JUDGMENT 1. - This bunch of forty-six writ petitions relates to challenge to the validity of the Rajasthan Land & Buildings Tax Act, 1964 (Act No. 18 of 1964). The Rajasthan Land & Building Tax Act, 1964 (Act No. 18 of 1964) as now known after the amendment Act No. 158 of 1973, was first enacted in the year 1964 and was known as the 'Rajasthan Urban Land Tax Act' with the following object mentioned in its preamble : "An Act to provide for the levy of a tax on urban lands in urban Area of the State of Rajasthan. The net result is that its primary aim is to raise the revenue by collecting tax upon the lands and buildings situated in the Urban Areas in the Rajasthan To implement that primary aim, the scheme to appoint competent authority, procedure for and recovery of tax from the assessee, have been provided under the Act." 2. This enactment though enacted in 1964, remained almost as a dead law without implementation, on the statute book and it was only in 1973 that the Legislature's attention was attracted to this law, when it w as amended twice. 3. The original charging section 3 of the Act of 1964 was as under : "3. Levy of urban land tax (1) Subject to the other provisions contained in this Act, there shall be levied & collected for each year a tax on Urban Land (hereinafter referred to as the Urban Land Tax) from every owner of urban land at such rate not exceeding 20/0 of the market value of such urban land as determined under section 4, as the State Government may by notification in the official Gazette declare in this respect: Provided that the State Government may fix graduated rates of tax on different slabs of market value of urban lands. Provided further that no tax shall be levied on any urban land if the owner thereof or his predecessor in interest has acquired such land by transfer from the Government or any local authority within a period of two years immediately preceding the year for which the tax is levied. (2) The tax shall be in addition to any other tax for the time being payable in respect of the urban land or portion thereof under any other law for the time being in force." 4. (2) The tax shall be in addition to any other tax for the time being payable in respect of the urban land or portion thereof under any other law for the time being in force." 4. This was substituted by section 4 of the Amendment Act No. 15 of 1973 with effect from 1-4-1973. This amended section 3 as on 1-4-1973 was as under:- "3. Levy of lands and buildings on tax : (1) There shall be levied and collected, with effect and on from 1st April, 1973, for each year a tax on lands and buildings situate in an urban area, (hereinafter referred to as the Lands and Buildings Tax) from the owner of such lands and buildings, at such rate not exceeding 20/0 of the market value thereof as the State Government may, by notification in the official Gazette declare in this behalf : Provided that the State Government may fix graduated rates of tax on different slabs of market values of urban lands & buildings: Provided further that until a notification declaring rates of tax is issued under this sub-section, the rate of tax on lands and buildings shall be as follows:- On First Rs. 50.000/- of the market value of the land and buildings. NIL On the balance of the market value of the land and buildings. Provided further that if any area is declared a cantonment, or is constituted a municipality, after the commencement of Rajasthan Urban Land Tax (Amendment) Act, 1973, the tax on lands and buildings situate in such area shall be levied and collected with effect from the commencement of the year following the year during which the area is declared a cantonment or is constituted a municipality : Provided also that where more than one land or building in the same urban area is owned by the same person, the land and building tax shall be assessed on the market value of all such lands and buildings taken together. (2) The Tax shall be in addition to any other tax for the time being payable in respect of the land and building or portion thereof under any other law for the time being in force." 5. It may be noted that whereas section was 3 the charging section, section 4 provided a procedure and criteria for determination of market value. 6. It may be noted that whereas section was 3 the charging section, section 4 provided a procedure and criteria for determination of market value. 6. This section 4 in the original Act of 1964 was as under : "4. Determination of market value (1) The Assessing Authority shall determine in the prescribed manner the market value of the urban land liable to be taxed under this Act. (2) The Assessing Authority in determining the market value shall have regard to the following matters, namely:- (a) the locality in which urban land is situated. (b) the predominant use to which the urban land is likely to be put, that is to say, industrial, commercial or residential. (c) accessibility or proximity to market, dispensary, hospital, railway station, education institutions, or Government offices. (d) availability of civic amenities like water supply, drainage and lighting and, (e) such other matter as may be prescribed." 7. This was also amended and substituted by section 5 of the Rajasthan Amendment Act No. 15 of 1973 with effect from 1-4-1973. The amended section as on 1-4-1973 was as under : "4. Determination of market value - For purpose of this market value of any land or building or both shall be estimated to be the price which in the opinion of the assessing authority, such land or buildings or both would have reached, if sold in the open market on the date of the commencement of the Rajasthan Urban Land Tax (Amendment) Act, 1973." 8. As soon as this amended Act of 1973 came into force M/s. S.M.S. Investment Corporation Private Limited filed the writ petition being Writ No. 877/1933 in the High Court challenging the validity of section 3 and 4 of the Act. This writ application was argued for admission on 22-6-1973 and while the arguments were continuing for admission, the State of Rajasthan, on 23.6-1973 promulgated Ordinance to amend section 3 of this Act. 9. This Ordinance No. 6/1973 was repealed on enactment of the Amendment Act No. 18 of 1973 on 10-11-73. This writ application was argued for admission on 22-6-1973 and while the arguments were continuing for admission, the State of Rajasthan, on 23.6-1973 promulgated Ordinance to amend section 3 of this Act. 9. This Ordinance No. 6/1973 was repealed on enactment of the Amendment Act No. 18 of 1973 on 10-11-73. The amendment made in section 3 as it stood by earlier amendment of 1-4-1973 to was the following effect : (a) the last proviso to sub-section (1) shall be deemed always to have been omitted; and (b) after sub-section (1) the following sub-section shall be, and shall be deemed always to have been inserted, namely:- (1-A) For removal of doubt it is declared that the tax shall be levied on land or building or both separately as units". 10. This legislative history would reveal that whereas in 1964 in the original to form the tax was to be levied only on the urban land in the urban area, by amendment of 1-4-1973 buildings were added to it and by the last proviso of section 3. more than one land or building in the same area was to be made on the market value of all such lands and buildings taken together. 11. This phrase `taken together' was subject-matter of main challenge in the S.M.S. Investment Corporation writ filed in 1973, and the Ordinance No. 6/1973 published on June 23, 1973 deleted this proviso and added the following sub-section after it : (1- A) For removal of doubts it is declared that the tax shall be levied on lands and buildings or both separately as units. This second proviso to sub-section (1) of section 3 was further amended with effect from 1-4-1977 by the Rajasthan Finance (No. 2) Act of 1977 so that the second proviso now reads as under : "Provided further that until a notification declaring rate of tax is issued under this sub-section, the rate of tax on land and buildings shall be as follows : On the first Rs. 1,00,000/- of the market value of land and building NIL On the next Rs. 2,00,000/- of the market value of the land and building 1/2% On the next 7,00,000 of the market value of the land and building 1.00% On the balance of the market value of the land and building in excess of Rs. 10,00,000 1-1/2% 12. 1,00,000/- of the market value of land and building NIL On the next Rs. 2,00,000/- of the market value of the land and building 1/2% On the next 7,00,000 of the market value of the land and building 1.00% On the balance of the market value of the land and building in excess of Rs. 10,00,000 1-1/2% 12. Thus section 3, the charging section as now it stands after amendment Act No. 18 of 1973 omits `taken together'. There was important amendment in section 4 also in April, 1973 by which the procedure for determination of the value of the land and building was materially altered as would be discussed later on. 13. The main arguments in these cases were advanced by Senior Advocate Mr. Sidharth Shanker Ray on behalf of M/s. National Engineering Industries, Jaipur (S.B.C.W. No. 418/78). The basic arguments being identical in all the cases, I have agreed to the prayer of both the parties, that this bunch of the cases should be decided by a common judgment and on that basis they were also heard together. 14. Mr. Ray, the learned counsel for the petitioner, challenged the vires of the Act on various grounds. It would be proper to narrate them in brief. 15. Firstly, Mr. Ray challenged the legislative competence of the State Legislative Assembly for enacting a law on tax on land and buildings. According to him, this Act was void when enacted in 1964 and also when the amendment No. 15/73 was made because under list II entry 49, it was beyond the competence of the State Legislature, to levy tax on lands and buildings belonging to a person in a composite manner and in their totality. This amounts to a personal tax which the State Legislature is incompetent to impose. 16. Harbhajan Singh's case reported in Union of India v. Harbhajan Singh Dhillon, AIR 1972 SC 1061 and particularly paras 60-65 were strongly relied upon by Mr. Ray in support of the above submissions. 17. The above premises were further strengthened by Mr. Ray by his submission that a law passed without legislative competence is absolutely null and void and a `still born piece of legislation.' Reliance was placed on M.P.V. Sundararamien & Co. v. State of Andhra Pradesh, AIR 1958 SC 468 . Having built up and laid down the above foundation, Mr. 17. The above premises were further strengthened by Mr. Ray by his submission that a law passed without legislative competence is absolutely null and void and a `still born piece of legislation.' Reliance was placed on M.P.V. Sundararamien & Co. v. State of Andhra Pradesh, AIR 1958 SC 468 . Having built up and laid down the above foundation, Mr. Ray then urged that since the Act of 1964 and also the amendment made on 1-4-1973 in section 3 was beyond legislative competence, it could not be validated or amended later on by the deletion of the proviso and removal of doubt clause, which was added by Act No. 18 of 1973 published on 12-11-1973. Relying upon the judgment of Jaora Sugar Mills (P) Ltd. v. The State of Madhya Pradesh and others, AIR 1966 SC 416 Mr. Ray submitted that as the original Act and the charging section of it being section 3 was beyond legislative competence of the Rajasthan State Legislature, the Amending Act No. 18/73 amending section 3 of the impugned enactment and adding sub-section (1 - A) could not be validly passed and is of no effect whatsoever. 18. Anticipating the submissions of the State that in any case the doctrine of sever-ability applies, Mr. Ray submitted that aggregation being the essence of section 3 as originally enacted in 1964, it cannot be severed without destroying the whole scheme and object of the enactment. Similarly aggregation is the essence of the main provision of section 3 (1) of the impugned enactment as amended by Act 15 of 1973 and the proviso merely clarified what is implicit and of the essence in the main enactment. According to him aggregation cannot be severed from the impugned enactment and cannot be amended by the Act 18 of 1973 without destroying the whole scheme of the enactment. 19. It was pointed out that the established principle of interpretation of statute is that for the purpose of determining legislative competence, the section must be read together as an integral whole and the doctrine of sever-ability cannot be applied. In support of this proposition Mr. 19. It was pointed out that the established principle of interpretation of statute is that for the purpose of determining legislative competence, the section must be read together as an integral whole and the doctrine of sever-ability cannot be applied. In support of this proposition Mr. Ray relied upon the judgments of the Hon'ble Supreme Court in Sundaramier's case (2 supra), Tahsildar Singh and another v. State of U.P., AIR 1959 S.C. 1012 , State of Bihar v. Hiralal Kejriwal, AIR 1960 SC 47 and Madan Lal Fakirchand v. Shree Changdeo, AIR 1962 SC 1543 . 