R GOPINATHAN NAIR Vs. PALODE PANCHAYAT

JUDGEMENT

(1.) These Original Petitions were heard together as the main question for decision in both is the same.

(2.) O. P. No. 60 is by the Proprietor of the Theatre Central, Palode, Nedumangad Taluk. The Respondents are the Palode Panchayat, Shri. P. K. Abdulla the Director of Panchayats, the Stationary First Class Magistrate, Nedumangad, and the State of Travancore - Cochin. On 7-6-1955 the 1st Respondent issued a notice Ext. A to the petitioner calling upon him to pay a sum of Rs. 2,842-1-9 as entertainment tax for the period between 27-7-1954 and 3-6-1955. As the petitioner did not comply with the same the 1st Respondent launched criminal prosecution against him in C. C. Nos. 51 to 87 of 1955 of the First Class Magistrates Court, Attingal. The demand notice Ext. A and the prosecutions are sought to be quashed. The main grounds relied on by the petitioner are that the demand is illegal and that the levy and collection of entertainment tax by the Respondent are ultra vires since bye laws had not been framed in this behalf by the 1st Respondent as required by S.12 of the Travancore - Cochin Local Authorities Entertainment Tax Act (VI of 1951). The 2nd Respondent, the Director of Panchayats, had issued a notification dated 19-7-1954 fixing the rate of entertainment tax and the validity of this notification is also questioned by the petitioner. Refund of a sum of Rs. 260-12-6 collected as entertainment tax from the petitioner is also sought. The prayers in the petition are for the issue of a writ of certiorari or other appropriate writ to quash the demand notice Ext. A and the criminal prosecutions and for the issue of directions or orders for the refund of the tax collected. On behalf of the 1st Respondent the Palode Panchayat, a counter affidavit has been filed by the President contending that the petition should be dismissed on the ground of laches as the notification was issued on 19-7-1954 and the petition was filed only on 18-10-1955. It is further contended that the rate of tax originally fixed was 12 1/2 per cent, that it was reduced to 10 per cent on the petitioners application, that the petitioner had accepted the same and that he was therefore incompetent to question it by these proceedings. The objections raised by the petitioner against the imposition and levy of entertainment tax by the Panchayat are also denied.

(3.) After the filing of this original petition the State Legislature passed the Travancore - Cochin Entertainment Tax (Validation of Levy and Collection) Act XXVI of 1955) and this was published in the Government Gazette on 13th December 1955. This Act was passed to validate the levy and collection of entertainment tax by various local bodies before framing bye laws as required by S.12 of Act VI of 1955. Some of the assessees had taken up the matter to the High Court and it was held that such levy and collection were illegal in the absence of bye laws passed in respect of the same. Act XXVI of 1955 was passed to get over this difficulty. In view of this Act which was passed after the institution of these proceedings, the petitioner raised an additional ground in his reply affidavit that the Act was illegal and ultra vires. The State was impleaded as the additional 4th Respondent after this point was taken by the petitioner.