MEDAPA, C.J.
(1) THE petitioners in these two petitions are professional exhibitors of cinema shows one in Super Talkies, Bangalore city, and the other in New Opera Talkies and New Imperial talkies in Civil Station, Bangalore A Show Tax of Es. 10 per each show has been levied on each of them under Section 3 of the mysore Cinematograph Shows Tax Act, 1951 (Mysore Act No. XVI of 1951). This tax is in addition to the entertainment tax leviable under the Mysore Amusements Tax Act, 1932 (Mysore act No. VIII of 1932). The petitioners contend that the mysore Cinematograph Shows Tax Act (Mysore Act No. XVI of of 3951) is ultra vires of the powers of the State Legislature and pray for the issue of a writ of prohibition or other appropriate writ against the respondents prohibiting them from collecting the tax under the Mysore Cinematograph Shows Tax Act and for a direction to declare the said Act ultra vires of the powers of the local Legislature. The grounds on which Act XVI of 1951 is impugned are
" (1) that the tax leviable under the said Act is in reality a tax on income regarding which the State Legislature has no power to impose a tax ; (2) that the petitioners have been subjected to double taxation one under the Act of 1932 (The Mysore Amusements tax Act) and the other under the present Act (The Mysore cinematograph Shows Tax Act) and is therefore against the constitution; (3) that the tax in question does not fall under entry 62 of list II of the Seventh Schedule to the Constitution, viz. , "taxes on luxuries, including taxes on entertainments, amusements, betting and gambling", regarding which the State Legislature has power to impose a tax but clearly falls under entry 60 of List II of the Seventh Schedule, viz. , " Taxes on professions, trades, callings and employments " which is governed by Article 276 of the Constitution ; and (4) that the Government has absolute powerb under section 5 of the Act to exempt any Cinematograph show or shows from payment of the tax and is therefore hit by Article 14 of the constitution. "
(2) THE contention that the tax in question is a tax on income may first be considered. The argument of the learned counsel for the petitioners is that the tax leviable under this Act cannot be and was not intended to be passed on to the person seeking and receiving entertainment but is meant to be taken out of the pocket of the petitioners and that therefore it is really a tax on income. Ho pointed out that the imposition of a tax on income is governed by the provisions of Articles 246 and 270 read with List I in the seventh Schedule to the Constitution and that the State legislatures have no power to impose a tax on income. It is urged that the State Government, in the guise of a levy under the Show Tax, is seeking to entirely eliminate the income of the petitioner and that in consequence the express intention of the constitution to earmark the taxes on income to the Union government is defeated. The learned Advocate-General for the respondents submits that the contention of the petitioners that show Tax is a tax on income in disguise, is untenable. He relied on the very submission of the learned counsel for the petitioners that the tax may have to bo and has in fact been paid even-though the petitioner has earned no income or profit but has actually suffered a loss, in support of his submission that the tax in question is not and cannot be deemed to be a tax on income.
(3) HIS argument is that a tax on a person, whether that person makes a profit or loss, can never be deemed to be a tax on income. There is good deal of force in this contention. The decision in mathurai v. State of Madras, A. I. R. 1954 Mad. 569, [LQ/MadHC/1953/273] though not quite appropriate, has in it observations which lend full support to this view. In that case a tax on "passengers and goods carried by roaf. " which under the provisions of the Act had to come out of the pocket of the proprietors of buses and could not be passed on to the passengers was held to be not a tax on the income of the proprietors. The tax uader the Mysore Cinematograph Shows tax Act (Mysore Act No. XVI of 1951) cannot be held to be a tax on income and is therefore not hit by the provisions of articles 246 and 270 read with List I in the Seventh Schedule to the Constitution.
(4) THE second contention of the learned Counsel for the petitioners is that the petitioners have been subjected to double taxation and that therefore the Act is ultra vires of the Constitution. Our attention was drawn to certain passages in Findlay shirras, book "science of Public Finance" 1936 Edition, regarding the principles that should govern taxation, but we are not concerned with the principles that should guide or govern the legislatures in their taxation policy but with the interpretation of the powers of the Legislatures according to the Constitution. The learned counsel has not referred us to any Article of the constitution, nor am I aware of any provision in the Constitution, which prevents or prohibits double taxation. This point arose for consideration in Cantonment Board, Poona v. W. I.
(5) THEATRES, A. I R. 1954 Bom. 261 [LQ/BomHC/1953/15] wherein it was held
"there is nothing in the Constitution which prevents double taxation being levied. Instances are not wanting in this country in which taxes are levied twice upon the same thing, once for the benefit of the State Government and in the second instance for the benefit of the Local Self-Government bodies, for example, The District Local Board or the Municipality. "
The contention is therefore negatived.
(6) THE real point for consideration in these cases is whether the tax leviable under the Mysore Cinematograph Sbows tax act (Mysore Act No. XVI of 1951) is a tax on entertainment falling under entry 62 of List II of the Seventh Schedule to the Constitution, as contended by the learned Advocate-General, or is a tax which falls legitimately and properly under entry 60 of List II of the Seventh Schedule to the Constitution. The contention of the learned Advocate-General is that it is a tax on entertainment and is therefore within entry 62 of the Seventh schedule and that as such the State Legislature was competent to pass the enactment in question. It has been pointed out earlier that the tax has to be paid by the proprietors and it will be an unwarranted strain on the meaning of the word " entertainment " to say that the proprietor, who pays a tax even when he incurs loss, gets entertainment from the loss incurred by him as a result of the show or , from the show. The show of the pictures certainly affords entertainment to the persons who obtain entrance to the theatre and see the pictures but the petitioners exhibit pictures to earn money and not to obtain entertainment. It certainly cannot be said that the losses they incur by exhibiting the pictures afford them any entertainment. The Mysore amusements Tax Act of 1932 is clearly and admittedly a tax on entertainment and if the intention of the Legislature was to increase the tax leviable on cinema entertainment, the natural course would have been to enhance the rate by an amendment to that Act to enable a higher tax being imposed and collected.
(7) THIS has not been done. The preamble to the present Act specifically sets out that the tax contemplated therein is a tax in addition to the entertainment tax. It therefore follows that the tax leviable under the Act is not a tax on entertainment.
