1. These two writ petitions moved by two Cinema Exhibiters of Abu Road and Chittorgarh challenge their liability to pay additional entertainment tax under Section 6-A of the Rajasthan Entertainment Tax Act and can be conveniently disposed of by a single judgment.
Writ Petition No. 411 of 1961:
2. Dhannalal as the proprietor of Ganesh Railway Talkies, Abu Road, states that he runs a cinema under a temporary license in the Railway Colony of Abu Road. The State of Rajasthan, respondent No. 1, issued a Notification, published in the Rajasthan Rajapatra dated 1-4-1960, levying an additional entertainment tax at the rate of Re. 1/- per show, for every 100 seats or part thereof with a maximum of Rs. 3/- per show or performance. The Inspector, Excise and Taxation demanded from the petitioner the Additional Entertainment-tax in accordance with this notification. The petitioner protested to the Assistant Commissioner, Excise and Taxation that this additional tax was not legally leviable because the cinema was situate in the Railway Colony which was not a part of Abu Road to which the notification applied. The Assistant Commissioner rejected the petitioner's contention by his order dated 12-6-1961 (Ex. 2) and demanded frbm the petitioner a sum of Rs. 1641/-. The petitioner preferred a revision application to the Commissioner, Excise and Taxation but the same was dismissed as non-maintainable. The petitioner has now moved this petition under Article 226.
It is contended that the additional entertainment tax is not leviable on the petitioner because the cinema of the petitioner is situate not within the Abu Road Municipal limits but in the Railway Colony which is not hit by the notification issued for the collection of the additional entertainment tax; that the collection of this tax is in the nature of a profession tax the limits of which cannot exceed Rs. 35O/- per annum which limit the additional entertainment tax clearly transgresses; that exempting cities and towns other than those mentioned in the notification without any regard to the comparative population thereof and imposing different rates of tax on different cinema houses in the same town are discriminatory and offend Article 14 of the Constitution; that the imposition of the tax is in nature of an unreasonable restriction on the petitioner's freedom to carry on his business; that it illegally deprives the petitioner of his money and that the notification was not laid before the legislative assembly in the next session and is, therefore, unenforceable. The petitioner prays for an appropriate writ, order or direction against the respondents restraining them from recovering or levying the additional entertainment tax.
The respondents have submitted an answer to the petition admitting the levy of the additional entertainment tax but they contend that Abu Road mentioned in the notification includes the Railway colony. They maintain that the tax is levied on persons who visit the cinema that the difference in rate of tax between one place and another is regulated by the considerations of income yielded by the cinema of a particular place. They have refuted the contention that the tax is discriminatory or is hit by Articles 14, 19 and 31 of the Constitution. Writ Petition No. 19 of 1962:
3. The petitioner in this case is the proprietor of Vishnu Talkies Chittorgarh. He contends that the notification of the State of Rajasthan dated 1-4-1960 pursuant to the Amending Act of the Rajasthan Entertainment Tax Act by which the additional entertainment tax has been imposed on him is illegal on the ground that the Amending Act 8 of 1960 (hereinafter referred to as the Amending Act) is invalid as it did not receive the assent of the President as the parent Act did. The imposition of additional tax is discriminatory as it does not include 30 other cinema houses. That the nature of the tax is not entertainment tax as if is levied not against the spectators but against the exhibitors; that the tax partakes the nature of income-tax or business tax -- and such tax cannot be levied; that the State has no authority to exempt certain cinema houses altogether except-ing in accordance with the powers conferred on the State Government by Section 7(2) of the Act; that the petitioner is being deprived of his money without authority and his fundamental rights are being violated; and the petitioner, therefore, prays that the State be directed by means of a writ or direction in the nature of mandamus not to collect the additional entertainment tax.
4. The State has filed a reply in answer to this petition and has generally supported the levy as legal.
5. The learned counsel for the petitioners, however, confined their arguments to the following points:
1. That Section 6-A of the Rajasthan En-tertainment Tax Act introduced by the Amending Act confers an uncontrolled power on the State Government to leyy the tax and, therefore, it is bad in law.
