TWYFORD TEA CO. LTD. AND ANOTHER versus THE STATE OF KERALA AND ANOTHER

TWYFORD TEA CO. LTD. AND ANOTHER

THE STATE OF KERALA AND ANOTHER January 15, 1970

[M. HIDAYATULLAH, C. J., J. M. SHELAT, C. A. VAIDIALINGAM, A. N. GROVER AND A. N. RAY, JJ.]

Kerala Plantation (Additional Tax) Act, 1960 (Ac! 17 of 1960) and the Kerala Plantation (Additional Tax) Amendment Act 1961 (Act 19 of 1967) ,s. 3-Con.rtitution aJ India, Art. 14--Charge of unlfotm tax from plantauons alleged to be differently situated-Validity of tax-C~mpetency <>f Kerala legislature to levy land tax in absence of enabling entries in · S.venth Schedule, Constitution of India.

In the Kerala Plantation (Additional Tax) Act 1960 (Act 17 of 1960) there is levy of additional tax on plantations. "Plantations" mean land used for growing cocoanut, Arecanut, Rubber, Coffee, Tea, Car-damom and Pepper. Under s .. 3 of the Act, for each financial year plantation tax additional to the basic tax charged on land tax under the Land Tax Act 1955 is payable at the rate mentioned in Schedule I of the Act, the said rate being Rs. 8 per acre. Plantations of 5 acres or below held by person do not attract tax. For the purpose of finding oot the extent ot the plantation in acres held by person method of , calculation is laid down in Schedule II. Act 17 of 1960 was amended by the Kerala Plantation (Additional Tax) Amendment Act 1967 (Act. 19 of 1%7). By the amending Act the word 'additional' is removed from 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 unit of assessment is charged from acre to hectare, and the rate of tax in ·Schedule I is raised to Rs. 50/· per hectare. The tax is payable in res-pect of plantations of two hectares or· more with an exemption ior the lirst hectare. According to the new Schedule II the extent of the planta-tion for the purpose of tax in the case Of cocoanut, arecanut, rubber, coffee and pepper plantations is arrived at by dividing the total number of trees, plants or vines standing thereon by number, specified in each case. In the case of tea and cardamom the extent of the plantation is the extent of lands on which these plants are grown and have begun to yield crops.

The petitioner cOmpany was incorporated in India and the majority of its share-holders were Indians. It owned tea estate in the Kuttikenam area .in the Peermade Hills in Kerala State. The company paid without protest the additional tax levied on plantation by Act 17 of 1960. When the rate became heavier as result of th'l amendments made by Act 19 of 1967 the company field the present petitions under Art 32 of the Const:tu-tion. The challenge was based mainly on Art. 14 of the Constiut· lion. It was urged that there were differences of 'fertility and rainfall in the different areas where the plantations were situated. Fiqurcs com-piled by the Tea Board. were submitted to show the difference in yield be-tween different estates. Relying on Moopi/ Nair'•<:ase it was argued that the uniform tax ·on·unequals resulted in discrimination (a) as between the tea plantations themselves and .(b) as between <lifferent kinds of plantations. . The competence of the Kerala Legislature to Ievr land tax was also challenged.

HELD: Per Hidayatullah, J., and Vaidialingam and Ray, IJ.-The pe.titions must be dismissed. · ·

( i) The legislature has ·a wide range of selection and freedom in appraisal not only in the objects of taxation and the manner of taxation but also in the determination of the rate or rates applicable. If produc-tian were always to be taken into account there will have to. be settle-ment for every year and the tax will become kind of income-tax.

Tl~e burden of proving discrimination is· alwaYs heavy and heavier still when taxing statute is under attack. The burden is on the person compJainipg Of .discrimination. The burden i.s proving not possible 1in-equality' 'but hostile 'unequal' treatment. This is more so when uniform taxes are levied. The State cannot be asked to demonstrate equality. Simply stated the law is this : Difference in treatment must be capable 0f being reasonably explained in the light of the object for which the particular legislation is undertaken. This must be based on some reason-aple distinction between the cases differentially treated. When differential treatment is not reasonably explained and justified the treatment is discrimi-natory. If different subjects are equally treated there must be some basis on which the differences have been equalised, otherwise discrimination will be found. To be able to succee.I in charge of discrimination, person must establish conclusively that persons equally circumstanced have been treated unequally and vice versa. [393 C-D, H; 394 E-0) ,

(ii) Applying the above principles the impugned law does not single out any particular plantation for hostile or unequal treatment. The Legis-lature thinks that Rs. 50 per hectare in the case of cardamom and tea is reasonable levy and this is equal to other plantations, where the crop yielding plants and trees have to be converted into hectares aa:ording to formula, It is obvious that the legislature has made an attempt at equalisation o'f tax burden for different plantations. [395 CJ

In Moopi/ Nair's case this Court considered the tax therein impugned to be discriminatory because it paid no heed to quality or' productive capacity of land and the tax was also held to be confiscatory since owners of unproductive land were liable to be eliminated by slow degrees. The present was however not case where barren lands have been subjected to equal tax with productive lands. The tax is only levied on crop yielding land. In some cases where the crop may be scattered over wide area, there is an elaborate. mechahism to determine .the extent of the crop yield-ing plantation. [389 E-F, 391 Fj

As between different tea gardens it was not possible to say that the difference in yield was entirely due to natural circumstances and no other cause.

lt may be conceded that uniform tax falls more heavily on some plantations than on others because the profits are widely discrepent. But that by itself cannot involve discrimination, for then hardly any tax direct or indirect would escape the same sensure. The rich and the poor pay the same taxes irrespective of their incomes in many instances such as the sales-tax and profession tax etc. [389 H-390 BJ

[1961) 3

Kunnathat Thathunni Moopil Nair v. The State of Kera/a, [1961) 3 S .C.R. 77, State of Andhra Pradesh v. Nal/a Raja Reddy, [1967) 3 S.Cll. 28, New Mank Chowk Spinning and Weaving Mills Co. Ltd. v. Municipal Corporation of the City of Ahmedabad, [1967) 2 S.C.R. 679 and The State of Kera/a v. Haji K. Haji K. Kutty Naha A.LR. 1969 S.C. 378, distinguished.

Shri Rilm Krishna Da/mia v. Shri Justice S. R. Tendo/kar and Others, [1959] S.C.R. 279, East Indian Tobacco Co. v. SDate of Andhra Pradesh, [1963] I S.C.R. 404 and Khandige Sham Bhat and Others v. The Agri-cultural Income Tax Officer, [1963] 3 S.C.R. 809, applied.

Thuttampilra Planting Co. v. Tahsildar, Chittur, 1964 Kera/a LT. 47, Essa Ismail and another v. State of Kerala and others, l.L.R. (1965) Kerala 619 and States in Madden v. Kentucky, (1940) 309 U.S. 83; 84 II L.Ed. 590, referred to.

(iii) Immediately after the Travancore-Cochin Land Tax Act, 1955 as amended by the Travancore-Cochin Land Tax Act 10 of !957 was declared invalid by this Court in Moopil Nair's case, the Kerala Land Tax Act 1961 was passed following an ordinance. That Act was included in the 9th Schedule (o the Constitution at No. 38 and received the protection of Art. 31-B. The competency of the Kerala 'Legislature to imp.>se land tax was therefore no longer open to dispute.

Per Shela! and Grover, JJ. (dissenting) .--The petitions must be allowed.

