U. C. BANERJEE, J. ( 1 ) THIS appeal is against an ex pare order of injunction granted by A. K. Janah, J. (As he then was) on the write petition of the respondents Nos1 and 2, directing an order of injunction restraining the state Government from giving any effect to the notification being No. 1042-F. T. Dated 31st March issued under S. 8 the Bengal Amusement Tax Act, 1922. ( 2 ) THE principal question that arises in this appeal as also in the writ petition, which was also taken up for hearing on the joint prayer of the parties along with the appeal, is whether the notification dated 31st March 1984 is volatile of the Constituently safeguards under Article 14 of the Constitution or not. ( 3 ) MR. Ajit Kumar Panja, the learned Counsel appearing for the writ petitioner contended that the impugned notification is discriminatory in nature and has treated equals unequally. Mr. Panja contended that the classification made by the State Government is wholly unwarranted and unauthorized and the consequent issuances of the memorandum by the commercial Tax officer, Amusement Tax Section, Government of West Bengal dated 7th April 1984, is bad in law as well as in the facts and circumstances of the instant case. ( 4 ) BEFORE adverting to the rival contentions, it would be worthwhile to refer to some of the provisions of the Act of 1922 and the notifications issued by the State Government prior to the enactment of the Amending Acts of 1981 and 1984. ( 5 ) SECTION 2 (4) defines entertainment and includes any exhibition, performance, amusement, game or sport to which persons are admitted for payment; ( 6 ) SECTION 2 (4) (a) deals with entertainment tax and meant a tax levied under S 3. ( 7 ) SECTION 3 of the said Act of 1922 provided that there shall be charged levied and paid to the State Government a tax on all payments for admission to any entertainments. Section 3 provides the rate of taxation at the graduated scale. ( 7 ) SECTION 3 of the said Act of 1922 provided that there shall be charged levied and paid to the State Government a tax on all payments for admission to any entertainments. Section 3 provides the rate of taxation at the graduated scale. ( 8 ) SECTION 8 prior to its amendment provided as follows: -8 (1) the entertainments tax (and the show tax) shall not be charged on payment for admission to any entertainment where the (State Government) is satisfied - (a)that the whole of the takings thereof are devoted to philanthropic, religious or charitable purpose without any charge on the takings for any expenses of the entertainment; or (b)that the entertainment is of a wholly educational character (any question on that point to be determined in the case of difference by the (State Government) in the department of education; or (c)that the entertainment is provided for party educational or party scientific purpose by a society, not conducted or established for profit; or (d)that the entertainment is provided by a society which is established solely for the purpose of promoting the interest of the industry or agriculture, or the manufacturing industry, or some branch thereof, or the public health, and which is not conducted for profit, and consists solely of an exhibition of the products of the industry, or branch thereof, for promoting the interests of which the society exists or of materials, machinery, appliances, or foodstuffs, used in the production of those products, or of articles which are of material interest in connection with the questions relating to the public health as the case may be. (2) The (State Government) may, by general or special order, exempt any entertainment or class of entertainments from liability to the entertainments tax (and the show tax)". ( 9 ) THE State Government on 1st September 1975 issued a notification being no. 3943-F. T under S. (2) of the Act of 1922 and exempted from the liability of entertainment tax on dramatic performances including jatra by professional or by other organizations subject to the condition that the exemption would not be available if the same exhibited directly or indirectly any cabaret. ( 10 ) BY a notification No. 3969 F. T. dated 29th August 1977 an amendment to the departmental notification No. 3943-F T, dated 1st September 1995 was effected and it provided that wherever the admission fee exceeds Rs. ( 10 ) BY a notification No. 3969 F. T. dated 29th August 1977 an amendment to the departmental notification No. 3943-F T, dated 1st September 1995 was effected and it provided that wherever the admission fee exceeds Rs. 15/-per ticket per show or in the case of a season ticket the average rate of admission fee exceeds Rs. 15/- per ticket per show, entertainment tax shall be charged, levied and paid to the Government at the rate of 20% of the admission fee. By a further notification No. 1297-F. T. dated 31st March 1979, the aforesaid limit of Rs. 15/- as per earlier notification no. 3969-F. T. dated 27th August 1977 was brought down to Rs. 7/- per ticket per show and provided further that no entertainment tax would be charged, levied or paid in respect of the performance organized by a group theater, amateur theater or amateur jatra, subject to the condition that organizers of such entertainment obtaining necessary certificate from the appropriate authority declaring them as bona fide group there, amateur geared or amateur jatra. Explanation to the notification provided however that the group theater or amateur theatre or amateur jatra would mean a registered or unregistered society of a group of person formed exclusively for the purposed of cultural activities and not for monitory gains by engaging artistes, who are not paid in regular or contractual fees. Appropriate authority