RAMANLAL B JARIWALA Vs. DISTRICT MAGISTRATE SURAT

JUDGEMENT

(1.) . This petition raises a short but interesting question as to whether the respondent-State of Gujarat and its authorities functioning Under the Gujarat Entertainment Tax Act, 1977 are entitled to collect entertainment tax on charges levied at the petitioner's cinema theatre from the passengers who. use the lift facility available at the theatre. The factual metrix leading to this petition may be looked at the outset.

(2.) . The petitioner is a partner of a duly registered partnership firm named Raman Brothers. They run a cinema house named Ratan Talkies at Shalabatpura locality in the Surat City. The said cinema house is a part of a double dicker threatre, one cinema house being Rupam Talkies situated on the ground floor and petitioner's Ratan Talkies being at a height of about 35 feet from the ground floor. The petitioner and his firm at the time of construction of the theatre made a provision for a lift to go to the upper deck that is at a height where Ratan Talkies is situated. In the beginning, the petitioner and his firm gave benefit of the lift free of charge to the cinema goers. The construction of the lift was done by him at huge cost as submitted by the petitioner. According to the petitioner, maintenance cost of the lift was also going to be prohibitively expensive. There were frequent breakdown due to the snapping of lift chords. One such snapping of one chord cost about Rs. 1,500.00 per repair As a result thereof, the petitioner and his firm were compelled to introduce a small and nominal charge of 10 paise per passenger per upward trip. The said charge was to be collected and in fact was collected from only those who wanted to avail of the service. Those who did not want to avail of the service offered by the lift had not to pay ten paise and on payment of usual charges, they could be admitted to entertainment in Ratan Talkies on the first floor. A separate slip in token of the receipt of ten paise was issued to every person availing of the service of the lift. According to the petitioner, those who did not want to avail of the lift service used to climb the ladder for going to Ratan Talkies as the height was only 35' and it was easy and feasible for cinegoers to go to the foyer of Ratan Talkies by climing the ladders. It is further the case of the petitioner that even according to the bye-laws of the Surat Municipal Corporation, it was not compulslory to provide lift facility at the height of 35'.

(3.) . It appears that somewhere in June 1978, respondent No. 1-District Magistrate, Surat who is also the authority under the Gujarat Entertainment Tax Act, 1977 ('the Act' for short), challenged the action of the petitioner of charging 10 paise from the cinegoers who used the lift. The petitioner by his reply dated 14-6-1978 submitted that he was not prohibited from charging such charge on use of the lift. It appears that thereafter respondent No. 1 sent further letter dated 21-7-1978 to the petitioner maintaining that charge for lift cannot be collected by the petitioner and if he wanted to collect charge, he may collect only on condition that the petitioner should collect entertain tax on this charge of ten paise per person for the use of the lift. The said communication is at Annexure 'D'. Thereafter, the petitioner made a representation to the second respondent-State of Gujarat in Finance Department. The Finance Secretary through his subordinate officer's letter dated 15-12-1978, however, rejected the representation of the petitioner as per communication at Annexure 'E' It is in these circumstances that the petitioner has approached this Court for a declaration that levy and collection of entertainment duty on lift charge is illegal and ultra vires and for permanently restraining the respondents from collecting the same from the petitioner. In the alternative, it is submitted that if such levy and collection is found to be flowing from the provisions of Sees. 2(a), 2(e), 2(g) and Sec. 3 of the Act, then in that case, these provisions would be illegal and ultra vires and would be liable to be struck down.