Case: First Additional Wealth Tax Officer, Kozhikode, and Others Vs. Khan Bahadur Mammed Keyi and Others

1. These five appeals have come before this court on certificates granted by the High Court of Kerala. They raise common question of law and will be dealt with together. One of the appeals (No. 262) arises out of a writ petition by the karanavan of a Muslim Mopla tarwad in the District of North Malabar, governed by the Marumakkathayam law. The other four appeals arise out of writ petitions by karanavans of Hindu undivided families in Malabar and Cochin. These five writ petitions challenged the constitutionality of theAct, No. 27 of 1957 (hereinafter referred to as the Act) and prayed for the quashing of theassessments made in these cases. There are certain differences of facts in the five petitions, but we do not propose to refer to those differences as we propose to confine ourselves to the attack on the constitutionality of the Act The main contentions of the respondents before the High Court with respect to the constitutionality of the Act were) that Parliament was not competent to include Hindu undivided families in the charging section 3 of the Act in view of the provision in Entry 86 of List I of the Seventh Schedule to the Constitution and (2) that the provision relating to Hindu undivided families was discriminatory and denied equal protection of laws and was, therefore, hit by article 14 of the Constitution2. The High Court held on the first question that Parliament was competent to include Hindu undivided families in section 3 of the Act. On the second question, the High Court held that though the contention under article 14 had not been taken in the petitions before it in the form in which it was presented at the time of argument, it was open to it to go into the question in view of certain adjournments granted to the parties in this connection and also in view of the fact that the matter had been fully argued before it by learned counsel for the parties. Eventually the High Court said that the issue as to discrimination had been fully argued on both sides and the department had sufficient opportunity to meet the objection under article 14 and it, therefore, finally proceeded to consider the same. The main contention under this head before the High Court was that the Act though it subjected Hindu undivided families to a tax under section 3 thereof made no provision for Muslim Mopla tarwads which were also undivided families and, therefore, there was discrimination so far as undivided families were concerned. In that connection the contention of the appellant before the High Court was that muslim Mopla tarwads were so insignificant in number that their existence could be ignored and the practice of the appellant had been to assess such tarwads under the Act as individuals.3. The High Court however was not impressed by this contention on behalf of the appellant and said that it behoved the department to furnish some information to sustain the contention that Muslim Mopla tarwads were so insignificant in number as to be negligible and that had not been done. The High Court, therefore, finally held that there was discrimination as between Hindu undivided families and Muslim Mopla tarwads which were also undivided families and, therefore, the charging section in so far as it governed undivided families was hit by article 14

Reasoning:
We have come to the conclusion that these cases must be remanded to the High Court for further consideration after giving parties an opportunity to place full facts in connection with the application of article 14 before it. The High Court itself pointed out that there was no averment on behalf of the writ petitioners before the High Court (now respondents before us) on the lines on which the argument finally developed at the bearing. It is true that some adjournments were granted by the High Court in this connection ; but we are not satisfied that the case for the application or otherwise of article 14 was properly put before the High Court by either side. We should like also to point out that the High Court seemed to take the view that it was for the State to show that article 14 was not applicable. This is not correct, for it is for the party who comes forward with the allegation that equality before the law or the equal protection of the laws is being denied to him to adduce facts to prove such denial. It would therefore, have been open to the High Court, in the absence of proper allegation supported by proper facts on the part of the respondents, to dismiss their writ petitions. This court has repeatedly pointed out that the issue about the constitutional validity of any statutory provision cannot be effectivley or satisfactorily determined unless the petitioner sets out specific pleas and adduces satisfactory evidence in support of them. But we feel in the interest of justice that it is necessary that an opportunity should be given to the respondents to put forward their case under article 14 properly before the High Court supported by facts and figures.4. We are also of opinion that after such facts and figures are put forward by the respondents before the High Court, an opportunity should be given to the State to meet the facts and figures and thereafter the High Court should proceed to consider whether there has been denial of equality before the law or of equal protection of the laws so far as undivided families are concerned. In this view of the matter, it is unnecessary at this stage for us to consider whether the view of the High Court on the first question relating to legislative competence is or is not correct. We, therefore, allow the appeals, set aside the orders of the High Court and remand the cases to the High Court to consider whether article 14 applies in these cases or not after giving parties opportunity of putting forward their respective cases before it, supported by facts and figures. In the circumstances we order the parties to bear their own costs in this court.