I959

State of Bihar v.

Charusila Dasi

S. J(. Da' ].

I959

April I5.

624 SUPREME COURT REPORTS [1959] Supp.

The result is that the appeal succeeds and is allowed with costs, the judgment and order of the High Court dated October 5, 1953, are set aside and the petition of Srimati Charusila Dasi must stand dismissed with costs.

Appeal allowed.

THE STATE OF BIHAR & OTHERS

BHABAPRITAN ANDA OJHA (S. R. DAS, c. J., s. K. DAS, P. B. GAJENDRAGADKAR, K. N. WANCHOO and M. HIDAYATULLAH, JJ.)

Hindu Religiou.s Trusts-Constitutional validity of Bihar Hindu Religious Trusts Act-Trust properties situate outside Bihar -Legislative competence-Scheme framed for Trust by Calcutta

High Court-Applicability of Act to si<ch Trust-Bihar Hindn Religious Trusts Act, r950 (Bihar I of r95r), s. 3, 4(5), 28, 29- Code of Civil Procedure, r908 (Act 5 of r908), s. 92-Constitution of India, Arts. r4, r9(r)(j), 25, 26, 27. • In respect of an ancient temple situate in the State of Bihar, disputes arose in 1897 between the high priest and the "pandas" regarding the control of the temple which ultimately led to a suit being filed under s. 539 (now s. 92) of the Code of Civil Procedure, in the Court of the District Judge of Burd wan and a decree was passed by the Additional District Judge, under which a scheme was framed for the proper management of the temple. The decree was confirmed by the Calcutta High Court and the scheme itself was later modified from time to time by the said Higl1 Court.

After the corning into force of the Bihar Hindu Religious Trusts Act, 1950, the President of the Bihar State Board of Religious Trusts, acting under s. 59 of the Act, served a notice on the respondent, who had been appointed Sardar Panda for the temple under the scheme, asking him to furnish a statement in respect of the temple and the properties appertaining thereto.

The respondent made an application under Art. 226 of the Constitution to the High Court of Patna challenging the validity of the action taken against him on the grounds (r) that the Bihar

(2) S.C.R.

SUPREME COURT REPOR'l'S 625

Hindu Religious Trusts Act, 1950, was ultra vires the Bihar Legislature, (2) that the Bihar Legislature did not have legislative competence to deal with the temple in question as some of the properties appertaining to the temple were situate outside Bihar, and (3) that, in any case, the Act did not apply to the temple by reason of the fact t)lat the temple and its properties were administered under a scheme made by the Court of the District Judge of Burdwan and approved by the Calcutta High Court both of which were situate outside the territorial limits of Bihar, as otherwise the Act by some of its provisions would seek to interfere with the jurisdiction of courts which are outside Bihar and thereby get extra-territorial operation.

Held: (1) that the Bihar Hindu Religious Trusts Act, 1950, is intra vires the Bihar State Legislature ;

lvlahant Moti Das v. S. P. Sahi, [1959] Supp. 2 S.C.R. 503 followed.

(2) that it is competent to the Bihar Legislature to legislate in respect of religious trusts situate in Bihar though some of the properties belonging to the trust may be outside Bihar; State of Bihar v. Charusila Dasi, [1959] Supp. 2 S.C.R. 6or followed.

(3) that the provision of law in sub-s. (5) of s. 4 of the Act by which s. 92 of the Code of Civil Procedure shall not apply to any religious trust in the State of Bihar, is valid; and

(4) that as under s. 4(5) of the Act religious trusts in Bihar are taken out of the purview of s. 92 of the Code of Civil Procedure, the jurisdiction of the District Judge of Burdwan or the Calcutta High Court to deal with the temple in question under s. 92 comes to an end; consequently the Act and its several provisions do not suffer from the vice of extra-territoriality and the Act applies to the temple in question and the properties appertaining thereto.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 236 of 1954.

Appeal from the judgment and order dated October 9, 1953, of the Patna High Court in Misc. Judicial Case No. 181 of 1953.

Mahabir Prasad, Advocate-General for the State of Bihar, Bhagwat Prasad and S. P. Varma, for the appellants.

P.R. Das, A .. 0. Roy and R.R. Biswas, for the respondent.

1959. April 15. The Judgment of the Court was delivered by 79

:c959

The State of Bihar & Others

Bhabapritananda

Ojha

I959

The State of Biha1' &· Others

Bhabapritananda

Ojha

S. K. Das j.

626 SUPREME COUH, T REPORTS [1959] Supp.

S. K. DAS, J.-This is an appeal from the judgment and order of the High Court of Patna dated October 9, 1953, in Miscellaneous Judicial Case No. 181 of 1953 of that Court. It relates to a temple commonly known as the Baidyanath temple situate in the town of Deoghar within the limits of Santai Parganas in the State of Bihar.

For the purposes of this appeal it will be necessary to refer to some earlier litigation about this temple.

The history of this temple, it is not disputed, goes back to remote antiquity. According to Hindu tradition referred to in the Siva Purana and Padma Purana, extracts from which, with translations, are given by Dr. Rajendra Lal Mitra in his paper on the Temples of Deoghar (see Journal of the Asiatic Society of Bengal, Part 1, 1883, quoted ju the Bihar District Gazetteer relating to Santai Parganas, 1938 edition, pp. 373-376), the origin of the temple is traced to the Treta Yuga, which was the second age of the world by Hindu mythology. Side by side with Hindu tradition, there is a Santa] tradition of the origin of the temple given by Sir William Hunter (see the Annals of Rural Bengal, p. 191 ; Satistical Account of Bengal, Vol. XIV, p. 323).

But these materials afford no evidence as to when and by whom the idol was established or the temple was built.

The temple sheltering the "lingam " and dedicated to Mahadeva stands in a stone-paved quadrangular courtyard. The courtyard contains eleven other temples, smaller in size and of less importance than that of Baidyanath. Pilgrims visit the temples in large numbers and make offerings of flowers and money in silver or gold ; rich people offer horses, cattle, palanquins, gold ornaments and other valuables and sometimes, rent-free land in support of the daily worship.

There is a high or chief priest (Sardar Panda) who it appears used to pay a fixed rent to the Rajas of Birbhum during the Muhammadan regime, and the administration of the temple was then left entirely in the hands of the high priest. It may be here stated that about 300 families of" pandas", who belong to a branch of Maithil Brahmins, were attached to the

temple and earned their livelihood by assisting pil-

I959 grims in performing the various ceremonies connected The State of with the worship of the God.

When the British rule Bihar & Others began, it was decided to take over the management of "· the temple, and with this object an establishment of Bhabapritananda priests, collectors and watchmen was organised in Ojha 1787 at Government expense. The revenue soon fell off, as the chief priest beset the avenues to the terns. K. Das f. ples with emissaries, who induced the pilgrims to make their offerings before approaching the shrine. (See

the District Gazetteer, ibid, p. 383). In 1791 Gqvernment relinquished its claim to a share of the offerings and entrusted the management of the temple to the head priest on his executing an agreement to keep the temples in repair and to perform all the usual ceremonies.

