Bombay High Court
Rajkamal Talkies vs The State Of Maharashtra on 29 November, 2010
Bench: B.R. Gavai, R. M. Borde
( 1 )
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
WRIT PETITION NO. 5294 OF 2010
1. Rajkamal Talkies, Jalgaon,
Taluka & District : Jalgaon,
Through its partner,
Mahendra s/o. Nathmal Lunkad,
Age : 67 years,
Occupation : Business,
R/o. c/o. Rajkamal Talkies,
Jalgaon.
2. Ashok Talkies, Jalgaon,
Taluka & District : Jalgaon,
Through its Manager,
Ratnakar s/o. Omaji Chaudhary,
Age : 57 years,
Occupation : Business,
R/o. c/o. Ashok Talkies, Jalgaon.
3. Natraj Ashok Talkies, Jalgaon,
Taluka & District : Jalgaon,
Through its Manager,
Shaligram s/o. Neemaji Rane,
Age : 35 years,
Occupation : Business,
R/o. c/o. Natraj Ashok Talkies,
Jalgaon.
4. Mohan Ashok Talkies, Jalgaon,
Taluka & District : Jalgaon,
Through its Manager,
Ashok s/o. Prabhudayal Agrawal,
Age : 54 years,
Occupation : Business,
R/o. c/o. Mohan Ashok Talkies, Jalgaon.
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5. Regal Ashok Talkies, Jalgaon,
Taluka & District : Jalgaon,
Through its Manager,
Shaligram s/o. Nago Sonar,
Age : 61 years,
Occupation : Business,
R/o. c/o. Regal Ashok Talkies,
Jalgaon.
6. Metro Ashok Talkies, Jalgaon,
Taluka & District : Jalgaon,
Through its Manager,
Padmakar s/o. Suklal Suryawanshi,
Age : 52 years,
Occupation : Business,
R/o. c/o. Metro Ashok Talkies,
Jalgaon. .. Petitioners.
versus
1. The State of Maharashtra,
Through its Secretary,
Urban Development and
Public Health Department,
Mantralaya, Mumbai.
2. The District Collector,
Jalgaon,
District : Jalgaon.
3. The Commissioner,
Municipal Corporation,
Jalgaon.
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4. The Standing Committee,
Jalgaon,
Municipal Corporation,
Jalgaon.
5. The Tax Recovery Officer,
Jalgaon,
Municipal Corporation,
Jalgaon. .. Respondents.
.......................
Mr. Ajit B. Kale, Advocate, for the petitioners.
Mr. S.K. Tambe, Assistant Government Pleader,
for respondent nos.1 and 2.
Mr. M.S. Deshmukh, Advocate, for respondent
nos.3, 4 and 5.
........................
CORAM : B.R. GAVAI &
R.M. BORDE, JJ.
DATE : 29TH NOVEMBER 2010
ORAL JUDGMENT (Per B.R. Gavai, J.) :
1. Rule. Rule made returnable forthwith. Heard by
consent.
2. By way of present petition, the petitioners have
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challenged the resolutions passed by the respondent no.3 /
Municipal Corporation, dated 8th February 2010 and 20th
February 2010, thereby fixing the rate of theatre tax at the rate of
Rs. 100/- per show, in so far as cinema theatres are concerned.
3. It is not in dispute, that all the petitioners before this
Court are running cinema theatres. It is the contention of the
petitioners, that by the impugned resolutions, the rate of tax has
been increased from Rs. 15/- to Rs. 100/- i.e. almost seven times.
It is also the contention of the petitioners, that in view of Section
149 of the Bombay Provincial Municipal Corporations Act, 1949
(For short, hereinafter referred to as "BPMC Act"), it is not
permissible for the Corporation to levy theatre tax unless rules
are framed in that regard and a prior approval of the State
Government is taken for the said rules.
4. Mr. M.S. Deshmukh, learned Counsel appearing for
respondent nos.3, 4 and 5 / Municipal Corporation, submits that
the tax, which was earlier fixed by the erstwhile Municipal
Council, was fixed in 1980 and since then, there is no increase in
the tax. He, therefore, submits that the increase in the theatre tax
from Rs. 15/- to Rs. 100/-, which is done after 30 years, cannot
be said to be unreasonable.
