ASSISTANT COMMISSIONER OF URBAN LAND TAX AND OTHERS versus THE BUCKINGHAM & CARNATIC CO. LTD, ETC.

~ANT COMMISSIONER OF URBAN LAND TAX AND OTHERS

THE BUCKINGHAM & CARNATIC CO. LID, ETC. April 11, 1969

[M. HIDAYATULLAH, C.1., 1 .. C. SHAH, V. RAMASWAMI,

G. K. MITTER AND A. N. GROVER, 11.]

Madro.l Urban Lend Tax '4ct 1966-lf violative of Arts. 14 alld 19(1) U) of the Co11Jtitutlon--Co111tltutlo11 of India Schedule VII, Entry 49 LIM 2 and Entry 86 List 1-Scopt of.

Co11Jtltutlon of India Art. 19(1) (f)-Unreaso11able rutrlctlon-Acl, /n;yi11g tax with retrospective effect if unreasonable restriction.

By s. 3 of the Madras Urban Land Tax Act. 1963, tax was levied on every owner of urban land at the rate of OA% of the average market value of the usban .and os determined under '· 6(2) of the Act The viru of the Act was challenged by writ petition and the impugned Act. wu struck down on the ground that it violated Art. 14 of the Comti-tution because the charging section levied tho tax on urban land not on the market value of such land but on the average value of the land in sub-zone. Thereafter the State legislature passed the Madras Urban Land Tax Act 12 of 1966 which omitted the proviaions relating to fixation of averaJIC market veluc in the sui>'l.one, and instead pro-vided in s. 5 far the levy of tax on urban land from the owner at tho rue of 0.4% of the market value of such urban land. The validity of the new Act was again challenged in aroup of writ petitions before the Hi&h Court which held that the Madras le&islature was competent to enact the new Act but that it was violative of Arts. 14 and 19(1) (f) of the Constitution. In appeals to this Cou.'1 it was contended, inter alia, on behalf of the pctitioocrs (i) that the impugned Act fell under Entry 86, List I and not under Entry 49 of List 2, so th~t the State legiolature was incom-petent to pass the Act; furthermore as Entry 49, List 2 provides for tnea on land and buildings, the impugned Act which impooed tax on land alone could not be held to fall under the Entry; (ii) that the machinery was provided for determining the market value and the matter having been left to the arbitrary determination of the Assistant fr«nmlai011Cr, the provisiNls of the new Act were violative of Art. 14 of the Constitution (iii) that the Act was an unreasonable reotriction on the right to acquire, hold and diopooc of property and u •uch was 'l'iolatlve of Art. 19(1)(f) of the Comtitutio:i; furthermore together with the exi.mng property·tax under s. 100 of the City Municipality Cd-para. don Act the tsx under the impugned Act exhausted an unreasonably hish proportion of income and on tliis account also it was an unreasonable ~ctioo; it was also contended that the .giving of retrospective opera-tion to tho Act from July, 1963 made it unreasonable.

HF!D: The Ma<bs Urban Land Tax Act 12 of 1966 was cousti-tulionally valid.

(i) In pith and substance the new Act in impooinjl tsx ob urban land at percentage of the market value is entirely within the ambit of

Entry 49 c:Jf List II and within the competence of the State Legislature; it does not in any way trench upon the field of legislation of Entry 86 of List I. [280 G-H]

There was no conflict between Entry 86 of List l and Entrv 49 of List II. The tax under Entry 86 proceeds on the principle of aggrega-tion and is imposed on the totality of the net value of all assets. Entry 49 of List II, contemplates levy of tax on lands and buildings or both as units; it is not concerned with the division of interest or ownership in the units of land or buildings which are brought to tax. [278 E--F]

The legislative entries must be given large and liberal interpretation, the reason being that the ,allocation of the subjects to the Lists ts not by way of scientific or logical definition Mt by way of mere sb:plex enu• meratio of broad categories. [277 G-H]

Ra/la Ram v. Province of East Pun;ab, [1948] F.C.R. 207, Sudhlr Chandra Nawn v. Wealth Tax Officer, A.LR. 1969 S.C. 59; Ga//ahc:gher v. Lynn, [1937] A.C. 863 at p. 870; and Subrahma11yan Chettiar v. Mittu· swami Goundan, [1940] F.C.R. 188 at 201; referred to.

Tbe legislative history of Entry 49, List II, does not lend any support to the argument that Entry 49 of List II relating to tax on land and buildings cannot be separated. On the other band Entry 49 "Taxes on lands and buildings" should be construed as taxes on land and taxes on buildings and there is no reason for restricting the amplitude of the language used in the Entry, [281 G]

Raja Jagannath Baksh Singh v. The State of U.P., [1963] 1 S.C.R. 220; and H. R. S. Murthy v. Collector of Chlttoor and Anr., [1964] 6 S.C.R. 666; referred to.

(ii) The p\"ovisions of s. 6 of the new Act were not violative of Art. 14 of the Constitution.

Having regard to the language and context of s. 6 of the new Act, the opinion which the Assistant Commissioner has to form under that section is not subjective but should loe reached objectively upon the relevant evidence after following the requisite formalities laid down in ss. 7 to 11 of the new Act. The proceeding before the Assistant Com· missioner is judicial in character and his opinion regarding the market valua is reached objectively on all the materials produced before him. [282 Fl

(iii) The new Act was also not violative of Art. 19(!)(f) of the Constitution.

It is not possible to put the test of reasonableness into the straight jacket of narrow formula. The objects to be taxed, the quantum of tax to be levied, tl;te conditions subject to which it is levied and the social and economic policies which tax is designed to subserve are all matters of poiltical character and these matters have been entrusted to the Legislature and not to the Courts. Jn applying the test of reaMnable-ness it is also essential to notice that the power of taxation is generally regarded as an essential attribute of sovelreignty and constitutional provi· sions relating to the power of taxation are ~egarded not as grant of power but as limitation upon the power which would otherwise be practically without limit . .[284 BJ

Rai Ramakrishna v. State of Bihar, A.LR. 1963 S.C. 1667 at 1673; referred t0.

