# THE WESTERN INDIA THEATRES LTD v. THE CANTONMENT BOARD, POON A

- **Citation:** [1959] Supp. 2 S.C.R. 63
- **Court:** Supreme Court of India
- **Decided:** 1956-10-31
- **Case number:** Civil Appeal No. 429 of 1958
- **Bench:** S. R. Das, s. K. DAS, P. B. Gajendragadkar, K. N. 'vVANCHOO, M. Hidayatullah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-western-india-theatres-ltd-v-the-cantonment-board-poon-a-1715
- **Pages:** 9

## Headnote

Entertainment Tax-Imposition on cinema show--ValidityCantonments Act, I924 (Act II of I924), s. 60-Bombay Municipal
Boroughs Act, I925 (Bom. XV III of I925), s. 73-Go·vernment of
India Act, I9J5, s. IOO, Sch. VII, Entry 50.
The appellant, a public limited company, was the lessee of
wo cinema houses, " West End" and" Capitol" situated within the Poona cantonment area. By a notification dated June 17,
1948, the Bombay Government with the sanction of the Governor-General-in-Council imposed certain taxes in the cantonment
of Poona including an entertainment tax of Rs. IO per show on
the appellant's cinema houses and Rs. 5 per show on others.
The appellant, who paid the tax under protest, brought the suit,
out of which the present appeal arose, for a declaration that the
I959
January r6.
64
SUPREME COURT REPORTS [1959] Supp.
imposition of the said tax by the respondent was illegal, for a
. permanent injunction restraining it from levying the tax and for
The W.stem lndrn the refund of Rs. 45,802, paid as tax by the appellant. The
Theafru Ltd.
trial Court decreed the snit but the High Court, on appeal by
v.
the respondent, reversed the decision of the trial Court and
The Cantonment dismissed the snit. Under s. 60(1) of the Cantonments Act, 1924
Boa,d, Poona,
(II of 1924), read with s. 73 (xiv) of the Bombay Municipal
Cantonment
Boroughs Act, 1925 (Born. XVIII of 1925), the res]'Ondent had the
power to impose any other tax which the Bombay Provincial
Legislature could impose on the province. The question, therefore, was whether the Bombay Legislature had the power to
_ impose the tax in question. It was contended on behalf of the
appellant that although the Provincial Legislature had undoubtedly.the power under s. 100 of the Government of India Act,
1935, read with Entry 50 in Sch. VII thereto, to make law with
respect to "taxes dn luxuries, including taxes on entertainments,
amusements, betting and gambling", the said entry contemplated a law imposing taxes on persons who enjoyed the lnxnries,
entertainments or amusements and not on persons who provided
them. Such a tax, if levied on the la tier would be one on profession, trade or calling as contemplated by Entry 46 of the
said Schedule and could not exceed Rs. roo per annum under
s. 142A of the Government of India Act, 1935, and Rs. 250 per
annum under Art. 276(2) of the Constitution.
Held, that the contention must be negatived.
It is well-settled that in construing an entry conferring
legislative powers, the widest pos~ible construction according
to their ordinary meaning must be given to the words used.
There could be no reason, therefore, in construing Entry 50, to
differentiate between the giver and the receiver of the luxuries,
entertainments or amusements and both must be held to be
amenable to the tax.
Navinchandra Mafatlal v. The Commissioner of Income-tax,
Bombay City, [1955] 1 S.C.R. 829, referred to.
Although an entertainment tax was regarded as a tax on
expenditure, there was no warrant for holding that Entry 50
contemplated only a tax on moneys spent on luxuries, entertainments or amusements.
VVhat it had in view were these matters,
and not either the giver or the receiver of them, as the real
objects of legislation.
The impugned tax was distinguishable from a tax on a profession or calling.
It was a tax imposed on an actual show, and
not-on a profession or calling whether there was an exercise of
it or, not.

