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The Corporation of Calcutta and ors. Vs. Sarat Chandra Ghatak and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 32 of 1958
Judge
Reported inAIR1959Cal704
ActsConstitution of India - Articles 110(2), 199(2), 245, 265 and 277; ;Calcutta Municipal Act, 1951 - Sections 233 and 229
AppellantThe Corporation of Calcutta and ors.
RespondentSarat Chandra Ghatak and anr.
DispositionAppeal dismissed
Cases ReferredSyed Mohammad and Co. v. State of Andhra
Excerpt:
- das gupta, c.j. 1. the orders against which this appeal is directed were made by sinha j., on an application by the manager of the purna theatre and the executor to the estate of manomoy banerjee, who is carrying on business under the name of purna theatre. as people who frequent cinema houses are aware, advertisements are displayed on the screen during the usual hours of display of pictures. according to the present appellants, the owners of the theatre are bound in law to take out licenses in respect of the display of such advertisements on payment of money in accordance with the rules made by the corporation under section 229 of the calcutta municipal act, 1951. the owners of the purna theatre having refused to take out such licenses, the deputy license officer of the corporation wrote.....
Judgment:

Das Gupta, C.J.

1. The orders against which this appeal is directed were made by Sinha J., on an application by the Manager of the Purna Theatre and the executor to the estate of Manomoy Banerjee, who is carrying on business under the name of Purna Theatre. As people who frequent cinema houses are aware, advertisements are displayed on the screen during the usual hours of display of pictures. According to the present appellants, the owners of the theatre are bound in law to take out licenses in respect of the display of such advertisements on payment of money in accordance with the rules made by the Corporation under Section 229 of the Calcutta Municipal Act, 1951. The owners of the Purna Theatre having refused to take out such licenses, the Deputy License Officer of the Corporation wrote to the Manager on 5-1-1956 stating that action would have to be taken within the specified date for enforcement of law in respect of this. On the 2nd of February 1958 the License Inspector issued a notice to the Manager, Purna Theatre, stating that as he had been displaying advertisements on slides inside the cinema house, he was directed to take out a license on payment of a fee of Rs. 630/- and that this must be obtained within a fortnight. On 21-2-1956 the Deputy License Officer issued a notice to the Manager stating that if he failed to take out the license within a week from that date, prosecution would be filed against him under Section 541 (1) (d) of the Calcutta Municipal Act, 1951. The owners of the Purna Theatre still persisted in saying that they were not bound to take out a license as directed and ultimately they made the present application to this court under Article 226 of the Constitution asking for appropriate Writs restraining Corporation and its licensing authorities from taking any step in respect of the demands or notices mentioned above and quashing the demands and the notices. A Rule was issued on the present appellants to show cause why the appropriate Writ should not be issued for giving the applicants the reliefs asked for. At the hearing of the rule four points were urged on behalf of the applicants. The first was that the cinema house was not a public place within the meaning of Section 229. 'Secondly it was urged that the law as it appears in Section 229 was invalid as it delegated legislative function to the Corporation beyond the limits of permissible delegation. Thirdly it was stated that Section 229 is ultra vires the Constitution in violation of the principle of equal protection of rights as guaranteed by Article 14 of the Constitution. And lastly it was urged that Section 229 permits the levy of a license tee only but in this case as there was no quid pro quo for the payments sought to be levied the fee was not license fee and so the legislation was invalid.

2. As regards the last point it was conceded before the learned Judge and it has been conceded before us that there is no quid pro quo and though the section uses the word 'license fee' what is sought to be levied is not a license fee but a tax. The learned Judge was however of opinion that the fact that it was a tax though the word 'license fee' was used, would not make the legislation invalid. The learned Judge was also of opinion that the cinema house' was a public place within the meaining of Section 229 of the Act. He held however that the law as bid down in Section 229, was invalid as being beyond the permissible limits of delegation and further it was ultra vires the Constitution being in violation of the principle of equal protection of rights guaranteed by the Article 14 of the Constitution.

3. Accordingly he made the rule absolute and ordered the issue of a Writ in the nature of Mandamus directing the present appellants 'to forbear from demanding or refusing from the petitioners any license fees under Section 229 of the Act read with the rules, in respect of advertisement displayed on cinema screens.' As already indicated, it is against this order that the appeal has been preferred.

4. The appeal, therefore, raises the important question as regards the validity of law laid down in Section 229 of the Calcutta Municipal Act, 1951 Section 229 is in these words:

'Every person who erects, exhibits, fixes or retains upon or over any land, building, wall, hoarding or structure any advertisements, or who displays any advertisement to public view in any manner whatsoever, visible from a public street or other public place shall pay for every advertisement which is so erected, exhibited, at such rate and in such manner and subject to such exemptions as the Corporation may prescribe by rules with the approval of the State Government.'

5. As I have already said it is the common case that though the word license fee has been used, what is sought to be levied is a tax. The first question is whether in legislating for the levy of the tax the legislature has exercised its functions completely or has delegated as essential part of the legislative function to the Corporation. The legislation is clearly complete as regards the class of persons on whom the tax imposed. That class consists of persons

'who erects, exhibits, fixes or retains upon or over any land, building, wall, hoarding or structure any advertisement, or displays any advertisement to public view in any manner whatsoever visible from a public street or other public place.'

6. It is equally clear that the legislation is incomplete as regards the rate of tax, the manner of calculation of the tax and the matter of exemptions therefrom. The question of the rate of tax, the question of the manner in which the tax should be calculated and also the question of exemption from the tax has been left by the legislature to be determined by the Corporation by means of rules subject only to this that these must have the approval of the State Government. There can be no doubt therefore that there has been some delegation. The real question is whether the delegation is within the limits of permissible delegation.

7. The question of the limits within which delegation by the legislature can be permitted without affecting the validity of the legislation was considered exhaustively by the Supreme Court in In re Delhi Laws Act (1912), 1951 SCR 747: (AIR 1951 SC 332)

8. As to what was decided authoritatively by the Supreme Court in that case it is helpful to consider the statement on that question in subsequent pronouncements of the Supreme Court. In Harishankar Bagla v. State of Madhya Pradesh, : 1954CriLJ1322 , Mahajan C. J., delivering the judgment of a unanimous court consisting of himself and Mukherjea, Bose, Bhagwati and Venkatarama Ayyar, JJ, observed:

'It was settled by the majority judgment in the Delhi Laws Act case 1951 S. C. R. 747: (AIR 1951 SC 332) that essential powers of legislation cannot be delegated. In other words, the legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The legislature must declare the policy of the law and the legal principles which had to control any cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative policy consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct.'

