Appeal No 145 of 1955
Appeal from the judgment and decree dated the February 10 1953 of the Bombay High Court in 65 Appeal No 742 of 1951 from Original Decree arising out of the judgment and decree dated July 31 1951 of the Court of the Senior Civil Judge Poona in Special  Suit No 89 of 1950
H D Banaji R A Gagrat and G Gopalakrishnan for the appellant
H N Sanyal Additional Solicitor General of India H J Umrigar and R H Dhebar for the respondent
January 16
The Judgment of the Court was delivered by DAS C J
This is an appeal from the judgment and decree of the High Court of Bombay dated February 10 1953 setting aside the judgment and decree of the Court of Civil Judge Senior Division Poona dated July 31 1951 in Special Suit No 89 of 1950 and dismissing the appellant s suit against the respondent with costs throughout
This appeal has been filed under a certificate of fitness granted by the High Court of Bombay
The facts leading up to this appeal may shortly be stated
The appellant is a public limited company registered under the Indian Companies Act 1913
It is a lessee of two cinema Houses known respectively as  West End  and  Capitol  situated within the limits of Poona cantonment area
It exhibits in the said two Houses cinematograph films both foreign and Indian
On March 20 1947 a notice was issued by the respondent whereby in exercise of the powers conferred on it by section 60 of the 11 of 1924 the respondent proposed to make with the previous sanction of the Central Government certain amendments in the notification of the Government of Bombay in the General Department No 4160 dated June 17 1918 and intimated that the draft amendments would be considered by the respondent on or after April 21 1947 and invited objection in writing within 30 days from the publication of that notice
One of the items of amendments was as follows ii V Tax on Entertainments  9 66 1
Cinemas Talkies or Rs 5 0 0 per dramas Rs 10 0 0 show 2
Circus Rs 20 0 0 per show 3
Horse Races Rs 100 0 0 per day of race meeting 4
Amusement park Rs 20 0 0 per day provided as follows 1
The said tax shall be levied at the rate of Rs 10 0 0 per show in the case of the West End and Capitol Talkies and at the rate of Rs 5 0 0 per show in other cases 
It appears that the Cinematograph Exhibitors Association of India submitted certain objections to the proposals
The Cantonment Executive Officer Poona by his letter dated July 8 1947 informed the Secretary of the Cinematograph Exhibitors Association of India that the latter s letter had been submitted to the Government of India in original along with the respondent s proposals and that the imposition of the entertainments tax on cinemas had been approved by the Government of India Defence Department notification No 1463 dated May 7 1947
On June 171948 a notification was issued by the Government of Bombay to the effect that in supersession of the notifications of Government noted on the margin and of all other notifications on the same subject the Governor in Council with the previous sanction of the Governor General in Council was pleased to impose certain taxes in the Cantonment of Poona with effect from July 15 1948
One of the taxes thus imposed was as follows  V Tax on entertainments
Cinemas Talkies or dramas Rs 100 0 in the case of the West End per show and Capitol In other cases Rs 5 0 0 per show 2
Circus Rs 2 0 0 per show 3
Horse Races Rs 100 0 0 per day of race meetings 4
Amusement park Rs 20 0 0 per day
 67 The appellant paid the tax under protest and on or about April 19 1950 filed a suit being suit No 89 of 1950 against the respondent in the Court of the Civil Judge Senior Division Poona for a declaration that the levy collection or recovery of the said tax by the respondent was illegal and invalid for a permanent injunction restraining the respondent from levying collecting or recovering the said tax for refund of the sum of Rs 45802 0 0 being the total amount of tax collected from the appellant for costs and interest on judgment
By its judgment dated July 31 1951 the trial court decreed the suit in full
The respondent preferred an appeal before the High Court against the said judgment and decree of the trial court and the High Court by its judgment and decree dated February 10 1953 allowed the appeal and dismissed the appellant s suit with costs throughout
The High Court however granted to the appellant a certificate of fitness for appeal to this Court and hence this final appeal questioning the validity of the said tax
At all times material to this appeal the respondent was governed by the Act 11 of 1924
Section 60 of that Act runs as follows  601 The Board may with the previous sanction of the local Government impose in any Cantonment any tax which under any enactment for the time being in force may be imposed in any municipality in the province wherein the Cantonment is situated
2 Any tax imposed under this section shall take effect from the date of its notification in the official gazette 
The enactment under which shortly after the date of passing of the  tax could be imposed by the municipal boroughs in the province of Bombay was the Bombay Municipal Boroughs Act 1925 Bom
XVIII of 1925
Therefore the powers of the respondent to
levy and collect taxes under the provisions of the were co extensive with the powers of the Borough Municipalities under the Bombay Municipal Boroughs Act 1925
Section 73 of the last mentioned Act specified the taxes which 68 might be imposed by a municipality
The relevant portions thereof prior to its present adaptation were as follows  Subject to any general or special orders which the Provincial Government may make in this behalf and to the provisions of sections 75 and 76 a municipality may impose for the purposes of this Act any of the following taxes namely xiv any other tax not being a toll on motor vehicles and trailers
 save as provided by section 14 of the Bombay Motor Vehicles Tax Act 1935 which under the Government of India Act 1935 the provincial Legislature has power to impose in the province
 The question is whether the provincial legislature of Bombay had power to impose the tax which is under consideration in this appeal
Under section 100 of the Government of India Act 1935 read with entry 50 in Sch
VII thereto the provincial legislature had power to make law with respect to  taxes on luxuries including taxes on entertainments amusements betting and gambling 
Learned counsel for the appellant contends that the impugned tax is not covered by this entry at all