Tbc charge under the City Municipality Corporation Act was tax on the annual letting value whereas the charge under the Act of I 966 wu ·OD the market value of the urban land. The oasis of the two tax.., being different, it was not permissible to club the two together and complain of the cumulative burden.

As general rule, so Ion~ as tax retains its character as tax and . is not confiscatory or extortionate, the reasoaableoess of the tax cannot be questioned. In so far as the new Act of 1966 was concerned, it could not be said that the levy at 0.4% of the market value of the urban land was confiscatory in effect [285 F]

(iv) In view of the legislative baclcJ(found of the new Act of 1966, which replaced the earlier Act of 1963, it could not be said that the imposition of the tax retrospectively from July, 1963, WaJ an unreasonable restriction. [289 BJ

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 21 to 23, 46, 47, 125 and 274 of 1969.

Appeals from the judgment and orders dated April 10, 1968 of the Madras High Court in Writ Petitions Nos. 387 of 1968

S. V. Gupte, G. Ramanujam and A. V. Rangam, for the appel-lants (in C.As. Nos. 21 to 23 of 1969) and the respondent (in C.As. Nos. 46, 47, 125 and 274 of 1969).

V. K. T. Chari, T. N. C. Rangarajan and D. N. Gupta, for the

appellants (in C.As. Nos. 46 and 4 7 of 1969) and the respon· dents (in C.As. Nos, 21 and 23 of 1969).

T. N. C. Rangarajan

V. K. T. Chari, A. R. Ramanathan, T. N. C. Rangarajan and R. Gopalakrishnan, for the appellant (in C.A. No. 125 of 1969).

K. C. Rajappa, S. Ba/akrishnan and S. Laxminarasu, for the

appellant (in C.A. No. 274 of 1969).

K. C. Rajappa, S. Balakrishnan, S. Laxminarasu and N. M.

Ghatate, for the respondents (in C.A. No. 22 of 1969).

The Judgment of the court was delivered by

J. In these appeals which have been heard

~I, J. In these appeals which have been heard together common question of law arises for determination, namely, whether the Madras Urban Land Tax Act, 1966 ( 12 of 1966) is constitutionally valid.

In 1963 the Madras Legislature enacted the Madras Urban Land Tax Act, 1963 which came into force in the city of Madras ·OD the 1st of July, 1963. In the Statement of Objects and .Reasons of the 1963 Act it was stated that the Taxation Enquiry

.A Commission and the Planning Commission were suggesting the need for imposing suitable levy on lands put to non-agricultural -use in urban areas. The State Government, after examining the report of. the Special Officer, decided to levy tax on urban laod on the basis of market value of the land at the rate of 0.4% on such market value. Section 3 of the Act of 1963 (which will be referred to as the old Act) provided that there shall be levied and collected for every fasli year commencing from the date of the commencement of the Act, tax on urban land from every owner of urban land at the rate of 0.4% of the average market value of the urban land in sub-zone as determined under si:ib-seetion (2) of s. 6. ·Section, 7 provided for the determination of the highest and lowest market value in zone. For determining the average market value, the Assistant Commissioner shall have regard to any matters specified in clauses (a) to ( e) of sub-s. 2. of s. 6, namely :

(a) the locality in which the urban land is situated;

(b) the predominant use to which the urban land is put, that is to say, industrial, commercial or residential;

( c) accessibility or proximity to market, dispensary, hospi-tal, railway station, educational institution, cir Govern-ment offices;

( d) availability of civil amenities like water supply, drain-age and lighting; and

( e) such other matters as may be prescribed.

The constitutional validity of Act 34 of 1963 was challenged and in Buckingham & Carnatic Co., Ltd. v. State ofMadras([1]) Division Bench of the Madras High Court held that the im-pugned Act fell under Entry 49, List II of Schedule VII to the Constitution and was within the legislative competence of the State Legislature. But the Act was struck down on the ground that Art. 14 of the Constitution was violated, because the charg-ing section of the Act levied the tax on urban land not on the market value of such urban land but on the average value of the lands in the locality known as sub-zone. The new Act (Act 12 of 1966) was passed by the State Legislature after the decision Of the Madras High Court. In the new Act provisions relating to fixation of average market value in the sub-zone were omitted. Instead, section 5 ·of the new Act provides that there shall be levied and collected from every year ~ommencing from the date of the commencement of the Act tax qII each urban land from the owner of such urban land at the rate of 0.4% of the market

Sect ion 2 ( I 0) defines "owner" as

va1ue of such urban land. follows :

"Owner includes--

(i) any person (including mortgagee in posses-sion) for the time being receiving o~ entitled to receive, whether on his own account or as agent, trustee, guardian, manager or receiver for a:-iother person or for any religious or charitable purposes, the rent or profits of the urban land or of the building constructed on the urban land in respect of which the word is used;

(ii) any person who is zntitled to the kudiwaram

in respect of any inam land; but does not include-

(a) shrotriemdar; or

(b) any person who is entitled to the melwaram in respect of any inam land but in respect of which land any other person is entitled to the kudi-waram.

Explanation.-For the purposes of clause (9) and clause ( 10) inam land includes lakhiraj tenures of land and shrotriam land.

Section 2 ( 13) defines 'land' to mean any land which is used or is capable of being used as building site and includes garden or grounds, if any, appurtenant to building but does not include any land which is registered as wet in the revCll'llle accounts of the Government and used for the cultivation of wet crops."

Section 6 states :

"For the purposes of this Act, the market value of any urban land shall be estimated to be the price which in the opinion of the Assistant Commissioner, or the Tribunal, as the case may be, such urban land would have fetched or fetch, if sold in the open market on the date of the commencement of this Act".

