Bombay High Court
Drishti Adventures Sports Pvt. Ltd. And ... vs State Of Maharashtra And Ors on 4 December, 2023
Author: G.S. Kulkarni
Bench: G.S. Kulkarni
2023:BHC-OS:14307-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2158 OF 2005
1. Drishti Adventures Sports Private Ltd. )
A Company incorporated under the )
Companies Act, 1956 having registered )
office at Top Floor, Mehta Mahal, )
15, Mathew Road, Opera House, )
Mumbai- 400 004. )
2. Mr.Natwarlal Somani )
Director of Drishti Adventure Sports )
Private Limited, having his office at )
Top Floor, Mehta Mahal, )
15, Mathew Road, Opera House, )
Mumbai- 400 004. ) .. Petitioners
Versus
1. State of Maharashtra )
through Government Pleader, Bombay )
2. The Collector of Mumbai City )
Old Customs House, Mumbai - 400 001. )
3. The Deputy Collector )
(Entertainment Duty), Mumbai City )
::: Uploaded on - 08/12/2023 ::: Downloaded on - 28/02/2024 20:16:08 :::
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Old Customs House, Mumbai - 400 001. ) .. Respondents
---
Mr.Nitin Thakker, Senior Advocate with Mr. Vivek Khemka Ms.Ravina
Rajpal, Mr.Sandeep Rebari and Ms.Archi Galal i/by Singh & Singh
Malhotra & Hegde for petitioners.
Ms.Jyoti Chavan, AGP for Respondent No.1-State.
---
CORAM : G.S. KULKARNI &
JITENDRA JAIN, JJ.
DATED : 4th DECEMBER 2023
Judgment (per Jitendra Jain, J.) :-
. This petition under Article 226 of the Constitution of India
has prayed for various reliefs, however, at the time of hearing, the
petitioners have pressed the following reliefs :-
"(A) That this Hounourable Court be pleased to declare that proviso
to Section 3(1) and sub-section (5A) of Section 3 of the Bombay
Entertainment Duty Act, 1923, inserted by the Bombay
Entertainment Duty (Amending) Act, 1998, are ultra vires the
Constitution of India and bad in law and liable to be struck down.
AA That the Hon'ble Court be pleased to issue a writ of mandamus,
or a writ in the nature of mandamus, or any other appropriate
writ, direction, or order under Article 226 of the Constitution of
India directing the Respondent No.1 to refund Duty Amount i.e.
Rs.1,52,45,923/- and any applicable interest as per the discretion
of the Hon'ble Court.
D-1 In the alternative if it being held that the entertainment duty is
payable for the water sports activity as undertaken by the
petitioners than this Honourable Court be pleased to issue a writ
of mandamus or a writ in the nature of mandamus, or such any
other appropriate writ, direction or order under Article 226 of the
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Constitution of India directing the respondents to submit list of
water sports activity operators who have been granted permission
by Maharashtra Maritime Board to undertake water sports
activity and liable to pay entertainment duty from 1st May 1998 to
undertake water sports activity and not taxed under the provisions
of the Bombay Entertainment Duty Act, 1923 under the provisions
of the Bombay Entertainment Duty (Amending) Act, 1998 when it
came into force along with the amount recoverable from them as
Entertainment Duty and upon completion of recovery submit to
this Honourable Court the compliance report."
2. Insofar as prayer clause A is concerned, which is the
petitioners challenge to the vires of proviso to Section 3(1) and 3(5A) of
the Bombay Entertainment Duty Act, 1923 as inserted by the Bombay
Entertainment Duty (Amending) Act, 1998 is concerned, it is stated that
in the light of the decision of the Delhi High Court in case of DLF Golf
Resorts Ltd. Vs. State of Haryana & Ors. in Civil Writ Petition No.9476
of 2009 dated 3rd January 2011, the petitioners do not wish to press for
the said prayer. The issues as raised in prayer clause A are kept open.
Thus, the adjudication of the present petition is confined to prayer clause
AA and D-1.
