P L D 1953 Sind 41 (PLP)

INAMULLAH, J.‑‑This is a suit for declaration that the tax of Rs. 10 per show of cinema imposed by the Municipal Corpo ration is illegal and ultra vires and for an injunction restraining the defendants or their agents from collecting the said tax from the plaintiff: The plaintiff also prays for the recovery of Rs. 8,470 which he had paid towards the said tax. The suit arises under the following circumstances. The plaintiff is the proprietor of the Ritz Cinema. The defendant framed certain rules for the recovery of Rs. 10 per show on all cinemas and theatres in the City of Karachi and got the sanction of the Provincial Government for the same. The defendants by virtue of the said rule to recover Rs. 10 per show recovered a sum of Rs. 8,470 from the plaintiff. The plaintiff has challenged the collection of this tax on various grounds. The contention of the plaintiff is that the recovery of the tax is beyond the provisions of the City of Karachi Municipal Act, 1933. The impugned Tax is in effect a tax on trade or profession and the plaintiff is already paying a tax on trade and therefore it is against the principle of taxation. The tax imposed is not a tax on entertainment and as such ultra vires the powers of the Provincial Legislature. The tax being a tax on income is not within the power of the defendant to levy. It was further contended that the Provincial Legislature had already promulgated an Act. The Bombay Entertainment Duty Act, 1923 which is applicable in Karachi and therefore the Provincial Government could not further legislate demanding a tax from the plaintiff. It was lastly contended that the amount of tax was beyond the scope of the power of the Municipal Corporation. The plaintiff had paid a sum of Rs. 8,470 for a period from May 1950 to February 1951 towards the impugned tax to the defendant. The plaintiff on the allegations mentioned above contends that this amount has been illegally realised by the defendant and that the plaintiff is entitled to recover it back. The defendant maintains that the rule framed by the Municipal Corporation was within its power and that it is legal and valid in law. The defendant raised other pleas also that the suit was not maintainable. The defendant contended that as the Corporation has been dissolved and the defendant has not been given a notice under section 80 of the C. P. C. the suit was not maintainable. The suit was barred by section 255 of the Municipal Corporation Act. and also by section 42 of the Specific Relief Act. The defendant also maintains that in view of section 56 of the Specific Relief Act no relief for injunction could be granted. The pleadings between the parties gave rise to the following issues :‑ (1) Whether the levy, imposition and the collection of the impugned tax are illegal, ultra vires, invalid, without juris diction, inoperative and void? (2) Whether the sum of Rs. 8,470 or any other sum is payable by the defendant to the plaintiff? (3) Whether the notice does not sufficiently comply with the provisions of section 255 of the Municipal Act. If so, what is the effect thereof? (4) Whether the suit is not maintainable by reasons of the dissolution of the Corporation? (5) Whether any notice under section 80 of the C.P.C., is necessary? (6) Whether the suit is barred by section 255 of the Municipal Act? (7) Whether the suit is barred by section 42, Specific Relief Act? (8) Whether relief of injunction is barred by section 56, Specific Relief Act? (9) To what reliefs the plaintiff is entitled to? (10) General. My findings are as under :‑ Issues 1, 2, S, .6, 7 and 8.‑In the nagative. Issue No. 3.‑This issue was not pressed by the learned counsel for the defendant and it is decided against the defendant. Issue No. 4.‑This issue was not pressed by the learned counsel for the defendant and it is decided against him. Issue No. 1‑This is the most important issue in the case. It raises the question whether the impugned tax was within the power of the Corporation to levy or not. The relevant section to consider in this connection is section 96 of the City of Karachi Municipal Act, 1933 which authorizes Corporation to impose taxes on property, vehicles and animals used for riding, a terminal tax and a tax on dogs kept within the city. Over and above these taxes the Corporation has a right to impose under section 96 (2)(d) any other tax which the Provincial Legislature has power under the Government of India Act, 1935 to impose in the province. Sub‑clause 3 to section 96 of the Karachi Municipal Act, 1933 has made it further clear that the Corporation cannot impose any tax which the Provincial Legislature has no power to impose in the province under the Government of India Act, 1935. Sub‑clause 3 to section 100 of the Government of India Act, 1935 empowers the Provincial Legislature to make laws for a province or any part thereof with respect to any of the matters enumerated in list 2 of the 7th Schedule. The Provincial Legislature has absolute right to make laws in respect of the items mentioned in list 2 of the 7th Schedule of the Government of India Act, 1935. Item 50 of list 2 in the 7th Schedule of Government of India Act, 1935 reads as under :‑ "taxes on luxuries, including taxes on entertainments, amuse ments, betting and gambling. The Municipal Corporation apparently relying on item 50 of the 7th Schedule of list 2 of the Government of India Act, 1935 considered it within their power under sub‑.clause 2(d) of section 96 of the Karachi Municipal Corporation Act, 1933 to impose the impugned tax. The Municipal Corporation framed the following rules and obtained the sanction of the administrator, Karachi on 26th October 1948, which were published on 27th October 1948, in Gazette of Pakistan Extraordinary. (1) "Subject to the provisions of the Act and these Rules, a uniform