Bhaskara Reddiar v. Alleppey Municipality — 1955 DIGILAW 137 (KER)

Judgment :- 1. O. P. No. 40 of 1955 is by the managing partner of a picture-house and theatre styled 'Seematty Talkies'. The petition is to prohibit the Alleppey Municipality from levying entertainments tax on the petitioner in respect of entertainments conducted in his picture-house which is situated within the Municipality. O.P. No. 41 of 1955 is by the proprietors of a Picture-house and theatre styled 'Coastal Talkies' situate within the limits of the Alleppey Municipality and the relief asked for is the same. O.P. No. 42 of 1955 is for the same relief by the owner of the picture-house and theatre called 'Sree Krishna Talkies' also situate within the limits of the Alleppey Municipality. O.P. No. 43 of 1955 is by the managing proprietor of 'Raja Mahal Theatre' situate within the limits of the Kottayam Municipality. O.P. No. 44 of 1955 is by the proprietor of the 'Star Theatre' also situate within the Kottayam Municipality. O.P. Nos. 43 and 44 of 1955 are for the same relief as that claimed in O.P. Nos. 40 to 42 of 1955. O.P. No. 138 of 1955 is by the proprietor of the 'Golden Talkies' Vaikom situate within the limits of the Vaikom. 2. O.P. Nos. 40 to 42 of 1955 may be dealt with together. The main allegations in the affidavit filed along Municipality and the prayer in the petition is the same as that contained in the other O.Ps. with O.P. No. 40 of 1955 are the following:- The Travancore-Cochin Local Authorities Entertainments Tax Act VI of 1951, came into force on 10.12.1951. Before that Act came into force the Alleppey Municipality has been levying tax on entertainments under S.77(g), 122 and 123 of the Travancore District Municipalities Act, XXIII of 1116. Ss. 122 and 123 of that Act were repealed by S.13 of the Local Authorities Entertainments Tax Act, VI of 1951. S.12 of that Act provides that the local authority to which the Act applies shall, before levying entertainments tax under the Act, make bye-laws, not inconsistent with the Act or Rules made thereunder, in respect of the matters mentioned in the section. Sub-s. (3) of S.12 provides that the bye-laws shall have effect when they have been approved by Government and published in the Gazette. The Alleppey Municipality has not till now made any bye-laws as required by S.12 of the Act VI of 1951. Sub-s. (3) of S.12 provides that the bye-laws shall have effect when they have been approved by Government and published in the Gazette. The Alleppey Municipality has not till now made any bye-laws as required by S.12 of the Act VI of 1951. The Municipality has no right to levy and collect entertainments tax before making bye-laws as required by the section. Although S.77(g) of the District Municipalities Act which empowered the Municipality to levy tax on entertainments was not expressly repealed by Act VI of 1951 the Municipality has no power, after the coming into force of the latter Act, to levy and collect entertainments tax by virtue of S.77(g) of the District Municipalities Act. Representation made by the petitioner to the Municipality objecting to the levy and collection of entertainments tax by the Municipality met with no effect. The levy of entertainments tax by the Municipality contravened the provision of Arts. 19(g), 31(1) and 276 of the Constitution. To the same effect are the allegations in the affidavits filed along with O.Ps. Nos. 41 and 42 of 1955. 3. In the counter-affidavit filed by the Commissioner of the Alleppey Municipality in each of the three O.Ps. it was contended as follows:- The Municipality has power under S.77(g), 78 and 79 of the District Municipalities Act to levy and collect tax on entertainments. These sections are not repealed either expressly or impliedly by S.13 of Act VI of 1951. In exercise of the power vested in the Municipality under S.77(g) of the District Municipalities Act the Municipality resolved on 4.3.1947 to levy entertainments tax at a particular rate and a Notification to that effect was published in the Travancore-Cochin Government Gazette. A further resolution enhancing the rate of entertainments tax was passed by the Municipality on 28.12.1954 and was published in the Gazette by Notification dated 29.12.1954. Ss. 77 to 79 of the District Municipalities Act not having been repealed, the Municipality has power to levy entertainments tax under those sections and the Notifications issued by the Municipality are perfectly valid. Even if Ss. 77 to 79 of the District Municipalities Act should be deemed to be not in force after the enactment of Act VI of 1951 the Notifications issued by the Municipality will, in any case, remain in force till bye-laws are made by the Municipality under Act VI of 1951. Even if Ss. 77 to 79 of the District Municipalities Act should be deemed to be not in force after the enactment of Act VI of 1951 the Notifications issued by the Municipality will, in any case, remain in force till bye-laws are made by the Municipality under Act VI of 1951. The levy and collection of entertainments tax by the Municipality did not contravene the provisions of Art.19(g), 31(1) and 276 of the Constitution. 