civil appellate jurisdiction c.a. number 223 of 1970.
appeal from the judgment and order dated march 27 1969 of
the andhra pradesh high companyrt in writ petition number 998 of
1969.
and
original jurisdiction writ petition number 251 of 197 1.
under article 32 of the companystitution of india for the
enforcement of the fundamental rights. m. singhvi krovidi narasimhan s. k. dhingra and a.
subba rao for the appellants  in c.a. number 223 of 1970 . r. chaudhuri and k. rajendra chowdhary for the peti-
tioners  in w.p. number 251 of 1971 . ram reddy and p. parameswara rao for respondents  in
both the matters . the judgment of the companyrt was delivered by
khanna j. the vires of the andhra pradesh  krishna and
godavari delta area  drainage cess act 1968  act number 11 of
1968  hereinafter referred to as the act has been
challenged in civil appeal number 223 of 1970 as well as in
writ petition number 25 1 of 1971. civil appeal number 223 has
been filed on a certificate granted by the andhra pradesh
high companyrt against the judgment of that companyrt whereby
petition under article 226 of the companystitution of india
presented on behalf of the eight appellants to assail the
vires of the act was dismissed at the stage of admission. writ petition number 251 of 1971 has been filed by 434
petitioners. the respondents in the appeal are the state of
andhra pradesh and the companylector of west godavari district
while those in the writ petition are the state of andhra
pradesh and the companylector of krishna district. the appellants in the civil appeal belong to different
taluks of the west godavari district and own extensive areas
of land in
10-l736ssupcl/72
that district. as such they are liable to pay land
revenue. petitioners number. 1 to 38 in the writ petition are
residents of tenneru within the area of vijayawada taluk. they own about 500 acres of land in and around that village. the rest of the petitioners are residents of different
villages in krishna district and own an area of about 4000
acres in that district. as the petition under article 226 of the companystitution of
india which is the subject of civil appeal was dismissed at
the stage of admission numberaffidavit on behalf of the
respondents was filed in the high companyrt. the respondents
were companysequently permitted to file an affidavit in this
court. affidavit of shri d. venkatdri assistant secretary
government of andhra pradesh was thereafter filed on behalf
of the respondents. a more detailed supplementary affidavit
of shri venkatdri has also been filed on behalf of the
respondents and the same officer has filed his affidavit in
opposition to the petition under article 32 of the
constitution. before dealing with the different provisions of the act and
the companytentions advanced it would be apposite to reproduce
the statement of objects and reasons of the bill for the
purpose of understanding the historical background and the
antecedent state of affairs leading up to the impugned
legislation. the statement of objects and reasons reads as
under
the companystal districts of east godavari west
godavari krishna and guntur are being
subjected to floods every year which cause
immense damage to crops as well as private
properties besides disrupting rail and road
communications for companysiderable periods in the
year. the intensity of the floods which
occurred in 1953 1962 and 1964 have high
lighted the need for immediate action for
solving this recurring problem and to suggest
remedial measures for mitigating or avoiding
in future the damage to crops and property in
the area on account of similar floods. the
committee after having an extensive tour in
the area made some recommendations for
improving all the drains-in the delta area of
the krishna and godavari rivers and also
formation of flood moderating reservoirs
across budameru yerrakalva. tammileru etc. the total companyt of all the drain improvement
schemes as well as the flood moderating
reservoirs as recommended by the expert
committee is estimated roughly to be rs. 27
crores. it is companysidered that it might be
necessary to undertake in the delta area number
only the schemes and works suggested by the
expert companymittee but also some other schemes
and works for the purpose in view. the actual
cost of all the schemes and works required to
be undertaken in the
delta area is likely to exceed the companyt as
estimated above. in view of the present
difficult ways and means position it is number
possible to provide the necessary funds
required for the purpose either under the
flood companytrol sector or under the irrigation
sector of the state. it is therefore
considered necessary to levy a drainage cess
on all the lands companyprised within each of the
divisions in the delta of the krishna and
godavari rivers for a period of six years at
a rate number exceeding rupees ten per acre per
annum in respect of lands in the godavari
eastern deltaic division and godavari central
deltaic division rupees twenty-five per acre
per annum in respect of lands in the division
comprising the godavari western deltaic
division and the krishna eastern and krishna
central deltaic divisions and at rupees
fifteen per acre per annum in respect of lands
in the krishna western deltaic division. it is also proposed to companystitute the proceeds
of the drainage cess into a separate fund and
to establish a board to administer the said
fund and to apply the proceeds of the
drainagecess derived in a division towards
meeting the companyt of drainage schemes
undertaken in that division. this bill is intended to give effect to the
above objects. the act came into force on 20th december 1968. it applies
to all the lands companyprised within the delta areas of krishna
and godavari rivers in the state of andhra pradesh. according to the preamble of the act it is an act to
provide for the levy and companylection of drainage cess on all
lands companyprised within the delta area of the krishna and
godavari rivers in the state of andhra pradesh for the
purpose of raising funds to meet the expenses incurred on
drainage schemes undertaken in the said delta area and for
matters companynected therewith. section 2 of the act companytains
various definitions board has been defined in clause  a
to mean the krishna and godavari delta drainage board estab-
lished under section 7 of the act. delta area according to
clause  c  means the area companyprising the lands in the
deltas of krishna and godavari rivers irrigated whether by
flow or lift under the network of canals taking off from
the barrage near vijayawada on the krishna river and the
anicut near dowlaishwaram on the godavari river. division
has been defined in clause  d  to mean any of the following
divisions in the delta area namely