tax of Rs. 10 per show shall be levied on all Cinemas and theatres in the City of Karachi. (2) No tax shall be levied in respect of shows the proceeds of which are used solely for charitable purposes. (3) The tax shall be payable monthly on the first day of the month following the month for which the tax is payable. (4) A register shall be maintained in which shall be entered from time to time: (a) Names of the persons liable to pay the tax under Rule 1. (b) Description of the shows for which the said persons are liable to the said tax. (c) The amount of the tax payable and the period for which it is payable. (5) The Chief Officer of the Karachi Municipal Corporation may require any person whom he considers liable to the payment of the tax to furnish him with a written return on the prescribed form, signed by such person and such person shall be bound to comply with the said requisition within such period as the Chief Officer prescribes in that behalf. (6) Any person contravening the provisions of Rule 5 shall, on conviction be liable to pay a fine not exceeding rupees two hundred. The main contention of Mr. Sharifuddin the learned counsel for the plaintiff is that entertainment tax is a tax payable on admission to the places of entertainment. It is a tax payable by those who visit such places. It is not a tax, he contends, payable by every individual but by only those who go for enter tainment. It is not a tax, in short, payable by the owner of the Cinema. Mr. Sharifuddin contended that the words "entertainment tax" have a certain meaning. The legislature can legislate only within the scope of what entertainment tax means. If the legislature legislates beyond the scope of the meaning of the words "entertainment tax" the legislature would be acting beyond its power. His contention is that entertainment tax is a tax payable on admission to entertainment. It is not a tax payable by the owner of the Cinema. If the legislature makes it payable by the owner of the cinema it is not an entertainment tax but a tax on trade or business. Mr. Sharifuddin has relied on the dictionary meaning of the words "entertainment tax" and enactments of various countries to show what entertainment tax means. According to Whartons Law Lexicon, 14th Edition, page 371 entertainment tax means: A tax levied on payments for admission to entertainments." Entertainment tax duty is discussed under para. 681 of volume 28, Halsbury's Laws of England as under "A duty of excise is payable on all payments for admission to any place of entertainment other than those hereinafter mentioned which are specifically exempted." "Admission" means admission as a spectator or one of an audience." Mr. Sharifuddin has relied on Entertainment Tax Act of the Commonwealth and the States of Australia as given in the Book by Sir John Quick on "The Legislative Powers of the Commonwealth and the States of Australia" at page

328. It reads as under :‑ "This Act provides that there shall be on a date fixed by proclamation, levied and paid on all payments for entry or admission to any entertainment, a tax at such rate as may be declared by Parliament. No person can be admitted to an entertainment except holding a ticket stamped with a stamp denoting that the proper entertainment tax has been paid or in special cases through an approved barrier, or by means of a mechanical contrivance which can automatically register the number of persons admitted. But the ticket and barrier system may be dispensed with if the proprietor of an enter tainment has made arrangements with the Commissioner to furnish returns of the money paid or taken for admission, and has given security for payment of the tax. The following entertainments are exempt from taxation ; (1) where the entertainment is for philanthropic, religious or charitable purposes and where the whole of the takings are so applied without any charge or deduction for expenses; (2) where the entertainment is of a wholly educational character; and (3) where it is intended for the amusement of children and the charge should not exceed 6d. each." He further relies on Public Finance and National Income by Herold M. Somers. Mr. Somers at page 447 of his book under the heading "Amusement Tax" says that "all persons, whether resident or non‑resident, frequenting places of amuse ment pay the amusement taxes. Admission tax to amusement places is widely prevalent, in U. S. A. Mr. Somers, the contention is, does not mention in his book that there is any place in U. S. A. where it is payable by the owner of the places of amusement. The Bombay Entertainment Duty Act, 1923 and Bihar Entertainment Duty Act, 1937 also support this contention that the entertainment tax is payable by spectators these two Acts are reproduced by K. Venkoba Rao in his Book, `The Law Relating to Places of Entertainment and Amusement' at pages 1016 and 1033. The learned counsel contended that in these two Acts the tax that has been made payable on entertain ment is by the spectators and not by the owners. Mr. Sharifuddin also relied on 117 Law Times page 631 at page 633, Roch, J. while dealing with Entertainment Duty held: "It is to be observed that the duty is in no sense a tax upon the profits of the entertainer. but upon the expenditure or payment made by the person entertained for purposes of receiving the receipts so entertained." He contended from these observations that Entertainment tax cannot be said to be payable by the entertainer. It was further contended by the learned counsel that the present tax being tax recoverable from the proprietor of the cinema it was a tax on profession, trade or calling and therefore it came within the purview of entry 46 list 2 of the 7th Schedule of the Government of India Act, 1935. The learned counsel relied on A I R 1953 Madhya Bharat at page 145 para. 8 in support of his contention that the present tax was a tax on profession, trade or calling and therefore it came within the entry 46 of list 2 of the Government of India Act; 1935. Mr. Sharifuddin relied on A I R 1949 Nag. page 190 in support of his contention that where it was a tax on profession, trade or calling section 142‑A of the Government of India Act would apply and the Municipal Corporation could not impose a higher tax than was provided in section 142‑A of the Govern ment of India Act. The learned counsel for the plaintiff relied on the rule of interpretation of a statute as given by Jagdish Swarup in his book on the Interpretation of Indian Statutes, page