3. FACTS : On 27th March 2000, respondent No.1 passed a
Resolution granting lease of 500 sq.mtrs. of land at Chowpatty, Mumbai
to Maharashtra Tourism and Development Corporation (MTDC) for
development of water sports activities. On 29 th March 2001, MTDC
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granted license to the petitioners for a period of 10 years to develop,
manage and operate water sports activities on monthly license fees and
on terms and conditions set out therein. The petitioners pursuant thereto
developed and operated water sports complex and started activities like
water sking, wind surfing, sailing, kayaking, rowing, jet boating etc. In
the year 2001, Entertainment Duty Inspector visited the office of the
petitioners and sought various documents, license etc. which the
petitioners complied with. On 14th March 2002, the petitioners addressed
a letter to the MTDC requesting for exemption from payment of
entertainment duty. On 26th March 2002, the petitioners addressed a letter
to the respondents recording that the water sports activity does not fall
under the Bombay Entertainment Duty Act, 1923. On 27th March 2002,
respondent No.2 issued a demand notice asking the petitioners to pay the
entertainment duty of Rs.8,53,943/-. The said demand was disputed and
denied by the petitioners and same was challenged by the petitioners in
Writ Petition No.1104 of 2002 on 21 st November 2002. This Court
allowed the petitioners to withdraw the aforesaid writ in order to enable
the petitioners to file a statutory appeal under Section 10-A of the
Entertainment Duty Act. Pursuant thereto, the petitioners filed an Appeal
on 31st July 2003. The Appellate Authority rejected the said appeal and
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confirmed the demand raised. The said appeal order was challenged in
revision and on 10th June 2005, the Revisional Authority passed an order
upholding the contention of the petitioners that they were entitled to
exemption under Section 3 (5A) of the Entertainment Duty Act for a
period of 3 years and further 50% remission for a period of 2 years
thereafter. The consequence being, after the period of 3 years of
exemption, the petitioners have deposited the entertainment duty, of
which the petitioners seeks refund in the present petition. Being
aggrieved by the said order passed by the Revisional Authority, the
petitioners have filed the present petition seeking refund of entertainment
duty deposited with the respondents for the period post expiry of
exemption period of 3 years. We are informed by the petitioners that at
present they have closed all water activities at Chowpatty, Mumbai.
4. Submissions on behalf of the Petitioners :- The learned
senior counsel for the petitioners has admitted that the Petitioner is
covered by Section 3 of the Bombay Entertainment Duty Act which
imposes entertainment duty on the activities specified therein, which inter
alia includes water activities. The Petitioner also admitted before
Appellate/ Revisional Authority and before this Court that they are
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engaged in water sports activities. The said admission can also be found
in para 2 of the affidavit in rejoinder filed by the Petitioner in February
2017 and in orders of the Appellate/Revisional authorities.
5. The only contention raised by the petitioners is that the
respondents have not recovered entertainment duty from the persons
purportedly carrying on/engaged in similar activities in the State of
Maharashtra and therefore, under Article 14 of the Constitution of India,
the petitioners are discriminated and the petitioners too should not be
made liable for payment of entertainment duty on its water sports
activities.
6. To buttress the plea of Article 14, learned senior counsel for
the petitioners has brought to our attention the pleadings made at pages
34-A to 34-H of the petition, wherein the petitioners have pleaded that on
various enquiries made, the persons engaged in similar activities at
Gateway of India and at other places are not called upon to pay
entertainment duty. The petitioners have also brought to our attention a
letter dated 6th September 2010 addressed by the Office of the Collector
and District Magistrate, Mumbai City to the Deputy Secretary, Revenue
& Forest Department, Mantralaya on this issue. The said letter records
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that the issue of non-recovery of duty from persons carrying on activities
at Gateway of India was examined on a complaint made by the petitioners
and the explanation was sought from the Secretary, "Gateway- Elephanta
Jalvahatuk Sangh Maryadit," wherein the submission of the said Sangh
were recorded as to why the said activity is not covered by the
Entertainment Duty Act. The said letter further requests the Government
for guidance in this connection. The petitioners also relied upon the reply
of the respondents dated 21st June 2013 and attention was drawn to
paragraphs 15 and 16 of the said reply wherein the respondents have
furnished the names of the persons running water sports activities similar
to the petitioners and who are being regularly charged to the
entertainment duty. The petitioners relied on paragraphs 7 to 9 of its
rejoinder dated 3rd February 2016 to contend that the respondents are
not taking any decision to enforce the Entertainment Duty Act against the
boat operators at Gateway of India. The petitioners also stated in its
rejoinder that none of the persons to whom licenses have been issued by
the Maharashtra Maritime Board are registered under the provisions of
the Entertainment Duty Act. The petitioners also relied upon the reply of
the respondents. The sum and substance of the submission of the
petitioners is that since the persons engaged in similar activities are not
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being subjected to the entertainment duty, the petitioners are being
discriminated by making to pay entertainment duty and therefore, the
duty deposited by the petitioners should be refunded.
