{"id":242332,"date":"1970-01-15T00:00:00","date_gmt":"1970-01-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/twyford-tea-co-ltd-and-another-vs-the-state-of-kerala-and-another-on-15-january-1970"},"modified":"2017-04-12T22:34:26","modified_gmt":"2017-04-12T17:04:26","slug":"twyford-tea-co-ltd-and-another-vs-the-state-of-kerala-and-another-on-15-january-1970","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/twyford-tea-co-ltd-and-another-vs-the-state-of-kerala-and-another-on-15-january-1970","title":{"rendered":"Twyford Tea Co. Ltd. And Another vs The State Of Kerala And Another on 15 January, 1970"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Twyford Tea Co. Ltd. And Another vs The State Of Kerala And Another on 15 January, 1970<\/div>\n
Equivalent citations: 1970 AIR 1133, \t\t 1970 SCR (3) 383<\/div>\n
Author: M Hidayatullah<\/div>\n
Bench: Hidayatullah, M. (Cj), Shelat, J.M., Vaidyialingam, C.A., Grover, A.N., Ray, A.N.<\/div>\n
           PETITIONER:\nTWYFORD TEA CO.\t LTD.  AND ANOTHER\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF KERALA AND ANOTHER\n\nDATE OF JUDGMENT:\n15\/01\/1970\n\nBENCH:\nHIDAYATULLAH, M. (CJ)\nBENCH:\nHIDAYATULLAH, M. (CJ)\nSHELAT, J.M.\nVAIDYIALINGAM, C.A.\nGROVER, A.N.\nRAY, A.N.\n\nCITATION:\n 1970 AIR 1133\t\t  1970 SCR  (3) 383\n 1969 SCC  (1) 633\n CITATOR INFO :\n D\t    1972 SC 828\t (20,25)\n R\t    1972 SC 845\t (15)\n\n\nACT:\nKerala\tPlantation  (Additional Tax) Act, 1960\t(Act  17  of\n1960)  and the Kerala Plantation  (Additional  Tax)Amendment\nI   Act\t 1967 (Act 19 of 1967),s. 3-Constitution  of  India,\nArt.l4-Charge of uniform tax from plantations  alleged to be\ndefferently  situated-Validity of tax-Competency  of  Kerala\nlegislature to levy land tax in absence of enabling  entries\nin  Seventh Schedule, Constitution of India.\n\n\n\nHEADNOTE:\nIn  the Kerala Plantation (Additional Tax) Act 1960 (Act  17\nof  1960) there is a levy of additional tax on\tplantations.\n\"Plantations\" mean land used for growing cocoanut, Arecanut,\nRubber, Coffee, Tea, Cardamom and Pepper.  Under s. 3 of the\nAct, for each financial year a Plantation tax additional  to\nthe  basic  tax charged on land tax under the Land  Tax\t Act\n1955  is payable at the rate mentioned in Schedule I of\t the\nAct,  the said rate being Rs. 8 per acre.  Plantations of  5\nacres or below held by a Person do not attract tax.  For the\npurpose\t of  finding out the extent of\tthe;  Plantation  in\nacres held by a person a method of calculation is laid\tdown\nin Schedule 11.\t Act 17 of 1960 was -amended\nby the Kerala Plantation (AdditionalTax) Amendment Act\t1967\n(Act of 1967).\tBy the amending Act the word 'additional' is\n'removed from all places and it is declared that the tax  is\nadditional  to land revenue or any tax in lieu\tthereof,  if\nany,  payable  in  respect  of\tsuch  land.   The  unit\t  of\nassessment is charged from acre to hectare, and the rate  of\ntax  in Schedule I is raised to Rs. 501- per  hectare.\t The\ntax is payable in respect of plantations of two hectares  or\nmore with an exemption for the first hectare.  According  to\nthe  new Schedule II the extent of the, plantation  for\t the\npurpose\t of tax in-the case of cocoanut,  arecanut,  rubber,\ncoffee and pepper plantations is arrived at by dividing\t the\ntotal number of trees, plants or vines standing thereon by a\nnumber\tspecified  in  each case.  In the case\tof  tea\t and\ncardamom the extent of the plantation is the extent of lands\non  which  these plants are grown and have  begun  to  yield\ncrops.\nThe  petitioner\t company was incorporated in India  and\t the\nmajority of its share-holders were Indians.  It owned a\t tea\nestate\tin  the\t Kuttikenam area in the\t Peermade  Hills  in\nKerala\t State.\t  The  company\tpaid  without  protest\t the\nadditional tax levied on plantation by Act 17 of 1960.\tWhen\nthe rate became heavier as a result of the amendments  made.\nby  Act 19 of 1967 the company field the  present  petitions\nunder Art. 32 of the Constitution.  The challenge was  based\nmainly\ton Art. 14 of the Constitution.\t It was\t urged\tthat\nthere  were  differences of fertility and  rainfall  in\t the\ndifferent   areas  where  the  plantations  were   situated.\nFigures\t cornpiled by the Tea Board were submitted  to\tshow\nthe difference in yield between different estates.   Relying\non Moopil Nair's case it was argued that the uniform tax  on\nunequals  resulted in discrimination (a) as between the\t tea\nplantations themselves and (b) as between different kinds of\nplantations.   The competence of the Kerala  Legislature  to\nlevy a land tax was also challenged.\n384\nHELD:  Per  Hidayatullah, C.J., and  Vaidialingam  and\tRay,\nJJ.--The Petitions must be dismissed.\n(i)  The  legislature  has  a wide range  of  selection\t and\nfreedom in appraisal not only in the objects of taxation and\nthe manner of taxation but also in the determination of\t the\nrate  or rates applicable.  If production were always to  be\ntaken  into account there will have to be a  settlement\t for\nevery year and the tax will become a kind of income-tax.\nThe  burden  of proving discrimination is always  heavy\t and\nheavier\t still when a taxing statute is under  attack..\t The\nburden is on the person complaining of discrimination.\t The\nburden\tis  proving not possible  'inequality'\tbut  hostile\n'unequal' treatment.  This is more so when uniform taxes are\nlevied.\t The State cannot be asked to demonstrate equality.\nSimply stated the law is this : Difference in treatment must\nbe capable of being reasonably explained in the light of the\nobject\tfor which the particular legislation is\t undertaken.\nThis  must be based on some reasonable\tdistinction  between\nthe   cases  differentially  treated.\t When\tdifferential\ntreatment  is  not reasonably explained\t and  justified\t the\ntreatment  is  discriminatory.\tIf  different  subjects\t are\nequally\t treated  there\t must be some  basis  on  which\t the\ndifferences  have been equalised,  otherwise  discrimination\nwill  be  found.   To  be able to succeed  in  a  charge  of\ndiscrimination,\t a person must\" establish conclusively\tthat\npersons\t equally circumstanced have been  treated  unequally\nand vice versa. [393 C-D, H; 394 E-G]\n(ii) Applying  the above. principles the impugned  law\tdoes\nnot  single  out any particular plantation  for\t hostile  or\nunequal\t treatment.  The Legislature thinks that Rs. 50\t per\nhectare\t in the case of cardamom and tea is reasonable\tlevy\nand  this  is  equal to other plantations,  where  the\tcrop\nyielding plants and trees have to be converted into hectares\naccording to a formula.\t It is obvious that the\t legislature\nhas  made  an  attempt at equalisation\tof  tax\t burden\t for\ndifferent plantations. [395 C]\nIn Moopil Nair's case this Court considered the tax  therein\nimpugned  to  be discriminatory because it paid no  heed  to\nquality or productive capacity of land and the tax was\talso\nheld  to be confiscatory since owners of  unproductive\tland\nwere  liable to be eliminated by slow degrees.\tThe  present\nwas  however  not  a  case  where  barren  lands  have\tbeen\nsubjected  to equal tax with productive lands.\tThe  tax  is\nonly levied on crop yielding land.  In some cases where\t the\ncrop  may  be  scattered  over a  wide\tarea,  there  is  an\nelaborate  mechanism  to determine the: extent of  the\tcrop\nyielding plantation. [389 E-F, 391 F]\nAs between different tea gardens it was not possible to\t say\nthat  the  difference in yield was entirely due\t to  natural\ncircumstances and no other cause.\nIt may be conceded that a uniform tax falls more heavily  on\nsome  plantations  than on others because  the\tprofits\t are\nwidely\tdiscrepant.   But  that\t by  itself  cannot  involve\ndiscrimination,\t for then hardly any tax direct or  indirect\nwould  escape the same sensure.\t The rich and the -poor\t pay\nthe  same  taxes  irrespective\tof  their  incomes  in\tmany\ninstances such as the sales-tax and profession tax etc. [389\nH-390 B]\nNunnathat  Thathunni  Moopil Nair v. The  State\t of  Kerala,<\/a>\n[1961]\t3 S.C. R. 77, State of Andhra Pradesh v. Nalla\tRaja\nReddy,<\/a>\t[19671\t3  S.C.R. 28, New Mank\tChowk  Spinning\t and\nWeaving Mills Co. Ltd. v. Municipal Corporation of the\tCity\nof Ahmedabad,<\/a> [1967] 2 S.C.R. 679 and The State of Kerala v.\nHaji   K.  Haji\t K.  Kutty  Naha  A.I.R.<\/a>  1969\t S.C.\t378,\ndistinguished.\n385\nShri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar\t and\nOthers,<\/a>\t [ 1 9591 S. C. R. 279, Fast Indian Tobacco  Co.  v.\nStute  of Andhra Pradesh,<\/a> [1963] 1 S.C. R. 404 and  Khandige\nSham  Bhat  and\t Others,  v.  The  Agricultural\t Income\t Tax\nOfficer,<\/a> [1963] 3 S.C.R. 809, applied.\nThuttampara Planting Co. v. Tahsildar, Chittur, 1964  Kerala\nL.T.  47,  Essa Ismail and another v. State  of\t Kerala\t and\nothers,\t I.L.R.\t (1965) Kerala 619 and States in  Madden  v.\nKentucky, (1940) 309 U.S. 83; 84 L.Ed. 590, -referred to.\n(iii)\t  immediately  after the Travancore-Cochin Land\t Tax\nAct,  1955 as amended by the Travancore-Cochin Land Tax\t Act\n10  of\t1957 was declared invalid by this  Court  in  Moopil\nNair's\tcase,  the  Kerala  Land Tax  Act  1961\t was  passed\nfollowing  an ordinance.  That Act was included in  the\t 9th\nSchedule  to  the Constitution at No. 38  and  received\t the\nprotection  of\tArt.  31-B.  The competency  of\t the  Kerala\nLegislature to impose land tax was therefore no longer\topen\nto dispute.\nPer Shelat and Grover, JJ. (dissenting).--The petitions must\nbe allowed.\nLike Moopil Nair's case the present case also was one  where\ninequality  emerged  as a result of imposing an ad  hoc\t tax\nuniformly levied without making any rational or intelligible\nclassification.\t There is no indication in the Act and\tnone\nwas  sought  to\t be shown as to how and on  what  basis\t the\nuniform rate of Rs. 50 per hectare was fixed and whether  it\nhad  any reference to the productive capacity of the  lands.\n[406 D-F]\nAs  regards  tea plantations, the tax  is  uniformly  levied\nmerely\ton  the footing of the land being used\tfor  growing\ntea, without any regard to its potentiality, situation,\t the\nkind  of  tea which can suitably be grown  at  a  particular\nplace,\tits geographical and other features etc.  No  doubt,\nthe  State  in\texercise of the\t taxing'  power\t can  select\npersons\t and  objects for taxation but if it is\t found\tthat\nwithin\tthe  range  of\tthat  selection\t the  law   operates\nunequally by reason either of classification or its alsence,\nsuch a provision would'be hit by the equality clause of Art.\n14. 1408 DI\nEven  among the selected plantations inequality as a  result\nof uniformity of tax must result because it is possible that\nthe  user of the land for one specified purpose may  give  a\nbetter\tand a more valuable yield than the user\t of  another\nland though situated in the same area for another  specified\npurpose.  , This had happened in the case of tea  plantation\nwith  which  alone  the present\t petitions  were  concerned.\nTherefore  to the extent that Act 17 of 1960 as\t amended  by\nAct  19\t of  1967  imposes  the\t tax  on  holdings  of\t tea\nplantations, it is violative of Art. 14 and therefore  void.\n[408 D-F]\nMoopil Nair's case applied\nCase-law referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION : Writ Petitions Nos. 135-137 of 1969.