9. In view of the pronouncement of the Supreme Court on this question of delegation, I consider it unnecessary to refer to the numerous American, decisions on the subject which, naturally, were considered by the Supreme Court itself. The position in law as settled by the decisions of the Supreme Court clearly is that when the legislature has performed its essential legislative function in determining and laving down the legislative policy and provided a standard to guide the officials or other body to execute the law, the fart that the execution has been left to such officials or other body does not invalidate the legislation. In applying this principle it is necessary to examine the legislative measure the validity of which is impugned to see whether a legislative policy has been laid down and a standard has been laid down. In other words, the question is whether what has been left to be determined by a subordinate body is a question of detail or is a question of the policy or standard itself. In the present case it is urged on behalf of the appellants that the legislative policy is sufficiently laid down as soon as it is said that a tax will be levied on certain persons and that the question of the rate of the tax, the manner of its calculation and the question of exemptions which have been left to the Corporation, are only matters of detail. I am inclined to agree that the manner of calculation of the tax is a matter of detail.

10. As regards exemption the position clearly is that the policy that exemption may be allowed to suitable cases is laid down by the legislature itself. The determination of what are suitable cases has, however, been left to the Corporation. The argument which found favour with the learned Trial Judge was that no standard, has been laid down for the guidance of the Corporation in determining what cases are suitable and so the legislation as regards exemption, as contained in this section, is beyond the limits of permissible delegation.

11. It is to be noticed, however, that in Banarsi Das v. State of Madhya Pradesh, : [1959]1SCR427 , the Supreme Court has held that the determination of suitable cases for exemption may be left to other bodies and such delegation is permissible. In that case the Supreme Court had to deal with the provisions of Sections 6(1) and 6(2) of the Central Provinces and Berar Sales Tax Act 21 of 1947. These sections are in the following words:

'6(1). No tax shall be payable under this Act on the sale of goods specified in the second column of schedule II subject to the conditions and exceptions, if any, set out in the corresponding entry in the third column thereof.

6 (2). The State Government may, after giving by notification not less than one month's notice of their intention so to do by a notification after the expiry of the period of notice mentioned in the first notification amend either Schedule and thereupon such Schedule shall be deemed to be amended accordingly.'

In Schedule II as originally framed, one of the items, Item 33, was 'Goods sold by the Crown.' The Legislature itself amended this list by substituting for the words 'Goods sold by the Crown', the words 'Goods sold to or by the Crown. The words 'State Government' were by an Adaptation Order, 1950, substituted for the words 'the Crown' so that Item 33 now reads thus: 'Goods sold to or by the State Government.' On 18th September, 1950, the State Government on exercise of the power under Section 6(2) of the Act issued a notification amending Item 33 by substituting for the words 'goods sold to or by the State Government' the words 'goods sold by the State Govt.' The appellant before the Supreme Court who had before such amendment been entitled to exemption from tax in respect of goods sold to the Government, lost that right as a result of the notification. It was urged that the question which fell to be considered was whether Section 6 Sub-section 2 in so far as it allowed the State Government to amend the list of exempted items went beyond the limits of permissible delegation. The Supreme Court rejected this contention being of opinion that the essential feature of the law was laid down by the legislature as soon as it legislated that exemptions from the tax would be allowed in suitable cases and the selection of suitable cases was a matter of detail in the execution of this policy. It is true that in that case the legislature itself included in the statute a list of exemptions. By the provisions of Section 6(2), however, it empowered the State Government to include other items in this list as also to exclude items already there. Unless the selection of items for exemption was considered a detail in the execution of a policy already laid down, the provision of Section 6(2) would be unconstitutional delegation. The Supreme Court being of opinion that this selection of suitable cases of exemption was a mere detail relating to the working of the law, held that the delegation was within permissible limits.

12. I have, therefore, come to the conclusion that the legislation in Section 229 in so far as it left the determination of suitable cases for exemption to the Corporation was not void.

13. This brings us to the question whether the determination of the rate of the tax is a matter of detail. Reliance was placed by the learned Counsel for the appellant in Banarsi Das's case : [1959]1SCR427 already referred to, for his contention that the determination of the rate of tax to be levied is also a matter of detail. It is to be noticed that in Banarsi Das's case, : [1959]1SCR427 the Supreme Court was not concerned with the question whether the rate of tax is a matter of detail which could be left to a subordinate authority. As I have already pointed out, the question there was whether the selection of different classes of goods for exemption was a matter of detail. Reliance is, however, placed on an observation of the Supreme Court which is in these words:

'The authorities are clear that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as, the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods and the like.'

It is urged that in this passage the Supreme Court was saying that the rate at which the tax is to be levied is a matter of detail. There can be no doubt that if the observation by the Supreme Court be read as suggested, we would be bound to follow it as the law even though the consideration of that question might have been unnecessary for the decision of that particular case. I am unable to pursuade myself, however, that the Supreme Court did say or meant to say that the determination of the rate at which a tax is to be levied is a matter of detail. It is, in my opinion, clear that in using the words 'the rates at which it is to be charged in respect of different classes of goods', the Supreme Court was laying emphasis on the words 'in respect of the different classes of goods'. The question before them was whether the selection of classes of goods for exemption would be permissible. Such selection necessarily involved the consequence that the tax on some classes of goods would be at the rate laid down in the Act, while in some classes of goods it would be nil. That is why, it seems to me, the Supreme Court in approaching the question for decision in that case said that the authorities were clear, that rates at which tax is to be charged in respect of different classes of goods was a detail, which could be properly left for determination to the leigslature.

