ORDER In this judgment I am dealing with several applications under Article 226 of the Constitution, two in the Original Side and one in the Appellate Side as these raise the common and the important question of the validity of West Bengal Multi-storeyed Building Tax Act, 1975 being West Bengal Act XIX of 1975 as amended by West Bengal Act XX of 1977. In all these applications several points were taken. But as the most important question raised in these applications was the validity and the vires of the West Bengal Multi-storeyed Building Tax Act, 1975 as amended by the Act of 1977 it is necessary to set out the relevant provision of the said Act. The West Bengal Multi-storeyed Building Tax Act, 1975 hereinafter called the 1975 Act, came into effect from 1st of July, 1975 with the prior assent of the President of India. The rules made thereunder were framed by notification dated 21st of August, 1975. Under S. 3 of the Act as the Act stood originally the rate of tax had been provided at Re. 1/- per sq, metre of covered space of multi-storeyed building' per year. Section 2(c) of 1975 Act, which defined Multi-storeyed Building was as follows :- "Multi-storeyed building" means a building on any land in an urban area consisting of five 5toreys and above constructed after the first day of April 1969 and includes any building in such area with less than five storeys constructed prior to that date but raised after that date to a level of five storeys and above." The expression Urban area has been defined to mean "such area as the State Government may by notification declare to be an Urban area for the purpose of this Act." Under S. 3 (2) of the 1975 Act, the tax is payable by the owner who is defined as follows :- "Owner includes the person for the time being receiving the rent of any multi-storeyed building or any part there of whether on his own account or as agent or trustee for any person or society or for any religious or charitable purpose, or as a receiver or, who would so receive such rent if the multi-storeyed building or part thereof were let to a tenant." 2. The 1975 Act as mentioned herein before was amended in 1977 by the West Bengal Taxation Laws 2nd Amendment Act, 1977, the Governor of West Bengal gave his assent to the said Act, and the same was published in the Calcutta Gazette Extra- ordinary on the 30th of September, 1977. In the case of 1977 amendment no assent of the President was obtained, The 1975 Act after its amendment provides that this is an Act for the imposition of tax on multi-storeyed buildings in West Bengal. It extends to the whole of West Bengal. Section 2(b) defines covered space as follows :- "(b) 'covered space' means the floor space and includes the space of covered courtyard, gangway, garage, verandah, common service area and such other space as may be prescribed ;" Multi-storeyed building has been defined under S.2 (c) as follows :- "(c) 'multi-storeyed building' means a building on any land in an urban area consisting of five storeys and above" Urban area has been defined in S. 2 (11) as follows;- "(h) 'urban area' means such area as the State Government may, by notification, declare to be an urban area for the purposes of this Act ;" Section 3 which deals with the levy of tax is to the -following effect :_ 3. Levy of tax.-( I) Notwithstanding anything to the contrary contained in any other law for the time being in fore; but subject to other provisions of this Act, there shall be charged and levied for every year a tax (here-in-after referred to as 'the tax') on every multi storeyed building. (2) The tax in respect of multi-storeyed building shall be payable by the owner thereof to the State Government. (3) The tax shall be levied per year or' part thereof on the covered space of the multi-storeyed building at the rates specified below: I. (i) where the total Fifty paise per square metre. covered space does not exceed fifty square metres (ii) where the total Rupee one per square metre. covered space exceeds fifty square metres but does not exceed one hundred square metres. (iii) where the total Rupees three per square metre. covered space exceeds one hundred square metres but does not exceed two hundred square metres. (iv) where the total Rupees five per square metre. covered space exceeds two hundred square metres, II. covered space exceeds fifty square metres but does not exceed one hundred square metres. (iii) where the total Rupees three per square metre. covered space exceeds one hundred square metres but does not exceed two hundred square metres. (iv) where the total Rupees five per square metre. covered space exceeds two hundred square metres, II. in the case of multi-storeyed building or part thereof used for commercial or industrial purposes : on the whole of covered space Rupees seven and paise fifty per square metre. Explanation,-For the purposes of this Act- (a) 'commercial use' means the use of any multi-storeyed building or part thereof for the purpose of carrying on any trade or business or for running an office in relation thereto; (b) 'industrial use' means the use of any multi-storeyed building or part thereof for carrying on any manufacturing process as defined in the Factories Act, 1948” (4) The tax shall not be levied on the following multi-storeyed buildings. namely :- (a) multi-storeyed buildings owned by the Central Government, the State Government, Government of any other State or any local authority; and (b) multi-storeyed buildings situated within the area to which the provisions of the Cantonment Act, 1924 (2 of 1924) apply. (5) The State Government may, by notification, exempt from the payment of the tax- (a) any multi-storeyed building or part thereof constructed by the Department of Housing of the Government of West Bengal or the West Bengal Housing Board, the Trustees for the Improvement of Calcutta or/any other Statutory Body, comprising apartments, flats and tenements for sale or allotment to person whose annual income does not exceed rupees twelve thousand. (b) any multi-storeyed buildings or part thereof owned by any diplomatic or consular mission of a foreign State, or (c) any multi-storeyed building or part thereof used for the purpose of any school, collage or other educational or public charitable institution, hospital or dispensary. Section 3A is to the following effect :- "3A. (b) any multi-storeyed buildings or part thereof owned by any diplomatic or consular mission of a foreign State, or (c) any multi-storeyed building or part thereof used for the purpose of any school, collage or other educational or public charitable institution, hospital or dispensary. Section 3A is to the following effect :- "3A. Computation of amount of covered space.-In computing the amount of covered space of the multi-storeyed building of any owner for the purpose of assessment, there shall de included all covered space of any such building as may be owned by the spouse or minor children of such owner." The other provisions deal with the taxing authority, manner of payment, penalty for default, the mode of recovery of tax and penalty, production and inspection of accounts and documents power to enter and inspect, for penalty and for delegation 'and the power to make rules. It is not necessary, in my opinion, for the consideration of the contentions raised in these applications to consider these provisions. The rules are also not very relevant for my present purpose. 3. In considering the various contentions that have been raised in this case I may briefly refer to the facts relevant for my present purpose involved in these writ applications wit h which I am concerned now. In Matter no. 115 of 1978 the petitioner is the State Bank of India, a body corporate incorporated under the State Bank of India Act. 1955. It states that the said petitioner is the owner of two multi-storeyed buildings in Calcutta within the jurisdiction namely, premises no.1, Strand Road, Calcutta and premises no. 4A, Ronaldshay Road, Calcutta. A portion of premises no.1, Strand Road which forms part of the original premises no. 1, 2 & 3 Strand Road, Calcutta consists of an eight storeyed building, The first to six storeys of the said premises were completed by the month of February 1962 and the remaining storeys were completed by the month of July 1968. the total covered space therein including the common service areas is 7091 sq. metres. According to the petitioner, the said building is med for its own office accommodation. The municipal taxes payable in respect of the entire premises including the said multi-storeyed building is Rs. 34,562.58 paise per a quarter or Rs. the total covered space therein including the common service areas is 7091 sq. metres. According to the petitioner, the said building is med for its own office accommodation. The municipal taxes payable in respect of the entire premises including the said multi-storeyed building is Rs. 34,562.58 paise per a quarter or Rs. 1,38,250.32 per year the petitioner states that having regard to the area of its covered space the tax payable under the said Multi-storeyed Building Tax Act 1975 as amended in 1977 would be Rs. 53,182.50 (7091 sq. metre by Rs.7,50 per sq. metre) The petitioner further, states that in view of housing shortage the petitioner in pursuance of the housing scheme of its employees acquired and constructed a multi-storeyed building at premises no.4A, Ronaldshay Road, Calcutta. The said premises no. 4A, Ronaldshay Road is a 11 storeyed building of which construction was completed by June, 1965. The total covered space in the said building including the common service area is 3941.12. sq. metres. The building consists of entirely residential flats which are allotted to officers on duty at Calcutta of the petitioner bank by way of free furnished quarters. No portion of the said building is used for any commercial or industrial purposes or use. The municipal taxes payable in respect of the said building is Rs. 7,154.88 p. per quarter or Rs.28,619.53 p. per year. Apart from such municipal tax having regard to the area of its covered space the tax payable under the Multi-storeyed Building Tax Act 1975 as amended in 1977 would be Rs. 19,705.60 p (3941.12 sq. metres by Rs. 5 per sq. metre). 