Section 7 provides for the submission of returns by the owner of urban land and reads :

"Every owner of urban land liable to pay urban land tax under this Act shall, within period of one month from the date of the publication of the Madras Urban Land Tax Ordinance, 1966 (Madras Ordinance

ill of 1966) in the Fon St. George Gazette, furnish to the Assistant Commissioner having jurisdiction return in respect of each urban land containing the following particulars, namely :-

(a) name of the owner of the urban land,

(b) the extent of the urban land,

( c) the name of the division or ward and the street, survey number and subdivision number of the land and other particulars of such urban land,

( d) the amount which in the opinion of the owner is the market value of the urban land."

Section 10 deals with the procedure for the determination of the market value by the Assistant Commissioner and states :

( 1) Where return is furnished under section 7 the Assistant Commissioner shall examine the return and made such enquiry as he deems fit. If the Assis-D tant Commissioner is satisfied that the particulars mentioned therein are correct and complete he shall, by order in writing detennine the market value of the urban land and the amount of urban land tax payable in respect of such urban land.

(2) (a) Where no examination of the return and after the enquiry the Assistant Commissioner is not satisfied that the particulars mentioned therein are correct and complete he shall serve notice on the owner either to attend in person or at his office on date to be specified in the notice or to produce or cause to be produced on that date any evidence on which the p owner may rely in support of his return. '' (b) The Assistant Commissioner after hearing such evidel'lfe as the owner may produce in pursuante of the notice under clause (a) and such other evidenc:i as the Assistant Commissioner may require on any specified points shall, by order in writing, determine the market value of the urban land and the amount of urban land tax payable in respect of such urban land.

( c) Where the owner has failed to attend or pro-duce evidence in pursuance of the notice under clause (a) the Assistant Commissioner shall, on the basis of the enquiry made under clause (a), by order in writ-ing determine the market value of the urban land and the~amount of urban land tax payable in respect of such urban land."

Section 11 enacts : •.. (1) Where the owner of urban land has failed to furnish the return under section 7 and the Assistant Commissioner has obtained the necessary information under section 9 he shall serve notice on the owner in respect of each urban land specifying therein-

( a) the extent of the urban land,

(b) the amount which, in the opllllon of the .. Assistant Commissioner, is the correct market value of the urban land, and direct him either to attend in person at his office on date to be specified in the notice or to produce or cause / to be produced on. that date any evidence on ··/ which the owner may rely.

(2) After' hearing such evidence, as the owner may produce and such other evidence as the Assistant Com- · missioner may require on any . specified points, the . Assistant Commissioner shall, by order in- writing, determine the market value of the urban land· and the amount of urban land tax payable in respect of such urban land. , · (3) Where the owner has failed to attend or to produce evidence in pursuance of the notice under sub-. -.. section ( 1 ) the Assistant Commissioner shall, on the basis of the information obtained by_ him Wider sec-tion 9, by order in writing, determine the market value of the urban land and the amount of the urban land tax payable in respect of such urban land."

Section 20 provides for an appeal to the Tribunal from the orders of the Assistant Commissioner : " ( 1) (a) Any assessee objecting to any order passed by the Assistant Commissioner under section 10 or 11 may appeal to the Tribunal within thirty days from the date of the receipt of the copy of the order.

(b) Any person denying his liability to be assessed -under this Act may appeal to the Tribunal within thirty days from the date of the receipt of the.. notice of demand relating to the assessment :

Provided that no appeal shall lie under clause (a) or clause (b) of this sub-section unless the urban land tax has been paid before the appeal is filed.

(2) The Commissiop.er may, if he objeets-to-any' order passed by the Assistant Commissioner under sec-tion 10 or 11, direct the Urban Land Tax Officer con-cerned to appeal to the Tribunal against such order, and such appeal may be filed within sixty days from the date of the receipt of the copy of the order by the Com-missioner.

· \ · (3) The Tribunal may admit an appeal after the expiry of the period referred to in clause (a) or . clause (b) of sub-section (1) or in sub-section (2), as the case may be, if it is satisfied that there was suffi-cient cause for not presenting it within that period. '

( 4) An appeal to the Tribunal under this section shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by . such fee as· may be prescribed.

( 5) The Tribunal may after giving both parties to the appeal an opportunity of being heard, pass such orders thereon, as it thinks fit and shall co=unicate any such orders to the assessee and to the Commissioner in such manner as may be prescribed."

Section 30 confers power of revision in the Board of Revenue and is to the following effect :

( 1) The Board of Revenue may, either on its ciwn motion or on application made by the assessee in this behalf, call for and examine the records of any proceed-ing under this Act (not being proceeding in respect of which an appeal lies to the Tnbunal under section 20) to satisfy itself as to the regularity of such proceed-ing or the correctness, legality or propriety of any deci-sion or order passed therein and if, · in . any case, it appears to the Board of Revenue that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, it may pass orders accordingly : ·

Provided that the Board of Revenue shall not pass any order under this sub-section in any case, where the decision or order is sought to be revised by the Board of Revenue on its own motion, if such decision or order had been made more th~n three years previously :

Provided further that the Board of Revenue shall not . pass any order under this ·section prejudicial to any

party unless he has had reasonable opportunity of making his representations."

Section 3 3 states :

"(!) The Tribunal, the Board of Revenue, the Commissioner, the Assistant Commissioner, or the Urban Land Tax Officer or any other officer em-powered under this Act shall, for the purposes of this Act, have the same powers as are vested in Court under the Code of Civil Procedure, 1908 (Central Act V of 1908), when trying suit in respect of the following matters, namely :-

(a) enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of docu-ments;

( c) receiving evidence on affidavit;

(d) issuing commissions for the examination of wit-nesses;

and any proceeding before the Tribunal, the Board of Revenue, the Commissioner, the Assistant Com-missioner the Urban Land Tax Officer or any other officer empowered under this Act shall be deemed to be judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196, of the Indian Penal Code (Central Act XLV of 1860).

