D.K. Sen, J.
1. The East India Hotels Limited, the appellant No. 1, an existing company within meaning of the Companies Act, 1956, carries on business, inter alia, of running hotels and restaurants in India. In its said business, the appellant 1 owns and runs a hotel known as 'Oberoi Grand' situated at No. 15, Jawaharlal Nehru Road, Calcutta. The said hotel is classified as a Five Star hotel in the Government classification list and caters, inter alia, to foreign tourists.
2. The appellant 1 provides lodging and meals in the said hotel and serves alcoholic beverages. In order to maintain its standard as required in its classification, the hotel has three restaurants within its premises known respectively as the Moghul Room, the Polynesia and the Princes.
3. It is not in dispute that in the said restaurants the appellant 1 provides music and items of amusement like floor shows and cabarets especially on particular occasions like Christmas eve and new year's eve. It is also not in dispute that the said restaurants are open to persons other than the residents of the hotel.
4. At all material times, prior to the present proceeding, the appellant No. 1 had applied for and obtained licences from the Corporation of Calcutta, the respondent No. 1, under Section 443 of the Calcutta Municipal Act, 1951 for running the said restaurants. Initially the fee for such licence in respect of each restaurant was fixed at Rs. 250/- per annum by the respondent No. 1. Subsequently the said fee was increased from time to time up to Rs. 5,000/- per annum for each restaurant. The appellant contended that it was entitled to run the said three restaurants under one licence and that the respondent No. 1 was not entitled to issue and charge for three different licences and paid the licence fees fixed by the respondent No. 1 under protest.
5.The Administrator of the Corporation of Calcutta, the respondent No. 2, passed an order on 22nd Mar., 1982 by which the respondent No. 2 increased the fees for licence under Section 443 of the said Act under Section 548(2) thereof as follows :
Licence fees for any dancing floor or any restaurant or any bar with items of any amusements/ music etc. situated inside the hotel.
Rate per annum per such dancing hall or restaurant or bar Rs.15,000.
6. Subsequently, the appellant No. 1 received three several notices all dt. 5th May, 1982, from the respondent No. 2 where it was stated that on 22nd March, 1982 the respondent No. 2 had revised the licence fees under Section 443 read with Section 548(2) of the said Act for the year 1982-83 with effect from 1st April, 1982 in the following manner :
Rate per annum
(a)Licence fees for hotels having dancing floors/ restaurants (with or without bar) with items of music, amusements etc.
(a) Rs. 15,000/-(b)Licence fees for restaurants (with bar) with items of musics, amusements etc.
(b) Rs. 5,000/-(c)Licence fees for restaurant (without bar) with items of amusements and music etc.(c) Rs. 2,400/-
7. By the said notices the appellant 1 was required to make immediate payment in respect of its hotel and restaurants as fixed.
8. By its letter dt. 12th May, 1982, the appellant 1 asked for clarification from the officer concerned of the respondent 1 whether in view of the revised licence fees the appellant 1 was required to take out one licence for all the restaurants or separatelicence for each such restaurant. The appellant 1 tendered licence fees at the previous rate under cover of the said letter. By its letter dt. 24th May, 1982, the Deputy Commissioner of Corporation of Calcutta, the respondent 4, informed the appellant 1 that the respondent No. 2 has revised the licence fees under the said Act as he was empowered to do so: The appellant 1 was further informed that it was liable to pay licence fees for all dancing halls or other place of public resort in the said hotel separately and individually as each such places or hall constituted a. separate places for recreation or amusement within meaning of Section 443 of the Act. The appellant 1 was called upon to obtain necessary licences on payment of requisite fees. The fees tendered by the appellant 1 at the previous rates were returned.
9. Subsequently by an order passed on 23rd Sept., 1982 the respondent 2 modified his previous order dt. the 22nd Mar., 1982 as follows :
Licence fees for any dancing floor or any bar with items of any amusements/music etc. situated inside a hotel.
Rate per annum per such dancing hall or restaurant or bar Rs. 15,000.
10. The said modification was published, interalia, in the daily Newspaper 'Statesman' on the 9th Nov., 1982.
11. Thereafter further correspondence passed between the appellant 1 and the respondent 1 and ultimately the Amusement Officer of the respondent 1, the respondent 5, issued a letter to the appellant 1 on 22nd Dec., 1982 setting out the modified order of the respondent No. 2dt. 23rd Sept., 1982and called upon the appellant 1 to remit the licence fees at the rate of Rs. 15,000/- in respect of the restaurants Polynesia, Moghul Room and the Ball Room at the rate of Rs. 15,000/- and further performance fees in the said places proposed to be held on 24th and 31st Dec., 1982 at the rate of Rs. 500/- per night.