(8) THIS apart, the Act of 1932 has specific provisions in it to enable the proprietors of theatres to pass on the tax to the entertainees whereas the tax levied under the present Act cannot be passed on to the enfcertainees. This position will become clear from a perusal of the letter (No. Cin. 5/ent/53-4, dated 28th January 1954) from the District Superintendent of Police, Bangalore north, to the Management of Geetha Talkies, Bangalore which reads:
"sub: Forwardal of monthly and quarterly statement of E. T. and Box office collections. Please intimate this office whether the show tax you have deducted in the quarterly collecr. ion statement for the Q. E. 31-12-1953 should be included for the net collection exclusive of E. T. There is no need to furnish the payment of show tax in the box office collection statements as it is not chargeable on the tickets sold. "
"in future, please furnish the gross, E. T. and net collections only. "
(9) THE tax levied under the Mysore Cinematograph Shows tax act (Mysore Act XVI of 1951) was not therefore intended to be passed on to the entertainees. It will be impossible even otherwise to pass on the tax to the entertainees. This position will be obvious from an examination of the table showing the rates at which the shows are to be taxed as set out in Section 3 of the present Act which reads :
Cinematograph shows liable for tax
Rate of tax per show
For places with a
seating capacity
not exceeding 500
For places with a
seating capacity
exceeding 500 but
not exceeding 800
For places with a
seating capacity
exceeding 800
Rs.
Rs.
Rs.
(a) Shows other than those held with cinematograph apparatus and plant taken from place to place
(i) held in the cities of Bangalore,
Mysore and Davangere
and in Kolar Gold Fields Sanitary Board . . .
5
7
10
(ii) held in the towns of Kolar, Tumkur, Chitaldrug, Shimoga, Chikmagalur Haasan and Mandya
3
5
7
(iii) held in any other area in the State
2
3
4
(6) Shows held with Cinematograph apparatus and plant taken from place to place
. . .
. . .
Rs. 2 per show
(10) IT is clear from the table extracted above that the extent and the amount of tax payable is dependent on the population of the town in which a theatre is situate and on the number of seats in the theatre and not on the number of persons who buy tickets to receive entertainment. It cannot be disputed that no one will be in a position to know before-hand how many persons will seek entrance to the theatre for any particular show and in the absence of that data, it will be impossible to distribute or pass on the tax payable on a particular show to the entertainees. The learned Advocate-General submitted that it is not impossible for the proprietor to pass on this tax to the entertainees by increasing the rate of admission to the theatre on a calculation of the average number of persons that seek entertainment in the theatre and by that means to reimburse himself to the extent of the tax he is required to pay under the act. I am not impressed with this argument. The average number of persons who may seek entertainment in a particular theatre is bound to vary in each area of the town in which the theatre is situate and in each month of the year and on each day of the month, while the amount of tax to be paid on each show in a theatre remains constant. It will therefore be impossible to pass on the tax to the entertainees. This apart, such an attempt to pass on the tax is clearly against the instructions of the authorities contained in the letter referred to earlier.
(11) THE petitioners exhibit pictures to earn money in order to make a living. They have, in their affidavit filed along with their petitions, sworn that they are professional exhibitors of cinematograph shows. This has not been denied or canvassed by the respondents in their affidavits. It must therefore be taken that the petitioners follow the profession of exhibiting pictures to earn a living. Exhibition of pictures must therefore be deemed to be a profession or trade. There can, in any case, be no doubt that it is a calling. Article 276 of the Constitution reads:
" (1) Notwithstanding anything in Art. 246, no law of the Legislature of a State relating to taxes for the benefit of the State or of a Municipality, district board, local board or other local authority therein in respect of professions, trades, callings or employments shall be invalid on the ground that it relates to a tax on income. (2) The total amount payable in respect of any one person to the State or to any one Municipality, district board, local board or other local authority in the State by way of taxes on professions, trades, callings and employments shall not exceed two hundred and fifty rupees per annum. "
(12) THIS Article in express terms prohibits the State Legislature from imposing a tax of more than Rs. 250 per annum on s any person who pursues a profession, trade or calling.
(13) THE decision in Sri Krishna v. Ujjain Municipality, A. I. R. . 1953 M. B. 145 is apposite to and is on all fours with, the present case. Their lordships in that case held that those who exhibit pictures in a cinema hall, like the petitioners in the present case, follow a profession, trade or calling. They accordingly held that a tax beyond the limit of Rs. 250 per annum, as prescribed by Art. 276 of the Constitution, cannot be levied on them. It was urged on behalf of the respondents that the said decision was based on the concession of the Advocate-General that Art. 276 of the constitution applied to the facts of that case and as such was not of much use as a guide. A perusal of the decision however shows that the Judges who decided that case did examine the position regarding the applicability of Art. 276 to the facts of that case and set out their reasons for coming to the conclusion that the said Article is applicable. The fact that the Advocate-General in that case conceded the correctness of the position regarding the applicability of Art. 276 cannot at all justify the contention that the value of the decision is thereby minimised. The decisions in District Council, Bhandara v. Kisorilal, A. I. R. 1949 Nag. 190 and Karanja Municipality v. New East India Press Co,, A. I. R. 1949 Nag. 215 lend support to the view taken by their Lordships in Sri Krishna v. Ujjain Municipality (1) referred to above. The learned advocate-General invited our attention to Mathurai v. State of Madias, A. I. R. 1954 Mad. 569, [LQ/MadHC/1953/273] Cantonment Board, Poonav. W. I. Theatres, A. I. R. 1964 Bom. 261 to support his contention that the tax in question is within the competence of the local Legislature. A perusal of those decisions leaves the impression that the attention of the Judges who decided those two cases was not and could not have been sufficiently or specifically drawn to the question whether a tax of the kind before us is hit by Art. 276 of the Constitution. The said decisions cannot, therefore, be of much use for the disposal of these cases. The Act in question under these circumstances in so far as it seeks to impose a tax above the limit of Es. 250 per annum prescribed by Art. 276 is, in my opinion, ultra vires and beyond the power of the local Legislature.
(14) THE next contention of the petitioner is that Section 5 of Act xvi of 1951 gives the executive authorities arbitrary and absolute powers of granting exemptions from liability to pay the tax leviable under Section 3 of the Act in respect of any show or class of shows and the Act is therefore unconstitutional as it offends the provisions of Art. 14 of the Constitution.
(15) SECTION 5 of the Act reads : " The Government may, by general or special order, exempt any cinematograph show or class of Cinematograph shows from payment of the Cinematograph tax. "
(16) THERE can be no doubt that the powers which the Section confers on the Government in the matter of the grant of exemptions are arbitrary. The Act admittedly does not set out any classification of the shows for the purpose of granting exemptions, nor is there any indication in it to show how or in what circumstances the exemption has to or can be granted.