14. It is to be noticed further, that none of the authorities which have actually been referred to in the Supreme Court judgment relates to the question whether a law which authorises taxation without laying down any rate whatsoever and leaves the determination of the rate to another authority, is valid. In Powell v. Appollo Candle Co., (1885) 10 AC 282, the first case referred to, the question was whether the conferment of a power on the Governor to impose tax on certain articles of import was unconstitutional delegation. There was no delegation there as regards the determination of the rate of tax. In Syed Mohammad and Co. v. State of Madras : AIR1953Mad105 , the matter which the Madras. General Sales Tax Act, Section 5(vi) have left to a subordinate authority was the determination at which single point in the series of sales made by successive dealers the tax should be levied. Such delegation, it was held, was constitutional. Therewas no question there of the determination of the rate of tax being left to any other authority. In J. W. Hampton, Jr. and Co. v. United States, (1928) 276 U. Section 394: 72 Law Ed. 624, which was next referred to, the question was whether the empowerment of the President to make certain increases and decreases in the rates of duty was unconstitutionaldelegation. The position in this case was that Section 315 of the Tariff Act provided:

'That in order to regulate the foreign commerce of the United States and to put into force and effect the policy of Congress by this act intended, whenever the President, upon investigation of the differences in cost of production of articles provided for in title 1 of this act wholly or in part the growth or product of the United States and of like or similar articles wholly or in part the growth or product of competing foreign countries, shall find it thereby shown that the duties prescribed in this act do not equalise said differences, and shall further find it thereby shown that the said differences in costs of production in the United States and the principal competing country cannot be equalised by proceeding under the provisions of Sub-section (a) of this section, he shall make such findings public, together with a description of the articles to which they apply, in such detail as may be necessary for the guidance of appraising officers. In such cases and upon the proclamation by the President becoming effective the ad valorem duty or duty based in whole or in part upon the value of the imported article in the country of exportation shall thereafter be based upon the American selling price of any similar competitive article manufactured or produced in the United States.'

It was further provided that

'the ad valorem rate or rates of duty based upon such American selling price shall be the rate found upon said investigation by the President, to be shown by the said differences in costs of production necessary to equalise such differences but no such rate shall be decreased more than 50 per cent of the rate specified in title 1 of this act, nor shall any such rate be increased.'

It was contended on behalf of the taxpayer, Hampton Junior and Company, that the increase in the duty of Barium Dioxide from 4 per cent per pound to 6 percent per pound on the authority of Sub-section, (b) of Section 315 was void, and the delegation of this power to increase to the President being unconstitutional delegation. A unanimous court held that in this case the Congress have laid down by its legislation an intelligible principle to which the person or body authorised to fix the rates was directed to conform, and such legislative action was not a forbidden delegation of legislative power. It is important to notice that the Judges did not say that even if any principle had not been laid down by Congress as to how the rates should be fixed, the delegation would be good. It proceeded on the basis that only if an intelligible principle has been laid as regards the fixing of the rate that the law would be good and that in the absence of any intelligible principle on this matter, the delegation would be unconstitutional.

15. It is well to remember when our Supreme Court referred approvingly to the decision in, (1928) 276 U. Section 394: 72 Law Ed 624, and cited that decision as one of the authorities for the proposition-laid down in the passage quoted above, it knew well that the view of the American Courts was that only in the presence of an intelligible principle in fixing the rate would save the delegation from being unconstitutional.

16. I am unable, therefore, to accept the contention urged on behalf of the appellant that the Supreme Court in the passage mentioned above did say or intended to say that the rate at which a tax is to be levied, is a mere matter of detail.

17. To my mind the most important question of policy which the legislature has to determine in a taxing statute is the question of the rate of tax. To leave the determination of this matter to any other authority without indicating clearly principles on which (Sic) principles for determination cannot be considered permissible delegation.

18. It was urged, however, that legislature must be taken to have provided a standard to guide the corporation in determining the rate. The argument is that when the Municipal Act after laying down the functions to be performed by the Corporation and thereafter in several sections the manner in which the Corporation should provide itself with funds for the purpose of carrying out those functions provides in Section 229 for the levy of a tax on certain advertisements without mentioning any rate, it is reasonable to think that the legislature was authorising the Corporation to levy the tax at such rate as was required to pay the amount still needed by it. If the legislature had in so many words authorised the Corporation to levy the tax at such rate as was needed to meet its needs, it would have been necessary to consider whether that was a sufficiently definite standard laid down by the legislature and amounted to performance of the legislative function. The legislature has not used such words. It is contended that such words should be read into the section. I can see no justification for reading such words into the section when the legislature in its wisdom did not use them and I find it impossible to say that these words are there by necessary implication. For the court to read into the section words to the effect that the tax would be at such rate as was needed by the Corporation to meet its needs, would, in my judgment, amount to legislation and usurping the functions of the legislature.

19. I have, therefore come to the conclusion that no policy has been laid down by the legislature as regards the determination of the rate of taxation in Section 229. As it is next urged that in any case as this is delegation to a local authority the legislation is valid even though no policy has been laid down or no standard provided to guide subordinate authority. From the text-books on American constitutional law it does appear that the rule against delegated legislation except within certain limits is subject to the exception that where the delegation is to a local authority, the rule will not apply. The American courts allowed this exception on, consideration of the peculiar historical position in that country. I am unable to see anything that would justify this court in engrafting such an exception in favour of local authorities on the law as regards delegated legislation. It is to be noticed that while in the Delhi Laws Act case, 1951 SCR 747: (AIR 1951 SC 332) some of the learned Judges mentioned this exception in American law in favour of local authorities, there is no indication whether they themselves were in favour of such an exception being allowed. It is proper, in my opinion, for this court to proceed on the basis that the Supreme Court has not as yet recognised any such exception in favour of local authorities.

20. My conclusion, therefore, is that there is nothing in principle or authority that would permit delegation of the question as to how the rate of tax should be determined to a subordinate body. In my opinion, the legislation in Section 229 in so far as it leaves the determination of the rate of what it calls a license fee but is in reality a tax to the Corporation with the approval of the State Government is beyond the limits of permissible delegation and so invalid.

21. This conclusion is sufficient for the decision of this appeal as the legislation in Section 229 being found invalid, the applicants are clearly entitled to the reliefs prayed for. As has already been said, however, another ground on which the applicants based their claims for relief was that the cinema house is not a public place within the meaning of Section 229 and so even if the legislation in Section 229 is valid, the imposition of a license fee in respect of advertisements displayed in the cinema house is bad in law. In the opinion of the learned Trial Judge the cinema house is a public place within the meaning of Section 229. After considering a number of cases in which the connotation of the words 'public place' was considered, the learned Judge observes this:

'Considering all these cases it appears to be impossible to draw any established principle. Apart from the question of ejusdem generis, the two view points appear to be equally tenable. The stricter view is that a public place must be a place to which members of the public have a legal right of access. On the other hand it is equally possible to say that a place where the public are permitted to go and habitually go, is also a public place.'

Holding further that the rule of ejusdem generis will not apply as only one species, public street, had been mentioned earlier, the learned Judge referred to the intention of the legislature which, in his opinion, was

'to impose a liability upon advertisers who advertise on public streets or public parks as also in places where a large number of people are usually permitted together as in both cases advertiser gets the benefit of having the advertisements viewed by a large body of prospective customers' and decided that the words 'public place' have been used in Section 29 in the larger sense that is to mean and include all places where the public are permitted to go and habitually go even without having a legal right of access.'

