STATE OF KERALA v. HAJI K. HAJJ K. KUTIY NAHA ETC & Ors.

Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendo/kar & Ors. [1959] S.C.R. 279, referred to. .. - 646 Sl,!PREME COURT REPORTS [ 1969] I S.C.R. New Ma11ek Chowk Spinning & W'·aving Mills Co. Ltd. v. M1111icipa/ A Corporation of the City of Alrmedabad, (1967] 2 S.C.R. 679, applied. [Question whether imposition of a tax only on buiJd:ngs constructed after the coming into force of the Act and exempting build:ngs complcll!d before that date would violate Art. 14 of left open.] [650 AJ the Constitution CIVIL ApPJoLLATE JURISDICTION : Civil Appeals Nos. 1052, 1054 to 1058, 1060 to 1087, 1089 to 1095, 1097, 1100 to 1112, 1114 to 1118, 1120 to 1129, 1131and1133 to 1145 of 1968. B Appeals by special leave from the judgment and order, dated July 7, 1966 of the Kerala High Court in Writ Appeals Nos. 35, 38 to 40, 43. 44, 46, 47, 57, 59 60 to 69, 71 to 77, 79 to 82, c 84 to 86, 88, 89, 92 to 95, 97, 99, 102, 184 to 186, 190 to 195, 202, 217, 218, 222 to 224, 226, 227, 231 to 240, 242, 245, 247, 249 to 252, 257, 273, 274, 305 to 307, and 312 of 1965 respec tively and Civil Appeals Nos. 1146 and 1147 of 1968. 0 E Appeals by special leave from the judgment and order. dated September 19, 1966 of the Kerala High Court in Writ Appeals Nos. 42 and 246 of 1965. B. R. L. Iyengar and A.G. P11di.1:5ery, for the appellant (in all .the appeals). Sardar Bahadur. Vishnu Bahadur and Yougindra Khushalani, for the respondent (in C.As. Nos. 1080 and 113 i o[ 1968). fl. R. Gokhale and J. B. Dadachanji, for the respondent (in C.As. Nos. I 094 and 1144 of 1968). A. V. V. Nair, for the respondents Nos. 2 and 3 (in C.As. Nos. 1053, 1112 and 1139 of 1968). U/y Thomas, for the respondent (in C.As. Nos. 1056, 1087 and 1128 of 1968). A. Sreedharan Nambiar, for the respondent (in C.As. Nos. 1067, 1075, 1091and1136 of 1968). M. C. Chagla, J. B. Dadac/zanji and Thomas Val/apally for intervener. (in C. A. No. 1144 of 1968). G The Judgment of the Court was delivered by Shah, J, This group of appeals arises out of an order the Kerala passed by the High Court of Kerala holding that Buildings Tax Act 19 of 1961 fa ultra vires the Legislature in that it infringes the equality clause of the Constitution. The State of H Kerala has appealed against the decision with special leave granred by this Court. KERALA V. HAJI K. KUTTY (Shah, J.) 647 A B c D E The material provisions of the Kerala Buildings Act, 1961, may be briefly set out. The Act extends to the whole of the State of Kerala· s. 1(2), and shall be deemed to have come into force with effect from March 2, 1961; s. 1 ( 3). An "asse.ssee" is defined by s. 2(b) as meaning a person by whom buildin~ tax or any other sum of money is payable under the. Act and mcludes every person in respect of whom any proceedmg under the Act has been taken for the assessment of building tax payable by him. Section 2(d) defines "building" as meaning a house, out-house, garage or any other structure or part thereof whether of masonry, bricks, wood, metal, or other material, but does not include any portable shelter or any shed const:J;ucted principally of mud, bamboos, leaves, grass or thatch or a latrine which is not attached to the main structure. "Floorage" is defined by s. 2 ( e) as mean ing the area included in the floor of a building, and where a building has more than one floor of a building, the aggregate area included in all the floors together. By s. 3 buildings owned by the State Government, the Central Government or any local autho rity and buildings used principally for religious, charitable or edu cational purposes or as factories or workshops are exempt fro_m payment of tax under the Act. By s. 4 it is provided that there shall be a charge to tax in respect of every building the construc tion of which is completed on or after March 2, 1961, and which has a floor area of one thousand square feet or more, and that the building tax shall be payable by the owner of the building. The Schedule to the Act sets out the rates of building tax. Buildings having a total floor area of less than 1,000 sq. ft. are not liable to pay tax. F The Act, on a bare perusal, discloses some singular provisions. The liability to tax in respect of buildings having total floor area between 1,000 to 2,000 sq. ft. varies between Rs. 100 to Rs. 200· for buildings with a floor area between 2,000 to 4,000 sq. ft. varie; between Rs. 400 to Rs. 800; for buildings having total floor area between 4,000 to 8,000 sq. ft. it varies between Rs. 1,200 to Rs. 2,400; for buildings with total floor area of 8,000 to 12 000 sq .. ft: it varie~ between Rs. 3,200 to Rs. 4,800; and in resp~t of ,buildmgs having total floor area exceeding 12,000 sq. ft. a rate G of 50 ~!'.· per sq. foot i.e., Rs. 6,000 or more per annum. For deterrommg the quantum of tax the sole test is the area of the floor of the building. The Act applies to the entire State of Kerala, and whether the building is situate in a large industrial town or in an insignificant village, the rate of tax is d"termined by the floor area : it does not depend upon the purpose for which the building is used, the nature of the structure, the town and locality in which the building is situate, the economic rent which may be obtained from the building, the cost of the buildincr and other related circumstances which may appropriately be take~ into H 648 SUPREME COURT REPORTS (1969) I 5.C.R. consideration in any rational system of taxation of building. Under the Seventh Schedule List II Entry 49, the State Legislature has the power to legislate for levying taxes on lands and buildings. But that power cannot be used arbitrarily and in a manner incon sistent with the fundamental rights guaranteed to the people