\nPetitions under Art. 32 of the Constitution of India for en-
\nforcement of the fundamental rights.\n<\/p>\n
M.   C. Setalvad, Joy Joseph, B. Datta, J. B. Dadachanji, O.   C.
\nMathur and Ravinder Narain, for the petitioners.
\nSarjoo Prasad and M. R. K. Pillai, for respondent No. 1.\n<\/p>\n
386<\/span><\/p>\n
The  Judgment of M. HIDAYATULLAH, C.J., C.  A.\tVAIDIALINGAM
\nand A. N. RAY, JJ. was delivered by HIDAYATULLAH, C.J.\tDis-
\nsenting\t Opinion of J. M. SHELAT and A. N. GROVER,  JJ.\t was
\ndelivered by SHELAT, J.\n<\/p>\n
Hidayatullah, C.J. These are three petitions by Twyford\t Tea
\nCompany\t and  one  of its directors under  Art.\t 32  of\t the
\nConstitution seeking appropriate writ, order or direction to
\ndeclare\t the  Kerala Plantation (Additional Tax)  Act,\t1960
\n(Act  XVII  of 1960) and the Kerala  Plantation\t (Additional
\nTax) Amendment Act, 1967 (Act XIX of 1967)  unconstitutional
\nand void.  In addition the petitioners ask that the  notices
\nannexures  B, C and D demanding payment of the tax  be\talso
\nquashed and a sum’ of.\tRs. 1,02,106.02 already paid as\t tax
\nto  the\t Kerala\t Government ordered to\tbe  refunded.\tThey
\nfurther seek a mandamus restraining the State of Kerala\t and
\nTehsildar  Peermade  from  using the two  Acts\tagainst\t the
\npetitioners.\n<\/p>\n
The  petitioner\t company is incorporated in  India  and\t the
\nmajority  of  its shareholders are Indians.  It owns  a\t tea
\nestate\tin Kuttikanam area in the Peermade hills  in  Kerala
\nState.\t The estate consists of 1006 hectares equal to\t2486
\nacres  of  which 491 hectares equal to 1214  acres  are\t tea
\nplantations.   According to the petitioners  Peermade  hills
\nare  in\t the  Western Ghats and are divided  into  two\tmain
\nparts.\tKuttikanam area roughly 33 sq. miles is situated  at
\nan  altitude  of 3400 to 3700 ft. and receives\t150  to\t 200
\ninches\tof  rainfall  annually.\t  The  Periyar\tvalley\tarea
\nroughly\t 60 sq. miles is situated at an altitude of 2800  to
\n3200  ft. and receives 100 to 150 inches rainfall  annually.
\nThe Periyar valley area is more fertile than the  Kuttikanam
\narea.  According to the petitioners’ statement M\/s.  Parkins
\nPrivate Ltd., are the Managing Agents of Twyford Tea Company
\nand  also  the\tHaileyburia Tea Estate.\t The  former  is  in
\nKuttikanam  and the latter in Periyar area.  The  extent  of
\nproduce from these two areas is very different.\t Between the
\nyears 1963 to 1967 Twyford Tea Company produced 959 to\t1211
\nkgs.  per  hectare while Haileyburia produced 1461  to\t1845
\nkgs. per hectare.  The other tea-estates disclosed the\tsame
\ndifferences in production.  Examples are given of Penshurat,
\nKarimtharuvi  estates  under  the  same\t management  and  of
\nStagbrook  and Cheenthalaar and other estates.\tThe  Twyford
\nTea  Company’s net profits have declined from  Rs.  2,28,222
\n(1963) to Rs. 59,938 (1967).  The net profits of Twyford Tea
\nCompany\t after taxation per hectare ranged from\t Rs.  122.00
\n(1967)\tto  Rs. 465.00 (1963) with loss in 1966,  while\t the
\nprofits of Heileyburia ranged from Rs. 909.00 (1963) to\t Rs.
\n770.00\t(1967) with Rs. 245.00 in 1966.\t This difference  is
\nattributed  to\tthe  differences in  fertility\tbetween\t the
\nKuttikanam  and Pariyar areas.\tThe petitioners\t state\tthat
\nsimilar\t  differences\texist  in   the\t  Vandiperiyar\t and
\nNelliampathy areas.  The petitioners point cut
\n387<\/span>
\nthat  for  purposes  of excise duty these  areas  have\tbeen
\nformed\tinto different zones and different rates  of  excise
\nduty are leviable in these zones.\n<\/p>\n
The  two statutes which are impugned here imposed a  tax  on
\nplantations.   In the Act XVII of 1960 there is a levy of  ”
\nadditional tax” on plantations.\t The Act came into force  on
\nApril  1,  1960.  “Plantations” mean land used\tfor  growing
\nseven kinds of crops.  They are (1) Cocoanut, (2)  Arecanut,
\n(3)  Rubber,  (4)  Coffee, (5) Tea,  (6)  Cardamom  and\t (7)
\nPepper.\t  Section  3  of Act XVII of 1960  is  the  charging
\nsection.   Under  that\tsection for each  financial  year  a
\nplantation  tax additional to the basic tax charged as\tland
\ntax  under  the Land Tax Act, 1955 is payable  at  the\trate
\nmentioned  in Schedule I of the Act.  This  Schedule  states
\nthat   no  tax\tis  payable  if\t the  aggregate\t extent\t  of
\nplantations  held by a person is below five acres.   But  if
\nthe plantations held by a person is 5 acres or more, -a\t tax
\nof Rs. 8\/- per acre is payable with exemption for the  first
\ntwo  acres.  For purposes of finding out the extent  of\t the
\nplantations   in  acres\t held  by  a  person  a\t method\t  of
\ncalculation is added in Schedule II.  It is not necessary to
\nquote  this schedule because it has been amended by Act\t XIX
\nof 1967 and that schedule will be quoted presently.  By\t the
\nAmended\t Act  the  name of the tax  is\tchanged.   The\tword
\n“additional”  is  removed in all places and it\tis  declared
\nthat  the  tax is additional to land revenue or any  tax  in
\nlieu thereof, if any, payable in respect of such land.\t The
\nrate of tax is altered in Schedule I to Rs. 501\/per  hectare
\nwhich  is payable in respect of plantations of two  bectares
\nor  more  with\tan exemption for the  first  ‘hectare.\t The
\nmethod\tof  calculation\t of  the  extent  of  plantation  in
\nhectares is restated in, Schedule II as follows
\n\t\t\t“Schedule II
\nFor the purposes of the assessment of plantation tax payable
\nby a person, the extent of plantations held by him shall  be
\ndeemed\tto be the aggregate of the following,  expressed  in
\nhectares, namely :-\n<\/p>\n
(i)  the  quotient obtained by dividing the total number  of
\nbearing cocoanut trees standing on all lands held by him  by
\n200;\n<\/p>\n
(ii) the  quotient obtained by dividing the total number  of
\nbearing arecanut trees standing on all lands held by him  by
\n1500;\n<\/p>\n
(iii)\t  the quotient obtained by dividing the total Dumber
\nof yield in rubber plants standing on all lands held by\t him
\nby 450:\n<\/p>\n
(iv) the  quotient obtained by dividing the total number  of
\nyielding coffee plants standing on all lands held by him  by
\n1500;\n<\/p>\n
388<\/span><\/p>\n
(v)  the  quotient obtained by dividing the total number  of
\nyielding  pepper vines standing on all lands held by him  by
\n1000;\n<\/p>\n
(vi) the extent of lands on which tea plants are grown which
\nhave begun to yield crops;\n<\/p>\n
(vii)\t  the extent of lands on which cardamom plants\t-are
\ngrown which have begun to yield crops;\n<\/p>\n
Provided  that\twhere  the total extent of land\t held  by  a
\nperson,\t which\tis cultivated with the aforesaid  crops,  is
\nless  than  the aggregate calculated as\t above,\t the  actual
\nextent alone shall be deemed to be the extent of plantations
\nheld by him.”\n<\/p>\n
The   petitioners  paid\t tax  under  the  old  Act   without
\nobjections  -They state that they did so  without  realising
\ntheir  rights.\t They  were issued  three  demands  for\t the
\nassessments  years 1960-61 to 1968.  They had  already\tpaid
\nbetween\t April\t10, 1961 and October 18, 1968 a sum  of\t Rs.
\n1,02,106.02. It is because of this additional demand arising
\nfrom  the increase in the rate of tax from Rs. 8\/- per\tacre
\nor  Rs. 20\/- per hectare to Rs. 501- per hectare  that\tthey
\nhave challenged the constitutionality of the two Acts.
\nThe  contention\t of  the petitioners is\t that  there  is  no
\nrational :classification of plantations; that unequals\thave
\nbeen treated as equal and that a flat rate imposed upon\t all
\nthe  plantations irrespective of their yield  is  arbitrary.