12. Being aggrieved by the aforesaid, the appellant No. 1 along with one Satyabrata Roy, a shareholder of appellant 1, theappellant 2, moved this Court under Article 226 of the Constitution. A rule was issued on the said application which was marked as Matter No. 1327 of 1982 on 24th Dec., 1982.
13. It was contended in the petition by the appellants, inter alia, as follows :
(a) Assuming but not admitting that the said notifications respectively dt. 22nd March and the 23rd Sept., 1982 were valid, the appellant 1 was not liable to pay any licence fee over Rs. 15,000/- inasmuch as the said three restaurants were situated at and were run in the hotel in the same premises.
(b) The fixation of licence fees by the Administrator, Corporation of Calcutta at Rs. 15,000/- in modification of the fee fixed earlier at Rs. 5,000/- was excessive, expropria tary and illegal. The Administrator had no jurisdiction to increase the fee by 300% without amending the provisions of the Calcutta Municipal Act, 1951.
(c) The alteration or amendment of the fees was illegal and without jurisdiction and in particular beyond the jurisdiction of the Administrator.
(d) The Administrator was not authorised to increase any fee or tax arbitrarily and without giving any opportunity to the licence holders for making representations.
(e) The said increase in the fees was ultra vires the provisions of the Calcutta Municipal Act, 1951.
(f) Under the Calcutta Municipal Act, 195 land, in particular the Schedule VI thereto, a licence fee of Rs. 250/- had been provided for payment by a hotelkeeper under entry No. 17 and the said entry had not been amended before a Iteration of the licence fee.
14. The appellants prayed for a writ in the nature of certiorari calling upon the respondents to send up to this Court all records so that the three notices respectively dt. 5th May and 9th Nov., 1982 be quashed. The appellants prayed further for a writ in the nature of mandamus directing the respondents to cancel or set aside or withdraw the said notices and not to give any or further effect thereto. A further writ in the nature of mandamus directing the respondents to issue licences to the appellantagainst payment of the earlier fee ofRs. 5,000/- or upon payment of aconsolidated sum of Rs. 15,000/- was alsosought.
15. The Corporation of Calcutta and the authorities under the Corporation appeared and opposed the application. Amal Kumar Roy, the Amusement Officer of the Corporation, affirmed an affidavit on 2nd March, 1983 which was filed in opposition to the petition. It was contended in the said affidavit, inter alia, that under the provisions of Calcutta Municipal Act, 1951, three separate licences were required to be obtained in respect of hotels and restaurants with dancing floor or other provisions for amusement. The first was a trade licence required to be taken out under Section 218 of the Act. The second was a health licence which was required to be taken out under Section 442 of the said Act and a third licence was also required to be obtained under Section 443 of the Act read with Section 548(2) thereof.
16. It was contended that fees for the trade licence and the health licence were fixed respectively by the provisions of Schedule IV of the Act and Section 442. Section 443 of the Act however did not prescribe any fees and the same had to be fixed by the Corporation of Calcutta under Section 548(2) of the Act.
17. It was contended that the Corporation, as empowered by Section 548(2) of the said Act, had from time to time revised the fees required for licence under Section 443 of the said Act. It was contended that the said revised licence fees had been made applicable to all hotels and restaurants most of which had paid such revised fees.
18. It was contended that the appellants were called upon to take out three separate licences in respect of the three restaurants viz. the Moghul Room, the Polynesia and the Princes inasmuch as the same were independent set-ups being completely separate from each other except that they had a common owner. It was alleged that the said hotel provided entertainment by way of cabaret and for entry to the cabaret room a separate charge for admission was imposed.
19. It was alleged that the hotel alsocontained a Ball Room which was sometime used as Bar or a restaurant.
20. It was contended that the appellants were liable to pay the licence fees for each of the said restaurants because they constituted separate places of recreation or amusement within the meaning of Section 443 of the Act. The other contentions of the appellants in their petition were disputed and the allegations denied. In particular, it was denied that the Administrator had no jurisdiction or authority to vary the fees for issue of licences under Section 443 of the said Act or that the said increase in fees was illegal, void, excessive or expropriatary. It was denied that the increase in the fees was ultra vires the provisions of the Act.
21. Mr. Satya Brata Roy, the appellant 2, affirmed an affidavit sometime in April, 1983 which was filed in reply to the aforesaid affidavit of Amal Kumar Roy. In this affidavit, the allegations and the contentions in the petition were reiterated. It was further alleged that there was no cabaret show in the said hotel or in the said restaurants except on 24th and 31st Dec. of each year. The said cabaret shows were held only in the two restaurants being the Princes and the Moghul Room. It was further alleged that the restaurant 'Princes' had been since discontinued.
