DELITE TALKIES Vs. CITY OF JABALPUR CORPORATION

JUDGEMENT

(1.) BY this application under Article 226 of the Constitution, M/s R. P. Naik Bros. , who are the lessees of a cinema-house known as Delite Talkies, challenge the validity of a tax levied by the City of Jabalpur Corporation on cinema shows and theatrical performances, and other shows for public amusement, at the rate of Rs. 10/- per cinema show or per performance. The petitioners contend that the imposition is invalid, and pray that the Corporation be restrained from recovering the tax.

(2.) THE tax has been levied by virtue of a resolution passed by the Corporation on ist September 1965, and has become effective from 5th November 1965, the date on which the said resolution of the Corporation was published in the Gazette. The imposition has been made by the Corporation in the exercise of its taxing power under Section 132 (2) (n) of the Madhya Pradesh Municipal Corporation Act, 1956, which empowers the Corporation to impose, for the purposes of the Act, "a tax on theatres, theatrical performances, and other shows for public amusement". The petitioners assail the validity of the imposition on five grounds. First, it is said that under Entry 62 of List II of Seventh Schedule to the constitution a tax on entertainment could be imposed only on the receiver of the entertainment and not on the proprietor or lessee of a cinema theatre, and, therefore, the tax imposed by the Corporation is outside the ambit of that Entry. Secondly, it is submitted that the Government having already imposed an entertainment duty under the Madhya Pradesh Entertainments Duty Act, 1936, the corporation is precluded from imposing a tax on entertainments. Thirdly, it is urged that the tax levied by the Corporation is with respect to " professions, trades, callings and employments" enumerated in Entry 60 of List II of the seventh Schedule to the Constitution, and the amount of tax which the corporation can recover cannot exceed the amount permitted by Article 276 (2) of the Constitution. Fourthly, it is contended that the imposition of the tax at a uniform flat rate of Rs. 10/- per show or per performance is violative of Article 14 of the Constitution. Lastly, it is contended that Section 132 (2) (n) of the M. P. Municipal Corporation Act, 1956, does not empower the Corporation to impose a tax on cinema theatres or shows.

(3.) IN our opinion, there is no merit in any of these grounds of attack on the validity of the tax, and this petition must fail. The contention that the imposition, viewed as a tax on entertainments, is invalid inasmuch as it has been imposed on the proprietor or lessee of a theatre, as well as the argument that if the tax be taken as one on profession or trade, the corporation cannot recover an amount exceeding the amount permissible under Article 276 (2) or the Constitution, are covered by the decision of the Supreme Court in Western India Theatres Ltd. v. Cantonment Board Poona Cantonment, AIR 1959 SC 582 and cannot be accepted. In the case of Western India Theatres also the validity of a tax imposed by the cantonment Board, Poona, on cinema shows was challenged on similar grounds. Repelling the attack, the Supreme Court first pointed out that there was no reason to construe the words "taxes on luxuries or entertainments or amusements" in entry 50 of List 2 of Schedule 7 to the Government of India Act, 1935, as having a restricted, meaning so as to confine the operation of the law to be made thereunder only to taxes on persons receiving the luxuries, entertainments, or amusements. Then it was observed that-