Like MOOPil Nair's case the present case also was one where inequality emerged as result of imposing an ad hoc tax uniformly levied without making any rational or intelligible classification. There is no indication in the Act and none was sought to be shown as to how and on what basis the uniform rate of Rs. 50 per hectare was fixed and whether it had any re!ference to the productive capacity of the lands. [406 D-FJ

. As regards tea plantations, the tax is uniformly levied merely on the footing of the land being used for growing tea, witiJsut any regard to its potentiality, situation, the kind of tea which can s,ititably be grown at particular place, its geographical and other features etc. No doubt, the State in exercise. of the taxing power can select persons and objects for taxation but if it is found that within the range" of that selection the law operates unequally by reaJ;on either of classification or its absence, such provision would be hit by the equality clause of Art. 14. [408 DJ

Even among the selected plantations inequality a.s result of unifor-mity of tax must result because it is possible that the user of the land for one specified purpose may give better and more valuable yield than the user of another land though situated in the same area for another specified purpose. This had happened in the case of tea plantation with which alone the present petitions were concerned. Therefore to the ex.tent that Act 17 of 1960 as amended by Act 19 of 1967 imposes the tax on holdings of tea plantations, it is violative of Art. 14 and therefore void. i408 D-F]

Moopil Nair's case applied.

Case-Jaw referred to.

ORIGINAL JURISDICTION: Writ Petitions Nos. 135-137 of 196</.

Petitions under Art. 32 of the Constitution of India for en-forcement of the fundamental rights.

M. C. Seta/vad, Joy 1oseph, B. Datta, J. B. Dadachan;t, 0. C, Mathur and Ravinder Narain, for the petitioriers.

Sarjoo Prasad and M. R. K. Pillai, for respondent No. 1.

The Judgment of M. H!DAYATULLAH, C.J., C. A. VA!DIALINGAM and A. N. RAY, JJ. was delivered by HIDAYATULLAH, C.J. Dis-senting Opinion ·of J. M. SHEMT and A. N. GROVER, JJ, was .delivered by SHELAT, J.

Hidayatullah, C.J. These are three petitions by Twyford Tea Company and one of its directors under Art. 32 of the Constitu-tion 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, and 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 re-funded. They further seek mandamus restrain-ing ·the State of Kerala and Tehsildar Peermade from using the two Acts against the petitioners.The petitioner company is incorporated in India and the majo-. rity of its shareholders are Indians. It owns tea estate in Kuttikanam area in the Peermade hiils 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 33 sq. miles is situated at an altitude of 3400 to 3700 ft. and receives 150 to 200 inches of rainfalJ annually. The Periyar valley afe1\ rouj!hly 60 sq. miles is situated at an altitude of 2800 to 3200 ft. and receives 100 to 150 inches rainfall annually. The Periyar valley ar.ea is more fertile than the Kuttikanam area. Accordin;; to the petitioners' statement M/ s. Parkins Private Ltd., are the Managing Agents of Twyford Tea Company and also the Hai!ey-buria Tea Estate. The former is in Kuttikanam and the latter in Periyar area. The extent of produce from these two areas is very different. Between the years 1963 to 1967 Twyford Tea Com-pany produced 959 to 1211 kgs. per hectare while Haileyburia produced 1461 to 184.5 kgs. per hectare. The other tea-estates disclosed the same differences in production. -Examples are given of Penshurat, Karimtharuvi·estates under the same management and of Stagbrook and Cheenthalaar and other estates. The Twy-ford 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 rnnged from Rs. J 22.00 ( 1967) to Rs. 465.00 (! 963) with loss in i 966, while the profits of Heilcyburia 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 Pariyar areas. The petitioners state that similar differences exist in the Vandiperiyar and Nelliampathy areas. The petitioners point ont

that for purposes of excise duty these areas have been formed inio different zones and different rates of excise duty are leviable in these zones.

The two statutes which are impugned here imposed 1ax on plantations. In the Act XVII of 1960 there is levy of "addi-tional tax" on plantations. The Act came into force on April I. 1960. "Plantations" mean land used for growing seven kinds of crops. They are ( 1) Cocoanut, (2) Arecanut, (3) Rubber, (4 l 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 µlantation tax additional to the basic ta' char~ed as land tax under the Land Tax Act, 1955 is payable 8i the rate mentioned in Schedule I of the Act. This Schedule ,rates that no tax is payable if the aggregate extent of plantations held by person is below five acres. But if the plantations held by person is 5 acres or more, 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 person 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 anil. that schedule will be quoted presently. By the Amended Act the name of the tax is changed. The word "additional" is re-. moved 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 hec-tares or more with an exemption for the first hectare. The method of calculation of the extent of plantation in hectares is restated in Schedule IT as follows : ·

"Schedule II

For the purpose' of the assessment of plantation tax payable by person, the extent of plantatioris held by him shall be deemed to be the aggregate of the following, expressed in hectares. namely :-

(i) the quotient obtained by dividing the total num-

ber of bearing cocoanut trees standing on all lands held by him by 200; ·

(ii) the quotient obtained by dividing the total num-

ber of bearing arecanut trees standing on all lands held by him by 1500;

(iii) the quotient obtained by dividing the total

number of yield in rubber plants standing on all lands held by him by 450:

(iv) the quotient obtained by dividing the total num-

ber of yielding coffee plants standing on all lands held bv him bv 1500:

( v) the quotient obtained by dividing the total num-ber of yielding pepper vines standing on all lands held by him by 1000;

(vi) the e)itent of lands on which tea plants . are

grown which have begun to yield crops;

(vii) the extent of lands on which cardamom plants are grown which have begun to yield crops;

Provided that where the total extent of land· held by person, which is cultivated with the aforesaid crops, is less than the aggregate calculated as above, the actual extent alone shall be deemed tio be the extent of planta-tions held by him."

The petitioners paid tax under the old Act without objection. They state that they did so without realising · their rights. Thev were issued three demands for the assessments years 1960-61 to 1968. They had already paid between April 10, 1961 and Octo-ber 18, 1968 sum of Rs. 1,02,106.02. It is because of this .additional demand arising from the increase in the rate of rnx from.Rs. 8/- per acre or Rs. 20/- per hectare to Rs. 50/- per hec-tare that they have challenged the constitutionality of the two Acts.

The contention of the petitioners is that there is no rational classification of plantations; that unequals have been treated as equal and that flat rate imposed upon all the plantations irrespec-tive of their yield is arbitrary. According to them some of the plantations cannot make enough profit to be able to pay tax and in their case the tax became confiscatory. They also complain of discrimination and question the legislative competency of the Kerala Legislature to impose plantation tax in the absence of specific entry in,the 7th Schedule to the Constitution either in List II or III enabling the State Legislature to impose it. · They also say:,that the land tax imposed under the Land Tax Act was success-fully challenged before this Court in Kunnathat Thathunni Moopi/ Nair v. The State of Kera/a and anolher([1]) and the change making it additional land revenue impClS"..d an obligation upon the State "Legislature to make assessment on the basis of the produce from the land in much the same way as land revenue is calculated after taking into account the fertility of the soil, its yield and such other factors.