(2) In any case in which an order of assessment is

p~ ex parte under this Act, the provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908), shall apply in relation to such order as it applies in relation to decree passed ex parte by Court."

The validity of the new Act was challenged in group of writ pmtions before the Madras High Court on various constitutional grounds. By common judg'lient dated the I 0th April, 1968 Full Bench of five Judges overruled all the contentions of the petitioners with regard to the legislative competence of the Madras Legislature to enact the new Act. However, the Full Bench by majority of 4 to 1 struck down s. of the new Act as being violative of Arts. 14, 19( 1 l(f) of the Constitution. Th~ State ol Madras and other respondents to the writ petitions (he,einafter called the respondents for the sairn of convenience) filed nppeals

Nos. il to 23 of 1969 under certificate granted by the High Court under Arts. 132 and 133(1)\a), (b) and (c) of the Con-stitution. The writ petitioners (hereinafter called the petitioners) have filed C.As Nos. 46, 47, 125 and 274 of 1969 against the same judgment on certificate granted by the High Court under Art. 1.32 of the Constitution.

The first question to be considered in these appeals is whether the Madras Legislature was competent to enact the legislation under Entry 49 of List II of Schedule VII of the Constitution which reads : "Taxes on lands and buildings". It was argued on . behalf of the petitioners that the impugned Act fell under Schedule Vll1 List I, Entry 86, that is "Taxes on the capital value of the assets, exclusive of agricultural land, of individuals and companies; taxes on the capital of companies." The argumen'. of Mr. V. K. T .. Chari may be summarised as follows : The impugned Act was, both in form and substance, taxation of capital and was hence beyond the competence of the State Legishture. To tax on the bijsis of capital or principal value of assets was. permissible to Parliament under List I, Entries 86 and 87 and to State u11der Entry 48 of List II. Taxation of capital was the appropriate method provided for effecting the directive. ·principle under Art.' 39 of the Constitution, namely, to prevent concentra-tion of wealth. Article '366~9j contains definition of 'estate duty' with reference to the principal value. Entry 86 of List I (Taxes on. capital value of assets exclusive of agricultural land) and Entry 88 (Duties in respect of succession to such property) form group of entries the scheme of which is to carry out the directive principle of Art. 39(c). The Constitution indicated that capital value or principal value shall be the basis of taxation under these entries and, therefore, the method of taxation of capi-F ta! or principal value \\las prohibited even to Parliament in respect of other taxes and to the States except in respect of Estate Duty on agricultural land. Such in effect is the argument of Mr. V. K. T. Chari. But in our opinion there is no warrant for the a'sump-tion that entries 86, 88 of List I and Entry 48 of List II form special 'group embodying any particular scheme. The directive principle embodied in Art. 39 ( c) applies both to Parliament ljnd to the State Legislature and it is difficult to conceive how entrie• 86 to 88 of List I would exclude any power of the State Legis-lature to implement the same principle. The legislative entries must be given large and liberal interpretation, the reason bemg that the allocation of the subjects to the lists is not by way of scientific or · logical definition but by way of . mere sixplex enumeratio of broad categories. We see no reason, therefore, for holding that the entries 86 and 87 of List I preclude the State Legislature from trucing capital value of lands and buildings under L13SupCI69-4

Entry 49 of List II. In our opinion there is no conflict between Entry 86 of List I and Entry 49 of List II. The basis of taxation under the two entries is quite distinct. As regards Entry 86 of List I the basis of the taxauon is th~ c:apital value of the asset. It ·Is not tax directly on· the capital value of assets of individuals and companies on the valuation date. The tax is not imposed on the components of the assets of the assessee. The tax under R Entry R6 proceeds on the principle of aggregation and is imposed on the totality of the value of all the assets. It is imposed on the total assets which the assessee owns and in determining the net wealth not only rhe encumbrances specifically charged against any item of asset, but the genera! liability of the assessee to pay his debts and to discharge his lawful obligations have to be taken into account. In certain exceptional cases, where person owes no debts and is under no enforceable obligation to discharge any liability out of his assets it may be possible 10 break up the tax which is kviable on the total assets into components and attribute component 'to lands and bui!dings owned by an assessee. Jn such case, the component out of the total tax attribu!able to lands and buildings may in the matter of computation bear simi-larity to tax on lands and buildings levied on the capital or annual value under Entry 49, List II. But in normal case tax on capital value of assets bears .no definable relation to lands and buildings which may or may not form component of the total assets of the assessee. But Entry 49 of List II. contem-E plates levy of tax on lands and buildings or both as units. It is not coneemed with the division ct interest or ownership in the upits of lands or. buildings which are brought to ta~. Tax en lands and buildings, is directly imposed on Jands and buildings. and bears definite relation to it. Tax on the c1pit:il value of assets bears no definab!e relation to lands and buildings which may form component of the" total assets of the assessee. By legislation in exercise of power under Entry 86. List I tax is contemplated to be levied on the value of the assets. For the purpose of levying rax under Entry 49. List II the Stare Legislature may adopt for determining the incidence of tax tlK annual or t_he capital value of the lands and buildings. But the· adoption of !he annual or capital value of lands and buildings for dercrmining tax liability will not make the fields of legislation under the two entries overlapping. The two taxes are entirely different in their bat.ic concept and fall on different subject matters.

