JUDGMENT

KULDIP SINGH, J.:- The East India Hotels Limited (the company), respondent 1 in the appeal herein, owns and runs "Oberoi Grand" - five star hotel - in the city of Calcutta . The hotel had, at the relevant time, three restaurants within its premises called the Moghul Room, the Polynesia and the Princes. The question for our consideration is whether the company is required to pay the licence fee and obtain licences, to run the said restaurants, in terms of S.443 of the Calcutta Municipal Act, 1951 (the Act). A Division Bench of the Calcutta High Court in appeal answered the question in the negative and in favour of the company. This appeal by the Calcutta Municipal Corporation (the Corporation) is against the judgment of the High Court.

2. It is not disputed that prior to the present proceedings the company has always been obtaining licences from the Corporation under S.443 of the Act in respect of the restaurants. Initially, the licence fee was Rs.250/- per annum per restaurant. The said fee was increased from time to time. The Corporation, by an order dated March 22, 1982, increased the licence fee to Rs. 15,000/- in respect of each of the places of amusement/recreation under S.443 of the Act.

3. The company challenged the increase of the licence fee to Rs. 15,000/-before the Calcutta High Court by way of a writ petition under Art. 226 of the Constitution of India. Before the learned single Judge three points were raised. It was contended that under S.218 read with Schedule IV. to the Act, the Corporation could not fix more than Rs.250/-as licence fee. The learned Judge rejected the contention on the ground that the licence fee was levied under Sec.443 of the Act to which Schedule IV to the Act has no relevance. The other points raised before the learned single Judge were that there was no valid order made by the Corporation and no opportunity of hearing was afforded to the company before enhancing the licence fee. Both these contentions were also rejected. As a consequence the learned single Judge dismissed the writ petition. The company filed appeal aginst the judgment of the learned single Judge which was heard by a Division Bench of the High Court.

4. The only point raised by the company, before the Division Bench of the High Court was neither pleaded in the writ petition nor argued before the learned single Judge. The Division Bench permitted the point to be raised on the following reasoning:-

"We permitted the learned advocate for the appellants to raise this new contention and urge the new plea as it appeared to us that the same was purely a question of law. In our view, no new facts were required to be pleaded or brought on record to enable us to consider this new contention and decide on the issue."

5. Before we state the point it would be useful to go through te provisions of Sec.443 of the Act which are as under:-

"Section 443 Licensing and control of theatres, circuses and places of public amusement. No person shall, without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, keep open any theatre, circus, cinema-house, dancing hall or other similar place of public resort, recreation or amusement.

Provided that this section shall not apply to private performances in any such place."

6. It was argued before the Division Bench of the High Court that the provisions of S.443 of the Act were not applicable to the restaurants, despite the fact that recreation/amusement in the shape of music, cabaret shows and dancing etc. was provided in such establishments. The Division Bench posed the following question for its consideration:-

"The short question before us is whether the objects " theatre, circus, cinema house, dancing hall" referred to in S.443 of the Act can or should be construed ejusdem generis and whether on such construction it is to be held that restaurant though providing items of amusement is not a place of public resort, recreation or amusement similar to a