Stated simply there are tliree CQ!ltentions. ·Tue first is that the State Legislature lacks comoetence to imp<>se this tax and even if it did have the competence it has followed wrong method in im--posin11: . addiiional land revenue without effecting proper settle-

menL The next contention is that the Act is discriminatory in that it takes no account of differences in situation, fertility and yield between the plantations belonging to the same category. Lastly it is contended that it is discriminatory inasmuch as it seeks to treat plantations of different kinds as if they were equal in all res-pects by reducing them to common measure of hectares when it is not possible to do so regard being had to the different incomes derived from th.~se plantations. We shall take up these questions one by one.The first question is of the competence of the State Legisla-ture. There is no specific entry in the legislative Lists, Nos. 2 and 3 in the Seventh Schedule to the Constitution. The Land Tax Act 1955, as amended by the Travancore-Ccchin Land T;ix (Amendment) Act, X of 1957, was declared unconstitutional in its operative sections in K. T. Moopi/ Nair's( [1 ]) case. Immediately afterwards the Kerala Land Tax Act, 196 l was passed following an Ordinance and that Act is now included in the 9th Schedule to the Cc~titution at No. 38 and receives the protection of Art. 31-B. The competency to impose land tax thus is no longer open to dis-pute. The present Act is challenged on the same lines as the former Act and the argument is rested upon the principles accepted in K. T. Moopil Nair's(') case. It is, therefore, necessary to recall what was decided there. Under the Land Tax Act, 1955 all lainds of whatever description and · held under whatever tenure were to be charged and levied uniform tax per acre. known as· the basic tax. Section 7 of the Act, however, conferred power on Government to exempt wholly or in part any land. This Court considered the tax to be discriminatory because it paid no heed to quality or productive capacity of land and the tax was also Jield to be confiscatory since owners of unpro-ductive land were liable to be eliminated by slow stages. The power of exemption was also considered unreasonable because it enabled Government to pick and choose lands arbitrarily for grnnt of exemption. The Jack of classification was considered to cr~at~ inequality. Sarkar, J. who dissented held that there was an attempt at classification according to areas, and the tax was levied because land in the State was held. and not because of its productivity.

In dealing with this case the arguments have been moulded round the observations in that case. In support of his contention that yield of tea varies from estate to estate and district to district (of which figures are already quoted in the petition) The Tea Sta-tistics (1967-68) compiled by the Tea Board of India were also cited. It is hardly necessary to refer to the findings of the Tea Board because it may be assumed without discu~sion that there are differences. It may also be conceded that the uniform tax falls

more heavily on some plantations than on others because the pro-fits are widely discrepant. But does that involve discrimination? If the answer be in the affirmative hardly. any tax direct or indirect would ·escape the same censure for taxes touch purses of different lengths and the very uniformity of the tax and its equal treatment would become its undoing. The rich and the poor pay the same taxes irrespective of their incomes in many i11stances such as the sales-tax and the profession tax etc. It may be remembered that in K. T. Moopil Nair's(') case the majority accepted the observa-tions of S. R. Das C.J. in Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar and others(') at page 299 to the following effect :"A statute may not make any classification of the persons or things for the purpose of a]Jplying its provi-sions but may leave it to the discretion of the Govern-ment to select and classify persons or things to whom its provisions ail! to apply. In determining the question of the validity or otherwise of such statute the Court will not strike down the law out of hand only because no classification appears on its face or because discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Govern-ment in the matter of the selection· or classification. After such scrutiny the Court will strike down the statute if it does not lay down any principle or policy for ~uiding the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to en-able it to discriminate between persons or things simi-larly situate and that; therefore, the discrimination is in-herent in the statute itself."

We have always to see what the statute does to make for equality of tr.~atment.

The contention here is that there is uniform rate of tax per hectare which every owner of named plantation has to pay irres-pective of the extent or value of the produce and, therefore, the law imposes uniform tax burden on unequals. In our opini<Jitl this is wrong way to look at the provisions of the Act.

The Act, no doubt, deals with seven different kinds of planta-tions and imposes uniform rate of Rs. 50/- per hectare but it Jays down principles on which equal treatment is ensured. In the (1) [1961] 3 S.C.R. 77. (21 [19591 S.C.R. 279.

Ill

case cf cocoanut, arecanut, rubber, coffee and pepper plantations, plants capable of yielding produce are to be counted and then the hectares are determined by dividing the total number of plants by certain figure. This is intended to equalise the auferent planta-tions for puri::oses of taxability. In the remaining two cases the extent cf land yielding crop is itself taken as the measure for the tax because it is considered fair and just to treat one actual hectare of crop yielding plantation as equal to the other areas converted into hectares on the basis of the number of plants or trees. Diffe-rences in yield between one plantation and another having the same crop, no doubt, arise from situation. altitude and rainfall but they are not the only factors. Otherwise how is it that the same areas give different yield in different years. The respondents have given the figures of yield of Glemmari estate contiguous to Twyford estate. The produce in that estate ranges from 1427 to 1571 kilo-grams per hectare which is almost equal to the estates in Periyar area. The yield of Cardamom also varies similarly. ln the High-land Produce Co. Ltd. the per acre yield varied from 5770 lbs. in 1965 to 26,890 lbs. in 1962. In 1961 the per acre yield was 91 lbs. and in 1962, 254 lbs. It is obvious that there are circum-stances other than situation, rainfall etc. which have made the yield almost 2t times as much.The legislature thinks that Rs. 50/- per hectare in the case of Cardamom and Tea is reasonable levy and this is equal to other plantations, where the crop yielding plants and trees have to be converted into hectares according to formula. It is obvious that the legislature has made an attempt at equalisation of tax burden for different plantations. This is not case where barren lands have been subjected to equal tax with productive lands. The tax is only b·;ed on crop yielding land. In some cases where the crop may be scattered over wide area, there is an elaborate mechanism r to determine the extent of the crop yielding plantation. The diffe-rences which have been pointed out may be the result of some fortuitous circumstance and even bad husbandry. The Court can-not regard the la,·; to be discriminatory on the evidence produced in the case. Before we state the principles on which we have proceeded we may refer to few cases which were also brought to our notice. In State of Andhra Pradesh & Another v. Na/la Raja Reddv & Ors. ( [1 ]) the Andhra Pradesh Land Revenue (Additional Assess-ment) and Cess Revision Act (22 of 1962) was held to offend Art. 14. That -Act was pa~sed to brin1r uniformity in assessment of Land Revenue in the Telengana and Andhra areas of the State of Andhra Pradesh. An additional as,essment at the rate of 75% of ·the yearly assessment was impcsed on dry land and the -· (I) 11967] 3 S.C.R. 2P.

total assessment was not to be less than 50 n.p. per acre. On wet lands the additional assessment was to b.e 100% for lands irrigated from Government source and 50% in the case of other wet lands and minimum total .rl.emand was also p1escribed. This Act was considered to be discriminatory as the minimum )lad no relatiQn to the fertility of land, there was no relationship between the Jami and the ayacut to which it belonged and the procedure for deter-mining the applicable rat~ was arbitra1y. This Court examined the matter critically and came to the conclusion that the assessmelll . was left to the arbitrary discretion of an officer without any oppm~ tunity to question his findings. This Court compared the proce-dure for assessment at proper settlements and found that 1(,hose equitable and reasonable methods of assessment were a'baindohlid· That case is peculia~ to itself and cannot b.~ called in aid sine~ in this case there is reasonable attempt to make the burden equal.

Two. other cases were referred to but they bear upon different topic. Jn New Manek Chowk Spinning and Weaving Mills Co. Ltd. and others v. Municipal Corporation of the City of Ahmeda-bad and others(') and The. State of Kera/a v. Haji K. Haji' K. Kutty Naha and others(') the question was one of rating. · The proposition laid down was that taking only the floor area of · building as the basis for determination of the tax was an arbitrary method when buildings must have different rental values depend-ing upon the nature of the construction, the kind of buildings and the purpose for which they can be used. These were held· vital c.onsiderations in the rating of buildings and could not be ignored. These cases were decided on different principles and no analogy can be found merely because equal tax was · imposed in diverse conditions.