20. The second branch of Mr. Ray's submissions concentrated upon first invoking of Article 14 of the Constitution and making a grievance that there has been violation of Article 14 by the amendment made in Section 3 by Amendment No. 18/1973. It was argued that though in Dhillon's (1) case at page 1079 para 65 the Supreme Court has categorically laid down that the tax must be levied on units the unit of taxation has not been defined in the impugned enactment or in any of the amendments thereto. That being so, the unit on the basis of which the assessment is to be made, has been left to the arbitrary, unfettered and naked discretion of the assessing authorities. According to him the assessing authorities can arbitrarily pick and choose any number of lands or buildings or both and treat the same as a unit and levy the tax on composite or total value of them. There is no guiding principles in the impugned enactment or any of the amendments thereto, regarding the meaning of the word `unit'. The discretion of the assessing authorities would always be arbitrary and that would result in negation of law. 21. The discretion having been left to the unfettered whim and fency of the assessing authorities and there being no guidelines or limitations under which he is to act, it is violative of Article 14. The impugned enactments allow impermissible discrimination contrary to Article 14 of the Constitution to cream in discriminating in a hostile manner between persons having properties valued at more than rupees one lakh and persons having properties valued at less than one lakh. The impugned enactments allow impermissible discrimination contrary to Article 14 of the Constitution to cream in discriminating in a hostile manner between persons having properties valued at more than rupees one lakh and persons having properties valued at less than one lakh. The cases reported in the State of West Bengal v. Anwar Ali Sarkar and another, AIR 1952 SC 75 , was relied upon in addition to the case of Jyoti Prasad v. Union Territory of Delhi, AIR 1961 SC 1602 . 22. The third branch of submissions of Mr. Ray related to his specific case where the petitioner's business and industry was being put to restrictions and Mr. Ray termed them as restrictions on freedom of trade, commerce or intercourse within the State as envisaged in Article 304 of the Constitution. For such a legislation a prior assent of the President of India is necessary for treating it as valid. It was argued that no previous assent was taken of the President of India, and therefore, the impugned enactment was invalid. Reliance was placed on the Supreme Court decision in the Indian Aluminium Co. Ltd. v. Commissioner of Income tax, W.B. Calcutta, AIR 1972 SC 1880 and the State of Madras v. N.K. Nataraja Mudaliar, AIR 1969 SC 147 . 23. The Fourth and the last submission of Mr. Ray related to challenge to section 4 of the Act, wherein market value of the property has been dealt with It was argued that no guidelines, principles, criteria or procedure has been provided for ascertainment of the market value, and it gives arbitrary, naked, unbridled, unlimited and unregulated and unrestricted power to fix the market value. This can be done on whims or fency or caprice of authority, permitting discrimination and is violative of Article 14 of the Constitution. 24. On behalf of petitioner J.K. Synthetics, Mr. Pana Chand Jain supplemented the submissions of Mr. Ray after adopting them for his case also. On the principal submission that the amendment by Act No. 18/73 could not cure the invalidity of section 3 as it was an amendment in an Act which was still born, Mr. Jain relied upon the following : 1- Cooley - Constitutional Limitations Vol. Pana Chand Jain supplemented the submissions of Mr. Ray after adopting them for his case also. On the principal submission that the amendment by Act No. 18/73 could not cure the invalidity of section 3 as it was an amendment in an Act which was still born, Mr. Jain relied upon the following : 1- Cooley - Constitutional Limitations Vol. I page 382 wherein it was mentioned that a statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objections but must be re-enacted. The judgment of Saghir Ahmed v. State of U.P., AIR 1954 SC 728 and Mahendra Lal Jaini v. State of Uttar Pradesh and others, AIR 1963 SC 1019 (1027) wherein it has been held that the validity of an Act was not to be decided by applying the provisions of a Constitution (Amendment Act) which was passed subsequently to the passing of the impugned Act, were relied upon. Jaora Sugar Mills case (3 supra) was also relied upon by Mr. Jain for the following propositions : "Where an impugned Act passed by a State Legislature is invalid on the ground that the State Legislature did not have legislative competence to deal with the topic covered by it, then even the Parliament cannot validate it, because the effect of such attempted validation in substance would be to confer legislative competence on the State Legislature". 25. Mr. Jain also tried to substantiate the above proposition by the following authorities : "An unconstitutional law should be taken to be still born and it cannot be validated by a subsequent amendment." Tahsildar Singh's case (2 supra). "An unconstitutional Act is not law, it confers no rights, it imposes no duties, it affords no protection, it creates no office, it is in legal contemplation as inoperative as though it had never been passed." Norton V-Shelby 30 L.ed. 178. "An unconstitutional Act is void and is no law" Siebold Exp. 25 L.ed. 717. 26. Mr. Panachand further submitted that the powers given to the assessing authority for the purposes of fixing the valuation is arbitrary, unguided and blanket in nature and, therefore, are violative of Article 14. 178. "An unconstitutional Act is void and is no law" Siebold Exp. 25 L.ed. 717. 26. Mr. Panachand further submitted that the powers given to the assessing authority for the purposes of fixing the valuation is arbitrary, unguided and blanket in nature and, therefore, are violative of Article 14. Reliance was placed on Avinder Singh v. State of Punjab, 1979 (1) SCC 137 , wherein it has been held as under : "Taxation is exaction and even expropriation and therefore, the right to property is in peril when afiscal measure is a food. Article 19 comes into play when law' is made for purposes of taxation and that law must comply with part III, arbitrariness must be excluded in the law, for if power is arbitrary it is potential inequality and Article 14 is fatally allergic to inequality before the law." 27. Mr. B.P. Agrawal, Mr. Kheten, Mr. C.C. Kasliwal and Mr. S.M. Mehta and Mr. Garg adopted the main submissions of Mr. S.S. Ray. 28. Mr. R.K. Rastogi, Advocate General, assisted by Shri J.S. Rastogi, Government Advocate, vehemently opposed all the writ applications and submitted that the Rajasthan Legislature was fully competent to enact the Rajasthan Land & Buildia Taxation Act, 1954 and it was further competent to amend it by amendment Act No. 15 of 1973 and Act No. 18 of 1973 because it is empowered to do so under entry 49 of List If of the Schedule VII read with Article 246 (3) of the Constitution of India which authorises the State Legislature to levy tax on land and buildings. Reliance was placed on Assistant Commissioner of Urban Land Tax Madras and ors. v. Buckinghan and Carnatic Co. Ltd. etc., AIR 1970 SC 169 , wherein it was held that it was within competence of the State Legislature. The Court held that since in peculiar circumstances the computation of the market value is entirely within the ambit of entry 49 of List II and it did not cover the field of entry 86 of the List. 29. Mr. Rastogi submitted that the following judgments of the Hon. Supreme Court clearly support his contention of Legislative competence. (i) In Assistant Commissioner's case, AIR 1970 SC 169 (14 supra) the Madras Urban Land Tax Act was held valid and within the competence of State Legislature (vide paras 5,6 and 8). 29. Mr. Rastogi submitted that the following judgments of the Hon. Supreme Court clearly support his contention of Legislative competence. (i) In Assistant Commissioner's case, AIR 1970 SC 169 (14 supra) the Madras Urban Land Tax Act was held valid and within the competence of State Legislature (vide paras 5,6 and 8). It was held that in pith and substance the Act imposed tax on urban lands at a percentage of the market value which is entirely within the ambit of entry 49 of List II and it did not cover the field of entry 86 of List I. It has further been held tint legislative entries must be given large and liberal interpretation, the reason being the allocation of logical definition but by way of more simplex enumeration of broad categories. (vide pare 5 age 175). (ii) In Madan Lal's case (6 supra) the validity of U.P. large Land Holdings Tax Act was challenged and it was held to be valid. It was held tax on land holdings were to be measured on assessed value of land, but it was tax on land and it was within the purview of entry 49 List II. It was also held that general words used must receive the most liberal construction and if words of wide amplitude were used, they must be interpretal to give effect to that amplitude (vide para 10). It was held that entry 49 List II contemplates levy of tax on land and buildings or both as units. It is not concerned with division of interest or ownership in the units of land or buildings and Legislature may adopt for determining the incidence of tax as the annual or capital value of lands and buildings and it will not make the field of legislature two heads of entries of List I entry 86 and List II entry 49 over-lapping (vide para 12). (iii) In Ajoy Kumar Mukherjee v. Local Board of Barpeta, AIR 1965 SC 1561 , it was held that imposition of tax on land used as market is not tax on market as such but it is tax on land and within competence of State Legislature under entry 49 List II (para 4) It was also held that tax on land may be based on the annual value of the land. (iv) In H.R.S. Murthy v. The Collector of Chittor and another, AIR 1965 SC 177 it was held that land cess was a tax on land and covered by entry 49 List II. (v) In Kunnathat Thathunni Moopli Nair etc. v. State of Kerala and another, AIR 1961 SC 552 , it was held that taxation on land on which forest stands is permissible and legal under entry 49 List II and it w ill not be tax on forest (vide para 15). (vi) In Dhillon's case (1 supra) validity of Wealth-tax Act was being challenged and it was held that requisites of a tax under entry 49 List II are : 1. It must be a tax on units i.e. lands and buildings separately as units. a. Tax cannot be a tax on totality i.e. it is not a composite tax on the value of all lands and buildings. 3. Tax is not concerned with the division of interest in the building or lands,. In other words, it is not concerned whether one person owns or occupies it or two or more persons own or occupy it. 4. It is not personal tax, but it is a tax on property.(vide paras 6566). (In this case AIR 1970 S.C. 169 , AIR 1970 S.C. 999 , AIR 1970 SC 192 , AIR 1969 S.C. 59 and AIR 1949 F.C. 81 have been relied.) (vii) In Anant Mills Co. Ltd, etc. etc. v. The State of Gujarat, AIR 1975 SC 1234 while interpreting the words "lands and buildings" in entry 49 List II, it was held that land included not only the face of the earth, but everything under it (vide para 44) and it was also held that entry 49 List II contemplates a levy of tax on lands and buildings or both as units (vide para 44 page 1250 Column No. 2) Mr. Advocate General submitted that all the above cases of Supreme Court support the contention of the State that the said Act is legal and valid one and it is not composite tax on capital value of the property. 30. On the second point that the amendment was void and beyond the legislative competence because the Act was still born piece and, therefore, null and void, Mr. 30. On the second point that the amendment was void and beyond the legislative competence because the Act was still born piece and, therefore, null and void, Mr. Rastogi submitted that this submission is basically wrong as the Act was passed by the State Legislature within its competence and it was not null and void but it was a valid piece of legislation. Reliance was placed on M.K. Balakrishna Menon v. The Assistant Commissioner of Estate Duty-cum-Income-tax Officer, Ernakulam, AIR 1971 SC 2392 . 31. On the third branch of the contention Mr. Rastogi submitted that even for arguments sake, if it is assumed that part of section 3 of the said Act was not valid then this invalid part can be severed and segregated and the doctrine of sever-ability applies. Reliance was placed on R.M.D. Chambarbaugwalla and another v. Union of India and another, AIR 1957 SC 628 , wherein it was held that if a statute is void in part, it would be enforced as regards the rest i.e. severable from what is invalid and it does not materially affect for the purpose of this that it is invalid for want of competence of the legislature or because it contravenes the constitutional prohibition. 32. The learned Advocate General submitted that even in Sunduraramier's case (2 supra) (A.I.R. 1958 S.C. page 468 at page 499 para 47), it was held that an invalid or unconstitutional part of statute can be served and can be wiped out of the statute book by amended and it is not necessary to mike a fresh legislation. Mr. Rastogi argued that second proviso lays down that all the lands and buildings valuation was to be taken together and though it was rightly removed by Act 18 of 1973, doubts were also removed by mentioning that they would be taxed as separate units. This amendment was made with retrospective effect as if the second proviso of section 3 never existed. In this view of the matter. Mr. Rastogi argued that when this writ application is being considered, for decision, proviso to section 3 is now existing in legal and valid form passed by competent legislature. 33. Article 14. On the question whether section 3 was invalid on account of violation of Article 14 of the Constitution, Mr. In this view of the matter. Mr. Rastogi argued that when this writ application is being considered, for decision, proviso to section 3 is now existing in legal and valid form passed by competent legislature. 