under the said explanation meant Department of Information and Cultural Affairs, Government of West Bengal who would issue certificate to be renewed every three years. A professional theater or professional jatra meant any the article or histrionic purpose including musical recital organization by a proprietor or partnership concern or public limited concern or any appropriate or lessee of a public show house engaging artistes on payment of regular or contractual fees. ( 11 ) SUBSEQUENTLY, another notification being No. 1404-F. T. dated 10th April 1979 was issued and the limit of Rs. 7/-was again raised to Rs. 15-per ticket per show though the exemption in regard to Group Theater, amateur theatre or amateur jatra continued. ( 11 ) SUBSEQUENTLY, another notification being No. 1404-F. T. dated 10th April 1979 was issued and the limit of Rs. 7/-was again raised to Rs. 15-per ticket per show though the exemption in regard to Group Theater, amateur theatre or amateur jatra continued. ( 12 ) BY the West Bengal Taxation Laws Amendment Act, 1981, S. 8 of the said Act of 1922 was substituted as follows: -"8 The State Government may, for social educational or scientific purposes, by general or special order, exempt fully or partly the entertainments tax, show tax, surcharge or additional surcharge payable under this Act for any entertainment or class of entertainments, subject to such condition as may be laid down in such order. " ( 13 ) SECTION 3 of the said Act (of 1922 also underwent an amendment by the West Bengal Act Iv of 1984 wherein the graduated scale of taxation have been revised.) ( 14 ) THE notification under challenge, dated 31st March 1984 was issued by the Government of West Bengal in exercise of the powers conferred under S. 8 of the Bengal Amusements Tax Act, 1922 with effect from 1st April 1984, where under thee earlier notifications No. 1279 dated 31st March 1979, 1404 dated 19th April 1979,1084 dated 23rd March 1983 and all previous orders exempting payment of entertainment tax on performance ether than the cinematographic exhibition issued under S. 8 of the said Act were rescinded. The notification however provided that no entertainment taxed shall be charged levied and paid in respect of any performance organized by a group theatre, amateur theatre or amateur jatra subject to the condition that the organizers of such performance shall obtain necessary certificates from the appropriate authority, declaring them as bona fide group theatre, amateur theatre or amateur jatra. Explanation to the said notification reads as follows: -explanation: -" (A) "group Theatre" or "amateur Theatre" or "amateur Jatra" means a registered or unregistered society or a group of persons formed exclusively for the purposes of cultural activities and not for monetary gains by engaging artistes who are not paid any regular or contractual fees. "amateur Theater" also includes any amateur organization engaged in dance and music. "amateur Theater" also includes any amateur organization engaged in dance and music. (b) "appropriate Authority" means the department of Information and Cultural Affairs, Government of West Bengal, who shall issue certificates to be renewed every year on the basis of papers and returns as may be required by that department from time to time. (c) "professional Theatre" or "professional Jatra" means any theatrical or histrionic performance including musical recitals organized by a proprietary or partnership concern or public limited company or any proprietor or lessee of a public show house, engaging artistes on payment of regular or contractual fees. " ( 15 ) MR. Panja in support of his contention submitted that the requirements for the grant of exemption under S. 8 is only social, educational or scientific-if that requirement is fulfilled, one is entitled to the grant of exemption, subject however to conditions which may be imposed by the executive action. The power to grant exemption is circumscribed by S. 8 of the Act. There cannot be any differentiation between entertainments, which are ad mutedly for social, educational or scientific purposes. These entertainments form a class by themselves and further dissection is not permissible. The concept of monetary gain or engagement of artistes on regular or contractual basis cannot be the decisive test for the purpose of forming a separate class or a distinct entity ad the executive action in that regard is wholly arbitrary. In any event, Mr. Panja contended that by reason of express abandonment of the concept of monitory gain or engagement of artiste without any contractual or regular remuneration in the substituted S. 8, the said concept cannot be taken as the basis of classification. Mr. Panja contended that the legislative intent is manifestly clear that sub-s (a) and (c) of old S. 8 cannot be invoked aid of classification under S. 8 of the Act after its amendment. Mr. Panja, relying upon the decision of the Supreme Court in the case of A. R. Antulay v. Ramdas Sriniwas Nayak, reported in 1984 (2) SCC 500 submitted that where a statute requires to do a certain thing in a certain was, the thing must be done in that was or not at all and other methods of performance are necessarily forbidden. ( 16 ) MR. ( 16 ) MR. Naranarayan Gooptu appearing for the State Government however contended that there exists no arbitrariness either in the matter of classification or in the matter of granting relief form the liability of tam under the Act of 1922 in so far as group theaters, amateur theatres and amateur jatras are concerned. The notification itself has made the classifications appears from Explanation (a) and (c ). Non- monetary gaina and fictions appears from Explanation (a) and (c ). Non-monetary gaina and engagement of artiste without any remuneration make group theatre amateur theatre amateur jatra a class by themselves. ( 17 ) MR. Gooptu contended that the law is now well settled that micro classification is permissible and by reason of such classification, question of violation of constitutional safeguard under Article 14 does not and cannot arise. Mr. Gooptu contended that the virus of S. 8 has not been challenged and after its substitution, the section has conferred much more wider power than what it was under the old S. 8 and there is no fetter on the powers of the executive authority. ( 18 ) ADMITTEDLY, dramatic performances on public stage cannot say to be devoid of any social values. Dramatic performances are it by group theater or amateur theatre or professional theatres always aim at social reformation and Mr. Goptu in his usual fairness has also conceded that position. As a matter of fact more often that not productions of group theatres are highly intel;lectual in nature and are beyond the understanding or intellectual capability of common man. The social and educative values of these productions find expression at vary high level and as such are meant mostly for the sophisticated and intellectual class. In contradistinction with the aforesaid, professional theatres however, though amid at the same social reformation, but present their productions for the common man. The small percentage of people that derive entertainment from out of the group theatre can't even be compared with that of the professional entertainment. The fact that the group theatres are facing tremendous financial crisis even with the Government grant as submitted by Mr. Gooptu corroborates such a situation. It is on the background classification by the executive authority under S. 8 is to be considered. The fact that the group theatres are facing tremendous financial crisis even with the Government grant as submitted by Mr. Gooptu corroborates such a situation. It is on the background classification by the executive authority under S. 8 is to be considered. ( 19 ) IT is now taken to be well settled that classification must not be arbitrary but must be rational, that is to say it must not only be based on some qualities or characteristics which are to be found in all the persons characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled namely, (a) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (b) that differentia must have a rational relation to the object sought to be achieved by the Act. This view finds support of his contention in the case of the Amant Mills Ltd v. State of Gujrat reported in AIR 1975 SC 1234 as also in the case of D. S. Nakara v. Union of India reported in AIR 1983 SC 130 . ( 20 ) THE fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of the legislation which classification must satisfy the twin test REFERRED TO above. ( 21 ) MR. Gooptu placed strong reliance on the decision of this Court in the case of Spences Hotel (P) Ltd, and Anr. v. State of West Bengal and ors, reported in 1975 Calcutta High Court Notes 115. In that decision, this Court was considering the validity of West Bengal Entertainment (Hotel and Restaurants) Tax Act, 1972. In the said enactment, classification has been made between air-conditioned space in hotel and restaurants and non-air-conditioned space in hotels and restaurants and this Court came to a finding that there is an intelligible differentia and the differential has a rational relation to the object sought to be achieved by the Act, which is to provide any imposition of tam on entertainment an d luxuries in hotel and restaurants. The said Act of 1972 imposed a tax on the extent and volume of air-conditioned space in a hotel and restaurant wherever situated In our view, the said decision of this Court is of no assistance to Mr. The said Act of 1972 imposed a tax on the extent and volume of air-conditioned space in a hotel and restaurant wherever situated In our view, the said decision of this Court is of no assistance to Mr. Gooptu inasmuch as a classification has a been made between air-conditioned and non-conditioned places in hotels and their exists a reasonable basis for such classification which is however totally absent in the case under consideration. ( 22 ) THE other decision on which strong reliance was placed by Mr. Gooptu is the decision of the Supreme Court in the case of Ramkrishna Dalmia and ors vs. Justice S. R. . Tendulakar, reported in AIR 1958 SC 538 . While there cannot be any dispute in regard to lie down by the Supreme Court, but the said decision does not lend any support to Mr. Gooptu. ( 23 ) MR. Gooptu further relied on the decision of the Supreme Court reported in AIR 1974 SC 497 (M/s. Murthy Match Works v. Asstt. Controller of Central Excise and ors ). In that decision, the Supreme Court, While dismissing the appeal of the small manufacture of matches, who have been subjected to excise duty at the same onerous rate as has been applied to the larger producers observed: -"it is true that a State may classify persons and object for the purpose of legislature and pass laws for the purpose of obtaining revenue or other objects. Every differentiation is not discrimination. But classification can be sustained only if it is found on pertinent and real differences as DISTINGUISHED from irrelevant and artificial ones. The constitutional standard by which the sufficiency of the differential which forms a valid basis for classification may be measured, has been repeatedly stated by the courts. If it rests on a difference which bears a fair and just relation to the object for which it is proposed, it is constitutional. " ( 24 ) THIS decision also