As against these cases the otherside relies upon Thuttampara Planting Co. v. Tehsiidar, Chittur(") and. E;rsa Ismail and .an-other v. State of Kera/a and others('),· '\l'he~ this tax was upheld. in the second of these cases it was hela that the tax was aot related to the productivity of the land but tO its user and the method of ·calculation was found to be fair and equitable. · ·

We may now state the principles on .which the present .case must be decided. These principles have been. stated earlier but are often ignored when the question of the application of Art . .14 arises. One principle on which our Courts (as indeed the Sup-reme Court in the United States) have always acted, is nowhere better stated then by Willis in his "Constitutional Law" page 587. This is how he put it:

"A State does not have to tax everyihing in order to tax something. It is allowed to pick and choose dis-

tricts. objects, persons, methods and even rates for taxa-tion if it does so reasonably. . . . • . The Supreme Court has been practical and has permitted very wide lati-tude in classification for taxation."

This principle was approved by this Court in East Indian Tobacco Co. v. State of Andhra Pradesh(') at page 409. Applying it, the Court cbserved :

"If State can validly pick and chcose one commo-dity for taxation and that is not open to attack under Art. 14, the same r~sult must follow when th~ St1•.e picks out cne cateim1y of goods and sub.iects it to taxation."

This indicates wide range of selection and freedcm in appraisal not only in the objects of 1axation and the manner c.'. taxation but also in the determination of the rate or rates applicable. If pro-ducticn must alwavs be taken into account there will have to be settlement for every year and the tax would become kind of income-tax.

The next principle. is that th.e burden of proving discrimination is always heavy and heavier stili when taxing statute is under attack. This was also observed in the same case of this Court at page 411 approving the dictum of the Supreme Court of the United States in Madden v. Kentucky(') :

"In taxation even more than in other fields, Legisla-fures pmsess the greate>t fr.eedom in classification. The burden is on the one attacking the legislative arrange-ment to negative every conceivab_le basis which might support it.''

As Rcttschaefer said in his Constitutional Law at p. 668 :

'"A statute providing for the assessment of one type of intangible at its actual value while other intangibles are assessed at their face value does not deny equal pro-1ec1ion even when both are subject to the same rate of tax. The decisions of the Supreme Court in this field have permitted State Legislature to exercise an ex-lremely wide discretion in classifying property for tax purposes so long as ii refrained from clear and hostile discrimination against particular persons or classes." (Emphasis added).

The burden is on person complaining of discrimination. The burden is provinl! not possible 'inequality' but hostile "unequal" treatment. This is more so when uniform taxes are levied. It is (1) \19631 IS.C.R. 404. (2) (1940) 309 U.S. 83;84 L.Ed. 590.

not proved to us how the different plantations can be said to be 'hostilely or unequally' treated. uniform wheel tax on cars does not take into account the value of the car, the mileage it runs, or in the case of taxis, the profits it makes and the miles per gallon it delivers. An Ambassador taxi and Fiat taxi give dilie-rent outturns in terms of money and mileage. Cinemas pay the. same show fee. We do not take doctrinaire view of equality. The Legislature has obviously thought of equalising the tax through method which is inherent in the tax scheme. Nothing has been said to show that there is inequality much less 'hostile treatment'. All that is said is that the state must demonstrate equality. That is not the approach. At this rate nothing can ever be proved to be equal to another.There is no basis even for counting one tree as equal to another. Even in thirty years' settlement. the picture may change the very next year for some reason but the tax as laid continues. Siwai income is brought to land ievenue on the basis of number of tre.~s but not on the basis of the produce. This is worked out on an average income per tree and not on the basis of the yield of any particular tree er trees.

What is meant by th.~ power to classify without unreasonably discriminating between persons similarly situated, has been stated in several other cases of this Court. The same applies when the legislature reasonably applies uniform rate after equalising matters between diversely situated i>~rsons. Simply stated the Jaw is this: Differences in treatment must be capable c~ being reasonably explained in th.: iight of the object for ~hich the particular legislation is undertaken. This must be based on some reasonable distinction between the cases differentially treated. When differential treatment is not reasonably explained and justified the treatment is discriminatory. If different subjects are equally treated there must be some basis on which the differences have been equalised otherwise discrimination will be found. To be able to succeed in the charge of discrimination. person must establish conclusively that persons equally circumstanced have been treated unequally and vice versa. However. in Khandige Sham Bhat and others v. The Agric11/t11ral Income Tax Officer. at page 817 it was observed :

"If there is equality and uniformity within each group. the Jaw will not be condemned as discriminative though due to some fortuitous circumstance arising out of peculiar situation some included in class get an ad-vantage over others. so long as they are not singled out for special treatment. Taxation Jaw is not an excep-tion to this doctrine: vide Purshottam Govindji Ha/ai ---------(I) [1963] J S.C.R. 800.

v. Shree B. N. Desai, Additional Collector of Bombay(') and Kunnathat Thatunni Moopi/ Nair v. State of Kera/a('). But in the application of the principles, the courts, in view of the inherent complexity of fiscal adjustment of diverse elements, permit larger discre-tion to. the Legislature in the matter of classification, so long it adheres to the fundamental principl.es underlying the said doctrine. The power of the Legislature to classify is of "wide range and flexibility" so that it can adjust its system of taxation in all proper and reasonable ways."

Taking these principles into consideration we are satisfied that the law does not single out any particular plantation for hostile or unequal treatment. In fact it is nowhere proved in this case that tea has been discriminated against deliberately as between differ· ent tea gardens, it is not possible to say that the differences in the yield is entirely due to natural circumstances and no other cause. It is, therefore, not possible to say that there is discrimination not· withstanding the uniform rate for each plantation based on the actual crop yielding area.

The petitions must therefore fail. . They will be dismissed with costs. Shelat, J. Petitioner No. l, public limited company, of which the second petitioner is shareholder, owns the Twyford Estate situate in Kuttikanam area in K.~rala State. The estate is tea plantation admeasuring 1006 hectares (248(J acres). out of which 491 hectares (1214 acres) have tea plants. In these petitions, the petitioners challenge the constitutional validity of the Kerala Plantations (Additional Tax) Act, XVII of I 960, as amended by the Kerala Plantations (Additional Tax) Amend-r ment Act, XIX of 1967 (hereinafter reffered to as the Act). The challenge is on the ground that the Act violates the petitioners' guaranteed rights under Arts. 14. 19 (1 )( f) and I g) and 31 ( 1 ) .

Before we set out the facts and the cantention; based thereon, it is necessary to recite briefly the hi!)lory of the legislation penaining to land taxation in the State.