It is necessary to consider whether this conclusion of the learned Judge is concert.

22. I agree with the learned Judge that it is difficult from the decided cases to conclude one way or the other whether the words 'public place' have been used in this section in the restricted sense of a place where the public have a legal right of access or in the wider sense of a place where the public are permitted to go or habitually go the matter has to be decided on a consideration of the purpose of the legislation as also with the help of whatever light is available to other portions of the same statute. I am unable to agree with the learned Judge that the purpose of the legislation in this section being to impose a liability upon advertisers in all places where a large number of people are usually permitted to go, the legislature has used the word in the wider sense. It is to be noticed that the first condition of liability to tax for these advertisements is that it must be displayed to public view. That itself would satisfy the condition that a large number of people can see the advertisement. It is possible, in my opinion, that an advertisement so displayed to public view will be seen by a large number of people even where it is visible from a large number of private houses situated all round the place where the advertisement is displayed. I do not think it possible, therefore, to get any assistance from the intention of the legislature to impose this liability upon advertisers as suggested by the learned Judge.

23. Turning for light to ether portions of the statute, the first circumstance which deserves mention is that in more than one place of the Calcutta Municipal Act, cinema houses have been referred to as places of public resort. In Chapter XI where the subject of impost ion of consolidate rate is dealt with, we find in Section 168, Sub-section (4) which contains provisos to the main provision in Section (1), Section 168 as regards assessment of lands and buildings to the consolidated rate; Clause (i) is in these words:

'in the case of a building used as a public cinema house or theatre or other similar place of public resort recreation or amusement, the gross annual rent of the building shall be deemed to be 5 per cent of the gross annual receipts in respect of the cinema house or theatre, or place of public resort, recreation or amusement including receipts from rent and advertisements and sale of admission ticktes but excluding taxes on 'the sale of such tickets.'

In Chapter XXVI dealing with 'Inspection and Regulation of Premises., and of Factories, Trades and Places of Public Resort,' Section 443 is in these words:

'No person shall, without or otherwise than in conformity with the terms of a license granted by the Commissioner in this behalf, keep open any theatre, circus, cinema-house, dancing hall or other similar place of public resort, recreation or amusement.'

All cinema houses and theatres to which the public have the right of access, the legislature thought fit to describe as 'places of public resort' and did not use the words 'public place'. The words 'public place' are however, to be found in Chapter XXI--both in the heading and in the body of the section. The heading is 'Streets and Public Places'. Section 249, which is the first section in the chapter, states:

'All public streets and squares (not being the property of and kept under the control of Government, the Commissioners for the Post of Calcutta or the Board of Trustees for the Improvement of Calcutta), ........... shall vest in and belong to the Corporation.'

Sub-Rule 2 of the section provides that:

'The Corporation may, from time to time, determine the name by which any public street or square is to be known.'

It seems reasonable to think that this section was intended by the legislature to be exception as regards the vesting of proprietary rights and the power to name 'streets and public places.' The only public place to which reference is made in this section is public square. Under the sub-heading 'Maintenance, repair, protection and regulation of streets and public places,' we have Sections 350, 351 and 352 and following Sections 353 and 354. Section 350 provides that 'the Corporation shall cause the public streets vested in it to foe maintained and repaired'. Section 351 provides that the Corporation shall cause the public streets, squares and gardens, to be watered, oiled or otherwise treated. Section 352 provides that streets and public places shall be maintained, repaired and protected and otherwise regulated in accordance with the rules contained in Schedule XV. Sections 353 and 354 contain provisions to remove fixtures, fences, rails etc. approaching other public streets. There is no mention of any other public place than squares and gardens in these provisions as regards maintenance, repair, protection and regulation of streets and public places. When these sections are read together, it becomes clear that the only public places the legislature had in mind in laying down the law in Chapter XXI, were public squares and gardens.

24. It does not appear that the words 'public place' have been used in other portions of the statute. It is, in my opinion, reasonable to think that when using the words 'other public places' in Section 229, the legislature had in its mind the same kind of public places, for which it legislated in Chapter XXI of the same statute. Even if the words 'other public places' might include something in addition to public squares and gardens, it is, in my opinion, reasonable to think that the peculiar feature which characterises public squares and public gardens namely, the right of the public to have access to it, must be enjoyed by any place before it can come within 'other public places' in Section 229.

25. The manner in which 'the words 'public place' have been used in respect of public squares and gardens in Chapter XXI and the fact that cinema houses and theatres have been referred to as places of public resort in Section 68(4) and Section 443, furnish, in my opinion, useful light for the interpretation of the words 'other public places' in Section 229 and justify the conclusion that the words were used here in the restricted sense to include a place to which members of the public have legal right of access. It is undisputed that the cinema house is a place where the members of the public have no unrestricted right of access and the owner of the cinema may, without violating the law, refuse access to a member of the public even though he is prepared to pay for such access. On all these considerations I have come to the conclusion in disagreement with the learned Trial Judge that the cinema house is not a public place within the meaning of the Municipal Act, 1951.

26. The position in law, therefore, in my opinion is that Section 229 does not empower the Corporation to impose any tax in respect of advertisements displayed to public view in a cinema house. Even if therefore Section 229 were held to be valid legislation, the applicants would be entitled to the relief asked for.

27. I would, therefore, dismiss this appeal with costs.

Bachawat, J.

28. Important questions arise in this appeal relating to the constitutional validity and construction of Section 229 of the Calcutta Municipal Act, 1951. That section reads as follows :

Section 229 : Every person who erects, exhibits, fixes or retains upon or over any land, building, wall, hoarding or structure any advertisement, or who displays any advertisement to public view in any manner whatsoever, visible from a public street or other public place, shall pay for every advertisement which is so erected, exhibited, fixed, retained or displayed to public view, a licence fee calculated at such rate and in such manner and subject to such exemptions as the Corporation may prescribe by rules, with the approval of the State Government.

29. The corporation of Calcutta has framed rules under this Section.

30. The respondents are owner and manager respectively of a cinema house known as the Purna Theatre. Advertisements are displayed on the Cinema screen inside the cinema house by means of slides and other devices. The appellant Corporation of Calcutta claims that the respondents are bound to take out a licence for the display of the advertisements on payment of the licence fee levied under Section 229 and the rules framed under it. Sinha J. has held that Section 229 is unconstitutional and void and has issued a Writ in the nature of Mandamus directing the Corporation of Calcutta and its officers to forbear from demanding or realising from the respondents any licence fee under Section 229 read with the rules in respect of advertisements displayed on cinema screens.

