BHASKARA REDDIAR Vs. ALLEPPEY MUNICIPALITY
HIGH COURT OF KERALA
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(1.) O. P. No. 40 of 1955 is by the managing partner of a picture-house and theatre styled 'seematty Talkies'. The petition is to prohibit the Alleppey Municipality from levying entertainments tax on the petitioner in respect of entertainments conducted in his picture-house which is situated within the Municipality. O. P. No. 41 of 1955 is by the proprietors of a Picture-house and theatre styled 'coastal Talkies' situate within the limits of the Alleppey Municipality and the relief asked for is the same. O. P. No. 42 of 1955 is for the same relief by the owner of the picture-house and theatre called 'sree Krishna Talkies' also situate within the limits of the Alleppey municipality. O. P. No. 43 of 1955 is by the managing proprietor of 'raja Mahal theatre' situate within the limits of the Kottayam Municipality. O. P. No. 44 of 1955 is by the proprietor of the 'star Theatre' also situate within the kottayam Municipality. O. P. Nos. 43 and 44 of 1955 are for the same relief as that claimed in O. P. Nos. 40 to 42 of 1955. O. P. No. 138 of 1955 is by the proprietor of the 'golden Talkies' Vaikom situate within the limits of the vaikom.
(2.) O. P. Nos. 40 to 42 of 1955 may be dealt with together. The main allegations in the affidavit filed along Municipality and the prayer in the petition is the same as that contained in the other O. Ps. with O. P. No. 40 of 1955 are the following:- The Travancore-Cochin Local Authorities entertainments Tax Act VI of 1951, came into force on 10. 12. 1951. Before that act came into force the Alleppey Municipality has been levying tax on entertainments under S. 77 (g), 122 and 123 of the Travancore District municipalities Act, XXIII of 1116. Ss. 122 and 123 of that Act were repealed by s. 13 of the Local Authorities Entertainments Tax Act, VI of 1951. S. 12 of that act provides that the local authority to which the Act applies shall, before levying entertainments tax under the Act, make bye-laws, not inconsistent with the Act or Rules made thereunder, in respect of the matters mentioned in the section. Sub-s. (3) of S. 12 provides that the bye-laws shall have effect when they have been approved by Government and published in the Gazette. The alleppey Municipality has not till now made any bye-laws as required by S. 12 of the Act VI of 1951. The Municipality has no right to levy and collect entertainments tax before making bye-laws as required by the section. Although s. 77 (g) of the District Municipalities Act which empowered the Municipality to levy tax on entertainments was not expressly repealed by Act VI of 1951 the municipality has no power, after the coming into force of the latter Act, to levy and collect entertainments tax by virtue of S. 77 (g) of the District municipalities Act. Representation made by the petitioner to the Municipality objecting to the levy and collection of entertainments tax by the Municipality met with no effect. The levy of entertainments tax by the Municipality contravened the provision of Arts. 19 (g), 31 (1) and 276 of the Constitution. To the same effect are the allegations in the affidavits filed along with O. Ps. Nos. 41 and 42 of 1955.
In the counter-affidavit filed by the Commissioner of the Alleppey Municipality in each of the three O. Ps. it was contended as follows:- The Municipality has power under S. 77 (g), 78 and 79 of the District municipalities Act to levy and collect tax on entertainments. These sections are not repealed either expressly or impliedly by S. 13 of Act VI of 1951. In exercise of the power vested in the Municipality under S. 77 (g) of the District municipalities Act the Municipality resolved on 4. 3. 1947 to levy entertainments tax at a particular rate and a Notification to that effect was published in the travancore-Cochin Government Gazette. A further resolution enhancing the rate of entertainments tax was passed by the Municipality on 28. 12. 1954 and was published in the Gazette by Notification dated 29. 12. 1954. Ss. 77 to 79 of the district Municipalities Act not having been repealed, the Municipality has power to levy entertainments tax under those sections and the Notifications issued by the Municipality are perfectly valid. Even if Ss. 77 to 79 of the district Municipalities Act should be deemed to be not in force after the enactment of Act VI of 1951 the Notifications issued by the Municipality will, in any case, remain in force till bye-laws are made by the Municipality under act VI of 1951. The levy and collection of entertainments tax by the municipality did not contravene the provisions of Art. 19 (g), 31 (1) and 276 of the Constitution.
The main questions that arise for consideration in these petitions are:- (1) Whether after the coming into force of the travancore-Cochin Local Authorities Entertainments Tax Act, VI of 1951, a municipality to which the Act applies can levy and collect entertainments tax under the District Municipalities Act, XXIII of 1116? (2) Whether the Alleppey municipality can levy and collect entertainments tax as per the Notification dated 29. 12. 1954? (3) Whether the Notification dated 4. 3. 1947 issued by the Alleppey municipality continues in force after the commencement of the Travancore-Cochin local Authorities Entertainments Tax Act, VI of 1951, and whether the municipality can levy and collect entertainments tax as per that Notification?
(3.) PART III of the District Municipalities Act, XXIII of 1116, containing Chapter VI relates to taxation and finance. The first section of that Chapter, i. e. S. 77, confers on a Municipal Council the power to levy tax. The Section reads: "every Municipal Council may levy (a) property tax; (b) profession tax; (c) a tax on carriages and animals; (d) a tax on carts; (e) tolls on vehicles and animals entering the municipality; and may, with the previous sanction and subject to such Rules as may be framed by Our Government, levy - a tax on advertisements; and a tax on entertainments". S. 78 provides that a resolution by a Municipal Council determining to levy a tax or toll shall specify the rate at which any such tax or toll shall be levied and the date from which it shall be levied. The section also prescribes the procedure to be followed by the Municipal Council in the matter. S. 79 provides that when the Municipal Council has passed a resolution under S. 78 a Notification to that effect shall be published in the Government gazette and also by beat of drum. Ss. 77 to 79 which deal with the general power of the Municipality to levy tax are followed by sections containing special provisions relating to particular kinds of taxes. Ss. 80 to 90 come under the heading 'property Tax'. Ss. 91 to 97 come under the 'profession Tax'. Ss. 98 to 104 deal with 'tax on Carriages and Animals'. Ss. 105 and 106 relate to 'tax on Carts'. S. 107 contains a special provision relating to the collection of tax under S. 98 or S. 105. Ss. 108 to 110 also contain special provisions relating to seizure of vehicles or animals. Ss. 111 to 115 deal with tolls while Ss. 116 to 120 relate to tax on advertisements. Ss. 122 and 123 deal with tax on entertainments and are given that heading. Ss. 124 and 134 contain certain general provisions regarding taxation and finance.
The special provisions relating to tax on entertainments are, as stated already, contained in Ss. 122 and 123. S. 122 provides: "every person who conducts, holds or manages any entertainment in any place within the Municipality shall in accordance with rules framed in that behalf by Our Government, pay on every such entertainment a tax calculated at such rates and in such manner as the Council may, with the approval of Our Government, by resolution determine: Provided always that the rates shall be subject to the maxima and minima laid down by Our Government in this behalf. x x x x x x x". The further provisos in the section exempt certain classes of entertainments from the ambit of the section. S. 123 provides: "no entertainment shall, after the levy of the tax under S. 122 has been determined upon by the Council, be held, conducted or performed in any place within the Municipality without the written consent of the executive authority".;
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