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TMI Blog1970 (4) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... Natarajan, M.K. Ananthakrishnan and H. Sivaraman (in O.P. Nos. 3257 and 3436 of 1969), V. Bhaskaran Nambiyar, C.R. Natarajan and M.K. Ananthakrishnan (in O.P. Nos. 4151 and 4152 of 1969) For Respondents/Defendant: Govt. Pleader JUDGMENT V.P. Gopalan Nambiyar, J. 1. This Writ Appeal and these writ petitions were heard together as they raise the question of vires of the Kerala Land Tax Act (Act 13/1901), hereinafter referred to as the Act, unless the context indicates otherwise. The validity of the demand for tax and the steps taken to recover the tax due under the Act have been challenged also on the merits. 2. The Act has a legislative history. It is not necessary to trace it earlier than to the provisions of the Travancore Cochin Land Tax Act 15/1955. (referred to where necessary as the 1955 Act) applicable in the Travancore-Cochin State. After the re-organisation of States and the formation of the Kerala State, the 1955 Act was made applicable from 1-9-1957 by Act 10/1957 to the Malabar area, newly included to form the Kerala State. A short summary of the main provisions of the said Act would be helpful. The preamble set out that it was necessary to provide for the levy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general terms and the proceedings under the Act could not 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, irrespective of the quality of the land and consequently of its productive capacity. Under the Act, the charge has to be levied, whether or not any income has been derived from the land. The Legislature was so much in earnest about levying and realising the tax that it could not even wait for a regular survey of the lands to be assessed with a view to determining the extent and character of the land." It was ruled that inequality was writ large on the 1955 Act and was inherent in the very provisions of the taxing section. Dealing with the attack based on Article 19(1)(f), the absence of a machinery for making the assessment was stressed. It was observed: "That the provisions aforesaid of the impugned Act are in their effect confiscatory 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 States of Kerala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income shall be paid by the tenant or other person in possession. Clause (3) of Section 5 provides that the basic tax shall be deemed to be public revenue and shall be recoverable under the provisions of the Revenue Recovery Act. Section 6(1) provides that the basic tax shall, subject to the provisions of Section 7, be charged at the rate of ₹ 2/- per acre per annum. Section 6 (2) enacts that where the landholder or other person liable, proves to the satisfaction of the 'prescribed authority' (defined by Section 3) that the gross-income from any land was less than ₹ 10/- per acre per annum the basic tax payable shall be at a rate fixed by that authority calculated at one-fifth of the gross-income of such land. There is a provision to the sub-section that pending fixation of the rate of basic tax under the sub-section, the landholder shall be liable to pay the tax at the normal statutory rate, and on fixation be entitled to a refund of the excess paid or collected, if any. We are leaving out the explanations to the sub-section. Sub-section (3) of the Section provided that an application for fixation of basic tax under Sub-section (2) "shall be in the form speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of basic tax levied under the Act. Section 16 empowers the Government to appoint such officers as they deem necessary for the purpose of this Act, by notification in the gazette. Section 17 bars proceedings against the Government in respect of anything done, or any order passed under the Act. Section 18 contains a provision for rectification of mistakes within a period of four years from the date of the order, by the prescribed authority, the appellate authority or the Revisional Authority, Section perhaps also Article is the rule making section. 4. The provisions of the Act above summarised were challenged again in this Court, and the Act was struck down in Padmanabha Ravi Varma Raja v. Deputy Tahsildar, Chittoor (AIR 1963 Ker 155). One of the infirmities of the Act, pointed out by the learned Judge was that no form had been specified by Government by notification as required by Section 6(3) of the Act and that therefore the petitioners before the court could not exercise the right of making an application under Section 6(2) of the Act, to get the benefit of a concessional assessment. (Vide paragraph 79). The learned Judge noted In paragraph 126 the attack made by the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application fixed by Section 6(3) should be altered so as to give the petitioners atleast four months' time from the date of prescription of the authority and the form. The Bench was assured by the learned Advocate-General that the question would be examined and necessary amendments, if any, effected. It directed that till the question of the liabilities of the petitioners the income from whose properties did not exceed ₹ 10/- a year had been determined after the prescription of the authority and the form for making the application, no attempt would be made to collect the tax under the provisions of the Act. In respect of un-surveyed lands the Bench directed that the provisional orders of assessment will be communicated to the petitioners and only thereafter, the Act would be applied to them. The decision of the Division Bench is reported as Mohammed Kunju v. Tahsildar, Hosdrug 1966 KLT 1022. 