In 1955, the Legislature of the .ln State of Travancore· Cochin passed the Travancore-Cochfu. Land Tax Act, XV of \ 955 which by ss. 4 and 5 imposed in respect of all lands, of whatever description and tenure, uniform rate to be called the basic tax at the rate of 3 pies per cent per amnum in lieu of any existing tax in respect of the said land. With the formation of the present State of Kerala under the reorganisation of States, the

State Legislature passed the Travancore-Cochin Land Tax (Amendment) Act, X of 1957 by which the expressions ··the State cf Kerala" and "the Land Tax Act'" were substituted for the ·words "the State of Travancore-Cochin" and "the Travancore-Cochin Land Tax Act" respectively. The amendment Act also addecl new section, s. SA, which imer a/ia, provided for pro-visional assessment of the basic tax for lands so far not surveyed. 8 The constitutional validity of Act XV of I 955. as amended by Acr X of I 957. was challenged in this Court in Moopil Nair v. The Sta:e of Kera/a(1). The Act was struck down by this Court, inter a/ia, on the ground of it> being violative of Arts. 1-l and 19 ( 1) (f). The judgment of this Court strikin~ down the \ct was pronounced on December 9. 1960. Befor.e the case of Moopil Nair(') was decided. the Kerala Legi;lature passed the impugned Act. XVII of 1960. which on receivin.g the Governor's assent. was published in the Gazette Extraordinary of August 24. 1960. Section 2!6) of the Act defineJ "plantation" to mean land used for growing one or more of the seven categories of trees or plants set out therein. categC'r~ 5 ther.eci being tea piants. Thus. the land used for growing a11y trees, pbnts or corps other than these seven categories is not suh-ject to the additional tax under the Act. Section 3 provides that there ~hall be charged. in respeot of the lands comprisd in plantations held by person. an additional tax or plantation tax at the rate specified in Sch. I and the person holding such plantation shall te liab~e to pay the plantation tax. Sch. I to the Act lays down that the additional tax would not be payable if the agizregate extent of the plantation held by person is below 5 acres. But if it is 5 acres or more. the first two acres thereof would be exempt from· the tax. and the remainder would be chargeable at the rate of Rs. 8 - per acre. Suh-s. 4 of s. 3 provides that for purposes of the assessment of plantation tax payable by person under this Act. the extent of plantation held by him shall be determined in the manner specified in Sch. II. Section 3 ( 5) declares that the tax char~ed under this section shall be in addition to the basic tax payable under the Land Tax Act. 1955. Sections 4 and 5 deal with the returns relating to the plantations. the determination of the extent of plantation and the assessment of the tax. The rest of the provisions of the Act provide for such subjects as the provisional assessn1ent. notice of den1and. appeal and revision against asscss-men! orders. recovery of the tax. refund etc. Sch. II provides that the extent of plantation held bv person shall be deemed to be the aggregate of the following expressed in acres. namely :-

( i) thf.! quotient obtained by dividing the total number of bearin_g cocoanut trees standing on all lands held by him by 85:

ft9611 J S.C.R. 77.

(ii) the quotient obtained by dividing the total ·number of bearing arecanut trees standing on all lands held by him by 600;

(iii) the quotient obtained by dividing the total num-ber of yielding rubber plants standing on all lands held by him by 180;

(iv J the quotient obtained by dividing the total num-ber of yielding coffee plants standing on all lands held by him by 600;

( v) the quotient obtaiw!d by dividini; the total num-ber of yielding pepper vines standing on all lands held by him by 400.

(vi J the ext em of lands ,_m which tea plants are grown which have begun to yield crops; and

(vii) the extent of lands on which cardamom plants are grown which have begun to yield crops.

Provided that where the total extent of land heid by person, which is cultivated with the aforesaid crops, is less than the aggre-gate calculated as above, the actual extent alone shall be deemed to be th.e extent of plantations held by him. Though the Schedule lays down different quotients in respect of lands cultivated with cccoanut and arecanu\ tree·;. rubber and coffee plants and pepper vines, they cannot achieve equality of the burden of the tax as yieids of even the same crop cannot be equal or approximately equal by rea>ans of differences in the lands in one area from those in ether areas depending on their soil, situation and number of other such factors. Furthermore, no explanation is forthcoming about the principle, if any, on which the quotient for each of the said categories was fixed and whether thev inter se work out reasonable equality among the plantations cultivating the said trees and plants. In the case of tea plants, the holder is liable to pay tax on the extent of lands on which they are grown irrespective of the number of tea olants which are or can be grown, their quality or their possible yield.

The Act was amended. as· aforesaid, by Act XIX of 1967 by which the expression 'additional tax' was substituted by the word 'tax'. and in s. 4 instead of the measure for changing the tax be-ing 5 acre> or more, th.~ measure now adopted was 2 hectares and mere. The two new Schedules .. which were substituted for those in Act XVII of 1960 provided bv Sch. I that no tax would be pay-H able if the aQQregate extent of plantation was below 2 hectares, but where it is 2 hectares or more. there would be no tax on the first one hectare but the rest of the land would be taxed at Rs. 50 per hectare. With the sub~titution of h.~ctare as the mea~ure in

place of acre, the quotients were suitably modified in proportion of hectare being equal to 2..175 acres. Thus, under the Act, as amended by Act XIX of 1967, holder of land, whose land is plantation, is now required to pay .Rs. 50 per hectare instead of Rs. 20 per hectare, over and above the basic tax payable by him und.~r the Land Tax Act, 1955, as amended in 1957. The peti-tioner-company thus is Hable to pay Rs. 24,500/- as additional tax on its 491 hectares cultivate•d for tea plants over and above the basic tax payable by it. It will be noticed that notwithstanding the reasons on which in Moopi/ Nair's(1) decision the Land Tax Act, XV of 1955 was struck down, no changes in the light of that decision were made in Act XVII of 1960 even when it was amend-ed in 1967.In consequence of Act XV of 1955 having been struck down as aforesaid, the Kerala Legislature passed new Act, called the Kerala Land Tax Act, XIII 0f 1961, giving it re'.rospective cfkct by s. I ( 3) thereof. The Act was obviously passed in the light of, the observations made by this Court in Moopi/ Nair's case(1). Section 5 provided that there shall be charged tax called "basic tax·· on all lands of whatever description and tenure. Sub-s. 3 of that section provided that the basic tax so charged shall be deemed to be public revenu.~ due on lands within the meaning of the Reve-nue Recovery Act. Section 6(1) laid down the rate of the bas'c tax. The basic t3'<: was first fixed at Rs. 2/- per acre per annum. but subsequently changed to Rs. 9.94 P. per hectare. Section 6(2) pro-vided that notwithstanding anything contained in sub-s. I. where land-holder liable to pay basic tax proved to the satisfaction of the prescribed authority that the gross income from any land was less thar Rs. I 0 per acre per annum (now changed to Rs. 24. 70 P. per hectare), the basic tax payable on such land shall be at rate fixed by the prescribed authority calculated at I/5th of the gross income from such land. The second proviso to sub-s .. 2 laid down that the Government may. having regard to the potential producti-vity of any land used principally for growing cocoanut, arecanut, pepper, tea, coffee, rubber. cardamom. or cashew or any other special crop, plant or tea that might be specified by the Govern-ment by notification, levy and collect basic tax at the rate of two rupees per acre per annum on such land notwithstanding the fact that such crops, plants or trees have not begun to yield or bear and that for time being no income is made from the land or that the income made is less than ten rupees per acre per annum. Expla-nation (1) to s. 6 laid down that for the purpose of s. 6 gross in-come shall mean the actual gross income or the gross income that would be made from the land with due diligence, whichever was higher. Thus, s. 6(2), the second proviso thereto and Explana-tipns I and 3 to the section clearly disclose that this time the Legis---