(17) THE Legislature has entirely abdicated its powers and effaced itself completely in the matter relating to the grant of exemptions. The contention of the learned Advocate-General that the government will not act arbitrarily and his submission that the Government may frame rules or have framed rules for the grant of exemptions is no answer to the objection raised by the learned counsel for the petitioners that the Act itself gives unlimited and absolute power to the Government to grant exemptions. The contention that inasmuch as the Legislature itself has thought it fit to give absolute powers to the executive can in no way minimise or weaken the argument of the learned counsel for the petitioners that the Act in question offends article 14 of the Constitution. The decision in State of West bengal v. Anwar Ali Sarkar, A. I. R. 1952 S. C. R. 284 supports this position. In that case, Section 5 (1) of the West Bengal Special Courts Act (Act X of 1950), which provided that "a special court shall try such offences or classes of offences or cases or classes of cases as the State Government may by general or special order direct" was impugned as unconstitutional and void on the ground that it contravened Article 14 of the Constitution.
(18) THE case was heard by a Bench of 7 Judges and the majority opinion was that Section 5 (1) of the above Act contravened article 14 of the Constitution and was void, because the Act did not classify or lay down any basis for classification of the cases which may be directed to be tried by the Special Court but left it to the uncontrolled discretion of the State Government to direct any case which it liked to be tried by the Special court. The following observation in an American case, Fulf colorado Etc. Co. , v. Ellis, 165 U. S. 150, which has jbeen extracted by mukerjee, J, in his judgment at page 329 is to the point:
"it must appear not only that a classification has been made but also tha-t it is baaed upon some reasonable ground some difference which bears a just and proper relation to the attempted classification. "
(19) THE learned Advocate-General contended that only Section 5, if at all, of the Cinematograph Shows Tax Act may be said to be invalid and not the entire Act (particularly the charging section Section 3-of the Act.) Article 13 (2) of the Constitution was sought to be pressed into service to support this contention. Art. 13 (2) reads :
"the State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void. "
(20) THE expression " to the extent of" refers to what is known as the doctrine of severability which says that when some particular provision of a statute offends the constitutional limitation and that provision is severable from the rest of the statute, it is only the offending provision that is void and not the entire statute. The question is when it can be said that an invalid provision is severable from the rest of the impugned statute. Justice Sulaiman has observed in Shyama kant v. Rambhajan, A. I. R. 1939 F. O. 74 (83) at page 83.
" A law which is ultra vires in part only may thereby become ultra vires in whole if the object of the Act cannot at all be attained by excluding the bad part. If the offending provisions are so interwoven into the scheme of the Act that they are not severable, then the whole act is invalid ".
(21) IT will be seen that in the present case Section 5 which provides for exemption is as important as the charging section (Section 3). It will be relevant and useful in this context to refer to the provisions of the earlier Act of 1932. There also there was an exemption section (Section 8) which enabled the grant of exemption when the whole takings were to be devoted to philanthropic, religious or charitable purposes without any charge on the takings for the expenses of the entertainments or when the entertainments are of a wholly educational character, etc. There can be no doubt that the object of the Cinematograph Shows Tax Act also was not to levy taxes on all cinematograph shows under Section 3 but exemptions similar to those found in Section 8 of the Mysore amusements Tax Act should be made. The object of the Act cannot therefore be attuned by excluding or ignoring Section 5.
(22) THE charging and exemption sections have to be read together as they are interwoven into the scheme of the Act and are not severable. It therefore follows that the whole Act is invalid. The learned counsel for the petitioners finally contended that the Mysore Cinematograph Shows Tax Act did not enable but on the other hand prevented the passing on of the tax leviable under the act to the entertainees and as such infringed the fundamental and substantive right of the petitioners to property resulting in the practical destruction of their rights. He pointed out that whatever be the number of persons who attended the shows and irrespective of the question whether any person attended the show or not the petitioners had to pay the sum of Es. 10,900 per annum and that the petitioners' substantive right to property guaranteed to them utider the Constitution has thereby been infringed. He urged that the impugned Act seriously affects the exercise of the petitioners' right to property and is therefore repugnant to Article 19 of the Constitution and on that ground also the Act is illegal and unconstitutional. The decision in Mathurai v. State of madras, A. I. R 1964 Mad. 569 referred to in the earlier portion of this judgement sseems to support this contention. Their Lordships in the course of their judgment in that case after observing.
"the argument, if we understand it aright, is that the tax unreasonably restricts the exercise oi this right, and as the first step in the argument, authorities were cited in support of the proposil ion that even a taxing statute is subject to the provisions of Part III of the Constitution and will be covered by Art. 13 which declares that the State shall not make any law which takes away or abridges the rights conferred by that Part and any law made in contravention of this Article shall to the extent of the contravention be void. "
(23) PROCEEDED further to state :
"similar decisions of the American Supreme Court were discussed by this Court in Rajah of Bobbili v. State of Madras, A. I. R. 1952 Mad 203, [LQ/MadHC/1951/260] decisions in which it had been laid down that the Court had the power to enquire whether any legislative provision was so unjust and unreasonable as to work a practical destruction to rights of propeity. " and finally summed up thus:" Now the petitioners in these cases will undoubtedly be hit by the first proviso to Section 3. They will be bound to pay the tax, but they will not be entitled to paas on the tax to the passengers or consignors because the proviso expressly says that the fare inclusive of the tax leviable under Section 3 shall not exceed the maximum fare prescribed by the Government and in force at the commencement of the Act. In our opinion the proviso does injuriously affect the exercise of the petitioners' right to carry on their business It diminishes their income without any justification. So long as they have been charging the maximum fire prescribed by the Government, they are well within their rights. Now, act XVI of 1952 imposes a burden which they have to discharge. The effect of the proviso is that they have got to discharge this from their own pocket. "
(24) THEIR Lordships ultimately came to the conclusion that the said proviso offended Article 19 as also Article 14 of the constitution. These observations apply equally to the facts of the present case. The petitioners in their affidavit in support of their petition for a stay have sworn that the tax under the Cinematograph Shows Tax Act of 1952, has hit their business very hard and that as a result they have been incurring heavy losses. They submitted that as a result they may have to, ere long, close their business completely. The impugned Act is thus open to the further objection that it infringes Article 19 of the Constitution and is therefore unconstitutional. The petitioners are, in my opinion, under the circumstances entitled to the issue of a Writ. VASUDEVAMURTHY J.
