TaxTMI 
TaxTMI 
1996 (3) TMI 575
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....April, 1992, introduced amendment in Section 3-A of the Act, which authorised the proprietor of a Cinema to realise an extra charge of twenty-five paise per ticket for admission to be utilised for maintenance of the cinema premises. But by proviso excluded the proprietor of such cinema receiving any incentive scheme from the State Government. Earlier by the Government Order dated 21st July, 1986 grant-in aid was provided to the newly constructed cinemas in a town not having a population of more than one lac. Under this such cinema-exhibitors were entitled for cent per cent, tax exemption for the first year, seventy-five per cent, in the second year and fifty per cent in the third year and for an area having population less than 20,000, cent per cent, tax exemption for two years, seventy-five percent, for the third year and fifty percent, for the forth and fifth years, subject to condition that admission rate shall not be more than rupees five. This was substituted by another Government Order dated 18th July, 1989, also as an incentive to the newly constructed cinemas granting total exemption from payment of entertainment tax for the first two years, seventy-five per cent, for the t....
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....nditioned cinema a further extra charge of ten paise and twenty-five paise for air-cooling or air-conditioning facility respectively during the period commencing on the fifteenth day of March in any year and ending on the fifteenth day of October next following : Provided that the proprietor of a cinema receiving grant-in-aid from the State Government under any incentive scheme shall not be entitled to realise extra charge under clause (a) during the period such grant-in-aid is received by him. (2) The amount charged under sub-section (1) shall not be deemed to be payment for admission to an entertainment. (3) Where the extra charge referred to - (a) in clause (a) of sub-section (1) has not been utilised for maintenance of cinema premises, (b) in clause (b) of sub-section (1) has been realised without providing the air-cooling or air-conditioning facility, as the case may be, the amount so realised shall be deemed to represent the aggregate of additional payment for admission to the entertainment and entertainment-tax payable thereon." 5. Thus the crux of controversy is whether proviso to section 3-A, as amended (as aforesaid) under w....
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....ins on the statute book, only it is unenforceable in law. That is why, in such cases, only writ of mandamus is sought not to enforce it and not a writ of certiorari for quashing it. Truly, a provision declared ultra vires it is said to be stillborn but revived when appeal. Review is allowed or by retrospective constitutional amendment which removes the constitutional infirmity. Similarly it would also revive in reference when contrary to the earlier declaration of law is laid. Challenge to Ground No. (iii) is that the principle of resjudicata under Section 11 Explanation VI, CPC, is not applicable on the facts and circumstances of this case noril restricts the power of Court in reference to set at rest an earlier wrong declaration of law relieving from perpetrating continuing wrong on the subject. Lastly, countering Ground No. (iv), the argument is, there is no constitutional or statutory bar not to consider similar point in a subsequent case except those covered by the principles of resjudicata. It is only a question of exercise of discretion of the Court. This would depend on the facts and circumstances of each cases and, in any case, this bar, if at all, could only be to a party....
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....on of Benches and in the exercise thereof he can surely constitute a larger Bench in a case of importance where the Division Bench hearing it considers that a question of the correctness or otherwise of earlier Division Bench decision of the same Court will fall for consideration in the case." 13. But the argument for the petitioner is not that the present reference is incompetent or invalid, but whether it falls within the parameter of Rana Pralap Singh (supra). There is no challenge to the constitution ^ this Bench. In Firm Deo Dutt AIR1966All73 (supra) the constitution of the larger Bench itself was challenged. The constitution of this Bench is by the order of Chief Justice, which is not under challenge. Hence, State's preliminary objection to the preliminary objection of the petitioner fails. 14. Before examining the parameter fixed in the case of Rana Pratap Singh (supra) to what extent it limits the scope of reference if any, and to what extent the present reference overflows such restriction, it is appropriate to scrutinise various authorities cited at the Bar to spell out the law on the subject for its application in the present case. 15. The word 'st....
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....nst any binding judicial precedent, against any constitutional or statutory provisions, contrary to any settled principle of law or even with the change of social fabric requires reconsideration being of public importance, to set back on the track another equally important principle is evolved by referring such matters to a larger Bench. Both principles of 'stare decisions' and 'reference' are not contrary but complementary to each, evolving and developing the law with an eye solely to render justice. All methodologies, principles, procedures are coined by Judges in aid to and are subservient to deliver justice to the subject. They are not to be interpreted which restricts this reach. It is in essence, within this sphere, catena of authorities are to be found as cited at the Bar. 17. The principle of binding judicial precedent is well sealed. Not only decision of higher Courts are binding on the Courts lower in hierarchy, even in the same Court it binds Bench of lower number of Judges even to equal number of Judges of coordinate jurisdiction. Thus judgment of a Division Bench is binding on subsequently consumed Division Bench of co-ordinate jurisdiction (equal nu....
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....risdiction and of Division Benches and of the Full Benches of his Court and of this Court, The reason of the rule which makes a precedent binding lies in the desire to secure uniformity and certainty in the law." 20. In [1965]3SCR218 , Bhagwan v. Ram Chand "It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to he reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the mailer to a Division Bench, or- in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety." 21. In this case Supreme Court deprecated and did not approve learned single Judge deciding a case against principle of Division Bench. 22. To the same effect is [1986]158ITR574(SC) (Union of India v. Godfrey Philips India Ltd.). ....
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....direct that the papers be placed before the Chief Justice of the High Court to enable him to constitute a larger Bench to examine the question....." 25-B. AIR1988SC1365 , Mohar Singh v. Devi Charan "..... .That was a decision which the learned Judge in the present case should have considered himself hound by unless there was a pronouncement of a larger bench to the contrary or unless the learned Judge himself differed from the earlier view in which even the matter had had to go before a Division Bench." 25-C. [1989]178ITR548(SC) . Union of India v. Raghubir Singh "21..... the position in India approximately more closely to that obtaining in the United States rather to the position in England where Parliament could rectify the situation by a simple majority, and to that in Australia, where the mistake could he corrected in appeal to the Privy Council. The learned Judge observed :-- "There is nothing in our Constitution which prevents from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public." "28. What then should be the position in regard to the effect of the law pronounced....