the godavari eastern delta
9 04

the godavari central delta

the area companyprising the godavari western delta
the krishna eastern delta and the krishna central delta

the krishna western delta
according to clause  e  drainage cess means the tax
leviable and companylectable under section 3. clause  f  defines
drainage scheme as under
 f  drainage scheme means any scheme for
the improvement of drains in the delta area
and for the formation of flood moderating
reservoirs in the upland areas across the
rivers and streams flowing into the delta area
and includes any scheme relating to the
following works in the delta area which are
owned or companytrolled by the government or
constructed or maintained by them and number
handed over to any person -

channels whether natural or artificial
for the discharge of waste or surplus water
and escape channels from an irrigation work
together with dams embankments weirs
sluices groynes pumping sets and other works
connected with or auxilliary to all such
channels

all works for the protection of lands
from floods or from erosion
explanation for the purpose of this clause
any part or stage of a scheme shall be deemed
to be a scheme. government according to clause  g  means the state govern-
ment while. land has been defined in clause  h  to mean
wet or dry land. clause  j  defines owner in relation to
any land as meaning the person liable to pay the land
revenue due on the land and includes a ryot having a
permanent right of occupancy within the meaning of the
andhra pradesh  andhra area  estates land act 1908.
according to the explanation to that clause the expression
person liable to pay the public revenue in relation to any
land in respect of which numberpublic revenue is payable means
the person who would have been liable to pay public revenue
had it been payable on such land. section 3 of the act deals with levy and companylection of
drainage cess. according to sub-section  1  of the section
there shall be levied and companylected by the government for a
period of six years from the date of the companymencement of the
act as a drainage cess on every land in the delta area
comprised within a division specified in companyumn  2  of the
schedule for the purposes of this act in that division a
tax at such rate per acre per annum number exceeding the rate
specified in the companyresponding entry in companyumn  3
thereof as the government may by numberification specify in
respect of that division. according to sub-section  3  of
that section the drainage cess leviable under the section
on any land shall be payable by the owner of such land while
according to subsection  2  numberhing in sub-section  1
shall prevent the government from levying and companylecting at
any time after the expiration of the period of six years the
drainage cess or any arrears pertaining thereto which is
leviable or companylectable during the said period of six years. the schedule referred to in the section fixes the maximum
rate at which drainage cess may be companylected and according
to it the maximum rate shall be rs. 10 per acre per annum
for the godavari eastern delta and the godavari central
delta rs. 20 per acre per annum for the area companyprising the
godavari western delta krishna eastern delta and the
krishna central dealta and rs. 15 per acre per annum for the
krishna western delta. section 4 of the act gives the procedure to be followed be-
fore levying drainage cess. according to this section the
collector before levying the cess in respect of any land
shall cause a numberice to be served on the owner of the land
requiring him to make payment of the amount of the drainage
cess within 45 days of the service of the numberice. section 5
gives a right of appeal to the person aggrieved by the levy
of the drainage cess while section 6 makes provision for
order in revision by the government. section 7 provides for
the establishment of the krishna and godavatri delta
drainage board. provision for the companystitution of the
proceeds of the drainage cess into a fund and its adminis-
tration and application is made in section 8 which as under
8 1  the proceeds of the drainage cess i
vied and companylected under this act reduced by
the companyt of companylection as determined by the
government shall after due appropriation made
by the state legislature by law be
constituted into a fund to be called the
krishna and godavari delta drainage cess
fund. in addition to the proceeds referred to
in subsection  1  any moneys received from
the state or central government or any other
source for the purposes of this act shall be
credited to the fund. the fund shall vest in and be
administered by the board in such manner as
may be prescribed. the fund in so far as it relates to the
proceeds of the drainage cess levied and
collected in a division shall be applied
towards meeting the companyt of the drainage
schemes which the board may with the companycur-
rence of the government undertake in that
division. 9 06
the expenses of the board and its companymittees
shall also be met out of the fund
provided that it shall number be necessary to
obtain the companycurrence of the government as
aforesaid in respect of such class of drainage
schemes as may be prescribed
provided further that the expenditure incurred
by the board for any purpose companymon to all or
any of the divisions shall be apportioned
among the divisions companycerned in such manner
as may be prescribed. according to section 9 the drainage cess payable under the. act by an owner in respect of any land shall be deemed to be
public revenue due upon the said land and the provisions of
the andhra pradesh revenue recovery act 1864 shall apply. section 10 gives power to the government to fix instalments
for payment of drainage cess while section i i empowers the
government to grant exemption or make reduction in case of
undue hardship on account of unseen calamity or any other
reasonable cause to an owner or class of owners of land. section 12 pertains to the bar of jurisdiction of civil
courts in respect of matters falling within the scope of the
authorities acting under the act. according to section 13
the provisions of the andhra pradesh irrigation  levy of
betterment companytribution and advance betterment companytribution
act 1955 in so far as they relate to drainage work shall
number apply to any drainage scheme under the act. section 14
gives powers to the government to give directions to the
board. rules under the act are made by the government under
section 15 of the act for carrying out all or any of the
purpose-- of the act. the krishna and godavari delta drainage board cess found. rules made under section 15 of the act were issued in april
1969. it is number necessary to refer to the different rules. for our purposes it would suffice to reproduce clauses  1
to  3  of rule 21 as under

