ORDER D. V. SHYLENDRA KUMAR :- The writ petitioners are all institutions known as "clubs" and are societies registered under the provisions of the Karnataka Societies Registration Act, 1960 (Karnataka Act No. 17 of 1960). The petitioner - institutions claim to provide various facilities to its registered members, their families and guests of the members. The objects of one of the petitioners - Chikmagalur Club as averred in W. P. No. 7017 of 2006 and prominent amongst them as mentioned in the said petition are as under : "Objects - The Chikmagalur Club is constituted for the purpose of improved social, cultural and physical condition of the people of Chikmagalur, in particular and the District in general by : (a) Affording facilities for the free and unrestricted association of respectable persons of all casts, creeds and professions. (b) Opening libraries, reading rooms and arranging for cultural programmes and lecturers of non-political character. (c) Arranging for indoor and outdoor games and tournaments." All the petitioners - clubs claim that they have their own bye-laws for the purpose of interaction amongst the members of the club and for the purpose of managing the affairs of the club. The petitioner - clubs are before this court challenging the constitutional validity of the levy of what is known as "luxury tax" under the provisions of the Karnataka Tax on Luxuries Act, 1979 (for short, "the Act") and in particular as levied under section 3D of the Act which had been introduced into the parent Act by an amendment in terms of Karnataka Act No. 3 of 2004 which received the assent of the Governor on January 29, 2004 and became law from that date but is nevertheless given effect from April 1, 2003 in terms of the provisions of the very amending Act. It is questioning the levy of luxury tax in terms of section 3D of the parent Act as introduced by Act No. 3 of 2004, on the premise that a levy of this nature is beyond the competence of the State Legislature; that it is even beyond the scope of taxing power available to a State Legislature in terms of entry 62 of List II of the Seventh Schedule to the Constitution of India, the legality and validity of this provision is questioned in all these writ petitions. The petitioners have sought for issue of a writ of declaration to declare section 3D of the Act as unconstitutional not only on the premise that it is beyond the legislative competence of the State Legislature but also contending that section 3D as introduced by Act No. 3 of 2004 strikes a discordant note with the scheme of the Act; that the scheme of the Act can be inferred by looking into sections 3B and 3C of the Act which are also charging sections for levy of luxury tax and the manner in which luxury tax is sought to be levied under section 3D is not in line with the general scheme and for this reason also the relief is sought for declaring the provisions of section 3D as ultra vires the provisions of the Act. The petitioners have also sought for quashing of consequential action as is sought to be enforced or implemented by the authorities functioning under the provisions of the Act. All the petitioner - clubs are without dispute institutions providing/selling not only goods but also facilities. The petitioners are all dealers under the provisions of the Karnataka Value Added Tax Act, 2003 which is attracted whenever certain goods and commodities are sold in the course of business. The petitioner - clubs though claim to be catering to the exclusive needs and requirements of its members are nevertheless dealers under the provisions of the Karnataka Value Added Tax Act, 2003 and likewise liable for payment of tax under the provisions of the Karnataka Tax on Professions, Trades, Callings and Employments Act, 1976. What is in issue in the present batch of writ petitions is the liability in terms of section 3D of the Karnataka Tax on Luxuries Act, 1979. What is in issue in the present batch of writ petitions is the liability in terms of section 3D of the Karnataka Tax on Luxuries Act, 1979. Undisputedly the petitioners are all "proprietors" within the meaning of this expression as it occurs in section 2(6) of the Act which reads as under : "2(6) 'Proprietor, in relation to a hotel or a marriage hall or a club or a hospital' means any person who is owning or holding a hotel or a marriage hall or hospital in any capacity recognised by law or the secretary or manager or any other person entrusted with the management of a club or hospital, and includes, the person who for the time being is in charge of the management of the hotel or marriage hall or club or hospital." The petitioners have obtained registration in terms of section 4A of the Act which enables them to collect any amount by way of tax and lift the embargo under section 6A of the Act so long as such collection is not exceeding the rate specified under the Act and other procedural requirements are complied. The petitioners are all proprietors who are even now paying luxury tax under other provisions of the Act such as section 3B or 3C, but it is only in respect of the levy under section 3D as introduced by Karnataka Act No. 3 of 2004 that the petitioners are aggrieved and have questioned the legality of such levy in these petitions. Section 3D as introduced by Karnataka Act No. 3 of 2004 reads as under : "3D. Levy and collection of tax on luxury provided in a club. - (1) There shall be levied and collected a tax on luxuries provided in a club to the members who are required to pay any amount as fee, deposit, donation or any other such charges by whatever name called, at the rate as specified in column (3) of the table below : Sl. No. Location of dub Rate of tax (1) (2) (3) 1. Corporation area Six hundred rupees per member per annum 2. No. Location of dub Rate of tax (1) (2) (3) 1. Corporation area Six hundred rupees per member per annum 2. Other areas Three hundred rupees per member per annum Provided that no tax shall be payable in respect of