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.... v. Nagar Palika, Jaunpur. Holds the same principles as above. "3..... as has been reiterated in a number of decisions of this Court that if a single Judge, disagree with the decision of another single Judge, it is proper to refer the matter to a larger Bench for an authoritative decision. But in the instant case the learned Judge acted contrary to the well established principles of judicial discipline in ignoring those decisions." 28. 1995 Supp (2) SCC 671 : (AIR 1994 SCW 2789) Collector of Central Excise, Hyderabad v. Fenoplat (P) Ltd. (I) This also enunciates same principle pertaining co-ordinate Bench. This was a case where the earlier Bench did not consider the proviso, hence reference was made to the higher Bench. "12. ... This was evidently done because the attention of the Bench was not invited to the proviso. As indicated herein above, while setting out T.I.22, the proviso is omitted which, however, has material hearing. It is not known what would have been the conclusion if the provision would have been noted. "14. In the above circumstances, it is but proper that the matter is placed before a Bench of three Judges. Let the records be, ....
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....e necessary "for doing complete justice in any case or matter pending before it", which authority the High Court does not enjoy. The jurisdiction of the High Court, while dealing with a writ petition, is circumscribed by the limitations discussed and declared by the judicial decisions, and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from Judge to Judge." 33. It is true, none of the cases of the apex Court has laid down parameters as in Rana Pratap Singh (supra). hence, we would he considering here under whether there is any thing in the said parameter which excludes the present reference. So far the case of Surinder Kumar (supra) it has no application as that dealt with Article 142 of the Constitution relating to enlarged Supreme Court's power which is not with the High Court. Further principle in the various Supreme Court cases is not confined to the reference in that Court only but to other class of cases with specific reference to cases arising in the High Court. In fact, reference are always for reconsideration of any law settled by earlier decision. Finality of that judgment is also there as either the appeal against that....
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....r foundations and are not to be blown away by every side wind. It is only . within the narrowest field that a judgment of a larger Bench can be questioned for consideration. One of the obvious reasons is. where it is unequivocally manifest that its ratio has been impliedly overruled or wittled down by a subsequent judgment of the superior Court or a larger Bench of the same Court. Secondly, where it can be held with certainty that a co-equal Bench has laid down the law directly contrary to the same, and, thirdly where it can be conclusively said that the judgment of the larger Bench was rendered per incuriam by altogether failing to take notice of a clear-cot statutory provision or an earlier binding precedent. It is normally within these constricted parameters that a similar Bench may suggest a reconsideration of the earlier view and not otherwise. However, it is best in these matters to be neither dogmatic nor exhaustive yet the aforesaid categories are admittedly the well accepted ones in which an otherwise binding precedent may be suggested for reconsideration." 37. Pritam Kaur's (supra) foundation of Rana Pratap Singh (supra) both were cases where learned single Judge d....
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....a) make it abundatly clear that it is not exhaustive but illustrative. The same is evident by the following words : "It is normally within these constricted parameters that a similar bench may suggest reconsideration of the earlier view that not otherwise. However, it is best in these matters to be either dogmatic nor exhaustive yet the aforesaid categories are admittedly the well accepted one in which an otherwise binding precedent may be suggested for consideration." Finally the words; "However, it is best in these matters to be neither dogmatic nor exhaustive yet the aforesaid categories are admittedly the well accepted ones in which an otherwise binding judicial precedent may be suggested for reconsideration." The use of expression 'nor exhaustive' clearly suggests that the parameter is not exhaustive, but illustrative. It is also clear that reference should not be made on any and every veiled doubt. However, this has not restricted a reference, if there could be any possible error on account of earlier judgment not taking note of, any relevant statutory provisions, rules, notification, or any binding judicial precedent. 40. Thus, this decisio....
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....e jurisdiction as the present case though such reference was also made. But even if this covers such cases the question is whether parameters restrict the present reference to be falling apart from the said parameter. The argument for the State is the decision of Kamla Palace (supra) has not taken into consideration essential provisions of Act, rules and notifications in the consideration, on the other hand, it is argued by the petitioner that that Bench was aware of the same may not have referred it. 45. Thus, we come to the conclusion that the decision in Rana Pratap Singh' s case the parameter is only illustrative and not exhaustive. That was with special reference to the reference by lower denomination Bench seeking reference as against higher denomination Bench. It has only dealt with specifically where contradictory law is laid down by co-equal Benches of co-ordinate jurisdiction. But the principle and ratio applicable to all including co-equal Benches is that for any and every veiled doubt or casually no reference should be made unsettling a settled law. 46. In this back drop examining the present reference where it has doubted the incrimination of Section 3-....
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....es, to transmit to the Court the record of proceedings pending therein for scrutiny and, if necessary, for quashing the same. (4) Where it is a petitioner's contention that an Act or Ordinance is unconstitutional or void, the proper relief for the petitioner to ask is a declaration to that effect and if it is necessary, or though necessary to ask for a consequential relief, to ask for a writ of mandamus or a writ in the nature of mandamus or direction, order or injunction re straining the concerned State and its officers from enforcing or giving effect to the provisions of that Act or Ordinance." 49. It is further urged thus statute declared ultra vires still is brought to life by removing the cause of it may. be by setting aside such declaration by the competent Court, or by amending the law removing the defect of its invalidity. Further High Courts being superior Courts exercising sovereign power also have residuary inherent power and even if there be no procedure prescribed to refer the matter, could refer a case if case be such consequently declare what is declared ultra vires to be valid. It has all the powers of sovereign, except what is taken away by the Cons....
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.... country, which is an aspect of national sovereignty, is vested in the people and is articulated in the provisions of the Constitution and the laws and is exercised by Courts empowered to exercise it. It is absurd to confine that power to the provisions of imperial statutes of a bygone age. Access to Court which is an important right vested in every citizen implies the existence of the power of the Court to render justice according to taw. Where statute is silent and judicial intervention is required. Courts strive to redress grievance according to what is perceived to be principles of justice, enquiry and good conscience. "89. In the words of Chief Justice Marshall:-- "The jurisdiction of Courts is a branch of that which is possessed by the nation as an independent sovereign power. The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself...." 53. 1988CriLJ1661 Antulay v. R. S. Nayak. "43. ... In rectifying the error, no procedural inhibitions should debar this Court because no person should suffer by reasons of any mistake of the Court. The Court, as is mani....
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.... absence of Article 142 of the Constitution. The relevant portion of this judgment is quoted as under (para 23 of AIR):-- "It deserved to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice and if moulding or relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review in the High Court, this Court held as early as in Shivdeo Singh's Case AIR 1963 SC 1909 that the High Courts to can exercise power of review which inheres in every Court to plenary jurisdiction. I would say that power to do complete just ice also inheres in every Court, not to speak of a Court to plenary jurisdiction like a High Court of course this power is not as wide which this Court has under Article 142." 57. State contention is when an Act declared ultra vires could be revived even after several years when it is set aside in appea....
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....ate it was declared valid, as earlier held ultra vires that being not in the statute book was by legal concept brought back or made alive. As we have said they are all devise and methodology created by the Courts to render justice. 60. Thus, we see what was declared as 'stillborn' was declared to be alive. It picturises both the concept of being declared as 'stillborn' and being declared back 'alive' from very inception. They are each by the act of the Court. These are old conceptional traditional ways, coined by the Courts, to render justice. That is why the effect of ultra vires declaration is only non-enforceability of such provision against the subject. 61. To further iron out the creases, let us examine what is the effect of law having declared ultra vires. 62. In Behram Khurshid Pesikaka v. State of Bombay 1955CriLJ215 . Relevant para (10-A) is quoted as under : "Where a Statute is adjudged to he unconstitutional, it is as if it had never been. Rights cannot be built up under it, contracts which depend upon it for their consideration are void, it constitutes a protection to no one who has acted under it and no one can be punished f....
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....he legislature is a nullity, a law on a topic within its competence but repugnant to the constitutional prohibitions is only unenforceable. This distinction has a material bearing on the present discussion. If a law is on a field not within the domain of the Legislature, it is absolutely null and void and a subsequent cession of that field to the Legislature will not have the effect of breathing life into what was a stillborn piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the Legislature but its provisions disregard constitutional prohibition, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without re-enactment." "47. The result of the authorities may thus be summed up : Where an enactment is unconstitutional in part but valid as to the rest, assuming of course that the two portions are severable, it cannot be held to have been wiped out of the statute book as it admittedly must remain there for the purpose of enforcement of the valid portion thereof, and being on the statute book, even that portion which is ....
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.... should not be operative as respects non-citizens. The fact that pre-Constitution law was valid when enacted can afford no reason why it should remain operative as respects non-citizens after the Constitution came into force as it became void on account of its inconsistency with the provisions of Part III. Therefore, the real reason why it remains operative as against non-citizens is that it is void only to the extent of its inconsistency with the rights conferred under Article 19 and that its voidness is, therefore, confined to citizens, as ex hypothesis, the law became inconsistent with their fundamental rights alone. If that be so, we see no reason why a post-Constitution law which takes away or abridges the rights conferred by Article 19 should not be operative in regard to non-citizens as it is void only to the extent of the contravention of the rights conferred on citizens, namely, those, under Article 19." This was the foundation of the argument for the State which has a great force that a law even if declared void remains on the statute. Referring to the case of Jagannath v. Authorised Officer Land Reforms [1972]1SCR1055 a post-Constitution Act, which was struck down for....
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....not a judicial function. (5) The word 'void' in Art. 13(1) and (2) does not mean 'repealed' nor is a law declared void under Art. 13(1) or (2) obliterated from, the statute book. Such a law is not wholly void but by the express terms of the article is void only to the extent of its repugnancy to, or contravention of. the provisions of Part III relating to fundamental rights." In U.S. Constitution 2nd Ed. Vol. I pp. 10 and 11 the following principle is laid down : "In Norton v. Shelby Co. (1885 (118) US 425), Mr. Justice Field says: "an unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no protection, it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." The doctrine that the judicial declaration of the unconstitutionality of a statute has not the effect of a veto or nullification or abrogation of the statute so as, in effect, to strike if from the statute books, is excellently slated by the Court of West Virginia in Shephard v. Wheeling (30 W, va479). The Court says : "The court does not annul or repeal the statute if it finds it in conflict wit....
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....gnise it. It is treated ineffective as unenforceable. Such laws are validated when cause of such offend is removed. It remains eclipsed by offending the Constitution. Eclipse denotes it being screened by such constitutional provision. Not to be seen. It is blind, though actually in existence. The moment screen is removed by removing cause of offend it takes effect, becomes enforceable and alive. So never removed from the statute book. Even nullity for the law of ultra vires has to be understood within this sphere. While in former when not legislated by [he competent legislature has truly not taken birth. Really it is stillborn. It is nullity in the true sense as if never existed at any point of lime. Thus, this nullity is in that absolute sense while in other ii is in the limited sense. From all this it is clear without doubt in the later class of cases in which present case falls, oven where a provision of a statute is declared ultra vires, which is void and is to be understood to be stillborn but by the procedure prescribed by law in appeal/ review or reference what is still born is infused buck into life as life member. This re-enforces well considered and settled proposition vi....
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....question of discretion of the Court depending on the facts and circumstances of each case. It is again the question to be considered by the Bench before which this case is pending. Hence, this last preliminary ground also fails. 72. This apart, cumulative argument for the State is that in Kamla Palace (supra) the decision did not take into account the various schemes including the scheme under which the petitioner's case falls. Further the said scheme being temporary in nature and flexible in character. Further the earlier decision has not taken note of various provisions of the Ac! which distinguished one class from other, also the notifications conferring different rate of tax which has important bearing on the question of validity of the impugned provision. Thus, this reference cannot be thrown on the preliminary grounds. This has merit. 73. Thus, for all these reasons, all the preliminary objections for the petitioner fail. 74. Now we proceed to decide the reference on merits. 75. Before the matter was heard on merits Sarvshri L.P. Naithani, V.B.Singh and Govind Krishna sought permission to address this Court since they were counsel in the bunch writ petitions i....
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....ned counsel referred the expanded meaning of the word 'maintenance' by citing from Webster Dictio-nary. Random House Disctionary and other dictionaries to which we do not feel it necessary to refer. Under which the word 'maintenance' would not only cover maintenance of building, ground, furniture but even improvement of the cinema machines. Emphasis was, with the changing technology, to keep abreast with the developments to confer best possible entertainments and to survive in competition it requires up-dating projection, screening, audio visible effect and such developments would also be within the meaning of 'maintenance', hence it cannot be said any class of cinema would not require maintenance. 77. It would be too benevolent to give such enlarged dictionary meaning to the word' maintenance'. This would be displaced and would be contrary to the legislative intent in the context it is used. The word 'maintenance' under Section 3(1) (a) refers and confines to 'cinema premises' only. It would not include development of cinema industry based on new technological concepts, viz. development of machinery, screen, audio-video effects et....
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....s benefit should he adopted. For this he relied on (1978)ILLJ29SC , Shah B. v. Presiding Officer, Labour Court. Learned counsel Shri Govind Krishna supplemented the arguments on the same point. He relied on [1963]1ITR48(SC) Gur Sahai v. Income Tax Commissioner. This is also an authority for different eating between the tax and fee. 80. The contention since by deeming clause amount permitted to be charged, would not be treated to be entertainment, hence not a tax or it is a fee not a tax to which we are not adjudicating would make no difference in interpreting this provision as that of a taxing statute. The deeming clause' or any provision not taxing or imposing some fees are all part of the same fiscal statute. They are merely means and ways to tax. not to tax, give incentives etc. which part of scheme of such statute. Even exclusion from taxation by deeming clause itself in effect is incentive, supporting an industry which ultimately results in better tax collection. A taxing statute cannot be piecemeal differently interpreted. Part as taxing and pan as non-taxing statute. Hence this part of argument is misconceived and rejected. 81. In Kamla Palace (supra) the learned J....
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....er object of a amending Act is better facilities to the viewers. Thus, maintenance charge has to he equally applicable in all classes of cinemas who would constitute to be one class. 83. In (1994)IILLJ1220SC . State of Sikkim v. Surendra Prasad Sharma. "... Of course, the classification must not be arbitrary but must be based on some distinct qualities and characteristics peculiar to the persons included in the ground and absent from those excluded and those peculiarities must have a reasonable nexus to the object proposed to be achieved. In other words, the doctrine of classification evolved by the courts permits equals to be grouped together and does not permit unequals to be treated by the same yardstick. Differential treatment becomes unlawful if it is arbitrary and not based on rational relation with the statutory objective. The emphasis is not only on de jure equality but also on de facto equality." This holds that classification has to be based on distinctive qualities and must differentiate from the other. But it cannot be doubted that cinemas falling under the proviso have distinctive quality different from the one falling in the other class. They as a class....
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....ary in character and are flexible. Further the scheme of the Act taxing different rates having correlation with rural, semi-rural and urban areas, different incentive to different classes with varying degree of exemption from tax. Next some of the decisions referred in the referring order of the apex Court were not considered and the principle in one of the decisions of the Supreme Court though was referred, it in the penultimate paragraph but in its application with reference to various provisions of the Act were never tested or considered. Hence, now we embark upon the said considerations whether in the absence of the consideration of those points, it could be said that the said decision resulted to lay down the law incorrectly. 90. In nutshell the question is whether cinemas falling under proviso under the incentive scheme receiving grant-in-aid could be clubbed, in one class and even if it could be, whether such classification has any nexus to the object sought to be achieved. For this it is relevant to refer to the Statement of Object and Reasons of the aforesaid Amending Act (U.P. Act No. 14 of 1992): " Statement of Objects and Reasons.-- The proprietors of Cinema....
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.... is necessary to refer to and lake aid of the well known Hey den's Rule as laid in Heyden's case ILR 1154 SC 637 also approved in [1955]2SCR603 Bengal Immunity Co, v. State of Bihar : "(a) What was the law before the Act (or Amending Act)? (b) What was the mischief or defect for which the law did not provide? (e) What is the remedy that the Act has provided? (d) The Court must adopt that construction which suppresses the mischief and advances the remedy." In spite of this being laid down many centuries back, is still contributing help in the interpretation of a provision and an Act. Let us now examine the impugned amending provision, introducing "maintenance charge in the light of the aforesaid objects and reasons. 92. It has to be seen what was the law period to this amendment ? What is the mischief or defect which earlier law did not provide; what remedy it has provided, finally interpret such amendment, which is subservient to the object sought to be achieved by advancing that remedy'. In this light we find which is evident from the Objects and Reasons that the proprietors of cinema since he-fore this amendment were facing fi....
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....alls under the second category of incentive. scheme namely, the old closed cinemas, to reopen with the help of tax exemptions. These schemes render help not by loaning any money but by granting exemptions from chargeability of lax varying from total tax holiday to 20% varying from case to case and varying from three to five years. The same is the pattern even under the amended U. P. Act No. 14 of 1992. Both classes falling under the proviso and the other class the object is to help proprietors of cinema by granting exemption to tax. Since before this amending Act no incentive to the other remaining class was yet given which formed major or bulk of the cinema industry, was provided, who were heavily taxed up to 125%. Thus we do not find either the classification of the class falling under proviso and the other could be said to be based on no intelligible differentia nor could it be said, this classification has no nexus with the object sought to be achieved. Hence, this object is achieved and thus the classification has direct nexus to the object sought to be achieved. 95. It is true the principle for testing the validity of a taxing statute has been recorded in the case of Kamla....
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....ent tax for new cinemas in low population area varies from 20% to 25%; whereas in urban area it varies from 75% to 125%. This aspect was not considered before holding the impugned proviso as ultra vires. Even imposition of tax on different classes, falling under the proviso and the other classes under Section 3-A. the rate of lax are differently imposed through separate notifications. Thus we find classification and imposition of tax differently at different rates inter se even between the same classes falling under proviso and other classes, hence exclusion of the class falling under proviso as challenged cannot be said not to be based on intelligible differentia. This class of proviso already admitted to incentive now the other class being given the incentives yet not received. This cannot be construed as violative of Article 14 of the Constitution. 96. Examining this from another angle, we find the various schemes under the proviso are temporary in nature varying from three years to five years. The class under proviso being temporary in nature and the very class after expiry of the said temporary period will qualify for the same benefit, and will join the other class. Even th....
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.... 100. In fact, when the scheme for rural area was unfolded it Was with double objective, one not to burden rural people hence restriction not to charge more than rupees five as admission charge, second to give incentive for establishment of new cinemas in the rural areas by helping the proprietor of such cinemas by giving them holiday from tax to the various degrees of tax exemptions. In case petitioner's argument is accepted that maintenance charge should be given as incentive to all, thereby meaning additional incentive to the one falling under the proviso class then people of the rural area will have to be further burdened with this additional charge and would also be contrary to the terms and conditions of the said incentive. 101. In judging the validity of a taxing statute it is well settled, the Legislature has very wide freedom and latitude in making classification to the subject to be taxed, areas, rate of tax. exemption and even conferring different incentives to different classes of subjects. It is also settled that burden is very heavy on the person challenging it, since various provisions involve fiscal and economic policies which are complex sometimes under co....
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....lements a very wide discretion and latitude in the matter of classification is permissible. Similarly, it was held in Federation of Hotel & Restaurant v. Union of India [1989]178ITR97(SC) . Simibrly in ITO v. N. Takin Roy Rymbai [1976]103ITR82(SC) it was held that mere fact that a lax falls more heavily on some in the same category, is not by itself a ground to render the law invalid. 106. In P. M. Ashwathanarayana Sctty v. State of Karnataka AIR1989SC100 . following observations were made: (at p. 119 of AIR) :-- "The lack of perfection in a legislative measure does not necessarily imply its unconstitutionality. It is rightly said that no economic measure has yet been devised which is free from all discriminatory impact and that in such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of criticism, under the equal protection clause, reviewing fiscal services." 107. Lastly, we find in the decision in the case of State of Biharv. Sachchidanand Kishore Prasad Sinha [1995]1SCR256 . the Court ruled if any classification is made in a fiscal statute, there will always be some instances where one gets an advant....
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....entrally air cooled or centrally air conditioned cinema hall to realise the extra charge of ten paise and twenty five paise for air cooling or air conditioning facility respectively per ticket. The amount so charged was exempted from payment of entertainment tax. By the Uttar Pradesh Entertainment and Betting Tax (Amendment) Act. 1992 (in short, the Act of 1992) sub-section (1) of Section 3-A was amended as follows : "(1) Notwithstanding anything contained in this Act, the proprietor of a cinema may realise from the person making payment for admission to an entertainment in such cinema,-- (a) an extra charge of twenty five paise which shall be utilised for maintenance of the cinema premises; (b) in case of a centrally air-cooled or centrally air conditioned cinema a further extra charge of ten paise and twenty five paise for air-cooling or air conditioning facility respectively during the period commencing on the fifteenth day of March in any year and ending on the fifteenth day of October next following : Provided that the proprietor of a cinema receiving grant-in-aid from the State Government under any incentive scheme shall not be entitled to ....
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.... and air conditioning. Both are required to be maintained for providing better facilities to the viewers. These cinema houses form one class for the purposes of Section 3-A even if some of them are receiving grant-in-aid. There is no reasonable basis for treating cinema houses getting grant-in-aid differently. They stand in the same position." In the result, the Division Bench (hereinafter referred to as the 'previous Bench') allowed all the writ petitions in the bunch of the Kamla Palace case and the proviso to sub-section (1) of Section 3-A of the Act and the Government Orders issued thereunder were declared ultra vires. 116. Close on the heels of the decision of the Kamla Palace case. Civil Misc. Writ Petition No. 805 of 1995- Natraj Chhabigrih v. State of U. P. and another came up for hearing before another Division Bench comprising B. M. Lal and M. C. Agrawal, JJ. (hereinafter referred to as the 'subsequent Bench') which doubted the correctness of the judgment dated July 10, 1995 of the Kamla Palace case. The subsequent Bench was of the view that the judgment dated July 10, 1995 required re-consideration by a larger Bench, and therefore, by an order dated....