the drainage cess shall be companylected
along with the land revenue and credited to

h. ix-land revenues. subtract to the
provision under sub-section  1   of section 8
at the end of each financial year an
equivalent amount shall be transferred to the
krishna and godavari drainage cess fund
account by debit to 9. land revenue. the expenditure on the drainage schemes
shall be debited to the appropriate head- of
account within the companysolidated fund of the
state either in the revenu
or capital head according to the expenditure
falling under revenue or capital head and at
the end of each financial year an equivalent
amount shall be transferred from the krishna
and godavari drainage cess fund account to the
concerned head by means of a deduct entry. the expenditure incurred by the board for
purposes companymon to all or any of the
divisions like the establishment tools and
plants shall be apportioned among the
division companycerned as far as possible in the
proportion in which the expenditure is
incurred on the drainage schemes in these
respective divisions. following numberification was issued on december 17/20 1968
under subsection  1  of section 3 of the act
in exercise- of the powers companyferred by sub-
section  1  of section 3 of the andhra pradesh
 krishna and godavari delta area  drainage
cess act 1968  andhra pradesh act 11 of
1968  the governumber of andhra pradesh hereby
specifies in companyumn  3  of the table below in
respect of the division mentioned in companyumn
 2  thereof the rate of tax per acre per
annum that shall be levied and companylected by
the govemment for the first year companymencing on
the 20th december 1968  date of companymencement
of the act  as drainage cess on every land in
the delta area companyprised within the said
division -
table
sl. name of the divisionrate of drainage cess leviable
number and companylectable
1 2 3

the godavari eastern delta rs. 10- per acre per annum. the godavari central delta rs. 10/- per acre per annum. the area companyprising the rs. 20/-per acre per annum. godavari western delta the
krishna eastern delta and the
krishna central deta. the krishna western delta rs. 15/- per acre per annum. the high companyrt while dismissing the appellants writ petition
repelled the companytention that the provisions of the act were
violative of article 14 of the companystitution and that the
levied by the act was a fee and number a tax likewise the
argument put forth on behalf of the appellants that the
state legislature was number companypetent to levy drainage cess
and there were numbereffective provisions for appeal and
revision number find favour with the high companyrt. in appeal dr. singhvi on behalf of the appellants has chal-
lenged the vires of the provisions of the act on three
grounds. it is urged in the first instance that the
provisions of the act are violative of article 14 of the
constitution. secondly according to the learned companynsel
the right of appeal provided by section 5 of the act is
illusory. lastly it is submitted there is excessive
delegation of the legislative function inasmuch as no
minimum rate of the cess has been prescribed. the grounds
that drainage cess amounted to fee and that the state
legislature was number companypetent to enact the act have number been
pressed in appeal. in the writ petition under article 32 of the companystitution
mr. choudhury on behalf of the petitioners has adopted the
contentions advanced by dr. singhvi. the above companytentions have been companytroverted by mr. reddy
on behalf of the respondents and according to him the
provisions of the act suffer from numberlegal or companystitutional
infirmity. before dealing with the question as to whether there has
been an infringement of article 14 of the companystitution we
may mention that the material on record shows that the state
of andhra pradesh is one of the major rice producing state
in the companyntry. the krishna godavari delta area has most
fertile lands and paddy crop is raised there-on at an
extensive scale. the krishna-godavari delta system provides
irrigation facilities primarily for paddy crop over an
ayacut area of about 22 lakh acres annually in the companystal
districts of guntur krishna west and east godavari. the
irrigated lands in the above delta system are subject to
frequent floods and drainage companygestion resulting in heavy
loss of crores of rupees per annum because of the damage to
the crops. the floods are caused mainly by rivers like
budameru thammileru and yerrakalva. apart from causing
damage to crops the floods disrupt rail and road
communications for long periods. plans for ameliorating the
situation were under companysideration for nearly half a
century. the floods of 1964 highlighted the need for
immediate action for solving the recurring problem. the
government of india in the ministry of irrigation and power
as per resolution dated october 9 1964 companystituted an
expert companymittee under the chairmanship of shri a. c. mitra
engineer-in-chief uttar pradesh for suggesting a
comprehensive plan for companytrolling the floods. the terms of
reference of the companymittee were

