Vishwesha Thirtha Swamiari & Ors Vs.
State of Mysore & ANR [1971] INSC 196 (12 August 1971)
SIKRI, S.M. (CJ) SIKRI, S.M. (CJ) RAY, A.N.
PALEKAR, D.G.
CITATION: 1971 AIR 2377 1972 SCR (1) 137
CITATOR INFO:
R 1992 SC1264 (14,17,19)
ACT:
Mysore Land Revenue (Surcharge) Act, 1961 as
amended-Competence of State Legislature to levy-Surcharge on land
revenue-Whether the Acts discriminatory and therefore violative of Art. 14 of
the Constitution.
HEADNOTE:
In 1961, the new State of Mysore enacted
Mysore Land Revenue (Surcharge) Act, 1961, by which a surcharge on the land
Revenue @15 n.p. on every rupee of land revenue was levied and this was payable
by every landholder liable to pay a sum exceeding Rs. 20 as land revenue. By
another enactment Mysore Land Revenue (Surcharge) Amendment Act, 1962, the
surcharge for 1962-63 and 1963-64 was raised to 100 per cent of the land
revenue in the case of wet and garden lands and 75 % in respect of dry lands.
Both these Acts were challenged before the
High Court on several grounds but the High Court rejected them and dismissed
the petitions. In appeal, before this Court it was contended (i) that the
Mysore Legislature was not competent to enact the Mysore Act of 1961 and the
amending Act and (ii) that since there is inequality in taxation between lands
comprised in South Kanara District and the areas in the erstwhile Mysore State,
the levy is hit by Art.
14 as being discrimir fatory in character and
therefore bad in law. Dismissing the appeal,
HELD: (i) Surcharge fell squarely under Entry
45 of List It and it is not a tax on land revenue but an enhancement of land
revenue by way of surcharge and even if it is raised by 1 00 % does not change
the nature of the imposition. It is still land revenue and the Mysore
Legislature is competent to enact the impugned Acts. [140 DE] (ii) In view of
the temporary nature of the Acts imposing additional land revenue, while
resettlement and survey was being done in the entire State in order to have a
uniform land revenue law, the Acts in question are not violative of Art. 14 of
the Constitution. [144F] C. V. Rajagopalachariar v. State of Madras, A.I.R.
1960 Mad. 543, State of Andhra Pradesh v. Nalla Raja Reddy [1967] 3 S. C. R. 28
and State of Madhya Pradesh v. Bhopal Sugar Industries Ltd.[1964] 6 S.C.R. 846,
referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 2222 of 1966, 441 to 444 and 446 of 1970.
Appeal from the judgment and order dated
September 17, 1965 of the Mysore High Court in Writ Petitions Nos. 1173, 1138,
1151, 1152, 1153 and 1155 of 1963.
138 V. S. Desai and R. B. Datar, for the
appellants (i all the appeals).
R. Gopalakrishnan and M. Veerappa, for the
respondents (in all the appeals).
The Judgment of the Court was delivered by
Sikri, C. J.-Seven writ petitions were filed in the Mysore High Court under
art. 226 of the Constitution challenging the validity of the Mysore Land
Revenue (Surcharge) Act, 1961-Mysore Act XIII of 1961-, as amended by Mysore
Acts 1 and 31 of 1963, as being ultra vires the Constitution. Some of the
petitioners were from South Kanara District, and some from Bellary. District,
which were part of the Madras State prior to the reorganisation of States. Some
petitioners were from the Karnatak area of the then Bombay State. The High
Court held that the Acts were within the competence of the Mysore legislature
and did not violate Arts. 14, 19 or 31 of the Constitution.
There are six appeals before us but the
learned counsel for the appellant gave us facts relating to writ petition
arising from South Kanara district only. It is common ground that if the High
Court judgment on the writ petition arising from South Kanara district is
upheld, the other appeals must also fail.
In writ petition No. 1137 of 1963, which is
concerned with lands in South Kanara district, the facts in brief are these.
The petitioner mutt, which is appellant before us, owned immovable properties
in the district of South Kanara and was paying an assessment to the Government
approximately of about Rs. 8,000/per annum. In respect of these lands survey
and settlement were introduced from 1902 to 1904 and classified into three
major classes of lands, viz., dry, wet and garden. The settlement was for a
period of 30 years and the wet lands were further classified into sub-classes.
Under the terms of the Ryotwari settlement
governing the district the revenue assessment rates for the different classes
of lands were fixed for a period of 30 years and they could not be varied
during that period. In 1934, after the staid period of 30 years, by notification
dated April 20, 1934, the rates of assessment of garden and wet lands 139 were
revised and increased uniformly by 12 1/2 per cent on the existing rates. Under
the settlement of 1934 it was an express term and condition that there was to
be no increment of assessment during the period of 30 years of the settlement
of any assessment.