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....bted, whether it is open to a subsequent Bench of coordinate jurisdiction to refer the matter to a larger Bench to resolve the controversy authoritatively. There is a catena of decisions pointing out that in the case of difference, propriety lies in making the reference to a larger Bench and it is not open either to a single Judge or a Bench of co-ordinate jurisdiction to embark upon taking a different view in a matter, and unsettled the things already settled. 123. In Bengal Immunity Company Limited v. State of Bihar [1955]2SCR603 . a seven Judges Bench of the Supreme Court assembled to consider whether the majority decision State of Bombay v. United Motors (India) Ltd. [1953]4SCR1069 should be reconsidered and then in the majority decision, the Supreme Court observed : "There is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public." The Supreme Court referred to the far reaching effect of the earlier decision in the United Motors (supra) on the general body of the consuming public, and concluded that the error committed in the earlier deci....
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.... a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety." 127. In Food Corporation of India v. Yadav Engineer and Contractor AIR 1982 SC 1302, the Supreme Court deprecating the tendency to over-took the binding precedent and taking a contrary decision without referring the lamented : "Times without number this Court has observed that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view contrary to the earlier decision of a Division Bench of the same High Court, it would be judicial impropriety to ignore that decision but after referring to the binding decision he may direct that the papers be placed before the Chief Justice of the High Court to enable him to constitute a larger Bench to examine the question." 128. In Keshav Mills Company v. Commr. of Income Tax [1965]56ITR365(SC) the Supreme Court observed that a revision of its earlier decision would be justified if there were compelling and substantial reasons to do so. In Sajjan Singh v. State of Rajasthan [1965]....
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....olume of work demanding the attention : of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions." Considering a catena of authorities and the nature and potential of the questions raised in the reference, the Supreme Court in Raghubir Singh (supra) held that there was sufficient justification for the order dated 23rd September, 1985 made by the Bench of two learned Judges referring these cases to a larger Bench for reconsideration of the questions decided in K. Kamaljammaniavaru (dead) by LRs. [1985]2SCR914 and Bhag Singh AIR1985SC1576 . 133. Taking the most pragmatic view, the Supreme Court in Indian Oil Corporation Ltd. v. Municipal Corporation [1995]3SCR246 , in similar context held (at p. 1482). "In reviewing and revising its earlier decision, the Court should ask itself whether in the interest of justice of the public or for any other valid and compulsory reason, it is necessary that the earlier decision should be revised." 134. In the case of Shridhar v. Nagar Palika, Jaunpur AIR1990SC307 . the question was whether the post of Tax Inspector was to be filled through direct recruitmen....
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....on by a larger Bench. 138. In Ambika Prasad Misra v. State of U. P. : [1980]3SCR1159 , a Constitution Bench held that every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent. It does not loose its authority merely because it was badly argued, inadequately considered and fallaciously reasoned. 139. The foregoing authorities unequivocally rule down that an earlier decision is binding on a Bench of co-ordinate jurisdiction and if a subsequent Bench wants to differ from the earlier decision then the reference should be made to a larger Bench. The principle deducible from these authorities is that if there is a fundamental or grave error of such a character, which if allowed to continue, would affect the public interest, then the Court owes a duty to the public to correct that error, but a binding precedent cannot be overlooked merely because of the two plausible views, one view is more preferable or that some new argument has been discovered which was not considered earlier. When only one view is possible and if the view already taken runs counter to the legal position, then the previous judgment containing an error has to be corr....
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....r the expiry of the grant-in-aid period, the cinema houses situate in tow populated areas, become entitled to realise extra charge and, therefore, the proviso to sub-section (1) of Section 3-A is temporary in effect and flexible in character. After the expiry of the grant-in-aid period, both classes of cinemas situate in tow and high populated areas, stand at par and both types of cinema houses become entitled to realise extra charge. (3) If a cinema house situate in a low populated area, does not avail the benefit of any incentive scheme, then on par of other cinema houses that may realise extra charge-- Only the cinema houses taking benefit under the incentive scheme are ineligible to realise extra charge for maintenance. (4) The theme of the proviso to sub-section (1) of Section 3-A is : 'one class of cinema--one benefit.' (5) No reference to earlier binding judgments germane to taxation field has been made by the previous Bench in its judgment. In the matter of adjudging validity of taxation law on the anvil of Article 14 of the Constitution, it is settled that the Legislature has extremely wide freedom and latitude in making classification ba....
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.... that the cinemas taking benefit of such scheme shall not charge more than Rs. 5/- per ticket. Rationale behind the ceiling on charges for admission is to provide cheap entertainment to the people of rural or tow populated areas. If extra charge of Re. 1/- per ticket is permitted to be realised from the viewers in the new cinemas taking benefit of any incentive scheme that would defeat the basic purpose of the grant-in-aid scheme. 144. These factors put together clearly indicate that there is fundamental error in the judgment of the Kamla Palace case. What is fundamental error ? Omission to consider the basic features of an Act lead to a fundamental or substantial error, which is corrected will result into reversal of the earlier decision. The foregoing features of the Act if viewed in the perspective of taxation laws and in the light of the authorities cited in the referring order, then the conclusion on the validity of the proviso to sub-section (1) of Section 3-A would have been different in the bunch of the Kamla Palace case and that is how a fundamental error arose in that judgment. 145. For the reasons. I am of the considered opinion that the reference to a larger Be....