7. Although the decision of the Division Bench was rendered on 7th July 1966, the 'prescribed authority' was notified only by a notification dated 28th August 1968 published in the Kerala Gazette dated 24-9-1968. By another notification, -- or rather as part of the same noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded by Article 31-B. No argument that the Act is not covered by Entry 49 of List II of the Seventh Schedule of the Constitution was advanced before us. The argument as to colourable legislation was on the ground that the Act is confiscatory in character and that this was a separate and independent ground to condemn the Act, quite apart from its violation of Articles 14 and 19. Considerable controversy centred round the exact import of the passage from the judgment of the Supreme Court in Thathunni Moopil Nair's case AIR 1961 SC 552, which we have extracted earlier, and the relevant portion of which we have stressed. Support was sought to be gained for the petitioners contention, from the explanation of Thathunni Moopil Nair's case AIR 1961 SC 552, by the Supreme Court itself in the later case of Raja Gazannath Baksh v. State of Uttar Pradesh AIR 1961 SC 1563 paras 21 and 22. It was claimed that the decisions of the Supreme Court in Raj Ramakrishna v. State of Bihar AIR 1963 SC 1667 para 12; in State of Andhra Pradesh v. Nallaraja Reddy AIR 1967 SC 1458 paras. 21 and 22; in State of Kerala v. Haji K. Kutty Naha AIR 1969 SC 378 para 3, in Assistant Commissioner, Urban Land T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slation; and that the tax imposed by the Act was not excessive and the Act was not expropriatory. We thus feel that the decision in Thathunni Moopil Nair's case AIR 1961 SC 552 itself affords sufficient indication as to the reasons for describing the 1955 Act as confiscatory. In Balaji v. The Income Tax Officer AIR 1962 SC 123. Thathunni Moopil Nair's case AIR 1961 SC 552 was referred to as having struck down the 1955 Act as violative only of Articles 14 and 19 of the Constitution. 11. We are of the opinion that the provisions of a taxing statute can be referred to as confiscatory or ex-propriatory only if it offends Articles 19(1)(f) or Article 31(1) and perhaps also Article 14. Kochunni's case AIR 1960 SC 1080 affords an instance of an Act the Madras Marumakkathayam Removal of Doubts Act 32/1955 having been condemned as expropriatory as it violated Article 19(1)(f). The Court expressed itself thus: "The impugned Act is only a legislative device to take the property of one and vest it in another without compensation, and, therefore, on its face stamped with un-reasonableness. In short, the impugned Act is ex-propriatory in character and is directly hit by Article 19( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application of Article 31(2). Similarly, Article 31(5)(b)(i) specifically provides that nothing in Clause (2) shall affect the provisions of any law which the State may hereafter make for the purpose of imposing or levying any tax or penalty. Thus, it is clear that the provisions of Article 31(2) cannot be invoked in impeaching the validity of a taxing statute and so, we come back to the position that a taxing law which does not offend against any of the fundamental rights guaranteed by Part III would justify the imposition of a tax and would meet the requirements of Article 31(1). Therefore, in our opinion the challenge to the validity of the Act on the ground that it contravenes Article 31(2) is not well founded". In view of these considerations, we are unable to subscribe to the proposition that the Act can be condemned as confiscatory on account of the harshness or severity of its provisions, or that these afford a ground to strike down the Act as confiscatory, quite apart from its violation of Articles 14 19 and 31(1). 13. Except feebly, the argument was not attempted before us that the Act deals with acquisition and requisition of property. In view of the pronouncement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for the purpose of the State, was the r eal object of the statute. We therefore repel the ground of attack that the Act is confiscatory in nature. 15. At the same time, we would like to point out what appears to us to be certain glaring anomalies and inconsistencies in the provisions of the Act which seem to call for urgent notice. Under the provisions of the Act as they now stand, even if a landholder derives only an income of ₹ 2/- per acre (or 4.54 rupees per hectare from his tenanted lands he is still liable to pay the entire income as basic tax, leaving nothing for himself. Again, an important change in the incidence of liability to pay tax, brought about by the provisions of the Travancore-Cochin Kanam Tenancy Act 1955, has not been taken note of at all by the Act. Section 3 of the Kanam Tenancy Act declares that the jenmi is not to have any right or interest in any land except the right to receive the 'jenmi karam', thereof, and that the kanam tenant shall be deemed to be the owner of the land subject only to payment of 'jenmikaram'. Under