This agreement was entered into by Ram Dutt (the ancestor of the present respondent), then high priest of the temple and Mr. Keating who was then Collector of the district.

According to Mr. Keating the income of the temple in 1791 consisted of the offerings of the proceeds of 32 villages and 108 bighas of land which he estimated at Rs. 2,000 a year; some years later the total income was estimated at Rs. 25,000 a year. Under the system introduced by the agreement of 1791, the mismanagement of the temple was a source of constant complaint; the temple and " ghat, s " were frequently out of repair and the high priest was charged with alienating villages from the temple and treating his situation as a me(l>nS of enriching himself and his family.

On the death of the high priest in 1820 a dispute over the succession arose between an uncle and a .nephew. The nephew Nityanand was eventually a_ppointed, but neglected to carry out the terms of his appointment. Finally, Nityanand was charged with malversation of the funds and the uncle Sarbanand was appointed in his stead in 1823. There was a faction which was opposed to Sarbanand's retention in office and asked for Government interference in the internal management of the temple. In 1835 Government declined all interference in the matter and the parties were left to have recourse to the established courts of law. Sarbanand

I959 died in 1837 and Iswaranund Ojha, son of Sarbanand Ojba, was subsequently elected Sardar Panda. Iswa- The State of d Biha, .,, Others ranund was succeeded by bis grand-son, Sailajanun

Ojha.

Bhabap, itananda There were, however, frequent disputes between the OJha high priest and the "pandas" regarding the control

S. K. Das]. of the temple and in 1897 a snit was filed under s. 539 (now s. 92) of the Code of Civil Procedure in the Court of the District Judge of Burdwan. This was Suit No. 18 of 1897 w bicb was decided by the learned Additional D, istrict Judge of Burd wan by bis judgment dated July 4, 1901. Sailajanund Ojba was dismissed by the order of the court, as be by bis conduct and behaviour and by causing loss to the Debutter properties rendered himself unfit and disqualified to bold the post of Sardar Panda and trustee of the temple of Baidyanatb. It was further ordered by the learned Additional District Judge in the decree granted by him that some fit person be elected as Sardar Panda by the "pandas" of the temple and that the affairs of the temple be managed under a scheme which

W(IS framed by the learned Additional District Judge and formed a part of the decree.

Under this scheme three persons were to be appointed to look after the temple and its properties and for a proper administration of the same. Orie of these three persons was to be elected from amongst the descendants of Ram Dutt Jba. After this Umesbanund Dutt Jha, second son of Iswaranund Ojba, was elected Sardar Panda. On the death of Umesbanund Dutt Jba, Bbabapritananda Ojba, who was the petitioner in the High Court and is now respondent before us,. was appointed Sardar Panda.

Bbabapritananda is the grand-son of Sailajanund Ojba, and we shall hereinafter refer to him as the respondent.

The scheme which was framed as a result of the decision in Civil Suit No. 18 of 1897 was confirmed by the Calcutta High Court and the decision of the High Court is reported in Shailajananda Dut Jha v. Umeshanunda Dut Jha (1).

This scheme was modified in a subsequent litigation in 1909, when one of the members of the committee applied to the District Judge

(1) (1905) 2 C.L.J. 460.

(2J S.C.R.

SUPREME COUltT REPORTS 629

for a modification of the scheme. The application was first dismissed, but the matter was taken to the Calcutta High Court, and on September 8, 1910, that

Court on the authority of the decision of the Judicial Commit.tee in Prayag Doss v. Tirumala (1) and with the consent of counsel on both sides, directed the insertion of two clauses in the decree; by one of these clauses, liberty was reserved to any person interested to apply to the District Court of Burdwan with refer. cnce to the carrying out of the directions of the scheme and by the other clause, liberty was reserved to any person interested to apply from time to time to the Calcutta High Court for any modification of the scheme that might appear necessary or convenient.

Under these two clauses the members of the committee subsequently applied to the District Judge of Burdwan that certain directions might be given to the high priest ; the high priest opposed the application on the ground that it was in essence an application for modification of the scheme and could be entertained only by the High Court. The learned District Judge overruled this objection. The matter was again taken to the Calcutta High Court and that Court directed (1) that the committee must prepare an annual budget of the income and expenditure; (2) that provision must be rp.ade for quarterly audit and annual inspection of the accounts; (3) that provision should be made for joint control of the temple funds after they have been realised; (4) that there must be no undue interference on the part of the committee with the high priest in the internal management of the temple; and (5) that no one who has any pecuniary interest in the temple properties or is a creditor of the endowment should serve on the committee. The High Court further directed that clauses embodying the aforesaid five directions should be inserted in the scheme. This decision of the High Court is reported in U meshananda Dutta Jha v. Sir Ravaneswar Prasad Singh (2).

vVe now come to more recent events which gave rise to Miscellaneous Judicial Case No. 181 of 1953 in the (I) (t906) I.L.R. 30 Mad. 138.

(2) (1912) I7 C.W.N. 87t.

The State of Bihar &- Others

Bhabapritammda

Ojha

S. K. Das],

The Slate of Bifiar 6- Othe1s

JJh11 b"prila11a11da

Ojha

S. K. Das].

Patna High Court. The Bihar Hindu Religious Trusts Act, 1950 (Bihar I of 1951), hereinafter referred to as the Act, received the President's assent on :Febr.uary 21, 1951, and came into force on August 15, 1951.

This Act established the Bihar State Board of Religious Trusts to discharge the functions assigned to the Board by the Act. Sometime in August 1952 the President of the Bihar State Board of Religious Trusts acting under s. 59 of the Act asked the respondent to - furnish a statement in respect of the Baidyanath temple and the properties appertaining thereto.

The respondent wrote back to say that the administration of the temple and its properties was in the hands of a committee constituted under a scheme made by the District Judge of Burd wan and approved by the Calcutta High Court, and these Courts being outside the jurisdiction of the Bihar Legislature, the Act did not apply to the temple and the respondent was not in a position to carry out the directions of the President of the Bihar State Board of Religious Trusts which might be in conflict with those of the Calcutta High Court. The Board, however, proceeded to assess and demand payment of Rs. 1,684-6-6 as fee payable by the respondent in respect of the Baidyanath temple to it under s. 70 of the Act. The respondent then made an application under Art. 226 of the Constitution to the High Court of Patna, which application gave riso to Miscellaneous Judicial Case No. 181 of 1953. On various grounds stated therein, the respondent contended that the Act was ultra vires the Bihar Legislature; he further contended that even if intra vires, the Act properly construed did not apply to the Baidyanath temple and the properties appertaining thereto by reason of the circumstance that the said temple and its properties were administered under a scheme made by the court of the District Judge of Burd wan and approved by the Calcutta High Court both of which are situate outside the territorial limits of llihar.