22. The said application of the appellants was disposed of in the first Court by a judgment and order dt. 2nd Aug., 1985. It was held by the learned Judge in the first Court that under Section 218 of the Calcutta Municipal Act, 1951 read with Schedule IV to the said Act, taxes were levied on professions, tradesand callings by way of licences. It was held that the fees fixed under Schedule IV could not be varied under Section 548(2) of the said Act. It was, however, held that Schedule IV to the Act did not have any application in respect of licences to be taken out under Section 443 of the Act. Fees for licences to be issued under Section 443 had not been fixed either in. the section or in any schedule to the Act. Such fees had also not been fixed by any rule or bye-law made under the Calcutta Municipal Act. Therefore, in respect of licences to be issued under Section 443, Section 548(2) would be applicable and it was open to theCorporation to fix the rates of fees for licensees to be issued under Section 443 from time to time as provided therein.
23. The learned Judge in the first Court held further that a valid order had been made by the Administrator under Section 548(2) of the Calcutta Municipal Act, 1951. The learned Judge also held that the principles of natural justice had no application in the facts inasmuch as it was open to the Corporation to fix the rates of fees for licences to be issued under Section 443 of the Act from time to time. The learned Judge noted that the vires of the section had not been challenged. The learned Judge dismissed the application and discharged the Rule.
24. The present appeal is from the said judgment and order dt. 2nd Aug., 1985.
25. At the hearing of this appeal; learned Advocate for the appellants did not press the points which were urged before the first Court. He sought to urge that the provisions of Section 443of the Calcutta Municipal Act, 1951 were not applicable to hotels and restaurants even though items of amusement like music or cabaret shows were provided in such establishments. He drew our attention to the relevant provisions of the Calcutta Municipal Act, 1951 as set out hereafter.
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.'
Schedule IV
Entry : 16.Owner or occupier of a market or place of public entertainment, other than a theatre or a cinema house kept up for the purpose of profit.
Fees Rs. 250/-Entry : 30.Keeper of a restaurant with floor shows including cabaret or orchestra.Fees Rs. 250/-Entry : 32Owner or occupier of a theatre or a cinema houseFees Rs. 250/-
26. Construing the said provisions, learned Advocate for the appellants submitted that Section 443 of the Act provided for licensing and control of theatres, circuses, cinema houses, dancing halls and other similar places of public resort, recreation or amusement. It was submitted that a restaurant was not a place similar to a theatre, circus, cinema house or dancing hall. A restaurant was not a place which was resorted toby the public only for the porpose of recreation or amusement. The main business of a restaurant was to supply and sell foodstuff. Amusement, if any, provided would be incidental to the main businessof a restaurant. Provision for such incidental amusement or recreation could not convert a restaurant into a place of public resort within the meaning of Section 443 of the Act.
27. 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.
28. We noted that in the petition filed before the first Court the levy of the increased, fee had been challenged as ultra vires the provisions of the Act and the power of the Administrator. The prayers of the appellants in the writ petition were, inter alia, also for cancellation of the impugned notifications and for direction upon the Corporation authorities not to give any further effect thereto.
29. In reply, the learned Advocate for the Corporation of Calcutta and the authorities under the Corporation submittedthat the appellants had at all material times applied for and obtained licences in respect of the said hotel and the restaurants therein. Their main objection and grievance was only over the increase in the fees for such licences.
30. Learned Advocate submitted further that the said restaurants situated in the hotel were all open to the public. Any member of the public, provided he was willing to pay, was entitled to be served in the said restaurants. I terns of recreation or amusement in the shape of music or floor shows or cabarets were provided in the said restaurants. The customers of the restaurants were given the benefit of such items of recreation or amusement and were charged for the same. It was submitted that a restaurant which provided items of amusement was a place of public resort for recreation or amusement and similar to a theatre, cinema house, circus or a dancing hall and fell within the mischief of Section 443 of the Calcutta Municipal Act, 1951.
31. The short question before us is whether the objects -- 'theatre, circus, cinema house, dancing hall referred to in Section 443 of the Act can or should be construed 'ejusdem generis' and whether on such construction it is to be held that a restaurant though providing items of amusement is not a place of public resort, recreation or amusement similar to a theatre, circus, cinema house or dancing hall and as such does not come within the mischief of Section 443.
32. The Supreme Court considered thedoctrine and the rule of 'ejusdem generis' in detail in several cases. In particular we may refer to Jageram v. State of Haryana, reported in : [1971]3SCR871 . In this case, the Supreme Court quoted with approval a statement of law from Sutherland's Statutory Construction (3rd Edition) Vol. II at page 395 as follows :
'For the application of the doctrine of ejusdem generis the following conditions must exist:
(i) the statement contains enumeration byspecific words;
(ii) the members of the enumeration constitute a class;
(iii) a class is not exhausted by the enumeration;
(iv) a general term follows the enumeration; and
(v) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires.'
33. The same principles were reiterated by the Supreme Court in Amar Chandra v. Collector of Excise. Tripura reported in : [1973]1SCR533 .