\nAccording to them some of the plantations cannot make enough
\nprofit\tto  be\table to pay tax and in their  case  the\t tax
\nbecame\tconfiscatory.  They also complain of  discrimination
\nand  question  the  legislative\t competency  of\t the  Kerala
\nLegislature  to\t impose plantation tax in the absence  of  a
\nspecific  entry\t in  the 7th Schedule  to  the\tConstitution
\neither\tin List II or III enabling the State Legislature  to
\nimpose\tit.  They also say that the land tax  imposed  under
\nthe  Land  Tax Act was successfully challenged\tbefore\tthis
\nCourt  in  Kunnathat Thathunni Moopil Nair v. The  State  of
\nKerala\tand<\/a> another(‘) and the change making  it  additional
\nland   revenue\timposed\t an  obligation\t upon  the–   State
\nLegislature  to make assessment on the basis of the  produce
\nfrom  the  land\t in much the same way  as  land\t revenue  is
\ncalculated  after taking into account the fertility  of\t the
\nsoil, its yield and such other factors.\n<\/p>\n
Stated\tsimply\tthere are three contentions.  The  first  is
\nthat  the State Legislature lacks competence to impose\tthis
\ntax and even if it did have the competence it has followed a
\nwrong  method  in imposing additional land  revenue  without
\neffecting proper settle-\n<\/p>\n
(1)  [1961] 3 S.C.R. 77.\n<\/p>\n
389<\/span><\/p>\n
ment.  The next contention is that the Act is discriminatory
\nin  that  it takes no account of differences  in  situation,
\nfertility and yield between the plantations belonging to the
\nsame   category.   Lastly  it  is  contended  that   it\t  is
\ndiscriminatory inasmuch as it, seeks to treat plantations of
\ndifferent  kinds  as it they were equal in all\trespects  by
\nreducing them to a common measure of hectares when it is not
\npossible to do so regard being had to the different  incomes
\nderived\t from  these plantations.  We shall  take  up  these
\nquestions one by one.\n<\/p>\n
The  first  question  is  of the  competence  of  the  State
\nLegislature.  There is no specific entry in the\t legislative
\nLists,\tNos.  2\t and  3\t in  the  Seventh  Schedule  to\t the
\nConstitution.\tThe  Land Tax Act 1955, as  amended  by\t the
\nTravancore-Cochin  Land Tax (Amendment) Act, X of 1957,\t was
\ndeclared unconstitutional in its operative sections in K. T.
\nMoopil\tNair’s(1) case.\t Immediately afterwards\t the  Kerala
\nLand  Tax  Act, 1961 was passed following an  Ordinance\t and
\nthat  Act  is  now  included in\t the  9th  Schedule  to\t the
\nConstitution at No. 3 8 and receives the protection of\tArt.
\n3 1 -B.\t The competency to impose land tax thus is no longer
\nopen  to  this pute.  The present Act is challenged  on\t the
\nsame lines as the former Act and the argument is rested upon
\nthe principles accepted in K. T. Moopil Nair’s(1) case.\t  It
\nis,  therefore, necessary to recall what was decided  there.
\nUnder  the  Land  Tax  Act,  1955  all\tlands  of   whatever
\ndescription  and.  held\t under whatever tenure\twere  to  be
\ncharged and levied a uniform tax per acre known as the basic
\ntax.   Section 7 of the Act, however, conferred a  power  on
\nGovernment to exempt wholly or in part any land.  This Court
\nconsidered  the tax to be discriminatory because it paid  no
\nheed  to quality or productive capacity of land and the\t tax
\nwas  also  held to be confiscatory since  owners  of  unpro-
\nductive\t land were liable to be eliminated by  slow  stages.
\nThe  power  of exemption was also  corisidered\tunreasonable
\nbecause\t it  enabled  Government to pick  and  choose  lands
\narbitrarily   for   grant  of  exemption.   -The   lack\t  of
\nclassification was considered to create inequality.  Sarkar,
\nJ.  who\t dissented  held  that\tthere  was  an\tattempt\t  at
\nclassification\taccording to areas, and the tax\t was  levied
\nbecause\t land in the State was held, and not because of\t its
\nproductivity
\nIn dealing with this case the arguments have been ,  moulded
\nround  the  observations in that case.\tIn  support  of\t his
\ncontention  that yield of tea varies from estate  to  estate
\nand  district  to  district (of which  figures\tare  already
\nquoted\tin  the\t petition)  The\t Tea  Statistics   (1967-68)
\ncompiled  by the Tea Board of India were also cited.  It  is
\nhardly\tnecessary to refer to the findings of the Tea  Board
\nbecause it may be assumed without discussion that there\t are
\ndifferences.   It may also be conceded that the uniform\t tax
\nfalls
\n(1) [19611 3 S.C.R. 77.\n<\/p>\n
Sup.\/70-10
\n390<\/span>
\nmore heavily on some plantations than on others because\t the
\nprofits\t are  widely discrepant.  But does  that  involve  a
\ndiscrimination ?  If the answer be in the affirmative hardly
\nany tax direct or indirect would escape the same censure for
\ntaxes  touch  purses  of  different  lengths  and  the\tvery
\nuniformity  of the tax and its equal treatment would  become
\nits  undoing.’\tThe  rich and the poor pay  the\t same  taxes
\nirrespective of their incomes in marry instances such as the
\nsales-tax and the profession tax etc.  It may be; remembered
\nthat  in K. T. Moopil Nair’s(1) case the  majority  accepted
\nthe  observations  of  S. R. Das C.J. in  Shri\tRam  Krishna
\nDalmia v. Shri Justice S. R. Tendolkar and others<\/a>(‘) at page
\n299 to the following effect
\n“A statute may not make any classification of the persons or
\nthings\tfor the purpose of applying its provisions  but\t may
\nleave  it to the discretion of the Government to select\t and
\nclassify  persons or things to whom its, provisions  are  to
\napply.\t In  determining  the question of  the\tvalidity  or
\notherwise  of such a statute the Court will not strike\tdown
\nthe  law out of hand only because no classification  appears
\non  its\t face  or  because a  discretion  is  given  to\t the
\nGovernment to make the selection or classification but\twill
\ngo on to examine and ascertain if the statute has laid\tdown
\nany principle or policy for the guidance of the exececise of
\ndiscretion   by\t  the  Government  in  the  matter  of\t the
\nselection or classification.  After such scrutiny the  Court
\nwill  strike  down the statute if it does not lay  down\t any
\nprinciple  or policy for guiding the exercise of  discretion
\nby   the   Government  in  the\tmatter\t of   selection\t  or
\nclassification, on the ground that the statute provides\t for
\nthe  delegation of arbitrary and uncontrolled power  to\t the
\nGovernment  so\tas  to enable  it  to  discriminate  between
\npersons or things similarly situate and that, therefore, the
\ndiscrimination is inherent in the statute itself.”
\nWe  have  always to see what the statute does  to  make\t for
\nequality of treatment.\n<\/p>\n
The  contention here is that there is a uniform rate of\t tax
\nper  hectare which every owner of a named plantation has  to
\npay irrespective of the extent or value- of the produce and,
\ntherefore, the law imposes a uniform tax burden on unequals.
\nIn our opinion this is a wrong way to look at the provisions
\nof the Act.\n<\/p>\n
The  Act,  no  doubt, deals with seven\tdifferent  kinds  of
\nplantations  and  imposes  a uniform rate of  Rs.  50\/-\t per
\nhectare but itlays down principles on which equal  treatment
\nis ensured.  In the
\n(1) [1961] 3 S.C.R.77.\n<\/p>\n
(2) [19591 S.C.R. 279.\n<\/p>\n
  391<\/span><\/p>\n
case  of  cocoanut,  arecanut,\trubber,\t coffee\t and  pepper
\nplantations,  plants capable of yielding produce are  to  be
\ncounted and then the hectares are determined by dividing the
\ntotal  number  of  plants  by a\t certain  figure.   This  is
\nintended to equalise the different plantations for  purposes
\nof  taxability.\t  In the remaining two cases the  extent  of
\nland  yielding crop is itself taken as the measure  for\t the
\ntax  because  it is considered fair and just  to  treat\t one
\nactual\thectare of crop yielding plantation as equal to\t the
\nother  areas  converted into hectares on the  basis  of\t the
\nnumber of plants or trees.  Differences in yield between one
\nplantation and another having the same crop, no doubt, arise
\nfrom  situation, altitude and rainfall but they are not\t the
\nonly factors.  Otherwise how is it that the same areas\tgive
\ndifferent  yield in different years.  The  respondents\thave
\ngiven the figures of yield of Glemmari estate contiguous  to
\nTwyford estate.\t The produce in that estate ranges from 1427
\nto  1571 kilograms per hectare which is almost equal to\t the
\nestates in Periyar area.  The yield of Cardamom also  varies
\nsimilarly.   In the Highland Produce Co. Ltd. the  per\tacre
\nyield varied from 5770 1bs. in 1965 to 26,890 lbs. in  1962.
\nIn  1961  the per ‘acre yield was 91 lbs. and in  1962,\t 254
\nlbs.  It is obvious that there are circumstances other\tthan
\nsituation, rainfall etc. which have made the yield almost  2
\n1\/2 times as much.\n<\/p>\n
The legislature thinks that Rs. 501- per hectare in the case
\nof Cardamom and Tea is reasonable levy and this is equal  to
\nother plantations, where the crop yielding plants and  trees
\nhave  to be converted into hectares according to a  formula.
\nIt  is obvious that the legislature has made an\t attempt  at
\nequalisation of tax burden for different plantations.\tThis
\nis  not\t a case where barren lands have\t been  subjected  to
\nequal tax with productive lands.  The tax is only levied  on
\ncrop  yielding\tland.  In some cases where the crop  may  be
\nscattered over a wide area, there is an elaborate  mechanism
\nto  determine  the extent of the crop  yielding\t plantation.
\nThe  differences  which\t have been pointed out\tmay  be\t the
\nresult\t of  some  fortuitous  circumstance  and  even\t bad
\nhusbandry.    The  Court  cannot  regard  the  law   to\t  be
\ndiscriminatory on the evidence produced in the case.
\nmay  refer  to a few cases which were also  brought  to\t our
\nnotice.\t In State of Andhra Pradesh & Another v. Nalla\tRaja
\nReddy & Ors.<\/a>(1) the Andhra Pradesh Land Revenue\t (Additional
\nAssessment)  and Cess Revision Act (22 of 1962) was held  to
\noffend Art. 14.\t That Act was passed to bring uniformity  in
\nassessment of Land Revenue in the Telengana and Andhra areas
\nof the State of Andhra Pradesh.\t An additional assessment at
\nthe rate of 75% of the yearly assessment was imposed on\t dry
\nland and the
\n(1)  [19671 3 S.C.R. 28.\n<\/p>\n
392<\/span><\/p>\n
total  assessment was not to be less than 50 n.p. per  acre.
\nOn  wet lands the additional-assessment was to be  100%\t for
\nlands irrigated from a Government source and 50% in the case
\nof  other  wet\tlands and a minimum total  demand  was\talso
\nprescribed.  This Act was considered to be discriminatory as
\nthe minimum had no relation to the fertility of land,  there
\nwas no relationship between the land and the ayacut to which
\nit belonged and the procedure for determining the applicable
\nrate   was  arbitrary.\t This  Court  examined\tthe   matter
\ncritically  and came to the conclusion that  the  assessment
\nwas  left to the arbitrary discretion of an officer  without
\nany  opportunity  to  question\this  findings.\t This  Court
\ncompared the procedure for assessment at proper\t settlements
\nand  found  that those equitable and reasonable\t methods  of
\nassessment were abandoned.  That case is peculiar to -itself
\nand  cannot be called in aid since in this case there  is  a
\nreasonable attempt to-make the burden equal.
\nTwo  other  cases  were\t referred  to  but  they  bear\tupon
\ndifferent  topic.  In New Manek Chowk Spinning\tand  Weaving
\nMilts  Co. Ltd. and others v. Municipal Corporation  of\t the
\nCity  of Ahmedabad and others<\/a>(‘) and The State of Kerala  v.
\nHaji  K. Haji K. Kutty Naha and others<\/a>(‘) the  question\t was
\none  of rating.\t The proposition laid down was\tthat  taking
\nonly  the  floor  area\tof  a  building\t as  the  basis\t for
\ndetermination  of  the\ttax was\t an  arbitrary\tmethod\twhen
\nbuildings  must have different rental values depending\tupon
\nthe  nature of the construction, the kind of  buildings\t and
\nthe  purpose  for which they can be used.  These  were\theld
\nvital  considerations in the rating of buildings  and  could
\nnot  be\t ignored.   These cases were  decided  on  different
\nprinciples and no analogy can be found merely because  equal
\ntax was imposed in diverse conditions.\n<\/p>\n
 As   against\tthese  cases  the  otherside   relies\tupon
\nThuttampara  Planting Co. v. Tehsildar, Chittur(3) and\tEssa
\nIsmail\tand another v. State of Kerala and others (4)  where
\nthis  tax  was upheld. in the second of these cases  it\t was
\nheld that the tax was not related to the productivity of the
\nland but to its user and the method of calculation was found
\nto be fair and equitable.\n<\/p>\n
We  may now state the principles on which the  present\tcase
\nmust be decided.  These principles have been stated  earlier
\nbut  are often ignored when the question of the\t application
\nof  Art. 14 arises.  One principle on which our\t Courts\t (as
\nindeed\tthe Supreme Court in the United States) have  always
\nacted,\tis  nowhere  better stated then\t by  Willis  in\t his
\n“Constitutional Law” page 587.\tThis is how he put it:
\n“A  State  does not have to tax everything in order  to\t tax
\nsomething.  It is allowed to pick and choose dis-
\n(1)  11 9671 2 S.C.R. 679.\n<\/p>\n
(2)  A.I.R. 1969 S.C. 378.\n<\/p>\n
(3)  [19641 Kerala L.T. 47.\n<\/p>\n
(4)  I.L.R. [1965] Kerala 619.\n<\/p>\n
393<\/span><\/p>\n
tricts,\t objects, persons, methods and even rates for  taxa-
\ntion  if it does so reasonably…… The Supreme  Court\t has
\nbeen  practical\t and has permitted a very wide\tlatitude  in
\nclassification for taxation.”\n<\/p>\n
This  principle\t was approved by this Court in\tEast  Indian
\nTobacco\t Co.  v.  State of Andhra Pradesh<\/a>(‘)  at  page\t409.
\nApplying it, the Court observed:\n<\/p>\n
“If  a State can validly pick and choose one  commodity\t for
\ntaxation  and that is not open to attack under Art. 14,\t the
\nsame  result  must  follow  when the  State  picks  out\t one
\ncategory of goods and subjects it to taxation.”
\nThis  indicates\t a wide range of selection  and\t freedom  in
\nappraisal not only in the objects of taxation and the manner
\nof  taxation  but also in the determination of the  rate  or
\nrates  applicable.  If production must always be taken\tinto
\naccount\t there will have to be a settlement for\t every\tyear
\nand the tax would become a kind of income-tax.
\nThe   next   principle\tis  that  the  burden\tof   proving
\ndiscrimination\tis  always heavy and heavier  still  when  a
\ntaxing\tstatute is under attack.  This was also observed  in
\nthe same case of this Court at page 411 approving the dictum
\nof  the\t Supreme  Court of the United States  in  Madden  v.
\nKentucky(‘) :\n<\/p>\n
“In  taxation even more than in other  fields,\tLegislatures
\npossess the greatest freedom in classification.\t The  burden
\nis  on\tthe  one attacking the\tlegislative  arrangement  to
\nnegative every conceivable basis which might support it.”
\nAs Rottschaefer said in his Constitutional Law at p. 668:
\n“A  statute  providing\tfor the assessment of  one  type  of
\nintangible  at its actual value while other intangibles\t are
\nassessed at their face value does not deny equal  protection
\neven  when  both are subject to the same rate of  tax.\t The
\ndecisions of the Supreme Court in this field have  permitted
\na State Legislature to exercise an extremely wide discretion
\nin  classifying\t property  for tax purposes so\tlong  as  it
\nrefrained  from\t clear and  hostile  discrimination  against
\nparticular persons or classes.)) (Emphasis added).
\nThe  burden  is on a person complaining\t of  discrimination.
\nburden\tis  proving not possible  ‘inequality’\tbut  hostile
\n“unequal” treatment.  This is more so when uniform taxes are
\nlevied.\t It is
\n(1)  [19631  IS.C.R. 404.\t       (2) (1940)  309\tU.S.
\n83;84 L.Ed.  590.\n<\/p>\n
394<\/span><\/p>\n
not  proved to us how the different plantations can be\tsaid
\nto be ‘hostilely or unequally’ treated.\t A uniform wheel tax
\non cars does not take into account the value of the car, the
\nmileage\t it  runs, or in the case of taxis, the\t profits  it
\nmakes  and the miles per gallon it delivers.  An  Ambassador
\ntaxi  and a Fiat taxi give different out turns in  terms  of
\nmoney  and mileage.  Cinemas pay the same show fee.   We  do
\nnot  take a doctrinaire view of equality.   The\t Legislature
\nhas obviously thought of equalising the tax through a method
\nwhich is inherent in the tax scheme.  Nothing has been\tsaid
\n‘to  show  that\t there\tis  inequality\tmuch  less  ‘hostile
\ntreatment’.   All  that\t is  said is  that  the\t state\tmust
\ndemonstrate  equality.\tThat is not the approach.   At\tthis
\nrate nothing can ever be proved to be equal to another.
\nThere  is  no basis even for counting one tree as  equal  to
\nanother.   Even in a thirty years’ settlement,\tthe  picture
\nmay change the very next year for some reason but the tax as
\nlaid, continues.  Siwai income is brought to land levenue on
\nthe  basis  of number of trees but not on the basis  of\t the
\nproduce.   This is worked out on an average income per\ttree
\nand not on the basis of the yield of any particular- tree or
\ntrees.\n<\/p>\n
What is meant by the power to classify without\tunreasonably
\ndiscriminating between persons similarly situated, has\tbeen
\nstated\tin  several  other cases of this  Court.   The\tsame
\napplies\t when the legislature reasonably applies  a  uniform
\nrate  after  equalising matters between\t diversely  situated
\npersons.   Simply  stated the law is  this:  Differences  in
\ntreatment must be, capable of being reasonably explained  in
\nthe light of the object for which the particular legislation
\nis  undertaken.\t  This\tmust be\t based\ton  some  reasonable
\ndistinction between the cases differentially treated.\tWhen
\ndifferential  treatment\t is  not  reasonably  explained\t and
\njustified  the\ttreatment is discriminatory.   If  different
\nsubjects  are  equally treated there must be some  basis  on
\nwhich\tthe  differences  have\tbeen   equalised   otherwise
\ndiscrimination will be found.  To be able to succeed in\t the
\ncharge\t of   discrimination,  a   person   must   establish
\nconclusively  that persons equally circumstanced  have\tbeen
\ntreated unequally and vice versa.  However, in Khandige Sham
\nBhat  and others v. The Agricultural Income Tax Officer,<\/a>  at
\npage 817 it was observed
\n“If there is equality and uniformity within each group,\t the
\nlaw  will not be condemned as discriminative though  due  to
\nsome  fortuitous  circumstance\tarising-out  of\t a  peculiar
\nsituation  some\t included in a class get an  advantage\tover
\nothers,\t so  long as they are not singled  out\tfor  special
\ntreatment.   Taxation  law  is\tnot  an\t exception  to\tthis
\ndoctrine: vide Purshottam Govindji Halai
\n(1) [1963] 3 S.C.R. 809.\n<\/p>\n
395<\/span><\/p>\n
v.   Shree  B. N. Desai, Additional Collector  of  Bombay(‘)
\nand  Kunnathat Thatunni Moopil Nair v. State of Kerala<\/a>\t(  2
\n) . But in the application of the principles, the courts, in
\nview  of  the inherent complexity of  fiscal  adjustment  of
\ndiverse\t  elements,  permit  a\tlarger\tdiscretion  to\t the
\nLegislature  in\t the matter of classification,\tso  long  it
\nadheres\t to the fundamental principles under lying the\tsaid
\ndoctrine.   The power of the Legislature to classify  is  of
\n“wide  range  and  flexibility” so that it  can\t adjust\t its
\nsystem of taxation in all proper and reasonable ways.”
\nTaking these principles into consideration we are  satisfied
\nthat  the law does not single out any particular  plantation
\nfor  hostile  or unequal treatment.  In fact it\t is  nowhere
\nproved in this case that tea has been discriminated  against
\ndeliberately  as  between different tea gardens, it  is\t not
\npossible  to  say,that\tthe  differences  in  the  yield  is
\nentirely  due to natural circumstances and no  other  cause.
\nIt-  is,  therefore,  not  possible to\tsay  that  there  is
\ndiscrimination\tnotwithstanding the -uniform rate  for\teach
\nplantation based on the actual crop yielding, area.
\nThe  petitions must therefore fail.  They will be  dismissed
\nwith costs.\n<\/p>\n
Shelat,\t J. Petitioner No. 1, a public limited\tcompany,  of
\nwhich  the  second  petitioner is a  shareholder,  owns\t the
\nTwyford\t Estate situate in Kuttikanam area in Kerala  State.
\nThe  estate  is a tea plantation admeasuring  1006  hectares
\n(2486  acres), out of which 491 hectares (1214\tacres)\thave
\ntea plants.  In these petitions, the petitioners  challenge’
\nthe  constitutional  validity  of  the\tKerala\t Plantations
\n(Additional Tax) Act, XVII of 1960, as amended by the Kerala
\nPlantations  (Additional  Tax) Amendment Act,  XIX  of\t1967
\n(hereinafter reffered to as the Act) The challenge is on the
\nground\tthat  the Act violates the  petitioners’  guaranteed
\nrights under Arts. 14, 19(l)(f) and (g) and 31(l).
\nBefore\twe  set\t out the facts\tand  the  contentions  based
\nthereon,  it is necessary to recite briefly the\t history  of
\nthe legislation pertaining to land taxation in the State.
\nIn  1955, the Legislature of the then State  of\t Travancore-
\nCochin\tpassed\tthe Travancore-Cochin Land Tax, Act,  XV  of
\n1955  which by ss. 4 and 5 imposed in respect of all  lands,
\nof  whatever description and tenure, -a uniform rate  to  be
\ncalled\tthe  basic tax at the rate of 3 pies  per  cent\t per
\namnum  in  lieu of any existing tax in respect of  the\tsaid
\nland.  -With  the formation of the present State  of  Kerala
\nunder the reorganisation of States, the
\n(1)  [19551 2 S.C.R. 887.\n<\/p>\n
(2) [1961] 3 S.C.R. 77.\n<\/p>\n
396<\/span><\/p>\n
State  Legislature  passed the\tTravancore-Cochin  Land\t Tax
\n(Amendment)  Act,  X of 1957 by which the  expressions\t“the
\nState of Kerala” and “the Land Tax Act” were substituted for
\nthe   words  “the  State  of  Travancore-Cochin”  and\t“the
\nTravancoreCochin Land Tax Act” respectively.  The  amendment
\nAct  also  added  a new section, S. 5A,\t which\tinter  alia,
\nprovided  for  provisional assessment of the basic  tax\t for
\nlands  so far not surveyed.  The constitutional validity  of
\nAct XV of 1955, as amended by Act X of 1957, was  challenged
\nin this Court in Moopil Nair v. The State of Kerala(‘).\t The
\nAct was struck down by this Court, inter alia, on the ground
\nof  its\t  being\t violative of Arts. 14\tand  19(1)(f).\t The
\njudgment of this Court striking down the Act was  pronounced
\non December 9, 1960.\n<\/p>\n
Before\tthe case of Moopil Nair(‘) was decided,\t the  Kerala
\nLegislature passed the impugned Act, XVII of 1960, which on,
\nreceiving  the\tGovernor’s  assent,  was  published  in\t the
\nGazette\t Extraordinary of August 24 ,1960.  Section 2(6)  of
\nthe Act defined a “plantation” to mean land used for growing
\none  or more of the seven categories of trees on plants\t set
\nout therein, category 5 thereof being tea plants.  Thus, the
\nland used for growing any trees, plants or corps other\tthan
\nthese seven categories is not subject to the -additional tax
\nunder  the  Act.   Section 3 provides that  there  shall  be
\ncharged,  in respect of the lands comprised  in\t plantations
\nheld by a person, an additional tax or plantation tax at the
\nrate  specified\t in  Sch.  I and  the  person  holding\tsuch
\nplantation shall be liable to pay the plantation tax.\tSch.
\nI to the Act lays down that the additional tax would not  be
\npayable if the aggregate extent of the plantation held by  a
\nperson is below 5 acres.  But if it is 5 acres or more,\t the
\nfirst  two acres thereof would be exempt from the  tax,\t and
\nthe remainder would be chargeable at the rate of Rs. 8\/- per
\nacre.\tSub-s. 4 of s. 3 provides that for purposes  of\t the
\nassessment of plantation tax payable by a person under\tthis
\nAct,  the  extent  of  plantation  held\t by  him  shall\t  be
\ndetermined in the manner specified in Sch.  II Section 3 (5)
\ndeclares that the tax charged under this section shall be in
\naddition  to the basic tax payable under the Land  Tax\tAct,
\n1955.\tSections 4 and 5 deal with the returns\trelating  to
\nthe   plantations,  the\t determination\tof  the\t extent\t  of
\nplantation  and the assessment of the tax.  The rest of\t the
\nprovisions  of\tthe  Act provide for such  subjects  as\t the
\nprovisional  assessment,  notice  of  dem  and,\t appeal\t and
\nrevision  against  assessment orders, recovery of  the\ttax,
\nrefund etc.  Sch. 11 provides that the extent of  plantation
\nheld by a person shall be deemed to be the aggregate of\t the
\nfollowing expressed in acres, namely
\n(1)  the quotient obtained by dividing the total  number  of
\nbearing cocoanut trees standing on all lands held by him  by
\n85;\n<\/p>\n
[1961] 3 S.C.R. 77.\n<\/p>\n
397<\/span><\/p>\n
(ii) the  quotient obtained by dividing the total number  of
\nbearing arecanut trees standing on all lands held by him  by
\n600;\n<\/p>\n
(iii)\t  the quotient obtained by dividing the total number
\nof yielding rubber plants standing on all lands held by\t him
\nby 180;\n<\/p>\n
(iv) the  quotient obtained by dividing the total number  of
\nyielding coffee plants standing on all lands held by him  by
\n600;\n<\/p>\n
(v)  the  quotient obtained by dividing the total number  of
\nyielding  pepper vines standing on all lands held by him  by\n<\/p>\n
400.\n<\/p>\n
(vi) the extent of lands on which tea plants are grown which
\nhave begun to yield crops; and\n<\/p>\n
(vii)\t  the  extent of lands on which cardamom plants\t are
\ngrown which have begun to yield crops.\n<\/p>\n
Provided  that\twhere  the total extent of land\t held  by  a
\nperson,which is cultivated with the aforesaid crops, is less
\nthan  the aggregate calculated as above, the  actual  extent
\nalone  shall be deemed to be the extent of plantations\theld
\nby  him.  Though the Schedule lays down different  quotients
\nin  respect of lands cultivated with cocoanut  and  arecanut
\ntrees,\trubber\tand  coffee plants and\tpepper\tvines,\tthey
\ncannot\tachieve equality of the burden of the tax as  yields
\nof even the same crop cannot be equal or approximately equal
\nby  reasons  of differences in the lands in  one  area\tfrom
\nthose in other areas depending on their soil, situation\t and
\na   number   Of’  other\t such  factors.\t   Furthermore,\t  no
\nexplanation  is forthcoming about the principle, if any,  on
\nwhich  the  quotient for each of the  said  categories\twas-
\nfixed and whether they inter se work out reasonable equality
\namong the plantations cultivating the said trees and plants.
\nIn  the case of tea plants, the holder is liable to pay\t tax
\non the extent of lands on which they are grown\tirrespective
\nof the number of tea plants which are or can be grown, their
\nquality Dr their possible yield.\n<\/p>\n
The  Act  was amended, as aforesaid, by Act XIX of  1967  by
\nwhich the expression ‘additional tax’ was substituted by the
\nword ‘tax’, and in s. 4 instead of the measure for  changing
\nthe tax being 5 acres or more, the, measure now adopted\t was
\n2  hectares  and more.\tThe two new  Schedules,\t which\twere
\nsubstituted  for those in Act XVII of 1960 provided by\tSch.
\nI  that no tax would be payable if the aggregate  extent  of
\nplantation was below 2 hectares, but where it is 2  hectares
\nor more, there would be no tax on the first one hectare\t but
\nthe  rest of the land would be taxed at Rs. 50 per  hectare.
\nWith the substitution of hectare as the measure in
\n398<\/span>
\nplace  of  acre,  the quotients were  suitably\tmodified  in
\nproportion  of a hectare being equal to 2.475 acres.   Thus,
\nunder  the Act, as amended by Act XIX of 1967, a  holder  of
\nland,  whose land is plantation, is now required to pay\t Rs.
\n50 per hectare instead of Rs. 20 per hectare, over and above
\nthe  basic tax payable by him under the Land Tax Act,  1955,
\nas  amended in 1957.  The petitioner-company thus is  liable
\nto  pay Rs. 24,500\/- as additional tax on its  491  hectares
\ncultivated  for\t tea  plants over and above  the  basic\t tax
\npayable by it.\tIt will be noticed that notwithstanding\t the
\nreasons\t on which in Moopil Nair’s(1) decision the Land\t Tax
\nAct, XV of 1955 was struck down, no changes in the light  of
\nthat decision were made in Act XVII of 1960 even when it was
\namended in 1967.\n<\/p>\n
In consequence of Act XV of 1955 having been struck down  as
\naforesaid,  the Kerala Legislature passed a new Act,  called
\nthe  Kerala  Land  Tax\tAct,  XIII  of\t1961  giving  it   a
\nretrospective  effect  by  s. 1(3)  thereof.   The  Act\t was
\nobviously  passed in the light of the observations  made  by
\nthis  Court  in Moopil Nair’s case(‘).\tSection\t 5  provided
\nthat there shall be charged a tax called “basic tax” on\t all
\nlands of whatever description and tenure.  Sub-s. 3 of\tthat
\nsection\t provided  that the basic tax so  charged  shall  be
\ndeemed to be public revenue due on lands within the  meaning
\nof  the\t Revenue Recovery Act.\tSection 6(1) laid  down\t the
\nrate  of the basic tax.\t The basic tax was first.  fixed  at
\nRs. 2\/- per acre Per annum, but subsequently changed to\t Rs.
\n9.94   P.  per\thectare.   Section  6  (2)   provided\tthat
\nnotwithstanding\t anything  contained in sub-s.\t1,  where  a
\nland-holder   liable  to  pay  basic  tax  proved   to\t the
\nsatisfaction  of  the prescribed authority  that  the  gross
\nincome from any land was less than Rs. 10 per acre per annum
\n(now  changed  to Rs. 24-70 P. per hectare), the  basic\t tax
\npayable\t on  such  land\t shall be at a\trate  fixed  by\t the
\nprescribed authority calculated at 1\/5th of the gross income
\nfrom  such land.  The second proviso to sub-s. 2  laid\tdown
\nthat  the  Government may, having regard  to  the  potential
\nproductivity  of  any  land  used  principally\tfor  growing
\ncocoanut,  arecanut, pepper, tea, coffee, rubber,  cardamom,
\nor cashew or any other special crop, plant or tea that might
\nbe  specified  by the Government by notification,  levy\t and
\ncollect\t basic tax at the rate of two, rupees per  acre\t per
\nannum on such land notwithstanding the fact that such crops,
\nplants or trees have not begun to yield or bear and that for
\ntime  being  no\t income is made from the land  or  that\t the
\nincome\tmade  is less than ten rupees per  acre\t per  annum.
\nExplanation (I) to s. 6 laid down that for the purpose of s.
\n6  gross  income shall mean the actual gross income  or\t the
\ngross  income  that  would be made from the  land  with\t due
\ndiligence, whichever was higher.  Thus, S. 6(2), the  second
\nproviso\t thereto  and Explanations I and 3  to\tthe  section
\nclearly disclose that this time the Legis-\n<\/p>\n
\t\t\t    399<\/span><\/p>\n
lature\t taxed\tthe  land  on  the  standard  of   potential
\nproductivity instead of the ad hoc levy originally  provided
\nin the Act of 1955 and also removed the objection as to\t the
\nabsence of any remedy against assessment by providing appeal
\nand  revision.\t The position, therefore,  is  that  whereas
\nunder  the Kerala Land Tax Act, XIII of 1961, as amended  in
\n1968 and 1969, the basic or land tax is levied on the  basis
\nof  potential productivity and yield, the tax as imposed  by
\nthe impugned Act as a tax in-addition to the basic tax is  a
\nuniform\t tax  at  a  flat rate without\tany  regard  to\t the
\nproductivity of the land, potential or actual.
\nAccording  to the petitioners, Peermade Hills,\twhere  their
\nestate\tis  situate,  falls  roughly  into  two\t areas,\t the
\nKuttikanam  area .and the Periyar valley area.\tThough\tboth
\nthese  areas are situate in high ranges, they differ in\t the
\nextent\tof their productivity and quality, the reason  being
\nthat the Periyar valley area is the basin of Periyar  river.
\nThe  difference in the fertility and the quality of soil  in
\nthese two areas is sought to be illustrated by showing\tthat
\nTwyford\t estate situate in Kuttikanam area  and\t Haileyburia
\nestate\tsituate in Periyar valley area, though under  common
\nmanagement,  give  different average  yields.\tThe  average
\nyield  in  1967 per hectare in Twyford estate was  959\tKgs.
\nwhile that of Haileyburia estate was 1542 Kgs.\tTo show such
\ndifferences  also in other areas in the State and  elsewhere
\nthe  petitioners have furnished various\t statistics.   These
\nstatistics  first,show\tthat the average  annual  yield\t per
\nhectare\t in  the  tea-growing areas in\tMadras,\t Mysore\t and
\nKerala\tfor  the  year 1967 was 1394,  1178  and  1076\tKgs.
\nrespectively.\tThe  all India average\tyield  according  to
\nthese  figures\twas I 1 00 Kgs. per hectare per\t year.\t The
\naverage\t of tea production per hectare in Kerala State\tthus
\ncompares  favourably  with  that of the\t other\ttea  growing
\nregions as also with the all India average.  Therefore,\t the
\ntea planters in Kerala cannot be said to be backward or less
\nforward-looking or less venturesome than those in the  other
\nregions.  Secondly, these figures also show that the average
\nyield  in thee different districts in Kerala  itself  varies
\nfrom  district to district ranging from about 350  Kgs.\t for
\nthe  district  of  Ernakulam to as much\t as  1850  Kgs.\t for
\nTrichur\t district.  The production figure for the  whole  of
\nthe Kerala State appears to have remained steady  throughout
\n1965  to  1967 as it varies from about 43000 Kgs.  to  44000
\nKgs.   These  figures indicate that different areas  in\t the
\nState  where  tea  is grown differ in a very  large  way  in
\nproductivity  and fertility.  These figures are\t taken\tfrom
\nthe  Reports of the Tea Board, and therefore, can be  safely
\nregarded as reliable.\n<\/p>\n
In   the   counter-affidavit  filed  by\t the   State   these
\ndifferences, no doubt, are not admitted.  To show that\tsuch
\ndifferences  do not exist only. the example of\tone  estate,
\nGlennmari near Kuttikanam, is taken.  It is urged that\tthat
\nestate\thas  a\tlarger\tproduction  per\t hectare  than\t the
\npetitioners’ estate though-both happen to be situate
\n400<\/span>
\nin  the same area.  The respondents, however,  have  frankly
\nconceded that the fertility of the land and the\t differences
\nin  productivity  of  estates in  different  areas  are\t not
\nrelevant, for, the impugned tax is levied with reference  to
\nthe  specified user to which the land is put and not to\t its
\nproductivity, potential or actual.\n<\/p>\n
Counsel for the, petitioners contended that the tax  charged
\nunder\tthe  Act  is  discriminatory  and   arbitrary,\t and
\ntherefore, violates Art. 14. The argument was that the\ttax,
\nbeing an ad hoc levy uniformly imposed, merely on the  basis
\nof  the\t use of the land for any one or more  of  the  seven
\nkinds  of  trees and plants selected by s 2(6) of  the\tAct,
\nwithout any classification and without any consideration  to
\nthe situation, the kind of land, its potential productivity,
\nwater-supply,\tnatural\t or  artificial,  and\tgeographical
\nfeatures,  falls unequally on the holders of the  land.\t  It
\nwas submitted that this inequality arises as a result of the
\nabsence\t of  any rational classification, and the  Act,\t for
\nthat  reason, suffers from the same infirmity for  which  in
\nthe  Moopil  Nair’s  case(‘)  this  Court  struck  down\t the
\nTravancore-Cochin Land Tax Act, 1955, as amended by Act X of
\n1957.  The contention urged, on the other hand, on behalf of
\nthe  State was that by selecting the seven kinds of  planta-
\ntions  in s. 2(6), the Legislature has made an\tintelligible
\nclassification\t amongst   holders  of\t land,\t that\tthat
\nclassification has a reasonable nexus with the object of the
\nAct, namely, to obtain additional revenue by imposing tax in
\naddition  to  the  basic tax, that the\tLegislature  in\t the
\nmatter\tof  taxation  has a  wide  discretion  in  selecting
\npersons and properties for imposing a tax, that in  exercise
\nof its power to tax, it was entitled to levy the tax , based
\non certain kinds of user of land and was not bound to make a
\nfurther\t  classification  of  the  land\t according  to\t its
\npotential  productivity,  its  situation,  its\tgeographical
\nfeatures, income and other such considerations.
\nBefore we examine these contentions we think it expedient to
\nconsider  first the principle-, laid down by this  Court  in
\nthe  matter of the power to levy taxes of the kind  we\thave
\nbefore\tus.  In Moppil Nair’s case(‘), this Court laid\tdown
\nthe  following principles : (1) that Art. 14 read with\tArt.
\n13(2)  applies\tto  a taxing statute as\t much  as  to  other
\nstatutes, and therefore, if he impugned statute, even though
\na taxing one, violates Art. 14, it has to be struck down  as
\nunconstitutional;  (2)\tthat  the  statute  there  impugned,
\nnamely, the Travancore-Cochin Land Tax Act, 1955, as amended
\nby  Act\t X  of 1957, imposed a uniform\ttax  on\t all  lands,
\nwhether\t productive  or not, and without  any  reference  to
\ntheir income, actual or potential; (3) that since the Act in
\nterms  claimed\tby  s. 3 thereof to  be\t a  general  revenue
\nsettlement  of the State, the tax being one on land or\tland
\nrevenue\t had  to  be assessed and levied on  the  actual  or
\npotential pro activity of the land sought
\n(1)  [1961] 3 S.C.R. 77.\n<\/p>\n
\t\t\t    401<\/span><\/p>\n
to  be taxed : in other words, such a tax has  reference  to
\nthe income actually made or which could have been made, with
\ndue  regard  to its incidence, and (4) that  the  inequality
\nwrit large on the Act arose by reason of the absence of\t any
\nclassification\tof  the land on which the tax  was  imposed.
\nThe  argument which appears to have appealed to the  learned
\ndissenting Judge that the Act made a classification  between
\nholders\t of  land according to the quantum of land  held  by
\nthem and that that classification was reasonably linked with
\nthe object of the Act to raise revenue for the State, failed
\nto receive the approval of the rest of the Court.  The\tfact
\nthat  a\t person\t holds a large area of\tland  and  is  taxed
\naccording to the area he holds cannot by itself mean that in
\ntaxing him he is meted out equal treatment as compared to  a
\nperson\twho holds a lesser quantity of land but of a  better
\nand more productive quality, merely on the ground that\tboth
\nhold  land and are taxed according to the quantity  each  of
\nthem  holds.   A uniform tax without  consideration  of\t its
\nincidence,   when  actually  implemented  must\t result\t  in
\ninequality of treatment amongst persons similarly  situated,
\nand therefore, would be violative of Art. 14.
\nIn  The State of Andhra Pradesh v. Nalla Raja  Reddy<\/a>(1)\t the
\nrelevant  facts were as follows : Originally  two  different
\nrevenue\t systems prevailed in Andhra and Telengana.  In\t the
\nformer,\t the principles of Ryotwari system  prevailed  which
\nmeant that lands were classified under two principal  heads,
\nwet  and dry.  Lands of similar grain values were  bracketed
\ntogether  in orders called “tarams”, each with its own\trate
\nof assessment, which was further adjusted in the case of dry
\nlands  with  reference to the nature and  quality  of  water
\nsupply.\t This system prevailed since times immemorial and by
\nreason\tof  its being equitable had  general  approval.\t  In
\nTelengana,  the\t relative scale of soils was  classified  in
\nterms  of  annas.  The existing or former rates used  to  be
\ntaken as the basis for the purpose of resettlements and were
\nadjusted  having regard to altered conditions, such  as\t the
\nrise  and  fall\t of  prices,  increase\tin  population\tetc.
\nBesides, the settlement officers used to fix the rates after
\nascertaining  what profit would be left to the\tcultivators.
\nThus, under the system of assessment which prevailed in both
\nthe  areas, the land revenue fixed varied according  to\t the
\nclassification of soil based upon productivity.\t Later,\t the
\nAndhra\tPradesh\t Land Revenue  Assessment  (Standardisation)
\nAct,   1952   and  the\tHyderabad  Land\t  Revenue   (Special
\nAssessment)  Act, 1952 were passed to standardize the  rates
\non  the basis of price level.  These two Acts increased\t the
\nrates  by way of surcharge on the existing rates.  In  1958,
\nthe  State Government appointed a Committee to\texamine\t the
\nexisting system of rates of assessment.\t The Committee inter
\nalia  suggested\t that  assessment should  be  based  on\t the
\nquality\t and  productivity  of soils, the  nature  of  water
\nsupply
\n(1)  [1967] 3 S.C.R. 28.\n<\/p>\n
402<\/span><\/p>\n
and  the  prices.  The State Legislature  then\t-passed\t the
\nimpugned  Act,\tAndhra\tPradesh\t Land  Revenue\t (Additional
\nAssessment)  and Cess Revision Act,XXII of 1962,  which\t was
\namended by Act XXIII of 1962.  Under ss. 3 and 4 of the Act,
\nas  amended, a new scheme was laid down in  accordance\twith
\nwhich  an  additional  assessment  at  75%  of\tthe  earlier
\nassessment  was charged.  But the proviso thereto laid\tdown
\nthat  the  total assessment should not in any case  be\tless
\nthan  50 nP. per acre per year, irrespective of the  quality
\nand_productivity  of the soil.\tEvery acre of dry  land\t had
\nthus  to  bear a minimum assessment of 50 nP. per  acre\t per
\nyear.\tFor wet lands also, a scheme was adopted which\ttook
\nno account of the quality and productivity of the soil.\t The
\nAct  was challenged on the ground of discrimination  arising
\nfrom the absence of classification as in the case of  Moopil
\nNair(1).  In considering the challenge the Court observed :
\n“A   statutory\t provision  may\t offend\t Art.  14   of\t the
\nConstitution  both  by finding differences where  there\t are
\nnone  and  by  making  no difference  where  there  is\tone.