The State of Bihar, the Bihar State Board of l{, eligious Trusts and the President thereof, now appellants before us, contested the application. Relying on the

principles (1) that there should be as far as possible no r959 conflict or clash of J'urisdiction between two equally The State of competent authorities and (2) that no intention to Bihar & Others exceed its own jurisdiction can be imputed to the v.

Bihar Legisfature and of two possible constructions of Bhabapritananda the Act, the one that would make it intra vires should Ojha be preferred, the High Court came to the conclusion s. K. Das 1. that the expression 'religious trust " as defined in s. 2 (1) of the Act must be construed not in the plain and grammatical sense but must be cut down so as to exclude such religious trusts as are administered under a scheme made by a court situate outside the territorial limits of Bihar and, therefore, the Act did not apply to the Baidyanath temple and the President of the Bihar State Board of Religious Trusts constituted under the Act had no jurisdiction to take any proceedings against the respondent under the provisions of the Act.

Accordingly, the High Court allowed the application of the respondent, quashed the proceedings taken against him by the 'Bihar State Board of Religious Trusts, and issued a writ prohibiting the said 13oard from taking any further proceedings against the respondent under any of the provisions of the Act.

The State of Bihar, the Bihar State Board of Religious Trusts and its President obtained a certificate under Art. 132 of the Constitution from the High Court and the present appeal has been filed by them in pursuance of that certificate. We shall hereinafter refer to them compendiously as the appellants.

We have had before us a number of appeals in which the validity of the Act has been challenged on several grounds and in some of these appeals, further questions were raised as to the application of the Act to private religious trusts and even to public trusts some properties of which are situate outside the State of Bihar. These appeals we put in four categories.

They have been heard one after another, and though we are delivering judgment in each category separately, it has been made clear that the reasons for the decision on points which are common to all or some of the appeals need not be repeated in each judgment.

In Civil Appeals Nos. 225, 226, 228, 229 and 248 of

•959

The State of Bihar & Others v.

Bhabapritananda

Ojha

S. K. Das].

1955 (1), which fall in the first category, we have considered the questions if the Act is bad on the ground that its several provisions infringe the appellants' fundamental rights guaranteed under Art. 14, Art. 19

(1) (f), and/or Arts. 25, 26 and 27 of the Constitution, or on the ground that it imposes an unauthorised tax.

We have given reasons for our conclusion that the Act is not bad on any of the aforesaid grounds. These reasons we do not wish to repeat here; they govern the present appeal also in so far as the Act is challenged on the self.same grounds. In Civil Appeal No. 343 of 1955 (2), which is in the second category, we have dealt at length with the definition clause of the expression " religious trust" in the context of other provisions of the Act, and have come to the conclusion that the Act does not apply to private trusts. In the appeal under consideration in this judgment the admitted position is that the Baidyanath temple is a public trust; so it was held in the earlier litigation to which we have already referred and the scheme was formulated on that footing in Snit No. 18 of 1897. ln Civil Appeal No. 230 of '1955 ('), which is the third category, we have considered the question if the Act suffers from the vice of extra-territoriality by reason of the provisions in s. 3, which says that the Act shall apply to all religions trusts, whether created before or after the .Qommencement of the Act, any part of thr property of which is situate in the State of Bihar. W L have held therein that two conditions must be fulfilled for the application of the Act-( a) the religions trust or institution itself must be in Bihar and (b) part of its property must be situated in the State of Bihar. Those two conditions are fulfilled in this case; the Baidyanath temple is in Rihar and it is admitted that the properties belonging to the temple lie mainly in Bihar though there are some properties in the districts of Burdwan, Murshidabad and Birbhum in the present State of \Vest Bengal.

Now, we come to the points which have been

(r) Mahant Moti Das v. S. P. Saki, seep. 563, ante.

(2) Mahant Ram Saroop Dasji v. S. P. Saki, seep. 583, ante.

(3) State of Bihar v. Charusila Dasi, see p. 601, ante,

"' .,. ....

' \\ . z959 specially raised in this appeal, which is in the fourth or last category. On behalf of the appellants it has been very strongly contended that the High Court was in 8;;;, S::'~,~~ .. error in relying on the doctrine of comity of jurisdicv. tions anrl cutting down the scope of the Act on such Bhabapritananda a doctrine. It has been submitted that the doctrine, Ojha of comity of jurisdictions has no application to the facts of the present case and there is no possibility of s. K. Das f. any conflict or clash of jurisdiction between two equally competent authorities. It is pointed out that item 28 of the Concurrent List in the Seventh Schedule to the Constitution of India is "Charities and charitable institutions, charitable and religious endowments and religious institutions".· It is argued that the -Bihar Legislature has, therefore, full legislative competence to enact the statute in question, and it has been submitted that if the Act does not suffer from the vice of extra-territoriality' then it is good and all courts must obey it. Under s. 4 (5) of the Act, s. 92 of the Code of Civil Procedure, 1908, has ceased to apply to any religious trust as defined in the Act ; therefore, no action under s. 92, Code of Civil Procedure, can be taken, after the commenC(lment of the Act, in respect' of religious trusts in Bihar which are governed by the Act and there can be no question of any conflict of jurisdiction in respect of such trusts as between the . Bihar State Board of Religious Trusts and a court in Bihar on one side and the courts outside the State of Bihar on the other. On these submissions, learned. counsel for the appellants has argued that the real question for decision is if the Act or any of its provisions suffer from the vice of extra-territoriality and if that question is answered in favour of the appellants, then the High Court was in error in cutting down the scope and ambit of the Act by invoking tho doctrine of comity of jurisdictions. • ·.

At this stage it is convenient to set out in brief the argument which Mr. P. R. Das, learned counsel for the respondent, has advanced in support of the judgment of the High Court. In one part of its judgment, the High Court has referred to the principle that every

- \" '\ ,.

'.\ .

•959 statute should be so interpreted and applied, in so far as its language admits, as not to be inconsistent with

B~";, 5;,."

1 ~, Zrs the comity of nations or with the established rules of

v. - international law, and has referred to certain decisions Bhabap.itananda in support of that principle. Mr. P. R. Das has frankly

Ojha .conceded before us that no question of any inconsist-

S. K. Das J.

ency with: the comity of nations or with the established rules of international law arises in the present case ar.d he does not contend that the Act or any of its provisions violate any established rule ofinternational law. Therefore, it is unnecessary to consider this part of the judgment of the High Court. Before us Mr. P.R.

Das has developed his argument in the following way.