(25) THESE two writ petitions relate to the same matter and may be disposed of by a common order. In W. P. 88 of 1954, the Petitioner who has described himself as the Proprietor, Super Talkies, bangalore City and in W. P. 91 of 1954, the Petitioner who has described himself as the Proprietor, New Opera and New imperial, Civil Station, Bangalore, have made applications to restrain the Respondents in those cases, viz. , The State of mysore and the Commissioner of Show-Tax (Inspector-General of Police in Mysore) or any other officers from collecting the tax which is levied under the provisions of the Mysore Cinematograph Shows Tax Act, 1951 from them.
(26) IN the affidavits accompanying their applications the petitioners have sworn that they hold three shows each day in their cinema theatres, that the State Legislature has no power to levy a show tax exceeding the limit of Es. 250 under Art. 276 (2) of the Constitution of India and that the levy is also opposed to Art. 14 of the Constitution.
(27) FOR examining the various grounds on which the Petitioners challenge the levy of the tax we might refer to the concerned acts. By Act VIII of 1932, the Mysore Legislature imposed a tax on entertainments and other amusements. The entertainments are described as including exhibitions, performances, amusements, games or sports to which persons are admitted for payment. By Sec. 3 it is provided that from the 1st day of April 19-33, a tax called the Entertainments tax, at a rate not exceeding 25 percent on all payments for admission to entertainment, should be charged, levied and paid to the Government under Sec. 3 cl. (1). That sub-rule formerly carried a proviso that the tax was not leviable where the payment for admission was less than four annas, but this proviso was repealed by Act. No. 48 of 1949.
(28) UNDER Sec. 4 admissions to such taxable entertainments can only be with a ticket stamped with au impressed, embossed, engraved or adhesive stamp issued by the Government of the required value, or if Government approved, through a barrier which automatically registers the number of persons admitted. If any person is admitted for payment contrary to the provisions of Sec. 4, the proprietor of the entertainment is liable on conviction to a fine not exceeding Rs. 500 and in addition liable to pay any tax which should have been paid. The tax is to be charged in respect of each person admitted for payment and, in the case of admission by stamped ticket, is to be paid by means of the stamp on the ticket and in the case of admission otherwise than by stamped ticket, has to be calculated and paid on the number of admissions. In the case of admissions otherwise than by stamped tickets, the entertainment tax shall be recoverable from the proprietor. There were some exemptions provided under Sec. 8 (1) of the Act. A set of rules have also been framed in exercise of the powers conferred by Sec. 12 (1) and 13 of the Act, and chapter III describes how the payment of the entertainment tax is to be collected by the proprietor on each ticket by stamping them before they are issued. This Act is still in force and is not being objected to before us.
(29) IN 1951, after the Constitution of India, the Mysore State legislature passed au Act known as the Mysore Cinematograph shows Tax Act of 1951 which received the assent of His highness the Maharaja the Rajpramukh on the 30th day of April 1951. That Act purports to provide for the levy of an additional tax on the cinema shows in the State of Mysore and its validity is being challenged before us. That latter Act which may be referrred to as the Show Tax Act applies only to cinematograph shows and describes such a show as meaning any cinematograph exhibition held in any place to which persons are admitted on payment and the 'proprietor' in relation to any cinematograph entertainment as including any person responsible for the management thereof. By Sec. 3 it provides that there shall be charged, levied and paid to the Government, a tax on cinematograph shows hereinafter referred to as the cinematograph tax, calculated at the following rates :
Cinematograph shows liable for tax
Rate of tax per show
For places with a
seating capacity
not exceeding 500
For places with a
seating capacity
exceeding 500 but
not exceeding 800
For places with a
seating capacity
exceeding 800
1
2
3
4
Rs.
Rs.
Rs.
(a) Shows other than those held with cinematograph apparatus and plant taken from place to place (i) held in the cities of Bangalore,
Mysore and Da vanagere
and in Kolar Gold Fields Sanitary Board Area ;
5
7
10
(ii) held in the Towns of Kolar Tumkur, Chitaldrug, Shimoga, Chikmagalur, Hassan and Mandya . .
3
6
7
(iii) held in any other area in the State
2
3
4
(4) Shows held with cinematograph apparatus and plant taken from place to place
. . .
. . .
Rs. 2 per show
(30) SEC. 4 provides a penalty for non-payment of tax to be levied against the proprietor of the show who fradulently evades payment of the tax. Sec. 5 provides that the Government may, by general or special order, exempt any cinematograph show or class of cinematograph shows from payment of the cinematograph tax.
(31) SEC. 7 confers on Government power to make rules for the purpose of carrying out the provisions of the Act and to provide for certain specified matters Sec. 9 provides that the provisions of the Act are to be in addition to and not in derogation of any other Act for the time being in force, relating to the levy of any tax on entertainments and amusements.
(32) I have set out in some details these various provisions as it has been argued on a comparison of these two Acts that the scheme and the incidence of the imposed tax are different, that under the first Act VIII of 1932, the tax is to be collected from persons who attend the shows as spectators ; that it is merely to be so collected and paid over to Government by the proprietor of the cinema, while the latter Act has directly levied the tax on the proprietor and made no provision in the Act for the same being collected from the persons admitted.
