THE WESTERN INDIA THEATRES LTD. versus MUNICIPAL CORPORATION OF THE CITY OF POONA

(2) S.C.R. SUPREME COURT REPORTS

71

may be that the appellant may in some future proce- eding adduce evidence to establish that there are other Th w t cinema houses similarly situate and that the .imposi- tion of a higher tax on the appellant is discriminatory as to which we say nothing; but all we need say is The Cantonment that in this suit the appellant bas not discharged the Board, Poona, onus that was on him and, on the material on record, Cantonment it is impossible for us to hold in this case that there has been any discrimination in fact.

1 Das C . •

x959

v.

1

a·

eThe;;,;;~t;, '"

For reasons stated abve this appeal must be dismis

I959

January z6.

sed with costs.

Appeal dismissed

THE WESTERN INDIA THEATRES LTD. v. MUNICIPAL CORPORATION OF THE CITY OF POONA {S. R. DAS, c. J., s. K. DAS, P. B. GAJENDRAGADKAR. K. N. WANCHOO and M. HIDAYATULLAH, JJ.)

Municipality, Power of-Imposition of tax on cinema show Constitutional validity of enactment-Enhancement of such tax Validity-Bombay District Municipal Act, I90I (Bom. III of IgoI), s. 59(I) (XI)-Bombay Municipal Boroughs Act, I925 (Bom. XVIII of Ig25), s. 60.

The appellant, a public limited company, was a lessee of four cinema houses situated within the municipal limits of Poona City where it used to exhibit cinematograph films. The respondent, the Municipal Corporation of Poona, in exercise of its power under s. 59(1) (XI) of the Bombay District Municipal Act, 1901, levied with effect from October l, 1920, a tax of Rs. 2 per day as license fee on the-owners and lessees of cinema houses. That Act governed the Municipality till 1926 and thereafter it was governed bythe Bombay Municipal Boroughs Act, 1925. The tax was enhanced to Re. l per show on June 3, 1941, and to Rs. 5 per show on June 9, 1948. By the suit, out of which the present appeal arose, the appellant sought for a declaration that the levy of the said tax, the rules framed in connection there with and the enhancement of the tax as aforesaid were iIIegal and ultra vires. The trial court decreed the suit in part but the High Court in appeal reversed the decision of the trial court

72

SUPREME COURT REPORTS

[1959] Supp.

I958

v. Municipal

and dismissed the suit. It was contended on behalf of the appellant that (r) the tax was not. one covered by Entry 50 The Western India in List 11 of Seventh Schedule to the Government of India Theatres Ltd. Act, 1935, but was one on trade or calling covered by Entry 46 thereof, and, was as such governed by s. l42A of the said Act and that (2) s. 59(1)(XI) of the Bombay District Municipal Act, 1901, Corporation of !he was unconstitutional in that the legislature had thereby delegat- ed essential legislative power to the Municipality to determine the nature of the tax to be imposed on the rate-payers and completely abdicated its function, leaving such power wholly unguided.

City of Poona

Held, that both the contentions must fail. The first point was covered by the decision given in the appellant's other appeal, Civil Appeal No. 145 of 1955, which must also govern this case.

It was not correct to contend that the power delegated to the Municipality under s. 59(1)(XI) of the Bombay District Municipal Act, 1901, was unguided. That section authorised the imposition of such taxes alone as were necessary for the pur poses of the Act. The obligations and functions cast upon the Municipalities by ch. VII of the Act showed that taxes could be levied only for implementing those purposes and none others.

Nor could it be said that the provincial Legislature had abdicated its function in favour of the Municipality. The taxing power of the Municipality was made subject to the approval of the Governor-in-Council by the section itself.

The marginal note to a section could not affect the construc tion of the section if its language was otherwise clear and un ambiguous and the word 'modify' connoted not merely reduc tion hut also other kinds of alteration including enlargement. The substitution of the word 'reduce' by the word 'modify' in the body of s. bo of the Bombay Municipal Boroughs Act, 1925, notwithstanding the omission to do so in the marginal note, therefore, clearly indicated the intention of the Legislature to widen the scope of that section and, consequently, it could not be said that the enhancement of the tax was not sustainable thereunder.