He has first submitted that SuitNo. 18 of 1897 which was instituted in the court of the District Judge of Burd wan in respect of the Baidyanath temple and its properties is still pending and the administratiop of .. the temple and its properties is being carried on by a committee appointed under a scheme made by the District Judge of Burdwan and later approved and 'modified by the Calcutta High Court; therefore, the District Judge of Burdwan and the Calcutta High Court are in full seizin of the trust and its properties, and the Bihar Legislature cannot take away or interfere with the jurisdiction of either the District Judge of Burdwan or the Calcutta High Court. In this connection he has referred to cl. 39 of the Letters Patent of the Patna High Court, particularly to iteni (a) of the first proviso thereto.

That clause is in these terms:-

" And 'Ve do further ordain that the jurisdiction of the High Court of Judicature at Fort 'Villiam in Bengal in any matter in which jurisdiction is by these presents given to the High Court of Judicature at Patna shall cease from the date of the publication of these presents, and that all proceedings pending in tho former Court on that date in reference to any such matter shall be transferred to tho latter Court : Provided, first, that the High Court of Judicature at Fort 'Villiam in Bengal shall continue to exercise jurisdiction- ( a) in all proceedings pending in that Court on

the date of the publication of these presents in which any decree or order, other than an order of an interlocutory nature, has been passed or made by that Court, or in which the validity of any such decree or order is directly in question; and

(b) in all proceedings (not being proceedings referred to in paragraph (a) of this clause) pending in that Court on the dateof the publication of these presents under the 13th, 15th, 22nd, 23rd, 24th, 25th, 26th, 27th, 28th, 29th, 32nd, 33rd, 34th or 35th clause of the Letters Patent bearing date at Westminster the Twenty-eighth day of December, in the year of Our Lord One thousand eight hundred and sixty-five, relating to that Court; and ( c) in all proceedings instituted in that Court, on or after the date of the publication of these presents, with reference to any decree -0r order passed or made by that Court:

Provided, secondly, that, if any question arises as to whether any case is covered by the first proviso to this clause, the matter shall be referred to the Chief Justice of the High Court of Judicature at Fort William in Bengal and his decision shall be final".

His argument is that the scheme made by the District Judge of Burdwan and later approved by the Calcutta High Court can be modified only by the Ualcutta High Court and that High Court continues to exercise jurisdiction in respect of the scheme under item (a) of the first proviso to clause 39 referred to above, and cl. 41 of the Letters Patent does not empower the Bihar Legislature to amend any of the clauses of the Letters Patent. He has also submitted that on February 9, 1917, the Calcutta High Court decided that any application for enforcement of the scheme would lie to the District Judge of Burdwan and not to the Deputy Commissioner of Dumka. It may be stated here that Burd wan is in the State of West Bengal and Dumka in the State of Bihar. Mr. P. R. Das has contended that in so far as the provisions of the Act interfere with the jurisdiction of courts outside Bihar, they have extra-territorial operation and must be held to be bad

I959

The State of Bihar 0- Others

Bhabapritananda

Ojha

S. K. Das ].

The State of Bihar & Others

Bkabapritananda Ojha

S. K. Das],

on that ground; because under Art. 245 of the Con. titution, the Bihar Legislature may make laws for the whole or any part of the State of Bihar, but it cannot make any law which will have extra-territorial operation. He has drawn our attention to the provisions of ss. 3, 4 (5) and 28 of the Act, and ha; s laid particular emphasis on the provisions of s. 29 of the Act, which provisions, according to him, have extra-territorial operation.

Having set out in some detail the arguments which have been advanced before us on behalf of the appellants and the respondent, we proceed now to consider them on merits. We agree with learned counsel for the parties that no question arises in this case of any conflict or inconsistency with the doctrine of comity of nations or with any established rule of international law. The question which really arises for decision is if any of the provisions of the Act have extra-territorial operation. This question has two aspects. First, there is s. 3 which says inter alia that the Act shall apply to all religious trusts, any part of the property of which is situated in the State of Bihar. The argument is that the Bihar Legislature has no power to legislate about trust property which is outside the territorial limits of Bihar and s. 3 of the Act in so far as it seeks to operate on trust property outside Bihar makes the Act bad on the ground of extra-territorial operation.

This part of the argument has been fully dealt with and rejected in the decision relating to the Charusila Trust, Ci vii Appeal No. 230 of 1955 (1 ).

The second facet of the argument is what Mr. P. R. Das has specially emphasised before us in this appeal. His argument in substance is that the Act by some of its provisions seeks to interfere with the jurisdiction of courts which are outside Bihar, and this in effect is the vice of extra-territorial operation from which, according to him, the Act suffers.

We are unable to agree with him in this contention.

Section 3 we have already referred to. Sub-section (5) of s. 4 states inter alia thats. 92 of the Code of Civil Procedure, 1908, shall not apply to any religious trust

(1) State of Bihar v. Charusila Dasi1 seep. 601, ante.

in the State of Bihar as defined in the Act.

We have considered the effect of this sub-section in the decision relating to the Charusila Trust (ibid) and have held that the Act applies when the trust itself, temple or deity or math, is situate in Bihar and also some of its property is in Bihar. We have pointed out therein that the trust being situated in Bihar, that State has legislative power over it and over its trustees and their servants or agents who must be in Bihar to administer the trust ; therefore, there is really no question of the Act having extra-territorial operation. In our opinion, this reasoning is equally valid in respect of the argument of Mr. P. R. Das. If, as we have held, it is open to the Bi.har Legislature to legislate in respect of relgious trusts situate in Bihar, then that Legislature can make a law which says, as in sub-s. (5) of s. '1:0£ the Act, that s. 92 of the Code of Civil Procedure shall not apply to any religious trust in the State of Bihar. If sub-s. (5) of s. 4 of the Act is valid as we hold it is, then no question really arises of interfering with the jurisdiction of the District Judge of Burd wan or of the Calcutta High Court in respect of the Baidyanath temple, inasmuch as those courts exercised that jurisdiction under s. 92, Code of Civil Procedure, which no longer applies to the Baidyanath temple and the properties appertaining thereto, after the commencement of the Act. It is true that the Act does put an end to the jurisdiction under s. 92, Code of Civil Procedure, of all courts with regard to religious trusts situate in Bihar, but that it does by taking these trusts out of the purview of s. 92.

In other words, the Act does not take away the jurisdiction of any court outside Bihar but takes the religious trusts in Bihar out of the operation of s. 92 so that a court outside Bihar in exercise of its jurisdiction under s. 92 will decline to deal with a religious trust situate in Bihar just as it will decllne to entertain a suit under that section regarding a private trust of religious or charitable nature. Civil Procedure, in6luding all matters included in the Code of Civil Procedure at the commencement of the Constitution, is item 13 of the Concurrent List. It has not been disputed before us that it is open to the Bihar

I959

The State of Bihar & Others v.