4. The main questions that arise for consideration in these petitions are:- (1) Whether after the coming into force of the Travancore-Cochin Local Authorities Entertainments Tax Act, VI of 1951, a municipality to which the Act applies can levy and collect entertainments tax under the District Municipalities Act, XXIII of 1116? (2) Whether the Alleppey Municipality can levy and collect entertainments tax as per the Notification dated 29.12.1954? (3) Whether the Notification dated 4.3.1947 issued by the Alleppey Municipality continues in force after the commencement of the Travancore-Cochin Local Authorities Entertainments Tax Act, VI of 1951, and whether the Municipality can levy and collect entertainments tax as per that Notification? 5. Part III of the District Municipalities Act, XXIII of 1116, containing Chapter VI relates to taxation and finance. The first section of that Chapter, i.e. S. 77, confers on a Municipal Council the power to levy tax. The Section reads: "Every Municipal Council may levy (a) property tax; (b) profession tax; (c) a tax on carriages and animals; (d) a tax on carts; (e) tolls on vehicles and animals entering the Municipality; and may, with the previous sanction and subject to such Rules as may be framed by Our Government, levy - a tax on advertisements; and a tax on entertainments". S. 78 provides that a resolution by a Municipal Council determining to levy a tax or toll shall specify the rate at which any such tax or toll shall be levied and the date from which it shall be levied. The section also prescribes the procedure to be followed by the Municipal Council in the matter. S. 79 provides that when the Municipal Council has passed a resolution under S. 78 a Notification to that effect shall be published in the Government Gazette and also by beat of drum. Ss. The section also prescribes the procedure to be followed by the Municipal Council in the matter. S. 79 provides that when the Municipal Council has passed a resolution under S. 78 a Notification to that effect shall be published in the Government Gazette and also by beat of drum. Ss. 77 to 79 which deal with the general power of the Municipality to levy tax are followed by sections containing special provisions relating to particular kinds of taxes. Ss. 80 to 90 come under the heading 'Property Tax'. Ss. 91 to 97 come under the 'Profession Tax'. Ss. 98 to 104 deal with 'Tax on Carriages and Animals'. Ss. 105 and 106 relate to 'Tax on Carts'. S.107 contains a special provision relating to the collection of tax under S. 98 or S.105. Ss.108 to 110 also contain special provisions relating to seizure of vehicles or animals. Ss.111 to 115 deal with tolls while Ss. 116 to 120 relate to tax on advertisements. Ss.122 and 123 deal with tax on entertainments and are given that heading. Ss. 124 and 134 contain certain general provisions regarding taxation and finance. 6. The special provisions relating to tax on entertainments are, as stated already, contained in Ss. 122 and 123. S. 122 provides: "Every person who conducts, holds or manages any entertainment in any place within the Municipality shall in accordance with Rules framed in that behalf by Our Government, pay on every such entertainment a tax calculated at such rates and in such manner as the Council may, with the approval of Our Government, by resolution determine: Provided always that the rates shall be subject to the maxima and minima laid down by Our Government in this behalf. x x x x x x x". The further provisos in the section exempt certain classes of entertainments from the ambit of the section. S. 123 provides: "No entertainment shall, after the levy of the tax under S. 122 has been determined upon by the Council, be held, conducted or performed in any place within the Municipality without the written consent of the executive authority". 7. The Trivandrum City Municipal Act, IV of 1116, also contains provisions similar to SS.77(g), 78, 79, 122 and 123 of the District Municipalities Act. S.93(h) of that Act corresponds to S.77(g) of the District Municipalities Act. S. 94 corresponds to Ss.78 and 79. 7. The Trivandrum City Municipal Act, IV of 1116, also contains provisions similar to SS.77(g), 78, 79, 122 and 123 of the District Municipalities Act. S.93(h) of that Act corresponds to S.77(g) of the District Municipalities Act. S. 94 corresponds to Ss.78 and 79. S. 133 corresponds to S. 122 and S. 134 corresponds to S. 123. In the erstwhile Cochin State Local Authorities including Municipalities were levying entertainments tax under the Cochin Local Authorities Entertainments Tax Act, VIII of 1114. 