2. Even if Section 6-A be not struck down for the reasons stated in ground No. 1 the notification imposing tax on certain cinemas is discriminatory and is hit by Article 14 of the Constitution as the classification made by the State has no reasonable basis.
3. That even if Section 6-A is valid the tax is on the calling and/or trade of the person who runs the cinema and, therefore, it offends Article 276(2) of the Constitution as it exceeds the limit of Rs. 250/- the ceiling laid down in the said Article.
4. That Section 6-A of the Amending Act is bad because it is unworkable.
6. The additional point urged in the writ petition No. 411 of 1961 is that Abu Road Railway area is not within the Municipal boundaries of Abu Road and, therefore, exhibitor Ganesh Talkies is not liable to pay any additional tax under the notification.
7. Before we examine the various contentions it will be perhaps useful to recall the legal provisions touching the subject. The Rajasthan Entertainment Tax Act, 1957 (hereinafter called the Act) provided for the leyy by the State Government of a tax in respect of admission to theatres, cinemas and other places of public entertainment in the State of Rajasthan and also for the purpose of compensation to local authorities then levying such tax. Such tax was to be levied, charged and paid to the State Government on all payments for admission to an entertainment at such rate or rates as may from time to time be fixed by the State Government. This tax was to be paid in the case of admission by means of stamp on such tickets and in other cases on the number of persons admitted. By virtue of the Amending Act, which received the assent of the Governor on 27th March, 1960, Section 6-A was introduced in the Act. Since it is the principal provision which is the subject-matter of attack in these petitions it may be set out in extenso. It runs as follows. '6-A. Levy of additional tax on entertainments.--
(1) In addition to the entertainments tax payable under Section 4 there shall be levied, charged and paid to the State Government, as from such date as the State Government may, by notification in the Official Gazette, appoint in this behalf, an additional entertainments tax at such rate, not exceeding two rupees for every one hundred seats or a part thereof, as may be specified in the said notification :
Provided that every such notification shall be laid before the House of the State Legislature at the Sessions thereof next following and shall be liable to be rescinded or modified by a resolution of that House, and the rescission or modification so made shall be deemed to have come into force upon its publication by notification in the Official Gazette.
(2) The additional tax mentioned in Sub-section (1) shall be payable by the proprietor of an entertainment in respect of each show, exhibition or performance.'
By virtue of the Notification No. F.7(8)E and T/60 dated nth April, 1960 (Ex. 1 -- hereinafter called 'the notification') the State of Rajasthan laid down the rates with effect from 1st day of April, 1960 at the rate of Re. 1/- per show for exhibition or performance per hundred seats or a part thereof. It, however, provided the maximum in the case of certain cities such as Ajmer and others at the rate of Rs. 6/- per show; for other towns such as Alwar and others the maximum fixed is Rs. 4/- per show; and for certain towns such as Abu Road the maximum provided is Rs. 3/-per show; and for towns like Banswara and others Rs. 2/r per show.
8. Section 6-A of the Amending Act authorises the levy, charge and payment to the State Gov-ernment of certain tax in addition to the entertainment tax from such date which the State Government may appoint. The name of this tax is the Additional Entertainment Tax and the rate of this tax is such as the State Government may appoint in this behalf subject to the maximum laid down in Section 6-A, namely, that it shall not exceed Rs. 2/- for every 100 seats or a part thereof as the State Government may determine. The proviso to Section 6-A lays down an obligation that a notification issued fixing the date for the commencement of an additional entertainment tax and the rates thereof shall be laid before the House of the State Legislatures at the session thereof next following and the State Legislature further reserved unto itself the right to rescind or modify by a resolution the notification issued by the State) Government.
9. The contention of the learned counsel for the petitioners is that the Legislature in the instant case has altogether abdicated its function in favour of the State Government and, therefore. Section 6-A suffers from this infirmity. This question indeed is one of far-reaching importance and is an attack on the basis of the doctrine of delegation. Perhaps it would be correct to say that the maxim, delegata potestas non potest delegari, provides for the argument that an authority delegated by the people to the Legislature to legislate for the levy, charge and payment of taxes in specified spheres cannot be redelegated by the Legislature in its own turn to some other authority. Jurists hold that the non-delegation doctrine is wholly Judge-made. The trend of modern jurisprudence is that delegation by the Legislature 'has long been recognised as necessary in order that the exertion of legislative power does not become a futility' (Sunshine Anthracite Coal Co. v. Adkins (1940) 310 US 381, 398: 60 Sct 907, 914: 84 Law Ed 1263.