Section 16 (5) of this Act notwithstanding any usage or contract to the contrary the kanam tenant shall be liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of the enactments referred to therein to acquisition of "Estates". The decision cited affords no useful analogy." (Para 23 of the A. I. R. Report) And Mahajan, J., added: "Article 31-B specifically validates certain Acts mentioned in the Schedule despite the provisions of Article 31-A and is not illustrative of Article 31-A but stands independent of it". (Para 159 of the A. I. R. Report). In Jeeieebhoy's case AIR 1965 SC 1096, it was observed: "The words "without prejudice to the generality of the provisions", indicate that the Acts and regulations specified in the Ninth Schedule would have the immunity even if they did not attract Article 31-A of the Constitution, if every Act in the Ninth Schedule would be covered by Article 31-A, this Article would become redundant. Indeed, some of the Acts mentioned therein, namely, Items 14 to 20 and many other Acts added to the Ninth Schedule, do not appear to relate to estates as defined in Article 31-A(2) of the Constitution. We therefore, hold that Article 31-B is not governed by Article 31-A and that Article 31-B Is a constitutional device to place "he specified statutes beyond any attack on the ground that they infringe Part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proviso thereto seems to shift the liability in certain cases, and to a certain extent, to the tenant. Yet the Act makes no provision for investigation and apportionment of liability between the two. As to who is a 'registered holder' is left to be inferred from the resources of the authorities, or according to settled and understood notions of the term. It was contended that the Rules themselves had been struck down in (1963 KLT 15 : AIR 1963 Ker 155) and had not been incorporated in the IX Schedule, nor protected by Article 31-B, so that even if the Act be saved. It was incapable of application and enforcement without the aid of the rules, which had not been validated. It was contended again that the definition of landholder primarily as: "the registered holder for the time being of any land" is vague and unworkable, that there was no way of identifying the registry of land in the Malabar area, and if there was, any attempt to identify the same with reference to the land revenue accounts and registers prepared at the time of the last settlement in Malabar under the provisions of Madras Regulation 26 of 1802 and the Malabar Land Registration Act 1895 (applicable to tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein enunciated and elaborates the machinery for each of them, it is not to be regarded as a 'law' at all for purposes of Article 265. The Act in question does provide for a levy of the tax by Section 5. As the same (subject to insignificant exceptions) is to be at a flat rate of ₹ 4.94 paise per hectare, computation of the tax should be possible by a process of simple arithmetical calculation, and does not call for the making of an order of assessment, as in most taxing statutes, where the assessment depends upon variable factors such as income, turnover, etc. The absence of any provision for filing a return, the issuing an order of assessment or a demand notice, or the affording of any opportunity to dispute liability either with respect to the extent of the land held or the incidence and measure of liability, all seems to take us to the regions of Article 14 or 19(5) of the Constitution, which are foreclosed by reason of Article 31-B. Collection of the tax is provided for by Section 5(3) which attracts the provisions of the Revenue Recovery Act. So that, even if the three stages contemplated in Whitne's case 1926 AC 37 have to be delineated in every taxing sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity being afforded to the landholder to satisfy the authorities as to the particulars of the lands held, or the extent and measure of his liability. But so long as the authority to levy the tax is not indicated the mere delineation of an authority for collection or recovery would be of no avail. For, Article 265 enjoins that no tax shall be levied or collected save by authority of law. In Rayalaseema Corporation's case AIR 1959 Mad 382 it was held that an unauthorised or incompetent levy of sales-tax on works contracts by a State Legislature, which had no authority to do so can be challenged under Article 265, even at the stage of recovery. The decision was affirmed by the Supreme Court, though there was no discussion on this aspect (See 1966 17 STC 505 SC. In these cases there is no authority to assess. Section 5(2) nowhere uses the words "prescribed authority". The same occurs in Section 6(2), and some others, but not in Section 5, although, the definition in Section 3(7) of 'prescribed authority' would indicate it as authority to perform functions under the Act. It is therefore impossible, without legislative sanction, to attribute to the "prescribed author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case (1963 KLT 15 : AIR 1963 Ker 155). The infirmities in the working of the Act were pointed out in Mohammed Kunhi's case 1966 KLT 1022. It is regrettable to find that in spite of these, and despite the few amendments made to the provisions of the Act, the Act still leaves much to be desired. The way in which