34. It appears to us that all the conditions for the application of the doctrine of ejusdem generis are present in Section 443. The section contains an enumeration of specific words viz., theatres, circuses, cinema houses, dancing halls.
35. The subjects of the enumeration, in our view, also clearly constitute a class or category of places of public resort which are patronised by members of the public primarily and exclusively for recreation or amusement against payment of charges.
36. The third condition that the class or category is not exhausted by the enumeration, in our view, is also fulfilled in Section 443. This is borne out by Section 422 of the Calcutta Municipal Corporation Act, 1980. Learned Advocate for the appellant drew our attention to the said Section 422 of the Act of 1980 which is as follows :
'Section 442 : Theatres, circuses, exhibitions and place of public amusement not to be established without permission.
(i) No person shall without the written permission of the Municipal Commissioner or otherwise than in conformity with the conditions, if any, of such permission, which shall be granted subject to the provisions of Section 425, use, or permit to be used, or materially alter, en large or extend use of any premises for the purpose of establishing or keeping open any theatre, cinema house, drive-in-theatre or cinema house, circus, fair, fete, exhibition or dancing hall, or any other place of similar public resort, recreation or amusement forany such purpose: .........'
37. Section 422 of the Act of 1980 appears to us to be in pari materia with Section 443 of the Act of 1951. In the section of the subsequent Act other subjects have been enumerated which clearly indicate that the class or category in Section 443 of the Act of 1951 was not exhausted by the enumeration.
38. The other condition that a general term has to follow the enumeration is also satisfied in Section 443 inasmuch as the general term viz. 'other similar place of public resort, recreation or amusement' follows the enumeration. The last condition is also satisfied as there is no indication in Section 443 that the general term in the section should be given a broader meaning. On the other hand, by use of the words 'other similar place' in the section it is made clear that the general words are intended to have a restricted meaning and to fall within the class enumerated by the specific words.
39. This is also supported by Entries Nos. 16, 30 and 32 in Schedule IV to the Act of 1951, In the said entries a distinction has been made between a restaurant with floor shows including cabaret or orchestra and a place of public amusement including a theatre or cinema house.
40. We also note from the letter dated 22nd Dec., 1982 from the Amusement Officer, Corporation of Calcutta to the appellant I which was an annexure to the petition before the first Court that in the restaurants concerned that the performances presumably of floor show, were scheduled to be held only on 24th and the 31st Dec., 1982 for which a further fee of Rs. 500/- per night was being demanded by the Corporation. This supports the case of the appellants that items of amusement like floor shows were not regularly provided for in the saidrestaurants.
41. We have also noted the licences which were issued to the appellant 1 for its restaurants in the earlier year. The conditions imposed in the said licences are mainly provided in the Theatre Bye-laws and the Cinematograph Act which indicated the types of establishment for which such licences are intended to be issued.
42. For the reasons above, the contentions of the appellants before us do not appear to be without substance. We hold that under Section 443 of the Calcutta Municipal Act, 1951 the Corporation of Calcutta is entitled to issue licences against payment of fees to theatres, circuses, cinema houses, dancing halls and other similar place of public resort, recreation or amusement but not to other establishments which do not fall in same class as the above. We hold further that a restaurant which provides items of amusement occasionally or incidentally in its main business, to its customers is not a place of public resort, recreation or amusement similar to a theatre, circus, cinema house or dancing hall, which form a class by themselves, and does not fall within the mischief of Section 443. The respondents have no jurisdiction to call upon the appellant No. 1 to take out a licence under Section 443.
43. The fact that the appellant 1 had earlier applied for and obtained licences under Section 443 makes no difference to the legal position as by conduct of a person jurisdiction cannot be conferred on a statutory authority which does not have such jurisdiction under the statute.
44. For the reasons as above, the appeal is allowed. We set aside the judgment and order dated 2nd Aug., 1985. The rule is made absolute to the extent as follows :
The impugned notifications are quashed so far as the appellant 1 is concerned. The respondents are directed not to enforce the said notifications against the appellant No. 1 and further refrain from calling upon the appellant 1 to obtain licences under Section 443 of the Calcutta Municipal Act, 1951.
All other interim orders passed in this appeal are vacated. Rs. 30,000/- deposited by the appellants to the Advocate-on-Record for the respondent 1 is directed to be refunded to the Advocate-on-Record of the appellant 1 with all interests accrued thereon within two weeks from date.
45. Each party will pay and bear its own costs. On an oral application of the Corporation of Calcutta we grant a stay of operation of this judgment and order till 12th Jan., 1987 except that the direction given forrefund of the deposit will not be stayed. It is recorded that the learned Advocate for theappellants opposed the grant of any stay.
46. All parties are to act on a signed copy of the minutes of the operative part of the judgment.
Monjula Bose, J.
47. I agree.