D H NAMBOODIRIPAD Vs. EXECUTIVE AUTHORITY THEKKUMKARA PANCHAYAT

JUDGEMENT

(1.) The common petitioner in these writ petitions is an advocate of this Court; and he is sought to be assessed to profession tax by three panchayats within the limits of which he owns lands. He questions the validity of the notices issued by the Panchayats. In the first case his contention is that he is only collecting rent from the tenants of the lands within the Thekkumkara Panchayat and that he is not cultivating the lands through his servants or agents. Though the panchayat has filed a counter affidavit stating that the Panchayat is not aware whether all the lands of the petitioner within its limits are in the possession of tenants, we have to proceed on the basis that the petitioner is just collecting rent from his tenants to whom he has leased out the lands. As a taxing authority, the panchayat should have ascertained the facts necessary which would have entitled it to assess the petitioner and its pleading ignorance whether all the lands of the petitioner are in the possession of tenants or not cannot justify its attempt to tax the petitioner. Moreover, the assessment order itself, Ex. P 4, states that the assessment is in relation to the agricultural income derived by way of pattom (rent), etc. of the lands of the petitioner. Therefore, the question for us to consider in the first case is whether receiving rent by the petitioner from his tenants is a business, calling, avocation, vocation or occupation which would come within the relevant provision of the Kerala Panchayats Act.

(2.) In the second case two panchayats have sought to assess the petitioner, the first respondent, the Ongallur Panchayat, and the second respondent, the Desamangalam Panchayat. However, the second respondent has since filed a counter affidavit stating that, since the petitioner is not cultivating lands within the limits of the panchayat through his servants or agents and is only receiving rent from his tenants, the panchayat has passed a resolution not to tax him, as such receiving of rent is not a calling, business, vocation, avocation or occupation. The first respondent contends that some of the lands belonging to the petitioner within that panchayat the petitioner cultivates through his agent, while he receives rent from the tenants of the other lands. Thus, in the second case we have to decide whether atleast the cultivation of lands by the petitioner through his agent is not a calling, business, vocation, avocation or occupation which will come within the relevant provision of the Panchayats Act.

(3.) Mr. K. V. Suryanarayana Ayyar, the counsel of the petitioner in the first case, has brought to our notice some decisions, and the counsel of the panchayat in that case has also invited our attention to some decisions. The first case cited by Mr. Suryanarayana Ayyar is Commissioner of Income Tax, West Bengal, Calcutta v. Benoy Kunar Shas Roy ( AIR 1957 SC 768 ). The Supreme Court considered in that case the meaning of the expression "agriculture" and "agricultural purpose" in considering a provision of the Indian Income Tax Act of 1922. Bhagwati J., who spoke for the Court, considered these expressions in some detail, referring to several decisions and also to the meaning of these expressions given in some dictionaries, and said that the word "agriculture" had two meanings, one, a basic or primary meaning, and the other, a wider meaning. The learned Judge pointed out that the word "agriculture" was derived from agar (field) and cultra (cultivation) and meant cultivation of the field. In that restricted sense the term meant tilling of the land, sowing of the seeds, planting and similar operations on the land. And the learned Judge proceeded that there were other operations as well, for instance, weeding, digging the soil around the growth, removal of undesirable under growth, preventing depredation from outside, tending, pruning, cutting, harvesting and rendering the produce fit for the market; and that in the wider sense these subsequent operations would also be agricultural operations. But His Lordship pointed out that these subsequent operations, divorced from the primary operations of cultivating the field in the sense of tilling the land, sowing the seeds, planting and similar operations, would not be agriculture; in other words, the primary operations by themselves would be agriculture, and the subsequent operations would also be agriculture if taken along with the primary operations and not divorced from them.