Bombay High Court
The Cricket Club Of India Ltd vs The State Of Maharashtra And 3 Ors on 14 July, 2022
Bench: K.R. Sriram, Milind N. Jadhav
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S.S.Kilaje IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
WRIT PETITION NO. 1754 OF 2009
Santacruz Gymkhana .. Petitioner
Versus
State of Maharashtra and Anr. .. Respondents
WITH
WRIT PETITION NO. 1443 OF 2005
WITH
INTERIM APPLICATION NO. 1804 OF 2020
IN
WRIT PETITION NO. 1443 OF 2005
Bombay Presidency Golf Club Limited and Anr. .. Petitioners
Versus
State of Maharashtra and Anr. .. Respondents
WITH
WRIT PETITION NO. 1758 OF 2006
Bombay Presidency Radio Club Limited and Anr. .. Petitioners
Versus
State of Maharashtra .. Respondent
WITH
WRIT PETITION NO. 1767 OF 2006
National Sports Club of India and Anr. .. Petitioners
Versus
State of Maharashtra and Anr. .. Respondents
WITH
WRIT PETITION NO. 2040 OF 2006
Garware Club House .. Petitioner
Versus
State of Maharashtra and Anr. .. Respondents
WITH
WRIT PETITION NO. 2127 OF 2006
WITH
CHAMBER SUMMONS NO. 294 OF 2007
IN
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WRIT PETITION NO. 2127 OF 2006
Bombay Gymkhana Ltd. .. Petitioners
Versus
State of Maharashtra and Anr. .. Respondents
WITH
WRIT PETITION NO. 2376 OF 2006
Cricket Club of India Ltd. .. Petitioner
Versus
State of Maharashtra and Ors. .. Respondents
WITH
WRIT PETITION NO. 69 OF 2006
WITH
INTERIM APPLICATION (L) NO. 9771 OF 2022
IN
WRIT PETITION NO. 69 OF 2006
Willingdon Sports Club and Ors. .. Petitioners
Versus
State of Maharashtra and Ors. .. Respondents
WITH
WRIT PETITION NO. 87 OF 2007
Juhu Vile Parle Gymkhana Club .. Petitioner
Versus
State of Maharashtra and Ors. .. Respondents
WITH
WRIT PETITION NO. 71 OF 2007
Ajit Rodrigues and Anr. .. Petitioners
Versus
State of Maharashtra and Ors. .. Respondents
....................
Mr. Nimay Dave a/w. Ms. Umangi Shah i/by Bachubhai Munim & CO. for
Petitioners in WP 1767/2006
Mr. Vineet Naik, Senior Advocate a/w. Mr. Amod Eklaspur, Mr. Zeeshan
Farooqui and Mr. Mohit Sahani i/by Gagrats for Petitioner in WP
2376/2006
Mr. Mahesh Menon a/w. Mr. Pranav Chavan i/by Mahesh Menon & Co.
for Petitioners in WP 1443/2005
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Ms. Hubab Sayyed i/by Thakordas and Madgavkar for Petitioners in WP
69/2006 a/w. IA (L) 9771/2022
Mr. Rahul Nerlekar for Petitioner in WP 1754/2009 and WP 2040/2006
Mr. Ratnesh Dube i/by Mr. S.A.Bhagwat for Petitioners in WP 1758/2006
Mr. Bhuvan Thakker a/w. Mr. Yash Sutaria i/by Malvi Ranchoddas & Co.
for Petitioner in WP 2127/2006
Ms. Prachi Khandge i/by M.P. Vashi & Associates for Petitioner in WP
87/2007
Mr. Nitin G. Raut for Petitioners in WP 71/2007
Mr. Abhay L. Patki, Additional Government Pleader a/w. Mr. Himanshu
Takke, AGP for Respondents - State
...................
CORAM : K. R. SHRIRAM &
MILIND N. JADHAV, JJ.
DATE : 14th JULY, 2022
P. C. :
WRIT PETITION NO. 69/2006 a/w. IA(L)/9771/2022
1. Ms. Hubab Sayyed seeks leave to withdraw writ petition No. 69
of 2006 along with interim application (L) No. 9771 of 2022. Petition
as well as interim application dismissed as withdrawn.
WRIT PETITION NO. 87 OF 2007 :
2. Ms. Prachi Khandge states in writ petition No. 87 of 2007, apart
from the demand of entertainment duty on billiard tables, petitioner is
also challenging action taken for water sports activity because of the
swimming pool in the club premises. This petition be de-tagged and
listed on 21st July, 2022 for hearing.