4. So far as the facts in Matter no. 116 of 1978 are concerned the sail application is by the State Bank of India, Senior Supervising Staff Co-operative Housing Society Ltd. a body corporate registered under the Bengal Cooperative Society Act of 1940, and one Bhowani Prasad Chatterjee, Member Secretary of the State Bank of India Senior Supervising Staff Co-operative Society. The petitioner no.1 in that said application is the owner of one multi-storeyed building in Calcutta being premises no. 12/9. Ballygunge Place, Calcutta. The petitioner states that in view of the housing shortage in pursuance of the Housing Scheme for its members the petitioner no.1 acquired and constructed a multi-storeyed building on premises no. 82/9, Ballygunge Place, Calcutta. The petitioner no.1 in that said application is the owner of one multi-storeyed building in Calcutta being premises no. 12/9. Ballygunge Place, Calcutta. The petitioner states that in view of the housing shortage in pursuance of the Housing Scheme for its members the petitioner no.1 acquired and constructed a multi-storeyed building on premises no. 82/9, Ballygunge Place, Calcutta. The said premises is a twelve storeyed building of which construction was completed by 1972. The total covered space in the said building including the common service area is 3018.40 sq. metres. The building consists entirely of residential flats which are allotted to the members of the petitioner no.1. No portion of the said building is used for any commercial or industrial purposes. The municipal lax payble in respect of the said building is. Rs. 4,472.04 paise per square or Rs. 17,883.16 per year. Apart from such municipal tax the petitioner has to incur various expenses on account of maintenance, repairs providing for common services etc. which in the year 1977 a mounted to about Rs 54,000/-. The said premise, consists of 22 flits of which five are being used by its members and out of the remaining flats are let out to the State Bank of India and 12 flats to outsiders since the construction of the building in the year 1972. Having regard to the area of its covered space the tax payable under the Multi-storeyed Building Tax Act 1975 as amended in 1977 would be Rs. 19,705.60 per sq. metre. (3,941,12 sq. metre by Rs. 5/- per sq. metre) per year. However, in respect of the year 1977-78 the said tax payable according to the petitioner would be about Rs. 11,823.35. these are the relevant facts for these two applications. 5. So far as the facts in application being C.R. No. 53(W) of 1978 are concerned it may be mentioned that the petitioner is one Sm. Basanti Debi Saraogi wife of Sri Harakchand Saraogi. The petitioner in that application states that she is the owner of premises no.P-8, Kalakar Street Calcutta the said premises no. P-8, Kalakar Street, Calcutta is a live-storeyed building. The built-up area and/or space occupied by the said building including the covered court yard, gangway, verandab, common service comprises about 165 per square metres on the ground floor. The petitioner in that application states that she is the owner of premises no.P-8, Kalakar Street Calcutta the said premises no. P-8, Kalakar Street, Calcutta is a live-storeyed building. The built-up area and/or space occupied by the said building including the covered court yard, gangway, verandab, common service comprises about 165 per square metres on the ground floor. The total covered floor area of the different floors taken together would come to 777 square metres approximately. There are few shops on the ground floor and offices on the third floor of the said port ions are being used for trading purposes. The second, third and fourth floors of the said building are occupied by the petitioner and her family members for residential purposes. 6. In support of these applications various contentions were urged. It was urged that the impugned Act of 1975 as amended in 1977 is vague and unworkable. It was submitted that the said Act imposes unreasonable restriction and violated Article 19 as well as Article 31 of the Constitution. It was submitted that the Act was beyond the legislative competence of the State legislature and the amending Act of 1977 not having received the assent of the President of India was unenforceable. But the main contention urged in support of these applications which require serious consideration is that the impugned Act, as amended in 1977 violates the provision of Article 14 of the Constitution and as such bad. In this case the validity of the State Act is involved, there/ore bad these been suits or other proceedings as contemplated in S. 141 of Civil Procedure Code, than in view of the rule 1 of Order XXVIIA of the Code of Civil Procedure it would have been mandatory to direct notice to the Advocate General of the State. But in view of the Explanation of S. 141 of the Civil Procedure Code as the State Government was represented by the Senior Government Pleader 1 felt that there was on need of any separate notice to the Advocate General in respect of these applications the learned Government Pleader on behalf of the respondents also did not raise this point. 7. 7. Hut before I deal with this main contention I must dispose of one of the minor contentions urged in this application that the Act of 1975 as well as the amendment introduced in 1977 was beyond the legislative competence the State Legislature. In my opinion, the Act is clearly covered by Entry 49, List II of the 7th Schedule of the Constitution which is an entry dealing with taxes on lands and buildings, and in that view at the matter, in my opinion, of obtaining Presidential assent to the amendment introduced in 1977 arises. The fact that in the case of the Act of 1975 Presidental assent was obtained does not, in my opinion, have the effect that for the amendment introduced in 1977 there was need for Presidential assent. In view of clause 3 of Article 246 of the Constitution in my opinion, the State Legislature has the exclusive power to make laws for the taxes of lands and buildings and the impugned legislation in its pith and substance is a tax on lands and building as it is a tax on multi-storeyed buildings in the State of West Bengal. 8. It is well settled that in deciding this question the pith and substance of the legislation has to be judged. In this connection reference may be made to the decision of the Federal Court in the case of Ralla Ram v. Province of East Punjab, AIR 1949 FC 81, and to the case of Second G. T. Officer, Mangalore v. D.H. Hazareth, AIR 1970 SC 999 . I am, Therefore unable to accept this contention urged in support of these petitions on this ground. In my opinion, as the Act comes within Entry 49 of List II of the 7th Schedule the amending Act did not require the assent of the President. 9. In that view of the matter, in my opinion, it is not very relevant to consider the Division Bench decision in the case of Spences Hotel v. State of West Bengal. 1975 Calcutta High Court Notes page 115 upon which some reliance was placed on behalf of the respondents State authorities and there the Division Bench was concerned with the validity of the West Bengal Entertainments and Luxuries (Hotels and Restaurants) Tax Act, 1972. 