lature taxed the land on the standard of potential productivity in-stead of the ad hoc levy originaily provided in the Act of 1955 and also removed the obiection as to the absence of any remedy against assessment by providing appeal and revision. The position, there-fore, is that whereas under the Kerala Land Tax Act, XIII. of 1961, as amended in 1968 and 1969, the basic or land tax is levied on th.~ basis of potential productivity and yield, the tax as imposed by the impugned Act as tax in addition to the basic tax is uniform tax at flat rate without any regard to the producti-vity of the land, potential or actual.According to the petitioners, , Pee rm de Hills, where their estate is situate, falls roughly into two areas, the Kuttikanam area and the Periyar [0]valley area. Though both these areas are situate in high ranges, they differ in the extent of their productivity and quality, the reason being that the Periyar valley area is the basin of Periyar river. The difference in the fertility and the quality of soil in these two areas is sought to be illustrated by showing that Twyford estate situate in Kuttikanam area and Haileyburia estate situate in P.~riyar valley area, though under common management, give different average yields. The average yield in 1967 per hec-tare in Twyford estate was 959 Kgs. while that of Haileyburia estate was 1542 Kgs. To show such differences also in other areas in the State and elsewhere the petitioners have furnished variom statistics. These statistics first show that the average annual yield per hectare in the tea-growing areas in Madras. Mysore and Kerala for the year 1967 was 1394, 1178 and 1076 Kgs. respectively. The all India average yield according to these figures was 1100 Kgs. per hectare per year. The average of tea production per hec-tare in Kerala State thus compares favourably with that of the other tea growing regions as also with the all India average. Therefore, the tea planters in Kerala cannot \:'.~ said to be backward or less forward-looking or less venturesome than those in the other regions. Secondly, these figures also show that the average yield in the different districts in Kerala itself varies from district to district ranging from about 350 Kgs. for the district of Ernakulam to as much as 1850 Kgs. for Trichur district. The production figure for the whole of the Kerala Siate appears to have remained steady throughout 1965 to 1967 as it varies from about 43000 Kgs. to 44000 Kgs. These figures indicate that different areas in the State where tea is grown differ in very large way in productivity and fertility. These figures are taken from the Reports of the Tea Board, and therefore, can be safely regarded as reliable.

In the counter-affidavit filed by the State these differences, no doubt, are not admitted.' To show that such differences do not exist only the example of one estate, Glenmari near Kuttikanam, is taken. It is urged that that estate has larger production per hectare than the petitioners' estate though both happen to be situate

in the same area. The respondents, however, have frankly con-ceded that the fertility of the land and the differences in producti-vity of estates in differnt areas are not relevant, for, the impugned tax is levied with reference to the specified user to which the land is put and not to its productivity, potential or actual.

Counsel for the petitioners contended that the tax charged under the Act is discriminatory and arbitrary, and therefore, violates Art. 14. The argument was that the tax, being an ad hoc levy uni-formly imposed, merely on the basis of the use of the land. for any one or more of the seven kinds of trees and plants selected by s. 2 ( 6 J cf the Act, without any classification and without any con-sideration to th.e situation, the kind of land, its potential producti-vity, water-supply. natural or artificial, and geographical features, falls unequally on the holders of the land. It was submitted that this inequality arises as result of the absence of any rational classification, and the Act, for that reason, suffers from the same infirmity for which in the Mcopil Nair's case(') this Court struck down the Travancore-Cochin Land Tax Act, 1955, as amended by Act X of 1957. The contention urged, on the other hand, on be-half of the State was that by selecting the seven kinds of planta-tions ins. 2(6), the Legislature has made an intelligible classifica-tion amongst holders of land, that that classification has reason-able nexus with the object of the Act, namely. to obtain additionai revenue by imposing tax in addition to the basic tax, that the Legislature in the matter of taxation has wide discretion in select-ing persons and properties for imposing tax, that in exercise of its power to tax, it was entitled to levy the tax based on certain kinds of user of land and was net bound to make further classifi-cation of the land according to its potential productivity, its situa-tion, its geographical feature;, income and other such considera-tions.

Before we examine these contentions we think it expedient to consider first the principle: laid down by this Court in the matter of the power to levy taxes of the kind we have before us. In Moppii Nair's case('), this Court laid down the foliowing princi-pJe.s : (I) that Art. 14 read with Art. 13(2) applies to taxing statute as much as to other statutes, and therefore, if he impugned statute, even though taxing one, violates Art. 14, it has· to be struck down as unconstitutional; (2) that the statute there impug-n.ed, namely, the Travancore-Cochin Land Tax Act, 1955, as amended by Act X of 1957, imposed uniform tax on all lands, whether productive or not. and without any reference to their in-come, actual or potential; ( 3) that since the Act in terms claimed by s. 3 thereof to be general revenue settlement of the State, the tax beine one on land or land revenue had to be asses>ed and levied on the actual or potential productivity of the land sought

to be taxed ; in other words, such tax has reference to the income actually made or which could have been made with due regard to its incidence, and ( 4) that the inequality writ large on the Act arose by reason of the absence of any classification of the land on which the tax was imposed. The argument which appears to have appealed fo the learned dissenting Judge that the Act made classi-B fication between holders of land according to the quantum of land held by them und that that classification was rea.onab!y linked w1tt1 the object of the Act to raise revenue for the State, failed to re-ceive the approval of the rest of the Court. The fact . that person holds large area of land and i3 taxed according to the ~a he holds cannot by itself mean that in taxing him he is meted out equal treatment as compared to person who holds lesser quantity of land but of better and more productive quality, merely on the ground that both hold land and are taxed according to th~ quantity each -of them holds. uniform tax without con-sideration of its incidence, when actually implemented must result in inequality of treatment amongst persons similarly situa•ed, and therefore, would be violative of Art. 14.

In The State of Alidhra Pradesh v. Nal/a Raja Reddy(') the relevant facts were as follows : Originally two differeint revenue systems prevailed in Andhra and Telengana. In the former, th.~ priRciples of Ryotwari system prevailed which meant that lands were classified under two principal heads, wet and dry. Lands of similar grain values were bracketed together in orders called "tarams", each with its own rate of assessment, which was further adjusted in the case of dry lands with reference to the nature and quality of water supply. This system prevailed since time; · im-memorial and by reason of its being equitable had general apriro-val. In Telengana. the relative scale of soils wa1 classified in terms of annas. The existing or former rates used to be taken as r the basis for the purpose of resettlements and were adjusted having regard to altered conditions, such as the rise and fall of prices, in-crease in population etc. Besides, the settlement officers used to fix the rates after ascertaining what profit would be left to the cultivators.· Thus, under the system of a5sessment which prevailed in both the areas, the land revenue fixed varied according to the classification of soil based upon productivity. Later, the Andhra Pradesh Land Revenue Assessment (Standardisation) Act, 1952 and the Hyderabad Land Revenue (Special Assessment) Act, 1952 were passed to standardize the rates on the basis of price level. These two Acts increased the rates by way of surcharge on the existing rates. In 1958, the Staie Government appointed Com-mittee to examine the existing system of rates of assessment. The Committee inter alia suggesied that assessment should be based on the quality and productivity of soils, the nature of water supply

(I) [19671 3 S.C.R. 28.

