TWYFORD TEA COMPANY LIMITED Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 be 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.

(2.) 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 35 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 annually. The Periyar valley area is more fertile than the Kuttikanam area. According to the Petitioners' statements 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 is 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 Penshurst, 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 Periyar areas. The petitioners state that similar differences exist in the Vandiperiyar and Nelliampathy areas. The petitioners point out 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.

(3.) 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 1-4-1960. "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. 50/- per hectare which is payable in respect of plantations of two hectares 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: