PETITIONER: CALCUTTA MUNICIPAL CORPN. Vs. RESPONDENT: EAST INDIA HOTELS LTD. DATE OF JUDGMENT21/07/1994 BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) PUNCHHI, M.M. RAMASWAMY, K. CITATION: 1995 AIR 419 1994 SCC (5) 690 JT 1994 (4) 463 1994 SCALE (3)456 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
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
Section 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.
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2. It is not disputed that prior to the present
proceedings the company has always been obtaining licences
from the Corporation under Section 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 22-3-1982,
increased the licence fee to Rs 15,000 in respect of each of
the places of amusement/recreation under Section 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 Article 226 of the Constitution of India.
Before the learned Single Judge three points were raised.
It was contended that under Section 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 Section 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 against 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 the provisions of Section 443 of the Act which are
as under:
“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.”
It was argued before the Division Bench of the High Court
that the provisions of Section 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:
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“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 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.”
6. The Division Bench of the High Court culled out the
principles for the applicability of the rule of ejusdem
generis from the judgments of this Court in Jage Ram v.
State of Haryana1 and Amar Chandra Chakraborty v. Collector
of Excise2. Construing Section 443 of the Act the High
Court found that “theatre, circus, cinema house, dancing
hall” have been specifically mentioned followed by the
expression “other similar places of public resort,
recreation or amusement” which are of general nature.
Applying the principles of ejusdem generis, the Division
Bench came to the conclusion that the general words are
intended to have a restricted meaning in the sense that
“other similar places” must fall within the class enumerated
by the specific words. On the said reasoning, the Division
Bench of the High Court held as under:
“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 places of public resort,
recreation or amusement but not to other
establishment 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 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 Appellant to take out a licence
under Section 443.”
7. It was not necessary for the Division Bench of the High
Court to rely on the rule of ejusdem generis in this case.
The provisions of Section 443 of the Act are on the face of
it clear and unambiguous and, as such, there was no occasion
to call into aid the said rule. Section 443 clearly states
that a theatre, circus, cinema house, dancing hall or “other
similar place” of public resort, recreation or amusement
cannot be run without obtaining a licence from the
Commissioner of the Corporation. It is thus obvious that
apart from the four places of recreation/amusement
specifically mentioned in the section “any other place”
which comes within the mischief of the Act must be “a
similar place”. The short question for our consideration,
therefore, is whether
1 (1971) 1 SCC 671
2 (1972) 2 SCC 442 : AIR 1972 SC 1863
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the three restaurants run by the company in the premises of
the hotel are similar to any of the four instances given
under Section 443 of the Act.
8. Since the question argued before the Division Bench was
neither pleaded nor raised before the learned Single Judge,
the necessary facts required to support the said question
were not directly forthcoming from the writ petition, a copy
of which is placed on the appeal-papers. In any case, the
company’s own case in the writ petition before the High
Court was as under:
“In order to be categorised as a Government
classified hotel, it should have certain basic
features and amenities like cabaret and
evening entertainments etc. and unless these
special facilities were available and
continued to remain available your
petitioners’ said hotel would not have been a
Government classified hotel. Your petitioners
crave leave to refer to the said question
arise for classification at the time of
hearing if necessary.
Your petitioners state that the said hotel is
a residential hotel and maintain a very high
standard of service for twenty-four hours
round the clock. It also provides
entertainment during the evening, specially to
cater for the tourist foreign visitors but
also earn foreign exchange for the country.
The said hotel enjoys international reputation ....
As stated above your petitioners run a hotel,
in which lodging and meals including service
of alcoholic beverages, both foreign liquor
and Indian-made foreign liquor are provided to
the residents and customers from the
restaurants, bars and other rooms within the
hotel precincts. The said restaurants cater
for outsiders though mostly foreign tourists
and the said restaurants are being maintained
and/or run in accordance with the
international standards for which your
petitioner have had to incur heavy overhead
expenses as is the case in the matter of
maintenance of lodging. These restaurants and
bars are part and parcel of the hotel though
the same is not restricted to residents of the
hotel only.”
In the written statement filed before the High Court on
22-3-1983, the Corporation affirmed as under:
“With reference to paragraph 7 of the petition
I dispute and deny the allegations. I say
that the hotel provides entertainment with all
items of music amusement etc. and is famous
for its cabaret any allegation contrary
thereto are denied. I say that before
entering into the cabaret room one has to
purchase a special ticket for admission on a
very high price.”
9. It is not disputed in the counter filed by the company
in the special leave petition that the said restaurants in
the evening provide piped music and sometimes vocal as well
as instrumental music. The said restaurants also have
dancing floors where the guests are allowed to dance to the
tune of the music.
10. The admitted facts, therefore, are that there are
dancing floors in the restaurants where the residents and
other guests entertain themselves. The entertainment is
further provided by music including vocal music. At the
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relevant time the cabaret shows were also performed in the
restaurant to entertain the guests. In the counter filed in
this Court the company has, however, stated that cabaret
shows are done on rare occasions like Christmas and New Year
eve etc.
11.A “dancing hall” cannot operate without obtaining a
licence under Section443 of the Act. What is a dancing
hall? A dancing hall as understood in the ordinary parlance
is a place where dancing floor is provided and live
orchestra or music in any other form is played to entertain
the guests who wish to come on the floor and dance. Dancing
halls are peculiar to the Western social life. In the
cosmopolitan cities in this country, even today, one finds
number of dancing halls and discotheques where people go in
the evenings and entertain themselves. We see no difference
in a “dancing hall” and a restaurant where a proper dancing
floor is provided and the guests entertain themselves by
using the floor to the tune of live or recorded music.
Simply because the recreation in the shape of dancing is
provided along with a posh-eating place would not make it
different than a “dancing hall” where drinks and eatables
are also invariably provided. We are, therefore, of the
view that the restaurants run by the company are places
similar to the dancing halls and, as such, are places of
public amusement covered by the provisions of Section 443 of
the Act.
12. We allow the appeal, set aside the impugned judgment of
the Division Bench of the High Court and dismiss the writ
petition of the company filed before the Calcutta High
Court. ‘The appellants shall be entitled to costs which we
quantify as Rs 20,000.
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