(33) IT is contended by Mr. Seshadri, learned Counsel for the petitioner in W. P. No. 88 of 1954 that the levy of show tax on the proprietor of the cinema shows is in reality a tax on profession, trade, callings and employments falling under Item 60 of list II, State List, and not Item 62 of that List which permits the State to levy taxes on luxuries including taxes on entertainments, amusements, betting and gambling ; that subsequent to the coming into force of the Constitution the power of the Legislature of any State to levy a tax on professions, trades, callings and employments has been cut down and restricted ; and that under art. 276 (2) the total amount payable in respect of any one person to the State or to any one municipality, district board, local board or other local authority in the State by way of taxes on professions, trades, callings and employments shall not exceed two hundred and fifty rupees per annum, with a proviso that if before the commencement of the Constitution there was already in force in any State any such tax exceeding that sum, it may continue feo be levied until provision to the contrary was made by parliament by Jaw either generally or in relation to any specified state or States. It is argued that Art. 246 (1) read with List I, union List, Seventh Schedule, Item 82, the Parliament has exclusive power to make laws in respect of taxes on income other than agricultural income, that under Art. 276 (1) and (2) the legislature of a State can tax professions, trades, callings or employments upto a limit of two hundred and fifty rupees though it might be in the nature of a tax on income and there was no power in the State Legislature to levy any larger tax on professions, etc. The learned Advocate-General who appears for the state has urged that the show tax relates to and in substance is in the nature of a tax on amusement and the matter of its ultimate incidence, that is on whom and from whom it is collected is unimportant. He has referred to some other taxes which could be levied under List II which, he represents, have ultimately to come from the pocket or income of the person who is asked to pay them and argued that it could not be said that they are all hit by Art. 246 (2). He has also argued that based on the question of incidence alone it has not been decided in any of the reported eases that such a tax is not an amusemer t tax or a tax on such other items but a tax on a trade, profession or calling. The dictionary meaning of 'calling' has been given as a vocation, profession, trade, usual occupation or employment a collective name for persons following any profession. The question whether the activity carried on regularly by the proprietors of cinemas who exhibit films which they rent out from others to spectators who pay for seeing them at shows, is a calling, trade or profession and whether the show tax in this case is a tax on such a calling which would bo hit by Art. 276 (2) of the Constitution, arose directly for consideration in an exactly similar case in Sri krishna v. Ujjain Municipality, A. I. R. 1953 M. B. 145. In that case, there was already in force in the Gwalior State prior to its integration with madhya Bharat an entertainment tax similar to ours. Subsequently after the Constitution came into force a performance tax at the rate of Rs. 5 per show was imposed on cinema shows. Kaul c. J. and Mehta J. held that though Art. 276 lays down that a tax imposed by a State for the purpose of a Municipality on a calling shall not be invalid on the ground that it relate to a tax on income, every legislation relating to such a tax cannot ignore the provisions of Cl. (2) of the said article. They observed that there must be something either in the language of such legislation or in the circumstances or manner of the imposition of the tax which makes it clear that the liability of one person to pay taxes on professions, trade and callings to anyone Municipality shall not exceed the sum of rupees two hundred and fifty per annum. They therefore hold that the notification by which performance tax was imposed was invalid. In that case, it was conceded by the learned Advocate-General who appeared for the Ujjain Municipality that the imposition of the said performance tax was open to this challenge. It was urged that the learned Judges have not acted merely on that admissioa but have discussed the question, though only somewhat briefly and given their reasons for coming to their conclusion. They have not however considered the point now urged before us that the tax is really a show tax on amusement falling under Item 60. It is assumed in that case that it falls under Item 62, i. e. , tax on trade, professions or calling. The matter of ultimate incidence of tax and why or how it should affect a decision of this question has not been discussed or even referred to in that case. Tney merely considered whether the tax was in the nature of a tax on income or a tax on, trade, profession or calling and held that the tax was a tax on a profession or calling and that it could only be subject to a maximum limit of Rs. 250 on any person under Art. 276 (2).
(34) IN Cantonment Board, Poona v. W. I. Theatres Ltd, A. I. R. 1964 Bom. 261, the levy of a similar show tax was challenged unsuccessfully on several grounds. It was urged that a cinema show was neither a luxury nor an entertainment and that even if it was held to be a tax upon entertainments there was no power in the Provincial Legislature to levy the tax from an exhibitor. Their Lordships observed that the plural word 'entertainments' necessarily indicated that it was used as a common noun and not as an abstract one and meant in the case of cinema a show, in the case of drama, a performance and in the case of a cricket match. They further observed that if the tax was to be levied under Item 50 of List 2, Schedule VII of the government of India Act of 1935 which was in terms similar to item 60 the incidence had necessarily got to fall upon the show ; and they said it could not possibly be contended that it must fall upon entertainment as an abstract noun, that is upon the receipt of entertainment. A show was not a luxury if looked at from the point of view of the person who exhibited the films. It may be possible to bold that it was a luxury from the point of view of the person who obtains admission to it upon payment. But whatever argument may be based on that aspect, i. e. , whether a cinema show was to be treated as luxury they thought that the meaning of the word 'entertainments' was not controlled by the word 'luxuries'. Whenever anything is defined by enactment as inclusive of something they thought it was obvious that the provision was made because there were two views possible; and the word 'entertainments' could not therefore be held to control the word 'luxury' which preceded it. They referred to the English Finance new Duties Act, 1916, in England where the tax was known as au entertaintment duty and the word 'entertainment' was defined in the Act as including a cinema show to which persons obtained admission. Even in England the tax is leviable from the proprietor and is levied by means of a stamp affixed to the ticket of admission. The stamp has to be purchased by the proprietor or exhibitor of the cinema and there is no provision in the English act throwing liability for payment of the tax, whoever paid it in the first instance, upon the person who paid for admission to any entertainment In England as well as under our Amusements tax Act a proprietor is guilty of an offence and so is the person who obtains admission but the statute has made the tax which has not been paid leviable only from the proprietor.
(35) IN Mathurai v. State of Madras, A. I. R. 1954 Mad. 569 [LQ/MadHC/1953/273] the question arose whether a tax which was to be levied on passengers, luggage and goods carried by stage carriages and on goods transported by public carrier vehicles at the rate of 9 pies and 6 pies in the rupee respectively calculated on the fares or freights payable to the operators of stage carriages and carrier vehicles was ultra vires of the State Legislature. The proviso to Sec. 3 of the Madras motor Vehicles (Taxation of Passengers and Goods) Act XVI of 1952 under which the tax was to be charged prohibited the operators of the vehicle from levying from the passengers or freight a fare in excess of the maximum rate already permitted or in force on the date of the Act. It was held by Rajamannar C. J. and Veukatarama Aiyar J. (as he then was) that the Act did not impose a tax on income. It was a "tax on passengers and goods carried by road" and fell within item 56 of Scbedule VII, List II, stale List. Referring to the argument that though the tax purported to be on passengers and goods it was really a tax on the income of the owners of the vehicles, they observed that to ascertain whether any particular enactment is a colourable legislation or not, it is the substance of the Act tbat is material and not merely its form or language; and the substantial question is, did the subject-mater of the Act fall within the powers of the Legislature which enacted it They referred to K. C. G. Narayan Deo v. State of Orissa, A. I. R. 1963 S. C. 375 wbere the Supreme Court have pointed out that although apparently a Legislature, in passing a statute, purports to act within the limits of its powers, yet if in substance and in reality it transgresses those powers, the transgression being veiled by what appears by proper examination to be more a pretence or guise, it would be a colourable legislation. This Madras case was even a stronger one than the present before us as there was a clear prohibition in Sec. 3 against passing on of the incidence of tax. Nevertheless their Lordships said that there was nothing in item 56 which specified who the assessee should be and that there was nothing illegal in the carrier, that is the operator being made the assessee, the real question being whether truly and substantially the tax is or is not on goods and passengers.