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WP 1767/2006, WP 1754/2009, WP 1443/2005, WP 1758/2006, WP
2040/2006, WP 2127/2006, WP 2376/2006, WP 71/2007
3. As regards the remaining 8 petitions listed today, the issue
raised is common, i.e.,
(a) whether the Collector (Entertainment Duty
Branch) can demand from petitioners entertainment
duty on billiard tables kept at the club premises for the
exclusive use of its members by equating it to a pool
parlour; and
(b) whether the facility of the billiard tables provided
by petitioners in their respective clubs can be treated
as 'entertainment' for the purpose of Bombay
Entertainment Duty Act, 1923.
For the sake of convenience, we take the facts of writ petition
No. 1767 of 2006.
4. Petitioner No.1 National Sports Club of India ("NSCI") is
registered under the Societies Registration Act, XXI of 1860. NSCI is
run on the principles of mutuality recognized in law which excludes
chargeability or levy of any entertainment duty or tax under the
Bombay Entertainment Act, 1923 ("said Act"). NSCI is not established
with the object of carrying on any business or with the object of
making profits. NSCI collects money from its members and applies it
for their benefit not as shareholders but as persons who put up the
fund and makes no profit. The members, have provided to themselves
facilities, privileges and conveniences which includes billiard tables.
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Under its charter, NSCI is not enabled to carry on any business or
commercial activities and if there is any surplus left from the
contributions made by the members and expenses incurred for
providing facilities, privileges and conveniences to the members, the
surplus is not distributed amongst the members.
5. The facilities of NSCI are available only to the members of NSCI
and to the guests of those members, if accompanied by the members.
In other words, it is not open to the general public. As part of the
various privileges, NSCI had installed five billiard tables at the club
premises available to be used by its members on first come first basis
on a nominal charge of Rs.7/- per frame. Mr. Dave states that this
charge also had to be fixed otherwise the facility could be misused and
to partly recover the cost of repairs and maintenance to the tables,
replacement of the cues and the balls.
6. NSCI received a communication dated 17.12.2004 from
respondent No. 2, i.e., the Collector (Entertainment Duty Branch)
alleging that in view of the provisions of section 2(1)(b-1)and (b-2)
and section 3(9) of the said Act, as amended by ordinance dated
29.05.1999 on pool parlour, an entertainment duty of Rs. 5,000/- per
month per pool table/billiard table is payable before the 10 th of every
month. By the said communication, NSCI was also called upon to
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furnish details regarding pool/ billiard tables in NSCI's premises within
7 days of receipt of the said letter failing which, respondent No.2 will
recover entertainment duty with penalty under section 9(a) of the Act.
7. NSCI's replied denying that any entertainment tax was payable.
NSCI received another notice dated 02.05.2006 calling upon NSCI to
pay a sum of Rs. 3,50,002/- towards entertainment duty. NSCI was
called upon to make the payment along with interest, failing which
NSCI was threatened with action under section 267 of Maharashtra
Land Revenue Code, 1966. NSCI thereafter approached this Court by
this writ petition. Prior to NSCI filing this petition, another petitioner
had already approached this court and rule had been issued.
8. The facts in these petitions are identical to the facts in the case
of Gondwana Club Vs. State of Maharashtra and Ors.1 . Though, Mr.
Patki tried to defend the action of respondents, in fairness agreed to
query posed by the court, that the law as laid down by the Nagpur
Bench of this Court in Gondwana Club (supra) will squarely apply to
these petitions as well. Paragraphs 5 and 6 of Gondwana Club (supra)
read as under :-
"5. The word "entertainment" is defined by the provisions
of Section 2(a) of the Act. The relevant provisions of Section
2(a) of the Act provide that entertainment includes any
exhibition, performance, amusement, game or sport to
which persons are admitted for payment. In the instant case,
1 2017(2)Bom.C.R.820
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we are concerned with the pool-game. Pool-game is defined
by Section 2(b-1) which means a game played on a pool
table or billiards table or any table by whatever name called.
