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-
'The entry contemplates luxuries, entertainments, and amusements as objects on which the tax is to be imposed. If the words are to be so 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 entertainment tax as a tax on expenditure and, indeed, when the tax is imposed on the receiver of the entertainment, 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 given 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 lawyer 'has to pay a tax or fee to take out a licence 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 licence 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.'
Entries 60 and 62 of List II of the Seventh Schedule to the Constitution are in terms similar to entries 46 and 50 of List 2 of Schedule 7 to the Government of India Act, 1935. The observations of the Supreme Court in the case of Western India Theatres, AIR 1959 SC 582 (Supra) are equally applicable here, and they show that the impugned tax is a tax on the act of entertainment resulting in a show and not a tax on any profession or trade, and is not invalid merely because it has been imposed on the giver of the entertainment.
4. The objection that as an entertainment duty has already been levied by the State Government under the M.P. Entertainments Duty Act, 1936, the Corporation is precluded from levying a tax on entertainment, is also untenable. When the State legislature and a local or municipal authority both possess the power to levy a tax, the Constitution does not prevent the same person or object being subject to both the State and municipal taxation. This proposition has been laid down by the Nagpur High Court in Mulji Sicka & Co. v. Distt. Council, Bhandara, AIR 1945 Nag. 171, which was followed by the Bombay High Court in Cantonment Board, Poona v. W. I. Theatres Ltd, AIR 1954 Bom. 261, which was affirmed by the Supreme Court in AIR 1959 SC 582. In the Bombay case, while upholding this kind of double taxation it was observed:
'....... .instances are not wanting in this country in which taxes are levied twice upon the same thing, once for the benefit of the Provincial Government and in the second instance for the benefit of the Local Self-Government bodies, for example, the District Local Board or the Municipality The two instances which occur to one at once are that of land revenue and local fund cess and the urban property tax levied in the City of Bombay for the purpose of Provincial Government and the house tax which is levied by the Municipality at Bombay for its own finances. When a similar question arose before the Judges of the Nagpur High Court in the case of AIR 1945 Nag. 171, they found themselves unable to accept the contention that there was anything in the Constitution which required them to hold that a tax was illegal on the ground that it involved double taxation in respect of the same subject matter and with respect we are in agreement with the view which had been expressed in that case.'
5. On the objection that the tax imposed by the Corporation is violative of Article 14 of the Constitution, Shri Sen, learned counsel appearing for the petitioners, submitted that the imposition is at a flat rate on the proprietors of all cinema-theatres irrespective of their earning capacity judged by the seating accommodation and the locality in which the cinema-houses are situated; and that there is no attempt whatsoever of classification of cinema-houses for the purpose of imposition, and this lack of classification itself creates inequality. Learned counsel relied on the decision of the Kerala High Court in N. Kunhali Haji v. State of Kerala, AIR 1966 Ker 14. We are unable to accede to this contention. The imposition, on the face of it, treats all cinema-proprietors and lessees alike and does not operate unevenly on them. It does not create any special privilege in favour of any cinema proprietor or lessee. For the purpose of levying the impugned tax which, as the Supreme Court pointed out in the case of the Western India Theatres, AIR 1959 SC 582 (Supra), is 'a tax imposed on every instance of the exercise of the profession of giving cinema-shows', all cinema-proprietors and lessees have been regarded as placed in similar circumstances and given equal treatment. No theory or principle of taxation requires that a tax on every instance of the exercise of a particular trade, calling or employment should be related to the actual or potential earning capacity judged by relevant circumstances of the person on whom the tax is imposed. In this connection, the observations of the Supreme Court in the case of the Western India Theatres, AIR 1959 SC 582 (supra) that 'If there is no show, there is no tax. A lawyer has to pay a tax or fee to take out a licence irrespective of whether or not he actually practices. That tax is a tax for the privilege of having the right to exercise the profession if and when the person taking out licence chooses to do so'' are very pertinent. These observations show that it is not essential that a tax on cinema-show, which is a tax on 'every instance of the exercise of the profession of giving cinema-shows', should be levied with due, regard to the incidence of taxation by a reasonable classification of the cinema-houses. The argument, therefore, that the tax is violative of Article 14 of the Constitution because of lack of classification of cinema-theatres on the basis of their earning capacity, determined by the seating accommodation and location, cannot be accepted.