1975 Calcutta High Court Notes page 115 upon which some reliance was placed on behalf of the respondents State authorities and there the Division Bench was concerned with the validity of the West Bengal Entertainments and Luxuries (Hotels and Restaurants) Tax Act, 1972. The said Act was sought to be based on Item 62 in the List II of the 7th Schedule of the Constitution under which taxes can be imposed by the State on luxuries, including taxes on entertainments, amusements, betting and gambling. It was contended that the legislature instead of imposing tax on luxury in the impugned Act had sought to levy tax on air-conditioned floor space and this was ultra vires the power of the State Legislature. It was argued that S.4 of the said Act, namely, the West Bengal Entertainments and Luxuries (Hotels and Restaurants) Tax Act, 1972 imposed a flat rate of Rs. 150/- per annum on specified air-conditioned floor-space in hotels and restaurants though these might be differently situated with reference to their locality clientale, services and amenities rendered and the Act did not make any reasonable classification of hotels and restaurants and thaefore suffered from the vice of discrimination under Article 14 of the Constitution. It was held by the Division Bench that luxuries in Entry 62 included the singular of that word namely, luxury as well both luxuries and luxury can be taxed under this entry. The ambit of Entry 62 which included taxes on entertainments: amusements, betting and gambling, according to the Division Bench, showed that a tax levied under Entry 62 of List II could not be restricted to certain articles only but might also be extended to things incorporeal Air-conditioned space, according to the Division Bench, is a luxury in India and this luxury can be taxed under Entry 62 of List II in the 7th Schedule of the Constitution and therefore the State Legislaiure was competent to impose a tax on luxury. Assuming that luxuries in Entry 62 were to be confined in objects or articles of luxuries, according to the Division Bench, the impugned legislation with respect to air-conditioners within the meaning of clause 3 of Article 246 of the Constitution. Assuming that luxuries in Entry 62 were to be confined in objects or articles of luxuries, according to the Division Bench, the impugned legislation with respect to air-conditioners within the meaning of clause 3 of Article 246 of the Constitution. The Division Bench was of the view that a classification had been made between air-conditioned spaces in hotels and restaurants and non-air-conditioned spaces in hotels and restaurants and according to the Division Bench this was an intelligible differentia and this differentia had a rational relation to the object sought to be achieved by the Act which was 4 ‘to provide for the imposition of tax on entertainments and luxuries in hotels and restaurants." It was a tax on the extent and volume of air-conditioning in a hotel or restaurant wherever it might be situated. The Division Bench, further, observed that there might not have been mathematical nicety or perfect equality in this legislation based on similarity but that did not offend, according to the Division Bench, the provisions of Article 14 of the Constitution and therefore the impugned legislation could not be struck down on the ground of discrimination under Article 14. Chief Justice S.P. Mitra who delivered the judgment on behalf of the Division Bench referred to the principles applicable in judging the question of validity under Article 14 of the Constitution at page 124, paragraph 21 of the judgment and observed at page 125 of the report in paragraph 22 of the judgment that in every case the Court had to find out whether there was a classification founded on a reasonable differentia and secondly, whether that differentia had a rational relation to the objects to be achieved by the statute. According to the Division Bench in the legislation with which the Division Bench was concerned the classification had been made between air-conditioned spaces in hotels and restaurants and non-air-conditioned spaces in hotels and restaurants and the Division Bench thought that this was an intelligible differentia and the differentia had a rational relation With the object to be achieved which was for the imposition of tax on entertainments and luxuries in hotels and restaurants. The Division Bench noted that there might be hotels and restaurants situated at different localities of the city of Calcutta and even in tile different districts of West Bengal charging different rates from their customers. The Division Bench noted that there might be hotels and restaurants situated at different localities of the city of Calcutta and even in tile different districts of West Bengal charging different rates from their customers. But the tax sought to be imposed was on the luxury of au air-conditioned space available in a hotel and restaurant. The Division Bench was of the view that the enjoyment of a person in an air-conditioned space in a hotel in central Calcutta could not be remarkably different from his enjoyment in an air-condition space in a hotel in south Calcutta or in Park Street or in Chowringnee areas, There might not have been mathematical nicety or perfect equality in this legislation. It was a tax on the extent and volume of air-conditioning in a hotel and restaurant where over it might be situated. The ultimate burden of the tax would go to the person who enjoyed the luxury of air-conditioning as the tax was imposed was bound to be taken in calculating the cost of air-conditioning. 10. In my opinion, the context in which the Division Bench applied the well settled principles in judging the concept or tax on luxury are significantly different from the context in which I have to adjudicated the Act of 1975 as amended by Act of 1977. In that view of the matter I am afraid that the observations of the Division Bench would not be of much assistance in resolving the controversy in the instant case. 11. The basic concept of judging the validity of a legislation. Central or State under the equality clause embodied in Article 14 of the Constitution is that the State shall not deny equality before law or equal protection of the laws to any person within the territory of India. To treat equals as unequals in imposing the burdens and rigours of law violates the fundamental tenet, of our Constitution. It also follows that to treat unequals as equals in imposing a burden is equally violative of the principles of equality embodied under Article 14 of the Constitution. The Courts must, however, be very cautious in judging this question of validity of a legislation because every presumption is in favour of the validity of an Act of the legislation until overcome beyond rational doubt. By the presumptions upon which under the Constitution we must act the legislatures. The Courts must, however, be very cautious in judging this question of validity of a legislation because every presumption is in favour of the validity of an Act of the legislation until overcome beyond rational doubt. By the presumptions upon which under the Constitution we must act the legislatures. Central as well as Stales, are supposed to know the wishes and the needs of the people, and the lawmakers are supposed to reflect the intention of the people. It is also said that our lawmakers are in possession of facts upon which a legislation is based while the Courts are not. Scepties and cynics would perhaps say that all these are fictions divorced from realities. But the juniciary is not permitted to act either on cynicism or sceptism. But if by clear and indubitable demonstration a statute be opposed to the Constitution then the Court has no choice but to say so. The Constitution by its own terms is the supreme law of the land under our form of government. A legislation on the other hand either of the State legislature or of the Parliament is the act of an agency of this sovereign authority and if it conflicts with the Constitution must fall for that which is not supreme must yield to that which is. To hold a legislation, invalid if it be invalid is a plain exercise of the judicial power, a power vested in courts to enable them to administer justice according to law. From the authority to ascertain and determine the law in a given case there necessarily results in case of conflict the duty to declare and enforce the rule of the Supreme law and reject that of much inferior act of legislation which transcending the Constitution is of no effect and binding on no one. This is not the exercise of substantive power to review and nullify acts of the legislation for no such substantive power exists. It is simply a necessary concomitant of the power to hear and dispose of a case or a controversy properly before the Court to the determination of which must be brought the test and measure of the law. (see in this connection the observations in the case of In Adkins v. Children's Hospital, 1261 U.S. 525; 60 Led. 785, 43 Sup. Ct. Rep. 394 as quoted in Cooley's Constitutional Limitations. 8th Ed. (see in this connection the observations in the case of In Adkins v. Children's Hospital, 1261 U.S. 525; 60 Led. 785, 43 Sup. Ct. Rep. 394 as quoted in Cooley's Constitutional Limitations. 8th Ed. page 333 and observations in 1972 Ed. pp. 159-177. 