a member who has attained sixty-five years of age and who is not a corporate member subject to such conditions as may be prescribed : Provided further that no tax shall be payable in respect of a member of a youth club registered or recognised as such by the Department of Youth Services. (2) The tax levied under sub-section (1) shall be paid by every proprietor within such period and in such manner as may be prescribed. Explanation I. - For the purpose of this section, luxuries means more than one of the facilities like card room, bar, billiards room, snooker room, tennis court, swimming pool, sauna, jacuzzi and the like, gymnasium, golf course, internet facility, video, video compact disk, digital video disk and computer games. Explanation II. - Where any corporate membership or similar membership allows use of luxuries provided in a club by more than one person (other than a person who is a dependent of the member), tax shall be levied and collected in respect of every such person." The petitioners have also questioned the legality of levy under section 3D as the levy according to the petitioners is on a member of a club and not on the availment of facility in the nature of a luxury and therefore it goes beyond the scope of a levy that can be subject-matter of taxation under entry 62 of List II of the Seventh Schedule to the Constitution of India and is as such beyond the legislative competence of the State Legislature. In this regard, the petitioners have placed reliance on the judgment of the Supreme Court in the case of Godfrey Phillips India Ltd. v. State of U.P. reported in [2005] 139 STC 537 (SC); [2005] 2 SCC 515. Considerable reliance is placed on this judgment, particularly, on three requirements stipulated therein for constituting a valid levy in respect of the luxuries as the phrase occurs in entry 62 of List II, namely, the persons and identification by the charging section the taxable person, the taxable facilities in the nature of luxury and the taxable event. Considerable reliance is placed on this judgment, particularly, on three requirements stipulated therein for constituting a valid levy in respect of the luxuries as the phrase occurs in entry 62 of List II, namely, the persons and identification by the charging section the taxable person, the taxable facilities in the nature of luxury and the taxable event. The contention is that even without a taxable event taking place a liability is sought to be created under the provisions of the Act and such liability is clearly in the teeth of the requirements as enumerated in paragraph 85 of the said judgment and therefore the levy in terms of section 3D of the Act is bad in law. Writ petitions have all been admitted for examination and the State has been called upon to defend the validity of the legislation. The respondent - State and its officers are represented by Sri K. M. Shivayogiswamy, learned Government Pleader. Statement of objections have been filed in W.P. No. 15119 of 2004 and it is adopted in all other writ petitions. It is, inter alia, averred in the statement of objections filed on behalf of the State and its officers that the provisions of section 3D of the Act as introduced by Act No. 3 of 2004 is a valid piece of legislation; that it is well-within the competence of the State Legislature to enact such law and to levy the luxury tax as under section 3D of the Act; that it is within the scope of entry 62 of the State List; that action taken pursuant to the levy by the officers are all valid and competent; that there is no violation of either article 14 or article 19 of the Constitution of India as the exemptions granted in favour of youth club and senior citizens is a valid classification and by leaving out persons who are forming a distinct group or distinct class with the object of providing relief from the levy; that different rates at Rs. 600 and Rs. 600 and Rs. 300 on clubs located within the corporation area and beyond the corporation area, respectively, is also justified as the very classification is based on the location within a corporation area meaning thereby in a very highly urbanised area and clubs located outside the corporation area being not so forming a distinct and separate group; that the levy of tax under the enactment and particularly under section 3D of the Act is only on an activity or enjoyment or indulgence in a luxury which in fact is a luxury when such facilities are enjoyed in exclusive and privileged clubs like the petitioners; that they are undisputedly beyond the requirements and reach of an average member of the society; that the levy is not linked to any goods which may be subject-matter of transactions of the facility but it is only on the actual facility which is extended by the petitioner - clubs; that certain goods have been used in the context of providing such facility; that the petitioner - clubs being exclusive institutions catering to the requirement of their own members and providing such facilities which are undisputedly in the nature of a luxury, levy on providing such luxury on such institutions is well-justified. The respondents have also placed reliance on the judgment of the Supreme Court in the case of Express Hotels Private Ltd. v. State of Gujarat reported in [1989] 74 STC 157; AIR 1989 SC 1949 to meet the contention that there cannot be any levy of luxury tax on the mere providing of a facility of luxury but when it is not actually utilised. It is contended that actual availment of luxury is not a requirement for attracting levy of luxury tax; that it can be notional also and therefore the argument that luxury tax cannot be levied when it is not actually availed of by the members is not available to the petitioners to declare the legislation as beyond the competence of the State Legislature. It is also averred in the statement of objections that the facilities provided in a club and which are sought to be subjected to tax as a luxury in terms of section 3D of the Act and as