalities as is such a limitation fixed
by the constitution." No authority has been cited before us to show that
even though maximum limit of the tax has been prescribed, the absence of a
minimum limit vitiates the taxing statute. It is not necessary, however, to
dilate upon this aspect of the matter as we find that there are enough
guidelines in the Act in respect of the rate of cess because the rate of cess
in a division has to be corrected to the amount of expenditure to be incurred
on the drainage scheme in that division.
It may also be mentioned that subsequent to
the decision of the writ petition which is the subject of the present appeal,
validity of the provisions of the Act was challenged in a batch of writ
petitions before the Andhra Pradesh High Court. The matter was then referred to
a full bench. The learned judges constituting the full bench by means of three
separate judgments upheld the constitutional validity of the provisions of the
As a result of the above, the appeal and the
writ petition are dismissed, but, in the circumstances, without cost.
S.C. Appeal and petition dismissed.