195. It reads as under :‑ When a statute uses language of doubtful import, the acting under it for a long term of years may well give an interpretation to that obscure meaning and reduce that uncertainty to a fixed rule. In other words where a legislative measure of doubtful meaning has for several years, received an interpretation which has generally been acted upon by the public, Courts should be very unwilling to change that interpretation unless they see cogent reasons for doing so. This rule applies more strongly where the measure relates not to any general principles of law, but to some technical or fiscal rule such as the registration of a document and where the interpretation which has been put upon the measure is in case of the general public. Mr. Sharifuddin contended that in view of this principle of interpretation of the Statute the Entertainment tax has been given a certain interpretation by various legislatures and there fore, the interpretation given of Entertainment tax that it is a tax payable on 'admission i.e. by spectators should be accepted. Entertainment tax cannot be given a wider meaning so as to impose a tax on the person entertaining. The legislature must confine, he contends, its legislative function and power to what entertainment tax means in the ordinary sense as illustrated by various Acts and its dictionary meaning. He has also drawn my attention to Maxwell 1946 Ed. At page 291, J. Sawrup at page 297 on Interpretation of Statutes and to a case reported in A I R 1946 Lah. page 265 that taxing enact ment should be strictly construed. Before I deal with ‑the contention of the learned counsel on the merit of the case, as mentioned above I may at the outset deal with the rule of interpretation of statute relied upon by the learned counsel for the plaintiff. He relied in the first place on the rule of Interpretation that when a statute uses languages of doubtful import and the same has received an interpretation which had generally been acted upon by the public, the Courts would be unwilling to change that interpretation unless they see cogent reasons for doing so. This rule of interpretation has no application to the present case. In the present case the learned counsel has not shown any case in which the words `taxes on entertainments' mentioned in entry 50 of list 2 of the 7th Schedule of the Government of India Act has been subject of interpretation by a Court of law. How the different legislatures of various countries have passed legislation on entertainment tax, to my mind, does not provide any basis or rule for construing or interpreting the words `taxes on entertainments'. The Rule of construction relied upon by Mr. Sharifuddin has been discussed in a Full Bench case of the Calcutta High Court reported in I L R 8 Cal: 593 at page 597 Varth, C. J. observed: "There is a very wholesome maxim of law Optimus legis interpres cansuetudo"; and Mr. Broome in his work on legal Maximo, 2nd edition, page 534, says this: "Where a Statute uses language of doubtful import the acting under it for a long term of years may well give an interpretation to that obscure meaning, and reduce that uncertain to a fixed rule." And I take it, that this principle is especially applicable, where the subject of interpretation is a matter of everyday occurrence. And when we find, that for a series of eight or ten years, a law which imposes a heavy tax upon litigation has received a particular interpretation in favour of the suitor, and a course of practice has prevailed for years, throughout the whole country, in accordance with that interpretation. I think that any Court of Justice ought to be very slow in changing that interpretation or course of practice to the prejudice of the suitor, unless it sees clear and weighty reasons for so doing." This rule of interpretation relates to the interpretation given by Courts of Law and not by legislative enactments. The second rule of construction of statute on which the learned counsel has relied is that statutes which impose pecuniary burdens are to be strictly construed. There is no doubt that taxing enactments should be strictly construed. The rule of law further no doubt is that the Court ought not to restrain the language of the taxing act against the tax‑payers. This rule of interpretation again, in my opinion, has no application to the present question in issue. This rule would have been applicable if the rule framed by the Municipal Corporation levying the entertainment tax was subject of interpretation. In interpreting that rule Court would have adopted that consideration which was favourable to the subject. In the present case what has to be considered is the power and the scope of the legislature to pass enactment relating to "taxes on entertainment. I have given my careful consideration to the contention of the learned counsel Mr. Sharifuddin and I have come to the conclusion for various reasons that the Municipal Corporation was within its power to levy an entertainment tax of the nature that it has done. It is necessary to refer to two decisions of the Federal Court which lay down the mode of approach which should be followed by a Court of Law in constructing or construing the Entries in the various lists in Schedule