12. Therefore, the task to judge the validity of a legislation on the ground of the breach of the constitutional provision is a delicate one and should only be entered upon with caution, reluctance and hesitation. But if in spite of the forensic generosity there is patent discrimination in the sense of treating dissimilar things or objects similarly or vice, versa the court is bound to examine the vires of the legislation closely. See in this connection the observations of the Supreme Court in the case of Avinder Singh v. State of Punjab, AIR 1979 SC 321 ; -a decision which aequires consideration. There the Supreme Court was considering the validity of levy of tax on Indian made Foreign Liquor at a flat rate of rupee one per bottle under the Punjab Municipal Corporation Act, 1976. Mr. Justice Krishna Iyer expressed the view that intoxicating liquids falling under the well known category of foreign liquors form one class and a flat minimal rate of Re. 1/per bottle had no constitutional stigma of inequality. But the learned Judge was cautious enough to reiterate the fact that the correct law has been laid down in the case of East India Tobacco Co. AIR 1962 SC 1733 a decision which I shall discuss later, where the Supreme Court reiterated the principle enunciate in the case of Moopil Nair v. State of Kerala (infra). But in deciding whether a taxation la w is discriminatory or not it is necessary to bear in mind that the State has a wide discretion in selecting the persons or objects it will lax and that a statute is not open to attack on the ground that it taxes some persons or objects and not others. It is only when within the range of selection the law operates unequally and that cannot be justified on the basis of valid classification that it would be violative of Article 14. The learned Judge also quoted from Willison "Constitutional Law" page 587 and the learned Judge expressed the view that foreign liquor does not fall in this category, because they form a class by itself. The learned Judge also quoted from Willison "Constitutional Law" page 587 and the learned Judge expressed the view that foreign liquor does not fall in this category, because they form a class by itself. I mention this decision because valuation may not always be the sole criterian in levying tax for all objects, but in respect of a tax designed to raise revenue as taxes on lands and buildings If the well known principles of valuation or capacity to yield income are ignored the result would be inequality as I shall be presently notice It is true from one point of view all five storeyed buildings can be Said to form a class, but their income, capacity to yield income, their potentiality, their enjoyment, their value, their cost of construction, their amenities, vary so immensely that it may not be appropriate to treat them for the purpose of; levying tax on land and building as one class by themselves. It is also necessary in this connection to bear in mind that this limitation under Article 14 of our Constitution is quite independent of any question of limitation on the State power of taxation on the plea that it amounts to indirect taxes because it has been held in Some decisions of the Supreme Court of the United Slates that all indirect taxes should he subject to the rule of uniformity because of Article I, S.8, clause I of the U.S. Constitution - See The American Constitution (3rd Ed.) by G. Herman Pritchett (1977 Ed ). 13. The principles are fairly well settled which are applicable in considering a question of this nature. Article 14 of the Constitution prohibits class legislation but does not forbid classification. Discrimination, is bad, but classification is not violative of the Constitution. Permissible classification however satisfy two conditions. namely, that it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together left out of another group and the differentia must have rational relation to the object sought to be achieved. Discrimination, is bad, but classification is not violative of the Constitution. Permissible classification however satisfy two conditions. namely, that it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together left out of another group and the differentia must have rational relation to the object sought to be achieved. But in permissible classification mathematical nicety or perfect equality are not required and the classification may be founded on different basis namely, geographical objects or persons or the like and we have also to remember, as I have indicated before, that there is a presumption in favour of the validity of an enactment and the burden is upon him who challenges to show that there is a clear transgression of the principle. Now, in judging the question of taxes on buildings and lands certain relevant factors have from time to time been emphasised by the courts, ignoring of which or non-consideration of which, might in a particular situation, result in treating dissimilar objects similarly and violating the provisions of equal protection before the laws. 14. In this connection it is, therefore relevant to refer first to the decision of the Supreme Court in the case of K.T. Moopil Nair v. State of Kerala AIR 1961 SC 552 . There the Supreme Court was considering the validity of Travancore-Cochin Land Tax Act of 1955 as amended by Act of 1957. By a majority judgment the Supreme Court observed that a taxing statute was not wholly immune from attack on the ground that it infringed the equality clause in Article 14 of the Constitution though the courts were not concerned with the policy underlying a taxing statute or whether a particular taxing statute could have been imposed in a different way or in a way that the court might think more just or equitable. If the legislature has classified persons or properties into different categories which are subjected to different rates of taxes with reference to income or property such a classification would not be open to the attack of inequality on the ground that the tax burden resulting from such a classification was unequal. If the legislature has classified persons or properties into different categories which are subjected to different rates of taxes with reference to income or property such a classification would not be open to the attack of inequality on the ground that the tax burden resulting from such a classification was unequal. Similarly, different kinds of property might be subjected to different rates of taxation but so long as there was a rational basis for the classification Article 14 would not stand in the way of such classification resulting in unequal burdens on different classes of properties. But if the same class of property similarly situated was subjected to an incidence of taxation which result in unequality the law might be struck down as creating an inequality amongst holders of the same kind of property. After reviewing the different provisions of the Travancore-Cochin Land Tax Act, 1955 as amended by Act of 1957 the Supreme Court observed at page 556 of the report that from a review of the provisions of the Act as amend ed it would be clear that the provisions of the Act laid down in barest outline the policy to impose a uniform and what was asserted to be a low rate of land Tax on all lands of the State of Kerala. Apart from other infirmities which the Supreme Court noted. that it did not make any provision for the issue of notice or submission of return and there being no provision for appeal the Supreme Court observed that though it had the merit of brevity as also of simplicity derived from the fact that a tax was levied at a flat rate, irrespective of the quality of the land and consequently of its productive capacity. Under the Act the charge was to be levied whether or not any income had been derived from the land. The Supreme Court observed that the legislature was so much in earnest about levying and realising the tax that it could not even wait for a regular survey of the lands to be assessed with a view to determine the extent and character of the land. The Supreme Court observed that the legislature was so much in earnest about levying and realising the tax that it could not even wait for a regular survey of the lands to be assessed with a view to determine the extent and character of the land. The Supreme Court noted at page 557 of the report that if the property of the same character had to be taxed the taxation must be by the same standard so that the burden of taxation might fall equally on all persons holding that kind and extent of property. If the taxation generally speaking imposes a similar burden on everyone with reference to the particular kind and extent of property on the same basis of the taxation the law would not be open to attack on the ground of inequality even though the result of the taxation might be that the total burden on different persons might be unequal. But if the same class of property similarly situated is subjected to an incidence of taxation which result in unequal treatment the law must be struck down as creating an inequality amongst holders