GOPALAN NAMBIYAR, J. :-(For Madhavan Nair, J. and himself). This Writ Appeal and these writ petitions were heard together as they raise the question of vires of the Kerala Land Tax Act (Act 13/1961), 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 TravancoreCochin 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 a low and uniform rate of basic tax on all lands in the State. Basic tax was defined as a tax imposed under the provisions of the Act. By Section 3, the arrangement made under the Act for the levy of basic tax was to be deemed to be a general revenue settlement. Section 4, the charging section, indicated that there will be charged and levied in respect of all lands in the State a uniform rate of tax called the basic tax. Section 5 laid down the rate of the tax as Rs. 2/- per acre. Section 6 enacted that any stipulation in any contract or agreement or lease or other transaction to pay the land revenue assessment of any land shall be construed as a stipulation for payment of the amount of basic tax as charged and levied under the Act. It is unnecessary to notice the remaining sections.

By Act 10/1957. Section 5-A was introduced which was as follows :

"S. 5-A, Provisional assessment of basic tax in the case of unsurveyed lands-(1) It shall be competent 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 not been surveyed by the Government and upon such assessment such persons shall be liable to pay the amount covered in the provisional assessment.

(2) The Government after conducting 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."

The 1955 Act was struck down by the Supreme Court in Kunnathat Thathunni Moopil Nair v. State of Kerala, AIR 1961 SC 552. The Supreme Court noticed that unlike other taxing statutes, the 1955 Act did not make any provision for the issue of notice to the assessee, nor any provision for submission of return. It did not make any provision for appeals. Whereas Section 5-A authorised a provisional assessment, not even the time-limit for making a regular assessment was indicated, beyond the indefinite future after completion of survey. Observed the Supreme Court;

"The Act could not have been cast in more 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 ineq