indicated therein are all in reality in the nature of luxury; that the argument that such facilities have become common features of all clubs and availed of even by the members of the general public is not an argument to take it out of the concept of perception of luxury as all these facilities are neither within the reach of an average person in the society nor are available as a matter of course to the average member of the society. The argument in some of the petitions that the petitioners being not a legal entity, there is no liability for tax is countered by pointing out that it is nevertheless a club of members registered or unregistered and it attracts liability under the provisions of the Act; that it matters little as to whether it is registered club or an unregistered club. It is also urged that the charging section itself is fully effectuated even without the aid of any rules to be framed under the section for implementing or enforcing the charge and therefore want of any rule to supplement the charging section is not a drawback nor the charge fails. Insofar as the liability of the petitioners is concerned, it is pointed out that it is for the petitioners to place their records and material to claim exemption if any and there is no need to examine various factual grievance or even such other grievance which may have a link to the legal provisions at this stage and even before the authorities examine the same and has accordingly prayed for dismissal of the writ petition. Additional statement of objections is also filed. Additional statement of objections is also filed. It is pointed out that the concept of luxury is as defined in the very section for the purpose of section 3D of the Act in terms of Explanation I to the section and when such facilities are made available in clubs exclusively for the members or guests, it is identified as luxury; that it is such facilities which are provided at a considerable cost not within the reach of a common man; that the clubs in fact do not serve any public cause or purpose, but are institutions enjoying considerable State patronage in the form of providing land and other facilities and catering to the enjoyment of only to its members and the very activity itself is an activity of enjoyment and being exclusively is definitely a luxury. It is also pointed out that even in terms of the definition of word "luxury" for the purpose of section 3D, it is only when the facilities provided in combination with any other facility that becomes a luxury; that a single facility by itself is not a luxury and such other facilities for reading, humour, etc., are not taken to be as luxuries for the purpose of the section. It is accordingly contended that the Legislature had taken care to levy tax only on provision of such facilities which constitute a luxury in clubs and provided in clubs and the legislation is a valid piece of legislation. It is also averred in the statement of objections that the liability in terms of section 3D is on the clubs and not on the members; that if a person happens to be a member in several clubs and being taxed in many folds is not an argument that can be countenanced to invalidate the legislation; that the consequence of a willing and voluntary act of a member of a club which is liable to pay luxury tax is not a criterion to examine the validity of the Act, is the stand of the State. Non-payment of subscription by several members is also pointed out as of no consequence nor having any bearing on the validity of the levy of luxury tax. Non-payment of subscription by several members is also pointed out as of no consequence nor having any bearing on the validity of the levy of luxury tax. It is also pointed out by the respondent - State that rules 2B, 4, 4B and 5B of the Act, which have been considerably amended fully supplementing the provisions of section 3D of the Act, that there is no impediment or difficulty as pleaded by the petitioners to comply with the requirement of section 3D for payment of luxury tax. It is also pointed out that a club is required to pay tax only on the basis of number of members at the beginning of every year and therefore the possibility of collection of tax even on senior citizens who become members in the middle of the year is not a factual situation as averred in the writ petitions. I have heard Sri G. Rabinathan, learned counsel for the petitioners and Sri K. M. Shivayogiswamy, learned Government Pleader appearing for the respondents. Appearing for the petitioner in W.P. No. 7017 of 2006, Sri G. Rabinathan, learned counsel, has put forth a two-fold contention. Firstly that the levy in terms of section 3D of the Act is a levy which is beyond the competence of the Legislature, as the levy permitted under entry 62 of List II of the Seventh Schedule to the Constitution of India is only on a luxury and not on common ordinary facilities provided in a club. The facility, whether provided in a club or otherwise, if is not a facility in the nature of a luxury, levy becomes beyond the legislative competence is the argument. For this purpose, it is pointed out that most of the facilities on which tax is sought to be levied as luxury tax are all common facilities and which have become a facility even within the reach of a common man and even otherwise enjoyed by most of the members of the society and therefore the levy cannot be termed as a tax on any luxury, but a tax on even a non-luxury arid therefore the levy is bad. The observation of the Supreme Court in the case of Godfrey Phillips [2005] 139 STC 537; [2005] 2 SCC 515, in para 85 of this decision, is heavily relied upon to submit that the levy unless is on the actual enjoyment of a luxury is again beyond the scope of entry 62 of State List. The following observation of the Supreme Court occurs in paras 84 and 85 : "84. Furthermore where articles have been made the object of taxation, either directly or indirectly, the entries in the legislative Lists have specifically