In Ra/la Ram v. Province of East Pu11jab( [1 ]) the Federal Court held that the tax_ levied by section 3 of the Punjab Urban

(I) \(948) F.C.R. 207.·

Immoveable Property Tax Act, 17 of 1940 on buildings and lands >Jtuated in specified area at such rate not exce~ding iwenty per cent. of the annual value of such buildings and lands, as the Pro-vincial Government may by notification in the official Gazette Jirect in respect of each such rating area was not tax or income, but was tax on lands and buildings within the meaning of Item No. 42 of List II of tl\e Seventh Schedule of the Government of India Act, 1935. In that case it was contended that under the provisions of the Punjab Act the basis of the tax was the anmtal value of the buildings and since the same basis was used in the Income-tax Act for determining the income from propei:ty and generally speaking the annual value is the fairest standard for measuring income and, in many cases, is indistinguishable from it, the tax levied by the impugned Act was in substance tax Jn income. The Court pointed out thatlhe ·annual v!!lue is-not neces. sarily actual income, but is'on!y s!andard by which iricoll!e may be measured and merely because the Income-tax Act had adopte(I the annual value as the .standard for determining the iqeome, it did not follow that, if the same standard is employed as .a measure . for any other tax, that latter tax becomes also tax.: on income. It was held by the Court that in su.bstance the propert)' tax levied by s. 3, Punjab .Urban Immovea.ble Property Tax Act, 1940 fell within itein 42 of the Provincial Li§t' and was not tax on income falling within item 54 of the Federal List although· the basis of the tax was the annual value of the building. The same view has been expressed by this Court in Sudhir Chandra Nawn v. Wealth Tax Officer(') wherein it was held that the power to levy tax on lands and· bildings under Entry 49 of List II did not trench upon the power conferred on Parliament by Entry 88 of List I and, therefore, the enactment of the Wealth Tax Act by Parliament was not ultra vires.

The problem in this case is the problem of characterisation of the law or classification of the law. In other words the question must be asked : what is the subject matter of the legislation in its "pith and substance" or in its true nature and character for the purpose of determining whether it is legislation with respect to Entry 47 of List II or Entry 86 of List I. In Gallahagher v. Lynn(') the principle is stated as follows:

"It is well established that you are to look at the true nature and character of the legislation the. pith and substance of the legislation. If on the view of the statute as whole, you find that the substance of the legislation (:)A.LR. 1%9 S.C. S9. (2) [t 937J l\.C. 8Sht 8Sht P. 870

(2) [t 937J l\.C. 8Sht 8Sht P. 870 -

is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorized field. The legislation must not under the guise of dealing with one matter in fact en~roach upon the forbidden field. Nor are you to look only at the object of the legislator. An Act may have perrectly lawful object .fi. to promote the health of the inhabi-tants, but may seek to achieve that object by invalid methods, e.g., direct prohibition of any trade with n foreign country. In other words, you may certainly consider the clauses of an Act to see whether they are passed 'in respect of the forbidden subject."

In the case of Subrahmanyan Chettiar v.

Muttuswami

Goundan (1) Sir Maurice Gwyer, C.J. said :

"It must inevitably happen from time to lime that legislation, though purpotting to deal with subject in one list, touches also on subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to ·a strictly verbal interpretation would result in large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in for-bidden sphere. Hence the rule which has been evolved by the Judicial Committee whereby the impugned

, statute is examined to ascertain its 'pith and substance', or its 'true nature and character', for the purpose of determining whether it is legislation . with respect to matters in this list or in that : Citizens Insurance Com-pany of Canada v. Parsons('); Russell v. The Queen('); 1 Union Colliery Co. of British Columbia v. Bryden/..'); Alt. Gen. for Canada v. Att. Gen. for British Colum-bia('); Board of Trustees of Lethbridge Irrigation District v. lndependent Order of Foresters('). In my opinion this rule of interpretation is equally applicable to the Indian Constitution Act."

For the reasons already expressed we hold that in pith and sub-stance the new Act in imposing tax on urban land at percentage of the market value is entirely within the ambit of Entry 49 of List IT and within the competence of the State Legis'lature and does not in any way trench upon the field of legislation of Entry 86 of List I.

(I) !1940} F.C.R. I RS .'tt 201. (2) [1881} 7 A.C. 96. (3) [t882} 7 A.C. 829. (4) [189Q} A.C. JSO. 15J (IQ30} A.C. 111. (6l [1940[ A.C. 513.

It was then said that as Entry 49 of List II provides for taxes on lands and buildings, the impugned Act which imposes tax on lands alone cannot. b.: held to fall under that entry. It was sub-mitted that when the Legislature taxed land deliberately the legislation fell under List II of Entry 45, i.e., "land revenue, in-cluding the assessment and collection of revenue, the maintenance of land records, survey for revenue purposes and records of rights and alienation of revenues" and not under Entry 49 of that List. The legislative history of Entry 49 of List II does not however lend any support to this argument. Before the Government of India Act, 1935 lands and buildings were taxed separately and all that was done under the Government of India Act, 1935 and the Constitution was to combine the two entries relating to land and buildings into single entry. Section 45-A of the Govel'll-ment of India Act, 1919 provided for making rules under the Act for the devolution of authority in respect of provincial subjec~ t• local Governments, and for the allocation of revenues or other moneys to •those Governments. The Government of India by notification dated December 16, 1920 made rules· under that pro-vision called tire "Scheduled Tax Rules''. These Rule& contained two. schedules. 'IJ!e first Schedule contained eight items of tax or· fee. The Legislative Council of Province may without obtain-ing the previous sanction of the Governor General make and take into consideration any law imposing for the purposes of the Joe~ Government any tax included in Schedule I. Schedule II con-tained eleven. items of tax. In making law imposing or autho-rising any local authority to impose for the purposes of such local authority any tax in Schedule II, the Legislative Council required ao previous sanction of the Governor General. In Schedule II, item No. 2 was· tax on land or land values and item 3 was tax on buildings. In the Government of Indi( Act, 1935 the two entries were combined and List II, Entry 42 . is "Taxes on lands and buildings a;11d hats and Windows". The legislative history of Entry 49, List II docs not, therefore, lend any support to the argument that Entry 49 of List II relating to tax on land and buildings cailriot be separated. On the otl}er hand we are of opinion that Entry 49 "Taxes on lands and buildings" should be construed as taxes on land and taxes on buildings and there is no reason for restricting the ampli-tude of the language used in the Entry. This view is also borne out by authorities. In Raja Jagannath Baksh Singh v. Thr State of U.P. (') the question at issue was whether the tax imposed by the U.P. Government on land holdinj!s under the U.P. Large Land Holdings Tax Act, 1957 (U.P. Act 31 of 1957) was constitu-tionally valid. It was held that the legislation fell under Entry

(fl [195)1 I S.C.R. 220.

