U.C. Bankejee, J.
1. This appeal is against an ex parte order of injunction granted by A.K. Janah J. (as he then was) on the writ petition of respondents Nos. 1 and 2, directing an order of injunction restraining the State Government from giving any effect to the notification being No. 1042-F.T. dated March 31, 1984, issued under Section 8 of the Bengal Amusement Tax Act, 1922.
2. The principal question that arises in this appeal as also in the writ petition, which was also taken up for hearing on the joint prayer of the parties along with the appeal, is whether the notification dated March 31, 1984, is violative of the constitutional safeguards under Article 14 of the Constitution or not.
3. Mr. Ajit Kumar Panja, the learned counsel appearing for the writ petitioner, contended that the impugned notification is discriminatory in nature and has treated equals unequally. Mr. Panja contended that the classification made by the State Government is wholly unwarranted and unauthorised and the consequent issuance of the memorandum by the Commercial Tax Officer, Amusement Tax Section, Government of West Bengal, dated April 7, 1984, is bad in law as well as in the facts and circumstances of the instant case.
4. Before adverting to the rival contentions, it would be worthwhile to refer to some of the provisions of the Act of 1922 and the notifications issued by the State Government prior to the enactment of the Amending Acts of 1981 and 1984.
5. Section 2(4) defines entertainment and includes any exhibition, performance, amusement, game or sport to which persons are admitted for payment.
6. Section 2(4)(a) deals with entertainment tax and meant a tax levied under Section 3.
7. Section 3 of the said Act of 1922 provided that there shall be charged, levied and paid to the State Government a tax on all payments for admission to any entertainment. Section 3 provides the rate of taxation at the graduated scale.
8. Section 8, prior to its amendment, provided as follows :
8.--(1) The entertainment tax (and the show tax) shall not be charged on payment for admission to any entertainment where the (State Government) is satisfied-
(a) that the whole of the takings thereof are devoted to philanthropic, religious or charitable purpose without any charge on the takings for any expenses of the entertainment; or
(b) that the entertainment is of a wholly educational character (any question on that point to be determined in the case of difference by the (State Government) in the Department of Education ; or
(c) that the entertainment is provided for partly educational or partly scientific purposes by a society, not conducted or established for profit; or
(d) that the entertainment is provided by a society which is established solely for the purpose of promoting the interest of the industry or agriculture, or the manufacturing industry, or some branch thereof, or the public health, and which is not conducted for profit, and consists solely of an exhibition of the products of the industry, or branch thereof, for promoting the interests of which the society exists or of materials, machinery, appliances, or foodstuffs, used in the production of those products, or of articles which are of material interest in connection with the questions relating to the public health, as the case may be.
(2) The State Government may, by general or special order, exempt any entertainment or class of entertainments from liability to the entertainment tax (and the show tax).'
9. The State Government on September 1, 1975, issued a notification being No, 3943-F.T. under Section 8(2) of the Act of 1922, and exempted from the liability to entertainment tax on dramatic performances including jatra by professional or by other organisation subject to the condition that the exemption would not be available if the same exhibited directly or indirectly any cabaret.
10. By a notification No, 3969-F.T., dated August 29, 1977, an amendment to the departmental notification No. 3943-F.T., dated September 1, 1975, was effected and it provided that wherever the admission fee exceeds Rs. 15 per ticket per show or in the case of a season ticket the average rate of admission fee exceeds Rs. 15 per ticket per show, entertainment tax shall be charged, levied and paid to the Government at the rate of 20% of the admission fee. By a further notification No. 1279-F.T., dated March 31, 1979, the aforesaid limit of Rs. 15 as per earlier notification No. 3969-F.T., dated August 27, 1977, was brought down to Rs. 7 per ticket per show and provided further that no entertainment tax would be charged, levied or paid in respect of the performance organised by a group theatre, amateur theatre or amateur jatra, subject to the condition that organisers of such entertainment obtaining necessary certificate from the appropriate authority declaring them as bona fide group theatre, amateurtheatre or amateur jatra. Explanation to the notification, provided, however, that the group theatre or amateur theatre or amateur jatra would mean a registered or unregistered society of a group of persons formed exclusively for the purpose of cultural activities and not for monetary gains by engaging artistes, who are not paid in regular or contractual fees. Appropriate authority under the said explanation meant Department of Information and Cultural Affairs, Government of West Bengal who would issue certificates to be renewed every three years. A professional theatre or professional jatra meant any theatre for histrionic purposes including musical recital organisation by a proprietary or partnership concern or public limited concern or any appropriate or lessee of a public show house engaging artistes on payment of regular or contractual fees.