said so or the impost is such that the subject-matter of tax follows by necessary implication. In List II itself, the State Legislature has been given the right to levy taxes on the entry of goods under entry 53, on 'carriage of goods and passengers' under entry 56, on 'vehicles' under entry 57 and on 'animals and boats' under entry 58. There is no instance in any of the legislative Lists of a tax being leviable only with reference to an attribute. An attribute as an object of taxation without reference to the object it qualifies would lead to legislative mayhem, blur the careful demarcation between taxation entries and upset the elaborate scheme embodied in the Constitution for the collection and distribution of revenue between the Union and the States. For example would a luxury vehicle be subjected to tax under entry 62 or entry 57 of List II ? In the latter case, the levy would be subject to provisions of entry 35 of List III and hence capable of being overridden by Parliament. If it is referable to entry 62 there would be no such concurrent power in Parliament. 85. Hence on an application of general principles of interpretation, we would hold that the word 'luxuries' in entry 62 of List II means the activity of enjoyment of or indulgence in that which is costly or which is generally recognised as being beyond the necessary requirements of an average member of society and not articles of luxury." is heavily relied upon by Sri G. Rabinathan, learned counsel for the petitioner, to make the submission that levy under section 3D is beyond the legislative competence. Referring to the provisions of section 3D, it is pointed out that the levy under the section is even on the mere existence of a facility of luxury in a club and the authority administering the Act as of now demanding and collecting luxury tax from the petitioner - clubs irrespective of the members enjoying the facility; that mere availability of the facility is taken as a criterion for raising the demand under this provision; that the section 3D creates a liability for payment of tax on mere existence of a facility, it is clearly a provision which is opposed to the requirement of luxuries for the purpose of entry 62 of List II, as pointed out by the Supreme Court in para 85 of the case in Godfrey Phillips [2005] 139 STC 537 (SC); [2005] 2 SCC 515; that the Supreme Court had examined and held that to constitute an activity of luxury, it must be only an enjoyment or indulgence in an activity which is costly and which generally recognised as being beyond necessary requirement of an average member of the society, and not articles of luxury; that the Supreme Court was also conscious of its earlier decision in the case of Express Hotels Private Ltd. [1989] 74 STC 157 (SC); AIR 1989 SC 1949 and having referred to that judgment in the case of Godfrey Phillips [2005] 139 STC 537 (SC); [2005] 2 SCC 515 and having laid down this law, a declaration as contained in para 85 in the case of Godfrey Phillips [2005] 139 STC 537 (SC); [2005] 2 SCC 515 would prevail and should be applied for extending the concept of "luxury" and as to when an activity can be termed as an activity of luxury and if so, the charging section seeking to levy tax even when there is no activity of enjoyment and indulgence in the sense, availing of the facility of luxury, levy of tax is clearly bad in law. The other contention urged by Sri Rabinathan is that section 3D as introduced by the Karnataka Act No. 3 of 2004 is not in scheme with the provisions of sections 3B and 3C of the very Act; that in terms of sections 3B and 3D of the Act, while tax is sought to be levied at the percentage of actual charges collected for luxuries provided in a hotel for residents or others such as in a health club, beauty parlour, swimming pool, conference hall and the like, and even under section 3C, it is at the percentage of the actual charges of rent collected for the marriage halls, under section 3D, it is not at any percentage but is sought to be levied on the number of members of the club, which is not only contrary to the scheme of the Act, but virtually a levy on the membership of the club, in the sense, on every person when he/she becomes a member of a club is taken to be the criterion for levying tax and therefore the provision is bad in law. The alternative submission on this aspect is that the levy under section 3D is a levy on the very activity, yet again though it is already subjected to tax under section 3B and therefore there cannot be any further levy under section 3D on the same activity. Sri K. N. Phanindra, learned counsel for the petitioner in W.P. No. 992 of 2006, would, apart from adopting the submissions of Sri Rabinathan, points out that the definition of "luxury" as it occurs in section 2(4B) of the Act having been exhaustively defined as what is luxury, there cannot be any further additions in section 2(4B) of the Act in terms of section 3D and therefore the levy under section 3D being not in the nature of levy on luxury, is bad in law even in terms of the very definition in the Act. Sri Phanindra would also urge that when once the luxuries provided in a club are taxed, at 20 per cent of the value of luxury provided to a member in terms of section 3B of the Act, there cannot be a further levy on the very activity or on the very facility yet again under section 3D and it amounts to a double taxation and points out that the levy as envisaged under section 3D being in the nature of levy when it is or it cannot be levied under section 3B, i.e., when the luxury is not availed of and no payment is made, the levy is yet again not a levy on availment of any luxury but on the mere existence of a luxury in a club and therefore the levy is bad in terms of the judgment of the Supreme Court in the case of Godfrey Phillips [2005] 139 STC 537 (SC); [2005] 2 SCC 515. It is also pointed out, with reference to the facts of the particular writ petition, that the notice at annexure G is one calling