of the same kind of property. The Supreme Court noted at page 558 of the report that the Act in that case obliged every person who land to pay the tax on the flat rate prescribed whether or not he made any income out of the property or whether or not the property was capable of yielding any income. The Supreme Court, further, observed that ordinarily a tax on land or land revenue was assessed on the actual or the potential productivity of the land sought to be taxed. In other words:, the tax has reference to the income actually made or which could have been made with due diligence and therefore with due regard to the incidence of taxation. Therefore, the Supreme Court found analysing the section that inquality was writ large in the Act. It was one of those cases where the lack of classification created inequality. It was, therefore, hit by the prohibition to deny equality before law contained in Article 14 of the Constitution. Mr. Justice Sarkar, as the learned Chief Justice then was, took a different view. 15. The question was again examined by the Supreme Court in the case of Jaganath Baksh Singh v. State of U.P. AIR 1962 SC 1563 . It was, therefore, hit by the prohibition to deny equality before law contained in Article 14 of the Constitution. Mr. Justice Sarkar, as the learned Chief Justice then was, took a different view. 15. The question was again examined by the Supreme Court in the case of Jaganath Baksh Singh v. State of U.P. AIR 1962 SC 1563 . There the Supreme Court was examining the question of U.P Large Land Holdings Tax Act, 1957. The Supreme Court observed that a taxing statute could be held to contravene Article 14 of the Constitution if it purported to impose on the same class of property similarly situated an incidence of taxation which lead to obvious inequality. There was no 'doubt that It was for the legislature to decide on what objects to levy what rate of tax and that It was not for the Court to consider whether some other objects should have been taxed or whether the different rate should have been prescribed fur the tax. But if in its operation any taxing statute is found to contravene Article 14 it would be open to the courts to strike it down as denying to the citizens the equality before the law guaranteed under Article 14 of the Constitution. The Supreme Court found that S. 5(1) of the said Act did not offend either Article 19(1)(1) or Article 14 on Article 13 of the Constitution. It was found by the Supreme Court that the purpose was to impose tax levied on the land holding subject to the important proviso that holdings the area whereof did not exceed thirty acres would not be taxed. In other words, it was on only big holders whose land holdings were subjected to the tax by the Act. Even so, the basis adopted for levying the tax was ultimately the rent payable for the land or lands in question and taking the basis of the said rent the annual value of the land was required to be determined by ad opting a suitable multiple. Section 5(1) of the Act prescribed the maximum limit of this multiple and it left to the discretion of the State Government to adjust the multiple as the local conditions of land might require. It would obviously not have been practicable for the legislature to provide for different multiples in respect of different districts or in regard to different classes of lands. It would obviously not have been practicable for the legislature to provide for different multiples in respect of different districts or in regard to different classes of lands. Having laid down the general policy in that behalf the legislature naturally left the adjustment of the multiple to the discretion of the State Government because the said adjustment had to be made in the light of the local conditions and by reference to the class of land. Therefore, the discretion left to the Slate Government could not be said to be unfettered or uncanalised as to amount to unreasonable restriction. 16 In the case of East India Tobacco Co. v. State of Andhra Pradesh AIR 1962 SC page 1733 the Supreme Court was again considering the question of the validity of taxing provisions in the light of Article 14 of the Constitution. The Supreme Court was judging the Andhra Act of 1955, amending S. 55 of the Madras Sales Tax Act and it held that virginia tobacco had features which distinguished it from country tobacco and could be treated as a class in itself. It would, therefore, be within the power of the State to impose a tax on the sales of virginia tobacco exempting the country tobacco. The question was also considered by the Supreme Court in the Case of Rai Ramkrishna v. State of Bihar, AIR 1963 SC 1667 ; where the Supreme Court was considering the Bihar taxation on Passenger and Goods (Carried by public Service Motor Vehicles) Act, 1961. 17. In this connection it may be at the stage be appropriate to discuss two decisions of the High Courts namely, the decision in the case of Bhubaneawariah v. State, AIR 1965 Mys. 170; where the Division Bench of the Mysore High Court was considering the Mysore Building Tax Act, 1962. Mr. Justice Hegde, as the learned Judge then was of the Mysore High Court, observed that S. 4 of the said Act had adopted the floorage basis as the only basis for imposition of the tax was not only unscientific, it was arbitrary and mechanical. It did not conform to any of the known principles to taxation. In the very nature of things under that basis the incidence of tax: must fall unevenly on things similar. It did not conform to any of the known principles to taxation. In the very nature of things under that basis the incidence of tax: must fall unevenly on things similar. According to the Court the classification adopted appeared to be a mere mechanical formality devised in a haphazard manner as cover for raising money. It did not disclose differentiation pertinent to the burden being heavy in some cases and light in others. The Court was, further, of the view that mere fact of classification was not sufficient to relieve a statute from the reach of the equality clause. In such matters there should not only be a classification but the same should be based upon reasonable ground of some difference which bore a just and proper relation to the attempted classification and was not arbitrary selection The object of the Act was not to limit the floorage of the buildings in towns but to raise public revenue, Therefore, the classification on the basis of floorage had no just relationship with the object of the Act. The Court accordingly found the Act suffered from lack of rational classification. The Act was therefore declared void as it was violative of the Article 14 of the Constitution and S.4. which was the charging section was violative of Article 14 of the Constitution, the other being machinery provision could not exist without the charging section, the entire Act was declared void and inoperative. Mr. Justice Bhat observed that the levy of property tax required the legislation to fix a reasonable co-relation to the value of the property Co the assessee, any other basis would constitute mal-apportionment and result in arbitrariness and inequality. His Lordship found that the only factor taken into consideration by the impugned Act in that case for the apportionment was the size of the building in disregarding its age, location, rental value or capital value. What was material to the assessee as the owner of the property was the present value of the property at the time of the assesement. This was the cardinal principle in the matter of valuation of premises for rateable purposes at the date of the valuation. The basis of the tax under the impugned Act had therefore no reasonable co-relation to the value of the building of the assessee and therefore the Act violated Article 14 and also Article 19 of the Constitution. This was the cardinal principle in the matter of valuation of premises for rateable purposes at the date of the valuation. The basis of the tax under the impugned Act had therefore no reasonable co-relation to the value of the building of the assessee and therefore the Act violated Article 14 and also Article 19 of the Constitution. It is also necessary to consider the decision in the case of N. Kunhali Haji v. State of Kerala AIR 1966 Kerala page 14 where a learned single Judge of the Kerala High Court was considering the Kerala Building tax Act, 1961 and expressed the view that the Kerala Building tax Act, 1961 sought to impose tax on buildings on the basis of the floor-area of the building. The floorage as defined in the Act had reference only to tile basement excepting where there was a first and second floor. It bad nothing to do with the quality of the building, its location, its usefulness and much less its value and for, that matter the income that could be derived from that building. Value of a building located in a busy city or city would be much higher than its counter-part elsewhere due to various reasons namely, cost