the provisions of the Act have been administered as disclosed by the facts of some of these cases, only serves to strengthen that impression. In more than one of the cases now before us, the Government Pleader had to very frankly state that he could not, on the merits, support the action for the demand or the recovery of the tax, and to assure us that fresh steps would be taken, quite irrespective of our decision, on the validity of the Act. We have already called attention to the facts in the four writ petitions, relating to the members of the Vengayil tarwad (O. Ps. 2181, 2957, 3257 and 2809 of 1969). In O. P. No. 2013/1969 again, the notice issued does not specify even the patta number or due particulars of the lands in respect of which the petitioner was proceeded against. The demand is for over ₹ 62,000/-. In O. P. 2418/1969 Exts. P1 and P2 notices are on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1932. The lands are part of Sy. No. 338/2A/IA/IF. The total extent of this sub-division is alleged to be over 838 acres. The extent other than in the petitioner's possession is stated to be partly in possession of other landlords and partly of tenants. The petitioner's application for a separate sub-division of his portion of the lands and registration thereof in his name is alleged to have been rejected. The petitioner gifted his rights and the donees are stated to have paid the basic tax with respect to their portions. The petitioner was served with a notice (Ex. P5) for the basic tax in respect of the entire 800 and odd acres, on the ground that the same was jointly registered in his name also. The petitioner has alleged in paragraph 4 of his petition that he had neither knowledge nor notice of the joint registration. 24. The facts disclosed by the cases above set out, are revealing and require the Government's urgent notice and earnest attention. We have been considerably distressed by the way in which the provisions of the Act have been administered, demanding large amounts in lakhs and thousands of rupees from persons who have not even been told of the particu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1966. The decision is reported in 1966 K LT 1022. Their Lordships without expressing an opinion on the validity of the Act directed that the authority to function for the purpose of Section 6 should be prescribed afresh, that the form in which the application is to be made for the purpose of that Section should be specified under the Act and that the time prescribed by Sub-section (3) of Section 6 should be so altered to give the writ petitioners at least four months' time from the date of prescription of the authority and the form. The Land Tax Act 1961 has been amended by Acts 22 of 1968 and 17 of 1969. 29. The learned counsel appearing for the petitioners attacked the validity of the Kerala Land Tax Act, 1961 on two grounds. (1) It is a colourable piece of legislation incapable of being enforced; and (2) It is violative of Article 265 of the Constitution. 30. Both the points can be considered together. In view of the Constitution (Seventeenth Amendment) Act, 1964 the plea against the validity of the Kerala Land Tax Act. 1961 is controlled by Article 31-B of the Constitution - It reads:-- "31-B. Without prejudice to the generality of the provisions contained in Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court in Moopil Nair's case AIR 1961 SC 552 pointed out: "That the provisions aforesaid of the impugned Act are in their effect confiscatory 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 conditions laid down in Article 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 ₹ 50,000/- a year, as already demanded from the petitioner on the basis of the provisional assessment under the provisions of Section 5(A). The petitioner is making an income of ₹ 3,100/- per year out of the forests. Besides, the liability of ₹ 50,000/- as aforesaid, the petitioner has to pay a levy of ₹ 4,000/- of the surveyed portions of the said forest. Hence, his liability for taxation in respect of his forest land amounts to ₹ 54,000/- wherea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een decided by a Constitution Bench of the Supreme Court in AIR 1962 SC 1563. Gajendragadkar, J., speaking on behalf of the Court said: "So for as Article 31(1) is concerned, all that it requires is that no person can be deprived of his property save by authority of law and as we have just observed, the authority of law postulated by Article 31(1) is obviously the authority of a valid law. If the law is not valid because it offends against Article 14 or Article 19 or some other fundamental right guaranteed by Part III, then the imposition of tax levied by it cannot be said to meet the requirements of Article 31(1). But if the act in question is otherwise valid, then the Article 31(1) is complied with." 35. According to the learned Government Pleader the plea that a taxing law is confiscatory being only germane to Article 19(1) cannot be entertained because of Article 31-B of the Constitution and he relied on the decision of the Supreme Court in Kochuni v. States of Madras and Kerala AIR 1960 SC 1080 where the constitutional validity of the Madras Marumakkathayam (Removal of Doubts) Act, 1955 was challenged. It was decided that the Act violated Article 19(1)(f) and was not saved b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be