(36) THERE are various items in Schedule VII, List II, State List, such as taxes on intoxicating liquors, on lands and buildings, on the sale or purchase of goods on the entry of goods and boats into a local area, on certain advertisements, on animals and on mineral rights. In the Madras case their Lordships refer to the tax on professions, trades, callings and on the consumption of electricity as being on a par with those taxes, and it is difficult to take exception to the leasoning. These taxes have of course to be charged on some person who is either in possession of the concerned article or who deals with it either as a vendor or as a purchaser or who carries on either casually or regularly some activity connected with it either for profit or not and would ultimately affect his income or come out of it. It is not therefore enough merely to say that those several taxes must be charged and collected from some one else unless a reason is fonnd in the Constitution or in the various legislative lists why such a levy cannot be made and is beyond the competence of the State Legislature. It is obviously impossible to make a charge on and realise these taxes from those abstract or inanimate objects or activities and some person will have to be fixed who has to bear the incidence. The Legislature has nowhere guaranteed that the cinema proprietor or the proprietor of a theatre or any tradesman dealing in a luxury article or who arranges a sporting engagement or other amusement should get or keep all the gate money for himself and that any taxes imposed on the admission or on the show should be paid only by the customer. If the tax has no relation to the income and is charged irrespective of whether any income is realised or not, it may or may not be a logical tax but it cannot be called income-tax and the only objection which can be levelled against a levy of the present kind is that it is in reality a tax on income under the guise of a tax on a profession or calling.
(37) IT may be that under Act VIII of 1932 the Legislature thought fit to provide an easy procedure by which the tax assessed or recoverable on the basis of the price of admission could be easily ascertained and easily verifiable and accountable as between the State and the proprietor and that procedure makes it easy for the proprietor to pass on the tax on the person who attends the show while in no way impairing the former's primary liability to pay. That procedure merely facilitated such passing of the incidence by providing for the affixing of revenue stamps on the tickets which were to be paid for by the proprietor. They have not said in that Act that he might or much less that he should pass it on to the person who attends the show as there is nothing in that Act which prohibits the proprietor from reducing the price for admission so as to include the tax also within it. In the present Act no doubt they have not made any such arrangement they have, however, not prohibited the proprietor from passing the incidence on to the person admitted, by means of levying a higher charge for admission which might include a part of or even more than the show tax. There is, for instance, such a prohibition in the Madras Motor Vehicles (Taxation of Passengers and Goods) Act XVI of 1952 where it is expressly provided that the bus owner should not charge the passenger any fare beyond a specified limit.
(38) IT was urged by Mr. Seshadri that a share or contribution of the Show tax could not be collected as a tax or qua tax from the person admitted. It is difficult to see how that consideration is germane to this question, much less a vital or deciding factor.
(39) MR. Seshadri has referred to District Council Bhandara v. Kisorilal, A. I. R. 1949 Nag. 190 and Karanja Municipality v. New East India press Co. , A. I. R. 1949 Nag. 215. They were cases arising under the Government of India Act of 1935. In District Council Bhandara v. Kisorilal (1) the tax imposed was at the rate of one anna per khandi from persons carrying on the trade of hulling and milling grain. It was held that it was a tax on professions, trades or callings or employments within the meaning of Section 142 (a) of the government of India Act, 1935, and was subject to the provisions of the Profession Tax (Limitation) Act, 1941 (Act No. 20 of 1941), which laid down inter alia, that such a tax payable in respect of any one person to any one District Board should not exceed Rs. 50 per annum. In Karanja Municipality v. New east India Press Co. (2) a tax was levied at 10 pies per Boja of ginned cotton. The plaintiffs in that case dealt with ginned cotton. The tax concerned in those cases was clearly in the nature of a tax on professions, trades or callings falling under list II, item 46 of the Government of India Act, Schedule VII, corresponding to item 60 and there was no room for arguing that it could fall under any other alternative item like tax on luxuries or amusements as in the present case. If the tax is a tax on profession it cannot be disputed as found in those cases that it would be hit by the limitation of maximum prescribed in Section 142 (a) of the Government of India act or the Profession Tax (Limitation) Act, 1931 or Art. 276 (2) of the Constitution.
(40) IT must be admitted that whatever may be the correct or proper and abstract principles on which taxes should be levied from the subject, viz. , whether an expenditure tax should fall upon the consumer or seller or purchaser of the article, we must see whether there is anything in the Constitution which prescribes any prohibition based on such incidence. If the provincial Legislature was given power of taxation on luxuries and amusements and it chooses to collect it from the person who sells or supplies the luxury or amusement it is difficult to see how it can be urged that because the tax has to come out of the person's income in the first instance or even ultimately or if he cannot pass it on to his customers how such a tax can be said to be outside the purview of item 62, The tax is not levied only on the proprietor of a cinema who carries on that calling or trade or profession but on all and every cinema show whether it is arranged as a solitary show by someone for the purpose of collecting funds either for his own benefit or for the benefit of any other institution or even in order to make the show self-supporting. Even in the latter case the show tax has to be paid, and the payment is to be made irrespective of whether an income is made or not or even if the show ends in a loss and does not bring in any income (within the meaning of the income-tax rulings). Jt is always open to the proprietor or showman to so price the admission as to meet this additional burden or he may pass it on to the producer in the case of cinemas run regularly through hired films. It is somewhat similar to, though not quite like, a license fee or some payment he has to make under the Police Act or Rules thereunder or to the Fire Fighting Department of the Government or to the municipality (in order to provide for any contingency of disorder or fire and) which might be made a condition under the Cinematograph Act or the Police Act.