Commissioner of Income Tax, Bombay v. Ahmedbhai Umar [1950] S.C.R. 335 and Stevens v. The bhai & Co., Bombay, General Steam Navigation Company, Ltd., L.R. (1903) l K.B. 890, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No.

146 of 1955.

Appeal from

the judgment and decree dated February 10, 1953, of the Bombay High Court in Appeal No. 953 of 1951, arising out of the judgment and decree dated November 30, 1951, of the Court of

(2) S.C.R. SUPREME COURT REPORTS

73

Joint Civil Judge, Senior Division, Poona, in Specia.l Suit No. 76 of 1950.

Th

x959

H. D. BanaJi, R. A. Gagrat and G. Gopalakrishnan,

• •

for the appellant.

e Western India Theatr~s Ltd. v.

1 h. Municipa 1 t e Corporation o

City of Poona

Das c. J.

A dz

M. 0. Setalvad, Attorney-General for India, S. N. " c n ey an 1959. January 16. The Judgment of the Court

. Da ac anJi, 1or t e·respon ent.

d J B .

d h

h

d

was delivered by

DAS, C. J.-The appellant is a public limited com pany registered under the Indian Companies Act, 1913. It is a lessee of four cinema houses situate within the municipal limits of Poona City known respectively as "Minerva'', "The Globe ", "Sri Krishna " and "The Nishat ". It exhibits cinematograph films, both foreign and Indian, in the said four houses. The respondent, a body corporate, was governed by the Bombay Dist rict Municipal Act, 1901 (Born. III of 1901) up to June 8, 1926, and from then by the Bombay Municipal Boroughs Act, 1925 (Born. XVIII of 1925) up to December 29, 1949, and, thereafter, by the Bombay Provincial Municipal Corporation Act, 1949 (Born. LTX of 1949). With effect from October 1, 1920, the respondent, with the sanction of the Government of Bombay levied on the owners and lessees of cinema houses within the limits of the erstwhile province of Bombay a tax of Rs. 2 per day as license fee. Rules for the levy and collection of the said tax were framed by the respondent. Those rules were amended on or about June 3, 1941, enhancing the tax from Rs. 2 per day to Re. l per show. The rules were again revised on or about June 9, 1948, under which the tax was enhan ced from Re. 1 per show to Rs. 5 per show. At all mate rial times the tax wa,s being collected at the last men tioned rate.

Section 59 of the Bombay District Municipal Act 1901 provided that subject to any general or special orders which the State Government might make in that behalf any municipality (a) after observing the preliminary procedure required bys. 60, and (b) with the sanction of the authority therein mentioned, might

IO

74

SUPREME COURT REPORTS [1959] Supp.

'959

impose for the purposes of that Act any of the taxes The we:;;n India men~ioned in that section.. After en1;1~era:ting ten specific heads of taxes, which a mumc1pahty could • levy, a residuary category was set forth in cl. (xi) in

Theatres Ltd. v.

. Mnnicipal Corporation of the City of Poona Das c. J.

the words following:-

"Any other tax to the nature and object of which the approval of the Governor in Council shall have been obtained prior to the selection contemplated in sub-clause (il of clause (a) of section 60 ". Ever since the appellant became a lessee of the said cinema houses, the appellant has be!ln making pay ments of the said tax under protest.

,.

After giving the necessary statutory notice to the respondent, the appellant, on or about March 31, 1950, filed a suit in the Court of the Civil Judge, Senior Division, Poona, being Suit No. 76 of 1950, against the respondent for a declaration that the levy and imposition of the said tax with effect from October 1, 1920, were invalid and illegal; that the enhancement in the rates of the tax with effect first from June 3, 1941, and then June 9, 1948, was invalid and illegal and that the resolutions passed and rules framed in connection with the levy, imposition, enhancement and collection of the said impugned tax were invalid, illegal and ultra vires, for a permanent injunction rest- raining the defendants from levying or recovering and or increasing and enhancing the said tax and for re- fund to the appellant of the amounts of the tax collec- ted from it and for costs of the suit and interest. By its judgment dated November 30, 1951, the ~rial court held that the said tax was validly levied and imposed, but that the increase and enhancement thereof in 1941 and 1948 were illegal and ultra vires and that the suit was not barred under the Acts governing the respondent. The trial court decreed the suit in part by issuing an injunction restraining the respondent from levying, recovering or collecting the tax at the enhanced rate and passing a decree against the res pondent for refund of a sum of Rs. 27,072 with inte- rest and costs. The respondent preferred an appeal and the appellant filed cross objections. But the HighCourt by its judgment and decree dated February 10, 1953,