\nDecided\t cases\tlaid down two tests to ascertain  whether  a
\nclassification\t is  permissible  or  not,  viz.,  (i)\t the
\nclassification\t must\tbe  founded   on   an\tintelligible
\ndifferentia  which distinguishes persons or things that\t are
\ngrouped together from others left out of the group; and (ii)
\nthat  the differential must have a rational relation to\t the
\nobject\tsought\tto be achieved by the statute  in  question.
\nThe  said  principles  have been applied by  this  Court  to
\ntaxing statutes.  This Court in Kunnathat Tha thunni  Moopil
\nNair  v. The State of Kerala [(1961)3 S.C.R. 77]  held\tthat
\nthe Travancore-Cochin Land Tax Act, 1955, infringed Art.  14
\nof  the\t Constitution, as it obliged every person  who\theld
\nland to pay the tax at the flat rate prescribed, whether  or
\nnot  he made any income out of the property, or\t whether  or
\nnot the property was capable of yielding any income.  It was
\npointed out that that was one of the cases where the lack of
\nclassification created inequality.”\n<\/p>\n
The  Court  observed that in the case before  it  the  whole
\nscheme of ryotwari system was given up so far as the minimum
\nrate  was concerned.  A flat rate was fixed in the  case  of
\ndry lands without any reference to the quality or  fertility
\nof  the soil, and in the case of wet lands, a  minimum\trate
\nwas  fixed and it was sought to be justified by\t correlating
\nit  to\tthe  ayacut.  The Court held  that  that  scheme  of
\nclassification\twas adopted without any reasonable  relation
\nto  the objects sought to be achieved, namely, fixation\t and
\nrationalisation\t of rates, and therefore,  clearly  offended
\nthe equal protection clause.\n<\/p>\n
(1)  [1961] 3 S.C.R. 77.\n<\/p>\n
403<\/span><\/p>\n
In Khandige Sham Bhat v. The Agricultural Income  Officer<\/a>(1)
\nthe  Court  reaffirmed the principles laid  down  in  Moopil
\nNair’s\tcase(1) and observed with regard to  the  provisions
\nthere impugned :\n<\/p>\n
“In order to judge whether a law was discriminatory what had
\nprimarily to be looked into was not its phraseology but\t its
\nreal  effect.  If there was equality and  uniformity  within
\neach group, the\t law could not be discriminatory, though due
\nto  fortuitous\tcircumstances in a peculiar  situation\tsome
\nincluded in a class might get some advantage over others, so
\nlong  as  they were not sought out  for\t special  treatment.
\nAlthough  taxation laws could be no exception to this  rule,
\nthe  courts  would, in view of the  inherent  complexity  of
\nfiscal\tadjustment  of\tdiverse\t elements  permit  a  larger
\ndiscretion   to\t  the\tLegislature   in   the\t matter\t  of
\nclassification so long as there was no transgression of\t the
\nfundamental   principles   underlying\tthe   doctrine\t  of
\nclassification.\t  The power of the Legislature\tto  classify
\nmust necessarily be wide and flexible so as to enable it  to
\nadjust\tits system of taxation in all proper and  reasonable
\nways.”\n<\/p>\n
The  principle emerging from these decisions is thus  fairly
\nwellsettled.  While granting a fairly wide discretion to the
\nlegislature  in the matter of fiscal adjustment, the  Court-
\nwill  at the same time insist that the statute in  question,
\nlike  any other statute, should not infringe Art. 14  either
\nby  introducing\t unreasonable or  irrational  classification
\nbetween\t persons  or properties similarly situated or  by  a
\nlack of classification.\t Further, in examining the objection
\nunder  Art.  14 the Court has not to go by  the\t phraseology
\nonly  of the provision under challenge, but its real  impact
\non persons or properties.\n<\/p>\n
The challenge urged on behalf of the petitioners may now be
\nexamined  in the light of these principles.  Both the  title
\nand the preamble of Act XVII of 1960 in clear terms call the
\ntax  one in addition, as s. 3(5) declares it, to  the  basic
\ntax,  payable  on  lands falling under\tits  purview,  i.e.,
\nplantations,  as  defined  by s.  2(6).\t  A  plantation,  as
\ndefined by s. 2(6), means the land used for any one or\tmore
\nof the seven types,of trees and plants set out therein.\t The
\ntax  is\t thus  chargeable  in respect  of  lands  which\t are
\nplantations and not the rest of the lands however much their
\nincome\tmay be.\t Apart from that, as stated in\tthe  State’s
\ncounter-affidavit,  the tax is imposed on the ground of\t the
\nparticular use to which the land is put and not on the basis
\nof its productivity or income, actual or potential.  This is
\nso,  although it is a tax in addition to the basic  or\tland
\ntax levied under the Kerala Land Tax Act, XIII of 1961,
\n(1) [1963] 3 S.C.R. 809, 817,
\n(2) [1961] 3 S.C.R. 77.\n<\/p>\n
404<\/span><\/p>\n
and  although that basic-tax under s. 6 of that Act  depends
\nupon the gross income yielded by the particular land.  It is
\ntrue  that under the second proviso to that section, if\t the
\nland is used for growing any of the crops therein mentioned,
\nthe  Government can impose, having regard to -its  potential
\nproductivity; the basic tax at Rs. 2\/- per acre, even though
\nthe land has not yet begun to yield or bear the crop and  no
\nincome\thas yet begun to be made therefrom.   By  subsequent
\namendment the rate was changed to Rs. 4.94 per hectare,\t but
\nthe principle of potential productivity was maintained.\t The
\nadditional  tax\t imposed by Act XVII of 1960, on  the  other
\nhand,  is on the same land provided it is used\tfor  growing
\nany one or more of the specified trees or plants, originally
\nat the uniform rate of Rs. 8\/- per acre but now enhanced  by
\nAct  XIX of 1967 to Rs. 501\/- per hectare, i.e., Rs. 20\t per
\nacre.  As already stated, the Amendment Act deleted the word
\n‘additional’ but the deletion makes no difference as the tax
\nis  still  in addition to the basic or land  tax  and  must,
\ntherefore, partake its character, both taxes being taxes  in
\nrespect\t of  the  same land, where the\tland  is  plantation
\nwithin s. 2(6).\t Thus, so far as such ‘lands are  concerned,
\nthe  basic  tax\t on  them is  assessed\taccording  to  their
\nproductivity or income.\t But the tax under Act XVII of 1960,
\nas amended by Act XIX of 1967, is imposed in respect of them
\nas an ad hoc uniform tax, irrespective of the kind of  their
\nsoil or their capacity etc. and only for the reason of their
\nparticular user. Prima facie, the incidence of such a tax by
\nreason\tof its uniformity is bound to be unequal on  persons
\nsimilarly  situated  and would, therefore,, be\thit  by\t the
\nequality  clause in Art. 14.  Even assuming that  the  basic
\ntax  is a revenue assessment and the additional tax is\tnot,
\nit  would still make no difference in its unequal  incidence
\non   these  whose  lands  by  their  particular\t  user\t are
\nplantations.   In  other  words, the burden of\tthe  tax  on
\npersons situated in similar circumstances, i.e., those whose
\nlands are plantations, would be unequal. depending upon\t the
\nkind  of  soil, the geographical  situation,  water  supply,
\nelevation and other relevant factors touching the lands they
\nhold.  The additional tax is by no means low as it is, after
\nthe  passing  of the amendment Act XIX of 1967, Rs.  50\t per
\nhectare,  equivalent to Rs. 20 per acre.  A  person  holding
\n1,000  acres  of land of inferior soil would, by  reason  of
\nsuch, an ad hoc tax, be bound to be hit harder than the\t one
\nholding\t 1,000 acres of superior land with higher  fertility
\nor productivity.  Such a result would not occur if the\tland
\nis  classified\tand  the  incidence of\tthe  tax  is  graded
\naccording, to its productivity and other relevant factors,
\nIn  support of the Act it was argued that the  impugned\t Act
\nnot only makes a classification between those who hold lands
\nwhich are plantations and those who hold lands which are not
\nplantations, but also makes a further classification  within
\nthat  classification by the method provided for\t calculating
\nthe  extent of plantations in Sch. 11.\tThat  argument\tdoes
\nnot appear to be
\n405<\/span>
\ncorrect.   The\tSchedule  only\tprovides  the  methods\t for
\ncalculating the extent of the plantations : (1) by means  of
\nquotients  and\t(2)  where  tea\t and  cardamom\tplants\t are
\ncultivated  by the actual extent of the land used for  those
\npurposes.   But the Schedule does not solve the\t difficulty.
\nA  piece  of land in one area may have a certain  number  of
\ntrees  or plants of one or more of the specified  categories
\nto  make it a plantation.  But the incidence of the  tax  in
\nrespect of it would be unequal as compared to an-other\tland
\nsituate elsewhere by reason of the latter’s better situation
\nor  fertility even if the number of plants or trees  of\t the
\nspecified  kind are the same, depending upon  the  situation
\nand the capacity of the two lands.  In such a case the\tvery
\nuniformity  of the tax is bound to result in  discrimination
\non account of the relative potentiality of the two lands not
\nbeing taken into account, and the lands not being classified
\naccordingly.   It is, therefore, difficult to say  that\t the
\nSchedule,  intended only for calculating the extent  of\t the
\nplantations, seeks to achieve equality of treatment  between
\none kind of plantation and another or between plantations of
\nthe  same kind, if the principle of their yield\t or  income,
\nactual\tor potential, is not taken into account.  How is  it
\npossible  to  say that the uniform burden of  Rs.  50\/-\t per
\nhectare\t in  the  case,\t say of\t cocoanut,  tea,  coffee  or
\ncardamom   plantations,\t is  reasonably\t equal,\t  when\t the
\npotential  yield of each such plantation is not\t taken\tinto
\nconsideration  ? The’ same result must also  follow  amongst
\nholders of the same kind of plantations if the principle  of
\nyield  or income is discarded.\tThus, Sch. 11 only  provides
\nthe two methods, of calculating the extent of the plantation
\nand does, not make a Classification within a  classification
\nas  urged.   The only classification made is  between  those
\nwhose  lands fall under the definition of  ‘plantation’\t and
\nthose  whose lands do not.  All those who held\tlands  which
\nare  plantations  are  made liable to pay  the\ttax  at\t the
\nuniform\t rate of Rs. 501\/- per hectare, no matter what\tkind
\nof  crop,  out of the seven kinds mentioned in the  Act,  is
\ncultivated by them. without regard to the fact that one kind
\nmay  be\t more valuable than the other  and  irrespective  of
\ntheir  situation, their income-yielding capacity  and  other
\nfactors.\n<\/p>\n
The result of such uniform imposition is that tea  planters,
\nwho hold lands in Ernakulam, Trichur and Kottayam districts,
\nwould  pay the same amount of tax per hectare  although\t the
\naverage\t yield per hectare in these districts for the  years
\n1965 to 1967 was about 350, 1825 and 1050 Kgs. respectively.