31. The respondents contend, firstly, that on a true construction of Section 229 they are not liable to pay a licence fee for advertisements displayed inside the cinema houses. In my opinion this contention ought to prevail. The liability to pay the license fee under Section 229 arises only if advertisements are (a) displayed to public view and are (b) visible from a public street or other public place. The advertisements displayed inside the cinema house are certainly not visible from a public street. The Corporation of Calcutta claims that the cinema house is a public place and as such, the advertisements are visible from a public place. I am unable to accept this contention. The Act does not define, what is a public place. The words 'public place' though frequently used in statutes have no fixed meaning. They may mean either (a) a place to which the public have a legal right to access or (b) a place to which the public have access and habitually go as a matter of fact, though they have no legal right of access. In my opinion, the words 'public place' in Section 229 mean a place to which the public have a legal right of access. Such a right of access may be restricted or unrestricted. The public may have a right of access only on payment of a fee. But the place is not a public place within the meaning of Section 229 unless it is a place to which the public are entitled to have access as a matter of right. The reasons for this conclusion are as follows:

(a) The Act makes a distinction between pub-lic places and places of public resort. Chap. XXI and Schedule XV of the Act deal with streets and public places. They do not in terms refer to and provide for cinema houses. Chapter XXVI and Schedule XVII deal with inspection and regulation of premises and of factories, trades and places of public resort. Section 443 speaks of 'any theatre, circus, cinema house, dancing hall or other similar places of public resort, recreation or amusement'. Again Section 168(4) (i) speaks of 'a public cinema house or theatre or other similar place of public resort, recreation or amusement'.

The Act, read as a whole, treats a cinema house as a place of public resort but not as a public place. A place may be a place of public resort and vet it may not be a public place. See Case v. Storey (1869) 4 Ex. 319.

(b) The advertisement must be visible from a public street or other public place. The governing idea is public place. The reference to public street is by way of illustration. Section 5(60) shows that public street is a place over which the public have a right of way. Though the ejusdem generis rule is not applicable the illustration shows the sort of thing which the legislature had in mind. See Alexander v. Tredegar Iron and Coal Co. Ltd. (1945) 2 All E.R. 275 at p. 280. The primary idea is that of a place over which the public have some right.

(c) Section 229 is a taxing section. The words 'public place' are ambiguous and are capable of the liberal as also of the restricted meaning. The ambiguity must be resolved in favour of the subject on whom the burden is sought to be laid in the absence of a plain indication that the legislature intended to give the more liberal meaning.

32. The meaning of the words 'public place' must be gathered in each case from the context and subject of the statute and from the object which' the statute intended to achieve. In some statutes the words are defined and in some an ejusdem generis construction may have to be given. In some statutes having regard to the public evil which they were intending to check the words are given a liberal meaning and connote a place where the public go no matter whether they have a right to go or not Such liberal meaning has been given in statutes intended to check indecency, See R. v. Wellard, (1884) 14 Q.B.D-. 63, and gambling, see Langrish v. Archer, (1882) 10 Q.B.D. 44 and Hari Singh v.Jadu Nandan Singh, ILR 31 Cal. 542.

33. I have come to the conclusion that the ease law does not lay down any general rule as to the meaning to be given to the words 'public place'. In my opinion, the words 'public place' in Section 229 mean a place to which the public have a regal right of access. Puma Theatre is a privately owned cinema house. The public are admitted to the cinema shows on payment of charges. But no member of the public has a legal right of access. The management of the cinema house has a right to refuse admission to any member of the public without assigning any reason. The cinema house is not a public place. It is no more a public place than the inside of a grocer's shop or the consulting room of a dentist.

34. I am unable to agree with Sinha J. that Purna Theatre is a public place.

35. Purna Theatre not being a public place, the respondents are not liable to pay the licence fee. The respondents are therefore entitled to the writ of Mandamus issued by Sinha J. On this short ground the appeal must fail.

36. Sinha J. has dealt with the wider question of unconstitutionally of Section 229. He has pronounced Section 229 to be void. I am, therefore, compelled to express my own opinion on that question.

37. It is common case before us that Section 229 imposes a tax. It is not claimed that the Corporation of Calcutta renders any service to the cinema houses in connection with the display of advertisements. The impost levied under, Section 229 is not a fee for services rendered. Though called a licence fee the impost is really a tax.

38. Sinha J. has held that Section 229 infringes Article 14 of the Constitution and is bad for discrimination as it gives to the Corporation and/or the government power to exempt any person or body of persons from payment of the licence fee, I am unable to agree. It is to be noticed that the section does not give to the Corporation any ad hoc power of exemption. The Corporation is empowered to prescribe the exemptions by rules with the approval of the State Government. Section 229 of itself does not deny to any person equality before the law or equal protection of the laws. The legislature has selected certain objectives to which the section will in the first instance apply, has provided for some exemptions as far as it could foresee by Section 233 and then empowered the Corporation to prescribe further exemptions by general rules according to the exigencies calling for such exemption. It is not to be assumed that the Corporation will abuse its power and will discriminate in respect of persons equally circumstanced. If the rules framed under Section 229 discriminate between persons equally circumstanced, such rules may be violative of Article 14. Before us the rules framed by the Corporation under Section 229 have not been challenged on the ground that they are discriminatory. I am unable to hold that the section itself confers upon the Corporation any naked or arbitrary power of discrimination. In my opinion, the section does not infringe Article 14 of the Constitution and cannot be pronounced to be void on that ground.

39. Sinha J. has also held that the legislature laid down no standard by which the exercise of the power of exemption can be guided or controlled and that therefore there has been improper delegation by the legislature of its legislative powers. I am unable to agree. The legislature may formulate the essentials of the legislative policy and leave matters of detail to the executive. The legislature may think that the general rules which it has formulated ought to be modified according to exigencies and being unable itself to provide for all the exigencies may leave to the executive the power of prescribing the exemptions to which the general rules enacted by it ought to be subjected. In State of Bombay v. F. N. Balsara AIR 1951 S.C. 318 the Supreme Court had to consider whether Section 139(c) and other sections of the Bombay Prohibition Act XXV of 1949, contravened Article 14 of the Constitution. Section 139(c) empowered the State Government to exempt by general or special order any person or class of persons or institutions or class of institutions from observance of all or any of the provisions of the Act or any rule, regulation or order made thereunder. Patanjali Sastri J. delivering the unanimous judgment of the Supreme Court observed in AIR 1951 S.C. 318 at 327:

'This Court had to consider quite recently the question as to how far 'delegated legislation' is permissible and a reference to its final conclusion will show that delegation of the character which these sections involved cannot on any view be held to be invalid. (See AIR 1951 SC 332). The legislature while legislating cannot foresee and provide for all future contingencies and Section 52 does no more than enable the duly authorised officer to meet contingencies and deal with various situations as they arise The same consideration will apply to Sections 53 and 139 (c)'

40. I am also of the opinion that Section 229 cannot be held to be invalid on the ground of improper delegation of powers because it has empowered the Corporation to prescribe by rules the manner in which the license fee is to be paid. Such a delegation is only a delegation of the power to frame an administration machinery for the execution of the law and is constitutionally permissible.