This entry according to him contemplates a law imposing taxes on persons who receive or enjoy the luxuries or the enter tainments or the amusements and therefore no law made with respect to matters covered by this entry can impose a tax on persons who provide the luxuries entertainments or amusements for the last mentioned persons themselves receive or enjoy no luxury or entertainment or amusement but simply carry on their profession trade or calling
Learned counsel urges that the impugned law is really one with respect to matters specified in entry 46 namely taxes on professions trades callings and employments and there fore cannot exceed Rs 100 per annum under section 142A of the Government of India Act 1935 and Rs 250 per annum under article 2762 of the Constitution
We are unable to accept this argument as sound
69 As pointed out by this  Court in Navinchandra Mafatlal vs The Commissioner of Income Tax Bombay City 1 following certain earlier decisions referred to therein the entries in the legislative list should not be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it
It has been accepted as well settled that in construing such an entry conferring legislative powers the widest possible con struction according to their ordinary meaning must be put upon the words used therein
In view of this well established rule of interpretation there can be no reason to construe the words  taxes on luxuries or entertainments or amusements  in entry 50 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
The entry contemplates luxuries entertainments and amusements as objects on which the tax is to be imposed
If the words are to be so regard ed as we think they must there can be no reason to differentiate between the giver and the receiver of the luxuries entertainments or amusements and both may with equal propriety be made amenable to the tax
It is true that economists regard an entertainment tax as a tax on expenditure and indeed when the tax is imposed on the receiver of the entertainment it does become a tax on expenditure but there is no warrant for holding that entry 50 contemplates only a tax on moneys spent on luxuries entertainments or amusements
The entry as we have said contemplates a law with respect to these matters regarded as objects and a law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or the receiver of that entertainment
Nor is the impugned tax a tax imposed for the privilege of carrying on any trade or calling
It is a tax imposed on every show that is to say on every instance of the exercise of the particular trade calling or employment
If there is no show there is no tax
A 1 1955 1 SCR 829
70 lawyer has to pay a tax or fee to take out a license irrespective of whether or not he actually practises
That tax is a tax for the privilege of having the right to exercise the profession if and when the person taking out the license chooses to do so
The impugned tax is a tax on the act of entertainment resulting in a show
In our opinion therefore section 73 is a law with respect to matters enumerated in entry 50 and not entry 46 and the Bombay legislature had ample power to enact this law
The only other point urged before us is that the notification is violative of the equal protection clause of our Constitution in that it has picked out the appellant s cinema houses for discriminatory treatment by imposing on it a tax at the rate of Rs 10 per show while a tax of only Rs 5 per show is imposed on other cinema houses
The meaning scope and effect of the provisions of article 14 of our Constitution have been fully dealt with analysed and laid down by this Court in Budhan Choudhury vs The State of Bihar 1 and Shri Rama Krishna Dalmia vs Shri Justice section R Tendolkar 2
It appears however from the record that no issue was raised and no evidence was adduced by the appellant before the trial court showing that there were other cinema Houses similarly situate as that of the appellant s cinema Houses
It may not be unreasonable or improper if a higher tax is imposed on the shows given by a cinema house which contains large seating accommodation and is situate in fashionable or busy localities where the number of visitors is more numerous and in more affluent circumstances than the tax that may be im
posed on shows given in a smaller cinema house containing less accommodation and situate in some localities where the visitors are less numerous or financially in less affluent circumstances for the two cannot in those circumstances be said to be similarly situate
There was however no material on which the trial court could or we may now come to a decision as to whether there had been any real discrimination in the facts and circumstances of this case
It 1 2  71 may be that the appellant may in some future proceeding adduce evidence to establish that there are other cinema houses similarly situate and that the imposition of a higher tax on the appellant is discriminatory as to which we say nothing but all we need say is that in this suit the appellant has not discharged the onus that was on him and on the material on record it is impossible for us to hold in this case that there has been any discrimination in fact
For reasons stated above this appeal must be dismissed with costs


Summary:
The Respondent a licencee under floe Karnataka Excise Act for selling liquor at an approved shop flied a Writ Peti tion before the High Court challenging the vires of Section 23d of the Mysore Excise Act 1965 and Rule 81 of the Karnataka Excise Sale of Indian and Foreign Liquors Rules 1968 as being beyond the legislative competence of the State
The High Court negatived the contention of the Respond ent in respect of Section 23d of the Act but held that Rule 81 authorising tihe levy of licence fee for retail shop was without authority of law and dircted refund of the levy collected for three years prior to the filing of tiWrit Petition
Aggrieved by the High Court s decision the appellant State has preferred the present appeal by special leave
Dismissing the appeal this Court HELD The High Court rightly did not accept the chal lenge to Section 23d of the Mysore Excise Act 1965
What is authorised under Section 23d is imposition of a fee of licence in respect of manufacture or sale of any excisable articles
Rule 81 of the Karnataka Excise Sale of Iadion  Foreign Liquors Rules 1968 has obviously gone beyond the enabling provision in the section by requiring a licence fee to be paid for the premises where the licensed shop is located
Such a fee would not have the support of Section 23d
It is unnecessary to refer to precedents for support for this conclusion
It may be possible for the Legisla 701 ture to make a statutory provision for a liicence fee of the type contemplated under the Rules but without authority of the statute a rule of this type should not have been made
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