in not of any assistance to Mr. Gooptu. Section 8 of the Bengal. Amusement Tax Act, 1922 as amended by the West Bengal Taxation Laws. Amendment Act 1981 authorizes the State Government to exempt entertainment by general or special orders form payment of entertainment taxes, show tames surcharges or additional surcharges. " ( 24 ) THIS decision also in not of any assistance to Mr. Gooptu. Section 8 of the Bengal. Amusement Tax Act, 1922 as amended by the West Bengal Taxation Laws. Amendment Act 1981 authorizes the State Government to exempt entertainment by general or special orders form payment of entertainment taxes, show tames surcharges or additional surcharges. The power to exempt is to be exercised by the State Government in the event however if the entertainment is for social, educational or scientific purposes. The classification if any, may be made or is permissible under the statute after keeping in view of the language of the statute. If the classification contravenes the basic requirement of the statute, the Court should hesitate to say so. The quality or characteristics must have a reasonable relation to the object of the statute. In any event, introduction in substance the subsections (a) and (c) of old S. 8 for the purpose of classification would be contrary to all recognized principles of law. ( 25 ) THE law is well settled in regard to amending statutes viz where an amending Act alters the language of the principal statute, the alteration must be taken to have been deliberately made. The change cannot be disregarded as mere freak of the legislature. In this context reference may be made to the decision of this Court in the case of J. K. Industries (P) Ltd, 1. Ganges Manufacturing Co. Ltd. Reported in 72 Calwn 618. ( 26 ) IT should also be noted that what the legislature has deliberately left out, an executive action couldn't reintroduce it by way of a notification. ( 27 ) DRAMATIC performances for social, educational or scientific purposes form a class by themselves and further classification, in our opinion, is not permissible in law. Profit motive and engagement of artistes on contractual or regular remuneration basis do not have a rational relationship to the object sought to be achieved by the Act. Both the group theatres, amateur theatres and amateur jatras as also the professional theatres administer entertainment and as stayed above are for social purposes. In our view classification cannot be reasonably regarded as based upon some differentia, which distinguishes group theaters, amateur theatres or amateur jatra from the professional theatres. Both the group theatres, amateur theatres and amateur jatras as also the professional theatres administer entertainment and as stayed above are for social purposes. In our view classification cannot be reasonably regarded as based upon some differentia, which distinguishes group theaters, amateur theatres or amateur jatra from the professional theatres. The twin tests REFERRED TO above have not been satisfied in this case and there is nothing on the face of the notification or even any surrounding circumstances brought to the notice of this Court, on which the classification may reasonably be regarded as based. The presumption of constitutionally in our opinion cannot be carried to the extent of always holding that there must be some undisclosed or unknown reason for subjecting certain individuals or group of persons to hostile or discriminating legislation or executive actions. ( 28 ) IT is true the court must be very cautious in judging the question of the validity of the legislation because every presumption is in favour of the validity of the Act of legislature until the same is beyond any rational doubt. The legislature is supposed to know the wishes and the needs of the people and the law makers are supposed to reflect the intention of the people. It is also said that our lawmakers are in possession of facts upon which the legislation is based while the Courts are not. But if a statute or an act of the State were opposed to the Constitution the Court has no choice but to say so. ( 29 ) IN that view of the matter we are of he opinion that the notification dated 31st March 1984 being no 1042-F. T. Contravenes the constitutional safeguard under Article 14 of the Constitution and as such the notification is unenforceable. ( 30 ) THE question in regard to the violation of Article 19 (1) (g) has not been seriously urged at the hearing as such, we need not express any opinion thereon. ( 31 ) IN the view we have taken as indicated above, we declare the notification dated 31st March 1984 being no. 1042-F. T, issued under S. 8 of the Bengal Amusement Tax 1922 to be ultra vires and restrain the appellant by an order of injunction form enforcing the notification no 1042-F. T. Dated 31st March 1984. ( 31 ) IN the view we have taken as indicated above, we declare the notification dated 31st March 1984 being no. 1042-F. T, issued under S. 8 of the Bengal Amusement Tax 1922 to be ultra vires and restrain the appellant by an order of injunction form enforcing the notification no 1042-F. T. Dated 31st March 1984. ( 32 ) IN the premises, the notification as also the memorandum dated 7th April 1984 are set aside and quashed. The appellants are directed to refund the tax collection either in terms of the order of this Court or otherwise to the writ petitioners within a period of four weeks from dated. ( 33 ) IN that view of the matter, the appeal fails. Rule issued by the learned Trial Judge succeeds and is made absolute. In the facts of this case there will however be no order as to courts. Prayer for stay made but rejected. M. N. Roy J: I agree. Appeal dismissed rule made absolute.