41. Sinha J. has also held that the legislature while empowering the Corporation to prescribe the rates of the tax has laid down no standard by which that power can be guided or controlled and that therefore there has been an improper delegation by the legislature of its legislative powers. The question whether the legislature can lawfully delegate the power of fixing the rate of a tax is of fundamental importance and must be examined carefully.

42. It is well settled that the legislature cannot delegate its essential legislative function. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct: 1951 S.C.R. 747: (AIR 1951 SC 332), Raj Narain Singh v. Chairman, Administration Committee, Patna. : [1955]1SCR290 . It is open to the legislature to formulate the policy in broad and general terms and to delegate the rest of the legislative work to a subordinate authority, who may work out the details within the framework of the legislative policy: : 1954CriLJ1322 . Bhatnagar Co. Ltd. v. Union of India, : 1983ECR1607D(SC) .

43. In this case we are concerned with constitutional limits of delegation of legislative power with regard to matters of taxation and in particular taxation by municipal body for local purposes.

44. In the United States of America it is generally recognized that the proper authority to determine what should and what should not constitute a public burden is the legislative department of the. State : 'The power to tax is a sovereign power, legislative in character. Generally all such powers are conferred upon and may be exercised only by the legislative branch of the government, except as otherwise provided by Constitution.' Barrow v. Bradly, 190 Ky. 480 : 227 S.W. 1016 (cited in Coo-ley's Constitutional Limitations, Eighth Edition, Vol. II page 1030, F.N. 1. The principles of Ameri can law are stated thus in Baker's Fundamental Laws, Vol. 1 page 287, quoted 1951 S.C.R., 747, at p. 922: (AIR 1951 SC 332 at p. 381) 'Representative government vests in the persons chosen to exercise the power of voting taxes and enacting laws, the most important and sacred trust known to civil government. The representatives of the people are required to exercise wise discretion and a sound judgment, having due regard for the purposes and the needs of the executive and judicial department, the ability of the taxpayer to respond and the general public welfare. It follows as a self-evident pro-position that a responsible legislative assembly must exercise its own judgment ; that in giving its con-sent to levy tax it must distinctly and affirmatively determine the amount of tax by fixing a definite or certain rate or by fixing the aggregate amount on the taxpayers and that in enacting a law it must so far express itself that the Act when it leaves the legislative department is a complete law'. The levy of a tax or the determination of the amount or rate to be charged is a legislative function; See Corpus Juris, edited by W Mack and W. B. Hale Vol. LXI (1933) Article 673 pp. 551-2. The legislature cannot delegate its powers to fix the tax rate; See Corpus Juris. Vol. XII, (1917), Article 323, pp. 839-840. The legislature may properly pass a conditional legislation declaring the legislative policy and leaving it to a subordinate agency to ascertain and declare the event on which its expressed will is to take effect. In Field v. Clark (1892) 143 U.S. 649; 36 Law 294 the Supreme Court upheld the McKinley Tariff of 1890 winch provided that sugar, molasses, coffee, tea and hides should be admitted free of duty, but if a foreign country producing any of the articles thus favoured should impose upon the products of the United States duties which the President 'may deem to be reciprocally unequal and unreasonable', then the President shall have power to suspend, 'for such time as he shall deem just' the free importation of the favoured articles from that country, and thereupon certain duties, set out in the Act, shall become payable. The legislature may provide a reasonably clear standard for determination of tax rate and thereafter leave the actual determination of the rate to a subordinate instrumentality. Thus in (1928) 276 U.S. 394 the Supreme Court unanimously sustained Section 315 (a) of the Tariff Act of 1922 which provided that when ever the President, upon investigation found that) any duty failed to equalize the cost of production in the principal competing country, he should, by proclamation, alter the duty to equalize such costs; provided, however that such a change should exceed 50 per cent of the rate specified in the Act, it being also provided that to assist in such determinations the Tariff Commission should first investigate and report.

45. In the United States of America the rule against delegation of legislative power is subject to one important exception. (See Willougbby's 'Constitutional Law of the United States'. 2nd Ed. Vol. III. Article 1075. at page 1936. The rule does not forbid the delegation of power of local self-government. (See Willis on 'Constitutional Law of the United States'. 1936 Ed., pages 137-138). T. M. Cooley on his Treatise on the Constitutional Limitations, 1927 Ed., Vol. One, page 389 observes : 'It has already been seen that the legislature cannot delegate its power to make laws; but fundamental as this maxim is, it is so qualified by the customs off our race, and by other maxims which regard local government, that the right of the legislature, in the entire absence of authorization or prohibition, to create towns and other inferior municipal organizations, and to confer upon the the powers of local government, & especially of local taxation and police regulation usual with such corporation would always pass unchallenged.' The power of taxation for municipal purposes may be delegated; See Corpus Juris, edited by W. Mack and W. B. Hale Vol. XII (1917) Article 357 page 862. Local taxation involves two distinct acts of legislation; first, that by the state giving the power to tax; and second, that by local legislative or quasi-legislative authority laying the tax under the power so given (See Corpus Juris Vol. LXI (1933), Article 677, page 554. In the absence of any applicable constitutional, statutory, or chartter limitation, a municipality having power to tax, may levy such rate or amount as it deems best (See Corpus Juris, Vol. XLIV (1928), Article 4292, page 1274). If a legislature can tax a property for state purposes it may confer upon one of its municipal corporations the power to tax the same property for local purposes. Henderson Bridge Co. v. City Henderson, 173 U.S., 592 : 43 Law Ed. 823.