10. In India the Supreme Court in Re Article 143, Constitution of India and Delhi Laws Act (1912) etc., AIR 1951 SC 332, Fazl Ali, J., has summed up his conclusions as follows:
'(i) The legislature must normally discharge its primary legislative function itself and not through others. (2) Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and that it may utilise any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation. (3) It cannot abdicate its legislatiye functions, and therefore while entrusting power to an outside agency, it must see that such agency acts as a subordinate authority and does not become a parallel legislature. (4) The doctrine of separation of powers and the judicial interpretation it has received in America ever since the American Constitution was framed enables the American Courts to check undue and excessive delegation but the Courts of this country are not committed to that doctrine and cannot apply it in the same way as it has been applied in America. Therefore, there are only two main checks in this country on the power of the legislature to delegate, these being its good sense and the principle that it should not cross the line beyond which delegation amounts to 'abdication and self-effacement'. '
11. From the principles summarised by the learned Judge it would appear that it is open to a Legislature to utilise any out-side agency to any extent it finds necessary and which it is unable to do itself or finds it inconvenient to do so. In other words ancillary and necessary action for the full exercise of its functions a Legislature can delegate. Only an abdication to the extent of self-effacement is not permissible. In Hirabhai v. State of Bombay, (S) AIR 1955 Bom 185 the learned Judges examined the question of delegation. It was a matter where the conferment of power of taxation on Bombay Municipal Corporation was challenged. The conclusions reached were (i) that if the Legislature is competent to tax itself it has power to confer this power upon the local authority (ii) the fact that no limitation has been imposed may lead to the legislation being challenged on some other grounds but not on the ground of competence; (iii) that delegation of functions is bad only if it amounts to an abdication by the legislature i.e., to say without laying down the policy it permits the carrying out of a particular activity by another body. According to this view also if the delegation amounts to self-effacement where the principal directs the delegate to act entirely in its discretion without indicating the policy such delegation alone is bad.
Judged from this standard, in our opinion, Section 6-A merely assigns the function of fixation of a date and the fixation of a rate to the State Government. It cannot be characterised as an absolute abdication to the extent of self-effacement. Fixation of date is a matter of administrative expediency which the Legislature may not have found it convenient to determine. So far as the rate is concerned the argument of the learned counsel is that the power conferred is naked and arbitrary. We are unable to agree. There are two obvious checks provided in Section 6-A itself for the exercise of this delegated power by the State Government. The first is that there is a ceiling provided in the matter of rate and the State Government while exercising its delegated function cannot exceed the rate of Rs. 2/- for every 100 seats or a part thereof. The State Government can fix a rate lower than this and we find from the impugned notification that in point of fact it has done so.
The second safeguard which is available in Section 6-A is that the functions exercised by the State Government are open to scrutiny by the legislature. Not only so all orders passed by the State Government have to be placed before the Legislature in the next following session for its examination which includes the power to amend or rescind the steps taken by the State Government. These factors, in our opinion, completely negative the suggestion of an arbitrary exercise of power by the State Government in the matter of fixation of rate. The Legislature has reserved unto itself a supervisory function by way of vigilance over the exercise of this delegated power, and therefore, Section 6-A does not suffer from the infirmity of excessive delegation.