of construction, the cost of land in which it was built and its letting value will also be different from that of similar building situated in the country. But under the impugned Act in that case both had been levied in the same manner. The absence of classification where the classification was necessary created inequality. The distribution of burden of the tax had not been equitable. The learned Judge noted that though in the matter of taxation a large discretion was vested in the legislature and it was for them to decide the person or the property to be taxed or to decide the incidence of tax as who should be taxed and in what manner, large as these powers were there still were subject to the provisions of the Constitution. The Court observed that when taxes were levied on land and buildings the base of the tax must be either the capital value of the land and the building or the annual letting value of the land and building. For this the Court sought reliance from passages in Cooley's Constitutional Limitation and other relevant authorities. The Court observed that when taxes were levied on land and buildings the base of the tax must be either the capital value of the land and the building or the annual letting value of the land and building. For this the Court sought reliance from passages in Cooley's Constitutional Limitation and other relevant authorities. The impugned Act, therefore, was declared to be bad. 18. This position was again reviewed by the Supreme Court in the case of N.M.C.S. & w. Mills v. Ahmedabad Municipality AIR 1967 SC page 1801. There the Supreme Court was considering the Bombay Provincial Municipal Corporation Act. 1949 and was concerned with Ss. 127(1) and (3), Ss. 406 and 411 of the said Act and certain schedules thereto. The said case dealt with property Tax on textile mills, factories, buildings of universities etc. imposed by the Municipal Corporation of Ahmedabad Flat rate method according to floor area was adopted fur taxing rateable value. It was held that the same was violative of Article 14 of the Constitution. The Supreme Court observed that flat late method according to floor area call only be applied where the majority of properties were so nearly alike in character as to be regarded identical fur rating purposes. There was nothing to show that condition prerequisite for determination of annual value of textile factories in Ahmedabad on the basis of rental value per foot super of floor area existed at the relevant time nor had it been shown that the so called contarctor's basis was adopted by the municipal authorities of Ahmedabad. The Supreme Court noted that the method was not also one which was generally recognised by the authorities on rating. In this connection the Supreme Court referred to the decision of the Mysore High Court which I have already mentioned namely Bhuvaneswariah v. State of Mysore about the Mysore Building Tax Act and also the decision in the Kerala High Court which I have indicated before. 19. In the case of Twyford Tea Co. v. Kerala State AIR 1970 SC page 1133 upon which some reliance was placed on behalf of the respondent government before me, it was held by the Supreme Court by majority that there was wide range of selection and freedom in appraisal not only in the objects of taxation and the manner of taxation but also in the determination of the rate or rates applicable. The burden of proving discrimination was always heavy and heavier still when a taxing statute was under attack, and it was on a person complaining of discrimination. The burden is proving not possible inequality but hostile unequal treatment. This is more so when uniform taxes arc levied. The Supreme Court noted that when the legislature reasonably applied an uniform rate after equalising matters between diversely situated persons differeces in treatment must be capable of being reasonably explained in the light of the object for which the particular legislation was undertaken. This must be based on some reasonable distinction between the cases differently treated. There the Supreme Court was concerned with Kerala Plantation (Additional Tax) Act of 1960 as amended by the Act of 1967. The Supreme Court held that the Act no doubt dealt with seven different kinds of plantations and imposed an uniform rate of Rs. 50/- per hectare but it laid down principles on which equal treatment was ensured. In the case of cocoanut, arecanut, rubber, coffee and pepper plantations, plants capable of yielding produce were to be counted and then the hectares were determined by dividing total number of plants by certain figure. This was intended to equalise the different plantation for the purpose of taxability. in the remaining two cases the extent of land yielding the crop was itself taken as a measure for the lax because it was considered fair and just to treat one actual hectare of crop yielding plantation as equal to the other areas converted into hectares on the basis of number of plants and trees. Differences in yield between one plantation and another having the same crop, no doubt arose from situation, altitude and rainfall but these were not the only factors. The law did not single out any particular planation for hostile or unequal treatment. Therefore, the Supreme Court round that there was no discrimination notwithstanding the uniform rate for each plantation based on the actual crop yielding area. 20. The question was also again examined by the Supreme Court in the case of D. Ramaraju v. State of A.P. AIR 1972 SC page 828. There the Supreme Court was considering the Andhra Pradesh (Krishna and Godavari Delta Area) Drainage Cess Act, 1968 and the Supreme Court held that the provisions of the Act were not violative of Article 14 of the Constitution. There the Supreme Court was considering the Andhra Pradesh (Krishna and Godavari Delta Area) Drainage Cess Act, 1968 and the Supreme Court held that the provisions of the Act were not violative of Article 14 of the Constitution. Reliance was placed on behalf of the respondents by the learned Government Pleader on this decision also. But there the Supreme Court found that the rate of cess prescribed for each division had a rational nexus with the object of the Act and was based on intelligible differentia. The object of the Act was to raise funds for the implementation of schemes to secure protection of the lands in the deltaic area from the ravages of the: floods. The Act was designed to benefit the land in the divisions of the deltaic area and levy of cess at uniform rate for each acre of the land in a division could not be considered to offend the principle of equality. The Supreme Court noted that flood strike equally all lands in the area and made no discrimination so far as the quality and productive capacity of those lands were concerned. In the circumstances, it appeared to be just and reasonable that each acre in a division should bear equal burden of the amount which was sought to be raised to fight the danger of flood and provide for an efficient system of drainage. The Supreme Court also noted the differential in the cost of drainage scheme of the four divisions had been properly reflected in the varying rates of cess division, and the Act contained sufficient guidelines for the fixation of the rate of cess and there were also enough materials on record to justify uniform rate of cess for each acre of land in a division of deltaic area. The Supreme Court, further, noted that the imposition of tax on land for raising general revenue was substantially different from the levy of cess for implementation of drainage scheme for the benefit of lands in an area and the principles applicable in one case would not necessarily hold good on the other. On behalf of the respondent government authorities learned Government Pleader strongly relied on the decision of the Supreme Court in the case of M. Match Works v. Asst. Collector, C E. AIR 1974 SC page 497. There the Supreme Court was considering certain notification issued under the Central Excise Rules, 1955. On behalf of the respondent government authorities learned Government Pleader strongly relied on the decision of the Supreme Court in the case of M. Match Works v. Asst. Collector, C E. AIR 1974 SC page 497. There the Supreme Court was considering certain notification issued under the Central Excise Rules, 1955. There the Supreme Court noted that bare equality of treatment regardless of the inequality of realities is neither justice nor homage to the constitutional principle. Mr. Justice Krishna Iyer referred to the cynical statement of Anatole Frances the Supreme Court further observed that another proposition which was equally settled that merely because there was room for classification it did not follow that legislation without classification was always unconstitutional. The Court could not strike down the law because the legislation had not made any classification which commended to the Court as proper nor can the legislative power be said to have been un-constitutionally exercised because within the class sub-classification was reasonable but had not been made. The modern State in exercising its sovereign power of taxation had to deal with complex factors relating to the objects to be taxed, the quantum to be levied the conditions subject to which the levy had to be made, the social and economic policies which the tax was designed to sub-serve and what not. From the judicial impaction tower according to Mr. Justice Iyer the Court might only search for arbitrary and irrational classification and its obverse namely, capricious uniformity of treatment when crying dissimilarity existed in reality. Unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review. 