upon the petitioner to pay tax under section 3D even for the year 2002-03, whereas the levy itself is being effectuated from April 1, 2003 and therefore even on facts the proposition for levy of luxury tax in respect of the year 2002-03 is bad. The petitioner having paid the tax in response to this proposition notice and without prejudice to the contention urges for issue of a direction for refund of the tax paid in the event of success in the writ petition and also the tax paid for the year when there was no levy in terms of section 3D. It is also contended that under the impugned notice, the petitioner is to compound the offence in terms of section 15 of the Act and is therefore bad in law as the very levy is without authority of law and having proposed to levy the tax even for the year 2002-03, when there was no charging section 3D of the Act in the manner it was proposed. Sri K. Hema Kumar, learned counsel for the petitioner in W.P. No. 11829 of 2004, apart from adopting the legal arguments submitted by the earlier counsel, would also point out that the petitioner having approached the court at the stage of issue of notices and further proceedings having been withheld by the respondents during the pendency of the writ petition, the petitioner's purpose will be served if a declaration is made and the notices are quashed. All other learned counsel for the petitioners in other writ petitions, including Sri G. Papi Reddy, learned counsel for the petitioner in W. P. No. 45585 of 2004, would submit to the same effect, placing reliance on the decision of the Supreme Court in the case of Godfrey Phillips [2005] 139 STC 537; [2005] 2 SCC 515. All other learned counsel for the petitioners in other writ petitions, including Sri G. Papi Reddy, learned counsel for the petitioner in W. P. No. 45585 of 2004, would submit to the same effect, placing reliance on the decision of the Supreme Court in the case of Godfrey Phillips [2005] 139 STC 537; [2005] 2 SCC 515. Appearing for the respondent - State and its officers, Sri K. M. Shivayogiswamy, learned Government Pleader, apart from reiterating the contentions urged in the statement of objections and additional statement of objections, would submit that the levy in terms of section 3D of the Act and giving effect to it from April 1, 2003 is a levy which is only a levy in the nature of tax on luxuries within the scope of entry 62 of State List; that the argument that facilities are not luxuries cannot be accepted, as it is common knowledge that memberships of clubs like the petitioner - clubs are not accessible to average citizens of the country and that the membership commands a huge membership fee, recurring subscription fee and many a time running to several lakhs and by any stretch of imagination, it cannot be termed as a facility accessible by an average citizen of the country; that the club itself is a luxury and therefore the argument that some of the facilities which are termed as luxury under the provisions of the Act are not actually luxuries is an argument which is to be rejected at the threshold; that the facility when provided at such a place which are exclusively to the members of the club and their guests is undoubtedly a luxury, though in a common place and when available to general public, whether it constitutes a luxury or otherwise, may be a debatable point and therefore submits that insofar as levy under the Act even in terms of section 3D on an activity described as luxury in the very section is concerned, is undoubtedly a levy only on luxury and even within the meaning of this phrase as occurs or as is understood by the Supreme Court in the case of Godfrey Phillips [2005] 139 STC 537; [2005] 2 SCC 515 and therefore submits that levy is a valid levy. With regard to the argument that the levy can only be on the actual utilisation and not on the mere availability at a club, learned Government Pleader would rely on the ratio laid down by the Supreme Court in the case of Express Hotels Private Ltd. [1989] 74 STC 157; AIR 1989 SC 1949 , as it occurs in para 74 (in 74 STC 157) particularly, the following observations at page 170 : "There might possibly be some distinctions between the ideas of 'entertainment' and 'luxuries'. With due respect to the High Court, the interpretation that commended itself to the High Court would unduly restrict the scope of the legislative entry. On such an interpretation, it might be possible for a person to go further and also contend that no 'entertainment' was actually derived. The concept of 'luxuries' in the legislative entry takes within it everything that can fairly and reasonably be said to be comprehended in it. The actual measure of the levy is a matter of legislative policy and convenience. So long as the legislation has reasonable nexus with the concept of 'luxuries' in the broad and general sense in which the expressions in legislative tests are comprehended, the legislative competence extends to all matters 'with respect to' that field or topic of legislation. The taxable event need not necessarily be the actual utilisation or the actual consumption, as the case may be, of the luxury. The contention, in substance, is that the means of providing luxury, by itself, does not provide the nexus between the taxing power and the subject of tax and there must be an actual, and not merely a notional or potential, consumption or utilisation of the luxury. As an instance of what can be said to be fairly and reasonably comprehended in a legislative entry, reference may be made to the 'notional' income, for purposes of a tax on income, of a person, from a house property in his own personal occupation or a property not actually let. In that context, this court said 'that which can be converted into income can be reasonably regarded as giving rise to income'. See Bhagwan Dass Jain v. Union of India [1981] 128 ITR 315 (SC); AIR 1981 SC 907 . A luxury which can reasonably be said to be amenable to a potential consumption does provide