V. N. Khare, J. - (1.) This appeal is directed against the judgment of the Karnataka High Court passed in the writ petition filed by the respondent herein whereby sub-clause (v) of Clause (i) of Section 2 of the Karnataka Entertainment Tax Act (hereinafter referred to as 'the Act') was struck down as being beyond the legislative competence of the State Legislature.
(2.) The respondent herein, is the owner and proprietor of a Drive-in-Theatre in the outskirts of Bangalore city wherein cinema films are exhibited. It is alleged that the Drive-in-Theatre is distinct and separate in its character from other cinema houses or theatres. The Drive-in-Cinema is defined under Rule 111-A of Karnataka Cinemas (Regulation) Rules 1971 (hereinafter referred to as 'the Rules') framed in exercise of the powers conferred on the State Government under Regulation 22 of the Karnataka Cinemas (Regulation) Act, 1964. The definition of Drive-in-Cinema runs as under: " 'Drive-in-Cinema' means a cinema with an open-air theatre premises into which admission may be given normally to persons desiring to view the cinema while sitting in motor cars. However, where an auditorium is also provided in a 'drive-in-cinema' premises, persons other than those desiring to view the cinema while sitting in motor cars can also be admitted. Such drive-in-cinemas may have a capacity to accommodate not more than one thousand cars." The Drive-in-Theatre of the respondent with which we are concerned here is a cinema with an open-air-theatre into which admissions are given to persons desiring to see cinema while sitting in their motor cars taken inside the theatre. The Drive-in-Theatre has also an auditorium wherein other persons who are without cars, view the film exhibited therein either standing or sitting. The persons who are admitted to view the film exhibited in the auditorium are required to pay Rs. 3/- for admission therein. It is not disputed that the State Government has levied entertainment tax on such admission and the same is being realised. However, if any person desires to take his car inside the theatre with a view to see the exhibition of the films while sitting in his car in the auditorium, he is further required to pay a sum of Rs. 2/- to the proprietor of the Drive-in-Theatre. The appellant-State in addition to charging entertainment tax on the persons being entertained, levied entertainment tax on admission of cars inside the theatre. This levy was challenged by the proprietors of the Drive-in-Theatres by means of writ petitions before the Karnataka High Court which were allowed and levy was struck down by a single Judge of the High Court. The said judgment was affirmed by a Division Bench of that Court. It was held, that the levy being not on a person entertained (i.e. Car/Motor vehicle), the same was ultra vires. After the aforesaid decision, the Karnataka Legislature amended the Act by Act No. 3 of 1985. By the said amendment, sub-Clause (v) was added to Clause (i) of Section 2 of the said Act. Simultaneously, Sections 4-A and 6 of the Act were also amended. After the aforesaid amendments, the appellant herein, again levied entertainment tax on admission of cars into Drive-in-Theatre. This levy was again challenged by means of a petition under Article 226 of the Constitution and the said writ petition was allowed, and as stated above, the High Court struck down sub-clause (v) to Clause (i) of Section 2 of the Act.
(3.) Learned counsel appearing for the appellant urged that insertion of sub-clause (v) of Clause (i) of Section 2 of the Act is a valid piece of legislation and after its insertion and amendment of Section 6 and Section 4-A of the Act, the appellant-State was competent to levy and realise the entertainment tax on the admission of cars/motor vehicles inside the Drive-in-Theatre. Learned counsel urged that in pith and substance, the levy is on the person entertained and not on the admission of cars/motor vehicles inside the Drive-in-Theatre. It was also urged that the State Legislature is fully competent to impose such a levy.;