8. The Travancore-Cochin Local Authorities Entertainments Tax Act, VI of 1951, provides for the levy and collection of the tax on entertainments by all local authorities including Municipalities. The preamble to the Act reads: "Whereas it is expedient to give power to local authorities to impose a tax on amusements and other entertainments; it is hereby enacted as follows:". S.1(2) of the Act provides that the Act extends to the City of Trivandrum and all areas in the State of Travancore-Cochin which have been or may hereafter be declared to be Municipalities under the Law relating to the Constitution of Municipalities and that Government may by Notification in the Gazette extend the Act to any other area. S.2(7) defines'Local Authority' as follows: "'Local Authority' means: (a) In the City of Trivandrum, the Corporation of Trivandrum; (b) In any municipal area, the Municipal Council concerned; and (c) In any area within the jurisdiction of a Panchayat or Village Union, the Panchayat or Village Union concerned". S. 3 of the Act provides: "Any local authority in whose local area this Act is in force may levy a tax (hereinafter referred to as the entertainment tax) at rate not less than 10 per cent nor exceeding 25 per cent on all payments for admission to any entertainment". S.11 empowers the Government to make Rules to carry out all or any of the purposes of the Act and in particular for the composition and consolidated payment of tax and for the presentation and disposal of applications for exemption from payment of entertainments tax. S.12 provides that "any local authority before levying entertainments tax under S. 3 shall make bye-laws" in respect of the matters specified in the section. Sub-s. (3) of the section provides that the "bye-laws shall have effect when they have been approved by the Government and published in the Gazette". S.12 provides that "any local authority before levying entertainments tax under S. 3 shall make bye-laws" in respect of the matters specified in the section. Sub-s. (3) of the section provides that the "bye-laws shall have effect when they have been approved by the Government and published in the Gazette". S.13 provides: "The Cochin Local Authorities Entertainments Tax Act, VIII of 1114, Ss. 122 and 123 of the Travancore District Municipalities Act, 1116, and Ss. 133 and 134 of the Trivandrum City Municipal Act, 1116 are hereby repealed": The Act was published in the Gazette dated 8.5.1951. As per a Notification published on 10.11.1951 the Act came into force on 10.12.1951. Rules were framed by Government under S.11 and they were published in the Gazette dated 11.12.1951. 9. It is admitted that the Alleppey Municipality has not made any bye-laws as required by S.12 of Act VI of 1951. The case of the petitioners is that after the coming into force of the Travancore-Cochin Local Authorities Entertainments Tax Act, VI of 1951 a municipality cannot levy and collect tax on entertainments under the District Municipalities Act and that before levying tax under the new Act the Municipality is bound to make bye-laws as required by S.12 of the Act. According to the learned counsel for the petitioners, Act VI of 1951 being a special enactment relating to the levy and collection of entertainments tax by all local authorities including municipalities, S.77(g) of the District Municipalities Act relating to the levy of entertainments tax by Municipalities must be deemed to have been repealed and a municipality can levy and collect such tax only under Act VI of 1951. It was argued that the provision in a general enactment relating to the subject dealt with in a later special enactment relating to that subject must be deemed to have been impliedly repealed by the later enactment. 10. In U.S. v. Tynen, (1870) 11 Wallace U.S. 88, 92 referred to in Craies on Statute Law, 4th Edition, page 310 (foot note) it was held that even "when two Acts are not in express terms repugnant yet, if the later Act covers the whole subject of the first and embraces new provisions plainly showing that it was intended as a substitute for the first Act, it will operate as a repeal of that Act". The Rule is that the 'latest expression of the will of Parliament must always prevail'. As observed by Maxwell: "The problem often arises whether the manner in which the matter is dealt with in the later Act shows that the legislature intended merely to make an amendment or addition to the existing law, or to treat the whole subject de novo and so to make a tabula rasa of the pre-existing law". (see Maxwell on Interpretation of Statutes, 10th Edition, page 185). The provisions of Act VI of 1951 indicate that the intention of the legislature in making that enactment was to have a consolidated piece of legislation relating to the levy and collection of entertainments tax by all local authorities including municipalities and, in the words of Maxwell, 'to treat the whole subject de novo and so to make a tabula rasa of the pre-existing law". 