the nexus. In that context, this court said 'that which can be converted into income can be reasonably regarded as giving rise to income'. See Bhagwan Dass Jain v. Union of India [1981] 128 ITR 315 (SC); AIR 1981 SC 907 . A luxury which can reasonably be said to be amenable to a potential consumption does provide the nexus. If the provider of the luxury is also independently amenable to the tax, the further restriction on the power suggested by the argument tends to cut into the plenitude of the field of legislation. If the idea of 'luxuries' is required to be so wide as to comprehend in it, every aspect which can fairly and reasonably be said to be embraced by it, then, the taxing power cannot be limited to or conditioned in the manner suggested. Once the legislative competence and the nexus between the taxing power and the subject of taxation is established, the other incidents are matters of fiscal policy behind the taxing law. The measure, of the tax is not the same thing as, and must be kept distinguished from, the subject of the tax. So far as the argument that fundamental rights under article 19(1)(g) are violated by a levy on a mere provision for luxury, without its actual utilisation, is concerned, it is settled law that the mere excessiveness of a tax or that it affects the earnings cannot, per se, be held to violate article 19(1)(g). So far as the argument that fundamental rights under article 19(1)(g) are violated by a levy on a mere provision for luxury, without its actual utilisation, is concerned, it is settled law that the mere excessiveness of a tax or that it affects the earnings cannot, per se, be held to violate article 19(1)(g). Contention (b) is not substantial either." The learned Government Pleader would submit that the observation of the Supreme Court in para 85 as extracted above, cannot be read in isolation, that it should be read in the context of para 74 of the very judgment; that the Supreme Court was merely seized of the question as to whether the levy on goods in the name of luxury, such as levy on tobacco and its products is taxed in the nature of levy on luxuries and the question was in that context; that there was no direct examination of the actual levy on luxuries per se but the levy was held to be bad by the Supreme Court in the case of Godfrey Phillips [2005] 139 STC 537 (SC); [2005] 2 SCC 515, as it was in the nature of goods and not a service, which becomes a luxury; that if so understood, it cannot be said that para 85 can be taken to be either the ratio of the decision or declaration of law, particularly for the understanding as to the scope of entry 62 for the purpose of examining the validity of a taxing statute legislated under entry 62 of State List. The learned Government Pleader would also place reliance on the decision of a single judge of this court in the case of Magaji Mhavarsa Kamakshi Bai v. Assistant Commissioner of Commercial Taxes [2006] 146 STC 473; [2003] 54 Kar LJ 208 and submits that the scope of charging section cannot be restricted to either the definition in a taxing statute or on entries in the Schedule, that the charging section can operate independent of either and if section 3D of the Act complies the charge in respect of levy of tax on luxuries, that by itself is sufficient and therefore the definition section being at variance for the purpose of understanding the meaning of luxuries will not in any way detract from the levy of luxury tax under section 3D of the Act. It is also submitted that the charging section 3D is attracted and comes alive the moment the facility is made available in a club, which constitute luxury in terms of section 3D and it is not the requirement that it should have been actually utilised for effectuating the section under this section. It is further submitted by the learned Government Pleader that section 3D cannot be faulted for the mere reason that it may not be in line with the scheme of the levy in terms of sections 3, 3B and 3C of the Act, as what is sought to be levied under section 3D is an independent levy in terms of the very section and not depending or linking to the levy under sections 3, 3B and 3C of the Act and therefore submits that the levy is valid and sustainable. I have bestowed my anxious consideration to the rival submissions at the Bar, perused the petition averments, contentions urged in support of the legislation as per the statements of objections and the authorities relied upon at the Bar. The levy is attacked mainly on the ground of legislative competence and secondly on the ground that it is misfit into the scheme of the Act; that it seeks to levy luxury tax more than once on the very facility; and thirdly on the premise that by seeking the levy on luxury not availed of or utilised, it renders itself unconstitutional in terms of the judgment of the Supreme Court in the case of Godfrey Phillips [2005] 139 STC 537 (SC); [2005] 2 SCC 515. In so far as the legislative competence is concerned, it is not in dispute that the State Government has legislative competence to levy tax on luxuries. In fact, it is only a levy in terms of section 3D, which is questioned and not the levy in terms of section 3, 3B or 3C. Even under section 3D, levy was earlier slightly different. It is so as in the present form in terms of the Karnataka Act No. 3 of 2004. While the legislative power undoubtedly is referable to entry 62 of State List, the question is as to whether a levy of this nature is beyond the scope of entry 62. Even under section 3D, levy was earlier slightly different. It is so as in the present form in terms of the Karnataka Act No. 3 of 2004. While the legislative power undoubtedly is referable to entry 62 of State List, the question is as to whether a levy of this nature is beyond the scope of entry 62. The general prescription of the luxury apart, in its very nature, the concept of luxury being subjective concept, which can vary from person to person and being a highly relative term, as