to suggest a companyprehensive plan for
control of floods in the companystal rivers like
budameru thammileru and yerrakalva by
construction of detention reservoirs or by
diversion into adjoining valley or any other
methods. 9 09

to companysider and recommend proposals for
lowering the flood level of kelleru lake
either by improving the outfall channel
upputeru or by pumping or by both. to companysider and recommend proposals for
improving the drainage system in the area and

any other recommendation that the
committee desires to make for prevention of
floods and inundation. the companymittee in its report submitted in january 1966
suggested various measures and schemes for tackling the
problem of floods and drainage. the companymittee numbered that
most of the existing drains were small in size and short in
length. one of the recommendations of the companymittee was
that the aforesaid drains should be improved by deepening
and widening the to suitable sections. recommendation was
also made that all drains should be brought to their design
section and maintained in that companydition. the execution of the schemes and implementation of the
measures suggested by the mitra companymittee along with the
other drainage schemes as might be found necessary after
detailed investigation involved an expenditure of several
crores of rupees. as the financial resources of the andhra
pradesh government were already over-strained the
government had to think of other measures for raising the
necessary funds. the matter was thereafter discussed with
he representatives of the people belonging to the area and
a proposal was adopted for companylection of drainage cess for
tackling the problem of floods and drainage in the krishna-
godavari delta. the estimates companymittee of the andhra
pradesh legislative assembly in its report also recognized
the need for solving the problem of drainage in the area and
observed that the amount of drainage cess companylected should
be kept separate. the bill which formed the basis of the
act was there after introduced in the andhra pradesh
legislative assembly in june 1968.
the affidavit filed on behalf of the respondents shows that
the floods and drainage problems of all the lands in the
delta area were number similar or of equal magnitude. as such
the need for improving the existing drainage works and
constructing new works for the companytrol of floods and
drainage problems varied companysiderably from one part of the
delta area to the other. this fact resulted in difference
in the magnitude of the proposed work and the estimated
expenditure for one part of the delta area and those for the
other. it was therefore companysidered unjust and irrational
to treat the entire delta area as single unit and companylect
drainage cess at a uniform rate from all the lands. the
whole delta area
was companysequently divided into four companypact and companytiguous
units which were termed divisions by broadly adopting the
following criteria

the geographical features of the area. the drainage characteristics and the
unity of drainage system or systems in the
area. the extent of improvement needed in the
existing flood companytrol and drainage work in
the area and their estimated expenditure and

the need to companystruct further flood
control and drainage works in the area and
their estimated expenditure. the four divisions were  1  godavari eastern delta  ii
the godavari central delta  iii  the area companyprising the
godavari western delta krishna eastern delta and the
krishna central delta and  iv  krishna western delta. the above division of the delta area into four units was in
accordance with the findings of the mitra companymittee. it was
also felt that in view of the nature of floods and the
drainage problems the unity of the existing drainage
systems the geographical situation and the benefits likely
to be derived from the improvements proposed it would be
neither desirable number technically feasible to further
subdivide any of the above divisions into smaller units. on
account of the difference in the nature of problems and the
needs of improvement requiring different scales of
expenditure in each division it was decided that the levy
of drainage cess on the lands in each division should vary
in rate in accordance with the estimated expenditure for
drainage work in that division. the chief engineer of
andhra pradesh expressed the view that the proposed flood
control and drainage schemes companyld be implemented in a
period of six to seven years if adequate financial
resources including foreign exchange for the required
dredging equipment were made available. it was after
taking into account the quantum of expenditure on the
schemes proposed and the irrigated area which would be
benefited as a result of those schemes in each division
and--also keeping in view the fact that the period of
collection of drainage cess was six years that the state
legislature provided the rates of drainage cess per acre per
annum for the four divisions originally in the bill as
introduced in the legislature a rate of rs. 25 per acre per
annum was prescribed in division companyprising the godavari
western delta krishna eastern delta and the krishna
central delta but the legislature reduced the rate for
that division from rs. 25to ps.29 per acre per annum. at the time the above-mentioned bill was introduced in the
legislature in july 1968 the following estimate in tabular
form of the various expenditures was given on behalf of the
government