46. So far I have endeavoured to state the opinion of the American Courts and jurists on the question of delegation of legislative power as best as I could. The principle enunciated in the American decisions and text books should, however, be applied in this country with caution. The American rule is largely based upon the doctrine of separation of power but in this country there is not and has never been a rigid separation of power in the form that exists in America. Our Constitution is unique. While we may draw upon the wisdom of Judges and jurists of other, countries we must in the ultimate analysis solve our problems by reference to our Constitution In 1951. S.C.R 747 at p. 1112 : (AIR 1951 SC 332 at p. 437). Bose, J. observed:

'We can, on analysis, find traces in it of the British model, of the American, the Canadian, the Australian and the Japanese. It seems to me therefore that it is useless to try and look at this through the eyes of another country or of their Courts. We have to try and discover from the Constitution itself what the concept of legislative power looked like in the eyes of the Constituent Assembly which conferred it. When that body created an Indian Parliament for the first time and endowed it with life, what did they think they were doing? What concept of legislative power had they in mind?'

Though our Constitution does not embody the doctrine of separation of powers and does not expressly prohibit delegation of legislative power the basic idea underlying the Constitution is that the legislature cannot delegate its essential function which has been entrusted to it by the Constitution.

47. The power of taxation is a high sovereign power. No tax can be levied or collected except by authority of law; Article 265 of the Constitution. The power of taxation therefore, belongs to the legislature, for only the legislature has the power to make laws imposing a tax. This power is so important and fundamental that our Constitution does not regard it as a power incidental to the general power to make laws with regard to a given subject-matter. Particular powers of taxation are enumerated and are then distributed between the Union and the States and the residuary power of taxation is conferred upon the Parliament. The power of taxation is an essential legislative function. The legislature must discharge its function and cannot shift its responsibility elsewhere. Suppose the state legislature were to pass a law in these terms 'be it enacted that the power to impose and collect taxed on advertisements is for the time being delegated to the Governor', the law will be patently unconstitutional and invalid. In passing a law which imposes a tax the legislature must decide essential matters of policy.

48. The question then arises whether the power of fixation of the rate or rates at which the tax is to be charged is such a matter of essential legislative policy that it cannot be delegated by the legislatures of this country.

49. The legislature may formulate its policy with regard to fixation of the rate of tax in very broad and general terms and leave the implementation of the policy to subordinate agencies. Legislation of the type upheld in (1928) 276 U.S., 394 will, no doubt, be constitutional. Instances of legislation in this country providing for flexible rates of tax are furnished by the Indian Tariff Act of 1934 (Act XXXII of 1934) Sections 4, 8 and 9 empowering the government to alter protective duties, to impose additional import duty on bounty-fed articles, and to levy special import duty on sugar; The Sugar Industry (Protection) Act (Act XIII of 1932), Section 4 empowering the government to increase the duty on imported sugar; The Salt (Additional Import Duty) Act (Act XIV of 1939) Section 4 empowering the government to impose additional duty on imported salt.

50. The legislation will certainly be upheld if it lays down an intelligible principle for fixation of the rate which can be implemented by the administrative agency. Our Supreme Court has approved of the decision in (1885) 10 A.C. 282 where the Privy Council decided that the legislature has power to enact Section 133 of the Customs Regulation Act of 1879, which provided that 'whenever any article of merchandise then unknown to the collector is imported, which in the opinion of the collector or the commissioners, is apparently designed to evade duty, but possesses properties in the whole or in part which can be used or were intended to be applied for a similar purpose as such dutiable article, it shall be lawful for the Governor to direct that a duty be levied on such article at a rate to be fixed in proportion to the degree in which such unknown article approximates in its qualities or uses to such dutiable article'. So far our law and legislative practice with regard to delegation of the legislative power in matter of taxation appears to be in accord with the American Law. But it seems to me that our case law and legislative practice have recognised a much larger measure of delegation.

51. Thus in this country the legislature very frequently fixes a ceiling rate and authorises an outside agency to impose a rate not exceeding the ceiling rate. Instances of such legislation are furnished by the Cess Act, 1880 (Bengal Act IX of 1880), Sections 6, 38 and 39; Calcutta Municipal Act, (West; Bengal Act XXXIII of 1951) Sections 167, 208 and 216; the Indian Cess Act IX of 1903, Section 3; the Indian Coffee Cess Act, XIV of 1935, Section 3 and the U.P. Sugarcane Cess Act (U.P. Act XXII of 1956) Section 3, Section 3 of the U.P. Act XXII of 1956 provided that the state government may, by notification in the official gazette, impose a cess not exceeding four annas per maund on the entry of the cane into the premises of a factory for use. consumption or sale therein. In Murli Manohar. v. State of Uttar Pradesh : AIR1957All159 the Allahabad High Court held that the section did not amount to an unconstitutional delegation of legislative power. Mootham, C. J. observed in : AIR1957All159 ,

'The legislature has fixed the maximum rate at which the cess may be levied, the only discretion left to the State Government being to determine the rate. Mr. Pathak argues that the legislature has not laid down any principle or policy by which the State Government is to be guided in fixing the rate. It is true that it has not done this in so many words but I do not feel any difficulty in-holding that the purpose of the Act being the augmentation of the State revenues the legislature intended that the rate should be so fixed as would best serve that purpose.

In my opinion it was intended that the State Government should, in exercising the powers conferred on it, take into account such factors as are relevant for this purpose the most important of which are presumably the needs of the State and the economic condition of the vacuum pan sugar factory. In my opinion Section 3(1) neither permits discrimination nor does it exceed the permitted limits of delegated legislation.'

When the legislature fixes the maximum rate of tax and leaves to the subordinate agency the duty to fix the actual rate of tax, the subordinate agency is not provided with any standard for fixing the actual rate of tax. The agency may fix any rate below the maximum rate. In so fixing the rate the agency really discharges a quasi legislative function.

52. The legislative practice has gone even further and has often left to the executive an unfettered power to fix the rate of tax. The Bengal Excise Act, 1909 (Bengal Act V of 1909), Section 27 empowers the Government to impose an excise duty or a countervailing duty, as the case may be, at such rate or rates as the Government may direct on certain excisable articles. Similar unfettered power seems to have been given to the executive by the Ajmer Excise Regulation (I of 1915) noticed in Cooverji B. Bharucha v. Excise Commissioner, : [1954]1SCR873 . Unfettered power to fix the rate of tax was also conferred uopn the Government by the Matches (Excise Duty) Act, 1934 (Act XVI of 1934) Section 4 (b) by which duty was levied 'on alt other matters at such rate as the Central Government may prescribe' and The Sugar (Excise Duty) Act, 1934 (Act XIV of 1934), Section 3 (2) (iii) by which duty was made payable 'on palmyra sugar, at such rate, if any, as may be fixed in this behalf by the Central Government after such enquiry as it may think fit'. While a legislature cannot by prescription acquire the power which it does not otherwise possess, consistent practice of making laws of a certain type is a sufficiently important matter to bet taken into consideration in deciding whether legislation of that type is unconstitutional.