what constitutes to a person as luxury may be a common factor or common thing for the another person. The understanding cannot be beyond the scope of entry as understood and interpreted by the Supreme Court in the case of Godfrey Phillips [2005] 139 STC 537 (SC); [2005] 2 SCC 515, which becomes the law of the land. While in terms of the judgment of the Supreme Court in the case of Godfrey Phillips [2005] 139 STC 537 (SC); [2005] 2 SCC 515, the Supreme Court had clearly declared that a tax on luxuries to be sustainable with reference to the entry 62, should be only in respect of the facilities in the nature of luxury which is beyond the reach of the average member of the society and a levy on goods which may provide a means for luxury is not a levy on actual luxury and therefore is bad and as held in this case, the other observations assuming that they are so contained in this decision, are not necessarily a declaration of law, though might have been made in the context of scope of entry 62 of the State List. Even an understanding of para 85, which is heavily relied upon by Sri Rabinathan, learned counsel for the petitioner, can only be one for illustrating as to what activity or enjoyment can constitute an activity in the nature of luxury and that is put as an activity or indulgence which is higher than the requirement of an average member of the society and not with reference to the articles of luxury. The activity if it is not required by an average member of the society, it can constitute luxury, is the meaning one can attribute to this paragraph. The activity if it is not required by an average member of the society, it can constitute luxury, is the meaning one can attribute to this paragraph. It is not as though an average member of the society cannot survive or cannot live even without such facilities as are made available in the petitioner - clubs. It may be a different matter that such facilities are otherwise also available in other places, but when a facility is made available in a club and exclusively for its members and in the nature of such facilities as is defined under the Act, it can undoubtedly be termed as an activity in the nature of a luxury. There is no doubt that the expression that luxury means an activity of enjoyment or indulgence which is costly, is suggestive of only availed or utilised of the activity or indulgence in the activity. To this extent, the observation here is clearly at variance with the observations of the Supreme Court in the case of Express Hotels Private Ltd. [1989] 74 STC 157 (SC); AIR 1989 SC 1949 , wherein the Supreme Court has observed that for constituting a luxury, it need not necessarily be availed of and has a comparing situation to levy of tax on notional concept. A particular example in the case is a notional income. It is also further linked to a measure of the levy, in the sense, that a levy on special matter when it is on actual person is termed as a measure of levy so long as there is some nexus between the levy and the subject-matter. The justification is that there cannot be any reasonableness in a levy under the taxing statute and even if the tax is on a notional basis, it is an aspect of measure of levy. What is laid down in the case of Express Hotels Private Ltd. [1989] 74 STC 157 (SC); AIR 1989 SC 1949 is that the aspects amenable for a judicial review of the legislative action is only the legislative competence and nexus between the taxing power and the subject of taxation. If these two aspects are once made good, it is not for the courts to go beyond which are all described as matter of fiscal policy beyond the enactment of the taxing statute. If these two aspects are once made good, it is not for the courts to go beyond which are all described as matter of fiscal policy beyond the enactment of the taxing statute. If the levy is one which is questioned on the extent or degree and relatable to the measure, it is held that it is beyond but that has to be distinguished from the subject of tax. If one has to reconcile and apply the law as it emerges in terms of the judgment of the Supreme Court in the case of Express Hotels Private Ltd. [1989] 74 STC 157 (SC); AIR 1989 SC 1949 and in the case of Godfrey Phillips [2005] 139 STC 537 (SC); [2005] 2 SCC 515, it can be without any hesitation and authority be held that the levy under section 3D of the Act, notwithstanding like levy under section 3B, being one relatable to a measure of tax on an activity of luxury cannot be faulted on the ground of levy being excessive or as is urged at the Bar that it will amount to taxing twice the very subject-matter. Section 3D cannot be faulted on the ground that a like tax or similar tax in respect of the very subject-matter of luxury had been levied earlier under sections 3, 3B and 3C of the Act. Insofar as the argument that levy under section 3D is in terms of the judgment of the Supreme Court in the case of Godfrey Phillips [2005] 139 STC 537 (SC); [2005] 2 SCC 515, a levy when it is not even on actual utilisation is bad in law, one has to first of all examine the nature of the levy. The levy in terms of section 3D is on a club and measure is linked to the number of members in the club. Luxury is separately described for this purpose in terms of Explanation I. General definition is of no consequence in the light of Explanation I to this section and if one looks at Explanation I, it is very obvious that the existence of any facilities by itself does not constitute luxury, but when there are more than one facility of the nature mentioned in Explanation I, that constitute a luxury. If the main charging section is to be read in conjunction with Explanation I, the levy is on the club in respect of the luxury provided to the members who are required to pay any amount as fee, deposit, donation or any other such charges by whatever name called, at the rate as specified in column (3) of the table thereunder, as extracted in the earlier part of this order, to constitute