The Madras Legislature levied a surcharge on
these lands in 1954, and again in 1955, but by the time anything could be done
under the Madras Land Revenue (Surcharge) Act, 1954 and the Madras Land Revenue
(Additional Surcharge) Act, 1955, the district of South Kanara with the
exception of Kasaragod Taluk became integrated with Mysore and other areas and
formed the new State.
By virtue of s. 119 of the States
Reorganisation Act the lands continued to pay land revenue under the existing
law, but the new state enacted Mysore Act No. XIII of 1961 called the Mysore
Land Revenue (Surcharge Act, 1961, which came into force on April 1, 1961.
Under this Act a surcharge on the land revenue at the rate of 15. np. on every
rupee of land revenue was levied and this was payable by every landholder
liable to pay a sum exceeding Rs. 20 as land revenue. Section 3 (2) provided
for an exemption to merged territories or merged areas within the Bombay Area,
or within the Hyderabad area, if on such land the land revenue payable had not
been fixed by a revenue survey and settlement made under the Bombay Land
Revenue Code, 1879, or the Hyderabad Land Revenue Act, 1318 Fasli, and the land
revenue payable after remission, if any, was equal to ,or more than the land
revenue and the surcharge under sub-s. (1) payable on similar lands in the
nearest neighbouring villages to which the revenue survey and settlement had
been introduced.
Another Act, called the Mysore Land Revenue
(Surcharge) (Amendment) Act, 1962, was enacted and it ,came into force from
April 1, 1962. Under this Act the surcharge for the two years, viz., 1962-63
and 1963-64 was raised to 100 per cent of the land revenue in. the case of wet
and garden lands and 75 per cent of the land revenue in respect of such dry
lands. Section 5 of the Surcharge Act of 1961 provided for the surcharge being
treated as land revenue and being recovered as such.
140 Before the High Court the acts were
challenged on four grounds : (1) The Mysore Legislature had no legislative
competence to enact the Mysore Act No. 13 of 1961 or the amending Act; (2)
Under any circumstances, the Legislature had no competence to levy additional
land revenue if the levy in question was considered as land revenue during the
period the settlement was in force; (3) The impugned Act was ultra-vires art.
19 (1) (f)and art. 31 of the Constitution;
and (4) The levy in question was hit by art.
14 of the Constitution as the same was discriminatory in character.
Before us the learned counsel for the
appellant has confined his attack on the first and the fourth grounds.
The High Court held that the so-called land
revenue surcharge was but an additional imposition of land revenue' or a land
tax and fell either within Entry 45 or Entry 49 of the State List.
It seems to us that the surcharge fell
squarely within Entry
45. The legislation is but an enhancement of
the land revenue by imposition of surcharge and it cannot be called a tax on
land-revenue, as contended by the learned counsel for the appellant. It is a
common practice among the Indian Legislatures to impose surcharge on existing
tax. Even art.
271. of the Constitution speaks of a.
surcharge for the purpose of the Union being levied by way of increase in the
duties or taxes mentioned in art.. 269) and art. 270.
Section 3 (1) of the Act of 1961 reads:
"3(1)-Notwithstanding anything contained
in any contract, grant or other instrument, or in the Mysore Land Revenue Code,
1888 (Mysore Act IV of 1888) or any other corresponding law or orders having
the force of law in any area of the State:(a) Every landholder liable to pay a
sum exceeding twenty rupees for a revenue year to the Government in respect of
all lands held by him shall pay for every revenue year surcharge at the rate of
fifteen naye paise on every rupee of the land revenue payable by him; and 141
(b) where the term for which the assessment of land revenue on any land fixed
under the Mysore Land Revenue Code, 1888 (Mysore Act IV of 1888) or under any
corresponding law or order in. force in any area of the State has expired,
every such landholder shall pay for every revenue year an additional surcharge
at the rate of twenty naye paise on every rupee of the land revenue on such
land until the land revenue fixed at the next revenue survey and settlement on
such land becomes payable." It seems to us that the Act clearly levies
land revenue although it is by way of surcharge on the existing land revenue.
If this is so, the fact that the surcharge was raised to 1 00 % of the 1-and
revenue on the wet and garden land and 75 % of the land revenue in respect of
dry lands, subject to some minor exceptions, does not change the nature of the
imposition.
We may mention that the Madras High Court
took the same view in C. Y. Rajagopalachariar v.. State of Madras. (1) We agree
with the High Court that the Mysore Legislature was competent to enact the
impugned Acts.