33. Article 14. On the question whether section 3 was invalid on account of violation of Article 14 of the Constitution, Mr. Rastogi submitted that it is not correct to say that the Act does not define the unit of taxation. There is a specific definition clause and unit of taxation has been clearly defined under section 3 of the said Act. Tax can be imposed on land as unit, it can be imposed on building as unit, and it may be imposed on land and building as unit separately. There is nothing to suggest in the Act that the tax is to be imposed on composite value of all. Sufficient guide-lines have been provided in the Act for imposition of the tax on lands and buildings. The Director of Lands and Buildings, Rajasthan has issued directions after consultation with the Law Department laying down the principles on which the Assessing Authority will make an assessment of the lands and buildings as unit. The property of the petitioner which were within one compound and has been used for the common purpose of industry, has been taken to be one unit and there is nothing wrong or illegal in it. There is no hostile discrimination made by the legislature while giving benefits to the owners of the properties having value of less than rupees one lac. The classification is reason able. The tax has been imposed on the urban properties of higher valuation so that the wealth which has been accumulated in the cities may be used for the benefit of the common good and the material wealth may be distributed according to the directive principles of the Constitution of India. 34. Pertaining to the effect of Article 304 of the Constitution of India, the learned Advocate General relied upon the judgment reported in The State of Kerala v. A.B. Abdul Kadir and others, AIR 1970 SC 1912 and argued that it has been held that: "Only such restrictions or impediments which directly or immediately impede the free flow of trade, commerce and intercourse fall within the prohibition imposed by Article 301. A tax may in certain cases directly and immediately restrict or hamper the flow of trade, but every imposition of tax does not do so. Every case must be judged on its own facts in its own setting of time and circumstance." 35. The learned Advocate General further cited Natraja Mudaliar's case (10 supra) in which it has been held that "Inter State Sales Tax does not offend Article 301 of the Constitution of India. The tax does not operate directly or indirectly on the free flow of trade or free movement of the transport of goods from one part of the country to other. The tax is on the sale. The movement is incidental to and consequence of the sale." In this particular case the tax has been imposed on lands and buildings or land and building both as separate unit. It is not a direct tax on freedom of trade or intercourse. Hence, it is not hit by Ait. 301 of the Constitution of India. 36. The judgment of Madras High Court (F.B.) reported in V. Pattabhiraman, v. The Assistant Commissioner of Urban Land Tax North Madras (North West) Ayanavaram and others, AIR 1971 Madras 61 relied upon by Mr. Ray, Senior Advocate for the petitioners, was assailed by Mr Rastogi as of no consequence because it has been reversed by the Hon. Supreme Court in Buckingham's case (14 supra A.I.R. 1970 S.C. 169). 37. On a careful consideration of the two judgments, I have come to the conclusion that the Madras Full Bench case reported in A.I.R.1971 Madras page 61 (22 supra)stood reversed by the Hon. Supreme Court and the Supreme Court judgment was published in A.I.R. 1970 S.C.169(14 supra).During arguments pointed out to Mr. Ray that there appears to be some confusion because the judgment reported in A.I.R.1970 S.C. 169(14 supra) covers the entire field of law' on the points discussed in Madras Full Bench case (22 supra) but Mr Ray could not detect the mistake in report of a reversed case by All India Reporter because according to him reliance was placed on the judgment of the Full Bench in the Commentary on Constitutional law which was published in 1975 or so. However, on a close scrutiny of the appeal numbers mentioned with the names of counsel in the report of A.I.R. 1970 S.C. 169 (14 supra), I am convinced that the judgment reported in A.I.R. 1971 (22 supra) stood reversed by the Hon'ble Supreme Court in A.I.R. 1970 S.C. 169 and it is surprising that in spite of that it was published after about two years of its reversal. It is expected of the law journal reporters like All India Reporter which is frequently cited in our judgments that special care is taken by the editors at least not to publish reversed and over-ruled judgments after the same are reversed and over-ruled. But for the timely research made by Mr. J.S. Rastogi, Government Advocate who assisted Mr. R.K. Rastogi Advocate General, I might have also considered the full Bench case as an authority for certain propositions. However, myth having been exploited now, the full Bench judgment of Madras High Court reported in AIR 1971 Madras at page 61 (22 supra) need not be discussed by me as the sole point in support of the petitioners, has been express; reversed by the Hon. Supreme Court. 38. The above citations and the various references referred to by Mr. R.K. Rastogi, learned Advocate General, ails to clinch the issue because it is not Mr. Ray's contention that lands and buildings as separate units cannot be taxed under entry 49 of List II. That being so, the entire debate so far as it relates to the ambit of entry 49 is concerned, is not for canvassing of divergent views by the petitioners and respondents, but for only showing in their own way the scope of entry 49 List II. According to them, now' the law on scope of entry 49 is well settled by series of the above judgments, precisely by the judgment of Dhillon's case(l supra) and generally by the above judgments of Madras and Uttar Pradesh laws referred to above. 39. The crucial question for determination, therefore, would be whether the impugned enactment levies a tax on lands and buildings or both as units in an aggregated form or in as grated form. 39. The crucial question for determination, therefore, would be whether the impugned enactment levies a tax on lands and buildings or both as units in an aggregated form or in as grated form. Controversy is, therefore, of aggregation in contrast to segregation and if it is held that it is on the aggregated value of the lands and buildings and of all units combined of an owner, then the impugned Act is to be struck down as the State legislature is not competent under entry 49 to legislate and levy tax on it, but it is only the Parliament which can do so under entry 86 List I. 40. On a close examination of the submissions of both the sides, I further find that there are areas of further agreement between Mr. Ray and Mr. Rastogi. The first one is that the second proviso introduced by Act No 15 of 1973 certainly amounts to aggregation and if it would not have been deleted by the second amendment, it was liable to be struck down being outside legislative competence and, therefore, covered by the occupied field of entry 86 of List I where only Parliament can legislate. 41. The above area is of thin agreement between the parties which I have mentioned only for the purpose that I need not detain myself on tho e points on which parties are in agreement and for which I also sustain no doubts about its constitutional infirmity or violation. 42. The principal divergence between the parties is on the basic interpretation of charging section 3 as it stood in 1964 and earlier to amendment No. 15 of 1973. Whereas Mr. Ray argued that aggregation of the entire lands of an individual for the purposes of taxes on the capital value is implicit in it, and it was made explicit by amendment No. 15 of 1973, Mr. Rastogi submits that no such inference can be drawn. 43. It is necessary to first understand the ambit and scope of entry 86 in the Union List and entry 49 in the State List.Entry 49 in the list II that is `State list' is as under : "taxes on lands and buildings." This contemplates tax on lands and buildings qua lands and buildings. 43. It is necessary to first understand the ambit and scope of entry 86 in the Union List and entry 49 in the State List.Entry 49 in the list II that is `State list' is as under : "taxes on lands and buildings." This contemplates tax on lands and buildings qua lands and buildings. Here tax is on lands and buildings as units and there is nothing to show that the incidence of tax on lands and buildings should necessarily be on the owners and excludes to be on their occupier. Capital value of land and buildings is not the subject matter of taxation. 44. Entry 86 of the Union List I is as follows : "Taxes on the capital value of the assets', exclusive of agricultural land, of individuals and companies; taxes on the capital of companies." It would be evident from the above, that this tax is on the individual as an owner of some assets and is leviable on the capital value of assets. In it the subject-matter of the tax is capital value which is not merely a measure of tax. Assets would mean entire property or resources of a person and includes all cash, buildings, lands and other property. Assets not conventionally recognised in the accounts are generally intangible or are derived from costs and readily assignable to them. This entry means the tax on the capital value of the assets of the individual and has to be taxed on the net worth of all in aggregate, owned by him which has money value. This proceeds on the basis of the principle of aggregation. 45. It was held in Buckingham's case (14 supra) that the levy of the tax on urban land at a market value is entirely within the competence of the State Legislature. This proceeds on the basis of the principle of aggregation. 45. It was held in Buckingham's case (14 supra) that the levy of the tax on urban land at a market value is entirely within the competence of the State Legislature. While discussing the difference in entry 86 List I and entry 49 List II and holding that the tax on Land and Buildings was leviable under entry 49 and that the Madras Urban Land Tax Act 12 of 1966 was valid legislation within the competence of State Legislature, Their Lordships held as under : "In pith and substance the Madras Urban Land Tax Act 12 of 1966 in imposing tax on urban land at a percentage of the market value is entirely within the ambit of entry 49 of List II and within the competence of the State Legislature and does not in any way trench upon the field of legislation of Entry 86 of List I." 46. In Dhillon's case (1 supra) requisites of tax under entry 49 were analysed in para 65 as under : "65. The requisites of a tax under entry 49 List II may be summarised thus:- (1) It must be a tax on units, that is lands and buildings separately as units. (2) The tax cannot be a tax on totality, i.e. it is not a composite tax on the value of all lands and buildings. (3) The tax is not concerned with the division of interest in the building or land. In other words, it is not concerned whether one person owns or occupies it or more persons own or occupy it." It was then said in para 66 : "In short, the tax under entry 49 list II is not a personal tax but a tax on property." 47. In Buckingham's case (14 supra) it was held as under : "We see no reason, therefore, for holding that the entries 86 and 87 of List I preclude the State Legislature from taxing capital value of lands and buildings under Entry 49 List II." The above observations have to be understood in the context of what was stated later. Ramaswami, J., later observed in that judgment as follows : "The basis of taxation under the two entries is quite distinct. Ramaswami, J., later observed in that judgment as follows : "The basis of taxation under the two entries is quite distinct. As regards entry 86 of List I the basis of the taxation is the capital value of the asset It is not a tax directly on the capital value of assets of individuals and companies on the valuation date. The tax is not imposed on the components of the assets of the assessee. The tax under entry 86 proceeds on the principle of aggregation and is imposed on the totality of the value of all the assets. It is imposed on the total assets which the assessee owns and in determining the net wealth not only the encumbrances specifically charged against any time of asset, but the general liability of the assessee to pay his debts and to discharge his lawful obligations have to be taken into account............... But entry 49 of List II, contemplates a levy of tax on lands and buildings or both as units. It is not concerned with the division of interest or ownership in the units of lands and buildings which are brought to tax. Tax on lands and buildings, is directly imposed on lands and buildings and bears a definite relation to it. Tax on the capital value of assets bears no definable relation to lands and buildings which may form a component of the total assets of the assessee. By legislation in exercise of powers under Entry 86 List I, tax is completed to be levied on the value of the assets. For the purpose of levying tax under entry 49, List II the State Legislature may adopt for determining the incidence of tax the annual or the capital value of the lands and buildings. But the adoption of the annual or capital value of lands and buildings for determining tax liability, will not make the fields of Legislation under the two entries overlapping. The two taxes are entirely different in their basic concept and fell on different subject matters." (emphasis supplied). 48. The Madhya Pradesh High Court in Devkumer Singhji Kastur Chandji v. State of Madhya Pradesh and others, AIR 1967 Madhya Pradesh 268 , held that the charging section 4 of that Act was a tax on lands and buildings through the basis of the tax imposed was annual letting value of the land or building. 