Bhabapritananda

Ojha

S. K. Das].

The State of l:Jihut- &.. Oth1:,-rs

v. 1Jhabap1itananda

Ojha

S. ](. Das ].

Legislature to amend the Code of Civil Procedure while legislating in respect of religious endowments and religious institutions in Bihar, and the President's assent having been received to the Act, the law made by the Bihar Legislature shall prevail in that State, under Art. 254(2) of the Constitution, fo respect of all religious trusts situate in Bihar. In this view of the matter, it is unnecessary to consider the further questions if Suit No. 18 of 1897 is still pending, the proper scope aud effect of cl. 39 of the Letters Patent of the Patna High Court, and which authority can amend the Letters Patent. Even if Suit No. 18 of 1897 is deemed to be still pending, though we do not so decide, any further action under the scheme in respect of the Baidyanath temple and its properties can be taken either by the District Judge of Burdwan or the Calcutta High Court only if the jurisdiction under s. 92, Civil Procedure Code, is still preserved in respect of it. If that juridiction has come to an end in respect of the Baidyanath temple and its properties, then no question of any conflict of jurisdiction between two equally competent authorities arises at all, apart altogether from the more debatable question as to whether the Bihar Legislature on one side and the courts in Bengal on the other can be said at all to be equally competent authorities in respect of a religious trust situate in Bihar. The question really boils down to this. Is the Act bad on the ground of extra-territorial operation, because it takes certain religious trusts situate in Bihar out of the purview of s. 92, Code of Civil Procedure ? If the answer to this question is in the negative, then all the hurdles created by the argument of Mr. P.R. Das must disappear; because if the Act is good, it must be binding on all courts and no question of any conflict of jurisdiction can arise.

Learned 9ounsel for the respondent has made a pointed reference to ss. 28 and 29 of the Act. Section 28 deals with the general powers and duties of the Board. We have examined these powers and duties in our decision in connected Civil Appeals Nos. 225, 226, 228, 229 and 248 of 1955 {1)- and have held that

(I) Mahant Moti Das v, S.P. Sahi, seep. 563, ante.

there is nothing in these powers and duties which can be said to have extra-territorial operation. Our attention has been drawn to cl. (j) of s. 28 (2) which empowers the Board to sanction on the application of a trustee or any other person interested in the religious trust the conversion of any property of such trust into another property, if the Board is satisfied that such conversion is beneficial for the said trust We have pointed out that these powers and duties are really for the fulfilment of the trust and they do not in any way contravene the rights of the trustees. Section 29 states:- . "29(1). Where the supervision of a religious trust is vested in any committee or association appointed by the founder or by a competent Court or authority, such committee or association shall continue to function under the general superintendence and control of the Board, unless superseded by the Board under subsection (2).

(2) The Board may supersede any committee or association referred to in sub-section (1) which in the opinion of the Board, is not discharging its functions satisfa.r; itorily and, if the Board does so, any decree or order of a Court or authority by which such committee or association was constituted shall be deemed to have been modified accordingly: Provided that before making any order under this sub-section, the Board shall communicate to the committee or association concerned the grounds on which they propose to supersede it, fix a reasonable period for the committee-or association to show cause against the proposal and consider its explanations and objections, if any. (3) Such committee or association or any other person interested in the religious trust may, within thirty days of any order of the Board under sub-section (2), make an application to the District Judge for varying, modifying or setting aside such order, but, subject to the decision of the District tTudge on any such application, the order of the Board shall be final and binding upon the applicant and every person interested in such trust.

The St•te of Bihar & Others

Bhabapritananda

Ojha

S. K. Das].

I959

The State of Bihar & Others

Bhabapritananda

Ojha

S. R. Das ].

(4) Where such committee or association has been superseded under sub-section (2), the Board may make such arrangements as may be necessary for the administration of the religious trust concerned." It has been argued that s. 29 in terms gives the Bihar State Board of Religious Trusts power to interfere with a committee appointed by the founder or by a competent court or authority. The argument is that the Bihar State Board of Religious Trusts can now interfere with the committee appointed under the scheme made by the District Judge of Burdwan and approved by the Calcutta High Court, and can even. supersede it. The answer to this argument is the same as that given before. Either the Act is bad on the ground of extra. territorial operation or it is not. If the Act is bad on the ground of extra-territorial operation, then there is good reason for cutting down the scope and ambit of s. 29 of the Act so that it will apply only to committees appointed by a competent court or authority in Bihar. If, however, in respect of a religious trust in Bihar, the Bihar Legislature can amend the Civil Procedure Code and take the trust out of the purview of s. 92, Civil Procedure Code, then there is no good reason why the ambit of s. 29 should be cut down in the manner suggested by the High Court.

It rs true that the legislation of a State is primarily territorial and the general rule is that extra territorium jus dicenti impune non paretur.

There is, however, no departure from that general rule when the trust itself is in Bihar and in legislating about that trust, the legislature lays down what should be done to fulfil the objects of the trust and for that purpose puts an end to an old jurisdiction in the sense explained above and creates a new one in its place. The doctrine of territorial nexus which arises in this connection has been commented on before us at great length by learned counsel for the respondent. That doctrine and the decisions bearing on it we have considered at some length in our decision relating to the Charusila Trust, Civil Appeal No. 230 of 1955.

We do not wish to repeat what we have said therein.

The conclusion at which we have arrived is that the Act and its several provisions do not suffer from the vice of extra-territoriality in the sense .suggested by learned counsel for the respondent and there is no such conflict of jurisdiction as learned counsel for the respondent has suggested. Accordingly, the Act is good and applies to the Baidyanath temple and the properties appertaining thereto.

The result, therefore, is that the appeal succeeds and is allowed with costs. The judgment and order of the High Court dated October 9, 1953, are set aside and the petition under Art. 226 of the Constitution made by the respondent must stand dismissed with costs.

Appeal allowed.

MESSRS. R. C. MITTER & SONS

THE COMMISSIONER OF INCOME-TAX,

WEST BENGAL, CALCUTTA

(B. P. SINHA, J. L. KAPUR and

M. HIDAYATULL~H, JJ.)

Income-tax-Registration of firm-Procedure-" Constituted under an instrument of partnership", Meaning of-Indian Incometax Act, r922 (XI of r922), s. 26A, Rules 2 to 6B.

The question for determination in these two appeals was whether the appellant firms were entitled to registration under s. 26A of the Indian Income-tax Act and the common point of law involved was the interpretation of the WOjds "constituted under an instrument of partnership " occurring in that section.

In Appeal No. 85 the assessee firm was said to have been constituted by a verbal agreement in April, 1948, and the deed of partnership was drawn up in September, 1949. The application for registration under s. 26A of the Act for the assessment year 1949-1950 was made thereafter to the Income-tax Officer. In Appeal No. 389 the assessee firm was verbally constituted in

I959

The State of Bihar &· Others

Bhabapritananda

Ojha

S. K. Das].

April r5.