11. Subsequently, another notification being No. 1404 F.T., dated April 10, 1979, was issued and the limit of Rs. 7 was again raised to Rs. 15 per ticket per show though the exemption in regard to group theatre, amateur theatre or amateur jatra continued.
12. By the West Bengal Taxation Laws (Amendment) Act, 1981, Section 8 of the said Act of 1922 was substituted as follows :
'8. The State Government may, for social, educational or scientific purposes, by general or special order, exempt fully or partly the entertainment tax, show tax, surcharge or additional surcharge payable under this Act for any entertainment or class of entertainments, subject to such condition as may be laid down in such order.'
(Section 3 of the said Act of 1922 also underwent an amendment by the West Bengal Act IV of 1984 wherein the graduated scale of taxation have been revised.)
13. The notification under challenge, dated March 31, 1984, was issued by the Government of West Bengal in exercise of the powers conferred under Section 8 of the Bengal Amusements Tax Act, 1922, with effect from April 1, 1984, whereunder the earlier notifications Nos. 1279, dated March 31, 1979 ; 1404, dated April 19, 1979 ; 1984 dated March 22, 1983, and all previous orders exempting payment of entertainment tax on performance other than the cinematographic exhibition issued under Section 8 of the said Act were rescinded. The notification, however, provided that no entertainment tax shall be charged, levied and paid in respect of any performance organised by a group theatre, amateur theatre or amateur jatra subject to the condition that the organisers of such performance shall obtain necessary certificates from the appropriate authority, declaring them as bona fide group theatre, amateur theatre or amateur jatra. Explanation to the said notification reads as follows :
(a) 'Group Theatre' or 'Amateur Theatre' or 'Amateur Jatra' means a registered or unregistered society or a group of persons formed exclusively for the purposes of cultural activities and not for monetary gains by engaging artistes who are not paid any regular or contractual fees. 'Amateur Theatre' also includes any amateur organisation engaged in dance and music.
(b) 'Appropriate Authority' means the Department of Information and Cultural Affairs, Government of West Bengal, who shall issue certificates to be renewed every year on the basis of papers and returns as may be required by that department from time to time.
(c) 'Professional Theatre' or 'Professional Jatra' means any theatrical or histrionic performance including musical recitals organised by a proprietary or partnership concern or public limited company or any proprietor or lessee of a public show house, engaging artistes on payment of regular or contractual fees.'
14. Mr. Panja in support of his contention submitted that the requirements for the grant of exemption under Section 8 is only social, educational or scientific and if that requirement is fulfilled, one is entitled to the grant of exemption, subject, however, to conditions which may be imposed by executive action. The power to grant exemption is circumscribed by Section 8 of the Act. There cannot be any differentiation between entertainments which are admittedly for social, educational or scientific purposes. These entertainments form a class by themselves and further dissection is not permissible. The concept of monetary gain or engagement of artistes on regular or contractual basis cannot be the decisive test for the purpose of forming a separate class or a distinct entity and the executive action in that regard is wholly arbitrary. In any event, Mr. Panja contended that by reason of express abandonment of the concept of monetary gain or engagement of artistes without any contractual or regular remuneration in the substituted Section 8, the said concept cannot be taken as the basis of classification. Mr. Panja contended that the legislative intent is manifestly clear, that Clauses (a) and (c) of old Section 8 cannot be invoked in aid of classification under Section 8 of the Act after its amendment. Mr. Panja, relying upon the decision of the Supreme Court in the case of Antulay v. Ramdas Sriniwas Nayak, : 1984CriLJ647 , submitted that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden.