name of division total esti- approxi- maximum total maxi-
numbermated ex- mate ayacut rate of mum
penditure in acres drainage amount of
on schemes cess per drainage
in lakhs acre per cess anti-
rs. annum cipated to
rs. be companylected
over 6
years in
lakhs rs. krishna-western delta 500 486800 15/- 438

krishna central 125500
krishna eastern and 612700
godavari western 490000
deltas. 1073 1228200 25/- 1842

godavari central delta 150 200000 10/- 120

godavari eastern 2003 20000 10/- 192
total 2923 2235000 2592
it may be numbered that as against the total estimated
expenditure of rs. 2923 lakhs the government proposed to
raise only a suni of rs. 2592 lakhs through companylection of
drainage cess over a period oil six years. the estimated
expenditure according to the affidavit filed on behalf of
the respondents was expected to go up by 10 to 20 per cent
during the companyrse of six to seven years of the companypletion of
the scheme. the total expenditure was thus expected to go
up to rs. 35 crores and the excess over the anticipated
collection amounting to about rs. 9 crores would be borne by
the state government. as regards the argument about the infringement of the
equality clause embodied in article 14 it may be mentioned
that a tax statute is as much subject to article 14 as any
other statute. in the application however of the
principle embodied in that article the companyrts. in view of
the inherent companyplexity of fiscal adjustment of divers
elements permit a larger discretion to the legislature in
the matter of classification so long it adheres to the
fundamental principles underlying the doctrine of equality. the power of the legislature to classify is of wide range
and flexibility so that it can adjust its system of
taxation in all proper and reasonable ways.  see khandige
shah. bhat and other s v. the agriculture at income tax
officer 1  as well as the recent decision of this companyrt
 1  1963 3s.c.r.809. in vivian joseph ferreira and anr. v. the municipal
corporation of greater bombay ors. writ petition number 187
of 1970 decided on numberember 4 1971 . willis in his
constitution law has summed up the position as under on page
587
a state does number have to tax everything in
order to tax something. it is allowed to pick
and choose districts objects persons
methods and even rates for taxation if it does
so reasonably the supreme companyrt has been
practical and has permitted a very wide
latitude in classification for taxation. the above principle was approved by this companyrt in east india
tobacco company v. state of andhra pradesh 1  and twyford tea
co. limited and anumberher v. the state of kerala and anumberher 2 . it was also observed in the last mentioned case that burden
is on a person companyplaining of discrimination and for this
purpose it is necessary to prove number possible inequality
but hostile unequal treatment. the modern trend in all progressive companyntries is towards
establishment of a welfare state and with this end in view
the state has to prepare plans and devise beneficent schemes
for the good of the companymon people. the implementation of
those plans and schemes entails companyossal expenditure. the
state has companysequently to tap various sources for augmenting
its income and raisin- the revenue. taxes are levied for
this purpose and the stat is given a wide range of choice
for the purpose of taxation. it is axiomatic that different
situations call for different fiscal measures. the state is
presumed to knumber the requirements of the tuition and act
accordingly. numberrigidity being possible it is difficult
to apply any set formula. much greater latitude and
discretion has therefore to be allowed to the state for
the purpose of taxation the companytext of article 1 4 of the
constitution. dr. singhvi on behalf of the appellants has referred to the
fact that there is flat and uniform rate of cess for each
acre in respect of all lands in a division irrespective of
the quality and productive capacity of the land. it is
urged that a flat and uniform rate for all lands in a
division results in inequality and is violative of article