7. The petitioners further relied upon the Legislative Assembly
debates on a bill as presented before the Legislative Assembly to amend
the Bombay Entertainment Act, 1923. In this context, our attention was
drawn to the speech of an opposition member and reply of the Minister.
The contention of the petitioners is that based on such debate, on the floor
of the assembly, the intention of the legislature was to levy entertainment
duty only in amusement/water parks in which water activities are carried
on and not to the activities of the petitioners, because their water sports
activities are not in amusement/water park. In support of such
submissions, the petitioners relied upon the following decisions:-
(1) Bengal Immunity Co. Ltd. Vs. State of Bihar & Ors.1 (para 22)
(2) Bhagwan Dass Sud & Sons Vs. Income Tax Officer, Special Circle,
Ambala.2(page 70)
(3) EP Royappa Vs. State of Tamil Nadu.3(para 85)
1 AIR 1955 SC 661
2 AIR 1956 P & H 148
3 (1974) 4 SCC 3
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8. Submissions on behalf of the Respondents : At the outset,
the counsel for the respondents disputing the case of the petitioners would
submit that even assuming the case of the petitioners is to be accepted,
Article 14 of the Constitution of India cannot be invoked to obtain relief
which has been erroneously or wrongly granted to other persons. The
counsel for the respondents further submitted that the activities of the
boat operators who undertake ferry services for tourist at Gateway of
India are different than the activities of the petitioners. The petitioners
themselves have stated that they are engaged in activities of Motor Boat,
Speed Boat, Regal Boat Round, Jet Ski Round, Winch Parasail Single,
Bay cruise, Couple cruise, etc. Therefore, the contention of the
petitioners that the activities of the petitioners are similar to the activities
carried out at Gateway of India is not correct. The respondents also
contended that the petitioners in the agreement with MTDC have agreed
to develop water sports complexes and have also agreed to pay all the
taxes and duties which clearly demonstrates that the petitioners were
aware that they were liable to pay entertainment duty. In support thereof,
the respondents have relied upon the following Supreme Court
decisions :-
(i) Secretary, Jaipur Development Authority, Jaipur Vs. Daulat Mal Jain
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& Ors.4
(ii) Gursharan Singh & Ors. Vs. New Delhi Municipal Committee & Ors. 5
(iii) State of Bihar Vs. Kameshwar Prasad Singh.6
(iv) Kulwinder Pal Singh Vs. State of Punjab.7
9. The respondents also relied upon the following decisions to
contend that the activities of the petitioners are exigible to Entertainment
Duty Act.
(i) Geeta Enterprises Vs. State of U.P.8
(ii) Commissioner of Excise Entertainment Vs. M/s.Polo
Amusement Park Ltd.9
10. Rejoinder submissions on behalf of the Petitioners : The
petitioners contended that payment of Rs.1.52 crores is made after the
petition was admitted and under protest. It is the contention of the
petitioners that since the said deposit is made without prejudice and
subject to the outcome of the present petition, the contention of the
respondents that the petitioners cannot claim negative equality is not
correct. It was further contended that since the intent as per the
4 1997 (1) SCC 35
5 (1996) 2 SCC 459
6 (2000) 9 SCC 94
7 (2016) 6 SCC 532
8 (1983) 4 SCC 202
9 2016 SCC OnLine Del 2360
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legislative debate is to tax amusement park in which water activities are
provided, the principle of negative equality contended by the respondents
State would not be applicable. The petitioners also furnished a statement
which is in Form B to contend that the petitioners have not collected
the Entertainment Duty from the user of its facilities and therefore, the
principle of unjust enrichment would not be applicable.
ANALYSIS AND CONCLUSION:-
11. The question which arises in the present petition is as to
whether the Petitioner on the issues as urged, can justify in invoking
Article 14 of the Constitution of India, to claim refund of duty deposited
on the ground that the respondents have not collected duty from similarly
placed persons ?