15. Mr. Naranarayan Goopta appearing for the State Government, however, contended that there exists no arbitrariness either in the matter ofclassification or in the matter of granting relief from the liability of tax under the Act of 1922 in so far as group theatres, amateur theatres and amateur jatras are concerned. The notification itself has made the classification as appears from Explanation (a) and (c). Non-monetary gains and engagement of artists without any remuneration make group theatre, amateur theatre and amateur jatra as a class by themselves.
16. Mr. Gooptu contended that the law is now well settled that micro-classification is permissible and by reason of such classification, question of violation of constitutional safeguards under Article 14 does not and cannot arise. Mr. Gooptu contended that the vires of Section 8 has not been challenged and after its substitution, the section has conferred much wider power than what it was under the old Section 8 and there is no fetter on the powers of the executive authority.
17. Admittedly, dramatic performances on public stage cannot be said to be devoid of any social values. Dramatic performances be it by a group theatre or amateur theatre or professional theatre always aim at social reformation and Mr. Gooptu in his usual fairness has also conceded that position. As a matter of fact, more often than not, productions of group theatres are highly intellectual in nature and are beyond the understanding or intellectual capability of the common man. The social and educative values of these productions find expression at a very high level and as such are meant mostly for the sophisticated and intellectual class. In contradistinction with the aforesaid, professional theatres, however, though aim at the same social reformation, present their productions for the common man. The small percentage of people that derive entertainment from out of the group theatre cannot even be compared with that from professional entertainment. The fact that group theatres are facing tremendous financial crisis even with Government grants as submitted by Mr. Gooptu corroborates such a situation. It is in this background, classification by the executive authority under Section 8 is to be considered.
18. It is now taken to be well settled that classification must not be arbitrary but must be rational, that is to say it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others, who are left out, but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (a) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (b) that the differentia must have a rational relation to the object sought to be achieved by the Act. This view finds support from the decisions of the Supreme Court cited by Mr. Panja in support of his contention in thecase of the Anant Mills Ltd. v. State of Gujarat, : 3SCR220 as also in the case of Nakara v. Union of India, : (1983)ILLJ104SC .
19. The fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of the legislation which classification must satisfy the twin test referred to above.
20. Mr. Gooptu placed strong reliance on the decision of this court in the case of Spencer Hotel (P.) Ltd. v. State of West Bengal  Calcutta High Court Notes 115. In that decision, this court was considering the validity of the West Bengal Entertainment (Hotel & Restaurants) Tax Act, 1972. In the said enactment, classification has been made between airconditioned space in hotel and restaurants and non-airconditioned space in hotels and restaurants and this court came to a finding that there is an intelligible differentia and the differentia has a rational relation to the object sought to be achieved by the Act, which is to provide for imposition of tax on entertainment and luxuries in hotels and restaurants. The said Act of 1972 imposed a tax on the extent and volume of airconditioned space in a hotel and restaurant wherever situated. In our view, the said decision of this court is of no assistance to Mr. Gooptu inasmuch as a classification has been made between airconditioned and non-airconditioned places in hotels and there exists a reasonable basis for such classification which is, however, totally absent in the case under consideration.
21. The other decision on which strong reliance was placed by Mr. Gooptu is the decision of the Supreme Court in the case of Ramkrishna Dalmia v. Justice S.R. Tendulkar, : 1SCR279 . While there cannot be any dispute in regard to law laid down by the Supreme Court, the said decision does not lend any support to Mr. Gooptu.