THE STATE OF BIHAR & OTHERS

BHABAPRITAN ANDA OJHA (S. R. DAS

P. B. GAJENDRAGADKAR

K. N. WANCHOO

M. HIDAYATULLAH, JJ.

Trust-Bihar Hindn Religious Trusts Act

s. 3, 4(5), 28, 29

Code of Civil Procedure

s. 92

Constitution of India

s. 539

s. 92

the Code of Civil Procedure

s. 59

Art. 226

S 625

Hindu Religious Trusts Act, 1950

Bihar Hindu Religious Trusts Act, 1950

s. 4

s. 92

the Code of Civil Procedure

s. 4(5)

s. 92

the Code of Civil Procedure

s. 92

s. 539

s. 92

the Code of Civil Procedure

Bihar Hindu Religious Trusts Act, 1950

s. 59

s. 70

Art. 226

s. 2

Art. 132

Art. 14

Art. 19

Arts. 25, 26 and 27

s. 3

Seventh Schedule

Constitution of India

s. 4

s. 92

Code of Civil Procedure, 1908

s. 92

Code of Civil Procedure

cl. 39

clause 39

cl. 41

Art. 245

ss. 3, 4

s. 29

s. 3

s. 3

Section 3

s. 4

Code of Civil Procedure, 1908

s. 92

the Code of Civil Procedure

s. 4

s. 92

Code of Civil Procedure

s. 92

Code of Civil Procedure

s. 92

s. 92

s. 92

the Code of Civil Procedure

the Code of Civil Procedure

Art. 254(2)

cl. 39

s. 92

Civil Procedure Code

s. 92

Code of Civil Procedure

ss. 28 and 29

Section 28

s. 28

Section 29

s. 29

s. 29

s. 92

Civil Procedure Code

s. 29

Art. 226

Meaning of-Indian Incometax Act

s. 26A

s. 26A

Income-tax Act

s. 26A


(2) S.C.R. SUPREME COURT REPORTS 63

on it.

The effect of this order will be that the appelz959 lant shall be deemed to be in possession of a valid perd f r ll Deep Chand mit and he shall have to be displace a ter 10 owing v. the usual procedure prescribed by the U. P. Road The State of uttar Transport Services (Development) Act." Pradesh & Others Pursuant to their order, it appears that the Regional Transport Authority renewed his permit on October 11, Subba Rao J. 1956 with effect from November 1, 1953 to October 31,

1956. In the circumstances, as the petitioner was not a permit-holder when the Government made the order, no relief can be given to him in this appeal. This order will not preclude the appellant in Civil Appeal No. 429 of 1958, if he has any righl, to take appropriate proceedings against the State Government.

In the result, all the appeals are dismissed with one set of costs to the State ofUttar Pradesh.

Appeals dism:ssed.

THE WESTERN INDIA THEATRES LTD. v.

THE CANTONMENT BOARD, POON A,

CANTONMENT

(S. R. DAS, c. J., s. K. DAS, P. B. GAJENDRAGADKAR, K. N. 'vVANCHOO and M. HIDAYATULLAH, JJ.)

Entertainment Tax-Imposition on cinema show--Validity- Cantonments Act, I924 (Act II of I924), s. 60-Bombay Municipal Boroughs Act, I925 (Bom. XV III of I925), s. 73-Government of India Act, I9J5, s. IOO, Sch. VII, Entry 50.

The appellant, a public limited company, was the lessee of wo cinema houses, " West End" and" Capitol" situated within the Poona cantonment area. By a notification dated June 17, 1948, the Bombay Government with the sanction of the Governor-General-in-Council imposed certain taxes in the cantonment of Poona including an entertainment tax of Rs. IO per show on the appellant's cinema houses and Rs. 5 per show on others.

The appellant, who paid the tax under protest, brought the suit, out of which the present appeal arose, for a declaration that the

I959

January r6.

imposition of the said tax by the respondent was illegal, for a . permanent injunction restraining it from levying the tax and for The W.stem lndrn the refund of Rs. 45,802, paid as tax by the appellant. The

Theafru Ltd. trial Court decreed the snit but the High Court, on appeal by v. the respondent, reversed the decision of the trial Court and The Cantonment dismissed the snit. Under s. 60(1) of the Cantonments Act, 1924

Boa, d, Poona, (II of 1924), read with s. 73 (xiv) of the Bombay Municipal Cantonment Boroughs Act, 1925 (Born. XVIII of 1925), the res]'Ondent had the power to impose any other tax which the Bombay Provincial Legislature could impose on the province. The question, therefore, was whether the Bombay Legislature had the power to _ impose the tax in question. It was contended on behalf of the appellant that although the Provincial Legislature had undoubtedly.the power under s. 100 of the Government of India Act, 1935, read with Entry 50 in Sch. VII thereto, to make law with respect to "taxes dn luxuries, including taxes on entertainments, amusements, betting and gambling", the said entry contemplated a law imposing taxes on persons who enjoyed the lnxnries, entertainments or amusements and not on persons who provided them. Such a tax, if levied on the la tier would be one on profession, trade or calling as contemplated by Entry 46 of the said Schedule and could not exceed Rs. roo per annum under s. 142A of the Government of India Act, 1935, and Rs. 250 per annum under Art. 276(2) of the Constitution.

Held, that the contention must be negatived.

It is well-settled that in construing an entry conferring legislative powers, the widest posible construction according to their ordinary meaning must be given to the words used.

There could be no reason, therefore, in construing Entry 50, to differentiate between the giver and the receiver of the luxuries, entertainments or amusements and both must be held to be amenable to the tax.

Navinchandra Mafatlal v. The Commissioner of Income-tax, Bombay City, [1955] 1 S.C.R. 829, referred to.

Although an entertainment tax was regarded as a tax on expenditure, there was no warrant for holding that Entry 50 contemplated only a tax on moneys spent on luxuries, entertainments or amusements.

VVhat it had in view were these matters, and not either the giver or the receiver of them, as the real objects of legislation.

The impugned tax was distinguishable from a tax on a profession or calling.

It was a tax imposed on an actual show, and not-on a profession or calling whether there was an exercise of it or, not.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 145 of 1955.

Appeal from the judgment and decree dated the February 10, 1953, of the Bombay High Court in

Appeal No. 742 of 1951 from Original Decree, ansmg z959 out of the judgment and decree dated July 31, 1951, Th w 1 1 d' of the Court of the Senior Civil Judge, Poona, in Special 'nu:t::;~ 1; ia Suit No. 89 of 1950. v.