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....r. The question is not the one whether the previous Bench cited the principle which can be deduced from the judgments relating to taxation laws, but the question is whether the principle stated by the subsequent Bench was correctly applied to the Kamla Palace case and whether the authorities even if they are cited--though they have not been cited in the Kamla Palace case -- have been correctly applied and viewed in a correct perspective. Mere reference to the authorities and reproduction of the principle underlining them is no! enough. For an errorless judgment what is essential is the correct application of the principles underlining the judgments relied on. 148. A Bench of three Judges deciding the case of Fine Chemicals Ltd, v. Assessing Authority 1993(67)ELT25(SC) , took a view contrary to the decisions : (1) International Cotton Corporation Pvt. Ltd. v. C.T.O. [1975]2SCR345 and (2) Indian Aluminium Cables Ltd. v. State of Haryana [1976]3SCR992 . The former was sought to be reviewed in Commissioner of Sales Tax v. Fine Chemicals Pvt. Ltd. (1995)1SCC58 . Though the latter decisions were not only referred by the Bench deciding the case of Fine Chemicals (supra), but made them ....
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....nch and thus put the law in a ferment afresh. The ratios of the Full Benches are and should be rested on surer foundations are not to be town by every side wind." 151. The Full Bench in Pritam Kaur (supra) then laid down the following parameters : (which are approvingly reproduced by the Full Bench in Rana Pratap case) "It is only within the narrow west field that a judgment of a larger Bench can be questioned for reconsideration. One of the obvious reasons is, where it is unequivocally manifest that its ratio has been impliedly overruled or whittled down by a subsequent judgment of the superior Court or a larger Bench of the same Court. Secondly, where it can be held with certainty that a co-equal Bench has laid down the law directly contrary to the same, and, thirdly where it can be conclusively said that the judgment of the larger Bench was rendered per incuriam by altogether failing to take notice of a clear-cut statutory provision or an earlier binding precedent. It is normally within these constricted parameters that a similar Bench may suggest a reconsideration of the earlier view and not otherwise. However, it is best in these matters to be neither dogmatic nor ....
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....ged the directions and then by a majority judgment, the Supreme Court held that the directions given by the Supreme Court suo motu to try the appellant by the High Court, are violative of Articles 14 and 21. The Supreme Court stated that jurisdiction can be created or enlarged only by the Legislature and not by the Supreme Court and the directions dated Feb. 16, 1984 being without jurisdiction and in contravention of the fundamental rights of the petitioner, are void. The Supreme Court also held that the directions were oblivious of the law and decisions in the case of the State of West Bengal v. Anwar Ali Sarkar 1952CriLJ510 . This judgment cannot be pressed into service by Sri Dwivedi, inasmuch as that arose from the case sought to be reviewed on ground of violation of fundamental rights, overstepping the jurisdiction and that being contrary to the earlier decision of the Supreme Court in the case of Anwar Ali Sarkar (supra). 155. Another submission of Sri Singh is that the proviso to sub-section (1) of Section 3-A of the Act having been declared ultra vires by the previous Bench goes out of the statute book and, therefore, there is nothing for the subsequent Bench for being r....
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....unal or authorities to transmit to the Court, the record of the case pending there for scrutiny or for quashing the same. When the petitioner contends that an Act or Ordinance is unconstitutional or void, proper relief for the petitioner is to ask is a declaration to that effect or to ask for a writ of mandamus restraining the concerned State or the Officers from enforcing or giving effect to the provisions of that Act or Ordinance (See Prabodh Verma v. State of U. P. [1985]1SCR216 ). It follows from this that when a provision is declared ultra vires or void, then the Court issues a writ of mandamus restraining the authorities from enforcing such provision. The Court' does not quash or repeal the provisions declared ultra vires, but simply prohibits the authorities from enforcing the same. The effect of a provision being declared void or ultra vires is that ceases to be enforceable against those against whom that is declared ultra vires or void. However, a provision despite the declaration of being void or ultra vires continues on the statute book for several purposes, e.g., for the purposes or appeal; for being included in the 9th Schedule of the Constitution or for being subj....
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....ch takes away or abridges the rights under Article 19 should remain operative even after the Constitution came into force as regards non-citizens and a post Constitution law which takes away or abridges them should not be operative as respects non-citizens. The fact that pre-Constitution law was valid when enacted can afford no reason why it should remain operative as respects non-citizens after the Constitution came into force as it became void on account of its inconsistency with the provision of Part III. Therefore, the real reason why it remains operative as against non-citizens is that is void only to extent of its inconsistency with the rights conferred under Article 19 and that its voidness is, therefore, confined to citizens, as ex hypothesis, the law became inconsistent with their fundamental rights atone. If that be so, we see no reason why a post Constitution law which takes away or abridges the rights conferred by Article 19 should not be operative in regard to non-citizens as it is void only to the ex tent of the contravention of the rights conferred on citizens, namely, those under Article 19." From such enunciation, it follows that both pre-Constitution as well as....
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.... denominations whose fundamental rights are taken away or abridged, but there is no reason why the law should be void or "still born is against those who have no fundamental rights." Sri Ambica Mills [1974]3SCR760 (supra) makes it clear that the terms : ab initio void, ultra vires, nullity, null and void or still born coined by the Courts are notional or fictional and no inference can be drawn there from that when a statutory provision is declared ultra vires, that is literally effected from the statute but despite voidness that continues to operate against those whose rights are not offended. The only effect of the declaration made by the Court that a given provision is ultra vires of the Constitution or the Act, is that it remains unenforceable, so tong as it is not revived either by way of appeal, review or by inclusion in the Ninth Schedule or by overruling in exercise of inherent powers. By declaration of being ultra vires. Court does not repeal or quash a statutory provision but simply injuncts the authorities from enforcing a provision which it has declared ultra vires against the people who are affected thereby. But that continues to remain on the statute for several purpos....
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....ticle 14 does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of attaining specific ends. What is necessary in order to pass the test of permissible classification under Article 14 is that the classification must not be "arbitrary, artificial or evasive" but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislature. 166. The question, therefore, is whether the classification made by the proviso to sub-section (1) of Section 3-A in the present case satisfies the aforesaid test or it is arbitrary and irrational and hence violative of equal protection clause in Article 14. Before embarking upon the Constitutional validity of the proviso said to be violative of Article 14. it is necessary to bear in mind certain well established principles, which have been evolved by the Courts as rules of guidance in discharge of its Constitutional function or judicial review. 167. The first rule is that there is always a presumption in favour of the constitutionality of a statute and the burden is upon him who attacks it to show that there has b....