## Text

(2) S.C.R. SUPREME COURT REPORTS
63
on it.
The effect of this order will be that the appelz959
lant shall be deemed to be in possession of a valid perd
f
r ll
Deep Chand
mit and he shall have to be displace
a ter 10 owing
v.
the usual procedure prescribed by the U. P. Road The State of uttar
Transport Services (Development) Act."
Pradesh &
Others
Pursuant to their order, it appears that the Regional
Transport Authority renewed his permit on October 11,
Subba Rao J.
1956 with effect from November 1, 1953 to October 31,
1956. In the circumstances, as the petitioner was not
a permit-holder when the Government made the order,
no relief can be given to him in this appeal. This
order will not preclude the appellant in Civil Appeal
No. 429 of 1958, if he has any righl, to take appropriate proceedings against the State Government.
In the result, all the appeals are dismissed with one
set of costs to the State ofUttar Pradesh.
Appeals dism:~ssed.
THE WESTERN INDIA THEATRES LTD.
v.
THE CANTONMENT BOARD, POON A,
CANTONMENT
(S. R. DAS, c. J., s. K. DAS, P. B. GAJENDRAGADKAR,
K. N. 'vVANCHOO and M. HIDAYATULLAH, JJ.)
Entertainment Tax-Imposition on cinema show--ValidityCantonments Act, I924 (Act II of I924), s. 60-Bombay Municipal
Boroughs Act, I925 (Bom. XV III of I925), s. 73-Go·vernment of
India Act, I9J5, s. IOO, Sch. VII, Entry 50.
The appellant, a public limited company, was the lessee of
wo cinema houses, " West End" and" Capitol" situated within the Poona cantonment area. By a notification dated June 17,
1948, the Bombay Government with the sanction of the Governor-General-in-Council imposed certain taxes in the cantonment
of Poona including an entertainment tax of Rs. IO per show on
the appellant's cinema houses and Rs. 5 per show on others.
The appellant, who paid the tax under protest, brought the suit,
out of which the present appeal arose, for a declaration that the
I959
January r6.
64
SUPREME COURT REPORTS [1959] Supp.
imposition of the said tax by the respondent was illegal, for a
. permanent injunction restraining it from levying the tax and for
The W.stem lndrn the refund of Rs. 45,802, paid as tax by the appellant. The
Theafru Ltd.
trial Court decreed the snit but the High Court, on appeal by
v.
the respondent, reversed the decision of the trial Court and
The Cantonment dismissed the snit. Under s. 60(1) of the Cantonments Act, 1924
Boa,d, Poona,
(II of 1924), read with s. 73 (xiv) of the Bombay Municipal
Cantonment
Boroughs Act, 1925 (Born. XVIII of 1925), the res]'Ondent had the
power to impose any other tax which the Bombay Provincial
Legislature could impose on the province. The question, therefore, was whether the Bombay Legislature had the power to
_ impose the tax in question. It was contended on behalf of the
appellant that although the Provincial Legislature had undoubtedly.the power under s. 100 of the Government of India Act,
1935, read with Entry 50 in Sch. VII thereto, to make law with
respect to "taxes dn luxuries, including taxes on entertainments,
amusements, betting and gambling", the said entry contemplated a law imposing taxes on persons who enjoyed the lnxnries,
entertainments or amusements and not on persons who provided
them. Such a tax, if levied on the la tier would be one on profession, trade or calling as contemplated by Entry 46 of the
said Schedule and could not exceed Rs. roo per annum under
s. 142A of the Government of India Act, 1935, and Rs. 250 per
annum under Art. 276(2) of the Constitution.
Held, that the contention must be negatived.
It is well-settled that in construing an entry conferring
legislative powers, the widest pos~ible construction according
to their ordinary meaning must be given to the words used.
There could be no reason, therefore, in construing Entry 50, to
differentiate between the giver and the receiver of the luxuries,
entertainments or amusements and both must be held to be
amenable to the tax.
