THE BUCKINGHAM AND CARNATIC COMPANY LTD. AND ORS. Vs. THE STATE OF MADRAS REPRESENTED BY SECRETARY, REVENUE DEPARTMENT AND ORS.

JUDGEMENT

(1.) The petitioners, who are affected by the provisions of the Madras Urban Land Tax Act, 1963 (Madras Act XXXIV of 1963), assail its validity on grounds of legislative incompetency to enact it and of violation of constitutional limitations. The petitions are by different owners of urban lands in the City of Madras to quash the notification either under Sec. 9 or under Sec. 16(3) of the Act, in so far as they relate to the petitioners, or the levy and demand of tax on some of them under its provisions. To deal with the legal contentions, it will suffice to mention the facts in one or two petitions, as the facts in almost all the petitions are related and of more or less similar pattern, except as to particular owners, the locality of the lands in different zones and sub -zones and their character and market value. If it is necessary, reference will be made to other specific facts in disposing of the prayer for quashing of the urban land tax and Settlement Schemes prepared and published under the Act.

(2.) In W. P. No. 1614 of 1964, the petitioner is the owner of property in R.S. No. 1693/1, Mylapore, its area being 4 cawnies 1 ground and 1595 square feet. The building on the land bears several door numbers in Luz Church Road, Royapettah High Road and Veerabhadran Street, Mylapore. By a notification dated 7th October, 1964, the Act has been extended to the area of Mylapore, among the various other areas in the city, and he has been, pursuant to the Notification, included in the provisional list of assessees as per Sec. 16(3) of the Act and Rule 6(3) of the Madras Urban Land Tax Rules, 1963; and the list, among other particulars, contains a description of the extent of the land in respect of which the petitioner is liable to pay urban land tax. Under Ss. 17 to 21, the inclusion of his name in the provisional list of the assessees would lead to demand of tax from him. After making reference to various Ss. of the Act, the petitioner submits that the basis of the levy of urban land tax, as provided under that Act, is arbitrary and leads to discrimination. The tax is levied under the charging provision not on the actual market value of such urban land, but on the average value of lands in a locality. for the purpose of taxation, the entire area in a sub -zone is taken as a unit and the tax so arrived at for the locality is distributed among the owners on the basis of the extents owned by each owner in the locality, with the result that a person owning a piece of a very inferior land of small value in a sub -zone, where the average value of the land is very much more, will be made to pay tax not on the value of his land, but on the market value of lands of others. The average market value, which is taken into account, is the gross value and not the net value and the net value of one owner will be different from the net value of another owner. Further, the only objections, which are contemplated under the Act, are the objections relating to the draft settlement scheme prepared under Sec. 8 of the Act and can relate either to the delimitation of sub -zone or to the average market value of the land of the particular assessee. The provision for objections under Ss. 9 and 12 is merely farcical. There is also no provision for objecting to a particular land being treated as urban land '. The definition of urban land ' leaves to the arbitrary determination by the Urban Tax Authorities the question whether a particular land is capable of being used as a building site; and there is also no warrant in excepting from the definition any land which is registered as wet in the Revenue Account of the Government and used for the cultivation of wet crops. It is not the registry that distinguishes an urban land, from a non -urban land. The remedies provided under Ss. 11 to 13 of the Act are illusory and further there is no provision in the Act by which the assessee can have the correct market value of his urban land assessed. The jurisdiction of the civil Court is also barred from deciding or dealing which any question which arises or decided by the authorities under the Act. Ss. 26 and 31 of the Act are repugnant to the fundamental rights under Article 19(1)(f) of the Constitution. The provisions of Sec. 29 of the Act replacing the existing tenures by imposition of urban land tax and purporting to be in lieu of other assessments offend Article 372(1) of the Constitution. Such tenures without being altered by a law properly enacted cannot be defeated by Sec. 29 of the Act. The Act, therefore, offends Articles 14, 19(1), (f), 265, 31(2) and 372(1) of the Constitution. In addition, the petitioner say that the Act is not competent under Entry 49 in List II of Schedule VII of the Constitution but falls within the purview of Entry 86 of List I. In certain other petitions, a further submission is made that having regard to the history and legislative practice prior to the Constitution the power under Entry 49 read with Entry 5 should be limited to imposition of tax for municipal purposes and cannot be availed of for purposes of general revenue.