12. Now, we come to the second contention urged before us. There is no denying the fact that taxation law is not immune from attack for infringement of Article 14 of the Constitution of India. This is what their Lordships of the Supreme Court have observed in K. T. Moopil Nair v. State of Kerala, AIR 1961 SC 552. What we have to examine is whether the notification which fixes different rates for different cities is such as to offend the provisions of Article 14 of the Constitution of India. The notification lays down,--
'the additional entertainments tax shall be levied, charged and paid to the State Government as from the 1st day of April, 1960 at the rate of Re. 1/- (Rupee one) per show, exhibition or performance per hundred seats or a part thereof.' The proviso to this notification which classifies cities and towns into four categories fixes different maxima for each of the categories. As we have noticed already for the cities like Ajmer, Bikaner, Jaipur and Jodhpur the maximum fixed is Rs. 6/- per show regardless of the number of seats. Likewise for the towns of smaller population such as Alwar, Beawer Bhraratpur, etc., the maximum is Rs. 4/- per show and for still smaller towns like Abu Road, Sarmer, Bhawani Mandi, etc., the maximum laid down is Rs. 3/- and the lowest category is of town like Banswara, Saras, Bhadra, etc., with the maximum, of Rs. 2/- irrespective, of the number of seats. It is in the matter of maximum that a differentia has been adopted between the cities and towns. The question for consideration is whether this differentia is discriminatory and is therefore hit by Article 14 of the Constitution. In Budhan Choudhry v. State of Bihar, (S) AIR 1955 SC 191, their Lordships of the Supreme Court observed,--
'It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on diffe-rent bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.' It was urged on behalf of the respondents that the various cities which have been grouped together by the State Government are largely by reference to their population and the capacity of the trade to pay the additional entertainment tax. The classification it is urged has an intelligible differentia. We have no hesitation in saying that population and economic conditions of a particular town are certainly intelligible principles which can constitute a rational differentia. One of the fundamental principles of the law of taxation accepted in a welfare State is the consideration of capacity to pay. In Cantonment Board Poona y. Western India Theatres, AIR 1954 Bom 261, Bavdekar, J., delivering the judgment of the Bench observed.-- 'It has to be remembered, however, that so far as taxation is concerned, classification is always permissible. Not only does the Constitution permit taxation being related to the capacity to pay, but it is obvious that it is always desirable that it should be so related.'
We, therefore, have no difficulty in holding that the differentia adopted by the State Government is intelligible and has a nexus in regard to the tax levied by Section 6-A.
13. There is one more argument in this connection which was urged before us, namely, that in the city of Jodhpur itself different maxima has been provided for different Cinema Houses. Four cinema houses have been singled out for considerate treatment, viz. Chitra, Stadium, Charbhu'ja and Krishna. They have been included in the second category. It was urged on behalf of the State that the potential of these Cinema houses was taken into consideration by the State Government in placing them in the second group. The classification was, the State Government submits in its written answer, arrived at in consultation with the association of the Cinema industry. Although this fact is repudiated by the petitioner M/s. Vishnu Talkies in its replication but we have no difficulty in accepting the affidavit filed by the Assistant Sales-tax Officer in preference to the bare statement on behalf of the petitioner. We, therefore, hold that on this ground also there is a reasonable relationship between the categorisation for the purposes of taxation and the object which Section 6-A aims to achieve.
14. Another attack made by the learned counsel for the petitioners was that certain towns having a larger population than 15,000 and despite their cinema houses yielding greater income have altogether been exempted from the additional entertainment tax. To this the answer of the State Government is that the Cinema industry as a whols was consulted before these towns and cities situat-ed therein were altogether exempted. Here again the question of potential, the paying capacity and factors of this kind were given their due weight before exempting the cinema houses of these towns. As has been observed by Chagla, C. J., in Hira-bhai's case, (S) AIR 1955 Bom 185 that if a class is indicated as the object of legislation it is open to the legislature or to the authority upon whom power is conferred to achieve the object by stages. If and when the economic potential of these towns reaches the taxing level they may also be included. Our attention was invited to Section 7 (2) of the Rajasthan Entertainment Tax Act that it is only in public interest that the State Government may by general or special order exempt any entertainment or the class of entertainment from the payment of entertainment tax. It was urged that not reasonable grounds exist to exempt certain towns and the cinema houses situate therein altogether. We, are unable to accept this argument. The economic factors are certainly reasonable grounds for total exemption of certain cinema house from payment of additional entertainment tax.
15. Thus, in our opinion, the classification made by the State both in the matter of grouping of towns and exempting towns has been done on a reasonable basis after consulting the Industry and it does not offend Article 14 of the Constitution.
