CALCUTTA MUNICIPAL CORPORATION AND ORS.versusEAST INDIA HOTELS LTD. AND ORS.

..:

                  CALCUTIA MUNICIPAL CORPORATION AND ORS.                               A
                                     v.
      .,              EAST INDIA HOTELS LTD. AND ORS .

                                        JULY 21, 1994

             [KULDIP SINGH, M.M. PUNCHHI AND K. RAMASWAMY, JJ.]                         B

                 Municipalities : Calcutta Municipal Act, 1951-Section 443-i..icens-
           ing-Ddncing Ha/ls-Restaurants run by a company in the premises of
           hotel-Dancing floors providetf-Entertainment further provided by music in-
           eluding vocal musi~ether restaurants run by the company are covered by       c
           s. 44~Whether company is required to pay licence fee and obtain licences
           to run said restaurants.

                 The respondent company had three restaurants within the premises
           of its hotel. The recreation/amusement in the shape of music, cabaret
           shows and dacing etc. was provided in such restaurants. The restaurants D
           also had dancing floors where the guests were allowed to dance to the tune
           of the music. The company challenged levy of licence fee on the ground
           that the privsions of Section 443 of the Calcutta Municipal Act were not
           applicable to the restaurants. The High Court upheld the challenge and
           the Municipal Corporation preferred the present appeal.                    E
                 Allowing the appeal, this court

                  HELD : 1.1. A 'dancing ball' cannot operate without obtaining a
           licence under Section 443 of the Calcutta Municipal Act. A dancing ball as
           understood in the ordinary parlance is a place where dancing floor is F
           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. There is no
           difference in a 'dancing ball' and a restaurant where a proper dancing
           floor is provided and the guests entertain themselves by using the floor to
           tht tune of live or recorded music. Simply because the. recreation in the
                                                                                       G
           shape of dancing is provided alongwitb a posh-eating place would not
       ~   make it different than a "dancing ball' where drinks and eatables are also
           invariably provided. [28-G, H, 29A]

                 i.2. In the instant case the restaurants run by the company are
           places similar to the dancing halls and, as such, are places of public H
                                              23
    24                     SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A amusement covered by the provisions of Section 443 of the Act. [29-A]
         !age Ram v. State of Rajasthan, [1971] 1 SCC 671; Amar Chandra
    Chakkroborty v. Collector of Customs, AIR (1972) SC 1863, referred to.

          CIVIL APPEALLATE JURISDICTION : Civil Appeal No. 838 of
B 1987.
         From the Judgment and Order dated 9.12.1986 of the Calcutta High
    Court in A. No. 235 of 1986.

          Tapash Ray and A.K. Panda for the Appellants.
c
          K.N. Bhat, Vineet Kumar and Ms. Nina Gupta for the Respondents.

          The Judgment of the Court was delivered by

          KULDIP SINGH, J. The East India Hotels Limited (the company),
D   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 res-
E   taurants, 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.

F         It is not disputed that prior to the present proceedings the company
    has always been obtaining licences from the Corporation under section 443
    of th~ 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
G   licence fee to Rs. 15,000 in respect of each of the places of amuse-
    ment/recreation under section 443 of the Act.

         . 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
H   were raised. It was contended that under section 218 read with Schedule
      CALCUITA MUN. CORPN. v. EAST INDIA HOTELS LID. IKULDIP SINGH, J.)       25

     IV to the Act, the Corporation could not fix more than Rs. 250 as licence      A
     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 enhanc-
                                                                                    B
     ing the· licence fee. Both these contentions were also rejected. As a conse-
     quence 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.
I
           The only point raised by the company, before the Division Bench of       C
     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         D
             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. n

           Before we state the point it would be useful to go through the           E
     provisions of section 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 Commis-
             sioner in this behalf, keep open any theatre, circus, cinema-house,    F
             dancing hall or other similar place of public resort, recreation or
             amusement.

                Provided that this section shall not apply to private performan-
             ces in any such place."       ·
                                                                                    G
           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·,_                  H
    26                    SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A           "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 provid-
            ing items of amusement is not a place of public resort, recreation
            or amusement similar to a theatre, circus, cinema house or dancing
B
            hall and as such does not come within the mischief of Section 443."

           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 inlage Ram v. State of Haryana, [1971] 1SCC671 andAmar Chandra
C   Chakkraborty v. Collector of Customs, AIR (1972) SC 1863. 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
D   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 reason-
    mg, the Dh>ision Bench of the High Court held as udner :-

            "For the reasons above, the contentions of the appellants before
E           us do not appear to be without substance. We hold that under
            S~ction 443 of the Calcutta Municipal Act, 1951 the Corporation
            of Calcutta is entitled to issue licences against payment of fees to
            theatres, circuses, cinema-house, dancing halls and other similar
            place of public resort, recreation or amusement but not to other
F           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.
G           The respondents have no jurisdiction to call upon the appellant
            No. 1 to take out a licence under Section 443."

          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
H   the Act are on the face of it clear and unambiguous aod, as such, there
CALCUTTA MUN. CORPN. v. EAST INDIA HOTELS LTD. [KULDIP SINGH, J.J               27


was no occasion to call into aid the said rule. Section 443 clearly states that      A
                                                                           11
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 plac~" which comes within the mischief of the Act
                                                                                     B
must be "a similar place". The short question for our consideration, there-
fore, is whether 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.

      Since the question argued before the Division bench was neither                c
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 :-
                                                                                     D
         "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               E
         petitioners crave leave to refer to the said question arise for
         classification at the time of hearing if necessary.

             Your petitioner 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 entertainments during the eve-            F
         ning, specially to cater for the tourist foreign visitors but also earn
         foreign exchange for the country. The said hotel enjoys interna-
         tional reputation .........

            As stated above your petitioners run a hotel, in which lodging           G
        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 main-
        tained and/or run in accordance with the International standards             H
    28                    SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A           for which your petitioner have had to incur heavy overhead expen-
            ses as is the case in the matter of maintenance of lodging. These
            Restaurants and Bar 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 March 22,
B 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
c           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."

          It is not disputed in the counter filed by the company in the special
    leave petiti~n that the said restaurants in the evening provide piped music
D   and sometimes V()Cal. 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.

          The admitted facts, therefore, are that there are dancing floors in the
    restaurants where the residents and other guests entertain themselves. The ·
E   entertainment is further provided by music including vocal music. At the
    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.
F
          A "dancing hall" cannot operate without obtaining a licence under
    section 443 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
G   halls are peculiar to the Western social life. In the cosmopolitan cities in
    this country, even today, one finds number of dancing halls and discothe-
    ques where people go in the evenings and entertain themselves. We see no
    difference in a "dancing hall" and a restaurant where a pro.per dancing floor
    is provided and the guests entertain themselves by using the floor to the
H   tune of live or recorded music. Simply because the recreation ill the shape
      CALCUTTA MUN. CORPN. v. EASTINDIAHOTEL.5 LTD. [KULDJP SINGH. J.j      29


      of dancing is provided along with a posh- eating place would not make it A
      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.

            We allow the appeal, set aside the impugned judgment of the          B
     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.

     A.G.                                                     Appeal allowed.




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