49 of List .II an~ the tax on land would include agricultural land also. Stmtlarly m H. R. S. Murthy v. Collector of Chittoor & nr. ( 1) it was held that the land cess imposed under ss. 78 and 79 of the Madras District Boards Act (Mad. Act No. XIV of 1920) and Mines and Minerals (Regulation and Development) Act, (Act 67 of 1957) was tax on land falling under Entry 49 of the State List. We are of opinion that the argument of Mr. V. K. T. Chari 'ln this aspect of the case must be rejected.

We proceed to consider the argument that no machinery is prvvided for determining the market value and the provisions of the new Act, therefore, violate Art. 14 of the Constitution. The argument was stressed by Mr. V. K. T. Chari that the guidance given under the 1963 Act has been dispensed with and the Assistant Commissioner is not bound to take into account, among other matters, the sale price o! similar sites, the rent fetched for use and occupation of the land, the principles generally adopted in valuing land under the Land Acquisition Act and the compen-sation awarded in rccen: land acquisition proceedings. We see no justification for this argument. The procedure for determin-ing the market value and assessment of urban land is de~cribed in Chapter III of the new Act. Section 6 provides that the market \lalue of the urban land "shall be estimated to be the price which in the opinion of the Assistant Commissioner, or the Tribunal, as the case may be, such urban land would have fetched or fetch, if sold in the open market on the date of the commencement of this Act." It was said on behalf of the petitioners that the opinion which the Assistant Commissioner has to form is purely subjec-tive and may be arbitrary. We do not think that this contention is correct. Having regard to the language and context of s. 6 of the new Act we consider that the opinion which the Assistant . Commissioner. has to form under that section is not subjective but should be reached objectively upon the relevant evidence after following the requisite formalities laid down in ss. 7 to 11 of the new Act, Instead of the Assistant Commissioner classify-ing the urban land and determining the market value in zone. the present Act requires return to be submitted by the owner mentioning the amount which, in the opinion of the owner, is the market value of the urban land. On receipt of the return, if the Assistant Commissioner is satisfied that the particulars mentioned are correct and complete, he may determine the market value as given by the owner of the lan<l. If he is not satisfied with the return, he shall serve notice to the owner asking him to nttcnd his office with the relevant evidence in support cf his return. Af'.er iaearing the owner and considering the evidence pro-duced, the Assistant Commissioner may detem1ine the {I) [19641 6 ~.C.R. 61i5.

ASST. COMMR .. V. & LTD. (Ramaswami, ].)

market value. lj11 case the owner fails to attend or fails to produce the evidence, the Assistant Commissioner is empowered to assess the market value ·on the basis of an enquiry made by him. Section 11 prescribes the procedure for determining the market value when the owner fails to furnish return as required under section 7. The section requires the Assistant Commissioner to serve notice on the owner specifying amongst other things the amount, which in the opinion of the Assistant Commissioner, is the correct market value and directing the owner to attend in person at his office on date specified in the notice or to pro-duce any evidence on which the owner may rely. After hearing such evidence as the owner may produce and considering such other evidence as may be required, the Assistant Commissioner may fix the market value. The proceeding before the Assistant .Commissioner is judicial in character and his opinion regarding the market value is reached objectively on all the materials pro-duced before him. Section 20 provides for an appeal by the assessee objecting to the determination of the market value made by the Assistant Commissioner to Tribunal within thirty days .o from the date of the receipt of the copy of the order. The Act requires that the Tribunal shall consist of one person only who shall be judicial officer not below the rank of Subordinate Judge. By section 30, the Board of Revenue is empowered either on its own motion or on application made by the assessee in this behalf, to call for and examine the records of any proceedings under the Act (not being proceeding in respect of which an appeal ,lies to the Tribunal under s. 20), to satisfy itself as to the regularity of such proceeding or the correctness, legality or pro-priety of any decision or order passed therein, and if it appears to the Board of Revenue that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, it may pass orders accordingly. Sec:' an 32 enables the urban land tax officer, or the Assistant · Commissioner, or the Board· ot Revenue or the Tribunal to rectify any error apparent on the face of the record at any time within three years from the date of any order passed by him or it. Section 3 3 confers power on the Assistant Commiss;oner to take evidence, to require discoveiy and production of documents and to receive evidence on affidavit etc. Thus, the Act envisages detailed procedure regarding mb-mission of returns, the making' of an assessment after hearing objections and ri:,0't to appeal to higher authorities. We are hence unable to accept the contention of the petitioners that the provisions of s. 6 of the new Act are violative of Art. 14 of the ·Constitution.