53. Turning to judicial opinion I find that Ven-katarama J. delivering the unanimous judgment of the Supreme Court in : [1959]1SCR427 has observed:

'Now, the authorities are clear that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like'

54. The law there declared by the SupremeCourt seems to be that the rates at which the taxis to be charged in respect of different classes ofgoods are matters of detail in the working of thetaxation laws and may be left to be determined bythe Executive.

55. In some Statutes the legislature has mentioned the rate of tax in schedules and has then empowered the executive to amend the schedule Instances are furnished by the Calcutta Municipal Act, 1951 (Bengal Act XXXIII of 1951), Section 532 (1) read with Sections 208, 218, 222 and Schedules VI, IV and VII and Bengal Municipal Act, 1932 (Bengal Act XV of 1932), Section 557 (1) read with Sections 123, 168, 182 and Schedules III and IV. It seems that such a power to amend the schedule including the power to amend the tax rate may be constitutionally delegated having regard to the decision in : [1959]1SCR427 .

56. I may add that our case law appears to recognise the validity of delegation of other important features of the laws of taxation. In : [1959]1SCR427 , the Supreme Court pronounced in favour of the constitutional validity of Section 6 (2) of the C. P. and Berar Sales Tax Act (21 of 1947) which empowered the State Government to amend Schedule II of the Act. Item 33 of the Schedule exempted goods sold to or by the State Government. The State Government amended the Schedule by deleting the exemption in respect of the goods sold to the State Government. The Supreme Court held that the power to amend the Schedule was not an unconstitutional delegation of power. This decision plainly establishes that a power to amend a taxing statute by subjecting to taxation matters which are exempted by the Statute is not an essential feature of the law and may be delegated to the executive. In : AIR1953Mad105 , the Madras High Court held that Section 5 (vi) of the Madras General Sales Tax Act empowering the rule making authority to determine at which single point in the series of sales of successive dealers the tax ought to be levied does not constitute an improper delegation of legislative power. That decision was affirmed in Syed Mohammad and Co. v. State of Andhra, : [1954]1SCR1117 and approved by the Supreme Court in : [1959]1SCR427 , and seems to establish that the selection of persons on whom a tax is to be levied is a mere matter of detail and may be delegated to a subordinate agency.

57. I think that in this case it is not necessary to pronounce on the general question of the validity of the delegation of the power of taxation and of the power to fix the rates of tax. I have come to the conclusion that the delegation made by Section 229 of the Calcutta Municipal Act, 1951 to the Corporation of Calcutta of the power to fix the rates of tax for different classes of advertisements is valid. In my opinion such a delegation of power to a municipal corporation is constitutionally permissible.

58. The American exception recognising the validity of delegation of powers of self Government and taxation for local purposes to local bodies was noticed by several Judges in 1951 SCR 747 at pp. 812, 964-5. 1018 and 1029: (AIR 1951 SC 332 at pp. 350, 394-95, 411, 414). Quite apart from the American precedent I think that there are indications in our Constitution showing that powers of local self-government and taxation may be delegated to municipal corporation and other local authorities. It is well recognised that extensive powers of making bye laws and of levying taxation for purposes of local self government may be delegated to municipal bodies. Item 5 of the State List is

'Local Government, that is to say the constitution and power of municipal corporation, improvement trust, district boards, mining settlement authorities: and other local authorities for the purpose of local self government or village administration.'

Under this entry cowers of local self government including powers of taxation may be conferred by the State Legislature on municipal corporation and other local authorities. Sources of revenue through taxation are essential for the existence of a municipal corporation, A municipal body without powers of taxation is incapable of serving any useful purposes Delegation of the power of taxation may well include delegation of the incidental power to fix the rate of taxation. The local authority is the best judge of its needs and of the capacity of the local people to bear the burden of taxation. The State Legislature can of course give only such power of taxation as it itself has and possesses. Article 199(2) as also Article 110(2) of the Constitution provide that a Bill shall not be deemed to be a Money Bill by reason only that

'it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes.'

These articles of the Constitution clearly contemplate that a law may provide for imposition and alteration of tax by a local authority or body for local purposes. The power to impose or alter a tax implies the power to fix and alter the tax rate. Article 277 of the Constitution recognises that taxes and duties authorised by law may be 'levied' by a municipality or other local authority or body for purposes of the municipality, district or other local area. The power to levy a tax includes the power to determine and declare the rate of tax. Though the levy of a tax is a legislative function that function may be delegated to a quasi legislative local body. It should be remembered that the Constitution does not expressly prohibit the delegation by the Legislature of its legislative functions. Bearing that in mind I think that the provisions of the State List Item 5, Article 110(2), Article 199(2) and Article 277 of the Constitution sufficiently indicate that the delegation to a municipality or other local authority of the power to impose and levy a tax enumerated in the State List for purposes of local self government is permitted by the Constitution.

59. The Calcutta Municipal Act 1951 is a post Constitution Act. It is a law with regard to Local Self Government. It provides for the municipal affairs of Calcutta including levy and collection of taxes by the Corporation of Calcutta. Section 229 provides for taxation of advertisements. The section specifies the subject matter of taxation and the persons of whom the tax is to be levied. It empowers the Corporation of Calcutta to prescribe the rate of taxation by rules with the approval of the State Government. Subject to such approval the Corporation may fix such rate as it thinks fit. The object of the section is to increase the resources of the Corporation. The legislature intended that the rate would be so fixed as would best serve that purpose. The Corporation is expected to impose such taxation as may be necessary or expedient for the fulfilment of the several duties imposed on it by the Act. The power of taxation is given for purposes of Local Self Government. Such a delegation is permissible in law. Section 229 is not invalid on the ground that it delegates legislative functions beyond the permissible limits of delegation.

60. I have come to the conclusion that Section 229 of the Calcutta Municipal Act is not invalid on any of the grounds on which Sinha, J. pronounced it to be invalid.

61. I express no opinion on the validity of the Rules framed by the Corporation under Section 229. No argument has been addressed before us on that question.

62. The Appeal must, however, fail for the reasons already given.

63. I therefore, concur in the order made by My Lord.


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