and the prices. The State Legislature then µassed the impugned Act, Andhra Pradesh Land Revenue (Additional Assessment) and Cess Revision Act, XXII of 1962, which was amended by Act XXIII of 1962. Under ss. 3 and 4 of the Act, as amended, new scheme was laid down in accordance with which an additional assessment at 7 5 % of the earlier assessment was charged. But the proviso thereto laid down that the total assessment should not in any case be less than 50 nP. per acre per year, irrespective of the quality and productivity of th.e soil. Every acre of dry land had thus to bear minimum asse5sment of 50 nP. per acre per year. For wet lands also, scheme was adoptect which took no account of the quality and productivity of the soil. The Act was challenged on the ground of di~rimination arisinr, from the ab-c sence of dassification as in the case of Moopil Nair('). In con-sidering the challenge the Court observed :"A statutory provision may offend Art. 14 of the Ccnstitution both by finding diff.erences where there arc none and by making no difference where there is one. Decided cases laid down two tests to ascertain whether classification is permissible or not, viz., ( i) the classifi-cation 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 rational relation to the ob-ject sought to be achieved by the statute in question. The said principles have been applied by this Court to taxing statutes. This Court in Kunnathat Thathunni Moopil Nair v. The State of Kera/a [(1961 )3 S.C.R. 77] held that ·the Travancore-Cochin Land Tax Act, 1955, infringed Art. 14 of the Constitution, as it ;:ibliged every person who held land to pay the tax at the fiat rate prescribed, whether or not he made any income out of the property, or whether or not the property was capable of yielding any income. It was pointed out that that was one of the cases where the lack of classification created inequality."

The Court observed that in the case before it the whole scheme of ryotwari system was given up so far as the minimum rate was concerned. fiat rate was fixed in the case of dry lands with-out anv reference to the quality or fertility of the soil, and in the case of wet lands. minimum rate was fixed and it was sought to be justified by correlating it to the ayacut. The Court held that that scheme of classification was adopted without any reasonable relation to the objects sought to be achieved. namely. fixation and rationalisation of rates. and therefore. clearly offemled the equal protection clause.

In Khandige Sham Bhat v. The Agricultural Income Officer( [1]) the Court reaffirmed the principles laid down in Moopil Nails case(') and observed with regard to the provisions there impugned :

"In order to judge whether law was discriminatory what had primarily to be looked into was not its phraseo-B logy but its re'al effect. If there was equality and unifor-mity within each group, the law could not be discrimi-natory, though due to fortuitous circumstances in pecu-liar situation some included in class might get some advantage over others, so long as they were not sought out for special treatment. Although taxation laws could be no exception to this rule, the courts would, in view of the inherent complexity of fiscal adjustment of diveEe elements permit larger discretion to the Legislature in the matter of classification so long as there was no trans-gression of the fundamental principles underlying the doctrine of classification. The power of the Legislature to classify must necessarily be wide and flexible so as to enable it to adjust its system of taxation in all proper and reasonable ways."

The principle emerging from these decisions is thus fairly well-settled. While granting fairly wide d!scretion to the legislature in the matter of fiscal adjustment, the Court will at the same time insist that the statute in question, like any other statute, should not infringe Art. 14 either by introducing unreasonable or irrational cla,sification between persons or properties similarly situated or by lack of classification. Further, in examining the objection under Art. 14 the Court has not to go by the phraseology only of the provision under challenge, but its real impact on persons or properties.

The challenge urged on behalf of the p.~titioners may now be examined in the light of these principles. s·oth the title and the preamble of Act XVII of 1960 in clear terms call the tax one in addition, as s. 3 ( 5) declares it, to the basic tax, payable on lands falling under its purview, i.e .. plantations, as defined bys. 2(6). plantation, as defined by s. 2 ( 6), means the land used for any one or more of the seven types of trees and plants set out therein. The tax is thus chargeable in respect of lands which are plantations and not the rest of the lands however much their income· may be. Apart from that, as stated in the State's counter-affidavit, th~ tax is imposed on the ground of the. particular use to which the land is put and not on the basis of its productivity or income, actual or potential. This is so, ·although it is tax in addition to the basic or land tax levied under the Kerala Land Tax Act, XIII of 1961,

and although that basic tax under s. 6 of tlulf Act dep.znds upon the gross income yielded by the. particular land. It is true that under the second proviso to that section, if the land is used for growing any of the crops therein mentioned. the Government can impose, having 1egard to its potential procbictivity, the ba>ic tax at R>. 21- per-acre, even though the land has not y~t begun to yield or bear the crop and no income has yet begun to be made therefrom. By subsequent amendment the rate was changed to Rs. 4.94 per hectare, but the principle of potential productivity was maintained. The additional tax imposed by Act XVII of 1960, on the other hand, is on the same land provided it is used for growing any one or more of the specified frees or plants, ori-ginally at the uniform rate of Rs. 8/- per acre but now enhanced by Act XIX of 1967 to Rs. 50/- per hectare, i.e., Rs. 20 per acre. As already stated, the Amendment Act deleted the -word 'addi-tional' but the deletion makes no. difference as the tax is still in addition to the basic or land tax and must, therefore, partake its character, both taxes being taxes in respect of th0 same land, where the land is plantation within s. 2 ( 6). Thus, so far as such lands are concerned, the basic tax on them is assessed according to their productivity or income. But the tax under Act XVII of 1960, as amended by Act XIX of 1967, is imposed in respect of them as an ad hoc uniform tax, irrespective of the kind of their soil or their capacity etc. and only for the reason of their particular user, Prima facie, the incidence of such tax by reason of its uniformity is bound to be unequal on persons similarly situated and would, therefore, be hit by the equality clause. in Art. 14. Even assuming that the basic tax is revenue assessment and the additional tax is not, it would still make no difference in its unequal incidence on these whose lands by their particular user are plantations. In other words, the burden of the tax on persons situated in similar circum-stances, i.e., those whose lands are plantations, would be unequal, depending upon the kind of soil, the geographical situation, water supply, elevation and other relevant factors touching the lands they hold. The additional tax· is by no means low as it is, after the passing of the amendment Act XIX of 1967, Rs. 50 per hectare, equivalent to Rs. 20 per acre. person holding LOOO acres of land of inferior soil would, by reason of such an ad hoc tax, be bound to be hit harder than the one holding 1,000 acres of ;upe-rior land with higher fertility or productiviiv. Such result would not occur if the land is classified and the incidence of the tax is _graded according_ to its productivity and other relevant factors. In support of the Act it was argued that the impugned Act not only makes classification between those who hold lands whkh are plantations and tho'se who hold lands which are not plantations, .bui also makes further classification within that classification by the method provided for calculating the extent of plantations in Sch. II. That argument does not appear to be

correct. ·.·. The Schedule only provides the methods for calculat-ing the extent of the plantations : (1 ) by means of quol!ents and (2) where tea and cardamom plants are cultivated by tlie actual extent of the land used for those purposes. But the Schedule does not solve the dtfliculty. piece of land in one a•ea may have certain number of trees or plants of one or mme of the specified categories to· make it plantation. But the incidence of the tax in respect of it would be unequal as compared to an-other land situate eisewhere by reason of the latter's better situa-tion or fertility even if the number of plants or trees of the .speci-fied kind are the same, depending upon the situation and the capacity of the two lands. In such case the very uniformity of the tax is bound to result in discrimination pn account of th.~ rela-c tive potentiality of the two lands not being taken into account,. and the lands not being classified accordingly. It is, therefore, difficult to say that the Schedule, intended only for calculating the extent of the plantations, seeks to achieve equality of tr.~atment between one kind of plantation and another or between planta; tiom of the same kind, if the principle of their yield or income, actual or potential, is not taken into account. How is it possible lo say that the uniform bur<fon of Rs. 50/- per hectare in the case, say of cocoanut, tea, coffee or cardamom plantations, is reason-ably equal, when the potential yield of each such plantatio:J is not taken into consideration ? The same result must also follow amongst holders of the same kind of plantations if the principle of -yield or income is discarded. Thus, Sch. II only provides the two methods of calculating the extent of the plantation and does not make dassification within classification as urged. The only classification made is between those whose lands fall under the definition of 'plantation' and those whose lands do not. All those who held lands which are plantations are made liable to pay the tax at the uniform rate of Rs. 50/- per hectare, no matter what kind of crop, out of the seven kinds mentioned in the Act. is . cultivated by them, without regard to the fact that one kind may be more valuable than the other and irrespective of their situation, their income-yielding capacity and other factors.

