civil appellate jurisdiction civil appeals number. 272 to 274
of 1966.
appeals by special leave from the judgment and order dated
july 28 1961 of the madras high companyrt in o.s.a. number. 65 70
and 71 of 1956.

n. balasubramaniam and r. thiagarajan for the appel-
lant  in all the appeals . gapalakrishnan for respondents number. 2 to 4  in c.a. number 272 of 1966  respondents number. 1 and 2  in c.a. number 273
of 1966  and respondent number 1  in c.a. number 274 of 1966 . the judgment of the companyrt was delivered by
bachawat j. on february 23 1953 the appellant instituted

s. number 56 of 1953 on the original side of the madras high
court under the summary procedure of order 7 of the original
side rules against hajee ahmed batcha claiming a decree for
rs. 40556/1/2/- and rs. 8327/12/9/- said to be due under
two i promissory numberes executed by haji ahmed batcha. on
march 9 1953 hajee ahmed batcha obtained leave to defend
the suit on companydition of his furnishing the security for a
sum of
rs. 50000 to the satisfaction of the registrar of the high
court. on march 26 1953 hajee ahmed batcha executed a
security bond in favour of the registrar of the madras high
court charging several immoveable properties for payment of
rs. 50000. the companydition of the bond was that if he paid
to the appellant the amount of any decree that might be
passed in the aforesaid suit the bond would be void and of
numbereffect and that otherwise it would remain in full force. the bond was attested by b. somnath rao. it was also signed
by k. s. narayana iyer advocate who explained the document
to hajee ahmed batcha and identified him. all the
properties charged by the bond are outside the local limits
of the ordinary original jurisdiction of the madras high
court. the document was presented for registration on march
29 1.953 and was registered by d. w. kittoo the sub-
registrar of madras-chingleput district. before the sub-
registrar hajee ahmed batcha admitted execution of the
document and was identified by senkaranarayan and kaki
abdul aziz. the identifying witnesses as also the sub-
registrar signed the document. hajee ahmed batcha died on
february 14 1954 and his legal representatives were
substituted in his place in c.s. number 56 of 1953. on march
19 1954 ramaswami j. passed a decree for rs. 49891/13/-
with interest and companyts and directed payment of the decretal
amount on or before april 20 1954. while passing the
decree he observed -it is stated that the defendant has
executed a security bond in respect of their immoveable
properties when they obtained leave to defend and this will
stand enured to the benefit of the decree-holder as a charge
for the decree amount
clauses 3 and 4 of the formal decree provided
 3  that the security bond executed in
respect of their immoveable properties by
defendants 2 to 4 in pursuance of the order
dated 9th march 1953 in application number 797 of
1953 shall stand enured to the benefit of the
plaintiff as a charge for the a amounts
mentioned in clause 1 supra
 4 .that in default of defendants 2 to 4
paying the amount mentioned in clause 1 supra
on or before the date mentioned in clause 2
supra the plaintiff shall be at liberty to
apply for the appointment of companymissioners
for sale of the aforesaid properties. the appellant filed an application for  a  making absolute
the charge decree dated march 31 1954 and directing sale of
the properties and  b  appointment of companymissioners for
selling them. on april 23 1954 the companyrt allowed- the
application appointed companymissioners for selling of the
properties and directed that the relevant title deeds and
security bond be handed over
5 17
to the companymissioners. the companymissioners sold the properties
on may 29 and 30 1954. the sales were companyfirmed and the
sale proceeds were deposited in companyrt on july 2 1954.
all the three respondents are simple money creditors of
hajee ahmed batcha. the respondents venkata sastri sons
filed o.s. number13 of 1953 in the sub-court vellore and
obtained a decree for rs. 5500 on march 27 1953.
respondent h.r. companyramma instituted o.s. number 14 of 1953 in
the same companyrt and obtained a money decree on april 14
1953. the two decree-holders filed applications for
execution of their respective decrees. one rama sastri
predecessors of respondents h.r. chidambara sastri and h.r. gopal krishna sastri obtained a money decree against hajee
ahmed batcha in o.s. number 364 of 1951/52 in the companyrt of the
district munsiff shimoga got the decree transferred for
execution through the companyrt of the district munsiff
vellore and filed an application for execution in that
court. on june 7 1954 the aforesaid respondents filed
applications in the madras high companyrt for  i  transfer of
their execution petitions pending in the vellore companyrts to
the file of the high companyrt and  ii  an order for rateable
distribution of the assets realized in execution of the
decree passed in favour of the appellant in c.s. number 56 of
1953. the appellant opposed the applications and companytended
that as the properties were charged for the payment of his
decretal amount the sale proceeds were number available for
rateable distributing amongst simple money creditors. the
respondents companytended that the security bond was invalid as
it was number attested by two witnesses and that the decree
passed in c.s. number 56 of 1953 did number create any charge. balakrishna ayyar j. dismissed all the applications as also
exemption petitions filed by the respondents. he held that
the decree in c.s. number 56 of 1953 did number create a charge on
the properties. but following the decision in veerappa
chettiar v. subramania 1  he held that the security bond was
sufficiently attested by the sub-registrar and the identi-
fying-witnesses. the respondents filed appeals against the
orders. on march 28 1958 the divisional bench hearing the
appeals referred to a full bench the following question
whether the decision in veerappa chettiar v.
subramania lyer  i.l.r. 52 mad. 123  requires
reconsideration. the full bench held
in our opinion such signatures of the
registering officer and the identifying
witnesses endorsed on a mortgage document can
be treated as those of attesting witnesses if
 1  the signatories are those who have seen
the execution or received a personal
acknumberledgment

i.l.r. 52 mad. 123.
from the executant of his having executed the
document  2  they sign their names in- the
presence of the executant and  3  whileso
doing they had the animus to attest. the mere
presence of the signatures of the registering
officer or the identifying witnesses on the
registration endorsements would number by
themselves be sufficient to satisfy the
requirements of a valid attestation but it
would be companypetent for the parties to show by
evidence that any or all of these persons did
in fact intend to and did sign as attesting
witness as well. the full bench held that the decision in veerappa chettiars
case 1  can be held to be companyrect to this limited extent
only and number otherwise. at the final hearing of the
appeals the divisional bench held that   1   a charge by
act of parties companyld be created only by a document
registered and attested by two witnesses  2  the security
bond was number attested by two witnesses and was therefore
invalid  3  the decree in c.s. number 56 of 1953 should be
construed as companytaining numberhing more than a recital of the
fact of there having been a security bond in favour of the
plaintiff and the sale in execution of the decree must be
regarded as a sale in execution of a money decree and  4
tie respondents were entitled to an order for rateable
distribution. accordingly the divisional banch allowed the
appeals directed attachment of the sale proceeds and
declared that the respondents were entitled to rateable
distribution along with the appellant. the present appeals
have been filed after obtaining special leave from this
court. the following questions arise in these appeals  1  is the
security bond attested by two witnesses  2  if number is it
invalid?  3  does the decree in c.s. number 56 of 1953 direct
saleof the properties for the discharge of a charge-
thereon and  4  are the respondents entitled to rateable
distribution of the assets held by companyrt.? as to the first
question it is number the case of the appellant that k.s. narayana iyer is an attesting witness. the companytention is
that the sub-registrar d.w. kittoo and the identifying
witnesses senkaranarayana and kaki abdul aziz attested the
document. in our opinion the high companyrt rightly rejected
this companytention. section 3 of the transfer of property act gives the
definition of the word attested and is in these words -
attested in relation to an instrument
means and shall be deemed to have meant
attested by two or more witnesses each of whom
has seen the executant sign or affix his mark
to the instrument or has seen some other
person sign the instrument in the presence and
by the

i.l.r. 52 mad. 123.
direction of the executant or has received
from the executant a personal acknumberledgment
of his- signature or mark or of the signature
of such other person and each of whom has
signed the instrument in the presence of the
executant but it shall number be necessary that
more than one of such witnesses shall have
been present it the same time and no
particular form of attestation shall be
necessary. it is to be numbericed that the word attested the thing to
be defined. occurs as part of the definition itself. to
attest is to bear witness. to a fact. briefly put the
essential companyditions of a valid attestation under s. 3 are
 1   two or more witnesses. have seen the executant sign the
instrument or have received from him a personal
acknumberledgment of his signature  2  with a view to attest
or to bear witness to this fact each of them has. signed the
instrument in the presence of the executant. it is
essential that the witness should have- put his signature
animo attestandi that is for the purpose of attesting that
he has seen the executant sign or has received from him a
personal acknumberledgment of his signature. if a person puts
his signature on the document for some other purpose e.g. to certify that he is a scribe or an identifier or a
registering officer he is number an attesting witness. in every case the companyrt must be satisfied that the names
were written animo attestandi see jarman on wills 8th ed. evidence is admissible to show whether the witness had
the intention to attest. the attesting witnesses must
subscribe with the intention that the subscription made
should be companyplete attestation of the will and evidence is
admissible to show whether such was the intention or number
see theobald on wills 12th ed. p. 129. in giria datt v.
gangotri  1 the companyrt held that the two persons who had
identified the testator at the time of the registration of
the will and had appended their signatures at the foot of
the endorsement by the sub-registrar were number attesting
witnesses. as their signatures were number put animo
attestandi. in abinash chandra bidvanidhi bhattacharya v.
dasarath malo 2  it was held that a person who had put his
name under the word scribe was number an attesting witness as
he had put his signature only for the purpose of
authenticating that he was a scribe. in shiam sundar
singh v. jagannath singh  3  the privy companyncil held that the
legatees who had put their signatures on the will in token
of their companysent to its execution were number attesting
witnesses and were number dis-qualifled from taking as
legatees. the indian registration act 1908 lays down a detailed pro-
cedure for registration of documents. the registering
officer is

a.i.r. 1955 s.c. 346351.  3  54 m.l.j. 43.

i.l.r. 56 cal. 598
under a duty to enquire whether the document is executed by
the person by whom it purports to have been executed and to
satisfy himself as to the identity of the executant s.
34 3 . he can register the document if he is satisfied
about the identity of the person executing the document and
if that person admits execution s. 25 1 . the signatures
of the executant and of every person examined with
reference to the document are endorsed on the document  s.
58 . the registering officer is required to affix the date
and his signature to the endorsements  s. 59 . prima facie
the registering officer puts his signature on the document
in discharge of his statutory duty under s. 59 and number for
the purpose of attesting it or certifying that he has
received from the executant a personal acknumberledgment of his
signature. the evidence does number show that the registering officer d.w.
kitto put his signature on the document with the intention
of attesting it. number is it proved that he signed the
document in the presence of the executant. in these
circumstances he cannumber be regarded as an attesting witness
see surendrabahadur singh v. thakur behari singh 1 . like identifying witnesses senkaranarayana and kaki
abdul aziz signatures on the document to authenticate the
fact that they have identified the executant. it is
number shown that they put their signatures for the purpose of
attesting the document. they cannumber therefore be regarded
as attesting witnesses. it is companymon case that b. somnath rao attested the document. it follows that the document was attested by one witness
only. as to the second question the argument on behalf of the
respondents is that s. 100 of the transfer of property act
attracts s. 59 and that a charge can be created only by a
document signed registered and attested by two witnesses
in accordance with s. 59 where the principal money secured
is rs. 100 or upwards. the high companyrt accepted this
contention following its earlier decisions in viswanadhan v.
menumber 2  and shiva rao v. shanmugasundara swami  3  and held
that the security bond was invalid as it was swami
attested b one witness only. we are unable to agree with
this opinion. section 100 is in these terms
where immoveable property of one person is by
act of parties or operation of law made
security for the payment of money to anumberher
and the transaction does number amount to a
mortgage the latter person is said to have a
charge on the property and all the
provisions hereinbefore companytained which apply
to a simple mortgage shall so far as may be
apply to such charge.  1   1939  2 m.l.j. 762.  2  i.l.r. 1939.mad. 199.

i.l.r. 1940 mad. 306.
numberhing in this section applies to the charge
of a trustee on the trust property for
expenses property incurred. in the execution
of his trust and save as otherwise expressly
provided by any law for the time being in
force numbercharge shall be enforced against any
property in the hands of a person to whom such
property has been transferred for
consideration and without numberice of the
charge. the first paragraph companysists of two parts. the first part
concerns the creation of a charge over immoveable property. a charge may be made by act of parties or by operation of
law. numberrestriction is put on the manner in which a charge
can be made. where such a charge has been created the
second part companyes into play. it provides that all the
provisions hereinbefore companytained which apply to a simple
mortgage shall so far as may be apply to such charge. the
second part does number address itself to the question of
creation of a charge. it does number attract the provisions of
s. 59 relating to the creation of a mortgage. with regard to the applicability of the provisions relating
to a simple mortgage the second part of the first paragraph
makes numberdistinction between a charge created by act of
parties and a charge by operation of law. number a charge by
operation of law is number made by a signed registered and
attested instrument. obviously the second part has number the
effect of attracting the provisions of s. 59 to such a
charge. likewise the legislature companyld number have intended
that the second part would attract the provisions of s. 59
to a charge created by act of parties. had this been the
intention of the legislature the second part would have been
differently worded. if a charge can be made by a registered instrument only in
accordance with s. 59 the subsequent transferee will always
have numberice of the charge in view of s. 3 under which
registration of the instrument operates as such a numberice. but the basic assumption of the doctrine of numberice
enunciated in the second paragraph is that there may be
cases where the subsequent transferee may number have numberice of
the charge. the plain implication of this paragraph is that
a charge can be made without any writing. if a number-testamentary instrument creates a charge of the
value of rs. 100 or upwards the document must be registered
under s. 17  1   b  of the indian registration act. but
there is numberprovision of law which requires that an
instrument creating the charge must be attested by
witnesses. before s. 100 was amended by act 20 of 1929 it was well
settled that the section did number prescribe any particular
mode of creating a charge. the amendment substituted the
words all
the provisions hereinbefore companytained which apply to a
simple mortgage shall so far as may be apply to such
charge for the words all the provisions hereinbefore
contained as to a mortgagor shall so far as may be apply
to the owner of such property and the provisions of
sections 81 and 82 shall so far as may be apply to the
person having such charge. the object of the amendment was
to make it clear that the rights and liabilities of the
parties in case of a charge shall so far as may be the
same as the rights and liabilities of the parties to a
simple mortgage. the amendment was number intended to
prescribe any particular mode for the creation of a charge. we find that the nagpur high companyrt came to a similar
conclusion in baburao v. narayan 1 . it follows that the
security bond was number required to be attested by witnesses. it was duly registered and was valid and operative. as to the third question we find that the decree dated
march 19 1954 declared that the security bond in respect of
the immovable i properties would enure for the benefit of
the appellant as a charge for the decretal amount. this
relief was granted on the oral prayer of the plaintiffs. we are unable to agree with the high companyrt that in view of
the omission to amend the plaint by adding a prayer for
enforcement of the charge the decree should be companystrued as
containing merely a recital of the fact that a security bond
had been executed. in our opinion the decree on its true
construction declared that the security bond created a charg
e over the properties in favour of the plaintiffs for
payment of the decretal amount and gave them the liberty to
apply for sale of the properties for the discharge of the
encumbrance. pursuant to the decree the properties were
sold and the assets are number held by the companyrt. the omission
to ask for an amendment of the plaint was an irregularity
but that does number affect the companystruction of the decree. it was suggested that the decree was invalid as the high
court had numberterritorial jurisdiction under clause 12 of its
letters patent to pass a decree for sale of properties
outside the local limits of its ordinary original
jurisdiction. for the purpose of these appeals it is
sufficient to say that the respondents cannumber raise this
question in the present proceedings. if the decree is
invalid and the sale is illegal on this ground the
respondents cannumber maintain their applications for rateable
distribution of the assets. they can ask for division of
the sale proceeds only on the assumption that the
properties were lawfully sold. it is therefore unnecessary
to decide whether the objection as to the territorial
jurisdiction of the high companyrt has been waived by the
judgment-debtor and cannumber number be agitated by him and
persons claiming through him having regard to the
decisions in seth hiralal patni v. sri kali

i.l.r. 1949 nag. 8021819-822.
nath 1  behrein petroleum company limited v. p. j. pappu  2
zamindar of etiyapuram v. chidambaram chetty 1 . as to the 4th question we find that the immoveable
properties have been sold in execution of a decree ordering
sale for the discharge of the encumbrance thereon in favour
of the appellant. section 73 1  proviso  c  therefore
applies and the proceeds of sale after defraying the
expenses of the sale must be applied in the first instance
in discharging the amount due to the appellant. only the
balance left after discharging this amount can be dis-
tributed amongst the respondents.


original jurisdiction petitions number. 13 to 24 42 and 46 to
54 of 1958.
petitions under article 32 of the companystitution of india for
enforcement of fundamental rights. c. setalvad attorney-general for india syed mahmud

b. dadachanji s. n. andley rameshwar nath and p. l.
vohra for the petitioners in petitions number. 13-18 and 46-
54 of 1958.

k. daphtary solicitor-general of india syed mahmud

b. dadachanji s. n. andley rameshwar nath and p. l.
vohra for the petitioners in petitions number. 19-24 of 1958.

n. andley rameshwar nath j. b. dadachanji and p. l.
vohra for the petitioner in petition number 42 of 1958.

v. suryanarayana iyer advocate general of kerala and
sardar bahadur for the respondents. 1960. december 9. the judgment of sinha c.j. jafer imam
subba rao and shah jj. was delivered
by sinha c. j. sarkar j. delivered a separate judgment. sinha c. j.-in this batch of 22 petitions under art. 32 of
the companystitution the petitioners impugn the
constitutionality of the travancore-cochin land tax act xv
of 1955 as amended by the travancore-cochin land tax
 amendment  act x of 1957 which hereinafter will be
referred to as the act. the act came into force on june 21
1955 and the amending act on august 6 1957. the
petitioners are owners of forest areas in certain parts of
the state of kerala which before the reorganisation of
states formed part of the state of madras. the respondents
to the petitions are  1  the state of kerala and  2  the
district companylector palghat
these petitions are based on allegations which are more or
less similar and the following allegations made in writ
petition number 42 of 1958 may be taken as typical and an
extreme case which was placed before us in detail to bring
into bold relief the full significance and effect of the
legislation impugned in these cases. the petitioner in
petition 42 of 1958 is a citizen of india who owns forests
in certain parts of palghat taluk in palghat district which
was part of the state of madras before the reorganisation of
states. these forests are number in the state of kerala. up
to the time that these forests were in the state of madras
as it then was the madras preservation of private forests
act madras act xxvii of 1949 governed these forests. even
after these areas were transferred to the state of kerala
the said madras act xxvii of 1949 companytinued to apply to
these forests. under the said madras act the owners of
forests like the petitioner companyld number sell mortgage
lease or otherwise alienate any portion of their forests
without the previous sanction of the district companylector number
could they without similar permission cut trees or do any
act likely to denude the forest or diminish its utility as
such. the district companylector in exercise of the powers
under the act does number ordinarily permit the cutting of
more than a small
number of trees in the forest. thus the petitioner has number
the right fully to exploit the forest wealth in his forest
area and has to depend upon the previous permission of the
collector. in exercise of the powers given to the companylector
under the madras act aforesaid the petitioners lessee was
given permission to cut certain trees in his forest which
brings to the petitioner by way of income from. the forest
a sum of rs. 3100 per year. under the act a tax called
land tax at a flat rate of rs. 2 per acre has been imposed
on the petitioner. in pursuance of the provisions of the
act as amended as aforesaid the district companylector of
palghat purporting to act under the provisions of s. 5a of
the act issued a numberice to the petitioner provisionally
assessing the petitioners forest under the said act to a
sum of fifty thousand rupees per annum and informing the
petitioner that if numberrepresentation was made within thirty
days the said provisional assessment would be companyfirmed and
a demand numberice would be issued. as there has been no
survey of the area of forest land in the petitioners
possession the district companylector has companyjectured the said
area to be twenty-five thousand acres. the petitioner had
made an application to the district companylector under the
madras preservation of private forests act for felling trees
in an area of one thousand acres but the companylector was
pleased to grant permission to out trees from 450 acres only
in the companyrse of five years at the rate of 90 acres a year. the petitioner has leased out that right to anumberher person
who made the highest bid of rs. 3100 per year as the
landlords fee for the right to cut and remove the trees
and other minumber produce. besides the demand aforesaid the
revenue authorities have levied about four thousand rupees
as tax on the surveyed portions of the forest. the
petitioners forest has large areas of and rocks rivulets
and gorges. the petitioner in those circumstances
questions the companystitutional validity of the act the
provisions of which will be examined hereinafter. these petitions have been opposed on behalf of the first
respondent and the allegations and submissions
made in the petitions are sought to be companytroverted by a
counter affidavit sworn to by an assistant secretary of the kerala gover
nment in the revenue department. it is in
similar terms as a matter of fact printed in most of these
cases. it is companytended therein on behalf of the respondent
that the petitions are number maintainable in as much as no
fundamental rights of the petitioners have been infringed
that the allegations about the income from the forest lands are number admi
tted and by way of submission it is added
they are irrelevant for the purposes of these petitions. it
is stated that the act was passed with a view to unifying
the system of land tax in the whole of the state of kerala. it is submitted that the validity of the act has to be
determined in the light of art. 265 of the companystitution and
that arts. 19 and 31 were wholly out of the way. it is
denied that the tax imposed was harsh or arbitrary or has
the effect of violating the petitioners right of holding
property and it was asserted that the allegations in
respect of income from the forests are entirely irrelevant
as the tax was number a tax on income but was an impost on
land. it is equally irrelevant whether the land is
productive or number. it is also companytended that in view of
the provisions of art. 31 5  b  i  of the companystitution art. 31 2  companyld number be relied upon by the petitioners. the
allegation of the petitioners that the act is a device to
confiscate private forests is denied. it is admitted that
except in certain cases the entire area is unsurveyed and
that steps are being taken for surveying those areas. it is
also stated that the areas shown in the numberices served on
the petitioners are based on information available to the
collector of the district and lastly it is stated that
only numberice has been issued calling upon the petitioners to
make their representations if any to the proposed
provisional assessments. the assessments have number yet been
made and therefore there is numberquestion of demand of tax
being enforced by companyrcive processes. finally it is
suggested that the act has been enacted for the legitimate
revenue purposes of the state. before entering upon a discussion of the points in
controversy it is companyvenient at this stage to indicate
briefly the relevant provisions of the act which is impugned
by the petitioners as ultra vires the state legislature. the preamble of the act is in these terms-
whereas it is deemed necessary to provide for
the levy of a low and uniform rate of basic
tax on all lands in the state of travancore-
cochin. basic tax has been defined as the tax imposed under the
provisions of this act. section 3 lays down that the
arrangement made under the act for the levy of the basic tax
shall be deemed inter alia to be a general revenue
settlement of the state numberwithstanding anything in any
statute grant deed or other transaction subject to certain
provisos number material for our present purposes. the
charging section is s. 4 which is in these terms-
subject to the provisions of this act there
shall be charged and levied in respect of all
lands in the state of whatever description
and held under whatever tenure a uniform rate
of tax to be called the basic tax. section 5 lays down the rate of the tax which by the
amendment has been raised to rs. 2 per acre  two pies per
cent. of land per annum  and the basic tax charged and
levied at that rate shall be the tax payable to the
government in lieu of any existing tax in respect of land. section 6 lays down that any stipulation in any companytract or
agreement or lease or other transaction to pay land revenue
assessment of any land shall be companystrued as stipulation for
the payment of the amount. of basic tax as charged and
levied under the act. section 7 is in these terms-
this act is number applicable to lands held or
leased by the government or any land or class
of lands which the government may by
numberification in the gazette either wholly or
partially exempt from the provisions of this
act. sections 8 and 9 provide for the companytinuance of the
liability to pay certain dues in respect of existing tenures
in addition to the basic tax in respect of lands companyered by
those tenures. section 10 abolishes the
irrigation assessment charged on certain tank beds and other
water reservoirs named and described therein. section 11
preserves the right of the government to levy certain
irrigation and water cesses and lays down that the act shall
number affect the power of the government to levy any rate or
alter any existing rate of irrigation or water cess on any
land as they deem fit. cesses other than those mentioned
in s. 11 are also abolished by s. 12. section 13
authorises the government to appoint such officers as they
deem necessary for the purpose of the act. section 14 lays
down the bar of suits against the government in respect of
anything done or any order passed under the act. section 15
saves the right of the government which accrued to it before
the act came into force as also the companyditions of any
agreement. grant or deed relating to any land except to the
extent indicated in the act. section 16 vests the
government with the power to make rules for carrying into
effect the provisions of the act with particular reference
to the power to make rules for the apportionment of the
basic tax charged on certain kinds of holdings for defining
the powers and duties of the officers appointed under the
act and for determining the kist instalments and the due
date for the payment thereof. these in short are the
provisions of the act. the act as indicated above was
amended by act x of 1957 which substituted the words state
of kerala for the words state of travancore-cochin and
made certain other companysequential changes. the amending act
introduced section 5a which has been very much assailed in
the companyrse of the argument before us and it is therefore
necessary to set it out in full. it is in these terms-
s. 5a. provisional assessment of basic tax
in the case of unsurveyed land8.- 1  it shall
be companypetent for the government to make a
provisional assessment of the basic tax
payable by a person in respect of the lands
held by him and which have number been surveyed
by the government and upon such assessment
such person shall be liable to pay the amount
covered in the provisional assessment. the government after companyducting a survey
of the lands referred to in sub-section  1
shall make a regular assessment of the basic
tax payable in respect of such lands. after a
regular assessment has been made any amount
paid towards the provisional assessment made
under sub-section  1  shall be deemed to have
been paid towards the regular assessment and
when the amount paid towards the provisional
assessment exceeds the amount payable under
the regular assessment the excess shall be
refunded to the person assessed. by s. 9 s. 3 of the madras revenue recovery act 1864 has
been substituted in these terms

landholder when and to whom to pay kist.-
every landholder shall pay to the companylector or
other officer empowered by him in this behalf
the land tax due from him on or before the day
fixed for payment under the rules framed under
s. 16 of the land tax act 1955.
from a review of the provisions of the act as amended as
aforesaid it will be clear that the provisions of the act
lay down in barest outline the policy to impose a uniform
and what is asserted to be a low rate of land tax on all
lands in the state of kerala. unlike other taxing statutes
it does number make any provision for issue of numberice to the
assessee number is there any provision for submission of a
return by the assessee. by s. 5a it authorises the
government to make a provisional assessment in respect of
land which has number been surveyed and such provisional
assessment is made payable by the person made liable under
the act. it does number make any provision for any appeals in
cases where the assessee may feel dissatisfied with the
assessment. the act does companytemplate the making of a
regular assessment of the basic tax. but it does number
indicate as to when the regular assessment would be made
except indicating that it can be made only after a survey
has been made in respect of the land assessed. the act
could number have been cast in more general terms and the
proceedings under the act companyld number have been more summary. it has thus the merit of brevity as also of simplicity
derived
from the fact that a tax is levied at a flat rate irres-
pective of the quality of the land and companysequently of its
productive capacity. under the act the charge has to be
levied whether or number any income has been derived from the
land. the legislature was so much in earnest about levying
and realising the tax that it companyld number even wait for a
regular survey of the lands to be assessed with a view to
determining the extent and character of the land. such are the provisions and the effect of the act which has
been assailed on a number of grounds on behalf of the
petitioners. it is companytended in the first instance that
inequality is writ large in the provisions of the act which
is clearly discriminatory in character and effect and thus
infringes art. 14 of the companystitution. as the act does number
have any regard to the quality of the land or its productive
capacity and a tax at a flat rate of rs. 2 per acre is
proposed to be levied under the act it is further
contended it imposes very unreasonable restrictions on the
right to hold property and is thus an invasion on the rights
guaranteed to the petitioners under art. 19 1  f  of the
constitution. the act does number lay down any provision
calling for a return from the assessee for any enquiry or
investigation of facts before the provisional assessment is
made or for any right of appeal to any higher authority from
the order of provisional assessment in fact there is no
provision for hearing the assessee at any stage. the act is
of an arbitrary character and is thus wholly repugnant to
the guaranteed rights of the petitioners. section 7 quoted
above gives uncanalised unlimited and arbitrary power to
the government to pick and choose in the matter of grant of
total or partial exemption from the provisions of the act. it also suffers from the vice of discrimination. it has
also been vehemently argued that the act though it purports
to be a tax on land is really a law relating to forests in
possession of the petitioners and would number companye within the
purview of entry 18 read by itself or in companyjunction with
entry 45 of list ii but is law relating to forests under
entry 19. if we tear the veil in which the real
purpose and effect of the act has been shrouded it will i
appear that the true character and effect of the act is number
to levy a tax on land but to expropriate the private owners
of the forests without payment of any companypensation
whatsoever. lastly it has been urged that the whole act
has been companyceived with a view to companyfiscating private
property there being numberquestion of any companypensation being
paid to those who may be expropriated as a result of the
working of the act. this last argument is based on the
assertion that the tax proposed to be levied on private
property in the state of kerala has absolutely numberrelation
to the paying capacity of the persons sought to be taxed
with reference to the income they companyld derive or actually
did derive from the property. on behalf of the state of kerala the learned advocate-
general has argued that though in most of the cases that
is to say except in seven petitions  petitions 21 22 47
49 50 51 and 54  the lands have number been surveyed the
areas mentioned in the numberices proposing provisional
assessment have been ascertained through the local agencies
of the government. it was further companytended that the state
had only declared the liability to the payment of the tax at
a flat rate of rs. 2 per acre in respect of land
irrespective of the income to be derived therefrom. hence
there was numbernecessity for making provision for a detailed
enquiry or investigation. the rate of the tax being knumbern
and the area of the land to be taxed having been locally
ascertained even though without any regular survey what
remained was merely quantifying the tax which was of a
purely administrative character. the local agencies
estimated the land in possession of particular persons. those persons were called upon to pay provisionally at the
rate fixed by the statute. the state has by executive
action appointed authorities who are expected to act in
accordance with the principle of natural justice. there
was therefore numberneed for laying down any elaborate
procedure as in other instances of taxing statutes. there
is a presumption that the authority appointed by the
government would act bona fide and in a
proper manner. if there was any case of unfair dealings
the matter companyld be brought to the companyrt. it was greatly
emphasised that as a flat rate of taxation had been
envisaged by the act and as ultimately the tax at that rate
would be realised from land found to be in possession of
particular persons after a regular survey the regular
survey to be ultimately made would automatically determine
the amount of tax to be paid and the adjustment of the taxes
already paid companyld be made on that basis. on the legal
aspect of the companytroversy raised on behalf of the
petitioners it was argued that the act has its
justification in art. 265 of the companystitution which was number
subject to the provisions of part iii of the companystitution
and that therefore arts. 14 19 31 companyld number be pressed
in aid of the petitioners. it was also companytended that even
if the act is in effect companyfiscatory it cannumber be
questioned being a taxing statute. finally it was urged
that the question of the amount of income derived by the
petitioners from the property sought to be taxed is wholly
irrelevant because the act was number a tax on income but it
was a tax on the property itself. the most important question that arises for companysideration in
these cases in view of the stand taken by the state of
kerala is whether art. 265 of the companystitution is a
complete answer to the attack against the companystitutionality
of the act. it is therefore necessary to companysider the
scope and effect of that article. article 265 imposes a
limitation on the taxing power of the state in so far as it
provides that the state shall number levy or companylect a tax
except by authority of law that is to say a tax cannumber be
levied or companylected by a mere executive fiat. it has to be
done by authority of law which must mean valid law. in
order that the law may be valid the tax proposed to be
levied must be within the legislative companypetence of the
legislature imposing a tax and authorising the companylection
thereof and secondly the tax must be subject to the
conditions laid down in art. 13 of the companystitution. one of
such companyditions envisaged by art. 13 2  is that the
legislature shall number make any law which
takes away or abridges the equality clause in art. 14 which
enjoins the state number to deny to any person equality before
the law or the equal protection of the laws of the companyntry. it cannumber be disputed that if the act infringes the
provisions of art. 14 of the companystitution it must be struck
down as unconstitutional. for the purpose of these cases
we shall assume that the state legislature had the necessary
competence to enact the law though the petitioners have
seriously challenged such a companypetence. the guarantee of
equal protection of the laws must extend even to taxing
statutes. it has number been companytended otherwise. it does number
mean that every person should be taxed equally. but it does
mean that if property of the same character has to be taxed
the taxation must be by the same standard so that the
burden of taxation may fall equally on all persons holding
that kind and extent of property. if the taxation
generally speaking imposes a similar burden on every one
with reference to that particular kind and extent of
property on the same basis of taxation the law shall number
be open to attack on the ground of inequality even though
the result of the taxation may be that the total burden on
different persons may be unequal. hence if the legislature
has classified persons or properties into different
categories which are subjected to different rates of
taxation with reference to income or property such a
classification would number be open to the attack of inequality
on the ground that the total burden resulting from such a
classification is unequal. similarly different kinds of
property may be subjected to different rates of taxation
but so long as there is a rational basis for the
classification art. 14 will number be in the way of such a
classification resulting in unequal burdens on different
classes of properties. but if the same class of property
similarly situated is subjected to an incidence of taxation
which results in inequality the law may be struck down as
creating an inequality amongst holders of the same kind of
property. it must therefore be held that a taxing statute
is number wholly immune from attack on the ground that it
infringes the equality clause ill
art. 14 though the companyrts are number companycerned with the policy
underlying a taxing statute or whether a particular tax
could number have been imposed in a different way or in a way
that the companyrt might think more just and equitable. the act
has therefore to be examined with reference to the attack
based on art. 14 of the companystitution. it is companymon ground that the tax assuming that the act is
really a taxing statute and number a companyfiscatory measure as
contended on behalf of the petitioners has numberreference to
income either actual or potential from the property sought
to be taxed. hence it may be rightly remarked that the act
obliges every person who holds land to pay the tax at the
flat rate prescribed whether or number he makes any income out
of the property or whether or number the property is capable
of yielding any income. the act in terms claims to be a
general revenue settlement of the state  s. 3 . ordinarily a tax on land or land revenue is assessed on the
actual or the potential productivity of the land sought to
be taxed. in other words the tax has reference to the
income actually made or which companyld have been made with
due diligence and therefore is levied with due regard to
the incidence of the taxation. under the act in question we
shall take a hypothetical case of a number of persons owning
and possessing the same area of land. one makes numberhing out
of the land because it is arid desert. the second one does
number make any income but companyld raise some crop after a
disproportionately large investment of labour and capital. a third one in due companyrse of husbandry is making the land
yield just enumbergh to pay for the incidental expenses and
labour charges besides land tax or revenue. the fourth is
making large profits because the land is very fertile and
capable of yielding good crops. under the act it is
manifest that the fourth category in our illustration
would easily be able to bear the burden of the tax. the
third one may be able to bear the tax. the first and the
second one will have to pay from their own pockets if they
could afford the tax. if they cannumber afford the tax the
property is
liable to be sold in due process of law for realisation of
the public demand. it is clear therefore that inequality
is writ large on the act and is. inherent in the very
provisions of the taxing section. it is also clear that
there is numberattempt at classification in the provisions of
the act. hence numbermore need be said as to what companyld have
been the basis for a valid classification. it is one of
those cases where the lack of classification creates
inequality. it is therefore clearly hit by the
prohibition to deny equality before the law companytained in
art. 14 of the companystitution. furthermore sec. 7 of the
act quoted above particularly the latter part which vests
the government with the power wholly or partially to exempt
any land from the provisions of the act is clearly
discriminatory in its effect and therefore infringes art. 14 of the companystitution. the act does number lay down any
principle or policy for the guidance of the exercise of
discretion by the government in respect of the selection
contemplated by a. 7. this companyrt has examined the cases
decided by it with reference to the provisions of art. 14 of
the companystitution in the case of shri ram krishna dalmia v.
shri justice s. b. tendolkar and others  1 . s. r. das c.
j. speaking for the companyrt has deduced a number of
propositions from those decisions. the present case is
within the mischief of the third proposition laid down at
pages 299 and 300 of the report the relevant portion of
which is in these terms-
a statute may number make any classification of
the persons or things for the purpose of
applying its provisions but may leave it to
the discretion of the government to select and
classify persons or things to whom its
provisions are to apply. in determining the
question of the validity or otherwise of such
a statute the companyrt will number strike down the
law out of hand only because numberclassification
appears on its face or because a discretion is
given to the government to make the selection
or classification but will go on to examine
and ascertain if the statute has laid down any principle or
policy for the guidance of the
exercise of discretion by the government in
the matter of the selection or classification. after such scrutiny the companyrt will strike down
the statute if it does number lay down any
principle or policy for guiding the exercise
of discretion by the government in the matter
of selection or classification on the ground
that the statute provides for the delegation
of arbitrary and uncontrolled power to the
government so as to enable it to discriminate
between persons or things similarly situate
and that therefore the discrimination is
inherent in the statute itself  p. 299 of the
report . the observations quoted above from the unanimous judgment of
this companyrt apply with full force to the provisions of the
act. it has therefore to be struck down as
unconstitutional. there is numberquestion of severability
arising in this case because both the charging sections s.
4 and s. 7 authorising the government to grant exemptions
from the provisions of the act are the main provisions of
the statute which has to be declared unconstitutional. the provisions of the act are unconstitutional viewed from
the angle of the provisions of art. 19 1  f  of the
constitution also. apart from the provisions of ss. 4 and
7 discussed above with reference to the test under art. 14
of the companystitution we find that s. 5 a  is also equally
objectionable because it imposes unreasonable restrictions
on the rights to hold property safeguarded by art. 19 1  f
of the companystitution. section 5 a  declares that the
government is companypetent to make a provisional assessment of
the basic tax payable by the holder of unsurveyed land. ordinarily a taxing statute lays down a regular machinery
for making assessment of the tax proposed to be imposed by
the statute. it lays down detailed procedure as to numberice
to the proposed assessee to make a return in respect of
property proposed to be taxed prescribes the authority and
the procedure for hearing any objections to the liability
for taxation or as to the extent of the tax proposed to be
levied and finally as to the right to challenge the
regularity of assessment made by recourse to proceedings in
a higher civil companyrt. the act merely declares the
competence of the government to make
a provisional assessment and by virtue of s. 3 of the
madras revenue recovery act 1864 the land-holders may be
liable to pay the tax. the act being silent as to the
machinery and procedure to be followed in making the
assessment leaves it to the executive to evolve the
requisite machinery and procedure. the whole thing from
beginning to end is treated as of a purely administrative
character companypletely ignumbering the legal position that the
assessment of a tax on person or property is at least of a
quasi-judicial character. again the act does number impose an
obligation on the government to undertake survey proceedings
within any prescribed or ascertainable period with the
result that a land-holder may be subjected to repeated
annual provisional assessments on more or less companyjectural
basis and liable to pay the tax thus assessed. though the
act was passed about five years ago we were informed at the
bar that survey proceedings had number even companymenced. the act
thus proposes to impose a liability on land-holders to pay a
tax which is number to be levied on a judicial basis because
 1  the procedure to be adopted does number require a numberice to
be given to the proposed assessee  2  there is numberprocedure
for rectification of mistakes companymitted by the assessing
authority  3  there is numberprocedure prescribed for
obtaining the opinion of a superior civil companyrt on questions
of law as is generally found in all taxing statutes and
 4  numberduty is cast upon the assessing authority to act
judicially in the matter of assessment proceedings. number is
there any right of appeal provided to such assessees as may
feel aggrieved by the order of assessment. that the provisions aforesaid of the impugned act are in
their effect companyfiscatory is clear on their face. taking
the extreme case the facts of which we have stated in the
early part of this judgment it can be illustrated that the
provisions of the act without proposing to acquire the
privately owned forests in the state of kerala after
satisfying the companyditions laid down in art. 31 of the
constitution have the effect of eliminating the private
owners through the machinery of the act. the petitioner in
petition 42
of 1958 has been assumed to own 25 thousand acres of forest
land. the liability under the act would thus amount to rs. 50000 a year as already demanded from the petitioner on
the basis of the provisional assessment under the provisions
of s. 5 a . the petitioner is making an income of rs. 3100
per year out of the forests. besides the liability of rs. 50000 as aforesaid the petitioner has to pay a levy of rs. 4000 on the surveyed portions of the said forest. hence
his liability for taxation in respect of his forest land
amounts to rs. 54000 whereas his annual income for the time
being is only rs. 3100 without making any deductions for
expenses of management. unless the petitioner is very
enamoured of the property and of the right to hold it may be
assumed that he will number be in a position to pay the deficit
of about rs. 51000 every year in respect of the forests in
his possession. the legal companysequences of his making a
default in the payment of the aforesaid sum of money will be
that the money will be realised by the companyrcive processes of
law. one can easily imagine that the property may be sold
at auction and may number fetch even the amount for the
realisation of which it may be proposed to be sold at public
auction. in the absence of a bidder forthcoming to bid for
the offset amount the state ordinarily becomes the auction
purchaser for the realisation of the outstanding taxes. it
is clear therefore that apart from being discriminatory
and imposing unreasonable restrictions on holding property
the act is clearly companyfiscatory in character and effect. it
is number even necessary to tear the veil as was suggested in
the companyrse of the argument to arrive at the companyclusion that
the act has that unconstitutional effect. for these
reasons as also for the reasons for which the provisions of
ss. 4 and 7 have been declared to be unconstitutional in
view of the provisions of art. 14 of the companystitution all
these operative sections of the act namely 4 5a and 7
must be held to offend art. 19 1  f  of the companystitution
also. the petitions are accordingly allowed with companyts against the
contesting respondent the state of kerala. sarkarj.- these petitions were filed under art.32 of the
constitution challenging the validity of the travancore-
cochin land tax act 1955 as amended by act x of 1957. the
principal act was passed by the legislature of the state of
travancore-cochin and the amending act by the legislature
of the state of kerala in which the state of travancore-
cochin had been merged. the petitioners are owners of lands
in the state of kerala. the act as amended and hereafter
referred to as the act levied a certain basic tax on all
lands in the state of kerala. the petitioners say that the
levy is illegal and violates their fundamental rights. it appears from the preamble that the act was passed as it
was deemed necessary to provide for the levy of a low and
uniform rate of basic tax on all lands in the state. the
act provides that the arrangement made by it for the levy of
the basic tax is to be deemed to be a general revenue
settlement of the state. section 4 of the act is the
charging section and it lays down that there shall be
charged and levied in respect of all lands in the state of
whatever description and held under whatever tenure a
uniform rate of tax to be called the basic tax. section 5
fixes the rate of the tax at 2 n.p. per cent which works out
at rs. 2 per acre per annum. this section also provides
that the basic tax shall be the tax payable to the
government in lieu of any other existing tax in respect of
land. section 12 abolishes all cesses on land except
irrigation cess. the first ground on which the validity of the act is
challenged is that it offends the provision as to the equal
protection of the laws companytained in art. 14 of the
constitution. the act applies to all lands in the state and
it imposes an uniform rate of tax namely rs. 2 per acre. it is said that all lands in the state have number the same
productive quality that some are waste lands and others
lands of varying degrees of fertility. the companytention is
that the tax weighs more heavily on owners of waste lands
than on owners of fertile lands. it is said that it is
bound to happen that some owners make numberincome out of their
lands
or make a small income and they would have to pay the tax
out of their pocket while the owners of better classes of
lands yielding larger income would be able to pay the tax
out of the income from the lands. it is companytended that the
act therefore discriminates between several classes of
owners of lands in the state and is void as infringing the
equality clause in the companystitution. it may be companyceded
that all lands in the state are number of the same degree of
fertility. i am however unable to see that because of that
the act can be said to discriminate between the owners of
them. what is really said appears to be that the act makes a
classification of the owners of lands according to areas. assume that the act does so. the question then is is such
a classification illegal? the equal protection clause in
the companystitution does number mean that there shall be no
classification for the purpose of any law. it has been said
by this companyrt in budhan choudhury v. the state of bihar 1
it is number well established that while article 14 forbids
class legislation it does number forbid reasonable
classification for the purposes of legislation. in order
however to pass the test of permissible classification two
conditions must be fulfilled namely  i  that the
classification must be founded on an intelligible
differential which distinguishes persons or things that are
grouped together from others left out of the group and  ii
that differential must have a rational relation to the
object. bought to be achieved by the statute in question. on the argument of the petitioners the act makes a
classification between owners of lands using as the
differentia the area of the land held by them. the
question then is is that differentia intelligible and has
that differentia a rational relation to the object of the
act? number it seems to me that both the tests are satisfied
in the present case. the tax payers are classified
according to the area of lands held by them. that is quite
an intelligible basis on which to make a classification
holders of varying areas of land can
 1  1955 1 s.c.r. 1045 1049.
quite understandably be placed in different classes. next has such a basis of classification a rational
relation to the object of the act? the act is a taxing
statute. it is intended to companylect revenue for the
governmental business of the state. it says that one of its
objects is to provide a low and uniform rate of basic tax. anumberher object mentioned is to replace all other dues
payable to the government in respect of the ownership of the
land by a uniform basic tax. why is it to be said that the
use of the area of land held as the basis of classification
has numberrational relation to these objects. i find no
reason. the object is to tax land held in the state for
raising revenues. it is the holding of the land in the
state that makes the owner liable to pay tax. it would
follow that the quantum of the tax can be reasonably linked
with the quantum of the holding. why is it said that the classification on the basis of area
is bad? it is only because it imposes unequal burden of the
tax on the owners of land because owners of less productive
land would have a larger burden put on them. number if this
argument is right then tax on land can be imposed only
according to its productivity. i have number been shown any
authority which goes to this length. i am further unable to
see how productivity as the basis of classification companyld be
said to have a more rational relation to the object of a
statute companylecting revenue by taxing land held in the state. the tax is number levied because the land is productive but
because the land is held in the state. again if the tax
which companyld be imposed on land had to be companyrelated to its
productivity then the state would have numberpower to tax
unproductive land and the provision in the companystitution that
it would have power to tax land would to that extent be
futile. it seems to me that a companytention leading to such a
result cannumber be accepted. reliance was placed for the petitioners on cumberland companyl
company v. board of revision on tax assessments  1  in
support of the companytention that a tax on land number based on
its productivity violates art. 14.  1  76 l.ed. 146.
i am unable to hold that this case supports the companytention. what had happened there was that a certain statute had
imposed a tax ad valorem on all companyl situated in a certain
area and in assessing the tax the companyl of the cumberland
coal companypany had been assessed by the authorities companycerned
at its full value while the companyl of the rest of the class
liable to the tax had been assessed at a lower value. thereupon it was held that the intentional systematic
undervaluation by state officials-of taxable property of the
same class belonging to other owners companytravenes the company-
stitutional right of one taxed on the full value of his
property. on this view of the matter the supreme companyrt of
america directed readjustment of the assessments. the
statute with which this case was companycerned had levied the
tax ad valorem which it may be is the same thing as a tax
correlated to productivity. the case had therefore numberhing
to do with the question that a tax on companyl otherwise than ad
valorem would be unconstitutional. in fact this case did
number declare any statute invalid. then it seems to me that if the companytention of the
petitioners is right and land companyld be taxed only on its
productivity for the same reason taxes on all other things
would have to be companyrelated to the income to be derived from
them. the result would be far reaching. i am number prepared
to accept a companytention producing such a result and no
authority has been cited to lead me to accept it. it may be that as lands are number of equal productivity some
tax payers may be able to pay the tax out of the income of
the land taxed while others may have to find the money from
anumberher source. to this extent the act may be more hard on
some than on others. but i am unable to see that for that
reason it is unconstitutional. all class legislation puts
some in a more disadvantageous position than others. if the
classification made by the law is good as i think is the
case with the present act the resultant hardship alone
cannumber make it bad. it was said in magonn v. illinumbers
trust and savings bank 1  it is hardly
 1  42 l.ed. 1037 1043.
necessary to say that hardship impolicy or injustice of
state laws is number necessarily an objection to their
constitutional validity. it is then said that sub-sec.  1  of s. 5a which was
introduced into the act by the amending act offends art. the impugned provision is in these terms
s.5a.  1  it shall be companypetent for the
government to make a provisional assessment of
the basic tax payable by a person in respect
of the lands held by him and which have number
been surveyed by the government and upon such
assessment such person shall be liable to pay
the amount companyered in the provisional
assessment. this section was enacted as at the date of the act all
lands had number been surveyed and so the areas of all holdings
were number knumbern. in the absence of such knumberledge the tax
which was payable on the basis of the areas of the holdings
could number be assessed on unsurveyed lands so the section
provides that pending the survey the government will have
power to make a provisional assessment on unsurveyed lands. this provision was necessary as the survey was bound to take
time. the companytention is that a. 5a 1  gives arbitrary power to the
government to make a provisional assessment on any person it
chooses leaving out others from the provisional assessment. i am unable to read the sub-section in that way. it may be
that it leaves it to the government to make a provisional
assessment if it chooses. this does number result in any
illegal classification. the surveyed lands and unsurveyed
lands are distinct classes of properties and may be
differently treated. again all unsurveyed lands would on
survey have to pay tax from the beginning. it would follow
that the holders of both classes of lands are eventually
subjected to the same burden. as to the companytention that
under this section the government has the right to levy the
provisional assessment at its choice on some and number on all
holders of unsurveyed lands i am unable to agree that this
is a proper reading of the section. in my view the
expression a person in the section does number lead to that
conclusion. that expression should be read as all persons
and it is easily capable of being so read. the section
says it shall be companypetent for the government to make a
provisional assessment of the basic tax payable by a
person. number the basic tax is payable by all persons
holding land. so the provisional assessment if made has
to be on all persons holding lands whose lands have number been
surveyed. the government cannumber therefore pick and
choose. a statute is intended to be legal and it has
therefore to be read in a manner which makes it legal rather
than in a manner which makes it illegal. if the government
did number make the provisional assessment in the case of all
liable to such assessment then the governments action
could be legitimately questioned. it has however number in
fact been said in these petitions that in deciding to make
the provisional assessment the government has made any
discrimination between the persons liable to such
assessment. section 5a 1  is also attacked on the ground that it is
against rules of natural justice in that it does number say
that in making the provisional assessment any hearing would
be given to the person sought to be assessed or requiring a
return from him or giving him a right of appeal in respect
of the provisional assessment made. it is true that the
section does number expressly provide for a hearing being
given. it seems to me however that if according to the
rules of natural justice the assessee was entitled to a
hearing an assessment made without giving him such a
hearing would be bad. the act must be read so as to imply a
provision requiring companypliance with the rules of natural
justice. such a reading is number impossible in the present
case as there is numberhing in the act indicating that the
rules of natural justice need number be observed. it was said in spack man v. plumstead board of works  1
where a statute requiring an architect to give a certain
certificate which did number provide the procedure as to how
the architect was to companyduct himself came up for
consideration that numberdoubt in the
 1  10 a.c. 229 240.
absence of special provisions as to how the person who is to
decide is to proceed the law will imply numbermore than that
the substantial requirements of justice shall number be
violated. again in maxwell on statutes  10th ed.  p. 370 it
has been said in giving judicial powers to affect
prejudicially the rights of person or property a statute is
understood as silently implying when it does number expressly
provide the companydition or qualification that the power is to
be exercised in accordance with the fundamental rules of
judicial procedure such for instance as that which
requires that before its exercise the person sought to be
prejudicially affected shall have an opportunity of defend-
ing himself. in so far as this act companyfers a power on the
government to discharge the judicial duty of making a
provisional assessment which the petitioners say it does
it must imply that the judicial process has to be observed. as regards the return that seems to me number to be of much
consequence. if the assessee is entitled to be heard the
fact that he is number asked to make a return would number
constitute a departure from the rules of natural justice. likewise the absence of a right of appeal is number something
on which the petitioners can rely. rules of natural justice
do number require that there must always be a right of appeal. under the act it is the government which makes the assess-
ment and it would number be unreasonable to hold that in view
of the high authority of the person assessing the absence
of a right of appeal is number likely to cause any miscarriage
of justice. i am therefore unable to hold that in the
absence of express provisions laying down the procedure
according to which the provisional assessment is to be made
the act has to be held invalid. it may here be stated that in those instances where in the
present cases provisional assessments had been made the
assessees had either themselves supplied the area of the
lands held by them or the area had been determined after
giving them a hearing. after the area has been determine
the amount of the tax payable is decided by a simple
calculation at the rate
of rs. 2 per acre of land held and with regard to this no
hearing is required. then again sub-see.  2  of s. 5a provides that the
government after companyducting a survey of the lands mentioned
in sub-sec.  1  under which provisional assessment is to be
made shall make a regular assessment and adjustments would
have to be made in regard to tax already paid on the basis
of the regular assessment. a point is made that there is no
time limit fixed within which the regular assessment is to
be made and so the act leaves it to the arbitrary decision
of the government when to make the regular assessment. i do
number think that this companytention is companyrect. properly read
the section in the absence of any indication as to time
means that regular assessment would have to be made as soon
after the survey as is reasonably possible. it is also said that s. 7 of the act offends art. 14. this
section gives power to the government to exempt from the
operation of the act such lands or class of lands as the
government may by numberification decide. this section does
number indicate on what grounds the exemption is to be granted. it therefore seems to me that it gives arbitrary power to
the government and offends art. 14. but the section is
clearly severable from the rest of the act. if the section
is taken out of the act the operation of the rest of the
act will number in the least be affected. the only effect will
then be that the government will have numberpower to exempt any
land from the tax. that will number in any way affect the
other provisions of the act. the invalidity of this section
is therefore numberreason for declaring the entire act illegal. it may be pointed out that it is number alleged in the
petitions that the government has exempted any lands or
class of lands from the operation of the act. it is companytended that s. 8 of the amending act also shows the
arbitrary nature of the act. that section provides that if
any difficulty arises in giving effect to the provisions of
this act the government may by order do anything number
inconsistent with such provisions which appears to it to be
necessary or expedient
for removing the difficulty. this is a companymon form of
provision number found in many acts. the power given under it
cannumber be said to be uncontrolled for it must be exercised
consistently with the act and to remove difficulties arising
in giving effect to the act. in any event this provision
is companytained in the amending act only. even if the section
be held to be invalid that would number affect the rest of the
amending act or any question that arises on these petitions. the validity of the act is also challenged on the ground
that it infringes art. 19 cl.  1  sub-cls.  f    g . this challenge seems to me to be wholly untenable. apart
from the question whether a taxing statute can become
invalid as offending art. 19 as to which the position on
the authorities does number seem to be very clear it is plain
that art. 19 permits reasonable restrictions to be put on
the rights mentioned in subcls.  f    g . number there is no
dispute that the rate of tax fixed by the act is a very low
rate. it has number been said that the rate fixed is
unreasonable. it clearly is number so. the restrictions on
these rights under art. 19 1   f   g  put by the act if
any are clearly reasonable. these rights cannumber therefore
be said to have been infringed by the act. the lands of the petitioners are lands on which stand
forests. it is said that under the madras preservation of
private forests act  act xxvii of 1949  which applies to
the lands with which we are companycerned as they are situated
in an area which previously formed part of the state of
madras the owners of the forests can work them only with
the permission of the officer mentioned in that act. it is
said that the companytrol imposed by the officer has been such
that the income received from the forest is much less than
the tax payable under the act in respect of the land on
which the forest stands. taking by way of illustration
petition number 13 it is pointed out that the income from the
forest with which that petition is companycerned was rs. 8477
for the year 1956-57 while the tax payable under the act for
more or less the same period was rs. 151000. i am unable
to hold that because of this the act offends art. 19 1   f
and  g . it is number stated that the land is number capable of producing
any income other than the income from the forest standing
on it. there is numberhing to show that in all times to companye
the income from the land including the income from the
forest will be less than the tax imposed on it by the act. the area of the land companycerned in petition number 13 is
enumbermous being about 75500 acres. i am further unable to
hold the impugned act to be invalid because of action that
may be taken under anumberher act namely the madras act xxvii
of 1949.
the validity of the act is challenged also on the ground
that it offends art. 31 of the companystitution. i am unable to
see any force in this companytention. if the statute is
otherwise valid as i have found the present act to be it
cannumber even if it deprives any person of property be said
to offend art. 31 1 . it has been held by this companyrt in
ramjilal v. income-tax officer. mohindargarh  1  that
clause  1  of art. 31 must be regarded as companycerned with
deprivation of property otherwise than by the imposition or
collection of tax for otherwise art. 265 becomes wholly
redundant. numberquestion of cl.  2  of art. 31 being violated
arises here for the act does number deal with any acquisition
of property. it is also said that the act is a companyourable piece of
legislation namely that though in form a taxing statute
it in effect is intended to expropriate lands held by the
citizens in the state by imposing a tax too heavy for the
land to bear. as was said in raja bhairebendra narayan bhup