21. It is true that upon whom the burden of tax should fall is a matter of legislative wisdom and policy upon which the Court is incompetent to enquire. It is also true that in all cases classification is neither necessary to pass the test of validity nor is it necessary to sub-classify the same object to make the law more rational. Learned Government Pleader stressed and in my opinion rightly that whether in a particular case sub-classification or what he called mini-classification would have been more conducive for the benefit of the people was a matter for legislative wisdom and not a matter for judicial review. Learned Government Pleader stressed and in my opinion rightly that whether in a particular case sub-classification or what he called mini-classification would have been more conducive for the benefit of the people was a matter for legislative wisdom and not a matter for judicial review. But the Court on this aspect is concerned in my opinion with only a very narrow question, namely whether likes have been treated alikes or whether unlikes have been treated alike that is to lay when you treat all in the same level and thereby make them unequal, then lack of classification of even lack of sub-classification may create inequality violative of Article 14 of the Constitution. Whether in a particular situation a particular legislation has that effect or not depends upon the particular situation and the particular legislation with which the Court is concerned. 22. These aspects were considered very recently in a similar context by the Division Bench of the Bombay High Court in several writ petitions, mainly, in the case Rajat Mahal Co-operative Housing Society Ltd. v. State of Maharashtra & ors, judgment in respect of which was delivered on the 1st of December, 1978 (unreported). The Division Bench was concerned with the Maharashtra Tax on Residential Premises Act, 1974. The said Act was an Act to provide for the levy and collection of tax on certain residential premises in the State of Maharashtra. It was stated in the preamble that whereas it was expedient to provide for the levy and collection of tax on certain residential premises in the State of Maharashtra, the Act was being enacted. In the definition, of the said Act 'building' included a house, out-house shed, hut or any other such structure, whether of masonry bricks, wood, mud, metal or any other material whatever but did Hut include garage or quarters intended for the use of servants and used as such by them the definition of floorage indicated that it meant floor area of a premises excluding the thickness of walls. ‘Taxable premises’ meant premises in respect of which tax was leviable under the Act. ‘Taxable premises’ meant premises in respect of which tax was leviable under the Act. Section 3 of the Act provided that subject to the provisions of the Act there should be levied and collected for every year commencing on the 1st day of April, 1974, a tax on all residential premises on the basis of its floorage situated in corporation areas specified in column I of the Schedule at the rates set out against each such area in column 2 of the Schedule. The other provisions of the Act are not germane for our present purpose. The schedule to the Act indicated in Item I greater Bombay and provides a particular rate of tax per square metre or part thereof and in item II included other limits of other corporation areas where a slightly different rate was prescribed though not of much significance. The impugned Act was challenged on various grounds before the High Court which was referred to the Division Bench by the learned Single Judge. The first ground of challenge, however, was that the provision of the Act violated the equality clause of Article 14 of the Constitution. It was contended that selection of certain flats on the footing of their floor area was not a rational grouping and suffered from the vice of putting together dissimilar accommodation area wise and subjecting to them to uniform tax under the Act There was the challenge that the State had no right to introduce the legislation under Entry 49 of List II of the 7th Schedule. It was also challenged that the Act in question imposed unreasonable restriction and was violative of Article 19 of the Constitution. Chief Justice Deshmukh mainly considered the argument based under Article 14 and found it unnecessary to express any Further opinion of Article 19. The learned Chief Justice referred to the several decisions of the Supreme Court to which I have mentioned and referred to the decision in the case of N.M.C.S. & w. Mills v. Ahmedabad Municipality of Ahmedabad AIR 1967 SC 1801 ; and the Division Bench observed that the Supreme Court had pointed out the incidence of tax on various buildings having more than 1000 square feet of floor area, and the Supreme Court had noted that the location of the building whether in a large industrial town or in an insignificant 'village had not been given any importance at all. The rate of tax was determined by the floor area, it did not depend upon the purpose for which the building was used, the nature of the structure, the town and locality in which the building was situated, the economic rent which might be obtained for the building, the cost of the building and other related circumstances which might he appropriate to be taken into consideration in any rational system of taxation of building. The Division Bench of the Bombay High Court also referred to the other case namely. K.T. Mopil Nair v. State of Kerala (supra) and observed that the Kerala law made no attempt to find out the location of the building the place and nature of the construction, the purpose for which it was used, the situation the capacity for profitable user and several other relevant circumstances which have bearing on matters of taxation. The Division Bench noted that where objects, persons or transactions essentially dissimilar were treated as one for the imposition of a uniform tax, discrimination might result on refusal to make a rational classification because in such a case it might result in denial of equality. The Division Bench also referred to the decision of New Manek Chowk Spinning & Weaving Mills for the Municipal Corporation (supra) and then examined the impugned legislation with which the Division Bench of the Bombay High Court was concerned. The impugned Maharashtra Act imposed the floor area tax only within the Municipal Corporation areas as given in the Schedule. The tax was on the residential premises within the Greater Bombay area and also included the area of the Municipal Corporation of the cities of Pune, Sholapur. Kolhapur and the city of Nagpur. The Division Bench then examined the different provisions of the Act and came to the conclusion that it was more or less similar to the Kerala Act in its essential features which the Supreme Court had examined. On behalf of the Government before the Division Bench of the Bombay High Court it was argued the Maharashtra Act was restricted to what might be described as advanced towns as Corporation areas were taken into account. It was, further emphasized that use of the premises was specifically taken into account. On behalf of the Government before the Division Bench of the Bombay High Court it was argued the Maharashtra Act was restricted to what might be described as advanced towns as Corporation areas were taken into account. It was, further emphasized that use of the premises was specifically taken into account. But in my opinion, with great respect as the Division Bench of the Bombay High Court pointed out the Act in question was essentially a property tax and it refused to make any distinction between different areas of the same town and the degree of development which might be different in different localities under the same municipal administration. The Division Bench noted that in Bombay there were posh locality of the Fort area and the Malabar Hill and the backward areas which still surrounded the suburbs and also erstwhile villages which have become the Municipal Corporation area of Greater Bombay by virtue of extension of the area of the Corporation by Government from time to time. All these areas, the Division Bench