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TMI Blog2015 (10) TMI 2863X X X X Extracts X X X X X X X X Extracts X X X X ..... validity of the Kerala Local Authorities Entertainment Tax (Amendment) Act, 2013, as per which, a new provision has been introduced for levying collection of a cess for the Kerala Cultural Activists' Welfare Fund constituted under the Kerala Cultural Activitsts' Welfare Fund Act. 2. WP(C) No.4195/2013 is filed by an association of film exhibitors. The 1st petitioner represents the Film Exhibitors Federation and the 2nd petitioner is an exhibitor of films. 3. WP(C) No.12705/2013 is filed by certain persons, who are having active interest in viewing different kinds of films exhibited at different cinemas in and around their localities. 4. WP(C) No.5465/2013 is filed by a regular viewer of films. 5. The State Legislature has enacted the Kerala Cultural Activists' Welfare Fund Act, 2010, referable to Entry 23 of the Concurrent List to the 7th schedule of the Constitution of India, containing provisions relating to the constitution of a welfare fund, the establishment of the Welfare Fund Board, the manner of augmentation of resources of the fund and other connected and related matters. By ordinance No.61/2012, the Kerala Local Authority Entertainments Tax Act, 1961 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them, the levy of cess as contained in the Act falls under Entries 5 and 62 of the State List, whereby the Local Government can collect tax on business including taxes on entertainment. According to them, the amendment is not violative of the Constitution of India as alleged by the petitioners. It was further contended that the owners of theatres, who exhibit films, are not adversely affected by the new Act and as such, the writ petitions filed by them are not maintainable. 7. In WP(C) No.4195/2013, the 10th respondent, who is the President of National Association of Malayalam Artists, has filed a counter affidavit, justifying the action of the Government. It was contended that the Kerala Cultural Activists' Welfare Fund Act, 2010 was promulgated by the legislature to grant relief to the entire cultural activists of the State, who had or has been engaged in cultural activities, and to promote their welfare and to pay pension to them and for matters connected therewith or incidental thereto, which is mentioned in the preamble of the Act itself. According to them, the State is well within its competence to amend the Act and collection of cess. Therefore, according to the 10th r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... j Act being a provision governed by the 73rd amendment of the Constitution of India, the State has no authority to legislate on matters covered under that Act in the guise of collecting a levy. Therefore, it was submitted that the impugned Act is beyond the legislative competence of the State and it is a piece of colourable legislation wholly lacking in power and cannot be traced to anyone of the list in Schedule 7 of the Constitution. 10. The legislative competence is assailed for the main reason that the new Act is beyond the vires of the statute and there is no quid pro quo from the ultimate beneficiary to the payees of the so called cess. Mr.Manilal, the learned senior Government Pleader would submit that the present legislation is enacted in exercise of powers under Entry 62 of List 2. It was pointed out that the subject matter of the present litigation comes within the exclusive legislative competency of the State. 11. However, the learned counsel for the petitioners heavily relied on the decision of the apex court in Koluthara's case (supra), wherein it was held that the State cannot, in an Act under Entry 23 of List III, place the burden of an impost by way of contrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrust to the absence of quid pro quo in the present case in the light of Koluthara's case (supra). In Koluthara's case (supra), the decision of a Division Bench of this Court, upholding the constitutional validity of Section 4(2) read with Section 2(d) of the Kerala Fishermen Welfare Fund Act, 1985, was challenged before the apex court. Section 4 of the said Act contained a list of contributors to the fund. Section 4(2) mandates that a dealer shall contribute to the Fund, every year, one per cent of his sale proceeds in the year. Section 2(d) defined 'dealer' as any person, who carries on, within the State of Kerala, the business of buying or selling or processing fish or exporting fish (in raw or processed form) or fish products and includes, - (i) a commission agent, a broker or any other mercantile agent, by whatever name called; and (ii) a nonresident dealer or an agent of non-resident dealer or a local branch of a firm or company or association situated outside the State of Kerala. The appellant before the apex court in Koluthara's case (supra) contended that he was a purchaser and exporter of fishes; and therefore, there was no employer-employee relationsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n whether any impugned Act is within any of the three lists or in none at all, is to be answered by considering the Act as a whole and deciding whether in pith and substance the Act is with respect to particular categories or not and held that in doing so, the relevant factors are the design and the purport of the Act, both as disclosed by its language, and the effect, which, it would have in its actual operation. The pith and substance of the impugned legislation is collection of an amount from the viewers for the collective welfare of the artists. As Letham, C.J., pointed out in Bank of New South Wales v. Common Wealth [1948) 76 CLR 1 at p. 186], "A power to make laws 'with respect to' a subject matter is a power to make laws, which in reality and substance are laws upon the subject matter. It is not enough that the law should refer to the subject matter or apply to the subject matter; for example, income tax laws apply to clergyman and to hotel keepers as members of the public, but no one would describe an income tax law as being, for that reasons a law with respect to clergyman or hotel keepers ....." 17. On a view of the Act as a whole, I am of the view that the subst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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