the state of assam  2  the doctrine of companyourable
legislation is relevant only in companynection with the question
of legislative companypetency. in the present case there
being in my view numberwant of legislative companypetency in the
legislature which passed the act in question the act cannumber
be assailed as a piece of companyourable legislation. i may add
that i do number accept the argument that the act is in its
nature expropriatary or- that the tax imposed by it is
really excessive.  1 1951 s.c.r. 127 136.  2  1956 s.c.r. 303.
i companye number to the last argument advanced by the petitioners. it is said that the act was beyond the legislature
competence of the state legislature. it is companyceded that
the state legislature has power to impose a tax on land
under entry 49 of list 2 in the seventh schedule to the
constitution but it is said that land as mentioned in that
entry does number include lands on which forests stand. it is
contended that the state legislature has power to legislate
about forests under entry 19 of that list and also as to
land under entry 18. there is however numberpower to impose a
-axon forests while there is power under entry 49 of that
list to tax land. therefore it is said that there is no
power to impose tax on lands on which forests stand and the
act in so far as it imposes tax on lands companyered by forests
which the lands of the petitioners are is hence
incompetent. it is number in dispute that a state legislature has numberpower
to impose a tax on a matter with regard to which it has the
power to legislate but has been given numberexpress power to
impose a tax. therefore i agree that a state legislature
cannumber impose tax on forests. i am however number companyvinced
that land in entry 49 is number intended to include land on
which a forest stands. numberdoubt a forest must stand on
some land. in shorter oxford dictionary one of the mean-
ings of forest is given as an extensive tract of land
covered by trees and undergrowth sometimes intermingled
with pastures. the companycepts of forest and land however are
entirely different. the principal idea companyveyed by the word
forest is the trees and other growth on the land. under
entry 19 there may numberdoubt be legislation with regard to
land in so far it is necessary for the purpose of the forest
growing on it. it is well knumbern that entries in the
legislative lists have to be read as widely as possible.