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5. From the perusal of Section 127 of the BPMC Act
and specifically Clause 2(d) thereof, the authority of the
Corporation for imposing a theatre tax cannot be denied.
However, it would be relevant to refer to Section 149 of the
BPMC Act which reads thus:
"Procedure to be followed in levying other
taxes : (1) In the event of the Corporation
deciding to levy any of the taxes specified in
sub-section (2) of section 127, it shall make
detailed provision, in so far as such provision
is not make by this Act, in the form of rules,
modifying, amplifying or adding to the rules
at the time in force for the following matters,
namely :-
(a) the nature of the tax, the rates thereof,
the class or classes of persons, articles or
properties liable thereto and the
exemptions therefrom, if any, to be
granted;
(b) .....................................................
(c) .....................................................
(d) ....................................................
(e) ....................................................
Provided that no rules shall be made by
the Corporation in respect of any tax coming
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under clause (f) of sub-section (2) of section
127 unless the State Government shall have
first given provisional approval to the
selection of the tax by the Corporation."
Perusal of Section 149 would, thus, clearly reveal that in
the event, the Corporation decides to levy any tax as specified in
Sub-Section 2 of Section 127 of the BPMC Act, the Corporation
is required to make a detailed provision, in so far as such
provision is not made by this Act, in the form of rules,
modifying, amplifying or adding to the rules at the time in force
for the matter specified in Clauses "a" to "e". Perusal of clause
"a" of Sub-Section 1 of the said Section would reveal that by the
said rules, the nature of the tax, the rates thereof, the class or
classes of persons, articles or properties liable thereto and the
exemptions therefrom, if any, to be granted, has to be provided
under the rules. Proviso of Sub-Section 1 of Section 149 would
reveal that no such rules can be made by the Corporation unless
the State Government has first given provisional approval to the
selection of the tax by the Corporation.
6. It is, thus, imperative that unless rules are framed and
a provisional approval has been granted to the selection of the
theatre tax, by the State Government, the levy of the tax which is
sought to be imposed by the Corporation, as theatre tax, would
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not be permissible in law. Perusal of Sub-Section 2 of Section
149 of the BPMC Act would further reveal that rules are
required to be submitted by the Corporation to the State
Government and the State Government may either refuse to
sanction them or refer them back to the Corporation for further
consideration or sanction them either as they stand or with such
modifications as it thinks fit. It is further to be noted from Sub-
Section 3 of Section 149, that any sanction given by the State
Government under Sub-Section 2 shall become operative on
such date not earlier than one month from the date of the
sanction as the State Government shall specify in the order of
sanction, and the Corporation shall be competent to levy the tax.
It is further to be noted that the Corporation would be entitled to
levy the tax covered by the sanction from the date so specified.
Sub-Section 4 of Section 149 provides that as far as practicable,
the Corporation and the State Government shall take steps to see
to it, that the date specified in the order of sanction is first day of
April. Sub-Section 5 of Section 149 also provides that the
provisions of the said Section shall also apply, in the event, any
alteration is required to be made by the Corporation in the rates
fixed for any tax, or in the class or classes of persons, articles,
etc.
7. It can, thus, be clearly seen that Section 149 of the
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BPMC Act is a complete Code in itself and it specifically
provides as to in what manner the tax which is covered under
Sub-Section 2 of Section 127 is to be levied. A conjoint reading
of the said provision would unequivocally lead to a conclusion
that unless the rules are framed and provisional approval for
selection of the tax is taken by the Corporation, such a tax
cannot be imposed. Even thereafter, levy of the tax would be
permissible after the State Government grants its sanction and
that too, from the date on which it specifies in its sanction order.
8. In that view of the matter, we find that the levy of the
tax which is sought to be imposed by the impugned resolutions
would be without authority in law. Needless to state, that no tax
can be collected unless it is authorized by law.
9. In the result, the petition succeeds and the same is
allowed. Rule is made absolute in terms of prayer clause "C".
However, there shall be no order as to costs.
( R.M. BORDE ) ( B.R. GAVAI )
JUDGE JUDGE
.........................
bgp/wp5294