H. D. Banaji, R. A. Gagrat and for the appellant.

G. Gopala7crishnan, The Cantonment

Boad. Poona,

H. N. Sanyal, Additional Solicitor-General of India,.

H. J. _Umrigar and R.H. Dhebar, for the respondent.

1959. January 16.

The Judgment of the Court was delivered by

DAS, C. J.-This is an appeal from tlre judgment and decree of the High Court of Bombay dated February 10, 1953, setting aside the judgment and decree of the Court of Civil Judge, Senior Division, Poona dated July 31, 1951, in Special Suit No. 89of1950 and dismissing the appellant's suit against the rc3pondent with costs throughout. This appeal has been filed under a certificate of fitness granted by the High Court of Bombay. - The facts leading up to this appeal may shortly be stated. The appellant is a public limitedeompany regiiltered under the Indian Companies Act, ll913. It is a lessee of two cinema Houses known respectively as "West End" and "Capitol" situated wi1'ohin the limits of Poona cantonment area. It exl!ibits in the said two Houses cinematograph films, both foreign and Indian.

On March 20, 1947, a notice was issued by the respondent whereby, in exercise of the powers conferred on it by s. 60 of the Cantonments Act, 1 !)24 (II of 1924), the respondent proposed to make, with the previous sanction of the Central Government, certain amendments in the notification of the Government of Bombay in the General Department No. 4ll60 dated June 17, 1918, and intimated that the draft; amendments would be considered by the respondent on or after April 21, 1947, and invited objection in writing within 30 days from the publication of that notice.

One of the items of amendments was as follows :-

"(ii) 'V-Tax on Entertainments'

Cantonment

Das C. ].

The Western India Theatres Ltd. v.

The Cantonment Board, Poona, Cantonment

Das C. J.

I. Cinemas, Talkies or dramas

2. Circus

3. Horse Races

4. Amusement park provided as follows :-

Rs. 5-0-0 \ per Rs. 10-0-0 show Rs. 2-0-0 per show Rs. 100-0-0 per day of race meetings.

Rs. 20-0-0 per day.

1. The said tax shall be levied at the rate of Rs. 10-0-0 per show in the case of the West End and Capitol Talkies and at the rate of Rs. 5-0-0 per show in other cases " . • It appears that the Cinematograph Exhibitors A'ssociation of India submitted certain objections to the proposals. The Cantonment Executive Officer, Poona, by his letter dated July 8, 1947, informed the Secretary of the Cinematograph Exhibitors Association of India that the latter's letter had been submitted to the Government of India in original along with the respondent's proposals and that the imposition of the entertainments tax on cinemas had been approved by the Governmen17 of India, Defence Department notification No. 1463 dated May 7, 1947. On June 17, 1948, a notification was issued qy the Government of Bombay to the effect that in supersession of the notifications of Goernment noted on the margin ; i, nd of all other notifications on the same subject, the Governorin Council, with the previous sanction of the Governor General-in-Council was pleased to impose certain taxes in the Cantonment of Poona with effect from July 15,

1948. One of the taxes thus imposed was as follows:-

" V Tax on entertainments.

1. Cinemas, Talkies or dramas Rs. 10.0.0

:in the case of the West End per show and Capitol In other cases

2. Circus

3. Horse Races

4. Amusement park

Rs. 5-0-0 per show Rs. 2-0-0 per show Rs. 100-0-0 per day of race meetings.

Rs. 20.0-0 per

day".

The appellant paid the tax under protest and on or r959 about April 19, 1950, filed a suit (being suit No. 89 of Th w-t- 1 a

1950) against the respondent in the Court of the Civil he;;,:; nLt; •a Judge, Senior Division, Poona for a declaration that v. the levy, collection Or recovery of the said tax by the The Cantonment respondent was illegal and invalid, for a permanent Board, Poona, injunction restraining the respondent from levying, Cantonm•nt collecting or recovering the said tax, for refund of the D c as . ]. sum of Rs. 45,802-0-0 being the total amount of tax collected from the appellant, for costs and interest on judgment. By its judgment dated July 31, 1951, the trial court decreed the suit in full. The respondent preferred an appeal before the High Court against the said judgment and decree of the trial court and the High Court by its judgment and decree dated February 10, 1953, allowed the appeal and dismissed the appellant's suit with costs throughout. The High Court, however, granted to the appellant a certificate of fitness for appeal to this Court and hence this fim, l appeal questioning the validity of the said tax.

At all times material to this appeal the. reE; pondent was governed by the Cantonments Act, 1921l (Act II of 1924).

Section 60 of that Act runs as follows:- " 60(1) The Board may, with the previous sanction of the local Government, impose in any Cantonment any tax; which, under any enactment for the time being in force, may be imposed in any municipality in the province wherein the Cantonment is situated.

(2) Any tax imposed under this section shall take effect from the date of its notification in the official gazette".

The enactment under which shortly after the date of passing of the Cantonments Act, 1924, tax could be imposed by the municipal boroughs in the province of Bombay was the Bombay Municipal Boroughs Act, 1925 (Born. XVIII of 1925). Therefore the powers of the respondent to levy and collect taxes under the provisions of the Cantonments Act were co-extensive with the powers of the Borough Municipalities under the Bombay Municipal Boroughs Act, 1925. Section 73 of the last mentioned Act specified the taxes which

'959 might be imposed by a municipality. The relevant - . portions thereof, prior to its present adaptation, were The Western India .c Theatres Ltd. as .ioJ}OWS :- v. " Subject to any general or special orders which The Cantonme•; t the Provincial Government may make in this behalf Board, Poona, and to the provisions of sections 75 and 76, a munici- Cantonment pality may impose for the purposes of this Act any of

Das C. ]. the following taxes, namely:- . ..... ................................ ' .......................... .

(xiv) any other tax (not being a toll on motor vehicles and trailers, save as provided by section 14 of the Bombay Motor Vehicles Tax Act, 1935) which under the Government of India Act, 1935, the provincial Legislature has power to impose in the province." The question is whether the provincial legislature of Bombay had power to impose the tax which is under consideration in this appeal.

Under s. 100 of the Government of India Act, 1935 read with entry 50 in Sch. VII thereto the provincial legislature had power to make law with respect to

"taxes on luxuries, including taxes on entertainments, amusements, betting and gambling". Learned counsel for the appellant contends that the impugned tax is not covered by this entry at all. This entry, according to him, contemplates a law imposing taxes on persons who receive or enjoy the luxuries or the entertainments or the amusements and, therefore, no law made with respect to matters covered by this entry can impose a tax on persons who provide the luxuries, entertainments or amusements, for the last mentioned persons themselves receive or enjoy no luxury or entertainment or amusement, but simply carry on their profession, trade or calling.

Learned counsel urges that the impugned law is really one with respect to matters specified in ent.ry 46, namely, taxes on professions, trades, callings and employments and, therefore, cannot exceed Rs. 100 per annum under s. 142A of the Government of India Act, 1935 and- Rs. 250 per annum under Art. 276(2) of the Constitution.

VVe are unable to accept this argument as sound.

(2) S.C.R.