A pool-game is played in pool parlour and according to the
Entertainment Tax Inspector, the petitioner-Club operates a
pool parlour in the club and in the said pool parlour, the
billiards tables are provided. Under Section 2(b-2) of the Act
a 'pool parlour' means a place of entertainment wherein one
or more tables are provided for playing a pool-game for
which the persons are required to make payment in some
manner or form. It is apparent from a reading of the
provisions of Section 2(a), 2(b-1) and 2(b-2) of the Act that
for an entertainment including a pool-game in a pool
parlour, a person is required to be admitted only on payment
in some manner or form. Section 3 of the Act, which is the
charging section provides that entertainment duty could be
levied and paid to the State Government for admission to
entertainment, including the pool-game entertainment.
Section 4 of the Act provides for the method of levy of duty
and it further provides that no person other than a person
who has to perform some duty in connection with an
entertainment or a duty imposed upon him by law, shall be
admitted to an entertainment except with a valid ticket or
complimentary ticket. On a combined reading of the
provisions of Section 2(a), 2(b-1), 2(b-2), 3 and 4 of the
Act, it is clear that entertainment duty could be levied only
if the entertainment is provided on payment. It would now
be necessary to consider whether entertainment is provided
by the petitioner-Club to the public, on payment. It is not
the case of the respondents that the billiards tables in the
club are permitted to be used by the public on payment. It is
also not the case of the respondents that the members of the
club, for whose entertainment and recreation the billiards
tables are provided, are required to pay separately for using
the billiards tables. On a reading of the rules of the
petitioner-Club, it appears that only the regular members of
the club, their guests, and the service members are
permitted to use the facilities provided by the club. It is
stated on behalf of the petitioner that the members of the
petitioner-Club mutually provide for themselves, certain
facilities that could be exclusively used by them and are not
available to the public, even on payment. As per the test laid
down by the Hon'ble Supreme Court in paragraph 12 of the
judgment in the case of M/s Geeta Enterprises (Supra) a
show, performance, game or sport should contain a public
colour, in that, the show should be open to public in a hall,
theatre or any other place where members of the public are
invited, or attend the show. The said test, as laid down by
the Hon'ble Supreme Court for ascertaining whether a show,
game or sport could fall within the legal connotation of the
word "entertainment" as defined under the Act, is not
satisfied in the circumstances of the present case as the
billiards tables in the petitioner-Club cannot be used by the
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public at large. The public is neither invited to use the tables
nor is permitted to use them. The billiards tables are
provided only for the members of the petitioner-Club with a
view to achieve the object of the club of providing social
entertainment and physical and mental recreation. The
Entertainment Tax Inspector has levied the duty on the
premise that the petitioner runs a 'pool parlour' in the club
where the billiards tables are provided. Under Section 2(b-
2) of the Act, a pool parlour would be a place of
entertainment where tables are provided for playing a pool-
game for which payment is necessary. It is not the case of
the respondents that payment is made by the public for
using the billiards tables for the pool-game. The billiards
tables in the petitioner-Club would not be a game or sport to
which persons are admitted for payment and hence, the
same cannot be considered as entertainment for which duty
is leviable under Section 3 of the Act, more so when the
pool-game or tables do not satisfy the tests as laid down by
the Hon'ble Supreme Court in paragraph 12 of the judgment
in the case of M/s. Geeta Enterprises (supra). Apart from the
fact that the aforesaid game in the club does not contain a
public colour, the further test that the exhibitor should
derive some benefit in terms of money even if the admission
to the hall is free, is also not satisfied as the club is not
benefited in terms of money by the use of the billiards tables
by the members of the club. We are not inclined to accept
the submission made on behalf of the respondents that since
the members are required to pay some monthly charges to
the club, they are admitted for payment and the pool-game
in the club would be an entertainment, specially when the
tests laid down by the Hon'ble Supreme Court are not
satisfied and it is not disputed that the members of the club
mutually provide the facilities to be used exclusively by
themselves and the same are not made available to the
general public, even on payment.
6. Since the action of the Entertainment Tax Inspector of
initiating proceedings against the petitioner-club for
payment of entertainment duty is bad in law, the impugned
demand notices are hereby quashed and set aside."
(emphasis supplied)
9. In view of the above, we also make the rule absolute in all these
eight petitions.
10. All petitions are accordingly disposed.
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11. All impugned demand notices issued to each of the petitioner
and warrant of attachment, wherever issued, are hereby quashed and
set aside.
12. No order as to costs.
13. All interim applications also stand disposed.
[ MILIND N. JADHAV, J. ] [K. R. SHRIRAM, J.]
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