12. Scheme Of The Act - Before we dwell upon the reasoning, it
would be necessary to note the scheme of the Bombay Entertainments
Duty Act.
(a) Section 2 (a) of the Bombay Entertainment Duty Act
defines "entertainment" to include any exhibition,
performance, amusement, game or sport to which persons are
admitted for payment, or, in the case of television exhibition
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with the aid of any type of antenna with a cable network
attached to it or cable television or Direct-to-Home (DTH)
Broadcasting Service, for which persons are required to make
payment by way of contribution or subscription or installation
and connection charges or any other charges collected in any
manner whatsoever but does not include magic show and
temporary amusement including games and rides.
(b) Section 2 (f) defines "entertainment duty", or "duty" in
respect of any entertainment to mean the entertainment duty
levied under section 3 of the Act.
(c) Section 2 (g) defines "place of entertainment",
includes --
(i) any addition to the place of entertainment;
(ii) a house, building, tent or any other place where the books
of account, ticket books and other relevant records pertaining
to the entertainment or pertaining to the management of
providing cable connections from any type of antenna or cable
television or pertaining to the management of providing
Direct-to-Home (DTH) Broadcasting service are kept or are
believed to have been kept.
(d) Section 3(1) of the Act provides that there shall be
levied and paid to the State Government on payment for
admission fixed by the proprietor to any entertainment [except
in the case of video games, exhibition by means of any type of
antenna or cable television, or Internet Protocol Television, or
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exhibition by means of Direct-to-Home (DTH) Broadcasting
service, bowling alley, go-carting, dance bar, permit room or
beer bar with live orchestra, pub,] discotheque, amusement
park, water sports activity, pool game or tourist bus with
video facility a duty (hereinafter referred to as "entertainments
duty") at the following rates, namely :
(a) .....
(b) .....
Provided further that, the entertainment duty in respect of an
amusement park shall be 15 per cent. of the payment made for
admission to the amusement park, including payment made for
admission for games and rides, whether charges separately or
not.
Provided also that, the entertainment duty in respect of water
sports activity, by whatever name called, whether situated
within or outside the amusement park, shall be 15 per cent. of
the payment made for admission to the water sports activity
including payment made for admission for water games and
sports, whether charged separately or not.
(emphasis supplied)
(e) Section 3 (5A) (a) provides that notwithstanding
anything contained in sub-section (2) or in any other provisions
of this Act but, subject to the provisions of clause (b), on and
with effect from the date of coming into force of the Bombay
Entertainments Duty (Amendment) Act, 1998, there shall be
levied and paid by the proprietor to the State Government, the
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entertainment duty in respect of any water sports activity as
follows, namely :--
(i) for the first three years from the date of commencement of the
water sports activity, no duty ;
(ii) for the subsequent, two years, at the rate of fifty per cent. of
the rate of duty leviable under clause (b) of sub-section (1) or, as
the case may be, sub-section (2) of section 3 ;
(iii) from the sixth year, full amount of entertainments duty
leviable at the rate specified in clause (b) of sub-section (1) or, as
the case may be, sub-section (2) of section 3.
(f) Section 4B provides for assessment of entertainment
duty by the State Government. Section 6 exempts entertainment
duty to be levied on entertainments for charitable or educational
purposes. Section 8 provides for power to enter place of
entertainment by authorised officer of the State Government
with a view to carry out inspection for compliance of various
provisions of the Act and Rules.
(g) Section 10-A of the Act provides for Appeal and
Revision against the order of the Collector.
13. The first assertion on behalf of the petitioner is that the
petitioner needs to be similarly treated to that of operators involved in
tourism/ferry services at the Gateway of India. In this regard, we may
observe that the petitioners could not demonstrate, much less establish
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that the activities carried out by such operators at the Gateway of India
and at other places are identical to the activities of the petitioners. The
activities of the petitioners are namely of water sking, wind surfing,
sailing, kayaking etc. The petitioners have not approached the Court with
a definite case of an admitted discrimination between two similarly
placed persons in invoking Article 14 of the Constitution of India. In the
revision petition as filed by the petitioners, it was neither pleaded nor
canvassed by the petitioners before the Revisional authority that since
persons engaged in similar activities are not paying duty they too should
not be called upon to make the payment towards the duty. The petitioners
have purported to make out this case before this Court only by way of
amendments to the present petition. On this account itself, the petitioners'
case of any discrimination is untenable.