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....s. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid." 170. The Court must, therefore, adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. If there is any possibility of abuse, then legislature may itself come forward to enact a suitable amendatory legislation. This is me essence of pragmatic approach which must guide and in spite the legislature in dealing with complex economic issues. 171. The matter at hand has to be seen in the light of the above guiding principles. 172. Let us took at the scheme of the Act first. Proviso to sub-sect ion (1) of Section 3 of the Act which was inserted by the Act of 1989 state that the proprietor of a cinema in a local area having population not exceeding one lakh may in lieu of payment under sub-section (1) pay a compounded payment to the State Government on such conditions and in such manner as may be prescribed and at such rates as the State Government may from time to time notify. This creates two classes o....
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.... of tax to the proprietor of the cinema as the development allowance. To encourage the people to invest more and more in jetting up air-cooled or air-conditioned cinema houses with a view to provide better facility to the viewers, an incentive to realise extra charge for a specified period was given which too was sought to be extended by the federation. To remove imbalance between two classes of cinemas, the Act of 1992 was enacted inserting Clause (a) and the proviso to sub-section (1) of Section 3-A. Sub-section (1) clause (a) reads as under :-- "S. 3-A (I) Notwithstanding anything contained in this Act the proprietor of a cinema may realise from the person making payment for admission to an entertainment in such cinema,-- (a) an extra charge of twenty five paise which shall be utilised for maintenance of the cinema premises : Sub-section (I) clause (a) thus entitles the proprietor of a cinema to realise from the viewers an extra charge of twenty five paise, which was later enhanced to rupee one per ticket for maintenance of cinema premises. The State Government in view of the demand of the federation decided to give some relief to the cinema owners hit....
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.... entitled to realise extra charge immediately after the expiry of the period of grant-in-aid scheme or after surrendering the benefit of grant-in-aid scheme. 177. The classification between two classes of cinemas, therefore, is not unreal, imaginary or arbitrary, but the classification is founded on intelligible differentia. 178. Then the question is whether the differentia which is the basis of the classification has rational nexus with the object sought to be achieved by the Act of 1992. The preamble of the Act of 1992 runs as follows : "An Act further to amend the U. P. Entertainment and Retting Tax Act, 1979 with a view to ensure additional facilities to the viewers of cinematography exhibition." Adverting to the statement of the objects and reasons as prefaced to the Act of 1992, Sri Singh submits that the Act of 1992 came to be passed with a view to ensure additional facility to the public visiting cinemas and, therefore, the object behind introducing clause (a) to sub-section (1) of Section 3-A is to ensure proper maintenance of the cinema houses irrespective of their location. On the other hand, Sri Dwivedi argues that the dominant object of the Act of 199....
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....ed under Section 3 of the Act, the Chief Commissioner exempted certain class of buildings, namely, new buildings for a period of five years. 182. The validity of the notification dated 31 -1-1973 was challenged on the ground that that was outside the scheme and policy of the Act and the same time discriminatory, is liable to be attack down. The argument proceeded on the assumption that the policy and object of Act can be gathered only from its preamble and the provisions contained therein and that in the instant case the preamble of the Act stated that it had been enacted to restrict the increase of rent of certain premises, situated within the limits of urban areas and the eviction of tenants therefrom and the Act has made provisions only for those purposes mentioned in the preamble, the Central Government which is only a delegation of the Parliament could not exempt totally certain new buildings from the operation for the Act. thus enabling greedy landlords to charge excessive rents and to evict at their sweet will the tenants who did not submit to their wishes. In the counter-affidavit filed for the Union Territory it was pleaded that the object of issuing the notification wa....
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....on the one hand and of the tenants on the other in a reasonable way. We do not, therefore, agree with the submission that the notification either falls outside the object and policy of the statute or is discriminatory." (Underlining mine) 183. Let us apply the principles underlining this authority to the facts of the case at hand. The question arise : (1) Does the proviso to sub-section (1) of Section 3-A advance the scheme object and purpose of the Act ? (2) Does the proviso balance the interests of recipients and non-recipients of the grant-in-aid ? If these questions tan be answered in the affirmative then it cannot be said that the differentia has no nexus with the object sought to be achieved by the Act of 1992. 184. As already pointed out, the exhibitor federation raised a demand before the State Government to part with certain percentage of entertainment tax realised from them as development allowance. This could have been given either in cash or by giving back to them the entertainment tax, realised from them in certain sercenlage. Instead of giving monetary help to the exhibitors in either manner as aforesaid, the State Government thought i....
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....te. Clause (p) of Section 2 defines tax meaning entertainment tax, betting tax or the totalizator lax, as the case may be and includes surcharge, cess, penalty or any other charge levied under this Act. 189. The submission is that applying the principle of ejusdem generis, the words 'other charge' will take colour from the preceding words, as mentioned in clause (p). The definition of the word 'tax' under clause (p) is not exhaustive but inclusive and the word tax thereunder includes surcharge, cess, penalty inter alia. He submits that the word 'charge' occurring in clause (p) means a levy, that is, in the nature of revenue receipt. The extra charge realised by the proprietor of a cinema within the meaning of the proviso to sub-section (1) of Section 3-A, says Sri Naithani. is not levied and realised by the State Government towards revenue, but that is realised only by the cinema owners to be utilised for maintenance. Such proposition cannot be disputed inasmuch as the extra charge which is realised by the cinema owners is not in the nature of a levy. 190. But the question is not the one whether the proviso refers to the extra charge which is in the na....