16. The next argument urged on behalf of the petitioners is that the additional entertainment tax under Section 6-A is in the nature of a tax on the calling and/or trade of all the persona who exhibit cinematograph for profit and since it exceeds the limit of Rs. 250/- per year as laid down in Article 276(2) of the Constitution of India it is an unauthorised levy. The question which calls for determination is whether the additional entertainment tax is a tax on calling and/or trade of the cinematograph exhibitors. The learned counsel has cited certain decisions in support of his contention. In Shrikrishna Shaligram v. Municipal Committee, Ujjain, AIR 1953 Madh-B 145, the Nagar Sabha Ujjain imposed a performance tax at the rate of Rs. 5/- for each show. It was contended that the tax was ultra vires of the powers of the Municipal Committee as it amounted to a tax on income. The learned Judges held that it was a tax on calling and since it exceeded the maximum limits set up by Article 276(2) of the Constitution it was invalid. The next case referred to is Romesh Chandra v. Union of India, AIR 1959 Him Pra 17.
The learned Judicial Commissioner observed that the petitioner in this case who was the sole owner of the cinema concerned was engaged in exhibiting talkie films for the entertainment of the public, admission being regulated by tickets. The Municipal Committee with the previous sanction of the Lieutenant-Governor of Himachal Pradesh imposed a tax of Rs. 2/- per show with effect from 20-10-1956. This amounted to a tax on profession as contemplated by item 60 of list II of Seventh Schedule of Constitution and it could not exceed the limit of Rs. 250/- per annum. In Kantiiai Chatrabhuj v. Palitana Municipality, (S) AIR 1955 Sau 90, the Municipality imposed a tax called the theatre tax on cinema shows at the rate of Rs. 3/-per show by a notification. The petitioner contended that the notification was in centravention of Article 276(2) of the Constitution. The learned Judges observed, --
'The true test for determining whether a particular Tax on calling referred to in Article 276 or the tax on 'entertainments' under item 62 of the State list is to ascertain the incidence of the tax. If the incidence falls on the person because he is engaged in the business of providing the entertainment for profit, it is a tax on his calling; but if the incidence of the tax falls on the particular entertainment irrespective of whether the person providing the entertainment follows that calling or not, then it is a tax on the entertainment and falls within item No. 62 of the State list and as such will not be hit by Article 276.'
In the case before the learned judges they held that since the notification provided that if the show was not held the tax will be refunded, the tax was intended to be on the show and not on the exhibitor because of his calling and it was not hit by Article 276 of the Constitution.
17. In Silver Screen Enterprises a firm v. The State, AIR 1956 Punj 203, a firm carrying on the business of exhibiting cinema films challenged the validity of some provisions levying entertainment tax on cinematograph shows which was fixed upto a maximum of Rs. 10/-. It was urged that it was a tax on profession or calling as contemplated by Entry 60 of List II of the Seventh Schedule to the Constitution. The learned Judges held, --
'..... if is quite clear that the tax falls under Entry 62 which deals with 'taxes on luxuries, including taxes on entertainments, amusements, betting and gambling'. This is clearly a tax on entertainment because it is the exhibition of a cinematograph film which is being taxed. Mr. Grover argued that the tax payable by the proprietor and that a person who exhibits cinematograph films or in other words is the proprietor for the purposes of this Act follows the calling of a cinematograph exhibitor.
Thus it is the profession of exhibiting films which is being taxed. Now ,it is quite clear that the person who pays a tax follows some calling or the other but for that reason alone the tax does not become a tax on his profession or calling. Otherwise the sales-tax would be a tax on the profession of shopkeeping, and any kind of tax would be a tax on the profession which the taxed individual follows. This is clearly a tax on entertainments and the mere fact that the person who pays the tax follows the vocation of providing entertainment for public does not make it a tax which falls under Entry 60.'
The learned Judges adopted the reasoning contained in AIR 1954 Bom 261 and held that the word 'entertainments' used in plural in Entry 50 of the Provincial Legislative List of the Government of India Act, 1935, which is identical with entry 62 in the Constitution of India, indicates that the word is used as a common noun and not as an abstract one and must necessarily mean in the case of a cinema a show, in the case of a drama a performance and in the case of a cricket a match. The learned Judges also disagreed with the interpretation given by the learned Judges of the Madhya Bharat High Court in the case which we have already noticed and held that Article 276(2) of the Constitution of India was not hit. We are in respectful agreement with the view taken by the Bombay High Court, that the use of the word 'entertainments' in Entry 62 in Item II of the seventh schedule in plural clearly denotes that the word is employed as a common noun and not as an abstract noun. Accordingly in the case of a cinema it means a tax on a show. Merely because the proprietor or exhibitor of a cinema house is called upon to pap the tax it does not acquire the character of a tax on the calling or the trade.