Navinchandra Mafatlal v. The Commissioner of Income-tax,
Bombay City, [1955] 1 S.C.R. 829, referred to.
Although an entertainment tax was regarded as a tax on
expenditure, there was no warrant for holding that Entry 50
contemplated only a tax on moneys spent on luxuries, entertainments or amusements.
VVhat it had in view were these matters,
and not either the giver or the receiver of them, as the real
objects of legislation.
The impugned tax was distinguishable from a tax on a profession or calling.
It was a tax imposed on an actual show, and
not-on a profession or calling whether there was an exercise of
it or, not.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
145 of 1955.
Appeal from the judgment and decree dated the
February 10, 1953, of the Bombay High Court in
D
(2) S.C.R.
SUPREME COURT REPORTS
65
Appeal No. 742 of 1951 from Original Decree, ansmg
z959
out of the judgment and decree dated July 31, 1951, Th w 1
1 d'
of the Court of the Senior Civil Judge, Poona, in Special
'nu:t::;~ 1; ia
Suit No. 89 of 1950.
v.
H. D. Banaji, R. A. Gagrat and
for the appellant.
G. Gopala7crishnan, The Cantonment
Boa~d. Poona,
H. N. Sanyal, Additional Solicitor-General of India,.
H. J. _Umrigar and R.H. Dhebar, for the respondent.
1959. January 16.
The Judgment of the Court
was delivered by
DAS, C. J.-This is an appeal from tlre 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. 89of1950 and dismissing the appellant's suit against the rc3pondent
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·eompany
regiiltered under the Indian Companies Act, ll913. It
is a lessee of two cinema Houses known respectively as
"West End" and "Capitol" situated wi1'ohin the
limits of Poona cantonment area. It exl!ibits 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 s. 60 of the Cantonments Act, 1 !)24 (II 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. 4ll60 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
Cantonment
Das C. ].
1959
The Western India
Theatres Ltd.
v.
The Cantonment
Board, Poona,
Cantonment
Das C. J.
66
SUPREME COURT REPORTS [1959] Supp.
I. Cinemas, Talkies or
dramas
2. Circus
3. Horse Races
4. Amusement park
provided as follows :-
Rs. 5-0-0 \ per
Rs. 10-0-0
show
Rs. 2-0-0 per show
Rs. 100-0-0 per day of
race meetings.
Rs. 20-0-0 per day.
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 A'ssociation 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 Governmen17 of India, Defence Department notification No. 1463 dated May 7, 1947. On June 17, 1948,
a notification was issued qy the Government of
Bombay to the effect that in supersession of the notifications of Go~ernment noted on the margin ;i,nd of all
other notifications on the same subject, the Governorin 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.
1. Cinemas, Talkies or dramas Rs. 10.0.0
:in the case of the West End per show
and Capitol
In other cases
2. Circus
3. Horse Races
4. Amusement park
Rs. 5-0-0 per show
Rs. 2-0-0 per show
Rs. 100-0-0 per
day of race
meetings.
Rs. 20.0-0 per
day".
(2) S.C.R. SUPREME COURT REPORTS
67
The appellant paid the tax under protest and on or
r959
about April 19, 1950, filed a suit (being suit No. 89 of Th w-t1 a·
1950) against the respondent in the Court of the Civil
~he;;,:;nLt; •a
Judge, Senior Division, Poona for a declaration that
v.
the levy, collection Or recovery of the said tax by the The Cantonment
respondent was illegal and invalid, for a ·permanent
Board, Poona,
injunction restraining the respondent from levying,
Cantonm•nt
collecting or recovering the said tax, for refund of the
D
c
as
. ].
sum of Rs. 45,802-0-0 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 fim,l appeal
questioning the validity of the said tax.
At all times material to this appeal the. reE;pondent
was governed by the Cantonments Act, 1921l (Act II
of 1924).