(2) ~.C.R. SUPREME COURT REPORTS

75

,

11

reversed the judgment of the trial court and dismissed the suit of the appellant with costs throughout. The Th w - . d O . appe ants cross o Ject10ns were a so 1smisse . n December 10, 1953, theHigh Court granted leave to the appellant to appeal to this Court from the said judg- ment. Hence this final appeal questioning the vali- Corporation of the dity of the impugned tax.

e Theatres Ltd · v.

City 0f. Poona

. estern India

l d'

Municipal

b'

I959

Das C. ].

-,

The first point urged in this appeal is that the law imposing this tax is not covered by entry 50 in List II of the Seventh Schedule to the Government of India Act, 1935, but is really a tax on the appellant's trade or calling referred to in entry 46 and that, therefore, the amount of tax cannot under s. 142-A of the Govern ment of India Act, 1935 exceed Rs. 100 per annum. This point need not detain us long, for it is covered by us in the appellant's other appeal No. 145 of 1955. The second point urged before us in support of this appeal is thats. 59(1) (xi) is unconstitutional in that the legislature had completely abdicated its functions and had delegated essential legislative power to the Munici pality to determine the nature of the tax to be impo sed on the rate payers. Learned counsel for the appel lant urges that the power thus delegated the municipality is unguided, uncanalised and vagrant, for there is nothing in the Act to prevent the munici pality from imposing any tax it likes, even, say, in come tax. Such omnibus delegation, be contends, cannot on the authorities be supported as constitutio nal. We find ourselves in agreement with the High Court in rejecting this contention.

to

In the first place, the power of the municipality cannot exceed the power of the provincial legislature itself and the municipality cannot impose any tax, e.g., income tax which the provincial legislature could not itself impose. In the next place, s. 59 authorises the municipality to impose the taxes therein mentioned "for the purposes of this Act". The obligations and functions cast upon the municipalities are set forth in ch. VII of the Act. Taxes, therefore, can be the municipality only for implementing levied by those purposes and for no other purpose. In other words it will be open to the municipality to levy a tax for giving any of the amenities therein mentioned.

••

76

SUPREME COURT REPORTS

[1959] Supp.

·

I959 -

Dos c. J.

City of Poona

eat~s Munfripal

The matter may be

illustrated by reference

to . s. 54 which enumerates the duties of municipa- Th•T:estern L~;dia lities. The first duty mentioned in that section is that the Municipality should make provision for lighting public streets and nobody can object if it Co,po,otion of the imposes a lighting tax, which, indeed, is item (ix) in s. 59(1). Take another example: It is the duty of the Municipality to arrange for supply of drinking water and it may legitimately charge a water rate which, again, is item (viii) in s. 59(1). We do not for a moment suggest that the municipalities may only impose a tax directly in connection with the heads of duties cast upon it. ·what we say is that the tax to be imposed must have some reasonable relation to the duties cast on it by the Act. In the third place, al though the rule of construction based on the principle of ejusdem generis cannot be invoked in this case, for items (i) to (x) do not, strictly speaking, belong to the same genus, but they do indicate, to our mind the kind and nature of tax which the municipalities are authorised to impose. Finally, the provincial legisla ture had certainly not abdicated in favour of the municipality, for the taxing power of the municipa lity was quite definitely made subject to the approval of the Governor-in-Council. Under the Indian Council Act, 1861 (24 & 25 Vic. c. 67) the Governor-in-Council might mean· the Governor in Executive Council or the Governor in Legislative Council. If the reference in s. 59(l)(xi) is to the Governor's Legislative Council, then there was no improper delegation at all, for it was subject to the legislative control of the Governor in Legislative Council. Tho Governor's Legislative Council was composed of all the members of the Governor's Executive Council besides a few other persons. Therefore the Governor in his Executive Council even then, from a practical point of view, the ultimate control was left with the Governor's Legislative Council. We need not labour this point any further, for on the first three grounds the delegation of legislative authority, if any, is not excessive so as to make the exercise of In our opinion the impugned it unconstitutional. section did lay down a principle and fix a standard