In the Madhya Bharat case AIR 1953-Madh-B 145, the pointed contention urged by the learned counsel was that the performance tax partook the nature of income-tax. At any rate, we are unable to accept the interpretation put by the learned Judges in that case. The learned Judicial Commissioner adopted the view taken by the Madhya Bharat High Court and no reference was made to the Punjab case AIR 1956 Punj 203. We respectfully disagree with the interpretation given by the Judicial Commissioner. In our view, therefore, the additional entertainment tax levied by Section 6-A is in the nature of an entertainment tax and not a tax on the calling or trade of the petitioner and the provisions of Article 276(2) of the Constitution of India are, therefore, not attracted.
18. The next argument urged on behalf of the petitioners was that Section 6-A of the Amending Act ought to be struck down as it is unworkable. The reason advanced was that there can be shows where it is not possible to ascertain the seating capacity of the people. In cur opinion this argument has no substance. In cases where an entertainment does not provide seating capacity then the accommodation can be calculated on the basis of standing and/or seating capacity as the case may be and the tax can be levied accordingly.
19. No other point was pressed in the writ petition of M/s. Vishnu Talkies of Chhittorgarh and in our opinion this petition has no force and must be rejected.
20. So far as the petition No. 411 of 1961 to concerned there is the additional argument urged on behalf of the petitioner which we have already noticed, namely, that the area covered by the noti-fication issued by the Excise and Taxation Depart-ment is 'Abu Road'. The cinema of the petitioner called Railway Ganesh Talkies is situate outside the Municipal and revenue boundaries of Abu Road town. The railway colony not being the part and parcel of Abu Road town the notification does not authorise collection of any tax from the petitioner. The petitioner has filed a certificate duly signed by the Executive Officer, Municipal Board, Abu Road (Ex. 5), which reads as follows: -
'It is certified that Railway Ganesh Talkies is situated outside the Municipal and Revenue Boundaries of Abu Road town. The Railway Colony is not part and parcel of the Abu Road Town.'
Another certificate has been filed from the Assis-tant Executive Engineer, Western Railway (Ex. 6) and it is to the same effect as Ex. 5. This ground as raised as ground No. 8 in the writ petition, para-graph 7 and there is merely a bald denial of this ground on the part of the respondents. On the contrary a copy of an agreement is filed on their behalf which shows the terms and conditions underwhich the President of the Union of India has au-thorised the petitioner to run a cinema and differentrates are prescribed for railway staff and those who are outsiders. From this an argument is sought to be built on behalf of the respondents that the petitioner's cinema also caters for outsiders and, therefore, it is liable to be taxed. Whenever the geographical name of a city or a town is mentioned its boundaries, if there is a municipality in existence,unless otherwise indicated, are ordinarily co-ex-tensive with the municipal boundaries thereof.
The impugned notification only mentions Abu Road without including the area where the peti-tioner's cinema is situate. The argument that thefirst part of the Notification is the charging partand the name Abu Road is mentioned only in the proviso limiting the maximum that can be charged and therefore the petitioner can still be made liableto pay while ignoring the maximum limit has no merit. The notification has to be read as a whole because its proviso is evidently an integral part ofit. In this view of the matter only cinemas situate in Abu Road as included in its Municipal boundaryare liable to the payment of additional tax and any house showing cinematograph films situate out-side the Municipal boundaries of the Abu Municipal Board is obviously not covered by the notification. We therefore, hold that the respondents arenot entitled to collect any taxes from the petitioner under the Notification No. F7(8)Ent/60 dated 1st April, 1960, and are hereby restrained from doingso. Writ Petition No. 411 of 1961 is, therefore,allowed.
21. In the circumstances of the case we make no orders as to costs.