48. The Madhya Pradesh High Court in Devkumer Singhji Kastur Chandji v. State of Madhya Pradesh and others, AIR 1967 Madhya Pradesh 268 , held that the charging section 4 of that Act was a tax on lands and buildings through the basis of the tax imposed was annual letting value of the land or building. It was, therefore, held to be covered by entry 49 of List I and declared valid. 49. Orrisa High Court in Vysya Raju Badri Narayanamurthy v. Commissioner of Wealth Tax B and O, AIR 1964 Orissa 128 , held that entry 49 of List II is not directly concerned with the capitalised value of lands and buildings though in a particular piece of legislation the capital value may be taken as the basis for levying tax. It was held that, that would only be a method of collecting tax and would not be a tax on the assets. 50. The Gujarat High Court in Shri Prithvi Cotten Mills Ltd. v. Broach Brough Municipality and others, AIR 1968 Gujarat 124 , held that under entry 49 List II, lands and buildings are units of taxation and under entry 86 List J, the unit of taxation is the capital value of the assets. 51. In view of the above, I am of the opinion that section 3 of the Rajasthan Act of 1964 in its original form and also as amended by Act No. 15/73 except the second proviso, are valid and intra vires. Even though the unit has not been defined and no prohibition is indicated under Section 3 in aggregating the market value of all lands and buildings of a person but on the doctrine of presumption of constitutional validity. I am inclined to hold that such a presumption will have to be drawn in this case. The assessing authorities will have to be presumed to be conscious of the limitations of the State legislature and, therefore, they would not aggregate the market value either of lands under original clause 3 in the Act of 1964 or lands and buildings as introduced by Amendment Act 15 of 1973. In other words if an assessing authority would aggregate the capital value or market value of the entire lands and buildings then the assessment order would be bad in law; but on that count the section 3 cannot be held to be ultra vires. 52. In other words if an assessing authority would aggregate the capital value or market value of the entire lands and buildings then the assessment order would be bad in law; but on that count the section 3 cannot be held to be ultra vires. 52. Having held so now the second proviso to Amendment Act No. 15/73 which has now been deleted by Amendment Act No 18/73, is to be considered. There is no doubt that this proviso gives a mandate to add or aggregate the entire lands and buildings of a person and then levy tax after taking them together for the purpose of valuation. This is precisely what has been held to be outside the scope of entry 49 by Dhillon's case (supra) wherein in para 65 the Hon. Supreme Court held that it must be a tax on units i.e. lands and buildings separately as units and cannot be a tax on the composite or total value of all lands and buildings. 53. Before the decision of Dhillon's case (supra) the law was not settled on this point whether entry 49 can permit tax on lands and buildings op the total value of all lands and buildings taken together. The requirement of separate units could neither be spelled out clearly from entry 49 nor it was interpreted to be so by the earlier judgment. The insistence of separate unit, therefore, has been introduced by the authoritative pronouncement in Dhillon's case by the Hon'ble Supreme Court and now as it is the law of the land, all legislation in relation to tax on lands and buildings will have to be tested on the touch-stone of the conditions laid down in it. 54. This proviso by mentioning all such lands and buildings "taken together" expressly directs the aggregation of market value of such lands and buildings taken together and is a tax on the totality of the capital value and is, therefore, covered by the occupied field of entry 86 of the union list The proviso is, therefore, outside legislative competence of Rajasthan Legislative Assembly under entry 49 and is therefore ultra vires, unconstitutional and invalid. 55. 55. Let me now consider the validity of the charging section 3 after the above proviso was deleted by amendment Act 18 of 1973 and another proviso was added to clarify the doubts mentioning that tax would be levied on lands or buildings or both separately as units. Section 2 of Act No. 18/73 is as under : "2. Amendment of section 3, Rajasthan Act 18 of 1964 - In section 3 of the Rajasthan Lands and Buildings Tax Act, 1964 (Rajasthan Act 18 of 1964), hereinafter referred to as the principal Act, (a) the last proviso to sub-section (1) shall be, and shall be deemed always to have been omitted; and (b) after sub-section (1), the following sub-section shall be, and shall be deemed always to have been inserted, namely:- (1-A) For removal of doubt it is declared that the tax shall be levied on land or building or both separately as units." So far as the challenge by Mr. Ray to the above amendment on the ground of units having not been defined is concerned and being violative of Article 14 is concerned, I would deal it a little later. 56. Let me now deal with the submission of Mr. Ray that the amendment by. Ast. N.Q. 1.8/73. was pot possible because section 3 as stated earlier was `still born' and cannot be validated or amended subsequently. Mr. Rastogi, the learned Advocate General first pointed out that a law is legal and valid unless declared ultra vires by the competent court and it cannot be held to be still born piece of law. He relied upon Bal Krishan Menon's case (19 supra). 57. In this respect whereas Mr. Rastogi relied upon R.M.D. Chambarbaugwalla's case (20 supra), Mr. Ray relied upon Sundararmier case (2 supra). In para 21 of Chambaraugwalla's case (20 supra), the Hon. Judges of the Supreme Court observed as under : "it is not material for the purpose of this rule whether the invalidity of the Statute arises by reason of its subject matter being outside the competence of the legislature or by reason of its provisions contravening constitutional prohibition." This judgment of the Hon'ble Supreme Court was given by five Judges bench and the leading judgment was given by Hon. Justice Mr. Venkatrama Iyer. Mr. Rastogi pointed out that the judgment of Sundararmier (2 supra) on which much reliance has been placed by Mr. Venkatrama Iyer. Mr. Rastogi pointed out that the judgment of Sundararmier (2 supra) on which much reliance has been placed by Mr. Ray was also given by the same Hon. Justice Iyer. The above principle laid down earlier, has not been adversely commented upon nor reviewed and, therefore, the law laid down in Chambarbaugwalla's case 20 supra mentioning that it is immaterial whether invalidity arose on account of legislative incompetence or being violative of other constitutional provisions, holds the field and is good law and cover the present case squarely. 58. I am of the opinion that the second proviso introduced by Act No. 15/73 is severable from the rest of section 3 and, therefore, even though the second proviso is ultra vires being outside the scope of entry 49, section 3 can be kept alive after severing this proviso from it. 59. I have even otherwise carefully gone through the judgment reported in R.M.D. Chambarbaugwalla and another v. Union of India and another (20 supra) and Sundaramier's case (2). It is to be noted that the court was concerned with examining the doctrine of sever-ability. The earlier judgment in which the Central Provinces Berar Regulation of Manufacturers of Bidis (Agricultural Purposes) Act, 1948 was challenged, was being considered. The court in earlier judgment held that the restriction imposed by section 4 (2) was in excess of what was requisite for achieving the purpose of the Act, and, therefore, could not be upheld as reasonable restriction within Article 19(1) (g). It was held that section 4(2) of that Act was inseverable. In this view of the matter, the earlier judgment was held to be valid, a decision on the doctrine of sever-ability only. 60. The R.M.D.C. v. Union of India (20 supra) is a decision on the point that if a part of the statute is severable then the court need not strike down the whole of the statute and it is immaterial whether the part which is declared to be ultra vires on account of violative of some constitutional provision or the invalidity of the statute arises by reason of a subject-matter being outside competence of the legislature. 61. 61. In Sundaramier's case (2 supra) the court in para 42 observed that unconstitutionality can arise by two reasons, firstly, the law is in respect of a matter not within the competence of the Legislature and in the second situation the matter may be within competence but its provisions offend some constitutional restrictions. 62. The court then observed that if a law which is absolutely null and void then a subsequent cession of the field to the legislature will not have the effect of breathing life into that which was a still born piece of legislation and a fresh legislation on the subject would be requisite. But in the instant case it has got no application as section 3 was not null and void earlier. The charging section 3 is, therefore, valid and cannot be declared void simply because the deleted proviso 2 was ultra vires. The section as a whole was always valid both before and after amendment and at no stage from 1964 till 1973, it "was null and void. 63. That takes me to the consideration of other branch of submissions of the learned counsel for the petitioners that section 3 is invalid on account of being violative of Article 14 of the Constitution. This argument is based on the basic feature of section 3 that unit has not been defined either in section 3 or any where else in this Act; It is submitted that in the absence of definition of unit, it has been left to the naked, arbitrary, unbridled, unregulated and unlimited discretion of the assessing authority to treat the various lands and various buildings, either standing on the same plot or different plots in an urban area separate units or one unit. Various orders were shown to me during argument by which assessing authorities have taken different views. In some cases a building and the land appurtenant thereto as permitted by the municipal regulations have been treated as one unit. In other cases all the lands and buildings belonging to one owner even though located in different wards or Mohallas of an urban area to be used for one business or one industry, has been treated as one unit. There is no doubt that the Act has failed to give any definition and even indication of what would be the concept of a unit. 64. There is no doubt that the Act has failed to give any definition and even indication of what would be the concept of a unit. 64. In Tamil Nadu Urban Lands Tax Act, 1966 the phrase `each Urban Land' has been defined as follows : "(6) "each urban land" means the land comprised in a servery number or a sub-division number." Section 5 of the Tamil Nadu Act which is charging section, tax has been levied on each urban land. There is no doubt that the unit if defined, would have left no discretion with the assessing authorities to interpret the word `unit' in section 3 of the Act. What should be the concept of a `unit' which should be treated as a separate unit for assessment to the exclusion of other units has been left to be decided by the assessing authority by the legislature and in the absence of the definition or indication or guidelines, there is bound to be some inconsistent decision of the assessing authorities. I inquired from the learned Advocate General whether the rule making authority have made any rules in order to guide the assessing authorities for the purposes of deciding what is a separate unit. Mr. Rastogi after a careful study of the Rules submits that the Rules are also silent on this point. That being so, the lack of precaution of exactness can create confusion and contradictions in the working of this Act but still the question is whether on account of that it can be struck down as being violative of Article 14. 65. It is of course presumed that in view of the constitutional limitations of the State legislature this tax would also be levied and realised on each land, and each building as separate unit because if it is not so then it would not be within the competence of the State Legislature. 66. In the Rajasthan Ceiling Law `unit' has been defined which is as under: "S. 2(m) `separate unit' means an adult son and in case of his death, his widow and children, if any." In Uttar Pradesh the charging section itself indicates that building with land appurtenant to the extent of one acre would be one unit. In almost all other analogous laws unit has always been defined. In almost all other analogous laws unit has always been defined. It is, therefore, strange that in Rajasthan in a taxing statute like urban land and building tax wherein there is limited competence of the State legislature, unit has not been defined and it has been left to the assessing authority to interpret the law and explain it in each case. 67. Mr. B.P. Agrawal, Mr. G.C. Kasliwal, Mr. Khetan, Mr. L.L. Sharma and Mr. P.C. Jain devoted considerable time during their arguments on the confusion, obscurity, and contradictions created on account of the absence of definition of the term `unit' on the one hand and the introduction of the removal of doubts clause by which it has been declared that tax shall be levied on land or building or both separately as units. It has been pointed out to me that the assessing authorities and the revisional and the appellate authorities like the Revenue Board have given different and contradictory interpretation of the above phrases. 