7. In the case of the United Provinces v. Mst. Atiqa Begum (AIR 1941 F C 61) the facts were that in view of unprecedented fall in the prices of agricultural produce the United Provinces Government directed a remission in the rents payable by tenants to their landlords. This remission was however declared by the High Court as inopera tive and being in contravention of the provisions of the Agra Tenancy Act, 1926. In 1938 the Provincial Legislature passed the Regulation of Remissions Act which precluded any question of the validity of these orders of remission being raised in Courts. This Act was held by a Full Bench of the Allababad High Court to be ultra vices the legislative power of the Provincial legislature. One of the contentions raised on behalf of the Government was that the impugned Act was with respect to the collections of rent. The impugned Act was in respect of the "collections of rents" within the meaning of Entry 21 of list 2 and was not the less so because it related to remission of rent. The contention on behalf of the respondent however was that words "collections of rents" in entry 21 did not cover remission of rents. When dealing with this question the following observations were made by the learned C. J. Sir Maurice Gwyer : "The subjects dealt with in the three legislative lists are not always set out with scientific definition. It would be practically impossible for example to define each item in the Provincial List in such a way as to make it exclusive of every other item in that list, and Parliament seems to have been content to take a number of comprehensive categories and to describe each of them by a word of broad and general import. In the case of some of these categories, such as "Local Government," "Education," "Water," "Agriculture" and "Land", the general word is amplified and explained by a number of examples or illustrations, some of which would probably on any construction have been held to fall under the more general, word, while the inclusion of others might not be so obvious. Thus "Court of Wards" and "treasure trove" might not ordinarily have been regarded as included under "Land," if they had not been specifically mentioned in item

21. I think however that none of the items in the list is to be read in a narrow or restricted sense, and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. I deprecate any attempt to enumerate in advance all the matters which are to be included under any of the more general descriptions ; it will be sufficient and much wiser to determine each case as and when it comes before this Court. I am moved to make this observation because of a passage in the judgment of Iqbal Ahmad, J. in which he says: "By the authority given to it to make laws about the "collection of rents" the Provincial Legislature is in my judgment authorised to provide about payment of rent in cash or in kind ; to fix the instalments in which rent is to be collected, to make provision about abatement or enhance ment of rent, to prescrible the conditions under which the rent may be remitted, to regulate the method by which rent is to be collected and to legislate about kindred matters. The impugned Act, however, is not with respect to any such matter. It is therefore outside the scope of Entry 21 of the Provincial List." I do not know why the learned Judge should assume that the list of illustrations which he gives is necessarily exhaustive. I agree that if it were, his conclusion might follow logically from his premises ; but such a priori assumptions are a dangerous guide for the construing of a statute. The general descriptive words in item 21 include "the collection of rents" ; and if a Provincial Legislature with respect to the collection of rents, it must also have power to legislate with respect to limitation on the power of a landlord to collect rents, that is to say, with respect to the remission of rents as well as to their collection. Item 22 of the Provincial List is "forests". Could it reasonably be argued that the power to legislate with respect to forests did not include a power to legislate with respect not only to forestation but also to dis‑afforestation? Item 24 is "fisheries" ; could it reasonably be argued that this only included the regulation of fishing itself and did not include the prohibition of fishing altogether in particular places or at particular times? I have no doubt that legislation with respect to the remission of rents in legislation with respect to a matter included in item 214". In the same case the following observation was made by Sir Shah Suleman :‑ "It is true that the three lists even if taken together may not prove to be absolutely exhaustive. As legislation can cover a very wide range, it is quite possible to conceive of cases which are not comprised in any of the lists. It was with the consciousness of this possibility that provision as to residual power of legislation was made in section 104 which assumes that there may be a matter with respect to which a law may be enacted, which is not enumerated in the lists of Schedule