11. It is, however, not necessary to decide in this case whether S.77(g) of the District Municipalities Act must be deemed to have been repealed by the enactment of Act VI of 1951. For the purpose of this case, it is sufficient to hold that after the coming into force of Act VI of 1951 a municipality can levy and collect entertainments tax only in accordance with the provisions of that Act. The power vested in the Municipality under S.77(g) of the District Municipalities Act will, even if it exists, be of the nature of an 'imperfect power' which it cannot exercise by reason of the repeal of Ss. 122 and 123 of that Act and by the coming into force of Act VI of 1951 containing new provisions relating to the levy and collection of tax on entertainments by all local authorities including municipalities. We have no doubt that the intention of the legislature in enacting Act VI of 1951 was that all local authorities including municipalities should levy and collect entertainments tax only in accordance with the provisions of that Act. Otherwise, there is no meaning in repealing Ss. 122 and 123 of the District Municipalities Act. As stated already, S. 77 of the District Municipalities Act deals with the general power of the Municipality to levy tax. Ss. 78 and 79 deal with the manner in which that power should be exercised. The special provisions of the Act relating to entertainments tax are those contained in Ss. 122 and 123. As stated already, S. 77 of the District Municipalities Act deals with the general power of the Municipality to levy tax. Ss. 78 and 79 deal with the manner in which that power should be exercised. The special provisions of the Act relating to entertainments tax are those contained in Ss. 122 and 123. S. 122 is not a mere machinery section. It is under that section that liability is imposed on persons who conduct, hold or manage entertainments in any place within the Municipality to pay entertainments tax to the Municipality. S. 123 prohibits a person from holding, conducting or performing an entertainment within the Municipality without paying the entertainments tax levied under S. 122. It is clear that when the legislature repealed both these sections the intention was that the power conferred on a municipality to levy and collect entertainments tax should be exercised only in accordance with the provisions of Act VI of 1951. In the circumstances the omission to repeal S.77(g) is not very material. Perhaps the legislature thought that it should not appear that the power that was being exercised by municipalities to levy and collect tax on entertainment was taken away from them; or it might have been a mere oversight on the part of the legislature in not repealing Clause.(g) of S.77 while repealing Ss. 122 and 123 which dealt with tax on entertainments. 12. Learned counsel for the respondents contended that S. 3 of the Act VI of 1951 must be deemed to be held in abeyance till the Municipality makes bye-laws under S.12 of that Act and that, in any case, till such bye-laws are made the Municipality can levy and collect entertainments tax under S.77(g) of the Travancore District Municipalities Act. We are unable to accept this contention. S. 3 of Act VI of 1951 did not come into force alone with the other provisions of that Act when the Act itself came into force, viz., on 10.12.1951. There is no reason to hold that section will be held in abeyance so far as a particular municipality is concerned until it chooses to make bye-laws under S. 12. The provision contained in S.12 is only a condition imposed on the municipality to avail itself of the power conferred on it by S. 3. There is no reason to hold that section will be held in abeyance so far as a particular municipality is concerned until it chooses to make bye-laws under S. 12. The provision contained in S.12 is only a condition imposed on the municipality to avail itself of the power conferred on it by S. 3. The mere fact that a municipality delays to fulfil that condition is no reason for holding that S. 3 has not come into force so far as that municipality is concerned. There is nothing in Act VI of 1951 to support the contention that S.77(g) of the Travancore District Municipalities Act will be deemed to be kept in abeyance in respect of a municipality until it makes bye-laws under S.12 of the Act. Either S.77(g) of the District Municipalities Act should be deemed to have been repealed by the new Act or the section will remain in force even after the municipality makes bye-laws under S.12 of the new Act. The question whether S.77(g) still continues to be in force or whether it has ceased to be in force cannot depend