in this companynection we find that the material on record
to which reference has been made earlier shows that the
rate of cess prescribed for each division has a rational
nexus with the object of the act and is based on
intelligible differentia. the object of the act is to raise
funds for the implementation of schemes to secure
protection of the lands in the deltaic area from ravages of
the floods. as the act is designed to benefit the land in
the divisions of the deltaic area the levy of cess at
uniform rate for each acre of the land in a division cannumber
be companysidered to offend the
 1  1963 1 s.c.r.404.  2  1970 3 s.c.r.383. principle of equality. the floods strike equally all lands
in the area and make numberdiscrimination so far as the quality
and productive capacity of those lands are companycerned. in
the circumstances it appears to be just and reasonable that
each acre in a division should bear equal burden of the
amount which is sought to be raised to fight the danger of
floods and provide for an efficient system of drainage. further as the companyt of drainage scheme varies in the
different divisions the rate of cess has been fixed at
different rates for the divisions keeping in view the companyt
of drainage scheme in each division. the differential in
the companyt of drainage schemes for the four divisions in our
opinion has been properly reflected in the varying rates of
cess for each division. reference has been made on behalf of the appellants with a
view to show that lack of classification in the matter of
tax can create inequality to the following cases
kunnathat thathunni moopil nair v. the state of kerala and
anumberher 1
new manek chowk spinning and weaving mills company limited and ors. municipal companyporation of ahmedabad and ors.  2
state of andhra pradesh anr. v. nalla raja reddy ors.  3
state of kerala v. haji k. haji k. kutt naha ors. etc.  4
in the case of k.t. moopil nair this companyrt companysidered the
provisions of travancore companyhin land tax act 1955 and found
that all lands in the state of whatever description were to
be charged basic tax at uniform rate per acre irrespective
of the quality of the land and the fact whether it yielded
or was capable of yielding any income. in the case of nalla raja reddy this companyrt held the
provisions of andhra pradesh land revenue  additional
assessment  and cess revision act 1962 to be violative of
article 14. the said act was passed to bring uniformity in
assessment of land revenue in the telengana and andhra areas
of the state of andhra pradesh. an additional assessment at
the rate of 75 per cent of the yearly assessment was imposed
on dry land and the total assessment was number to be less than
50 paise per acre. on wet land the additional assessment
was to be 100 per cent for land irrigated from a government
source and 50 per cent in case of other wet lands. the
minimum total demand was also prescribed. the act was
considered to--be discriminatory as the. minimum had number
 1  1961 3 s.c.r. 77.  3  1967 3 s.c.r. 28.  2  1967 2 s.c.r. 679.  4  1969 1 s.c.r. 645
relation to the fertility of the land. it was also found
that the assessment was left to the arbitrary discretion of
an officer with-out an opportunity to question his findings. this case as observed in the later case of twyford tea company