7. But the lists are so comprehensive that apart from personal laws it would be only extremely rare cases which would not be covered by them at all." In the case of Bhola Prasad v. The King‑Emperor reported in (AIR 1942 F C 17), it was held that the power to legislate with respect to intoxicating liquor, unless the meaning of the words used is restricted or controlled by the tax or other provisions of the Act, includes the power to prohibit intoxicating liquors throughout the province or in any specified part of the province. The learned Chief Justice Sir Maurice Gwyer made the following observations :‑ "We must again refer to the fundamental proposition enunciated in (1878) 3 A C 889 that Indian Legislatures with their own sphere have plenary powers of legislation as large and of the same nature as those of Parliament itself. If that was true in 1878, it cannot be less true in 1942. Every intend ment ought therefore to be made in favour of a Legislature which is exercising the powers conferred on it. Its enact ments ought not to be subjected to the minute scrutiny which may be appropriate to an examination of the by‑laws of a body exercising only delegated powers, nor is the generality of its power to legislate on a particular subject to be cut down by the arbitrary introduction of far‑fetched and impertinent limitations. It was even contended on behalf of the appellant that the specifying of a particular subject -matter of legislation necessarily indicated the intention of Parliament that that subject‑matter should be preserved, since, unless it were preserved there would be no subject- matter about which to legislate. This argument is sufficiently refuted by the presence in List 2 of such legislative subject as "unemployment" in entry No. 32 or "gambling" in entry No. 36." It is clear from these two well‑known cases of the Federal Court that none of the items in the lists to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which, can fairly and reasonably be said to be comprehended in it. Keeping the above principle of interpretation as laid down by their lordships of the Federal Court "taxes on entertainments" has not to be read in a narrow or restricted sense. Taxes on entertainment, to my mind, cannot be said to be only taxed recoverable on admission by spectators. A tax so long as it is levied on an entertainment as in the present case on cinema whether the same is recoverable from the spectators or the person running the entertainment or show, would be Entertain ment Tax within the scope of the general words as used it Item 50 of the Provincial Legislative List. In my opinion the question of payment by the spectator or the owner of the cinema is beside the point so long as it can be held reasonably that the impugned tax is a tax on entertainment. Rule 1 of the Impugned Rules makes it abundantly clear that the tax in question is a tax on entertainment. Rule 1 reads as under :‑ "Subject to the provisions of the Act and these rules a uniform tax of Rs. 10 per show shall be levied on all cinemas and theatres in the City of Karachi." A tax of Rs. 10 per show on places of entertainment and amusements is, therefore, within the meaning of Item 50 of the Provincial Legislative List‑Entertainment Tax. In the present case the tax of Rs. 10 per show, is directly, to my mind, an entertainment. tax under the rules framed by the Municipal Corporation. Moreover, the question of this tax being ancillary or subsidiary to the general words also does not arise. It would be confusing the issue if we were to consider the question of the persons from whom the tax is recoverable or payable. The main question, as I have already dealt with above, is whether the Impugned Tax is a tax on entertainment or not. There is no doubt that cinema is a place of entertain ment and any tax thereon would be a tax on entertainment. The impugned tax being recoverable from the proprietor of the cinema, it is contended, is a tax on profession or calling. On the basis of this proposition three‑fold conten tion is advanced. In the first place it is contended that the tax being a tax on income it was beyond the competence of the Provincial Legislature to legislate. It falls within Entry No. 54 of the Federal Legislative List. Entry No. 54 of the Federal Legislative List deals with "taxes on income other than agricultural income." In the second place, it is contend ed that the present tax amounts to double taxation inasmuch as the plaintiff is liable to be taxed under the Income‑tax Act. In the third place it was contended that at any rate the present tax fell within the Entry No. 46 of the Legislative List. The Municipal Corporation therefore by virtue of section 142‑A of the Government of India Act could not levy the impugned tax for more than Rs. 50 per year. In order to determine these questions what has to be considered is whether the impugned tax is a tax on income or not. I am clearly of the opinion that the impugned tax is not a tax on income. The word "income" is not defined under the Government of India Act. In my opinion what approach ed most nearly to an authoritative definition of the word "income" has been given by their Lordships of the Judicial Committee in the case of Shaw Wallace & Co. Ltd. reported in (59 I A 206). The definition of the word "income" no doubt was given in relation to the Income‑tax Act. In my opinion this definition can be treated to be a general definition of the word "income" for all intent and purposes. Their Lordships observed :‑ "Income, their Lordships think, in this Act connotes a periodical monetary return coming in with some sort of regularity or unexpected regularity from definite sources." In the ordinary dictionary meaning of the word "income" means "the gain which proceeds from labour business property or capital." It cannot be said, keeping the above meaning of the word "income" in view, that the present tax of Rs. 10 per show is a tax on income. The said tax of Rs. 10 is not a tax on any monetary return or on gain from business or property. The tax of Rs. 10 per day's show is payable irrespective of the fact whether there is any income or not. The point would be clear by taking an example, though an extreme one. A certain cinema‑house performed only one show in the whole year and for some reason or other no spectator turned up. It is obvious that though there was no income but the tax under the impugned rules would be payable to the Municipal Corporation. The Cinema proprietor, on the other hand, would not be liable to pay any income‑tax as there was