\nThe  difference in yield in these different  districts\tmust
\nclearly be due to the difference in the soil, situation\t and
\nsuch  other factors, for, it is nobody’s case (at least\t not
\nmade  out in the counter-affidavit of the respondents)\tthat
\nthe  cultivators in Ernakulam district use inferior seed  or
\nare  less  venturesome than those in  Kottayam\tand  Trichur
\ndistricts.  Such a difference in the average yield per\thec-
\nL7Sup.CI(NP)\/70-11
\n406<\/span>
\ntare  occurs  also in other tea growing\t districts,  namely,
\nCannanore, Palghat, Kozhikode, Trivandrum and Quilon,  whose
\naverage yield per hectare during the years 1965 to 1967\t was
\n950,  1490,  1575, 975 and 650.\t Kgs.  respectively.   Since
\nthese  figures are from the statistics prepared by  the\t Tea
\nBoard,\tthey cannot be disputed.  That such  differences  in
\nthe  average yield occur also in the different districts  of
\nthe States of Madras and Mysore is also clear.\tSurely, they
\ncannot\tarise  because the cultivators of one  district\t are
\nmore adventurous or more technology-minded than those of the
\nother  districts.   The\t differences  in  the  yield   must,
\ntherefore,  be\tattributed to the differences in  the  soil,
\nsituation, water supply, rainfall etc.
\nImposing a uniform rate of tax in respect of lands where tea
\nis grown, without classifying them on the basis of their pro-
\nductivity, actual or potential, and without  differentiating
\nthe  inferior  from  the superior kind of  soil\t or  without
\ntaking\tinto consideration the fact of some of\tthese  lands
\nbeing situated in more advantageous position than the  rest,
\nmust,  therefore, inevitably result in unequal incidence  of
\nthe tax on those who hold those lands.\tTherefore as in\t the
\ncase  of Moopil Nair(1) the present case is also  one  where
\ninequality  emerges as a result of imposing an ad  hoc\ttax,
\nuniformly levied without making any rational or intelligible
\nclassification.\t There is no indication in the Act and\tnone
\nwas even sought to be shown as to how and on what basis\t the
\nuniform\t rate of Rs. 501- per hectare was fixed and  whether
\nit had any relation to the capacity of those who hold  lands
\nwith  different\t average yields ranging from  350  Kgs.\t per
\nhectare\t in  Ernakulam\tto about 1850 Kgs.  per\t hectare  in
\nTrichur, in addition to the basic tax also payable by  them.
\nObviously,  the tax imposed in the manner pointed out  above
\nmust  result in inequality among the holders who  use  their
\nlands  for tea growing though they are\tsimilarly  situated.
\nThe  principles laid down in Moopil Nair’s case(1)  approved
\nand confirmed in subsequent decisions and which are  binding
\nupon us, apply to the impugned statute.\n<\/p>\n
But  in Thuttampara Planting Co. v. Tahsildar(2)  a  learned
\nSingle\t Judge\tof  the\t Kerala\t High  Court  repelled\t the
\ncontention as to the invalidity of Act XVII of 1960 and held
\nthat the decision in Meopil Nair’s case(3) did not apply  as
\nby  adopting  the quotients in Sch. 11 the impost  had\tbeen
\nrelated\t to  the potentiality of the land and  its  possible
\nyield.\t As already pointed out, even the  counter-affidavit
\nfiled by the State in the present petitions, does not  claim
\nthat  the additional tax imposed under this Act\t takes\tinto
\naccount\t the potentiality of the land or is possible  yield.
\nIt,  on the other hand, asserts in -plain language that\t the
\ntax is levied by reason only of the particular use to  which
\nthe land is put and
\n(1) [1961] 3 S.C.R. 77.\n<\/p>\n
(2) [1964] K.L.T. 47.\n<\/p>\n
407<\/span><\/p>\n
which makes it fall within s. 2(6).  If potentiality of\t the
\nland   and   its  possible  yield  had\t been\ttaken\tinto
\nconsideration, the amount of tax could not have been uniform
\nas its quantum would have depended on its quality, situation
\nand  other  factors.   Indeed, in Essa Ismail  v.  State  of
\nKerala(1) a Division Bench of that very High Court held that
\nwhat  Act  XVII of 1960 did was to tax\tlands  comprised  in
\nplantations,  not on the basis of their productivity but  an
\nthe  basis of their user.  But the Division Bench held\tthat
\nthe Act was “just and equitable”, and therefore, was not hit
\nby  Art. 14.  At page 623 of the Report, the learned  Judges
\nobserved  that\tthe yield would vary from crop to  crop\t and
\nplace to place, but “it is not the productivity of the\tsoil
\nthat  forms  the  foundation of the tax but its\t user  in  a
\nspecific  way  for a specific purpose”.\t  Though  these\t two
\ndecisions  cited  Moopil Nair’s case (2) , neither  of\tthem
\nconsidered  the\t result of the lands being  uniformly  taxed
\nwithout classifying them according to their potentiality  so
\nthat  the  incidence of the tax may be just  and  equitable.
\nHow   a\t tax  imposed  uniformly  without  regard   to\t the
\npotentiality   of  the\tproperty  taxed\t and   without\t any
\nclassification\ton any other just basis works inequality  is
\nillustrated  by\t the scrutiny by this Court  of\t the  Kerala
\nBuilding Tax Act, XIX of 1961 in the State of Kerala v. Haji
\nK.  Kutty<\/a>(3).\tAfter  noting the uniform rate\tof  the\t tax
\nlevied according to the floor area of a building but without
\ntaking\tinto  account its kind or its potential\t yield,\t the
\nCourt observed :\n<\/p>\n
“For  determining  the quantum of tax the sole test  is\t the
\narea  of the floor of the building.  The Act applies to\t the
\nentire State of Kerala, and whether the building is  situate
\nin  a large industrial town or in an insignificant  village,
\nthe rate of tax is determined by the floor area; it does not
\ndepend upon the purpose for which the, building is used, the
\nnature of the structure, the town and locality in which\t the
\nbuilding is situate, the economic rent which may be obtained
\nfrom  the  building,  the cost of  the\tbuilding  and  other
\nrelated circumstances which may appropriately be taken\tinto
\nconsideration\tin  any\t rational  system  of  taxation\t  of
\nbuilding.”\n<\/p>\n
At page 380 the Court further observed :\n<\/p>\n
“But in enacting the Kerala Buildings Tax Act no attempt  at
\nany rational classification is made-As already observed, the
\nLegislature has not taken into consideration in imposing the
\ntax  the class to which the building belongs, the nature  of
\nconstruction,  the  purpose  for  which\t it  is\t used,\t its
\nsituation,  its\t capacity  for\tprofitable  user  and  other
\nrelevant circumstances which
\n(1) I.L.R. [1965] 2 Ker- 619\t (2) [1961] 3 S.C.R. 77.
\n(3)A.I.R. 19 S.C. 378.\n<\/p>\n
408<\/span><\/p>\n
have  a bearing on matters of taxation.\t They  have  adopted
\nmerely\tthe floor area of the building as the basis  of\t tax
\nirrespective  of all other considerations.   Where  objects,
\npersons\t or transactions essentially dissimilar are  treated
\nby  the\t imposition  of a uniform  tax,\t discrimination\t may
\nresult,\t for,  in  our\tview, refusal  to  make\t a  rational
\nclassification may itself in some cases operate as denial of
\nequality.”\n<\/p>\n
On  this reasoning the charging section of the Act  impugned
\nin  that  case was held violative of Art. 14  and  therefore
\nbad.\n<\/p>\n
The  same reasoning is, in our view, apposite so far as\t the
\nimpugned tax is concerned, for, the tax is uniformly  levied
\nmerely\ton  the footing of the land being used\tfor  growing
\ntea, without any regard to its potentiality, situation,\t the
\nkind  of  tea which can suitably be grown  at  a  particular
\nplace,\tits geographical and other features etc.  No  doubt,
\nthe State in exercise of the taxing power can select persons
\nand objects for taxation but if it is found that within\t the
\nrange of that selection the law operates unequally by reason
\neither\tof classification or its absence, such\ta  provision
\nwould  be hit by the equality clause of Art. 14.  (see\tEast
\nIndia  Tobacco\tCo.  v. State  of  Andhra  Pradesh.<\/a>(1)\tEven
\namongst\t the selected plantations inequality as a result  of
\nuniformity  of tax must result because it is  possible\tthat
\nthe  user of the land for one specified purpose may  give  a
\nbetter\tand a more valuable yield than the user\t of  another
\nland though situated in the same area for another  specified
\npurpose.   This, in our view, has happened in so far as\t the
\ntax on tea plantations, with which only we are concerned  in
\nthese petitions, is concerned, and therefore, to the  extent
\nthat  Act  XVII\t of 1960, as amended by\t Act  XIX  of  1967,
\nimposes\t the  tax  on  holders of  tea\tplantations,  it  is
\nviolative of Art. 14 and is, therefore, void.
\nAccordingly, the petitions are allowed with costs.\n<\/p>\n
\t\t\t   ORDER
\nIn  accordance\twith  the  opinion  of\tthe  majority,\t the
\npetitions are dismissed with costs.\n<\/p>\n
(1) [1963] 1.S.C.R. 404.\n<\/p>\n
409<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Twyford Tea Co. Ltd. And Another vs The State Of Kerala And Another on 15 January, 1970 Equivalent citations: 1970 AIR 1133, 1970 SCR (3) 383 Author: M Hidayatullah Bench: Hidayatullah, M. (Cj), Shelat, J.M., Vaidyialingam, C.A., Grover, A.N., Ray, A.N. PETITIONER: TWYFORD TEA CO. LTD. AND ANOTHER Vs. RESPONDENT: THE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-242332","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nTwyford Tea Co. Ltd. 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