Judgment

S. R. DAS, CJI. : This is an appeal from the judgment and decree of the High Court of Bombay dated February 10, 1953, setting aside the judgment and decree of the Court of Civil Judge, Senior Division, Poona dated July 31, 1951, in Special Suit No. 89 of 1950 and dismissing the appellants suit against the respondent with costs throughout. This appeal has been filed under a certificate of fitness granted by the High Court of Bombay.

2. The facts leading up to this appeal may shortly be stated. The appellant is a Public limited company registered under the Indian Companies Act, 1913. It is a lessee of two cinema Houses known respectively as "West End" and "Capitol" situated within the limits of Poona cantonment area. It exhibits in the said two Houses cinematography films both foreign and Indian.

3. On March 20, 1947,a notice was issued by the respondent whereby, in exercise of the powers conferred on it by S. 60 of the Cantonments Act, 1924 (II of 1924), the respondent proposed to make, with the previous sanction of the Central Government certain amendments in the notification of the Government of Bombay in the General Department No. 4160 dated June 17, 1918, and intimated that the draft amendments would be considered by the respondent on or after April 21, 1947, and invited objection in writing within 30 days from the publication of that notice. One of the items of amendments was as follows:

"(ii) V-Tax on Entertainments

1. Cinemas, Talkies or dramas Rs. 5-0-0 | per

Rs. 10-0-0 | show

2. Circus Rs. 2-0-0 per show

3. Horse Races Rs. 100-0-0 per day of race meetings

4. Amusement park Rs. 20-0-0 per day.

provided as follows :-

1. The said tax shall be levied at the rate of as.10-0-0 per show in the case of the West End and Capitol Talkies and at the rate of Rs. 5-0-0 per show in other cases.

It appears that the Cinematograph Exhibitors Association of India submitted certain objections to the proposals. The Cantonment Executive Officer, Poona, by his letter dated July 8, 1947, informed the Secretary of the Cinematograph Exhibitors Association of India that the latter s letter had been submitted to the Government of India in original along with the respondents proposals and that the imposition of the entertainment tax on cinemas had been approved by the Government of India, Defence Department notification No. 1463 dated May 7, 1947. On June 17, 1948, a notification was issued by the Government of Bombay to the effect that in supersession of the notifications of Government noted on the margin and of all other notifications on the same subject, the Governor-in-Council, with the previous sanction of the Governor General-in-Council, was pleased to impose certain taxes in the Cantonment of Poona with effect from July 15, 1948. One of the taxes thus imposed was as follows:

"V Tax on entertainments.

1. Cinemas, Talkies or dramas Rs. 10-0-0

in the case of the West End and Capitol per show

In other cases Rs 5-0-0 per show

2. Circus Rs. 2-0-0 per show

3. Horse Races Rs. 100-0-0 per day of race meetings

4. Amusement park Rs. 20-0-0 per day."

4. The appellant paid the tax under protest and on or about April 19, 1950, filed a suit (being suit No. 89 of 1950) against the respondent in the Court of the Civil Judge, Senior Division, Poona for a declaration that the levy, collection or recovery of the said tax by the respondent was illegal and invalid, for a permanent injunction restraining the respondent from levying, collecting or recovering the said tax, for refund of the sum of Rs. 45,802-0-0- being the total amount of tax collected from the appellant, for costs and interest on judgment. By its judgment dated July 31, 1951, the trial Court decreed the suit in full. The respondent preferred an appeal before the High Court against the said judgment and decree of the trial court and the High Court by its judgment and decree dated February 10, 1953, allowed the appeal and dismissed the appellant s suit with costs throughout. The High Court, ho