14. Even otherwise if such was to be the petitioners' case, the
petitioners were required to file this petition by impleading such persons
with whom the petitioners are claiming parity. Considering the relief in
the absence of such assertion would be in the teeth of the decisions of the
Supreme Court in the case of Gurshan Singh & Ors. Vs. New Delhi
Municipal Committee & Ors.10, J.S. Yadav V/s. State of U.P. & Others 11,
10 (1996) 2 SCC 459
11 (2011) 6 SCC 570.
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Public Service Commission, Uttaranchal V/s. Mamta Bisht & Ors. 12,
Tridip Kumar Dangal & Ors. V/s. State of W.B. & Ors. 13 The counsel for
the Petitioner agreed to this position in law. Further no materials were
brought on record to show that such operators were having sports
licences, similar to that of the petitioners, much less to implead them as
parties.
15. The Petitioner's contention is to the effect that on one hand,
the operators at the Gateway of India were not being levied with the
entertainment duty, whereas the petitioners were subjected to levy of
entertainment duty under the Act and for such reason, the petitioner needs
to be put at par with the operators at the Gateway of India.
16. Such contention of the petitioners in legal terms can be
considered as a plea of the petitioners to assert a negative equality, for the
reason that the petitioner is questioning the action of the State
Government in the levy of the entertainment duty only qua the
petitioners, and the same being not levied on the operators at the Gateway
of India. Conversely, the plea is that the action of the State Government
not to levy such duty on the operators at the Gateway of India is illegal
12 (2010) 12 SCC 204.
13 (2009) 1 SCC 768.
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and the petitioners needs to be placed in a similar position as that of the
Gateway of India operators.
17. It is difficult to accept such case of the petitioners for more
than one reason; firstly, as noted above such contention is untenable on
the ground of the petitioners failing to demonstrate any parity between
the Gateway of India operators and the petitioners, so as to attract any
argument of Article 14 of the Constitution. Secondly, even assuming that
a plea of such negative equality is called upon to be adjudicated by us, the
primary requirement to urge such issue would pre-suppose that to claim
such negative equality, the illegality of the State Government in
exempting the Gateway of India operators was required to be questioned
and assailed by the petitioners. This has also not been either argued
before the forums below by the petitioners, as also, such was not the case
of the petitioner as the law would mandate. In this context, we may refer
to the decision of the Supreme Court in the case of Gursharan Singh &
Ors. Vs. New Delhi Municipal Committee14 wherein the Supreme Court
has held that under Article 14 of the Constitution guaranteeing equality
before law is a positive concept, which cannot be enforced by a citizen or
a Court in a negative manner. The Court held that if an illegality or
14 (1996) 2 SCC 459
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irregularity has been committed in favour of any individual or a group of
individuals, others cannot invoke the jurisdiction of the High Court or of
the Supreme Court that the same illegality or irregularity be committed
by the State or an authority which can be held to be a State within the
meaning of Article 12 of the Constitution. It was held that such
petitioners can question the validity of the actions of the State which are
set to have been passed in favour of those persons who were not entitled
to the same, but they cannot claim orders, which are not sanctioned by
law in their favour on the principle of equality before law. It was held
that neither Article 14 conceives within the equality clause, such concept
nor Article 226 empowers the High Court to enforce such claim of
equality before law. The Supreme Court further observed that if such
claims are enforced, it would amount to directing to continue and
perpetuate an illegal procedure and an illegal order extending similar
benefits to others. It was hence observed that before a claim based on
equality clause is upheld it must be established by the petitioner that its
claim being just and legal, has been denied to him, while it was extended
to others and in such process, there has been discrimination. The facts of
the present case clearly demonstrate that the petitioners' case utterly fails
when tested on such well established parameters. Thus, the acceptance of
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the petitioner's contention that the petitioner should be given a relief
because the State has not recovered tax from similar activities carried on
by others would amount to calling upon this Court to give relief on the
basis of negative equality. It is hence trite law that equality cannot be
claimed on any illegality. It cannot be enforced by a Court in a negative
manner.