Section 60 of that Act runs as follows:-
" 60(1) 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 Cantonments Act, 1924, tax could be
imposed by the municipal boroughs in the province of
Bombay was the Bombay Municipal Boroughs Act,
1925 (Born. XVIII of 1925). Therefore the powers of
the respondent to levy and collect taxes under the
provisions of the Cantonments Act 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
SUPREME COURT REPORTS [1959] Supp.
'959
might be imposed by a municipality. The relevant
-
. portions thereof, prior to its present adaptation, were
The Western India
.c
Theatres Ltd.
as .ioJ}OWS :-
v.
" Subject to any general or special orders which
The Cantonme•;t the Provincial Government may make in this behalf
Board, Poona, and to the· provisions of sections 75 and 76, a municiCantonment
pality may impose for the purposes of this Act any of
Das C. ].
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 s. 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 entertainments 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 ent.ry 46, namely, taxes on professions, trades, callings and employments and, therefore, cannot exceed Rs. 100 per annum under s. 142A
of the Government of India Act, 1935 and- Rs. 250 per
annum under Art. 276(2) of the Constitution.
VVe are
unable to accept this argument as sound.
(2) S.C.R.
SUPREME COURT REPORT8
69
As pointed out by this Court in Navinchandra
r959
M.afa~lal v. T~e Commi.ssioner. of Inc~m_e Ta'.I.:, Bombay The Western India
City ( ), followmg certam earlier dec1s10ns referred to
Theatres Ltd.
therein, the entries in the legislative list should not be
v.
read in a narrow or restricted sense and that each The Cantonment
general word should be held to extend to all ancillary
Board, Poona,
or subsidiary matters which can fairly and reasonably
Cantonment
be said to be comprehended in it. It has been accept1
Das C .•
ed as well settled that in construing such an entry
conferring legislative powers the widest possible construction 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 h1xuries or
entertainments or amusements" in entry 50 as hav-
-
ing 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 E:O regarded, 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 entertain·
ment tax as a tax on expenditure and, indeed, when
the tt;Lx 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 ha.ve 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 t.he 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
(r) [1955] r S.C.R. 829.
70
SUPREME COURT REPORTS [1959] Supp.
r959
lawyer has to pay a tax or fee to take out a license
-
irrespective of whether or not he actually practises.
The Western India Th ·
·
t
,.
th
· "]
f h
·
th
· ht
Tl
t
Ltd
at tax is a ax ior
e pnv1 ege o
avmg
e ng
"a ~' · · to exercise the profession if and when the person takThe Cantonment ing out the license chooses to do so. The impugned
Board, Poona, tax is a tax on the act of entertainment resulting in a
Cantonment
show. In our opinion, therefore, s. 73 is a law with
Das C.j.
respect to matters enumerated in entry 50 and not
entry 46 and the Bombay legislature had ample
power .to enact this Ia w.
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 treat-
•
ment 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 mearning, scope, and
effect of the provisions of Art. 14 of our Constitution
have been fully dealt with, analysed and laid down
by this Court in Budhan Choudhury v. The State of
Bihar (1) and Shri Rama Krishna Dalmia v. Shri
Justice S. R. Tendollcar ('). 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 h.ouse
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 circumstaμces than the tax that may be imposed 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 diserimination in the facts and circumstances of this case. It
(1) [1951] S.C.R. 1045.
(2) [1959] S.C.R. 279.
(2) S.C.R. SUPREME COURT REPORTS
71
may be that the appellant may in some future procex959
eding adduce evidence to establish that there are other Th w t
1 a·
cinema houses similarly situate and that the .imposieThe;;,;;~t;, '"
tion of a higher tax on the appellant is discriminatory
v.
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
1
Das C .•
has been any discrimination in fact.
For reasons stated abve this appeal must be dismissed 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 showConstitutional validity of enactment-Enhancement of such taxValidity-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 therewith 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
I959
January z6.