The learned counsel challenged the validity
of the Acts.
under art. 14 of the Constitution on the
ground that it was common ground that there was inequality in taxation between
the lands comprised in the South Kanara District and the areas in the erstwhile
Mysore State. The High Court proceeded on the basis that the land revenue was
highest in the Madras area of the State as it was represented to it that in the
old Madras. State half of the estimated net produce was taken as land revenue
where as in other areas only 1/16th of the gross. produce was taken as land
revenue.
These facts were not admitted by the State
but the High Court assumed those facts for the purpose of the case to be
correct. We will also proceed on those assumptions because even assuming facts
it cannot be said that there has been any breach of art. 14 of the
Constitution.
(1) A.I.R. [1960] Mad.543.
142 This Court, in State of Andhra Pradesh v.
Nalla Raja Reddy (1), while dealing with the Andhra Pradesh Land A Revenue
(Additional Assessment) and Cess Revision Act 22 of 1962 made the following
general ,observations "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.
After referring to the decision of the Madras
High Court in Rajagopalachariar's (2) case this Court observed :
"In the said Madras Acts a surcharge was
imposed in addition to the previous rates and the previous rates had been made
on the basis of ryotwari settlements which did not offend Art. 14 of the
Constitution and, therefore, a small addition to the said rates could not
likewise infringe the said article." Referring to the judgment under
appeal in the present case, this Court observed in Nalla Reddy's case as
follows:
"Nor has the decision of the Mysore High
Court in H.H. Vishwasha Thirtha Swamiar or Sri Pajawar Nutt v. The State of
Mysore in regard to the Mysore Land Revenue Surcharge Act (1 3 of 196 1) any
bearing on the present question.
There, as in the Madras Acts, the revenue
surcharge levied was an additional imposition of land tax and, therefore, the
Mysore High Court held that it did not offend Art. 14 of the (1) [1967] 3
S.C.R. 28, 46-48.
(2) A.I.R. 1960 Med. 543.
143 Constitution. In holding that Art. 14 was
not infringed, the Court said "We have before us a temporary measure. That
is an extremely important circumstance. The State, not unreasonably, proceeded
on the basis that a temporary levy could be, made on the basis of existing
rates' We can think of no other reasonable basis on which. the levy could have
been made. It may be that in the result some areas were taxed more than others.
But yet it cannot be said with any justification that there was any hostile discrimination
between one area and another." It will be seen that in that case on
existing rates based upon scientific data a surcharge was imposed as a
temporary measure till a uniform land revenue law was enacted for the whole
State." It seems to us that this Court rightly distinguished the two above
mentioned cases on good grounds. We have here a temporary measure imposing
additional land revenue while resettlement and survey was being done in the
entire State.
This process necessarily takes a long time.
It is stated in the judgment of the High Court that the settlement report was
received by the Government only in 1963. In these circumstances it cannot be
said that the State acted arbitrarily in imposing a surcharge on land revenue
which was being levied under the existing settlements and acts.
Reorganisation of the State is an important
factor in considering art. 14 and existing laws or any temporary laws that may
be made because of reorganisation. This Court, in State of Madhya Pradesh v.
Bhopal Sugar Industries Ltd. (1) observed:
"Continuance of the laws of the old
region after the reorganisation by S. 119 of the States Reorganisation Act was
by itself not discriminatory (1) [1964] 6, S.C.R. 846, 852-53.
144 even though it resulted in differential
treatment of persons, objects and transactions in the new State, because it was
intended to serve a dual purpose-facilitating the early formation of
homogeneous units in the larger interest of the Union, and maintaining even,
while merging its political identity in the new unit, the distinctive character
of each region, till uniformity of laws was secured in those branches in which
it was expedient after full enquiry to do so." In reply to the argument
that the State had sufficient time and opportunity to decide, whether the
continuance of the impugned act in the Bhopal region would be consistent with
art. 14 of the Constitution, this Court observed:
"It would be impossible to lay down-any
definite time-limit within which the State had to make necessary adjustments so
as to effectuate the, equality clause of the Constitution." The learned
counsel contended before us that the State could have easily waited for a few
years before levying the additional surcharge while the enquiries were pending.
Ibis is a matter not for the Courts but for the State Legislature to determine.
If the State needs funds urgently it is for it to levy additional revenue
provided it does not infringe art. 14. In view of the facts of this case, the
temporary nature of the Acts, and the pendency of the resettlement and survey
proceeding we cannot say that the Legislature has acted contrary to the
provisions of art. 14.
In the result the appeals fail and are
dismissed but there will be no order as to costs in these appeals.
S. C. Appeals dismissed.
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