no income. The impugned tax is a sort of fee which one has to pay for the performance of the show. In view of what I have mentioned above the first two questions" do not arise. The tax of Rs. 10 per show is not a tax on income. The contention that the present tax fell within the Entry No. 46 of the Provincial Legislative List the Municipal Corporation could not tax more than Rs. 50 also has no force. In the present case what has to be seen is whether the Provincial Legislature was competent to legislate so as to impose a tax of Rs. 10 per show on all cinemas or not. The power to legislate has been given to the Provincial Legisla ture by sub‑clause 3 of section 100 of the Constitution Act. The Provincial Legislature under the said section has "power to make laws for a province or any part thereof with respect to any of the matters enumerated in List 2" of the 7th Sched ule. The power to legislate has been given to Provincial Legislature, it is obvious, in respect of any of the matters enumerated in List 2 of the 7th Schedule. The section contemplates that the Provincial Legislature has power to legislate on any of the entries given in the Legislative List. Where a certain legislation is challenged on the ground that the Provincial Legislature has no power to legislate that particular Act what has to be seen, in my opinion, is whether the act falls within the Entry enumerated in list 2 of the 7th Schedule under which the Legislature purported to act. I may here refer to the fundamental proposition enunciated in the Queen v. Burah ((1878) 3 A C 659) that Indian Legislatures within their own sphere have plenary powers of legislation as large and of the same nature as those of Parliament itself. If that was true in 1878 it cannot be less true today. If the Provincial Legislature could validly legislate to levy a tax of Rs. 10 per show and has so acted it is beyond the competence of any Court of Law to hold that the particular legislation did not fall within the entry of the Legislative Power under which the Legislature purported to act but the act falls under a different entry. It may be that a particular legislation falls within two different entries of the Legislative List but the Court of Law cannot substitute its own judgment for that of the legislature and hold that the legislature has not acted under the entry under which it purported to act but under another entry of the list. In the present case the only question under section 96 (2) (d) of the Municipal Corporation Act was whether the Provincial Legislature had power to impose a tax of the nature that the Municipal Corporation has done. The Provincial Legislature could do so under Entry No. 50 of the Provincial Legislative List. It is not for this Court to limit the power of the legislature by bringing the taxation under any other entry under which it has no power to pass such a legislation. The Provincial Legislature obviously could not pass the present tax under Entry 46 of the Provincial Legislative List as the same was controlled by section 142‑A of the Constitu tion Act under which the annual tax could not exceed a certain amount given thereunder. Mr. Sharifuddin, the learned counsel for the Plaintiff has relied on two cases in support of his contention that the present tax being a tax on calling or profession, the Provincial Legislature would act under Entry 46 of the Provincial Legislative List and therefore could not tax more than Rs. 50 per year. He has relied on A I R 1949 Nagpur page 190 and A I R 1953 Madhya Bharat

145. In my opinion the case of the Nagpur High Court has no application to the present case. In that case a tax was imposed by the District Council of Bhandara at the rate of one anna per Khandi on persons carrying on the trade of husking, milling or grinding of grains. It was held in that case that it was a tax on profession, trade or calling within the meaning of section 142‑A of the Constitu tion Act. The District Council in that case did not contend that case did not contend that the pr9rported rule could fall within Item 50 of the Legislative List. In that case obviously the legislature could act only under Entry 46 of the Legislative List and therefore it was controlled by section 142‑A of the Constitution Act. The case of the Madhya Bharat no doubt is more to the point but with great respect to the learned Judges of that Court I do not agree with their opinion. The applicants in that case were cinema owners. They applied to the Madhya Bharat High Court under Article 226 of the Indian Constitution challenging the imposition of a performance tax at the rate of Rs. 5 for each show. Their Lordships in that case held that the impugned tax was a tax on calling and therefore it was subject to Article 246 of the Constitution Act which is almost equivalent to section 142‑A of the Government of Indian Act, 1935. Their lordships in that case did not consider the question that the legislature purported to act under Entry 50 of the Legislative List and not under Entry 46 of the list. The Court as I have already mentioned above cannot substitute its own judgment so as to limit the power of legislation of the legislature by bringing the impugned Act within another entry under which the legis lature did not purport to act. The corresponding entries in the Constitution of India are Entries 60 and 62 of List 2 of the 7th Schedule. In my opinion, I must say with great respect to the learned Judges of that Court, that the impugned rules came within Entry 60 and 62 and the Provincial Legislature could legislate as regards taxes on entertainment and it was not open to the Court to limit the power of the legislature by bringing the legislation under another Entry No. 60 of the Legislative List. If the interpretation that has been given by the learned Judges of that Court is accepted the legislature can