68. With a view to clarify the position and to ascertain the exact and precise stand which the State wants to take for the purpose of interpreting the above clause 3(A-1), I inquired from the Government Advocate and the learned counsel again on 5th of May, 1979 and 7th to 10th of May, 1979 by mentioning these cases in the court. Neither the State counsel nor the learned counsel for the petitioners could spell out the exact meaning and implication of the above clause and during the couple of hours which were spent for analysis and understanding it, they continued to shift the ground for the meaning of the above clause. 69. Mr. J.S. Rastogi learned Government Advocate at first submitted that the phrase `both separately' would mean that if there is a land attached to a building the land will be treated as one `unit' and the building would be treated as separate unit. But immediately after making these submissions he revised the view of the State, by submitting that in case of the compact area of land or the building standing on it and the land which are contiguous and in a compact form, would be treated as one unit. But immediately after making these submissions he revised the view of the State, by submitting that in case of the compact area of land or the building standing on it and the land which are contiguous and in a compact form, would be treated as one unit. It was then put to him, whether if the various lands and buildings owned by one owner of a factory or industry or otherwise are located on two sides of the Government road or with some intervening plots or buildings of different owners, what would be the criteria for deciding whether they are one unit or are different units. Mr. Rastogi submitted that in that case if there is a road in between or plot of some different owners then they would be different units and not one unit. However, later on, on the second day he again changed his views and said that they would be one unit only. 70. Mr. Rastogi then invited my attention to the Government clarification for interpretation of section 3 (A-l) issued by the Dy. Director (Adm.) Lands & Buildings Tax Deptt. Rajasthan, Jaipur on 16-12-74 which is as under : "The underlined words in the above section have been conveniently ignored by the assessees as they cannot be explained on any other ground except that where there is some land appurtenant to a building, the building and the land i.e. both must be taken as one unit for the purposes of taxation. In other words the value of both the buildings and the land appurtenant to it must be below Rs. 50,000/- if it is to qualify for exemption. Coming to the Supreme Court judgment it must be said that it has no application at all to the point under reference. In that case the Supreme Court was seized of an altogether different point. In that case the question before the Supreme Court was as to whether the cost of land is entitled to depreciation under the Schedule to the Income-tax Act along with the cost of the building standing thereon. It was understandably held by the Supreme Court that depreciation under section 10(2) (vi) of the Indian Income Tax Act, 1922, is not allowable on the cost of the superstructure. The word "building" in clause (vi) of section 10(2) as much as in clauses (iv) and (v) means structures and does not include the site. It was understandably held by the Supreme Court that depreciation under section 10(2) (vi) of the Indian Income Tax Act, 1922, is not allowable on the cost of the superstructure. The word "building" in clause (vi) of section 10(2) as much as in clauses (iv) and (v) means structures and does not include the site. This ruling is, hence, hardly authority for the contention of the assessee. According to this ruling for the purposes of calculating depreciation under the Income Tax Act of 1922 even the land upon which the building is erected is to be excluded and it is only the cost of the superstructure which is relevant for the said purpose. This ruling can, therefore, hardly be invoked in the present case. I may, however, also state that what is directly in question before us is not what building means under the R.L.B.T. Act, 1964 for we have to be guided by the definition in the said Act. For example, it would be absured to argue that for the purposes of our Act, building means only the superstructure and not the land on which the superstructure stands. What is more germance to the present issue is not what the term "building" means (as the same is clearly defined under our Act) but whether the land appurtenant to a building is to be taken into consideration for calculating the value of the unit or to calculate the tax. For this purpose, as already clearly stated by me above the underlined portion of section 3(A-l) of the Act clearly demolished the argument built by the assessee, which has absolutely no force." 71. My attention was also invited to the circular dated 27-12-74 issued by the Director of Land & Building Tax Deptl. Rajasthan, Jaipur for clarification of the meaning of the word `unit' which is as under : "A question has arisen as to what is meant by a unit under the Rajasthan Lands & Buildings Tax Act, 1964. Whether an industrial complex consisting of various blocks, administrative, manufacturing stores, etc. or even residential buildings for officers within the same curtilage, or different blocks for different plants projects, manufacturing units of the same industrial complex should be treated as one unit. Similarly where within the campus of an educational institution, there are various blocks-teaching block, office building, and residential buildings for teachers, etc. or even residential buildings for officers within the same curtilage, or different blocks for different plants projects, manufacturing units of the same industrial complex should be treated as one unit. Similarly where within the campus of an educational institution, there are various blocks-teaching block, office building, and residential buildings for teachers, etc. whether the entire campus should be treated as one unit and after allowing deduction for exempted portion, all the residential units in the same curtilage should be treated as one unit. The question was examined in the Law Department and it has been opined that when there is one piece of land, and all buildings there over are within the same curtilage and which have been constructed, or are being used for achieving the common functional purpose of the industrial complex or the campus of the educational institution, the land and all buildings taken together (owned by the same person, company or institution) should be taken as forming one unit. Even if different pieces of lands have been initially acquired but have been merged together to form a single campus or industrial complex, the campus or complex as a whole should be taken as one unit. It would be in the fitness of things and also expedient if buildings on the same piece of land and within the same curtilage and which have been constructed, or are being used for achieving the common functional purpose of the industrial complex, or the campus of an institution owned by the same person etc., should be taken as forming one unit." 72. Mr. R.K. Rastogi, learned Advocate General when asked to explain the meaning of clause 3 (A-l) and more particularly `both as separate units', submitted that this means "jointly and severally." I have not been able to understand how' can a unit for the purposes of valuation can be treated as joint and several. This is contradiction in terms and a paradox. If a building is to be treated separately and land is to be treated separately as units how can they be joined and the total value of both of them taken together can be considered as the value of one unit for taxation and exemption from taxation. This is contradiction in terms and a paradox. If a building is to be treated separately and land is to be treated separately as units how can they be joined and the total value of both of them taken together can be considered as the value of one unit for taxation and exemption from taxation. Then again, who would decide whether in a given case it is to be treated jointly or severally, the assessee would always like it to be treated separately in order to attract the exemption clause and the assessing authority would always like to add the valuation of the both and treat one unit by clubbing land and building. 73. Mr. R.K. Rastogi, the learned Advocate General was then asked whether the buildings and lands owned by one person located across the Government road or having some other persons houses in between, though used for the same purposes are to be treated jointly or severally as units. His answer was that if they are used for the same purpose, the fact that road intervening or that there is some house or temple or plot of third party in between, would not result in treating them as separate units. 74. The above contradictory stand taken by the Government even during the arguments only substantiates the basic infirmity in proviso 3 (A-l) and proves the obscure nature of the terms and the words used which conveys no sense. 75. It appears that after the arguments were heard at the stage of admission in the first writ application filed in the year 1973, the State Government in hot haste issued the Ordinance which ultimately was replaced by Act No. 18 of 1973. It further appears that the phrase `lands and buildings' both as units was first used in Sudhir Chandra Nawn v. Wealth-tax officer, Calcutta & others, AIR 1969 SC 59 wherein the ambit of entry 49 List II was discussed. Again in the judgment reported in Buckingham's case (14 supra) the tax on lands and buildings or both as units was again used to explain the ambit and scope of entry 49. 76. Again in the judgment reported in Buckingham's case (14 supra) the tax on lands and buildings or both as units was again used to explain the ambit and scope of entry 49. 76. Then came the crucial judgment of Dhillon's case (1 supra) wherein while summarising the requisites of tax under entry 49 List II, the Hon'ble Chief Justice Sikri introduced the concept of separation of units by mentioning in para 65 that the tax must be on units, i.e. lands and buildings separately as units. It was further emphasised therein that so far as entry 49 is concerned, it cannot conceive of a tax on totality, that is it is not a composite tax on the property. 77. The above judgments were sought to be respected by deletion of earlier 2nd proviso resulting in aggregation, but the draftsmen could not use proper language for it. In view of this unless it is redrafted by the Legislature, section 3 (A-l) results in giving arbitrary and naked discretion to the assessing authority to club the units by utilising the word `both' and thereby falling in the mischief of aggregation which can only be done under entry 86 by Parliament and cannot be done under entry 49 by State Legislature after the judgment of Dhillon's case. 78. It is not without significance that each of the 7 judges while delivering their 3 judgments reported in Dhillon's case (1 supra), agreed that : (a) "aggregation" of 'each' of the `assets, be those, lands `(singular or plural), or `building'(singular or plural) for the object of tax under entry 49 List II is impermissible as this can be done only by the Parliament, even if the State is permitted to tax "each" land or building on the basis of its capitalised value. (b) That the conceptual basis of aggregation or not, would be determinative of the legislative field, between the Parliament and the Legislature of the State, and it is the permissible field exclusively entrusted upon the Parliament. (c) That the above in (a) and (b) had been already recognised by the Hon'ble Supreme Court in the earlier cases reported in:- I. on 11-4-69 in 1970 (75) I.T.R 603 : 1970 (1) S.C.R. 268 , A.I.R. 1970 S.C. 169 in Asstt. Commr. of Urban Land Tax Madras v. Buckingham and Carnatic Co. Ltd. II. (c) That the above in (a) and (b) had been already recognised by the Hon'ble Supreme Court in the earlier cases reported in:- I. on 11-4-69 in 1970 (75) I.T.R 603 : 1970 (1) S.C.R. 268 , A.I.R. 1970 S.C. 169 in Asstt. Commr. of Urban Land Tax Madras v. Buckingham and Carnatic Co. Ltd. II. on 2-4-70 in 1970(76) I.T.R. 713 : 1971 (1) S.C.R. 195 : Second Gift Tax Officer Mangalore v. D.H. Nazereth . III. on 23-4-68 in 1968 (69) I.T.R. 897 : 1969 (1) S.C.R. 108 : Sudhir Chandra Nawan v. Wealth-Tax Officer . Thus, therefore "aggregation" of land with other land or building with another, is impermissible under Entry 49 List II. The words `both' as units cropped in because it was said both buildings and land be taxed and not land alone. The use of "both" in 3 (A-l) therefore destroys the separate unit concept. 79. Now let this question be examined from yet another angle. The definitions of building, land, occupier and owner in section 2 of the Act are as under:- "2(iii) `Building' includes a house, out house, stable, shed, and other enclosures or structures or part thereof whether of masonry, bricks, wood, mud, metal or any other material whatsoever, for whatever purpose used but does not include - (a) a tent or other such portable structure, (b) a dwelling house erected on a holding as defined in the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) by the tenant for his own occupation or a cattle shed or a store house or any other construction for agricultural purposes erected or set up by him on his holding, provided the area covered thereby does not exceed the limit prescribed for purposes of the proviso to sub-section (1) of section 66 or the second proviso to section 67 of the said Act. 2(5) `Land' means land which is, or is capable of being used as a building site, and includes garden or ground appurtenant to a building, but does not include a holding as defined in the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) provided the improvement referred to in the sub-clause (a) of clause (19) of section 5 of the said Act over such holding does not exceed such area as has been prescribed for purposes of the second proviso to sub-section (1) of section 66 or the second proviso to section 67 the said Act. 2(8) `Occupier' means the person in actual occupation or use of the (land or building) or a portion thereof, in respect of which the tax is payable and includes - (a) the owner in occupation, (b) the tenant, who for the time being is paying or is liable to pay rent in respect thereof to the owner, (c) the rent free tenant or licencee thereof, and (d) the person who is liable to pay to the owner damages for unauthorised use and occupation thereof. 