(41) IT is urged by Mr, Seshadri that the proprietors of cinemas are facing a very serious slump in their business under the show Tax Act especially in larger cinemas, that the tax was much too heavy and was practically strangling their business and landing them in huge loss. In the application made before us there is no such complaint, though in the affidavit annexed to the application for stay the hardship of having to pay large arrears which the petitioners have allowed to accrue is mentioned. Obviously it would not be proper to take into consideration such a plea of hardship particularly by persons who have not paid their taxes promptly either by design or on account of their own inability and would be in the nature of an undue discrimination putting a premium on default if we were to take into account such a complaint or grievance. Moreover that is a matter in which the State legislature has to be approached and may give relief if the case deserves it. It is difficult to see how it is a matter for the Courts to interfere so long as the Legislature is found to have power to impose a tax.
(42) IT is also urged that the tax is really in the nature of a double taxation and that it destroys the very object which is to be taxed. In this connection Mr. Seshadri has referred to some passages in Findlay Shirras" Book" Science of Public finance" 1936 Edn. I am not impressed with any of those grounds as we are not really concerned with those abstract principles and are only to see if the tax is within the powers of the State Legislature. It has also been urged that the tax is discriminatory. A cinema may well be treated as a class and taxed differently as compared to a theatre or a circus where other considerations such as an employment of a large number of people, extra risks and difficulties and expenses invplved to the proprietor, educational and other cultural advantages emanating therefrom could all be data or material on which a rational classification to exempt or postpone the levy on those items may well be based and defended.
(43) IT was also urged that the petitioners and other cinema proprietors were working at a loss. That is also not a matter for us to consider in these writ petitions. These are matters for the Legislature to consider and the affected persons may, if it is true, request the Legislature to amend or abolish the act.
(44) MR. Seshadri has also contended that the whole of the Act offends the Constitution and is ultra vires as being opposed to the Constitution. He represents that under Section 5 of the act the Government have been invested with absolute and arbitrary power to exempt any show or shows from the tax, that the Act itself does not provide any standards or grounds on which the Government should exercise their powers and that the Act containing such a wide and vague power offends the Constitution. In this connection he has referred to State of West Bengal v. Anwar Ali, A I. R. 1952 S. C. 75 (101). No doubt, Section 5 is in very general terms and is open to the objection urged against it, that it arms the Government or its officers with absolute and arbitrary powers subject to no specified principles or directives contained in the Act. The Government have no doubt power under Section 7 to frame rules to carry out the purpose of the Act and they have framed a rule by which they have defined to themselves powers to exempt shows held for certain beneficial purposes such as charities, etc. In the earlier Amusements Tax Act there is Section 8 which defines the powers of the Government in the matter of such exemptions and the rule under Show Tax Act is in exactly similar terms.
(45) BUT it is urged by Mr. Seshadri that the rule which the government have framed and which they can always change at will cannot take the place of a section in the Act and that the Legislature could not delegate such wide powers nor Government could clothe themselves with such wide powers by such delegated legislation. This argument is not mentioned in the application but nevertheless may be considered as it raises a pure question of Constitutional law.
(46) THE argument against Section 5 appears to be sound and may be accepted but that would not help the petitioners. Section 5 seems to be clearly separable from the rest of the act. It is difficult to accept Mr. Seshadri's contention that it may he that the policy of the Act was primarily to exempt cinema shows from payment of tax under Section 5 and to tax only such of them as they please under Section 3. The preamble to the Act, as well as the objects and reasons which we have perused, for putting this Act on the Statute book by the State Legislature was to augment its funds and it cannot be argued with any seriousness that it was necessary for them to pass an Act in order to exempt cinema shows in respect of a tax which never existed. Section 5 can be easily separated and ignored and still the Act may be worked to fulfil its objects and functions. There is therefore no substance in that contention either.
(47) IN the result in my opinion there are no grounds to issue any writ as prayed for and these petitions are to be dismissed. There will, however, be no order as to costs. Order of Reference to the Fall Bench, on 24th January 1955 medapa C. J. My learned brother has taken a different view regarding the applicability of Articles 13, 14, 19 and 276 of the Constitution to the facts of this case. The matter is therefore referred to a Full Bench under rule 11 of the rules framed by this Court in regard to the issue of writs under Article 226 of the Constitution.
(48) THESE are all petitions filed under Article 226 of the Constitution of India seeking writs or appropriate directions regarding levy of what is called the Cinematograph tax under the provisions of Mysore Act XVI of 1951 The Mysore Cinematograph Shows tax Act. The Act came into force on 30th April 1951. Two of these petitions were heard by a Division Bench but were referred to a Full Bench for disposal as it was of divided opinion about the validity of the tax. The other cases were also placed before the Full Bench as the contentions raised were similar to those in the two petitions so as to facilitate disposal of all by one order.
(49) THE Petitioners are persons who provide or conduct cinematograph shows in Bangalore as proprietors or managers. Their grievance is that for every exhibition a payment has to be made to the Government at a prescribed rate and this, in addition to the tax under an earlier enactment No. VIII of 1932 called the mysore Amusements Tax Act. The Division Bench is agreed in holding that the objections on the score of the tax being a tax on income which the State Legislature cannot impose or on the ground of the tax constituting a double liability are untenable. Learned Counsel have not made out that a different view is possible particularly in the absence of any statutory prohibition of taxation more than once and in view of the existence of liability for the tax irrespective of the income of the person concerned. The main point on which there is a divergence of opinion is whether this is a tax on "profession, trade, calling and employment" provided for in entry No. 60 or a tax on "luxuries including taxes on entertainments, amusements, betting and gambling" specified in entry No. 62 of the seventh schedule in the Constitution of India. Both entries are in the list of items for which the State is competent to legislate but there is a limit under Article 276 to the tax leviable if entry no. 60 applies and no such restriction if it is covered by entry no. 62. Although the reference in both the entries is to activities and engagements as being subject bo the tax, it is not realised by proceeding against these as the responsibility for payment is cast on the individual and he has to discharge the obligation, whether the tax is of the kind mentioned in one entry or the other. It is also possible that in some cases providing" luxuries" referred to in entry No. 62 constitutes the " profession, trade or calling" set forth in entry No. 60 of persons liable for payment. The Petitioners are persons of that type and the question to be determined is whether they have to pay the tax on account of the profession or calling, they have adopted, or because of the "luxuries " they furnish.
(50) "entertainment" is defined in Act VIII of 1932 as including any exhibition, performance, amusement, game or sport to which persons are admitted for payment. "cinematograph show" according to the Act now impugned means any cinematograph exhibition held in any place to which persons are admitted for payment. Section 3 of the Act states : "there shall be charged, levied and paid to the Government, a tax on cinematograph shows. . . . . . calculated on the following rates. " section 4 prescribes the penalty for non-payment of the tax by the proprietor of the show. Exemption by Government of any show from liability for payment is provided for in the next section.