18. We can also test the submissions of the petitioners by way of
an illustration. Assuming that Mr.A is regularly paying income tax on its
business activity. Mr.B is carrying out the same business activity and
earning income but is not paying any tax nor does the Revenue Authority
takes any action against Mr.B for recovery of tax. In such scenario,
Mr.A cannot file a writ petition against the State to claim the refund of
the amount which he has already paid on the ground that since the State
has not recovered the tax from Mr.B, hence there is a violation of Article
14 of the Constitution of India qua him and therefore, Mr.A should also
not pay any tax or get refund of the tax already paid. The submission
made by the petitioners would result in a legal absurdity. The Court
cannot be called upon upon to recognise and validate any illegality. Such
contention can never be accepted.
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19. We may also take note of the other decisions of the Supreme
Court on this aspect. In Secretary, Jaipur Development Authority,
Jaipur Vs. Daulat Mal Jain & Ors. (supra), the Court in such context
observed thus:-
"24. The question then is : whether the action of not delivering
possession of the land to the respondents is on par with other persons who
had possession is ultra vires act and Violates Article 14 of the
Constitution? We had directed the appellants to file an affidavit
explaining the actions taken regarding the allotment which came to be
made to others. An affidavit has been filed in that behalf by Shri Pawan
Arora, Deputy Commissioner, that allotments in respect of 47 persons
were cancelled and possession was not given. He listed various cases
pending in this Court and the High Court and executing court in respect
of other cases. It is clear from the record that as and when any person had
gone to the court to get the orders of the LAO enforced, the appellant-
authority resisted such actions taking consistent stand and usually
adverse orders have been subjected to decision in various proceedings.
Therefore, no blame of inaction or favouratism to others can be laid at the
door of the present set up of the appellant-authority. When the Minister
was the Chairman and had made illegal allotments following which
possession wad delivered, no action to unsettle any such illegal allotment
could have been taken then. That apart, they were awaiting the outcome
of pending cases. It would thus be clear that the present set up of the
bureaucrats has set new standards to suspend the claims and is trying to
legalise the ultra vires actions of Minister and predecessor bureaucrats
through the process of law so such so that illegal and ultra vires acts are
not allowed to be legitimised nor are to be per-petuated by aid of Article
14. The apart, Article 14 has no application or justification to legitimise
an illegal and illegitimate action. Article 14 proceeds on the premise that
a citizen has legal and valid right enforceable at law and persons having
similar fight and persons similarly cir-cumstanced, cannot be denied of
the benefit thereof. Such person cannot be discriminated to. deny the same
benefit. The rational relationship and legal back up are the foundations to
invoke the doctrine of equality in case of persons similarly situated. If
some person derived benefit by illegality and had escaped from the
clutches of law, similar persons cannot plead nor court can countenance
that benefit had from infraction of law and must be allowed to be
retained. Can one illegality be compounded by permitting similar illegal
or illegitimate or ultra vires acts? Answer is obviously no.
28. A host of other decisions in that context have laid the same
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principle. It is not necessary to burden the judgment any further. Suffice to
hold that the illegal allotment founded upon ultra vires and illegal policy
of allotment made to some other persons wrongly, would not form a legal
premise to ensure it to the respondent or to repeat or perpetuate such
illegal order, nor could it be legalised. In other words, judicial process
cannot be abused to perpetuate the illegalities. Thus considered, we hold
that the High Court was clearly in error in directing the appellants to
allot the land to the respondents."
20. Similar view on negative equality is reiterated by the Supreme
Court in following decisions:-
(a) In State of Bihar Vs. Kameshwar Prasad Singh (supra).
(b) In Kulwinder Pal Singh Vs. State of Punjab (supra).
21. Having examined the above decisions, we may now examine
as to whether the case of the petitioner can be accepted on the decisions
as cited on behalf of the petitioners.
22. The petitioners reliance upon paragraph 9 of the decision in
case of Budhan Choudhry Vs. State of Bihar15 would not assist the
petitioners. In this case, the issue before the Supreme Court was whether
trial by a Magistrate under section 30 or by a Court of Session offends
equal protection clause of our Constitution. The Supreme Court after
examining the scheme of trial as provided by the Code of Criminal
Procedure held that there is no discrimination and whether trial should be
15 AIR 1955 SC 191
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done by a Magistrate under section 30 or by a Session Judge is a
discretion judicially exercised by an appropriate judicial officer. The said
decision in paragraph 9 further observes by quoting the language of
Justice Frankfurter in Snowden v. Hughes that "the Constitution does not
assure uniformity of decisions or immunity from merely erroneous action,
whether by the Courts or the executive agencies of a State. The judicial
decision must of necessity depend on the facts and circumstances of each
particular case and what may superficially appear to be an unequal
application of the law may not necessarily amount to a denial of equal
protection of law unless there is shown to be present in it an element of
intentional and purposeful discrimination." Therefore, the reliance of the
petitioners on the decision of Budhan Choudhary (supra) would not
assist the petitioners.