(3.) The petitioner in W.P. No. 2191 of 1965 is the Buckingham and Carnatic Company Limited, which prayed that the demand of urban land tax served on it under Sec. 22 of the Act for fasli 1373 in relation to R.S. No. 144 in Perambur Village be quashed. The petitioner is the owner of the Buckingham and Carnatic Mills in Perambur and, in connection with its business, it is the owner of the lands in Perambur Village. The properties involved in the petition are stated to be in twelve blocks, each block comprising numerous survey numbers on some of which quit rent has till now been levied by the Government; the other survey numbers are held on payment of ground -rent to the Government and a few items free of assessment. The petitioner, as in the other petitions, is questioning the validity of the Act itself, besides the legality and correctness of the individual demand notices on certain grounds. The further point, stated in attack on the validity of the Act, is that while the Madras Urban Land Tax Act is one imposing a tax on the lands falling under Entry 49, List II in Schedule VII of the Constitution, the property tax levied under the Madras City Municipal Act, 1919 is also a tax on lands and buildings falling under the same Entry and that it is ultra vires and incompetent for the State Legislature to levy two different taxes on the same property under the same Entry. The municipal annual value was fixed by the Corporation of Madras in respect of certain buildings including the land appurtenant to them and the Corporation has levied tax in respect of such vacant lands. The provisions of the Act relating to payment of tax at a percentage of the average market value of the urban land in a sub -zone are invalid and ultra vires as being arbitrary and without any guidance and further because the actual provisions are meaningless and unworkable. Sec. 3 refers to the average market value of the land which, according to Sec. 7(2) has to be decided with reference to the stated factors. Sec. 7 provides that the Assistant Commissioner shall determine the highest and the lowest market -value of the land in a zone and then the Sec. proceeds to empower him to determine the average market value of the land in a sub -zone. To start with, the very concept of ' average market value ' is both vague and irrelevant for the purpose of taxation based on the market value of the land. Neither the Act nor the Rules prescribe how the average is to be determined. Any average implies a number of known figures and it is impossible to say from what figures, this average is to be determined. Further, there is no reason why any land owner should pay a tax based on the average market value even if such a figure can be correctly arrived at, which may be far in excess of the value of his land. The provisions relating to determination of the value being arbitrary and farcical, the so -called appeals provided in the Act are meaningless and infructuous. An individual land owner can certainly state and prove the market value of his land on any particular date and no land owner can effectively make any case or representation about what is called the average market value of a land in a zone.' The factual basis and grievance in respect of the submissions, according to the petitioner, can be appreciated by a scrutiny of the figures which are furnished where the disproportion between the quit rent and the present demand is to be noted as well as the disproportion between the municipal annual valuation and the demand under the Act. So far as the demands on the petitioner are concerned, they are attacked on the ground that the authorities have determined an imaginary average market value in respect of each sub -zone. The petitioner's lands are comprised in sub -zones F (8), F (24) and F (25) of the North Madras ' F ' zone. From enquiries, the petitioner understands as he says, that what the authorities had done was simply to take some of the transactions of sales at a very high rate and fix the average market value for each sub -zone on that basis. The demands have been made on the basis of survey numbers which ultimately have little relevance to the taxation of the type based on the value of the land. The petitioner suggests that the only proper course would be to take each property as a whole which in this case would be each one of the twelve blocks marked in a plan attached to the petition and says that survey and sub -division number has no significance in this connection, as each plot by itself cannot be sold or enjoyed separately.' The arbitrary nature of the proceedings, according to the petitioner, can' be seen when in a number of instances, separate assessments have been made in respect of survey numbers which are part of the same property and where in one or two cases the assessment has been made as a single one on a number of survey numbers including survey numbers not included in that block. The assessments are, on the face of. the record, so excessive as to be quashed on the ground of being not bona fide determinations and for this purpose it will be enough to compare the assessment with the municipal valuation. The petitioner further says that the ground -rent lands are held under a tenure from Government in respect of which the ground rent is fixed under detailed rules contained in the Board's Standing Orders based on the value of the land; and the Government which has fixed the value of the land for ground rent purposes cannot itself for another purpose fix a value which is totally out of proportion to that value. The petitioner claims that he is entitled to quashing of the assessment under the Act in respect of two items of land held free of assessment, namely, R.S. No. 219/1 in Serum Institute Cooks Road and Survey No. 219/5 in the same road. It is stated that as the lands are held free of assessment, it is incompetent for the State to make a levy on these two items under the Act. The so -called tax under the Act is in fact only land revenue in another form and any grant by the State free of assessment Would give immunity to the land from being taxed again merely as land whether under the -same or other Entry.