never legislate under Entry 50 of the Legislative List in respect of "entertainments or amusements". It was also contended by the learned counsel for the plaintiff that as there is the Bombay Entertainments Duty Act, 1923 which is applicable in Karachi the Municipal Corporation could no; levy the present tax. I have not been shown any law under which, the present tax by the Municipal Corporation could not be imposed because there is in existence a Provincial Act for Entertainment! Duty. In my opinion the Bombay Entertainments Duty Act) 1923 does not in any way debar the Municipal Corporation from imposing a tax as it has done. It has such a power under, section 96 (2)(d) of the Municipal Corporation Act. I therefore hold for the reasons given above that the levy, imposition and; the collection of the impugned tax is legal, intra vires, valid ands not without jurisdiction, and inoperative. Issue No. 2.‑In view of my finding on Issue No. 1 the Plaintiff is not entitled to the sum of Rs. 8,

470. Issue No. 3.‑This issue was not pressed by the learned counsel for the defendant. It is accordingly decided against the defendant. Issue No. 4.‑This issue was not pressed by the learned counsel for the defendant. It is decided against the defendant. Issue No. 5.‑It was contended by the learned counsel for the Municipal Corporation that the Corporation having been superseded the powers and duties are exercised and performed by the Municipal Commissioner who is a public officer and as such entitled to a notice under section 80, C. P. C. In the absence of such a notice under section 80, C. P. C. the suit was not main tainable. This contention has no force. Section 80, C. P. C. has no application. The section is applicable when the plaintiff complains against any act done by the public officer in his official capacity. In the present case as would appear from the Notification of the 26th October 1948, the rules were framed and published by the Karachi Municipal Corporation and not by the Municipal Commissioner, Mr. Howroyd. In the present case the plaintiff does not challenge any act that may have been done by the Municipal Commissioner Mr. Howroyd in his official capacity. In a Calcutta case reported in 1935 A I R 726 where the assessment complained of was made by the Municipality and the suit was filed against a public officer who happened to be performing the duties of the Commissioner after the supersession of the Municipality it was held that section 80, C. P. C. was not applicable as the act complained of was done by the Munici pality. Another important question for consideration in this connec tion is if a public officer within the meaning of section 2, C. P. C. happened to be performing the functions of the Municipal Corpora tion by virtue of section 280 of the Municipal Act has sub‑clause 2 of section 255 of the Municipal Act no application. The question in other words is if any act of the Municipal Commissioner who, if conceded to be a public officer, is challenged is the period of limitation to file a suit against him extended beyond what is given under sub‑clause 2 of section

255. In my opinion no such burden is cast upon litigant public if he wishes to challenge any act performed by a public officer who is primarily a Municipal Officer. It cannot be denied that the Municipal Commissioner though he may be a public officer is a Municipal Officer for the purposes of the Munici pal Act. If the act of such Municipal Officer is questioned in a Court of Law sub‑clause 2 of section 255 of the Municipal Act would apply. If section 80 of the C. P. C. has application under such circumstances section 255 of the Municipal Act becomes nugatory. Section 80 of the C. P. C. is controlled, in my opinion, by section 4 of the C. P. C. Section 4 of the C. P. C. lays down in clear words that nothing contained in the C. P. C. would limit or otherwise affect anything contained in any special or local law or any special jurisdiction or power conferred or any special form of procedure prescribed by or under any other law for the time being in force. Section 255 of the Municipal Act provides a special procedure to be followed when a suit is to be filed against a Municipal Officer. Section 255 of the Act confers a special right on the public for speedy remedy against any illegal act of the Municipal Officer. This right is not taken away by' section 80 of the C. P. C., in view of section 4 of the C. P. C. Section 4 of the C. P. C., is of very wide import. It is noteworthy that the present section is wider than the corresponding section' of the old Code. While the latter saved certain Acts specifically mentioned therein this section generally saves any special or; local law or any special jurisdiction conferred or any special form of procedure prescribed by or under any other law. There, will be great inconsistency, in my opinion, if section 80 of the C. P. C. was applicable as sub‑clause 2 of section 255 of the Municipal Act would become nugatory. There is therefore a conflict between the Special Act and the C. P. C. and the C procedure prescribed in the Special Act would prevail. It was not contended by the defendant that the Municipal Act, 1933 did not apply after the supersession order passed under section 280 of the Municipal Act. The decision of the Privy Council in Bhagchand (AIR 1927 P C 176) has no application to the facts of the present case. In that case the question of conflict between the Special Act and the C. P. C. did not arise and the provision of section 4 of the C. P. C. was not considered. Beaumont, C. J. observed in the case of Collector of Bombay reported in (A I R 1934 Bom. 162): "It is a well established principle resting on decided cases and recognised in section 4 of the C. P. C. itself that where there is a conflict between a Special Act and a General Act the provisions