upon the municipality making or refusing to make bye-laws as required by S.12 of Act VI of 1951. As stated already, the new Act was published in the Gazette on 8.5.1951. It was notified in the Gazette dated 10.11.1951 that the Act would come into force on 10.12.1951. Government made rules under S.11 of the Act and published the same in the Gazette dated 11.12.1951 by means of a Notification dated 30.11.1951. There is, therefore, no justification for the Municipality in not making the bye-laws as soon as the Act came into force. Under S. 21 of the Travancore-Cochin General Clauses Act the Municipality could make bye-laws after the passing of the Act and before it came into force. There is, therefore, no substance in the contention that S. 3 of Act VI of 1951 will come into force in respect of a municipality only when it makes bye-laws under S.12 of the Act and that until such bye-laws are made the Municipality can levy and collect entertainments tax under S.77(g) of the District Municipalities Act. 13. The Alleppey Municipality is collecting entertainments tax as per the Notification dated 29.12.1954 issued by that Municipality. 13. The Alleppey Municipality is collecting entertainments tax as per the Notification dated 29.12.1954 issued by that Municipality. So long as the Municipality can levy and collect entertainments tax only after making bye-laws as required by S.12 of Act VI of 1951 it is clear that the Municipality cannot levy and collect entertainments tax as per the Notification dated 29.12.1954. 14. It was further argued for the Municipality that Rules have been made by Government under S.77(g) of the District Municipalities Act on 12.7.1946, that some of those rules relate to matters in respect of which the Municipality is required to make bye-laws under S.12 of Act VI of 1951 and that until bye-laws are made by the Municipality under the section those rules must have the force of bye-laws by virtue of the provision contained in S. 23 of the General Clauses Act, VII of 1125. We are unable to accept this argument also. What S.12 of Act VI of 1951 requires is that the Municipality shall make bye-laws before levying entertainments tax under S. 3 of the Act. Even if the Rules made by Government under S.77(g) of the District Municipalities Act can be deemed to be in force even after the commencement of the Local Authorities Entertainments Tax Act by virtue of the provisions contained in S. 23 of the General Clauses Act those Rules cannot be regarded as bye-laws made by the Municipality for the purposes of S.12 of Act VI of 1951. Government have already made rules under the new Act and therefore the rules made under the District Municipalities Act cannot be deemed to be in force even now in respect of the matters covered by the rules made under the new Act by virtue of S. 23 of the General Clauses Act. Again, the rules dated 12.7.1946 do not relate to all matters in respect of which the Municipality is required to make bye-laws under S.12 of Act VI of 1951. Admittedly no bye-laws were made by the Municipality under the District Municipalities Act in respect of matters mentioned in S.12 of Act VI of 1951. S.12 contains a mandatory provision and until the condition laid down in the section is fulfilled a local authority cannot levy entertainments tax under S.3 of the Act. Admittedly no bye-laws were made by the Municipality under the District Municipalities Act in respect of matters mentioned in S.12 of Act VI of 1951. S.12 contains a mandatory provision and until the condition laid down in the section is fulfilled a local authority cannot levy entertainments tax under S.3 of the Act. So long as the Alleppey Municipality has not satisfied the condition we do not think that it can levy entertainments tax under the new Act treating the rule made by Government under S.77(g) of the District Municipalities Act as bye-laws made by the Municipality under S.12 of Act VI of 1951. 15. It was next argued on behalf of the Municipality that by virtue of the provision contained in S. 23 of the General Clauses Act the Notification issued by the Municipality under the District Municipalities Act on 4.3.1947 will continue in force until a Notification is issued under Act VI of 1951, that the Notification dated 4.3.1947 must be deemed to be a Notification issued under the new Act and that the Municipality can levy and collect entertainments tax on the basis of that Notification. According to learned Counsel for the petitioners Act VI of 1951 does not provide for Notification to be issued by the Municipality in relation to the levying of entertainments tax, that the Notification issued under the District Municipalities Act cannot take the place of bye-laws to be made by the Municipality under S.12 of Act VI of 1951, that the Notification does not relate to matters in respect of which the Municipality