2(10) `owner' in respect of any land or building or portion thereof, includes the person, who for the time being receives, or who would be entitled to receive the rent thereof, if the same were let, and includes - (a) an agent or trustee who receives such rent on account of the owner. (b) an agent or trustee who receives the rent of, or is entered with the management of, any (land or building) devoted to religious or charitable purpose; (c) a receiver, sequestrator or manager appointed by any court of competent jurisdiction to have the charge or to exercise the rights of the owner, of the (land or building) or portion thereof and, (d) the mortgagee in possession thereof : Provided that in the case of (land or building) owned by the State Government, the lessee or grantee thereof from the State Government shall, for the purpose of this Act, be deemed to be the owner of such (land or building) as the case may be : Provided further that in the case of (land or building) held on lease for a term not less than thirty years the lessee shall for the purposes of the Act, be deemed to be the owner of such (land or building)." 80. A careful consideration of the above would show that the matter has not been considered from the point of view of the scope of entry 49 and no attempt has been made by the Legislature either to give a clear indication of restricting the incidence of tax on land and building alone and for preventing the implementation of the Act in levying and realising taxes on the aggregate capital value of all the land and all building owned by a person. 81. Mr. Rastogi submitted that the court should interpret the above clause and all relevant references to land and building in the Act keeping in view the scope of entry 49. It was argued that the presumption of constitutionality of the Act should be taken to its logical conclusion by interpreting these phrases in a manner that they are covered by entry 49 only and do not fall within the scope of entry 86 which would result in ousting the authority of the legislature itself for making such law. 82. The learned counsel for the petitioners on the contrary submitted that since the different interpretations given and which can be given, leads to contradictory decisions and absurdity which has been crused on account of the obscurity in language kept by the legislature, the court should strike down the charging section 3 itself without trying to legislate under the garb and name of interpretation of the charging section so as to bring it within the constitutional limits of entry 49. If the legislature has failed to perform its duty, a constitutional duty is cast upon the court to point it out by striking it down and there should be no hesitation on that point. The abstract doctrine of presumption and constitutionality cannot be resorted to in the present case and when the question is of legislative competence, the doctrine cannot be taken to such a far fetched interpretation. It was argued that it is not the duty of the court to make effort and attempt to uphold the legislation, to make up its loop-holes and ignore its constitutional infirmities by resorting to the presumptions of constitutionality. 83. I have given my earnest consideration to this aspect of the case and I am convinced that the language of the section 3 (1 - A) is not happily worded. 83. I have given my earnest consideration to this aspect of the case and I am convinced that the language of the section 3 (1 - A) is not happily worded. Whether the legislature wanted to levy tax on lands separately and building separately, has been left obscure. Again whether the land and buildings belonging to the same persons but located at different places were to be taxed separately as separate units, have not been clearly mentioned. Whether the lands and buildings though located on different khasra numbers or survey numbers, but which are contiguous to each other and located in one compound or campus are not to be treated as different unit but only as one unit, has also been left with a question mark to be answered by the assessing authorities or the Director of Lands and Buildings as per his notions of law. Whether while considering the meaning of this land appurtenant to a building which is necessary to be left vacant by the rules of the local authority is to be treated as one unit and the land more than that is to be treated separate unit, again has been left to the discretion of the assessing authority. 84. There is no doubt that in the absence of definition of unit or clear indication in the charging section, tax on unit separate or otherwise has been left to be interpreted by the assessing authorities. This is creating a good deal of confusion and has resulted in contradictory judgments. In spite of the pointed discussion and queries neither the Government Advocate nor the learned counsel for the parties were able to assist me on the question as to what meaning should be given to the term `both' used in the proviso and that, too, suffixed by separately as units. I am, therefore, of the opinion that the contention of the petitioners counsel has got force that the removal of doubts clause have failed to remove doubts and contrary to it created more doubts about the meaning of the words `unit'. 85. In view of the conclusions which I have arrived at about the implication of section 3 (A-l) regarding removal of doubts, now it is to be seen whether it is violative of Article 14 of the Constitution. 85. In view of the conclusions which I have arrived at about the implication of section 3 (A-l) regarding removal of doubts, now it is to be seen whether it is violative of Article 14 of the Constitution. The latest authoritative pronouncement of Hon. Supreme Court on Article 14 is available in the Special Courts Bill, 1978, Special Reference No. 1 of 1978, AIR 1979 SC 478 given by a special Constitutional bench consisting of Hon. Chief Justice Chandrachud, Hon. Justice P.N. Bhagwati, Hon. Justice Mr. V.R. Krishna Iyer, Hon. Mr. Justice R.S. Sarkaria, Hon. Mr. Justice N.L. Untwalli, Hon. Mr. Justices. Murtaza Fazal Ali and Hon. Mr Justice P.N. Singhal. Hon. the Chief Justice Chandrachud observed in para 73 as under : "73. As long back as in 1960, it was said by the Court in Kangshari Haidar that the proposition applicable to cases arising under Article 14 `have been repeated so many times during the past few years that they now sound almost platitudinous'. What was considered to be platitudinous some 18 years ago has, in the natural course of events, become even more platitudinous today, especially in view of the avalanche of cases which have flooded this Court. Many a learned Judge of this Court has said that it is not in the formulation of principles under Article 14 but in their application to concrete cases that difficulties generally arise. But, considering that we are sitting in a larger Bench than some which decided similar cases under Article 14, and in view of the peculiar importance of the questions arising in this reference, though the questions themselves are not without a precedent, we propose, though undoubtedly at the cost of some repetition, to state the propositions which emerge from the judgments of this Court in so far as they are relevant to the decision of the points which arise for our consideration. Those propositions may be r" stated thus : 1. The first part of Article 14, which was adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India. It enshrines a basic principle of republicanism. Those propositions may be r" stated thus : 1. The first part of Article 14, which was adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India. It enshrines a basic principle of republicanism. The second part, which is a corollary of the first and is based on the last clause of the first section of the Fourteenth Amendment of the American Constitution, enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination or favouritism. It is a pledge of the protection of equal laws, that is, laws that operate alike on all persons under like circumstances. 2. The State, in the exercise of the Governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws. 3. The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The Courts should not insist on decisive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary. 4. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between the persons and another if as regards the subject-matter of the legislation their position is substantially the same. 5. By the process of classification, the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. 5. By the process of classification, the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some ineguanoity; but if a law deals with the liberties or a number of well-defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrary. 6. The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive. 7. The classification must not be arbitrary but must be rational that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that differentia must have a rational relation to the object sought to be achieved by the Act. 8. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense above mentioned. 9. 9. If the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a place of discriminatory legislation. In such cases, the power given to the executive body would import a duty on it to classify the subject-matter of legislation in accordance with the objective indicated in the statute. If the administrative body proceeds to classify persons or things on a basis which has no rational relation to the objective of the legislature, its action can be annulled as offending against the equal protection clause. On the other hand, if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory, irrespective of the way in which it is applied. 10. Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed of do. Abuse of power given by law does occur but the validity of the law cannot be contested because of such an apprehension. Discretionary power is not necessarily a discriminatory power. 11. Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. 12. Whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violative of Article 14 must be determined in each case as it arises, for, no general rule applicable to all cases can safely be laid down. A practical assessment of the operation of the law in the particular circumstances is necessary. 13. A practical assessment of the operation of the law in the particular circumstances is necessary. 13. A rule of procedure laid down by law comes as much within the purview of Article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination." 86. 1 he crucial observation is contained in para 9. On the other band if the statute itself does not disclose a definite policy or objective and if confers authority on another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory, irrespective of the way in which it is applied. 87. In State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 it was held that section 5(1) of the West Bengal Special Courts Act, 1950 was wholly void since it conferred arbitrary powers on the Government to classify offences or cases at its pleasure. From Anwar Ali's case there have teen several cases prominent being of Syed Qasim Razvi (A.I.R. 1953 S.C. 156 ), Lachman Das Ahuja ( AIR 1952 S.C. 235 ) , Kedarnath Bajora ( AIR 1953 SC 404 ) , Ram Krishna Dalmia v. S.R. Tendolkar ( AIR 1958 S.C. 538 ) , Jyoti Pershad v. Administrator for the Union Territory of Delhi (AIR 1962 S.C. 1602) , State of Gujarat v. Shri Ambica Mills Ltd. Ahmedabad ( AIR 1974 S.C. 1300 ) etc. it was rightly observed by Methew Justice in Ambica Mills case ( AIR 1974 S.C. 1300 ) "it would be an idle parade of familiar learning to review the multitudinous cases in which the constitutional assurance of equality before the law has been applied." 88. So far as the instant case, proviso 3(A-1) can be interpreted in several ways as argued by the Advocate General and Government Advocate themselves. So far as the instant case, proviso 3(A-1) can be interpreted in several ways as argued by the Advocate General and Government Advocate themselves. The fact that the learned Advocate General wants this Court to interpret this proviso to mean jointly and severally "makes it abundantly clear that it gives naked, arbitrary, unbridled, unfettered, unregulated discretion to the assessing authorities to join more than one land as unit, more than one building as unit and more than one land and building as unit at their sweet whim and fency, as no criteria or guidelines have been provided anywhere in the Act nor can they be inferred by the scheme of the Act. That being so, I am of the opinion that this sub-section (A-l) of section 3 provides for discrimination amongst similarly situated assessees and is violative of Article 14 of the Constitution. Further this is beyond scope of entry 49 List II also and is ultra vires on both grounds. 