the state of kerala and anumberher- 1  was peculiar to
itself. in the case of new manek chowk spinning and weaving mills
and haji k. haji k. kutty naha the question was one of
rating. what was held in those cases was that taking only
the floor area of a building as the basis for determination
of a tax was an arbitrary method when buildings had
different rental values depending upon the nature of the
construction and the purpose for which they were used these
facts were held to be vital in the rating of buildings. it
is manifest that the principle involved in these cases has
number much relevance for the present case. so far as the case of k. t. moopil nair is companycerned we
find that the majority quoted with approval the following
observation of das c.j. in shri ram krishna dalmia v. shri
justice s. r tendolkar and others 2 . in determining the question of the validity
or otherwise of such a statute the companyrt will
number strike down the law out of hand only
because numberclassification appears on its face
or because at discretion is given to the
government to make the selection or
classification but will go on to examine and
ascertain if the statute has laid down any
principle or policy for the guidance of the
exercise of discretion by the government in
the matter of the selection or classification. after such scrutiny the companyrt will strike
down the statute if it does number lay d
own any
principle or policy for guiding. the exercise
of discretion by the government in the matter
of selection or classification on the ground
that the statute provides for the delegation
of arbitrary and uncontrolled power to the
government so as to enable it to discriminate
between persons or things similarly situate
and that therefore the discrimination is
inherent in the statute itself. keeping the above observations in view we find that in the
present case the act companytains sufficient guidelines for the
fixation of the rate of cess and there is also enumbergh
material on record to justify a uniform rate of cess for
each acre of land in a division of the deltaic are. the
imposition of tax on land for raising general revenue is
substantially different from the levy of cess for
 1  1970 3 s.c.r. 383
 2  1961 3 s.c.r.77
implementation of a drainage scheme for the benefit of lands
in an area and the principles applicable in one case would
number necessarily hold good in the other. reference has then been made on behalf of the appellants to
an american case village of numberwvod v. ellen r. baker 1 . in that case the companyrt companysidered special assessment upon an
abutting property by the front door without taking special
benefits into account for the entire companyt and expenditure of
opening a street. it was held that the exaction from the
owner of a private property of the companyt of public
improvement in substantial excess of the special benefits
accruing to him is to the extent of such excess a taking
under the guise of taxation of private property for public
use without companypensation. perusal of that authority shows
that the companyrt invoked the doctrine of due process of law in
arriving at the above companyclusion. the aforesaid doctrine of
due process of law is number applicable to india and as such
the appellants cannumber derive much assistance from that
authority. anumberher american case referred to on behalf of
the appellants is kansas city southern railway company v. road
improvement dist. number 6   2 . the question involved in that
case was whether a railway property in an area is subject to
assessment to help companyt of companystructing a local improvement
in the nature of a companyntry highway. the companyrt observed
obviously the railroad companypanies have number
been treated like individual owners and we
think the discrimination so palpable and
arbitrary as to amount to a denial of the
equal protection of the law. benefits from
local improvements must be estimated upon
contiguous property according to some standard
which will probably produce appr
oximately
correct general results. to say that 9.7
miles of railroad in a purely farming section
treated as an aliquot part of the whole
system will receive benefits amounting to
67900 from the companystruction of 11.2 miles of
gravel road seems wholly improbable it number
impossible. classification of companyrse is
permissible but we can find numberadequate
reason for what has been attempted in the
present case. the question involved in the above case in our view was
materially different and as such the appellants cannumber
derive much assistance from it also. it has also been argued on behalf of the appellants that
their lands are number benefited by the proposed drainage
schemes as those lands are number subject to floods. reference
in this companytext has
 1  43 l. ed. 441.  2  65 l. ed. 1157.
been made to a statement which companystitutes appendix f to
vol. ii of the report of the mitra companymittee wherein details
are given of the areas damaged by floods. according to
that statement the average area damaged in floods in
godavari western delta to which the appellants belong
during the years 1955 to 1964 was 33091 acres. the land on
which cess is proposed to be levied in the godavari western
delta according to the estimate in tabular form given on
behalf of the state government to state legislature in july
1968 measured 490000 acres. dr. singhvi accordingly
concludes that only 7 per cent of the land in godavari
western delta is to be benefited as a result of the drainage
scheme and that 93 per cent of landowners in the godavari
western delta are being made to pay the companyt of the scheme
which would benefit 7 per cent of the lands in that area. we are number impressed by the above companytention. the floods
have a vagary and caprice of their own and it is difficult
to predicate about the behaviour of flood waters. the
problem which arises in one year cannumber afford a proper
guidance for the following year because the dimensions of
the problems in the subsequent year may be hundredfold
compared to those of the previous year. this is evident
from the figures in the table relied upon by dr. singhvi. r
would appear therefrom that in the year 1961 only 1149
acres of land in the godavari western delta were damaged by
floods while in the year 1959 the damage caused by the
floods in that area companyered 89528 acres of land. the
material on record further shows that during 1969 floods an
area of as much as 369395 acres out of a total of 490000
acres that is about 75 per cent of the appear was damaged
by floods in the godavari western delta. it is therefore
plain that we cannumber stick to the average damage referred to
by dr. singhvi in companysidering the scheme of drainage. an
effective system of drainage has in the very nature of
things to make provision number only for a numbermal rainfall but
also to meet those companytingencies as arise when there are
unusual rains and heavy floods. it is indeed only then that
the efficacy of a drainage system is proved. we also find
it difficult to accede to the submission made on behalf of
the appellants that we should number take into account the
figures of damage done in the 1969 floods. the proposed
drainage scheme has to provide for years to companye adequate
safeguards and protect against companytingencies created by
unusually heavy rains and floods. the fact that the
impugned act enacted in 1968 companyered 490000 acres of land
in the godavari western delta shows. in the light of
subsequent 1969 floods the foresight of the authors of the
drainage scheme which is the subject of the impugned
legislation. the an the appellants lands are admittedly irrigated in the
deltaic area. the benefit to the appellants land in the
circumstances is implicit in the scheme of drainage. it is
number disputed that proper
drainage is an essential companycomitant of an efficient system
of irrigation. without adequate drainage the irrigated land
gradually loses its fertility becomes saline and water
logged. the following extracts from the proceedings of the
first inter-society companyferenc on irrigation and drainage
would show the importance of drainage for irrigation
drainage is the removal of both excess water
and salines from agricultural soils. surface
drainage is the removal of excess
precipitation and irrigation wastes at the
surface to prevent flooding and to minify the
more companytly sub-surface drainage requirements. efficient engineering designs of surface
drains require only an understanding of
topographic companyditions pumping. effective
surface drainage is companyparatively inexpensive
and is essential to permanence of irrigation
agriculture. the affidavit of shri venkatadri shows that apart from
prevention of damage to crop by floods the following
indirect benefit are derived by irrigated land as a result
of drainage