(51) THE effect of Sections 3 and 4 read together is that what is taxed is the show, and the person bound to pay it, though not expressly required to do so, is the proprietor. Prima facie, the words in Section 3 are such as to bring the tax under entry No. 62 rather than entry No. 60. It was argued that nevertheless the tax in substance and reality is a tax on profession or calling as it vitally affects the interests of the petitioners carrying on the business of exhibiting pictures. Inconvenience or difficulty felt by the payers to meet the requirement is not a factor affecting legality of the tax. A useful test to find out whether the tax is aimed at the profession or entertainments is to ascertain how entertainments or shows presented by persons who do not follow it as a profession or calling but do so occasionally to raise money for benefit of social or cultural organisation are dealt with.
(52) UNLESS there is an order under Section 5 for exempting such a show from the operation of the Act it is as much liable as a show arranged by a professional exhibitor. The liability does not depend upon the exhibitor being a professional man but upon the show itself being open to visitors on payment whoever may be the person arranging it. This is evident from the fact that a person who presents a single show occasionally as an experiment or for display of his taste cannot escape liability unless it is provided freely for persons witnessing it.
(53) THE tax is not peculiar to this State and the levy under similar enactments in other States has been challenged in some cases. Of these, Sri Krishna v. Ujjain Municipality, A. I. R 1953 M. B. 145 has been strongly relied upon as it was held in that case that the tax is of the category referred to in entry 60 and should not exceed the maximum fixed by Article 276. The applicability of entry no. 62 does not appear to have been raised at all and the decision is based only on a consideration of the scope of entry No. 60.
(54) WHETHER it is due to the counsel for the assessing authority having conceded that entry No. 60 is the source of power to levy the tax or otherwise, the case cannot be treated as laying down that entry No. 62 cannot be invoked. On the other hand cantonment Board, Poona v. W. I. Theatres Ltd. , A. I. R. 1954 Bom. 261 [LQ/BomHC/1953/15] and Kantilal chaturbhuj Shah v. Palitana Municipality, A. I. R. 1956 Sau. 90 are cases directly in point and against the petitioners. The latter case deals with contentions identical with those urged here and the provisions in the Government of India Act corresponding to entry No. 62 are discussed in the former case. The view taken in these cases that the tax on cinema show is not one on profession, trade or calling but a tax on entertainment appears to have been expressed recently in a case of the East Punjab High Court.
(55) SRI Krishnamurthy who appeared for the petitioner in one of the cases advanced a further contention that only indirect taxes can be levied by the State in exercise of the legislative power conferred by the Constitution and that the tax is open to the criticism that the obligation for payment cannot be shifted to others He drew our attention to statements of certain writers on Political Economy about the distinction between direct and indirect taxes. As Sulaiman J. remarked in re G. P. Motor spirits Act, A. I. R. 1939 F. C. 1 (14) "a statute of Parliament is not a thesis on economics and the question is really one of law and not of enonomics. " Learned counsel did not point out any constitutional bar to the levy of the tax by the State or any legal impediment or practical difficulty to the proprietor making up the amount payable by him for a show by raising the fee or fare charged for admission in each class.
(56) THE question of the tax being just or unjust was adverted to by Sri Seshadri in the course of arguments as one to be taken into account. The Court is not concerned with the policy or reason underlying the Act but cannot ignore the allegation that the tax will affect seriously the freedom of trade or carrying on business guaranteed by the Constitution. The grievance put forward is that the amount payable will aggregate to a heavy sum per year so as to render it highly difficult for the petitioners to continue the business they have built up at heavy cost and the tax being an oppressive levy operates an unreasonable restriction on petitioners carrying on the trade or business freely.
(57) APART from the tax like any other compulsory contribution involving a deduction from the income of the proprietors, there is no indication of the daily shows being reduced or the number of cinema theatres being lessened on account of the levy. There is no proof of any show being given up or theatre being closed down as a result of the imposition and the tendency rather is for increase in these.
(58) THE objection on the score of the tax being discriminatory inasmuch as it is directed against only a certain kind of amusement or entertainment and not against all has no force as it is well settled that mere variance in treatment of one class and another is not repugnant to the doctrine of equality enjoined by article 14 of the Constitution when the classification has a rational basis. The amusement or diversion provided by a cinematograph show is not the same as that of a dance or drama and as such it may look more unreasonable to treat them alike than as different.
(59) THE principle of Equality would be offended if there is room for arbitrary application of the Act as between persons of the same class. Section 5 which gives power to Government to allow exemptions without stating the conditions or considerations as guidance for exercise of the power is liable to this attack as it lends scope for granting immunity in an uncontrolled manner.
(60) THE fact of Section 5 being thus defective may cause doubt about propriety of dispensing with payment by any one but the complaint is not that any one is favoured on the strength of the section or wantonly denied the benefit of it but that there should be a levy on any one of that class. The proper way of considering the result of particular provision turning out to be invalid on the other provisions of an enactment is stated in A. G. of alberta v. A. G. of Canada, A. I. R. 1948 P. C. 194 :
"question arises not infrequently and is often raised by asking whether the legislation is intra vires ' either in whole or in part' but this does not mean that when part is declared invalid what remains of the Act is to be examined bit by bit in order to determine whether the Legislature would be acting within its powers if it passed what remains. The real question is whether what remains is so inextricably bound up with the part declared invalid, that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all".
(61) I do not think that it can be said that the Act for the imposition of the tax would not have come into existence without the provision to relieve any one from liability.
(62) SECTION 5 cannot be regarded as representing the "pith and substance" of the Act and it only permits an exception being made in special cases to the rule generally applicable to the proprietors of the shows. The effect of holding the section to be invalid is that no one can be excluded from liability and not to exonerate all. It is clearly severable from the rest of the Act and neither the intent and purpose of the Act nor its enforcement against petitioners can be deemed to be affected if Section 5 is left out. It is now pointed out that this section has since been suitably amended and so even this objection to the Act fails.
(63) ON the whole, I do not find any good ground on which the reliefs prayed for in any of the petitions can be granted. The petitions are dismissed with costs. Advocate's fee Rs. 100 in each case. PADMANABHIAH J. : I agree. HOMBE GOWDA J. : I also agree.