23. The next reliance on behalf of the petitioners is on the
decision of the Supreme Court in the case of EP Royappa (supra). Our
attention was drawn by the petitioners to paragraph 85 of the decision in
the case of EP Royappa (supra) which also considers decision in the case
of Bhagwan Dass Sud & Sons (supra). There is no quarrel that if two
persons are equally placed then provisions of Article 14 can be invoked.
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Thus this decision as relied upon by the petitioners does not support the
case of the petitioners. On the contrary, the decision in case of Snowden
v. Hughes which is referred to in the decision in case of Bhagwan Dass
Sud & Sons (supra) goes contrary to the petitioners' case wherein the
Court had observed that "the Constitution does not assure uniformity of
decisions or immunity from merely erroneous action, whether by the
Courts or the executive agencies of a State."
24. Now, we consider the case of the petitioner on the "under
protest payment." It is contended by the petitioners that since the payment
was made under protest, the principle of negative equality would not be
applicable. We may observe that the present petition is filed on 22 nd
August 2005. This Court in its order dated 28 th July 2022 recorded the
statement of the petitioner that pursuant to an interim order passed on 10 th
June 2005 the petitioners has deposited a sum of Rs.1,52,45,923/-. We
fail to understand as to how this sum was deposited on 10 th June 2005,
the petitioner has under the orders of the Court when petition itself was
filed on 22nd August 2005. The petitioners in the amended petition in
paragraph 14 (I) have averred that payment is made under the orders of
the Revenue Minister dated 10th June 2005 and interim order dated 11th
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October 2005 of this Court. This Court on 11 th October 2005 has only
issued Rule and observed that implementation of the order is subject to
ultimate decision on the petition. Therefore the submission of the
Petitioner that payment has been made under protest pursuant to the
orders passed by this Court is on the face of the record unacceptable and
in any case, has no relevance for the plea of Article 14 as canvassed by
the Petitioner. We may also observe that in fact the petitioners have
accepted that they are liable to pay duty under the Entertainment Duty
Act. Therefore, the submission of the petitioners that they have made the
payment under protest is misconceived.
25. In regard to next contention of the petitioners on unjust
enrichment, the petitioners have contended that they have not collected
the duty from their customers and, therefore, relief as prayed for should
be granted. In our view, unjust enrichment can be treated by the
petitioners only when the petitioners are in a position to satisfy the Court
on materials that the State had illegally or without authority of law levied
and has appropriated the duty from the petitioners. There is no scope for
the petitioners to argue that merely because the petitioners have not
collected the duty from its customers and has deposited duty with the
ppn 25 wp-2158.05(j).doc
State Government, can in no manner attract any argument of unjust
enrichment, for the reason, that petitioner under the terms and conditions
of its licence and as per the provisions of law is primarily liable to deposit
the duty. The State Government has no control whatsoever on the
activities of the petitioners, much less in regard to the petitioners
collecting the said amounts from its customers. Thus, on such count
itself, the plea of unjust enrichment as sought to be urged by the
petitioners needs to fail.
26. Now we consider plea of the petitioners on the issue of
legislative debate. The petitioners have relied on legislative debate to
contend that its activities are not intended to be taxed. The petitioners
contended that it is only water activities by amusement/water park which
is sought to be taxed based on the legislative debates for construing the
levy. The Petitioner has relied upon the legislative debates, when the bill
No.29 of 1998 was introduced in the Assembly to amend the Bombay
Entertainment Duty Act, to contend that it is the water activities in the
amusement park, which were intended to be covered for the purpose of
levy of entertainment duty and not the activities conducted by the
petitioners.
ppn 26 wp-2158.05(j).doc
27. In considering such plea, the first and foremost approach of
the Court would be to plainly look at the legal provisions as contained in
the provisions of the statute as they stand, and if there is any need for an
external aid, so as to attribute any meaning to the legislative provisions
then recourse can be had to such external material which in a given case
may include legislative debates.
