B. SUNKAIAH Vs. TOWN PANCHAYAT KOTTUR AND OTHERS

JUDGEMENT

(1.) THE petitioner is a cinema Exhibitor doing business under the name and style of Renuka Talkies at Kottur in Bellary District. The first respondent viz., the Town Panchayat Kottur, issued a demand notice to the petitioner, by which it demanded payment of a sum of Rs. 2552/ - by way of entertainment tax, levied on the basis of Rs. 2/ -per cinema show with effect from 1 -1 -1961 (In the writ petition the date of this notice has been mentioned as 9 -12 -1960. But in the course of the argument, it transpired that the correct date of this notice is 12 -10 -1962. An application for making an amendment correcting the date has been filed on behalf of the petitioner). The first respondent the Punch had at had, by its resolution of 13 -12 -1960, decided to levy this tax, at the rate of Rs. 2/ - per show, as from 1 -1 -1961. It was in consequence of this resolution followed up by a notice dated 14 -12 -1960, stated to have been published under Sub -rule (4) of Rule 4 of the Mysore Taxes and Fees Rules, 1960 (hereinafter called the Tax and Fees Rules), that the said demand notice was issued to the petitioner. The petitioner preferred an appeal against this demand, under Section 74 of the Mysore Village Panchayats and Local Boards Act, 1959 (hereinafter called the Act). On account of certain reasons the details of which it is not necessary to state, that appeal was dismissed ex parte. The petitioner has now filed this writ petition, in which he attacks (he validity of Section 73(4)(1) read together with Item D in Schedule I of the Act, the validity of the resolution dated 13 -12 -1960, the validity of Rules 40 and 41 of the Taxes and Fees Rules and prays for the quashing of the notice aforesaid, dated 12 -10 -1962, by which the demand has been made for the payment of Rs. 2552/ -. We have heard, at considerable length, the arguments of Mr. Achar who appeared for the petitioner and Mr. Kadidal Manjappa who appeared for first respondent, the Town Panchayat. The learned Government Pleader has appeared for the third respondent, the State of Mysore.

(2.) THE grounds on which the various attacks above referred to have been levelled, may briefly be stated, as follows. The validity of "Section 73(4)(1) read together with Item D in Schedule I of the Act has been questioned on the ground that the levy of Rs. 2/ - per cinema show is a tax on trade or profession within the meaning of Entry 60 of List II of the Seventh Schedule to the Constitution and that the limit of the maximum of Rs. 250/ -under Article 276(2) of the Constitution, has been exceeded. The validity of Rule 40 has been attacked on the ground that the State Government did not have the competence to define the meaning of the word "entertainment" and to include therein cinema shows also. The validity of Rule 41 has been challenged on the ground that it operates to encroach on the discretion of the Panchayat in the matter of determining the rate of taxes, which, according to the learned Advocate for the petitioner, has been exclusively vested in the Panchayat under Subsection (4) of Section 73 of the Act. The legality of the resolution dated 13 -12 -1960 has been questioned on the ground that it authorises the levy of the tax to be effective as from 1 -1 -1961, ignoring the requirements of Sub -rule (4) of Rule 4 of the Taxes and Fees Rules. We now proceed to deal with each of the above contentions.

(3.) THE relevant part of Rule 40, the validity of which has been attacked, is as follows: - -