noted with respect rightly, were not equally developed and therefore the Act operated uniformly to all areas which were dissimilar and could have no comparison to one another. The material used, the nature of the structure, the cost of the construction, the capacity to yield income vary immensely. They are not equal from locality to locality. That was the reality of life and the impugned piece of legislation forgot to take this factual aspect and sought to equalise by legislative direction unequal buildings and therefore it suffered from the vice indicated by the Supreme Court. The Division Bench noted that even though the legislature had a wide choice in selecting the objects. articles, persons and properties for the purpose of taxation there must always be a rational nexus between the tax sought to be levied and the object which are subjected to that tax. In that view of the matter after discussing the other cases of the Supreme Court to which I have referred the Division Bench come to the unequivocal conclusion that the Maharashtra piece of legislation suffered from the vice of inequality and there was no rational classification and struck down the Maharashtra Act as ultra vires the Constitution On the ground that it violated Article 14 of the Constitution. In that view of the matter the Division Bench felt it unnecessary to go into the other questions raised in that case. 23. Now. in the light of the principles if I examine the present Act, namely, West Bengal Multi Storeyed Building Tax Act, 1975 as amended by the Act of 1977 it is manifest in view of the definition under S. 2(b) and (c) read with S. 3 that all multi-storeyed building and multi-storeyed building means building on any land in an urban area consisting of five storeyes and above have been subjected of the levy of tax at uniform rate though there has been some distinction made as to the rate to be imposed in case of residential and commercial building, and industrial buildings. But it is mainifest that there are multi-storeyed buildings, namely, five storied building in different parts of Calcutta and other towns to which this Act might be applied some of which are in devloped areas whose yield of income or capacity to yield income is far greater than the yield of income from buildings in other areas. A five storeyed building constructed in Cossipore or Beliaghata in Calcutta long ago cannot be considered to be equal as a five storeyed building in Park Street or Chowringhee constructed recently. Their cost of construction, their yield and capacity to yield income, their use and their potentiality vary to such a large extent that to treat them alike would be to treat unequals in their essential features as equals in the burden of taxation. This is a tax on multi-storeyed building in West Bengal. That is the purpose of the tax It is not a legislation to control multi-storeyed building or anything like that. It is a tax on building" intended to raise revenue for the purpose of the State and if the tax in question ignores the vital factors which are germane for imposition of taxing buildings and lands, then, in my opinion the Act in question would suffer from the vice of inequality. It is true as the learned Government Pleader said that value of construction or yield from the building may not always be in the wisdom of the legislature the only rational basis of classification. It is true as the learned Government Pleader said that value of construction or yield from the building may not always be in the wisdom of the legislature the only rational basis of classification. But if the value of construction, the potentiality of the income to be yielded or the income actually yielded, if the condition and age of the building these are all ignored and only solitary factor that they are all five storeyed building or above is taken as the basis for imposition of a tax which is a tax on building then in my opinion it cannot be denied that unequals have been treated as equals. The fact that by the amendment the distinction between building constructed before 1969 and thereafter has been abolished, a fact upon which learned Government Pleader relied, does not help the matter. If any thing it makes the position worse from this aspect-one might have argued that because of the cost of building after 1969 and land valuation there was same scope of taking the cost of the buildings and land as, the basis for classification. But even that position is no longer open now, It may be that in a new city this problem does not arise in such an acute form where buildings have cropped up more or less simultaneously. But as in Bombay so in Calcutta there are areas where some buildings in Burrabazar or Cossipore or even in Chitpore five storeyed building had been built long time ago perhaps in the early part of this century and let out to tenants at very low rent to subject them to be treated equally with buildings in 1970's and around in the posh areas of Calcutta and make only user for residential and commercial or residential basis the sole distinction of difference for the imposition of different rates, in my opinion, is violative of Article 14 of the Constitution, 24. Following the principles of the Supreme Court and agreeing respectfully with the decision of the Division Bench or the Bombay High Court referred to hereinbefore I am of the opinion that the West Bengal Multi-Storeyed Building Tax Act, 1975 as amended by the Act of 1977 is ultra vires, bad and unenforceable. Following the principles of the Supreme Court and agreeing respectfully with the decision of the Division Bench or the Bombay High Court referred to hereinbefore I am of the opinion that the West Bengal Multi-Storeyed Building Tax Act, 1975 as amended by the Act of 1977 is ultra vires, bad and unenforceable. It appears to me that the different provisions of the Act being mainly based upon S. 3 read with the definitions the Act is not severable, Therefore, if S.3 read with the definitions in S.2(b) and (c) are bad the entire Act becomes bad, 1, therefore, declare that the provisions of the West Bengal Multi-storeyed Building Tax Act, 1975 as amended by the Bengal Taxation Laws (Second amendment) 1977 to be bad and violative of Article 14 of the Constitution. It was then contended that the impugned Act was unreasonable and it could be extended to such urban area as the State Government might by notification declare to be urban area for that purpose. It was urged that there was sub-delegation of legislative function without any guideline and the Act was therefore bad to that extent. I am, however, unable to accept this contention. The authority has been given to the State Government the purpose is to tax multi-storeyed building, urban area has been defined, Therefore, in my opinion there were sufficient guidelines and the impugned Act does not suffer from the -vice of sub-delegation. 25 It was, then, contended that the Act was vague and unreasonable. On the other hand on behalf of the State it was stated that the tax would be proportionately levied from the owners of the different portions of the multistoryed flats. But it is not necessary for me to go in to the question in the view I have taken, It was also urged that the Act was violative of Article 19 of the constitution as it imposes unreasonable restriction and reference was made to the decision in the case of Asst. Commissioner Madras v. B & C. Co., AIR 1970 SC 169 ; and also the decision in the case of Kailash Nath v. State of U.P., AIR 1957 SC 790 ; Had It been necessary for me to examine this question in detail I am inclined to think that the Act did not impose any unreasonable restriction and was not violative of Article 19 of the Constitution. But I need not examine this aspect in any greater detail and rest my decision on this point in the view I have already taken. It was also urged that the Act was violative of Article 31 of the Constitution and therefore bad. Reliance was placed on the decision in the case of Coffee Board, Bangalore v. It. Commcl. Tax Officer AIR 1971 SC page 870. I am also inclined to think that the Act was not violative of Article 31 of the Constitution, But it is not necessary for me in the view I have taken to examine the question in any greater detail on this aspect. 26. In the view I have taken as indicated before on Article 14 I declare the Act t) be ultra vires and restrain the respondents Government authorities from enforcing and realising tax under the said Act. I further direct that the taxes if realised should be refunded to the respective petitioners in this case within a period of three months from this date. The owners of the buildings, as defined in the Act, shall not transfer their ownership without giving three weeks notice, in writing, to the respondent Government for a period of three months. 27. The Rule is made absolute to the extent indicated above. In the facts and circumstances of this case there will be no order as to costs. Rule made absolute.