It is necessary to state that ;i1e High Court decided the case Jn favour·of the respondents mainly on the ground that investment

of the power tu determine value of the urban land under s. 6 of the Act con,tituted excessive delegation of authority and so viola-tive of Arts. 19(1) and 14 of the Constitution. (see the judgment of Yeeraswami, J., who pronounced the main judgment in the High Couri. But Mr. V. K. T. Chari did not support this line of reasoning in his arguments before this Court. On the other hand learned counsel conceded •hat the power of determining the value of the urban land being judicial or quasi-judicial in character the doctrine of excessive uelegation of authority had no application.We pass on to conside• the next contention raised on behalf of the ~titioners nru...1ely that the Act should be struck down as an unreasonable restriction on the right to acquire, hold a11d dispose of property and as such violative of Art. 19 (l )(f) of the Constitution. It was argued that the test of reasonablenes& would be that the tax should not be so high as to make the hold-ing of the property or the carrying on of the activity (business or profession) which is subject to taxation, uneconomic accord-ing to accepted rates of yield. In this connection it was said that the new Act by imposing tax on the capital value at certain rate was not correlated to the income or rateable value and, therefore, violates the requirement of reasonableness. We are un-able to accept the proposition put forward by Mr. Chari. It is aot possible to put the test of reasonableness into the straight jacket of narrow formula. The objects to be !axed, the quantum ot tax to be levied, the conditions subject to which it is levied aad the social and economic policies which tax is designed to subserve arc all matters of political character and these matters have been entrust~d to the Legislature and noc to the Courts. In · applying the test of reasonableness it is also essential to notice that the power of taxation is generally regarded as an essential attribute of sovereignty and constitutional provisions relating to the power of taxation are regarded not as grant of power but as limitation upon the power which would ocherwise be pracli:ally .,,ithout limit. It was observed by this Court in Rai Ramakrishna v. State of Bihar( [1 ]) :

"It is of course true that the power of taxing the people and their property is an essential attribute of the Government and Government may legitimately exercise the said power by reference to the objects to which it is applicable to the utmost extent 10 which Government thinks it expedient to do so. The objecls to be taxed .•> long as they happen to be within the legislative com-petence of the Le~islature can be taxed by the legisla-true according to the exigencies of its needs, because 11) A.1.R. 191) S.C. 1667 ,., 1~71

there can be no doubt that the State is entitled to raise revenue by taxation. The quantum of tax levied by the taxing statute, the conditions subject to which it is levied, the manner in which it is sought to be recovered, are all matters within the competence of the Legisla-ture, and in dealing with the contention raised by citizen that the taxing statute contravenes Art. 19 Courts would naturally be circumspect and cautious. Where for instance it appears that the taxing statute is plainly discriminatory, or provides no procedural machinery for assessment and levy of the tax, or that it is confisca-tory, Courts, would be justified in striking down the impugned statute as unconstitutional. In such cases, the character of the material provisions of the impugned statute is such that the Court would feel justified in taking the view that, in substance, the taxing statute is. cloak adopted by the Legislature for achieving its confiscatory purposes. This is illustrated by the deci-D sion of this Court in the case of Kunnathat Thathunni Moopil Nair v. State of Kerala AIR 1961 S.C. 552 where taxing statute was struck down because it suffered from several fatal infirmities. On the other hand, we may refer to the case of Jagannath Baksh Singh v. State of Uttar Pradesh AIR 1962 SC 1563 where challenge to the taxing statute on the ground that its provisions were unreasonable was rej~cted and it was observed that unless the infirmities in the im-pugned statute were of such -serious nature as to justify its description as colourable exercise of legisla-tive power, the Court would uphold taxing statute." As general rule it may be said that S<' long as tax retains its character as tax and is not confiscatory or extortionate, · the reasonableness of the tax cannot be questioned. Mr. Chari submitted that the existing property tax under s. 100 of the City Municipal Corporation Act and the tax on urban lands uder the new Act both enacted under Entry 49 of the State List, one of them imposing tax on the capital value of urban lands and the other on the annual value of lands and buildings exhaust an unreasonably high proportion of income. For instan~e, it is pointed out that in W.P. No. 2835 of 1967 the annual income on, property was Rs. 6,000 and the proposed market value for _the lands alone comes to Rs. 10,40,000. The urban land .tax at 0.4% of the market value is Rs. 4, 160 and the income-tax at the fate applicable to the petitioner was Rs. 1,234. The total, tax burden ip the aggrrgate under the three heads was, Rs. 6,794, whichexceeds the rental income. ln W.P. No. 3686 of 1967 the muni-cipal annual value wa, Rs. 4,095, the property tax was Rs. 1,098 and the urban land ta;, at U.4% wai; Rs. 1,523. The proportion of the two taxes together to yearly or annual municipal value worked out to Rs. o2.:i % . lt was, therefore, said that the taxes put together would practically exhaust the total mcome and 1he charging section in the new Act was unreasonable. The answer to the contenuon is that the charge is on the market value of the urban land and nut on the annual letting value on which the muni-cipal property tax is ba,ed. The basis of the two taxes being different it is not permissible to club together the two taxes and complain of the cumulative burden. lf the tax is on the market value of 1be urban land as ii is in this case it does not admit of complaint that It takes away an unreasonably high propurtion of the income. tax on land values and tax on letting value, though both are taxes under Entry 49 of List JI, cannot be clubbed together in order to test the reasonableness of one or the other for the purposes of Art. ,19( 1 ). But so far as the new Act is concerned we consider that the levy at 0.4 % of the market value of the urban land is by no means confiscatory in effect. It was also pointed out by Mr. V. K. T. Chari that in certain cases the market value of the urban land was arrived at by applying what is known as the conaactor's method not to the bui1ding which stands on the land whose value is ascertained by that means . but to some other building on different land taken for com-parison. It .was said that it was difficult enough for man to apply the contractor's method of valuation to his own building which could be done by competQ!l.t architect after takinF into account all measurements. But it is absolutely an imposs .. 1Je task to check ''P or make objections to the contractor's method applied to another man's properly which cannot be trespassed upon. I• was said that the contraclor's method was the last resort in valua-tion when building has to be valued apart from the land and . that it was wrong application of the formula to use i• to value the land without the building particularly when valuation of land can be made by applying the principles of the Land Acquisition Act. But this argument has no bearing on the constitutional validity of the charging section or the machinery provisions of the Act. It is, however, open to the writ petitioners 10 challenge the validity of the particular valuation in any particular case oy way of an anpeal under statu:e or to move the High Court for ~rant of writ under Ari. 226 nf the Con~titution.