22. Mr. Gooptu further relied on the decision of the Supreme Court in Murthy Match Works v. Asst. Controller of Central Excise, : 1978(2)ELT429(SC) . In that decision, the Supreme Court, while dismissing the appeal of small manufacturers of matches, who have been subjected to excise duty at the same onerous rate as has been applied to the larger producers, observed (p. 503):
'It is true that a State may classify persons and objects for the purpose of legislation and pass laws for the purpose of obtaining revenue or other objects. Every differentiation is not a discrimination. But classification can be sustained only if it is founded on pertinent and real differences as distinguished from irrelevant and artificial ones. The constitutional standard by which the sufficiency of the differentia which form a valid basis for classification may be measured, has been repeatedly stated by the courts. If it rests on a difference which bears a fair and just relation to the object for which it is proposed, it is constitutional.'
23. This decision also is not of any assistance to Mr. Gooptu. Section 8 of the Bengal Amusements Tax Act, 1922, as amended by the West Bengal Taxation Laws (Amendment) Act, 1981, authorises the State Government to exempt entertainment by general or special order from payment of entertainment taxes, show taxes, surcharges or additional surcharges. The power to exempt is to be exercised by the State Government in the event, however, if the entertainment is for social, educational or scientific purposes. . The classification, if any, may be made or is permissible under the statute after keeping in view the language of the statute, and the court should not hesitate to say so. The quality or characteristics must have a reasonable relation to the object of the statute. In any event, introduction in substance Clauses (a) and (c) of old Section 8 for the purpose of classification would be contrary to all recognised principles of law.
24. The law is well settled in regard to amending statutes, viz., where an amending Act alters the language of the principal statute, the alteration must be taken to have been deliberately made. The change cannot be disregarded as a mere freak of the legislature. In this context, reference may be made to the decision of this court in the case of J.K. Industries (P) Ltd. v. Ganges .  72 CWN 618.
25. It should also be noted that what the legislature has deliberately left out, an executive action cannot reintroduce it by way of a notification.
26. Dramatic performances for social, educational or scientific purposes form a class by themselves and further classification, in our opinion, is not permissible in law. Profit motive and engagement of artistes on contractual or regular remuneration basis do not have a rational relationship to the object sought to be achieved by the Act. Both the group theatres, amateur theatres and amateur jatras as also the professional theatres provide entertainment and as stated above are for social purposes. In our view, classification cannot be reasonably regarded as based upon some differentia which distinguishes group theatres, amateur theatres or amateur jatra from the professional theatres. The twin tests referred to above have not been satisfied in this case and there is nothing on the face of the notification or even any surrounding circumstances brought to the notice of this court, on which the classification may reasonably be regarded as based. The presumption of constitutionality in our opinion cannot be carried to the extent of always holding that there must be some undisclosed or unknown reason for subjecting certain individuals or group of persons to hostile or discriminating legislation or executive actions.
27. It is true that the court must be very cautious in judging the question of the validity of the legislation because every presumption is in favour of the validity of the Act of the Legislature until the same is beyond any rational doubt. The Legislature is supposed to know the wishes and the needs of the people and the law-makers are supposed to reflect the intention of the people. It is also said that our law-makers are in possession of facts upon which the legislation is based while the courts are not. But if a statute or an act of the State be opposed to the Constitution, the court has no choice but to say so.
28. In that view of the matter, we are of the opinion that the notification dated March 31, 1984, being No. 1042-F.T. contravenes the constitutional safeguards under Article 13 of the Constitution and as such the notification is unenforceable.
29. The question in regard to the violation of Article 19(1)(g) has not been seriously urged at the hearing and, as such, we need not express any opinion thereon.
30. In the view we have taken as indicated above, we declare the notification dated March 31, 1984, being No. 1042-F.T., issued under Section 8 of the Bengal Amusements Tax Act, 1922, to be ultra vires and restrain the appellant by an order of injunction from enforcing the notification No. 1042-FT. dated March 31, 1984.
31. In the premises, the notification as also the memorandum dated April 7, 1984, are set aside and quashed. The appellants are directed to refund the tax collected either in terms of the order of this court or otherwise to the writ petitioners within a period of four weeks from date.
32. In that view of the matter, the appeal fails. Rule issued by the learned trial judge succeeds and is made absolute. In the facts of this case, there will, however, be no order as to costs.
33. Prayer for stay made but rejected.
M.N. Roy J.
34. I agree.