is required to make bye-laws under the section and that the Municipality cannot levy entertainments tax on the basis of the Notification dated 4.3.1947 by virtue of the provision contained in S. 23 of the General Clauses Act. In this case, the Municipality is not levying entertainments tax as per the Notification dated 4.3.1947. Entertainments tax is being levied by the Municipality as per the Notification dated 29.12.1954 at a rate different from that mentioned in the Notification dated 4.3.1947. It is, therefore, not necessary to decide in this case whether the Municipality can levy entertainments tax on the petitioners on the basis of the Notification dated 4.3.1947. What we are called upon to decide in this case is whether the Municipality is entitled to levy entertainments tax on the petitioners as per the Notification dated 29.12.1954. It is, therefore, not necessary to decide in this case whether the Municipality can levy entertainments tax on the petitioners on the basis of the Notification dated 4.3.1947. What we are called upon to decide in this case is whether the Municipality is entitled to levy entertainments tax on the petitioners as per the Notification dated 29.12.1954. That question we have to decide against the Municipality and in favour of the petitioners. We hold that the Municipality has no right to levy and collect entertainments tax as per the Notification dated 29.12.1954. 16. We, therefore, prohibit the Alleppey Municipality from levying entertainments tax on the petitioners in O.Ps. Nos. 40,41 and 42 of 1955 as per Notification dated 29.12.1954. A writ will issue accordingly in each of these Original Petitions. O.P. Nos. 40, 41 and 42 of 1955 are allowed in the manner stated above. The first respondent-Municipality will pay the costs of the petitioners in the three original petitions including advocates' fee Rs. 100/- in each of the petitions. 17. O.P. Nos. 43 and 44 of 1955. The grounds alleged in the affidavits filed along with these petitions are the same as those alleged in the affidavits filed in support of the petitions Nos. 40, 41 and 42 of 1955. In the counter-affidavit filed on behalf of the Kottayam Municipality it was contended that even after Act VI of 1951 came into force the Municipality has been collecting entertainments tax under S.77(g), 78 and 79 of the District Municipalities Act, that those sections were not repealed by Act VI of 1951, that even if it is held that those sections are not in force now the Municipality is entitled to levy entertainments tax on the basis of the resolutions passed and Notifications issued under the District Municipalities Act, that S.12 of Act VI of 1951 is only directory and not mandatory, that since Government have made rules under S.11 of the Act S.12 has become 'futile', that the petitioners in the two petitions are not aggrieved persons and that the petitions are belated. 18. The Kottayam Municipality also has not made bye-laws as required by S.12 of Act VI of 1951. 18. The Kottayam Municipality also has not made bye-laws as required by S.12 of Act VI of 1951. It is stated in the affidavits filed in support of the petitions that the Municipality has sent to the petitioners certain rules called bye-laws but that they have not been approved by the Government and published in the Gazette as required by S. 12(3) of Act VI of 1951. It is not contended by the Municipality that it has made bye-laws as required by S.12(1) of the Act. 19. The Kottayam Municipality is now collecting entertainments tax as per a Notification dated 11.5.1954. The rate is 18 3/4 per cent of payments (above one anna) for admission to the entertainments. Under a Notification dated 1.9.1124 issued under the District Municipalities Act the Municipality was collecting entertainments tax at the rate of 121/2 per cent. After the coming into force of Act VI of 1951 the Municipality issued a Notification dated 4.4.1952 by which the rate was enhanced to 15 5/8 per cent. This was further enhanced to 18 3/4 per cent by the Notification dated 11.5.1954. All the Notifications were issued under S.77(g) of the District Municipalities Act. 20. We have already held that after the coming into force of Act VI of 1951 the Municipality can levy and collect entertainments tax only in accordance with that Act. We have also held that S.12 of the Act is mandatory and that the Municipality can levy entertainments tax under the Act only after making bye-laws as required by the section. We are unable to accept the contention of learned Advocate General that S.12 has become 'futile' by reason of the passing of rules by Government under S. 11. The Municipality is not entitled to levy entertainments tax under S. 3 of Act VI of 1951 without making bye-laws as required by S.12 of the Act. It follows that the Kottayam Municipality cannot levy entertainments tax