in Special Act prevail." In that case it was contended on behalf of the Collector that as he was a public servant lie was entitled to a notice under section 80, C. P. C. The suit was brought within 30 days of the order passed by the Collector under the Bombay Land Revenue Act. It was held by the learned Judges in that case that the suit was brought under the special provisions of that Act and the general provision of section 80 did not apply to that suit. The case of Mst. Iqbal Begum reported in (P L D 1952 Lah. 380), where it was held that the Administrator of a Municipality was a Public Officer and section 80, C. P. C. applied, has no application for the reasons given to the present case. I hold therefore that notice under section 80 of the C. P. C. was not necessary. Issue No. 6 ‑The contention of the learned counsel for the Municipal Corporation is that according to the allegation in the plaint the cause of action arose in March 1951, as the plaintiff paid the impugned tax in February 1951. Under section " (1) (a) of the Municipal Act, 1933 the suit should have commenced within 6 months next after the accrual of the cause of action. The present suit according to the contention of the learned counsel for the defendant was filed on 6th June 1952 much after the statutory period given under section 255 of the Karachi Municipal Act, 1933. The plaintiff therefore is not entitled to file the present suit. The contention of the learned counsel for the plaintiff in the first place is that the cause of action is, a recurring cause of action as impugned tax is payable from day today and as such he is entitled to challenge the validity of the rules framed by the Municipal Corporation. Mr. Sharifuddin the learned counsel for the plaintiff relies on a Division Bench ruling of the Calcutta High Court reported in 2 Weekly Notes, page

689. It was contended in that case that the suit was filed beyond 3 months of the cause of action. In that case the suit was filed beyond 3 months of the assessment made by the Municipality. The learned Judges of the Calcutta High Court held that the declaration sought in that case was that the plaintiffs were not assessable under the Act and this cause of action was a recurring one and therefore the suit was maintainable. In the present case also the plaintiff challenges the right of the Municipality to frame the rule under which he is called upon to make the payment, The cause of action in the present case being that the defendant could not levy the tax which the plaintiff has to pay from day to day on every show of the cinema. In the second place it was contended by the plaintiff that the amount paid under protest is recoverable even if the suit is filed after the period of 6 months. The learned counsel relied upon a Division Bench ruling of the Patna High Court reported in 96 Indian Cases, page

444. In the present case also the amount was paid as alleged by the plaintiff in para. 2 of the plaint under protest. It is also contended by the learned counsel for the plaintiff that when the suit is to recover a certain amount of money on the ground that it was illegally levied Article 62 of the Limitation Act applies. The learned counsel has relied on a case reported in A I R 1940 Born. page 252 in which under similar circum stances it was held that Article 62 was applicable when the suit was for the money paid to the Municipality which had imposed an illegal tax. I hold for the reasons given above that the suit was within time. Issue No. 7.‑It was contended by the learned counsel for the defendant under this issue that the plaintiff should have prayed for a declaration that the rule framed by the Municipal Corporation imposing the impugned tax was illegal. In the absence of such prayer it was contended that the proviso to section 42 of the Specific Relief Act applied, inasmuch as the plaintiff failed to ask for further relief to which he was entitled. This contention has no force. The relief prayed for under the plaint is very clear and no further declaration regarding the rules was necessary. The relief reads as under: "For a declaration that the levy, imposition, collection and recovery of the tax by the defendant under the Notification dated 26th October 1948. is illegal, ultra vires, without jurisdiction. inoperative anti void." If the relief prayed for is granted tic plaintiff does not need any further relief in order that he may not pay the imposed tax of Rs. 10 per show. I therefore hold that the suit is not barred by section 42 of the Specific Relief Act. Issue No. 8.‑It was contended by the learned counsel for the defendant that the suit was barred under section 56 (d) and (i) of the Specific Relief Act. There is no force in this contention. The learned counsel has failed to show me any authority under which such a relief as prayed in the present case was barred. The learned counsel has also failed to show‑ any reason why the suit was barred under the said clauses of section 56 of the Specific Relief Act. Mr. Sharifuddin the learned counsel for the plaintiff, on the other hand, relied on a Full Bench case of the Lahore High Court reported in A I R 1940 page

377. It was held in that case that where the plaintiff prayed for injunction on the ground that a certain tax imposed by the Municipality was illegal, the plaintiff could be granted perpetual injunction under section 56 of the Specific Relief Act. The case reported in A I R 1949 All. page 301 also supports the contention of the learned counsel for the plaintiff that the Court could grant an injunction against a Municipality in the circumstances of the present case. I hold there fore that the suit is not barred by the provisions of section 56 of the Specific Relief Act. Issue No. 9.‑The plaintiff is not entitled to any relief. The suit is dismissed with costs. A.H. Suit dismissed.