The result of such uniform imposition is that tea planters, who hold lands in Ernakulam, Trichur and Kottayam districts, would pay the same amount of tax per hectare although the ave-rage yield per hectare in these districts for the years 1965 to 1967 was about 350, 1825 and 1050 Kgs. respectively. The difference in yield in these different districts must clearly .be due to the difference in the soil, situation and such other factors, for, it is nobody's case (at least not made out in the counter-affidavit of the respondents) that the cultivators in Ernakulam district use· inferior seed or are less venturesome than those in Kottayam and Trichur districts. Such difference iin the average yield per hec--L7Sup.C!(?'<'l')/70-l I

tare occurs also in other tea growing dfstricts, namely, Canna-nore, Palghat, Kozhikode, Trivandrum and Quilon, whose ave-rage yield per hectare d!!ring the years 1965 to 1967 was 950, 1490, 1575, 975 and 650 Kgs. respectively. Since these figures are from the statistics prepared by the Tea Board, they cannot be disputed. That such differences in the· average yield occur. also in the different districts of the States of Madras and Mysore is also clear. Surely, they cannot arise because the cultivators of one district are more adventurous or more. technology-minded than those of the other districts. The differences in. the yield must, then!fore, be attributed to the differences in the soil, situa-tion, water supply, rainfall etc. Imposing uniform rate of tax in respect of lands where tea is grown, without classifying them on the basis of their pro-ductivity, actual or potential, and without differentiating the in-ferior from the superior kind of soil or without taking into con-sideration the fact of some of these lands being situated in more advantageous position than the rest, must, therefore, inevitably result in unequal incidence of the tax on those who hold tliose lands. Therefor.~. as in the case of Moopil Nair('), the present case is also one where inequality emerges as result of imposing an ad hoc tax, uniformly levied without making any rational or intelligible classification. There is no indication in the Act and none was even sought to be shown as to how and on what basis the uniform rate of Rs. 50/- per hectare was fixed and whether it had any relatiQn to the capacity of those who hold lands with different average yields tanging from 350 Kgs. per he.ctare in Ernakulam to about 1850 Kgs. per hectare in Trichur, in addi-tion to the basic tax also payable by them. Obviously, the tax imposed in th.~ manner pointed out above must result in inequality among the holders who use their landg for tea growing though they are similarly situated. The principles laid down in Moopil Nair's case(') approved and confirmed in subsequent decisions and which are binding upon us, apply to the impugned statute.

But in Thuttampara Planting Co. v. Tahsi/dar(2) learned Single Judge of the Kerala High Court repelled the contention as to the invalidity of Act XVII of 1960 and held that the decision in Meopil Nair's case(') did not apply as by adopting the quo-tients in Sch. II the impost had been related to the potentiality of the land and its possible yield. As already pointed out, even the counter-affidavit filed by the State in the present petitions, does not claim that the additional tax imposed under this Act takes into account the potentiality of the land or is possible yield. It, on the other hand, asserts in plain language that the tax is levied by reason only of the particular use to which the land is"put and

which makes it fall within s. 2 ( 6). If potentiality of the land and its possible yield had been taken into consideration, the amount of tax could not have been uniform as "its quantum would have de-pended on its quality, situation and other factors. Indeed, in Essa Ismail v. State of Kera/a(') Division Bench of that very High Court held that what Act XVll of 1960 did was to tax lands comprised in plantations, not on the basis of their productivity but an the basis of their user. But the Division Bench held that the Act was "just and equitable'', and therefore, was not hit by Art. 14. At page 623 of the Report, the learned Judges observed that the yield would vary from crop to crop and place to place, but "it is not the productivity of the soil that forms the foundation of the tax but its user in specific way for specific purpose". Though these two decisions cited Moopi/ ,\"air's case('), neither of them considered the result of the lands being uniformly taxed without classifyinir them according to their potentiality so that the incidence of the tax may be .iust and equitable. How tax imposed uniformly without regard to the potentiality of the pro-perty taxed and without any classification on any other just basis works inequality is illustrated by the scrutiny by this Court of the Kerala Building Tax· Act, XIX of 1961 in the State of Kera/a v. Hajl K. Kutty([8]). After noting the uniform rate of the tax levied according to the floor area C1f building but without taking into account its kind or its potential yield, th.e Court observed :

"For determining the quantum of tax the sole test is the area of the floor of the building. The Act applies . to the entire State of Kerala, and whether the building is situate in large industrial town or in an insignifi-cant village, the rate of tax is determined by the floor area; it does not depend upon the purpose for which th.e building is used, the nature of the structure, the town and locality in which the building is situate, the econo-mic rent which may be .obtained from the building, the cost of the building and other related circumstances which may appropriately be taken into consideration in any rational system of taxation of building."

At page 380 the Court further observed :

"But in enacting the Kerala Buildings Tax Acr no attempt at any rational classification is made--As al-ready observed, the Legislature has not taken into con-sidaation in imposing the tax the class to which the building belongs, the. nature of construction, the pur-pose for which it is used, its situation, its capacity for profitable user and other relevant circumstances which (I) I.L.R. (19651 2 Ker. 619. (2) (19611 3 S.C.R. 77.

(3) A.I.R. 1969 S.C. 378.

have bearing on matters of taxation. They have adopted merely the floor area of the building as the basis of tax irrespective of all other considerations. Where objects, persons or transactions essentially dis-similar are treated by the imposition of uniform· tax, discrimination may result. for, in our view, refusal to make rational classification may itself in some cases cperate as denial of equality."'

On this reasoninJ'! the charging section of the Act impugned in that case was held violative of Art. 14 and therefore bad.

The same reasoning is, in our view, apposite so far as the impugned tax is concerned, for. the tax is uniformly levied merely on the footing of the land being used for growing tea, without any regard to its potentiality. situation, the kind of tea which can suitably he grown at particular place, its geographical and other features etc. No doubt. the State in exercise of the taxing power can select persons and ·objects for taxation but if it is found that within the range of that selection the Jaw operates un-equaliy by reason either of classification or its absence, such pro-vision would be hit by the equality clause of Art. 14. (see East India Tobacco Co. 1". State of Andhta Pradesh.(') Even amongst the selected plantations inequality as result of uniformity of tax must result because it is possible that the user of the land for one specified purpose may .~ive better and more valuable yield than the user of another land though situated in the same area for another specified purpose. This. in our view. has happened in so far as the tax on tea plantations. with which only we are concerned in these petitions. is concerned. and therefore, to the extent that Act XVII of 1960. as amended by Act XIX of 1967, imposes the tax on holders of tea plantations. it is violative of Art. 14 and is. therefore. void.

Accordin.~ly. the petitions are allowed with costs.

ORDER

In accordance with the opinion of the majority, the petitions are dismiS>ed with costs.