valid under Article 265 of the Constitution, (1) should be within the legislative competence of the Legislature being covered by the legislative entries in Schedule VII of the Constitution; (2) should not be prohibited by any particular provision of the Constitution such as for example, Articles 276(2) 286 etc., and (3) should not be invalid under Article 13 for violation of fundamental rights guaranteed by Part III of the Constitution. The point to be considered is whether the above would exclude the argument that the Kerala Land Tax Act, 1961 is confiscatory in character and therefore a colourable piece of legislation. A plea that a taxing statute is confiscatory really revolves round the question of the competency of the Legislature to pass the impugned law. As was pointed out by Seervai in his book on Constitutional Law of India at page 292. "the cases in which tax laws were held to be subject to Article 19 were really cases where it could be said that under the guise of imposing a tax, the law confiscated property." 38. The content of a valid law under Article 265 is that it should provide for the levy, assessment and collection of tax. The words "levied or collected" i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on? The obvious answer can only be 'no' for the reason that it offends Article 265 and a contention to that effect cannot be barred by Article 31-B. 39. In my view, the position is the same regarding the contention that the Kerala Land Tax Act, 1961 is confiscatory in character and is therefore not a valid law under Article 265. Besides Moopil Nair's case AIR 1961 SC 552 it is necessary to refer to the decisions of the Supreme Court in AIR 1962 SC 1563 and AIR 1963 SC 1667. In the two later cases Moopil Nair's case AIR 1961 SC 552 was taken to be illustrative on the question of a confiscatory nature of a taxing statute as a separate ground of attack. In AIR 1962 SC 1563 it was observed:-- "Though the validity of a taxing statute cannot be challenged merely on the ground that it imposes an unreasonably high burden, it does not follow that a taxing statute cannot be challenged on the ground that it is a colourable piece of legislation and as such, is a fraud on the legislative power conferred on the Legislature in question. If, in fact, it is shown that the Act which purports to be a taxaing Act is a colourable exercise of the legislative power of the Legislature, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To offend Article 19(1)(f) of the Constitution it is enough for the tax law to impose unreasonable restrictions on holding property and it need not be confiscatory in character. On the other hand, a tax law which is confiscatory in character will also offend Article 19(1)(f) of the Constitution. But it does not thereby mean that an attack based on a confiscatory nature of a tax is always based on Articles 19(1)(f) and 31(1) of the Constitution. 40. Even if the position is considered apart from decisions the result will be the same. A plea that a legislation is colourable really affects the competency of the Legislature to pass the law and has nothing to do with Article 13(1) or 13(2) of the Constitution. If it can furnish a ground of attack independent of any of the provisions in Part III of the Constitution Article 31-B cannot come in the way of the petitioners' raising the plea. It is one thing to say that a court cannot embark upon an enquiry whether a tax is reasonable or unreasonable and it is quite a different thing to say that a tax law is a colourable piece of legislation being confiscatory and has been adopted as a device and a cloak to confiscate the property of a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect-matter of the statute or in the method of enacting it transgressed the limits of its constitutional powers. Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression 'colourable legislation' has been applied in certain judicial pronouncements. The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise." In this connection the observations in Bank of N. S. Wales v. Commonwealth (1948) 76 CLR 1 are worth quoting: "Where, however, a Parliament, as in the case of the Commonwealth Parliament, has only limited powers, the declaration of Parliament that a law is enacted for the purpose of securing the stated objects cannot bring an enactment within power if its operative provisions have no real connection with a subject with respect to which the Parliament has power to make laws. Such a declaration is entitled to respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f therefore the real object of the Kerala Land Tax Act, 1961 is entirely different from what it purports to be it will not secure the protection afforded to it by Article 31-B of the Constitution. I do not want to rest my decision on this view. 44. I shall therefore examine whether the Kerala Land Tax Act, 1961 is a colourable legislation. In Moopil Nair's case AIR 1961 SC 552 the confiscatory nature of the Travancore-Cochin Land Tax Act (15 of 1955) as amended by Act 10 of 1957 was inferred from Section 5-A thereof which authorised the Government to make a provisional assessment in respect of land which was not surveyed. Though the Act contemplated regular assessment in respect of such land it did not indicate when such assessment would be made except pointing out that it could be made