a luxury for the purpose of section 3D, there cannot be any dispute unless more than one facility is provided to a member and who is required to pay for it, whether in the name of deposit, donation or any other charge, there is no charge under this section. Providing luxuries to a member of a club and the member being required to pay for such luxury, is the taxing event, which attracts levy under this section. The section does not stipulate any levy on the mere existence of a facility. The section while does make use of a member who uses or who is provided the facility and pays for the facility in the nature of luxury, which is more than one facility, enjoyed by a member as a measure, it is not on total membership of the club. The measure of levy is not on the total membership of the club, but is only at the rate per member. Such a luxury is provided and charged for the member in a club. The section as it stands in fact is, whether by design or accident in consonance even with the understanding or concept of luxury as indicated by the Supreme Court in para 85 in the case of Godfrey Phillips [2005] 139 STC 537 (SC); [2005] 2 SCC 515. Such a luxury is provided and charged for the member in a club. The section as it stands in fact is, whether by design or accident in consonance even with the understanding or concept of luxury as indicated by the Supreme Court in para 85 in the case of Godfrey Phillips [2005] 139 STC 537 (SC); [2005] 2 SCC 515. The provisions of section 3D being challenged as being unconstitutional for want of legislative competence on the premise that it is seeking to levy tax on a non-luxury as even in terms of the description or understanding the word luxury by the Supreme Court in the case of Godfrey Phillips [2005] 139 STC 537 (SC); [2005] 2 SCC 515, it has become necessary to examine the scope of the charging section, though in most of these writ petitions, no assessment orders are placed before the court, except in W.P. No. 992 of 2006 and it is pointed out that with reference to the assessment order dated October 17, 2005 (copy at annexure E to the writ petition), the assessment is simply based on the actual membership of the club and not based on the actual members who have availed of the facility and who have been charged for the facility and who are required to pay for the facility. The proposition notice for raising additional demand in terms of annexure G giving option to the petitioner to compound the prosecution case is again based on the computation for actual membership of the club and not based on any actual charge created in terms of section 3D of the Act and as indicated above. The section as understood and on interpretation of the charging section itself, in fact is one which per se makes it constitutional and which meets the stipulation and declaration of law by the Supreme Court not only in the case of Godfrey Phillips [2005] 139 STC 537 (SC); [2005] 2 SCC 515 but also in the case of Express Hotels Private Ltd. [1989] 74 STC 157 (SC); AIR 1989 SC 1949 . While the question as to whether the observation of the Supreme Court at para 85 in the case of Godfrey Phillips [2005] 139 STC 537 (SC); [2005] 2 SCC 515 can constitute a law declared by the Supreme Court, in the context of scope of entry 62, can be a debatable point, understanding and interpretation of section 3D as indicated above does meet even such requirement and it is one of the cardinal principles of interpretation that any statutory provision is to be so interpreted to make it constitutional if that is one option and not to so interpret to render it unconstitutional. If there is no scope for interpretation in a taxing statute, which violates a constitutional provision it will have to be declared as unconstitutional, but in the given case, as it is found that the computation made in the case of the petitioner in W. P. No. 992 of 2006, being not based on a proper understanding of the provisions of section 3D of the Act, it has become necessary for the court to discuss about the scope of this charging section and to so interpret and understand the provision that it is not only effectuated but also does not violate any of provisions of the Constitution. Section 3D when understood in this manner in fact is free from any allegations of being bad either for want of legislative competence or on the ground of being discriminatory or as on imposing any unreasonable restrictions on any profession, trade or employment or such other grounds. The challenge to the validity of section 3D while fails on the grounds urged on behalf of the petitioners, the stand taken by the State Government in its counter and orders passed by the authorities under the Act to subject to tax, the petitioner - clubs on the premise that levy under section 3D is on the basis of total number of members in the club irrespective of the actual contents of section 3D is a clear wrong application and understanding of the provision and the assessment orders if have been passed on such understanding, are required to be redone to bring them, in conformity with section 3D as understood and interpreted in this decision. The writ petitions are disposed of in the above terms. The writ petitions are disposed of in the above terms. While the proposition notice at annexure G in W.P. No. 992 of 2006 is quashed by issue of a writ of certiorari with liberty to the respondents to redo the assessment if need be in the light of the law as declared in this decision, in respect of all other petitioners, as the orders having not been given effect to and are made subject to the outcome of the present writ petitions if have been passed at variance as declared above are directed to be redone in accordance with law and in consonance with the interpretation placed on section 3D in this decision. The writ petitions are disposed of with such directions. Rule made absolute in W.P. No. 992 of 2006. In respect of all other writ petitions, the directions as above are to be complied with.