6. The decision of the Kerala High Court in AIR 1966 Ker 14, relied on by the learned counsel for the petitioners, is not in point here. The learned Judge of the Kerala High Court followed K. T. Moopil Nair v. State of Kerala, AIR 1961 SC 552. In both the Supreme Court and the Kerala High Court cases, the question raised was whether a tax on lands offended Article 14 of the Constitution for lack of classification of the lands sought to be taxed. It was held in those cases that a tax on land or land revenue is assessed on the actual or potential productivity of the land sought to be taxed, and the tax must have reference to the income actually made or which could have been made with due diligence and must, therefore, be levied with due regard to the incidence of taxation.
It was on this basic principle that it was held that the lack of classification of the land sought to be taxed for the purpose of levy created inequality. As we have pointed out earlier, no principle of taxation requires that a tax on every instance of the exercise of a particular trade or profession should be related to the actual or potential earning capacity of the person sought to be taxed. If there is no such principle, men it follows that the impugned tax cannot be assailed on the ground that it offends Article 14 of the Constitution inasmuch as the lack of classification of cinema-houses for the purpose of levy has created inequality.
7. Turning now to the submission advanced on behalf of the petitioners that Section 132(2) (n) of the M. P. Municipal Corporation Act, 1956, does not authorise the imposition of a tax on cinema-show, it was said that the said taxing provision only authorised the Corporation to levy a tax 'on theatres, theatrical performances, and other shows for public amusements;' that the expression 'theatres, theatrical performances, and other shows' was restrictive and excluded cinema-theatres' from its purview; that a cinema-show did not fall under the residuary clause, namely, 'other shows for public amusement' as that clause must be read ejusdem generis with the preceding words 'theatres, theatrical performances': and that as in a cinema-theatre the right of admission was reserved, a cinema-show could not be regarded as a show 'for public amusement'. This contention is without any force.
A 'theatre' is 'any edifice used for the performance of dramatic or operatic or other representations, plays or performances' (see Black's Law Dictionary). A theatrical performance does not mean merely a dramatic performance. It includes 'operatic or other representations or performances'. Now, in a cinema there is a moving representation of scenes with or without reproduction of sound by projection of a series of instantaneous photographs or pictures. It is thus a representation falling within the meaning of 'theatrical' performance. If the expression' 'theatrical performance' is construed in this wide sense, as it must be, so as to include not merely dramatic performances but other performances and representations, then it follows that the expression 'other shows for public amusement' would include a cinema-show. The fact that the management of a cinema-theatre reserves the right of excluding any member of public if the management thinks him to be an undesirable person does not make a cinema-show, which is open to the public generally, a private show or one given for private amusement. In our opinion, under Section 132(2)(n) of the M. P. Municipal Corporation Act, 1956, the Corporation is empowered to levy a tax on cinema-shows.
8. Learned counsel also contended that the tax as imposed was on show or shows of a film per day and not on every show of a film during the course of a day, and that, therefore, the Corporation was not justified in demanding the tax at the rate of Rs. 10/- per show on the number of shows given on any particular day. The contention is without any merit. There is nothing in the resolution dated the 1st September 1965 to support this contention. Under that resolution, the tax has been levied on every demonstration, display or exhibition of a film and not on the exercise of the profession of giving cinema-shows each day.
9. For the foregoing reasons, our conclusion is that this petition must be and is dismissed with costs. Counsel's fee is fixed at Rs. 200,The outstanding amount of security deposit, ifany after deduction of costs, shall be refunded tothe petitioners.