THARA JAYAKUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The above writ petitions challenge the imposition and levy of a "cess" on every wedding and connected celebrations conducted in hotels, having classification of "Three Star" and above and in auditoriums which have a seating capacity, including that of dining halls, above 500. The levy has been purportedly made with the avowed object of raising the required revenue to form a "matrimony fund" for girls, from economically weaker sections. The petitioners, who are the owners of such hotels and auditoriums, challenge the levy as impermissible under Article 246 of the Constitution of India and impugn it further on the grounds of discrimination and arbitrariness. The petitioners also bring to focus the fact of the specific activity being covered under the Finance Act, 1994 and the Kerala Tax on Luxuries Act, 1976 [for brevity "Act of 1976"], which levies tax in the nature of "tax on luxuries".

(2.) Essentially one of the oldest and most sanctified social institutions, often referred to in a lighter vein; as an "essential evil" by nature of the cess, at least for certain persons, is made out to be an "avoidable luxury". I have heard the learned counsel appearing in the various writ petitions as also the learned Special Government Pleader (Taxes). Both have placed decisions before this Court, which would be discussed in the course of the judgment and the minimal facts, which are necessary for the disposal of these writ petitions, are referred to from W.P.(C).No.4555 of 2014.

(3.) The petitioners are all owners of auditoriums/hotels and the individuals who conducted marriages of their wards; obliged to pay the cess brought out by the Kerala Finance Act, 2013. The extract of the Act, with the impugned provisions, is produced as Exhibit P8. The Rules prescribed, much later, are produced at Exhibit P9. The petitioners also raise a contention in so far as the collection and levy of cess being not operative during the interregnum, when there were no rules; for lack of machinery provisions to levy and collect the cess. The main challenge, however, is with respect to the constitutionality of the levy and the same being not within the competence of the State Legislature as also the blatant arbitrariness and the obvious discrimination.