if the reference was

to

•

•

(2) S.C.R. SUPREME COURT REPORTS

77

which the municipalities had to follow in imposing a tax and the legislature cannot, in the circumstances, Tl w- 1 a· ie • be said to have had abdicated itself and, therefore, Theatres Ltd. the delegation of power to impose any other tax can- v. not be struck down as being in excess of the permis- Municipal sible limits of delegation of legislative functions. Corporation of the

estetn n 1a

r959

•

The last point urged by learned counsel for the City of Poona

appellant is that, under cl. (xi) of s. 59(1), the enhance- ments of the rates of the tax in 1941 and again in 1948 were illegal in that the municipality had· no power to do so under the Bombay Municipal Boroughs Act, 1925. According to learned counsel for the ap- pellant the judgment under appeal upholding the vali- dity of such enhancements cannot be supported under s. 60 of that Act. That section runs as follows :-

Das c. J.

"Power to re- suspend, duce or abo- ~ lish any ex-

60(1) Subject to the requirements of clause (a) of the proviso to sec tion 58 a municipality may, except as otherwise provided in clause (b) of the proviso to section 103 at any time for any sufficient reason, suspend, modify or abolish any existing tax by suspending, altering or rescinding any rule prescribing such tax.

isting tax

(2) The provisions of Chapter VII relating to the imposition of taxes shall apply so far as may be to the suspension, modification or abolition of any tax and to the suspension, alteration or rescission of any rule prescribing a tax." Reference is made to the marginal note where the words used are "power to suspend, reduce or abolish any existing tax". It is suggested that the word " modify " in the body of the section in between the words " suspend" and "abolish " should be construed in the sense of reduction. The marginal note, accord ing to him, shows that the several words were used in the section to indicate a progressive diminution in the quantum of tax until it was completely gone .. Reference is made to the root meaning of the word "modify " w hie h is to reduce or make less but does not cover the .idea of enhancement. In the first place, the marginal note cannot affect the construction of the language used in the body of the section if it is otherwise clear and unambiguous (see Commissioner of

78

SUPREME COURT REPORTS

[1959] Supp.

d

·B

I9S9

d ·

"h d b

f h t e

City of Poo1ta

1s s. 60 o

· section a

v. Munfripal

The Western India Bombay) (1).

Income Tax, Bombay v. Ahmedbhai Umarbhai & Co., In the next place, it should be borne in Theatres Ltd. mind that s. 67 of the Bombay District Municipal Act (Born. III of 1901) which was formerly applicable to municipalities used the word "reduce" in between Corporation of the the words " suspend " and " abolish " and that that b om a y een re pro uce Das c. J. Municipal Boroughs Act, 1925, but that in the process of such reproduction the word "reduce" was dropped and the word " modify " was introduced. In the marginal note, however, the word "reduce" was not substituted by the word "modify", apparently through inadvertence. If the word "modify" is to be read as "reduce'', then there could be no point in the provincial legislature substituting the word "reduce " by the word "modify". This change must have been made with some purpose and the purpose could only have been to use an expression of wider connotation so as to include not only reduction but also other kinds of alteration. Section 76 of this very Act also refers to "modification not involving an increase in the amount to be imposed" which makes the sense in which the word "modify" has been used in this Act perfectly clear, namely, that there may be a modifica tion involving an increase. Reference may also be made to the decision of the Court of Appeal in England in the case of Stevens v. The General Steam Naviga. tion Company, Ltd. (2 " Modification ", acc,ording to Collins M. R. in his judgment at p. 893, implied an alteration and the word was equally applicable whether the effect of the alteration was to narrow or to enlarge the provisions. In our opinion the dropp ing of the word ".reduce" and the introduction of the word "modify" in the body of s. 60 of the Act under consideration clearly indicate an intention on the part of legislature to widen the scope of this section and the High Court was right in so construing the same.

).

No other point was urged in this appeal and for reas'ons stated above this appeal must be dismissed with costs.

Appeal dismissed.

(1) [1950] S.C.R. 335 at p. 353·

(2) L.R. (1903) I K.B. 890.