on the petitioners in O.P. Nos. 43 and 44 of 1955 as per the Notification dated 4.4.1952 or that dated 11.5.1954 issued by the Municipality after the coming into force of Act VI of 1951. It follows that the Kottayam Municipality cannot levy entertainments tax on the petitioners in O.P. Nos. 43 and 44 of 1955 as per the Notification dated 4.4.1952 or that dated 11.5.1954 issued by the Municipality after the coming into force of Act VI of 1951. The question whether the Municipality can levy entertainments tax as per the Notification dated 1.9.1124 by virtue of the provisions contained in S. 23 of the General Clauses Act does not arise for consideration in these petitions since the Municipality is not levying entertainments tax on the petitioners on the basis of that Notification. There is also no substance in the contention that the petitioners are not aggrieved persons and that the petitions are liable to be dismissed on the ground that they are belated. 21. For the reasons stated above, we prohibit the Kottayam Municipality from levying entertainments tax on the petitioners in O.Ps. Nos. 43 and 44 of 1955 as per the Notification dated 11.5.1954 issued by the Municipality, under the District Municipalities Act. A writ will issue accordingly in each of the original petitions. O.Ps. Nos. 43 and 44 of 1955 are allowed in the manner stated above. The first respondent-Municipality will pay the costs of the petitioners in the two O.Ps. including advocate's fee Rs. 100/- in each petition. 22. O.P. No. 138 of 1955. The grounds alleged in the affidavit filed in support of this O.P. are the same as those alleged in the affidavits filed in O.Ps. Nos. 40 to 44 of 1955. In this petition there is also a prayer for allowing the petitioner to recover the amounts alleged to have been illegally collected from him by the Vaikom Municipality as entertainments tax. The averments in the counter-affidavit filed on behalf of the Municipality are practically the same as those contained in the counter-affidavits filed on behalf of the Kottayam Municipality in O.P. Nos. 43 and 44 of 1955. 23. The Vaikom Municipality also has not made bye-laws as required by S.12 of Act VI of 1951. By a Notification dated 11.8.1124 issued by the Vaikom Municipality under S.77(g) of the District Municipalities Act the Municipality levied entertainments tax at the rate of 121/2 per cent on all payments (more than two chuckrams) for admission to the entertainments. 23. The Vaikom Municipality also has not made bye-laws as required by S.12 of Act VI of 1951. By a Notification dated 11.8.1124 issued by the Vaikom Municipality under S.77(g) of the District Municipalities Act the Municipality levied entertainments tax at the rate of 121/2 per cent on all payments (more than two chuckrams) for admission to the entertainments. By another Notification dated 18.10.1954 purporting to have been issued by the Municipality under S.77(g) of the District Municipalities Act and under S. 3 of the Local Authorities Entertainments Tax Act, the Municipality continued to levy entertainments tax at the same rate. The Municipality is now levying entertainments tax as per the Notification dated 18.10.1954. 24. For the reasons already given by us, we hold that after the coming into force of Act VI of 1951 the Municipality can levy entertainments tax only in accordance with the provisions of that Act and that before levying such tax the Municipality is bound to make bye-laws as required by S.12 of the Act. Since the Vaikom Municipality has not made such bye-laws the Municipality is not entitled to levy entertainments tax on the petitioner as per the Notification dated 18.10.1954 issued by the Municipality after the coming into force of Act VI of 1951. The question whether the Municipality can levy entertainments tax as per the Notification dated 11.8.1124 by virtue of the provision contained in S. 23 of the General Clauses Act does not arise for consideration in this petition since the Municipality is not levying entertainments tax on the petitioner as per that Notification. As for the contention that the petitioner is not an aggrieved person we are unable to accept it. Nor is the petition liable to be dismissed on the ground that it is belated. We, therefore, prohibit the Vaikom Municipality from levying entertainments tax on the petitioner in O.P. No. 138 of 1955 as per the Notification dated 18.10.1954 issued by the Municipality. A writ will issue accordingly. 25. As for the prayer for directing the Municipality to refund the entertainments tax already collected from the petitioner, we are unable to allow it. The remedy of the petitioner, if any, is a suit brought for the purpose. 26. O.P. No. 138 of 1955 is allowed in the manner stated above. The respondent-Municipality will pay the costs of the petitioner including advocate's fee Rs. 100/-. Allowed.