28. The Act itself distinguishes between amusement park and the
water activities. There are separate provisions dealing with the
amusement park and the water sports activity. If the legislative intent was
to cover only water sports activity by amusement park then the Acts
would not have made a distinction between the amusement park and
water sports activity. The levy is on the activities and not on the entity
carrying on the activities. Therefore, whether water sports activity is
carried on by amusement park or by non amusement park, both would be
liable to pay the entertainment duty. Section 2 (a-1) defines "amusement
park" to mean a place wherein various types of amusements are provided
on permanent basis on payment for admission. Section 2(a) defines
"entertainment" to include amusement or sport to which persons are
admitted for payment. Explanation (iii) to Section 2(a) defines
ppn 27 wp-2158.05(j).doc
"temporary amusement." Section 3(1) which levies duty on payment for
admission to entertainment classifies amusement park and water activities
as two different activities. Similarly, second proviso to Section 3(1) deals
with amusement park and third proviso to Section 3(1) deals with water
sports activity. It is also important to note that third proviso to Section
3(1) expressly provides that water sports activity whether situated within
or outside the amusement park would be liable for entertainment duty.
Therefore, the scheme of the Act clearly negatives the contention raised
by the petitioners by relying on legislative debate that only water
activities by amusement park are liable for duty.
29. It is important to note that the petitioners have admitted that
they are covered by the Entertainment Duty Act. After having admitted
the same, the petitioners cannot turnaround and contend at the fag end of
the proceedings that since the intention of the legislature is to cover water
activities in amusement park and since their activities are not in
amusement park, they are not liable for duty. Section 3(1) of the Act
which is charging section imposes levy, not only on entertainment as
defined by Section 2(a) of the Act but also covers various other activities
including water sports activity and admittedly, the activities of the
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petitioners like water sking, wind surfing, sailing, kayaking, Jet boating
etc. are water sports activities and hence covered by charging section. It
is also important to note that the petitioners themselves made an
application under Section 3(5A) of the Act for taking benefit of the said
provision which provides that for the first three years from the date of
commencement of the water sports activity, there would be no duty, for
subsequent two years, the duty will be at the rate of 50% and from the
sixth year, full amount of entertainment duty would be leviable. The
petitioners having made an application and having taken benefit of no
duty for the first three years now cannot turnaround, on expiry of three
years when they are liable to pay duty at the rate of 50% and full amount
thereafter, that their activities are not covered by the Bombay
Entertainment Duty Act and therefore, the petitioners rightly began the
arguments by stating that they are covered by the provisions of the
Bombay Entertainment Duty Act. The petitioners are now estopped from
contending otherwise. The claim of refund by the Petitioner is made of
the duty which they themselves and rightly so paid. On these facts, in
our view, the petitioners now cannot contend that their activities are not
covered by the Entertainment Duty Act.
ppn 29 wp-2158.05(j).doc
30. We also note the legal position on this aspect. The Supreme
Court in case of Supreme Court in case of State of Travancore-Cochin
and Ors. Vs. Bombay Company Limited, Alleppey16 held that speeches
made by the Members of Constituent Assembly in the course of debates
on the draft constitution is unwarranted. The Supreme Court observed in
the said judgment that this form of extrinsic aid cannot be used for
interpreting any provisions of the statute and same has been generally
accepted in England and in the construction of Indian Statutes as well. In
a 9 Judge Constitution Bench decision of the Supreme Court in the case
of Indra Sawhney Etc. Vs. Union of India & Ors. 17, the Supreme Court
held that what is said during such debates is not conclusive or binding
upon the Court because several members may have expressed several
views, all of which may not be reflected in the provision finally enacted.
In the light of the settled position, the petitioners are not justified in
relying upon the views of some members in the course of the debates in
the Legislative Assembly for interpretation of provisions of Entertainment
Duty Act when the Act itself is clear on this issue, as analysed by us in
above paragraphs.
16 AIR 1952 SC 366
17 AIR 1993 SC 477
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31. In view of above discussion, the petition is dismissed. No
order as to costs.
JITENDRA JAIN, J. G. S. KULKARNI, J.
