KRISHNAN THANGAL Vs. STATE OF KERALA

JUDGEMENT

(1.) (For M. Madhavan Nair J. & himself) This Writ Appeal and these writ petitions were heard together as they raise the question of vires of the Kerala Land Tax Act (Act 13/1961), hereinafter referred to as the Act, unless the context indicates otherwise. The validity of the demand for tax and the steps taken to recover the tax due under the Act have been challenged also on the merits.

(2.) THE Act has a legislative history. It is not necessary to trace it earlier than to the provisions of the Travancore Cochin Land Tax Act 15/1955, (referred to where necessary as the 1955 Act) applicable in the Travancore-Cochin State. After the re-organisation of States and the formation of the Kerala State, the 1955 Act was made applicable from 1-9-1957 by Act 10/1957 to the Malabar area, newly included to form the Kerala State. A short summary of the main provisions of the said Act would be helpful. THE preamble set out that it was necessary to provide for the levy of a low and uniform rate of basic tax on all lands in the State. Basic tax was defined as a tax imposed under the provisions of the Act. By S.3, the arrangement made under the Act for the levy of basic tax was to be deemed to be a general revenue settlement. S.4, the charging section, indicated that there will be charged and levied in respect of all lands in the State a uniform rate of tax called the basic tax. S.5 laid down the rate of the tax as Rs. 2/- per acre. S.6 enacted that any stipulation in any contract or agreement or lease or other transaction to pay the land revenue assessment of any land shall be construed as a stipulation for payment of the amount of basic tax as charged and levied under the Act. It is unnecessary to notice the remaining sections. By Act 10/1957, S.5A was introduced which was as follows: "S.5-A, Provisional assessment of basic tax in the case of unsurveyed lands (1) It shall be competent for the Government to make a provisional assessment of the basic tax payable by a person in respect of the lands held by him and which have not been surveyed by the Government and upon such assessment such persons shall be liable to pay the amount covered in the provisional assessment. (2) THE Government after conducting a survey of the lands referred to in Sub-section (i) shall make a regular assessment of the basic tax payable in respect of such lands. After a regular assessment has been made, any amount paid towards the provisional assessment made under sub-section (1) shall be deemed to have been paid towards the regular assessment and when the amount paid towards the provisional assessment exceeds the amount payable under the regular assessment, the excess shall be refunded to the person assessed." THE 1955 Act was struck down by the Supreme Court in Kunnathat Thatunni Moopil Nair etc. v. State of Kerala and Another (AIR. 1961 S.C. 552). THE Supreme Court noticed that unlike other taxing statutes, the 1955 Act did not make any provision for the issue of notice to the assessed nor any provision for submission of return. It did not make any provision for appeals. Where as S.5-A authorised a provisional assessment, not even the time-limit for making a regular assessment was indicated, beyond the indefinite future after completion of survey. Observed the Supreme Court:

(3.) THEN came the 17th Amendment of the Constitution and the Act was included as item 38 in the 9th Schedule on 20 6-1964. Subsequently certain amendments have been made to the Act to which we shall, in due course, refer.