The imougned Act provides for the retrospective operation of the Act. Sec•ion 2 states that except ss. 19, 47 and 48, other sections shall be deemed to have come into force in the City of

Madras on the 1st day of July, 1963 and sections 19 and 47 shall be deemed to have come into force in the City of Madras on the 21st May, 1966. It also provides that s. 48 shall come into force· on the date of the publication of the Act in the Fort St. George Gazette. Section 6 enacts that the market values of the urban lands shall be estimated to be the price which in the opinion of the Assistant Commissioner or the Tribunal such urban I.and would have fetched or fetch if sold in the open market on the date of the commencement of the Act,, that is, from 1st July, 1967. The urban land tax is, therefore, payable from 1st July, 1963. It is contended on behalf of the petitioners that the retrospective operation of the Jaw from 1st July, 1963 would make it un-c reasonable. We are unable to accept the argument of the peti-tioners as correct. It is not right to say as general proposition that the imposition of tax with retrospective effect per se renders the Jaw unconstitutional. In applying the test of reasonableness to taxing statute it is of course relevant consideration that the tax is being enforced with retrospective effect but that is not con-D clusive in itself. Taking into account the legislative history of the present Act we are of opinion that there is no unreasonable-ness in respect of the retrospective operation of the new Act. It should be noticed that the Madras Act of 1963 came into force on 1st July, 1963 and pr'ovided for the levy o( urban land tax at the same rate as that provided under the new Act. The enact-E High ment Court which was struck down was as pronounced on the 25th March, 1966. invalid by the judgment of the Madras I The legislature by giving retrospective effect to Madras Acf 12 of 1966 that the urban land must be taxed on the date on which the 1963 Act came into force the new Act cured the defect from which the earlier Act was suffering. In Rai Ramkrishna's case(') the question. at issue was whether the Bihar Taxation on Passen-gers and Goods (Carried by Public Service Motor Vehicles). Act, 1961 (17 of 1961) was violative of Art. 19(5) and (6) of the Constitution for the reason that it was made retrospective with effect from 1st April, 1950. It appears that the Bihar• Finar:~e Act, 1950 levied tax on passengers and goods carried by public service motor vehicles in Bihar. In an appeal arising out of suh filed by the passengers and owners of goods in representa-tive capacity, the Supreme Court 'pronounced on the 12th.Dec~m­ber, 1960 judgment declaring Part III of the said Act un-constitutional. Thereafter an Ordinance, namely, Bihar Ordi-nance No. 2 of 1961 was issued on the 1st of August, 1961 by the State of Bihar. By this Ordinance, the material provisions of the earlier Act of 1950 which had been struck down by this Court were .Yalidated and brought into force retrospectively from thedate when the earlie~ Act had purported to come into force. Sub-~quently, the prov1s1ons of ,the said Ordinance were incorporated m the. Act, namely, the .Bihar Taxation on Passengers and Goods (Ca med by Public Service Motvr Vehicles) Act, 1961 which was duly passed by the B1har Legislature and received the assent of the President on 23rd September, 1961. As result of the retros-pective operation of this Act, its material provisions were deemed to hav.e come into force on April 1, 1950, that is to say, the date· on which the earlier Act of 1950 bad come into force. The apP.Cl· !ants challenged the validity of this Act of 1961. Having failed in their writ petition before the High Court, the appellants came to this Court and the argument was that the retrospective opera-tion prescribed bys. 1(3) and by part of s. 23(b) of the Act so completely altered the character of the tax proposed to be retros-pectively recovered that it introduced serious infirmity in the legislative competence of the Bihar Legislature itself. The argu-ment was rejected by this Court and it was held that having regard to the relevant facts of the case the restrictions imposed by the said retrospective operation was reasonable in the public interest under Art. 19(5) and (6) and also reasonable under Art. 304(b) of the Constitution. In our opinion the ratio of this decisioa applies to the present c:>.se where the material facts are of similar character.

In this context reference may be made to recent review of retroactive legislation in the United States of America :

'"It is necessary that the legislature should be able to cure inadvertent defects in statutes or their administra-tion by !l'.aking what has been aptly called 'small repairs'. Moreover, the individual who claims that vested right has arisen from the defect is seeking wind-fall since had the legislature's or administrator"s actior. had the effect it was intended 10 and could have had, no such right would have arisen. Thus, the interest in the retroactive during of such defect in the administra-tion of government outweighs the individual"s interest in benefiting from the defect. . . . . The Court has been extremely reluctant to override the legislative judgment as to the necessity for retrospective taxation. not only because of the paramount governmental interest in obtaining adequate revenues. but also because taxes are not in the nature of penalty or contractual obliga-tion but rather means of apportioning the costs of government among those who benefit from it. Indeed. as early as ; 935 one commentator observed that "arbi-trary re:roactivity" may continue. . . . to rear it~ head

ASST. COMMll. v. "c LTD. (Ramaswami, !.)

in tax briefs, but for practical purposes, in this field, it is as dead as wager of law." (Charles B. Hochman in 73 Harvard Law Review 692 at p. 705).

In view of the legislative background of the present case we are of opinion that the imposition of the tax retrospectively from 1st July, 1963 cannot be said to be an unreasonable restriction. We, lherefore, reject the argument of the petitioners on this aspect of the case.

For these reasons we hold that the Madras Urban Land Tax Act, 1966 (Act 12 of 1966) must be upheld as constitutionally valid. We acconlingly set aside the judgment of the Madras High Court dated the,lOth April, 1968 and order that writ peti-tions filed by the petitioners should be dismissed. In other words CAI 21 to 23 are allowed and C.Ai: 46, 47, 125 and 274 are di;miued. There will be no order with regard to costs of these •PPllll· . 0 C.A.s. 21 to 23 of '69 allowed .

R.K.P.S.

.. b. 46, 47, 125 and 274 of '69 dismissed.