89. Mr. Rastogi then argued that even if this proviso for removal of doubts is held to be ultra vires being violative of Article 14 not covered by entry No. 49, then also since it can be severed from the main charging section 3, the validity of charging section 3 would not be affected. I am inclined to accept this contention of Mr. Rastogi and hold that though this proviso newly introduced by Act No. 18/73 is violative of Article 14 and also beyond the powers given in entry 49, yet this by itself would not affect the validity of main charging section 3. 90. The question then arises as to what would be the meaning and concept of creating one unit for taxation of the land and/or building owned by a person. It would have been better if the legislature would have given or even now gives clear indication as to what would be the unit for purposes of assessment. However, as that has not been given, it will have to be seen as to whether on that very ground the charging section 3 can be struck down or the court should accept that the assessing authorities would give that interpretation which would keep the charging section within the ambit of entry 49. 91. However, as that has not been given, it will have to be seen as to whether on that very ground the charging section 3 can be struck down or the court should accept that the assessing authorities would give that interpretation which would keep the charging section within the ambit of entry 49. 91. The basic principle to distinguish this test under entry 49 from entry 86 is that this tax should not be on capital value of land and buildings. It should not be on totality of the value of all the lands and buildings on the principle of aggregation. As held in Dhillon's case (1 supra) the tax under entry 49 must be a tax on units i.e. lands and buildings separately as units. It would not be a personal tax. 92. Entry 49 only `makes taxes on lands and buildings'. Entry 86 says `taxes on the capital value of the assets, exclusive of agricultural land, of individuals and companies, taxes on the capital of companies'. It will be thus seen that though entry 49 nowhere uses the words separate units, it has been interpreted to be so on account of the various judgments of the Hon. Supreme Court including the Dhillon's case whereby describing the requisites of tax under entry 49, it was held that it must be a tax on units that is lands and buildings separately as units. In this view of the matter, I am of the view that except to the extent of land required to be kept open on construction of the building by the municipal authorities other land even though attached to a building, cannot be included in one unit. In other words if the entire land is included in the unit of building and the capital value of both is aggregated for the purposes of assessment or finding out its valuation, it would be a tax under entry 86 and not 49. 93. I am also of the view that each land and building though, being in one campus or compound, owned by one person or a company, should be treated as separate unit in order to limit it to a tax under entry 49. 93. I am also of the view that each land and building though, being in one campus or compound, owned by one person or a company, should be treated as separate unit in order to limit it to a tax under entry 49. The interpretation given by the various authorities or assessing authorities or otherwise of the State of Rajasthan to mean that all lands and buildings owned by a person or a company used for one functional purposes and having contiguous location should be aggregated and treated as the unit for the purposes of assessing the market value and levying tax, is not correct, as it would take it outside the scope of entry 49. It would then become personal tax under entry 86 of List I. 94. Mr. Rastogi invited my attention to paras 44 and 45 of the decision reported in Anant Mills' case (18 supra) wherein while interpreting the entry 49 in relation to the particular provisions of the Bombay Provisional Municipal Corporation Act, it was held land includes plot, surface, and everything below surface also. 95. According to me, this authority would not apply in this case in any manner what-so-ever. In interpreting or defining the scope of the land and building in relation to the term of land or building or both as units, differently or as one unit, the interpretation given by the Hon. Supreme Court to entry 49 of the State List in Dhillon's case (1 supra), is only to be applied and followed for getting the correct guidelines. Hon'ble Supreme Court's interpretation of entry 49 of the State List finds place in three earlier judgments in (1) A.I.R. 1969 S.C. 147, (2) A.I.R. 1970 S.C. 169 and (3) A.I.R. 1970 S.C. 999. In Dhillon's case the requisite of a tax under entry 49 list 11, was summarised as I have already extracted in the aforesaid paragraphs. The crux of it is that it must be a tax on unit and lands and building separately as units and that the tax would not be a tax on totality i.e. it is not a composite tax on the value of all lands and buildings. 96. The crux of it is that it must be a tax on unit and lands and building separately as units and that the tax would not be a tax on totality i.e. it is not a composite tax on the value of all lands and buildings. 96. All that which has been emphasised in the above series of cases to explain the distinction between entry 49 and entry 86 of the State List and Union List, is that under entry 49 the tax is not on the capital value of the assets nor it is on the totality of the wealth or total value of the property or composite value of the property but it is on individual separate unit of land or building and is in contradistinction to joint composite and total value of the land and building. 97. It is difficult to understand why the Director of Lands and Buildings introduced the concept of treating of all lands and buildings meant for a particular functional purpose and in one campus or one compound or which are located consecutively as one unit. If that is so, why the buildings of one person though located with a difference of a road intervening or another person's property intervening be not one unit. If the unit is related to the person and the ownership then the location of the unit either in the same compound or campus or different compounds or campus is hardly of any relevancy. To me, it appears that the only relevant question to be considered is whether there is land or building which is independent or separate from the other land or building though located in the same compound, campus or having contiguity or compactness. It was with this intention that the Tamil Nadu law defined that each survey number or survey division of the land would be treated as separate each unit. The Uttar Pradesh Act made it clear in charging section itself. 98. Since the Rajasthan Legislature has not given any definition, it would have been proper for the assessing authority to have adopted concept of units from analogous laws in other State. This is only way by which the assessments or demarcation of units can be made of an assessee who has got many lands and buildings in one urban area. This will have great relevancy for the purpose of exemption also. 99. This is only way by which the assessments or demarcation of units can be made of an assessee who has got many lands and buildings in one urban area. This will have great relevancy for the purpose of exemption also. 99. The result is that the authorities under the Land and Building Act are prohibited from clubbing, amalgamating and joining the lands and buildings of one assessee only on the ground of their being contiguous or located in one campus or company or compound. They have to treat each land and building as a separate unit irrespective of their location and situation and contiguity or/and even if they are located in the same campus or compound. 100. However, I am not inclined to declare the charging section 3 invalid on the ground that in the assessments of land, plots or buildings, the assessing authorities have interpreted the assessment unit of land and building in a different manner than the one which I have done. The reason being that the invalidity would be attached to the assessments made, orders passed contrary to the above view and not to the charging section or the laws. Section 4 of the Act. 101. Now remains the question of the challenge to section 4 of the Act. Section 4 of the Act is as under : "4. Determination of market value - For purpose of this market value of any land or building or both shall be estimated to be the price which in the opinion of the assessing authority, such land or buildings or both would have reached, if sold in the open market on the date of the commencement of the Rajasthan Urban Land Tax (Amendment) Act, 1973." This section is in pari materia of the provisions of sections 6 of the Madras Urban Land Tax Act, 1966. Section 6 of the Tamil Nadu Urban Land Tax Act, 1966 has been declared to be valid by the Hon'ble Supreme Court in the judgment reported in Buckingham's case (14 supra),the relevant portion of which is as under : "It cannot be said that Section 6 violates Article 14 of the Constitution on ground that it does not provide machinery for determination of market value. The opinion which the Assistant Commissioner has to form under Section 6 is not subjective but has to be reached objectively upon the relevant evidence after following the requisite formalities laid down in the Act. It cannot, however, be said that the power to determine value of the urban land under Section 6 of the Act constitutes excessive delegation of authority and so violates Articles 19(1) and 14 of the Constitution. The power of determining quasi judicial in character the doctrine of excessive delegation of authority has no application." 102. It may be pointed out that by this judgment the Hon'ble Supreme Court reversed the Madras Full Bench judgment dated 10-4-68 by which section 6 was declared ultra vires being violative of Article 14 and which has been later reported by the All India Reporter in the year 1971. As already pointed above, I have refused to be misled by this wrong reporting of the All India Reporter and the reference made to it by Mr Ray on the basis of its reference in some commentary of the Constitution of much later year i.e. 1975. I may reiterate that the Full Bench judgment having been reversed by the Hon'ble Supreme Court cannot be looked into for any purpose what-so-ever, so far as the validity of section 6 being violative of Article 14 of the Constitution of the Madras Law is concerned. Again in view of the fact that the Hon'ble Supreme Court had held it intra vires and not violative of Article 14, the Rajasthan Act section 4 is also valid as the two are identical. I am, therefore, not inclined to discuss in details the various submissions made by the learned counsel of the various petitioners for unsuccessfully persuading me to hold that section 4 of the Rajasthan Land and Buildings Tax Act which relates to the determination of the market value is void because it provides no principles, criteria for the determination of the market value and the valuation of the property can be made by the assessing authority arbitrarily. 103. It was also argued that section 3 of the Act is violative of Article 304 of the Constitution because it restricts and creates impediments in the free flow of trade, commerce and intercourse. 103. It was also argued that section 3 of the Act is violative of Article 304 of the Constitution because it restricts and creates impediments in the free flow of trade, commerce and intercourse. It has been held in the case reported in N.K. Nataraja Mudaliar's case (10 supra) that inter state sales-tax does not offend Article 301 of the Constitution. The tax is on the sale. The movement is incidental to and consequence of the sale. 104. Again in the judgment reported in Abdul Kadir's case (21 supra) the Hon'ble Supreme Court had held that only those restrictions or impediments which directly or immediately interfere the free flow of trade, commerce and inter-course fall within the prohibition imposed by Article 301 of the Constitution. A tax may in certain cases directly and immediately restrict and prohibit free flow of trade but each imposition of tax does not do so. It was, therefore, held that every case must be judged on its own facts and circumstances. Article 301 and 304 of the Constitution are as under : "301. Subject to the other provisions of this part, trade, commerce and intercourse throughout the territory of India shall be free " 304. Notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law - (a) impose on goods imported from other States (or the Union territories any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced, and (b) impose such reasonable restrictions on the freedom of trade, commerce or inter-course with or within that State as may be required in the public interest. Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President." 105. The petitioners who are industrialists submitted that on account of payment of tax on lands and buildings used in the factory the cost of production goes high and, therefore, they cannot compete with other manufacturers where there is no such tax. I am unable to accept this contention because in computing cost of production of a produce, the lands and buildings which is a tax on the fixed assets of the industrial company,has got very little,remote concern only. I am unable to accept this contention because in computing cost of production of a produce, the lands and buildings which is a tax on the fixed assets of the industrial company,has got very little,remote concern only. That being so there is no direct impediment, restriction or hurdle in the business or trade of the petitioners as the manufacturing process is comprised of several things raw material, plant, labour, capital etc. and it would be stressing too much to invoke Article 301 and 304 for holding that it creates restrictions on the free flow of business and trade. This submission of the petitioners also fails and deserves to be rejected. 