Ramaswami, J. - (1.) In these appeals which have hard together a common question of law arises for determination, namely, whether the Madras Urban Land Tax Act, 1966 (12 of 1966) is constitutionally valid.
(2.) In 1963 the Madras Legislature enacted the Madras Urban Land Tax Act, 1963 which came into force in the city of Madras on the 1st of July, 1963. In the Statement of Objects and Reasons of the 1963 Act it was stated that the Taxation Enquiry Commission and the Planning Commission were suggesting the need for imposing a suitable levy on lands put to non-agricultural use in urban areas. The State Government, after examining the report of the Special Officer, decided to levy a tax on urban land on the basis of market value of the land at the rate of 0.4 per cent on such market value. Section 3 of the Act of 1963 (which will be referred to as the old Act) provided that there shall be levied and collected for every fasli year commencing from the date of the commencement of the Act, a tax on urban land from every owner of urban land at the rate of 0.4 per cent of the average market value of the urban land in a sub-zone as determined under sub-section (2) of Section 6. Section 7 provided for the determination of the highest and lowest market value in a zone. For determining the average market value, the Assistant Commissioner shall have regard to any matters specified in clauses (a) to (e) of sub-section (2) of Section 6, namely; (a) the locality in which the urban land is situated; (b) the predominant use to which the urban land is put, that is to say, industrial commercial or residential; (c) accessibility or proximity to market, dispensary, hospital, railway station, educational institution, or Government offices; (d) availability of civil amenities like water supply, drainage and lighting; and (e) such other matters as may be prescribed. The constitutional validity of Act 34 of 1963 was challenged and in Buckingham and Carnatic Co. Ltd. vs. State of Madras, 1966-2 Mad LJ 172 a Division Bench of the Madras High Court held that the impugned Act fell under Entry 49, List II of Schedule VII to the Constitution and was within the legislative competence of the State Legislature. But the Act was struck down on the ground that Art. 14 of the Constitution was violated, because the charging section of the Act levied the tax on urban land not on the market value of such urban land but on the average value of the lands in the locality known as a sub-zone. The new Act (Act 12 of 1966) was passed by the State Legislature after the decision of the Madras High Court. In the new Act provisions relating to fixation of average market value in the sub-zone were omitted. Instead, Section 5 of the new Act provides that there shall be levied and collected from every year commencing from the date of the commencement of the Act a tax on each urban land from the owner of such urban land at the rate of 0.4 per cent of the market value of such urban land. Section 2 (10) defines "owner" as follows: "Owner" includes- (i) any person (including a mortgagee in possession) for the time being receiving or entitled to receive, whether on his own account or as agent, trustee, guardian, manager or receiver for another person or for any religious or charitable purposes, the rent or profits of the urban land or of the building constructed on the urban land in respect of which the word is used; (ii) any person who is entitled to the kudiwaram in respect of any inam land; but does not include- (a) a shortriamdar; or (b) any person who is entitled to the melwaram in respect of any inam land but in respect of which land any other person is entitled to the kudiwaram. Explanation-For the purposes of Clause (9) and Clause (10) inam land includes lakhiraj tenures of land and shrotriam land. Section 2 (13) defines 'land' to mean any land whch is used or is capable of being used as a building site and includes garden or grounds, if any, appurtenant to a building but does not include any land which is registered as wet in the revenue accounts of the Government and used for the cultivation of wet crops".
