Civil Appeal No 4 of 1977
From the Judgment and Order dated 3431975 of the Calcutta High Court in Appeal No 156 of 1974
GL Sanghi Dhruv Mehta Aman Vachhar and SK Mehta for the Appellants
Tapas Ray and GS Chatterjee for the Respondents
Harish N Salve Lalit Bhasin Ms Nina Gupta Vibhu Bhakru Pranab Mullick and Vineet Kumar for the intervener
The Judgment of the Court was delivered by KN SAIKIA J
This appeal by certificate is from the Judgment of the Calcutta High Court dated 431975 passed in appeal No 156 of 1974
The appellants in partnership have been carrying on business of restaurants under the name and style of Trinca s at No 17B Park Street Calcutta providing food and drinks alcohol and non alcohol to the customers under valid licences
Sometimes musical performences are also arranged
The restaurants are provided with air conditioning plant
Under the West Bengal Entertainments and Luxuries Hotels and Restaurants Tax Act 1972 as amended by the Act of 1974 hereinafter referred to as the Act the respondents by their Memo No 4942AT dated 9121972 called upon the appellants to make ad hoc payment of luxury tax calculated at Rs24000000
The President of the Hotelers  Association made a representation against this illegal tax which was turned down by the respondents and thereafter the appellants challenged the validity of this action in the Calcutta High Court by filing Writ Petition No 358 of 1973 on 1651973
The appelants contended inter alia before the High Court that the levy was unreasonable restriction on carrying the business that the levy was unreasonable restriction on carrying the business the Act was not meaningful and purposeful the rules were confiscatory in nature and the mode of the Act
The learned Single Judge of the High Court dismissed the writ petition relying on the Judgment passed on 631974 in Writ Petition No 338 of 1973 wherefrom Civil Appeal No 406 of 1976 was filed in this Court
467 From the above order of the learned Single Judge the appellants filed Appeal No 156 of 1974 on 2661974 before the Division Bench of the Calcutta High Court contending that the legislature cannot enlarge the scope of Entry 62 and seek to impose a tax on expenditure incurred by a customer on services rendered to him including food and drinks
The High Court held that section 2b defined entertainment tax but section 2c defined entertainment tax and under the Act entertainment tax meant tax payable under section 3 of the Act
A clear distinction had been made between entertainment and entertainment tax and in this case the High Court was concerned only with entertainment tax as defined in section 2C
The second submission before the High Court was whether the State legislature had the competence to impose entertainment tax payable under section 3 of the Act and the High Court held that section 3 was a valid piece of legislation
The argument of the appellants was that tax imposed by section 3 was discriminatory and it violated article 14 of the Constitution
The High Court held that the differentia made in section 3 had a rational relation to the object sought to be achieved by the statute
The last submission was whether the persons enjoying the same facilities had been treated differently as the section had imposed a maximum tax of 15 on amount paid or payable by the customer
The High Court held that since a distinction had to be maintained between section 2b and section 2c the learned counsel s argument on discrimination could not be acceded to
The appeal was accordingly dismissed but certificate of fitness to appeal was granted
The contentions raised in this appeal are the same as were raised in Civil Appeal No 406 of 1976 whcih has just been dismissed
In East India Hotels Ltd vs State of West Bengal AIR 1990 SC 2029 this Court held that whatever has been said by this Court in relation to section 4 of the Act will be equally applicable to section 3 of the Act
Consequently for the above reason and for the reasons stated in our Judgment in Civil Appeal No 406 of 1976 we dismiss this appeal also with costs quantified at Rs5000 Rupees five thousand
GN Appeal dismissed


Summary:
For the supply of milk to the Government Hospital at Cannanore for the year 1948 49 the petitioner and the third respondent the Co operative Milk Supplies Society Cannanore had submitted tenders and the Superintendent who scrutinised them accepted that of the petitioner and communicated to the Director of Public Health the reasons for the decision
Subsequently the contract to the petitioner was cancelled after giving the requisite notice in terms of Cl 20 Of the tender and he was informed that it was the policy of the Government that in the matter of supply to Government medical institutions in Cannanore District the Co operative Milk Supplies Union was to be given contracts on the basis of prices fixed by the Revenue Department
The petitioner contended in a petition filed under article 32 Of the Constitution that there had been discrimination against him vis a vis the third respondent that he was denied equal opportunity of employment under the State and that the fundamental rights under articles 14 161 191 g and 31 had been infringed
Held that none of the fundamental rights were involved in the present case
A contract which is held from Government stands on no different footing from a contract held from a private party and when one person is chosen rather than another the aggrieved party cannot claim the protection of article 14
A contract for the supply of goods is not a contract of employment and the petitioner who was supplying milk to the State hospital was in no sense a servant and no question of employment qua servant arose
Article 16 1 was therefore not attracted to the case