SUPREME COURT REPORT8 69

As pointed out by this Court in Navinchandra r959

M.afalal v. Te Commi.ssioner. of Incm_e Ta'.I.:, Bombay The Western India City ( ), followmg certam earlier dec1s10ns referred to Theatres Ltd. therein, the entries in the legislative list should not be v. read in a narrow or restricted sense and that each The Cantonment general word should be held to extend to all ancillary Board, Poona, or subsidiary matters which can fairly and reasonably Cantonment be said to be comprehended in it. It has been accept- 1 Das C .• ed as well settled that in construing such an entry conferring legislative powers the widest possible construction according to their ordinary meaning must be put upon the words used therein. In view of this well established rule of interpretation, there can be no reason to construe the words " taxes on h1xuries or entertainments or amusements" in entry 50 as hav- - ing a restricted meaning so as to confine the operation of the law to be made thereunder only to taxes on persons receiving the luxuries, entertainments, or amusements. The entry contemplates luxuries, entertainments, and amusements as objects on which the tax is to be imposed. If the words are to be E:O regarded, as we think they must, there can be no reason to differentiate between the giver and the receiver of the luxuries, entertainments, or amusements and both may, with equal propriety, be made amenable to the tax. It is true that economists regard an entertain ment tax as a tax on expenditure and, indeed, when the tt; Lx is imposed on the receiver of the entertainment, it does become a tax on expenditure, but there is no warrant for holding that entry 50 contemplates only a tax on moneys spent on luxuries, entertainments or amusements. The entry, as we ha.ve said, contemplates a law with respect to these matters regarded as objects and a law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or the receiver of that entertainment.

Nor is the impugned tax a tax imposed for t.he privilege of carrying on any trade or calling. It is a tax imposed on every show, that is to say, on every instance of the exercise of the particular trade, calling or employment. If there is no show, there is no tax. A

(r) [1955] r S.C.R. 829.

r959 lawyer has to pay a tax or fee to take out a license - irrespective of whether or not he actually practises.

The Western India Th · t ,. th "] f h th ht Tl t Ltd at tax is a ax ior e pnv1 ege o avmg e ng "a ~' · to exercise the profession if and when the person tak- The Cantonment ing out the license chooses to do so. The impugned

Board, Poona, tax is a tax on the act of entertainment resulting in a Cantonment show. In our opinion, therefore, s. 73 is a law with

Das C.j. respect to matters enumerated in entry 50 and not entry 46 and the Bombay legislature had ample power .to enact this Ia w.

The only other point urged before us is that the notification is violative of the equal protection clause of our Constitution in that it has picked out the appellant's cinema houses for discriminatory treat- • ment by imposing on it a tax at the rate of Rs. 10 per show, while a tax of only Rs. 5 per show is imposed on other cinema houses. The mearning, scope, and effect of the provisions of Art. 14 of our Constitution have been fully dealt with, analysed and laid down by this Court in Budhan Choudhury v. The State of Bihar (1) and Shri Rama Krishna Dalmia v. Shri Justice S. R. Tendollcar ('). It appears, however, from the record that no issue was raised and no evidence was adduced by the appellant before the trial court showing that there were other cinema Houses similarly situate as that of the appellant's cinema Houses. It may not be unreasonable or improper if a higher tax is imposed on the shows given by a cinema h.ouse which contains large seating accommodation and is situate in fashionable or busy localities where the number of visitors is more numerous and in more affluent circumstaµces than the tax that may be imposed on shows given in a smaller cinema house containing less accommodation and situate in some localities where the visitors are less numerous or financially in less affluent circumstances, for the two cannot, in those circumstances, be said to be similarly situate. There was, however, no material on which the trial court could or we may now come to a decision as to whether there had been any real diserimination in the facts and circumstances of this case. It

(1) [1951] S.C.R. 1045.

(2) [1959] S.C.R. 279.

may be that the appellant may in some future procex959 eding adduce evidence to establish that there are other Th w t 1 a cinema houses similarly situate and that the .imposieThe;;,;; t;, '" tion of a higher tax on the appellant is discriminatory v. as to which we say nothing; but all we need say is The Cantonment that in this suit the appellant bas not discharged the Board, Poona, onus that was on him and, on the material on record, Cantonment it is impossible for us to hold in this case that there 1 Das C .• has been any discrimination in fact.

For reasons stated abve this appeal must be dismissed with costs.

Appeal dismissed

THE WESTERN INDIA THEATRES LTD. v.

MUNICIPAL CORPORATION OF THE CITY OF

POONA {S. R. DAS, c. J., s. K. DAS, P. B. GAJENDRAGADKAR.

K. N. WANCHOO and M. HIDAYATULLAH, JJ.)

Municipality, Power of-Imposition of tax on cinema show- Constitutional validity of enactment-Enhancement of such tax- Validity-Bombay District Municipal Act, I90I (Bom. III of

IgoI), s. 59(I) (XI)-Bombay Municipal Boroughs Act, I925 (Bom. XVIII of Ig25), s. 60.

The appellant, a public limited company, was a lessee of four cinema houses situated within the municipal limits of Poona City where it used to exhibit cinematograph films.

The respondent, the Municipal Corporation of Poona, in exercise of its power under s. 59(1) (XI) of the Bombay District Municipal Act,

1901, levied with effect from October l, 1920, a tax of Rs. 2 per day as license fee on the-owners and lessees of cinema houses.

That Act governed the Municipality till 1926 and thereafter it was governed bythe Bombay Municipal Boroughs Act, 1925. The tax was enhanced to Re. l per show on June 3, 1941, and to Rs. 5 per show on June 9, 1948. By the suit, out of which the present appeal arose, the appellant sought for a declaration that the levy of the said tax, the rules framed in connection therewith and the enhancement of the tax as aforesaid were iIIegal and ultra vires.

The trial court decreed the suit in part but the High Court in appeal reversed the decision of the trial court

I959

January z6.

THE WESTERN INDIA THEATRES LTD

S. R. DAS

P. B. GAJENDRAGADKAR

M. HIDAYATULLAH, JJ.

s. 60

Bombay Municipal Boroughs Act

s. 73

Government of India Act

s. 60(1)

Cantonments Act, 1924

s. 73

s. 100

Government of India Act, 1935

s. 142A

Government of India Act, 1935

Art. 276(2)

[1955] 1 S.C.R. 829

Companies Act

s. 60

Cantonments Act

Cantonments Act, 1921

Section 60

Cantonments Act

Section 73

sections 75 and 76

section 14

Bombay Motor Vehicles Tax Act, 1935

Government of India Act, 1935

s. 100

Government of India Act, 1935

s. 142A

Government of India Act, 1935

Art. 276(2)

s. 73

Art. 14

s. 59(I)

Bombay Municipal Boroughs Act

s. 60

s. 59(1)

Bombay District Municipal Act

Bombay Municipal Boroughs Act, 1925