under the Constitution. No tax may be levied or collected under our constitutional set-up except by authority of law : law must not only be within the legislative competence of the State, but it must also not be inconsistent with any provision o[ the Constitution. It has been frequently said by this Court that the validity of a taxing statute is open to question on the ground In K. T. Moopil Nair v. that it infringes fundamental rights. Stale oj Kera/a,(') Sinha, C.J., delivering the judgment of the majority observed at p. 89 : A B c law, to say, a collected by limitation on the levy or collect a a mere executive "Article 265 imposes a taxing power of the State in so far as it provides thaL the State shall not tax, except by autho tax cannot be rity of levied 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 competence of the Legislature imposing a tax and autho rising the collection thereof and, secondly, the tax must be subject to the conditions laid down in Art. 13 of the Constitution. One of such conditions envisaged by Art. 13 (2) is that the Legislature shall not make any law which takes away or abridges the equality clause in Art. 14, which enjoins the State not to deny to any person equality before the law or the equal protection It cannot be dispu1cd that of the laws of the country. if the Act infringes the provisions of Art. 14 of 1he Constitution. it must be struck down as unconstitutional." Similar observations were made in Khandige Sham Bhat v. Agric11/- 1ural Income-tax Officer.(') The principles which have been expounded by this Court in determining whether there has heen denial of equal protection Clf the laws are also well settled : see Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar and Ors.('). It is true that in the application of the principles, the Courts, in view of the inherent complexity of fiscal legislation admit a larger discretion to the Legislature in the matter of classification. so long as it adheres to the fundamental principles underlying the doctrine of equality. ·The power of the Legislature to classify is, it is said, of ''wide ... - (!) [1961) J S.C.R. 77. (3) [1959] S.C.R. 279 (~) [1%JJ 3 S.C.R. 809. D E F G H ·' ' \ KERALA V. HAJI K. KUTTY (Shah, J.) 649 A range and flexibility" so that it can adjust its system of taxatio~ in all proper and reasonable ways Khand1ge Sham Bhat v. Agrz cultuml Income-tax Officer('). B c D E F G H But in enacting the Kerala Building Tali: Act, no attempt at any rational classification is made by the Le_gislature .. As ~lrea~y observed, the Legislature has not taken mto consideratton m . imposing tax the class to which a. bu~ding belon~s, t~e. n~ture .of construction, the purpose for which it is used, its situation, .1ts capacity for profitable user and other relevant circumstances which have a bearing on matters of taxation. ~ey have ll; dopted mere!~ the floor area of the building as the basis of tax irrespective of all other considerations. Where objects, persons or transactions essentially dissinlilar are treated by the inlposition of a uniform tax, discrimination may result, for, in our view, refusal to make a rational classification may itself in some cases operate as denial of equality. This Court in a recent judgment has decided that the levy of tax in exercise of the power under Entry 49 List II of the Seventh Schedule in respect of factory buildings in a municipal area based on floor area was illegal : New Manek Chowk Spin ning and Weaving Mills Co. Ltd. v. Municipal Corporation of the ). The Court held in that case that the Ci1y of Ahmedabad( 2 method of adopting a flat rate for a floor area for determining the annual value adopted by the Corporation of Ahmedabad in exer cise of the powers conferred upon it by the Bombay Provincial Municipal Corporation Act 49 of 1949 was against the provisions of the Act and the Rules made thereunder as well as all recog nized principles of valuation for the purpose of taxation. If levy of tax in a municipal district based on floor area in respect of a factory building violates Art. 14 of the Constitution when the tax is sought to be levied by the Municipal Corporation, we see no reason to uphold the tax imposed under the impugned Act when the State, in exercise of legislative authority conferred by Entry 49 List II Sch. VII, imposes liability to tax buildings solely on floor area. The vice of the Act in the present case is more pronounced than it was in New Manek Chowk Spinning & Weav ing Mills case( 2 In that case the Rules under which the tax was sought to be levied on the basis of floor area were restricted the Corporation i? !heir operation to factory buildings within lnmts of Ahmedabad, whereas Act 19 of 1961 which is chal- lenged in the present case applies to the whole State of Kerala in respect of buildings completed on or after March 2, 1961, what ever may be the nature or class of the building, the use to which it is put, materials used in its construction and the extent of pro fitable i;ser to which the building may be put, its. cost and its economic rental. It is unnecessary in the circumstances to con- sider whether imposition of a tax only on buildings constructed ). (1) [1963] 3 S.C.R. 809. (2) [1967] 2 S.C.R. 679. __ ,_, .. 650 SUPREME COURT REPORTS [1969] J SCR, after March 2, 1961, and exempting buildings complclcd befor~ that dale may not violate Art, 14 of the Constituiton, A The High Court was, in our judgment, right in holding cha: the charging section of the Act is violative of the equality clause of the Constitution, The appeals therefore fail and arc dismissed with costs. B Parties appearing in different groups of appeals through the same Advocate in this Court will be entitled to one !tearing fee, G.C. A ppea/s dismissed, I