1. The levy of local cess under section 115 of the Act is valid only on the land revenue or kist, and not on the dead rent or royalty payable under a mining lease. 2. The levy of local cess surcharge under section 116 of the Act is illegal in the absence of the prescription of the maximum as contemplated by the section.

Writ Petition No. 852 of 1969 challenges the validity of and the levy of local cess under section 115 of she Madras Panchayats Act (XXXV of 1958) (hereinafter referred to as the Act), while Writ Petition No. 853 of 1969, filed by the same petitioner challenges the levy of local cess surcharge under section 116 of the same Act. The petitioner is a ryotwari pattadar of an extent of 259.73 acres of land with reference to which the petitioner has obtained a lease or licence from the Government for mining. Similarly, in respect of another extent of land of which, admittedly the Government is the owner by different lease deeds entered into between the Government and the petitioner, the petitioner has obtained the right to mine gypsum. The petitioner was called upon to pay local cess under section 115 of the Act in respect of the lands covered by the leases granted by the Government relating to the lands of which the petitioner is a pattadar as well as the lands of which the Government is the owner, and to pay local cess surcharge under section 116 of the Act in respect of the same lands. Mr. R. Ramamurthi Iyer, the learned Counsel for the petitioner in these writ petitions, in the first place, sought to contend that section 115 of the Act, along with the Explanation is ultra vires and unconstitutional. But this argument is not open to the petitioner in view of the judgment of this Court dated 13th October, 1969, in Writ Appeal No. 464 of 1967, taking the view that the cess levied under section 115 of the Act is a cess on the land itself to be measured in terms of the land revenue, lease amount, royalty or other sum mentioned whichever may be applicable. In view of the judgment of this Court, the learned Counsel sought to argue that the quantum of the levy made under section 115 of the Act is illegal. For this purpose, it is necessary to extract section 115 (1) of the Act, along with the Explanation thereto, as amended by the Madras Act (XVIII of 1964).

“Section 115 (1).- There shall be levied in every Panchayat Development Block, a local cess at the rate of 45 paise on every rupee of land revenue payable to the Government in respect of any land for every fasli.

Explanation.- In this section and in section 116, ‘Land Revenue’ means public revenue due on land and include water-cess payable to the Government for water supplied or used for the irrigation of land, royalty, lease amount or other sum payable to the Government in respect of land held direct from the Government on lease or licence, but does not include any other cess or the surcharge payable under section 116, provided that land revenue remitted shall not be deemed to be land revenue payable for the purpose of this section.”

2. Under the main part of sub-section (1), access at the rate of 45 paise of every rupee of land revenue payable to the Government can be levied in respect of any land for every fasli. For this purpose it is necessary to separate the land of which the petitioner is pattadar from the land of which the Government is the owner. As far as the land of which the petitioner is the pattadar is concerned it is clear that the cess is payable only on the land revenue and in this context land revenue is simply the amount which the petitioner pays by way of kist to the Government. The case of the petitioner is that the cess has been calculated at the rate of 45 paise per rupee not on the land revenue payable by the petitioner to the Government, but on the dead rent or royalty payable to the Government under the mining lease and that it is illegal. It is admitted by the learned Assistant Government Pleader that the cess has been calculated at the rate of 45 paise per rupee on the dead rent of royalty and not merely on the kist payable by the petitioner to the Government. I am of the view that the main part of the sub-section will apply to the case where the petitioner happens to he the ryotwari pattadar, and with reference to such a person the cess is payable onl