only after a survey has been made of the land assessed. Under Section 5-A the assessment was at a flat rate irrespective of the quality of the land and its productive capacity. In view of these circumstances, their Lordships observed that the Act ''has thus the merit of brevity as also of simplicity, derived from the fact that a tax is levied at a flat rate, irrespective of the quality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that if a land-holder or other person liable to pay basic tax proves to the satisfaction of the prescribed authority that the gross income from any land was less than twenty-four rupees and seventy paise per hectare per annum, the basic tax on such land shall be fixed at one-fifth of the gross income from such land. But the proviso to Sub-section (2) of Section 6 says that pending the fixation of the rate the landholder shall be liable to pay basic tax at the rate mentioned in Section 6, Sub-section (1) and on fixation of the basic tax under Sub-section (2) the excess tax shall be refunded to the person entitled thereto. Section 7(1) of the Act deals with the provisional assessment of basic tax in the case of unsurveyed lands. It is necessary before making provisional 'assessment for the prescribed authority to call upon the landholder and any other person in possession of the lands by notice to furnish such particulars relating to the lands as the prescribed authority considers necessary within such time to be fixed in the notice. The prescribed authority has to make provisional assessment on the basis of the materials furnished and at the rate specified in Sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rate under Section 6(2) the landholder shall be liable to pay basic tax at the rate mentioned in Section 6(1) of the Act. This is the position even for provisional assessments under Section 7(1) in the case of unsurveyed lands. If on account of the delay to dispose of a proceeding under Section 6(2) by the prescribed authority a landholder is compelled to pay basic tax at the rate mentioned in Section 6(1) of the Act, the result envisaged by their Lordships of the Supreme Court in Moopil Nair's case AIR 1961 SC 552 will follow. There is no knowing when the proceedings under Section 6(2) will be completed. Until it is over a landholder will be compelled to pay at the rate in Section 6(1). This process can go on for a number of years. Further since 1957 by several legislations the right of the landlord to recover rent from his tenants has been affected to a considerable extent. He has been denied the right to get back the property leased from his tenants. The Kerala Stay of Eviction Proceedings Act, 1957 not only prevented the landlord from claiming back the property leased but prevented him from claiming the rent accrued due before the commencement of the Kerala Stay of Evict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... full irrespective of the fact whether he is discharged from recovering the rent. The effect of the enactments referred to will produce the result that a landlord shall be liable for basic tax of a property out of which he received no income. The position is the same when the rent payable is rupees four and ninety-four paise per hectare per annum. The landholder is therefore compelled to pay the basic tax of a property in the possession and enjoyment of another. 46. In respect of jemmies and kanam tenants governed by T. C. Kanam Tenancy Act (Act 24 of 1956) the jenmi's right after the Act is only to collect michavaram and the kanam tenant shall be deemed to be the owner of the land subject only to the rights of the jenmi to collect michavaram. A jenmi under the Kanam Tenancy Act will be a landholder under Section 3(3) of the Kerala Land Tax Act, 1961. The register prepared under the Kanam Tenancy Act is not recognised by Section 4 of the Kerala Land Tax Act. 1961. The obvious result is therefore that a jenmi coming under the Kanom Tenancy Act is liable for land tax in spite of the fact that his interest in the property has been terminated by the Kanom Tenancy Act He has theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whom notices were issued by authorities under the Revenue Recovery Act. But they have no power to deal with the objections. No authority has been prescribed under the Kerala Land Tax Act before whom the objections can be raised. The answer by the Government Pleader was that the recovery of land tax being on the basis of a land register no separate order of assessment is necessary as the amount to be recovered is merely a matter of arithmetical calculation. This is not so when a property is in the possession of a tenant or a person other than the landholder. The names of the tenant or the person in possession will not be shown in the register referred to in Section 3(3) of the Kerala Land Tax Act, 1961. In order that Sub-section (3) of S. 5 can operate, there must be an ascertainment of the liability. 49. It was submitted by the Government Pleader that the authority prescribed under Sections 6(2) and 7(2) can assess the tax payable under Section 5. In view of the definition of prescribed authority by Section 3(7) of the Act, it is not possible to accept the same. The appeal provided for by Section 9 is only against the orders of the prescribed authority under Sub-section (2) of ..... 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