106. It was argued by Mr. G.C. Kasliwal that lands on which Indian Oil Corporation depots are situated, have been taken on lease from the Western Railway. Some of them have got lands on lease from the U.I.T. and the Oil depot cannot be sold. It is, therefore, argued that no tax can be levied under the Act on it. I am not inclined to accept any of the contentions of Mr. Kasliwal. The tax can be levied from owner or occupier. Occupier has been defined as a tenant liable to pay rent as also an occupier. In respect of the State Government the land lessee or granter of land from the State Government has been declared as owner in the proviso to sub-clause (iv) of section 2; These petitioners who are all oil corporations are occupying land, may be as licencee or lessee but for the purpose of this Act they are owners and or occupiers, liable to pay tax. 107. So far as the contention of Mr. Kasliwal regarding Aditya Mills and Poddar Spinning Mills and other manufacturing units having separate and independent buildings are concerned, I have already held that they are all liable to be assessed separately as units. It would be now for the assessing authorities to examine the cases in the light of the decisions of this Court and decide them afresh. It is not possible for this Court to go into detailed inquiry of facts about each of the petitioner to find out whether assessment orders are consistent with the view this Court is taking about the meaning to the word `unit' and then to quash them individually in each case. 108. Mr. It is not possible for this Court to go into detailed inquiry of facts about each of the petitioner to find out whether assessment orders are consistent with the view this Court is taking about the meaning to the word `unit' and then to quash them individually in each case. 108. Mr. Kasliwal's objection regarding the treating of the properties of the Aditya Mills, Madanganj, Kishangarh situated on two opposite sides of National Highway No. 8 as one unit appears to be well founded on the basis of the interpretation given above by this Court. That being so that objection will have to be reconsidered by the assessing authority and fresh assessments will have to be made treating them as separate units. 109. It was then argued that the machinery of the Kamani Engineering Corporation has been taxed as building. It is not possible for me to scrutinise these objections. There is no doubt that the machinery cannot be treated as building, but the foundation or the construction on which the plant or machineries rests may be treated and can be treated as buildings. I would refrain from saying anything more in this respect. 110. So far as the petitioner Krishi Upaj Mandi Samiti Kota's claim for exemption under clauses (a) and (f) of section 6 of the Land & Building Tax Act is concerned, the assessee should approach authorities concerned first and get the matter decided rather than raising this objection before this Court for the first time. 111. Mr. Kasliwal has also taken objection regarding clubbing of various buildings which are independent. So far different structures of land of petitioners Poddar Park and Mehtab Chandra Golecha is concerned, I have already interpreted the meaning of the lands and buildings to be assessed and the principles for treating the land or building each as separate unit. It is expected that the authorities concerned would revise the assessments if the same are against the principles laid down by this court. It has then been argued that a tank for storing the oil not fastened to the earth is not a building. A tank normally cannot be a building. It is outside the definition of building given above. However, the platform or construction on which it is kept is building. 112. The above covers the various contentions of Mr. G.C. Kasliwal learned Advocate for some of the petitioners. 113. Mr. A tank normally cannot be a building. It is outside the definition of building given above. However, the platform or construction on which it is kept is building. 112. The above covers the various contentions of Mr. G.C. Kasliwal learned Advocate for some of the petitioners. 113. Mr. Khetan, Sanghi and few other counsels appearing for the petitioners have also tried to challenge the various assessment orders passed in these cases. I am not inclined to go into the details, about the correctness or otherwise of the assessment orders because they would be reconsidered in the light of my judgment and the Advocate General has also in all fairness undertaken to get this done subject to the State's rights to appeal and order of stay, if granted in appeal. 114. Mr. Khetan submitted that since an appeal cannot be entertained without payment of tax, the right of appeal is illusory and the provision of appeal or revision be declared ultra vires, also cannot be accepted. The appellate authority is entitled, and the assessee is legally authorised to take the refund after appeal is accepted. The provision for payment of tax either half or part as the case may be in different statutes, have been declared valid by a series of judgments and cannot be treated as either invalid or taking away the right of appeal by this rider. It is also not correct to say that due to this the taxing statute is without power of judicial review in appeal and therefore invalid. That being so, I would not deal with individual grievances of the petitioners regarding the various infirmities or illegalities committed in their assessments which have been challenged in these writ applications. Further, respondents are directed to examine the impugned assessment orders of each individual petitioner afresh in case the petitioner can point out that they require revision or review on account of various propositions of law laid down by this Court in the afore-side paragraphs of this judgment. This procedure has been agreed to by the learned Government Advocate in order to avoid consideration of individual case by this Court as they have also notified replies of individual case and agreed that the cases be decided on the points of law involved only. 115. This procedure has been agreed to by the learned Government Advocate in order to avoid consideration of individual case by this Court as they have also notified replies of individual case and agreed that the cases be decided on the points of law involved only. 115. The various other objections of petitioners need not be decided in this judgment now as liberty is given to them to agitate them separately if necessary in fresh proceedings. 116. Before parting with this case, 1 must mention that the decision in this case on the validity of section 3 of the Act has not been free from difficulty. Though I have declared it intra vires and valid on the doctrine of presumption constitutionality and interpreted the concept of land or building, as different units in consonance with entry 49 as interpreted in Dhillon's case, I must confess that I have not been able to get rid of the feeling that I have travelled on very thin line. Since the unit of land or building has not been defined in spite of four amendments in section 3, I had to make up my mind between the two alternatives. The first alternative was to hold that as section 3 stands, more-than one land, more than one building and more than one land and building can be clubbed together and tax can be levied on totality or composite value of all, making it personal tax or wealth tax for which only Parliament is competent to legislate and section 3 as a whole is liable to be struck down. The second alternative is the one which I have finally chosen to adopt by holding that on the doctrine of presumption of constitutional validity, land and building in section 3 even in the absence of definition of unit would mean, each land and each building as one separate unit and building would cover land beneath it and such other land appurtenant to it as is required to be kept open according to rules of local authorities, and therefore, it is within the legislative competence of State being covered by entry 49 of List II of VII Schedule. I have rejected the first alternative and accepted the second one after weighing and balancing the two for considerable time and testing them on various tests, as discussed in details above. I have rejected the first alternative and accepted the second one after weighing and balancing the two for considerable time and testing them on various tests, as discussed in details above. The circulars of the Land & Building Department were not under challenge, but they were produced by the State to clarify the concept of 'unit' and since they were contrary to the view, I have taken, they could not be allowed to continue. Striking off of (A-l) of section 3 was inevitable, as I have interpreted clearly that in section 3 each land each building will be separate unit. 117. I must also place on record the appreciation for the valuable assistance provided by Mr. S.S. Ray, Senior Advocate, who argued the case with conspicuous ability, assisted by Shri B.P. Agarwal, Shri Khetan, Shri G.C. Kasliwal, P.C. Jain and other learned Advocates for the petitioners; and Mr. R.K. Rastogi, the learned Advocate General assisted by Mr. J.S. Rastogi, Government Advocate for the respondents. The points debated were of great constitutional importance, as the respective legislative fields of State and the Union in the federal structure of our Constitution were involved, in addition to the controversy about violation of Articles 14, 301 and 304 of the Constitution. 118. In the result all the forty-six writ applications are allowed and it is held that : (a) the original section 3 of Rajasthan Land and Buildings Tax Act, 1964 as it was enacted by the Legislature in 1964 is valid and covered by entry no. 49 of List II of Schedule VII of the Constitution. (b) second proviso of section 3 as introduced by Rajasthan Amendment Act No. 15/73 by which the market value of such lands and buildings was to be taken together, is ultra vires as it was outside the legislative competence of the State legislature, to have enacted law under entry 86 of List I of the Schedule VII. This proviso levies tax on aggregated or total or composite market value of all lands and buildings of a citizen and is, therefore, outside the scope of entry 49 of List II of Schedule vii; (c) section 3 as amended by Act No. 15 of 1973 is still intra vires, because the above proviso is severable from the rest of the charging section 3. The doctrine of sever-ability can be applied even though the proviso has been declared ultra vires because of legislative incompetence. This proviso has been deleted by Act No. 18 of 1973. (d) section 3 as it stands in the present form after Amendment Act No. 18 of 1973, is within legislative competence of State legislature being covered by entry 49 of List II of Schedule VII. (e) clause (A-l) of section 3 as it now stands mentioning that for removal of doubt, it is declared that the tax shall be levied on lands or buildings or both separately as units, is violative of Article 14 of the Constitution as units are not defined and the use of the word `both' makes the meaning of it obscure, giving arbitrary and naked discretion to the assessing authority to discriminate between the assessee at their whims and caprice. In that view of the matter this sub-section (A-l) can permit aggregation of the market value of all lands or buildings and, therefore, is also outside legislative competence of entry 49; (f) The absence of definition of `unit' has created obscurity and resulted in contradictory judgments of assessing authorities but on that account, section 3 cannot be declared invalid. The Government circulars dated 16-12-74 of Director of Lands & Buildings Tax Deptt. Rajasthan, Jaipur and dated 27-12-74 of Director of Lands & Buildings Tax Deptt. Rajasthan Jaipur for treating all lands and buildings as one unit which are used for one common functional purpose of one owner, are against the charging section 3 and, therefore, are quashed; (g) Section 3 as covered by entry 49 levies tax on each land and each building as separate unit, and neither two lands nor two buildings nor two or more lands and buildings can be aggregated or joined together for assessment of market value. (h) The assessing authorities can treat a building and the land appurtenant thereto the extent it is required to be kept open by the rules or bye-laws of the local authorities only, as one unit and the additional land is to be treated as separate unit So also merely because there are many buildings in one compound or campus they cannot be clubbed or joined together but each one will have to be treated separate unit; (i) Section 4 of the Rajasthan Land & Buildings Act of 1964 as amended upto date, is not violative of Article 14 of the Constitution of India and is consequently declared intra vires; (j) Provision of appeal and revision contained in sections 16, 18 and 19 of the above Act are also valid of the Act and cannot be declared invalid simply because the law requires that tax is to be deposited as pre-requisite condition for filing the appeal or revision; (k) The respondents are directed to reconsider the impugned orders of assessments of the petitioners, in order to give effect to the principles enunciated above in this judgment, to the extent they apply to the individual cases of the petitioners. The learned Advocate General has also undertaken to get them reconsidered as per this judgment; (l) All other objections raised in individual writ petitions, which have not been decided by this judgment, have neither been waived nor deemed to be rejected. It would be open' to the petitioners to raise them in future separate proceedings, including writ petition and leave is granted for the same. The parties would bear their own costs. *******