(3.) Section 6 states: "For the purposes of this Act, the market value of any urban land shall be estimated to be the price which in the opinion of the Assistant Commissioner, or the Tribunal, as the case may be, such urban land would have fetched or fetch, if sold in the open market on the date of the commencement of this Act". Section 7 provides for the submission of returns by the owner of urbanland and reads: "Every owner of urban land liable to pay urban land tax under this Act shall, within a period, of one month from the date of the publication of the Madras Urban Land Tax Ordinance, 1966 (Madras Ordinance III of 1966) in the Fort St. George Gazette, furnish to the Assistant Commissioner having jurisdiction a return in respect of each urban land containing the following particulars, namely:- (a) name of the owner of the urban land, (b) the extent of the urban land, (c) the name of the division or ward and the street, survey number and sub-division number of the land and other particulars of such urban land, and (d) the amount which in the opinion of the owner is the market value of the urban land". Section 10 deals with the procedure for the determination of the market value by the Assistant Commissioner and states: " (1) Where a return is furnished under Section 7 the Assistant Commissioner shall examine the return and made such enquiry as he deems fit. If the Assistant Commissioner is satisfied that the particulars mentioned therein are correct and complete he shall, by order in writing determine the market value of the urban land and the amount of urban land tax payable in respect of such urban land. (2) (a) where on examination of the return and after the enquiry the Assistant Commissioner is not satisfied that the particulars mentioned therein are correct and complete he shall serve a notice on the owner either to attend in person or at his office on a date to be specified in the notice or to produce or cause to be produced on that date any evidence on which the owner may rely in support of his return. (b) The Assistant Commissioner after hearing such evidence as the owner may produce in pursuance of the notice under Clause (a) and such other evidence as the Assistant Commissioner may require on any specified points shall, by order in writing, determine the market value of the urban land and the amount of urban land tax payable in request of such urban land. (c) Where the owner has failed to attend or produce evidence in pursuance of the notice under Clause (a) the Assistant Commissioner shall, on the basis of the enquiry made under Clause (a), by order in writing determine the market value of the urban land and the amount of urban land tax payable in respect of such urban land". Section 11 enacts: " (1) Where the owner of urban land has failed to furnish the return under Section 7 and the Assistant Commissioner has obtained the necessary information under Section 9 he shall serve a notice on the owner in respect of each urban land specifying therein:- (a) the extent of the urban land, (b) the amount which, in the opinion of the Assistant Commissioner is the correct market value of the urban land, and direct him either to attend in person at his office on a date to be specified in the notice or to produce or cause to be produced on that date any evidence on which the onwer may rely. (2) After hearing such evidence, as the owner may produce and such other evidence as the Assistant Commissioner may require on any specified points, the Assistant Commissioner shall, by order in writing, determine the market value of the urban land and the amount of urban land tax payable in respect of such urban land. (3) Where the owner has failed to attend or to produce evidence in pursuance of the notice under sub-section (1) the Assistant Commissioner shall, on the basis of the information obtained by him under Section 9, by order in writing determine the market value of the urban land and the amount of the urban land tax payable in respect of such urban land". Section 20 provides for an appeal to the Tribunal from the orders of the Assistant Commissioner. " (1) (a) Any assessee objecting to any order passed by the Assistant Commissioner under Section 10 or 11 may appeal to the Tribunal within thirty days from the date of the receipt of the copy of the order. (b) Any person denying his liability to be assessed under this Act may appeal to the Tribunal within thirty days from the date of the receipt of the notice of demand relating to the assessment: Provided that no appeal shall lie under Clause (a) or Clause (b) of this sub-section unless the urban land tax has been paid before the appeal is filed. (2) The Commissioner may, if he objects to any order passed by the Assistant Commissioner under Section 10 or 11, direct the Urban Land Tax Officer concerned to appeal to the Tribunal against such order, and such appeal may be filed within sixty days from the date of the receipt of the copy of the order by the Commissioner. (3) The Tribunal may admit an appeal after the expiry of the period referred to in Clause (a) or Clause (b) of sub-sec. (1) or in sub-section (2), as the case may be, if it is satisfied that there was sufficient cause for not presenting it within that period. (4) An appeal to the Tribunal under this section shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by such fee as may be prescribed. (5) The Tribunal may after giving both parties to the appeal an opportunity of being heard, pass such orders thereon, as it thinks fit and shall communicate any such orders to the assessee and to the Commissioner in such manner as may be prescribed". Section 30 confers powers of revision in the Board of Revenue and is to the following effect: " (1) The Board of Revenue may, either on its own motion or on application made by the assessee in this behalf, call for and examine the records of any proceeding under this Act (not being a proceeding in respect of which an appeal lies to the Tribunal under Section 20) to satisfy itself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein and if, in any case, it appears to the Board of Revenue that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, it may pass orders accordingly: Provided that the Board of Revenue shall not pass any order under this sub-section in any case, where the decision or order is sought to be revised by the Board of Revenue on its own motion, if such decision or order had been made more than three years previously: Provided further that the Board of Revenue shall not pass any order under this section prejudicial to any party unless he has had a reasonable opportunity of making his representations". Section 33 states: " (1) The Tribunal, the Board of Revenue, the Commissioner, the Assistant Commissioner, or the Urban Land Tax Officer or any other officer empowered under this Act shall, for the purposes of this Act have the same powers as are vested in a Court under the Code of Civil Procedure, 1908 (Central Act V of 1908), when trying a suit in respect of the following matters, namely:- (a) enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavit; (d) issuing commissions for the examination of witnesses; and any proceeding before the Tribunal the Board of Revenue, the Commissioner, the Assistant Commissioner, the Urban Land Tax Officer or any other officer empowered under this Act shall be deemed to be a judicial proceeding within the meaning of Ss. 193 and 228 and for the purposes of Section 196, of the Indian Penal Code (Central Act XLV of 1860). (2) In any case in which an order of assessment is passed ex parte under this Act, the provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908), shall apply in relation to such order as it applies in relation to a decree passed ex parte by a Court". ;