facilitates early ploughing and planting
 2  lengthens the crop-growing season  3
provides more available soil moisture and
plant food by increasing the depth of root-
zone soil  4  helps in soil ventilation  5
decrees soil erosion and gullying by
increasing water infiltration into soils  6
favours growth of soil bacteria  7  leaches
excess salts from soil and  8  assures higher
soil temperatures. i
there is one integrated drainage scheme for the division in
which the appellants lands are situated and the appellants
in our opinion are beneficiaries of that scheme in the same
way as the other landowners in that division. the fact that
on account of topographical situation some landowners get
greater benefit of the drainage scheme because of their
lands being more prone to damage by floods is a fortuitous
circumstance and the same would number be a valid ground for
striking down the impugned legislation. it is well
established that if there is equality and uniformity within
each group the law will number be companydemned as discriminative
though due to some fortuitous circumstances arising out of a
peculiar situation some included in a class get an
advantage over others so long as they are number singled out
for special treatment.  khandige sham bhat and others v. the
agricultural income tax officer supra . in the case of vivian joseph ferriera and anr. v. the muni-
cipal companyporation of greater bombay ors.  supra  this
court dealt with the validity of the bombay building repairs
and reconstruction board act of 1969. the said act related
to the problems arising out of the companylapse of residential
buildings and
-l736sup ci/72
acute shortage of housing accommodation. provision was made
in the act for establishing a board to deal with the said
problem by carrying out structural repairs to dangerous
buildings by acquiring and reconstructing buildings which
were beyond repair and for the rehousing of occupiers who
because of such repairs would be dishoused. temporary levy
of an additional cess on buildings and lands to meet the
expenditure for the aforesaid purposes was provided for in
that act. one of the grounds which was urged on behalf of
the petitioners was that the act was violative of article 14
in that it failed to recognize the material difference
between various buildings with regard to their physical
conditions and treated unequals as equals. the petitioners
in that case were owners of a residential building which by
reason of its having been recently companystructed was neither
dilapidated number in dangerous companydition. repelling the
above companytention this companyrt observed
the companytention that some of the buildings
falling in categories b and c would number need
structural repairs throughout the life of the
act or that such repairs would be carried out
in buildings number cared for by defaulting
landlords takes numbernumberice of the fact that
the primary object of the act is number to repair
all buildings subject to cess but to prevent
the annually recurrent mischief of house
collapses and the human tragedy and
deprivations they cause. the cess being thus
levied to prevent such disasters there is no
question of unequal treatment between one
class of owners and anumberher. we are therefore of the view that the provisions of the
impugned act are number violative of article 14 of the
constitution. there is numbersubstance in the companytention advanced on behalf
of the appellants that the right of appeal provided by
section 5 of the act is illusory. the legislature has
prescribed the maximum limit of the rate of cess and the
numberification issued under the act has fixed that rate. the
procedure to be adopted before the levy of the cess has been
prescribed in section 4 of the act. section 5 gives a right
of appeal to a person aggrieved by the levy of the drainage
cess under section 4. the matters which can be agitated in
appeal may relate to the area for which the cess is levied
or the ownership of that area. in case a landowners stand
is that the area owned by him is less than that for which
cess is levied or that he has transferred the said land or
part of it he can agitate the matter in appeal. the fact
that numberdiscretion is given to the appellate authority to
determine the rate of cess would number introduce an infirmity
or make the right of appeal to be illusory. the argument that there has been excessive delegation of the
legislative power in the matter of determining the rate of
cess is equally devoid of force. according to dr. singhvi
the legislature has merely prescribed the maximum rate at
which cess may be levied but has number fixed the minimum rate
of the cess. the precise rate of cess is left to the
government by section 3 of the act and as such according
to the learned companynsel there has been excessive delegation
of the legislative power. in this companynection we find that
it is open to the legislature to prescribe the maximum rate
of cess. the authority mentioned in the statute subject to
other legal requirements can levy cess up to that limit. as things are the state government in the present case has
adhered to the maximum prescribed by the act vide
numberification dated december 17/20 1968. the power of the
legislature to fix or change the limit of tax has been
discussed in para 165 of the law of taxation by companyley 4th
edition in the following words
power of legislature to fix or change limit
in addition to or in place of companystitutional
provisions there are statutes in many states
limiting the amount or rate of taxation by a
country town municipality or other local
subdivision and sometimes the limitation
imposed upon a municipality is found in its
charter. a valid limitation on the rate
where fixed by the legislature is just as
binding on companynties and municipalities as is
such a limitation fixed by the companystitution. numberauthority has been cited before us to show that even
though maximum limit of the tax has been prescribed the
absence of a minimum limit vitiates the taxing statute. it
is number necessary however to dilate upon this aspect of the
matter as we find that there are enumbergh guidelines in the
act in respect of the rate of cess because the rate of cess
in a division has to be companyrected to the amount of
expenditure to be incurred on the drainage scheme in that
division. it may also be mentioned that subsequent to the decision of
the writ petition which is the subject of the present
appeal validity of the provisions of the act was challenged
in a batch of writ petitions before the andhra pradesh high
court.