KAMLA PALACE Vs. STATE OF U P

JUDGEMENT

(1.) The petitioner, Kamla Palace, village Dunda Hera, district Ghazlabad. through its proprietor Sri Arvind Mohan Sharma, has filed the present petition under Article 226/227 of the Constitution of India, seeking writ of certiorari quashing the orders dated 14.5.1992, 16.7.1993, 2.7.1993, 13.9.1993 and 22.9.1993, contained in Annexures-14, 9, 12, 13 respectively, in addition to writ of mandamus directing the respondents not to compel the petitioner to pay any amount towards the entertainment tax for the first two years of functioning of petitioner-cinema hall.

(2.) The facts of the case in brief are that according to the petitioner, acting on the basis of grant-in-aid facility provided by the State Government vide Government Order dated July 18, 1989, he decided to construct a cinema hall in village Dunda Hera of district Ghaziabad, which had a population of less than 5.000. The petitioner had made an application under Rule 3 of the U. P. Cinematograph Rules, 1951 (hereinafter referred to as the Rules), on 18.11.1989. seeking approval of the site plan and permission for construction of permanent cinema hall building. The District Magistrate, who is the licensing authority, granted permission under Rule 3 (3) of the Rules, to the petitioner on 20.2.1992. Thereafter, the petitioner started the construction of the cinema hall. The petitioner had applied for grant of licence on 20.2.1993. The petitioner was granted licence on 9.5.1993 and it started exhibiting the cinematograph films from 10.5.1993.

(3.) It may be mentioned here that the State Government had provided certain incentives for construction of new cinema halls vide order dated 18.7.1989. The said order applied to those cases where the application for approval of the site plan for construction of permanent cinema building had been filed after 1.4.1989 but before 31.3.1994 coupled with the conditions that application for grant of licence should be made between 1.4.1990 to 31.3.1995. The grant-in-aid admissible to such new cinema halls was 100% of the entertainment tax during first 2 years and 75% of the entertainment tax during the third year. The petitioner also applied for giving of grant-in-aid in terms of Government Order dated 18.7.1989. However, vide order dated 16.7.1993 passed by the District Magistrate, Ghaziabad, respondent No. 4, the petitioner was informed that it would be entitled to grant-in-aid to the extent of 75% of the entertainment tax only as the cinema hall was running with effect from 10.5.1993. The petitioner also received an order dated 22.7.1993 passed by the incharge. Assistant Commissioner. Entertainment Tax, Ghaziabad, respondent No. 3 catling upon it to deposit a sum of Rs. 42.603.77 being 25% amount of entertainment tax recoverable from the petitioner from 10.5.1993 to 14.7.1993. The petitioner made a representation before the Secretary (Institutional Finance) Government of U. P., Lucknow. on 4.8.1993 slating, Inter alia, that it had constructed the cinema hall on the basis of grant-in-aid as provided in Government Order dated 18.7.1989 which was effective from 1.4.1989. The petitioner further stated that since it had compiled with all the conditions of the Government Order dated 18.7.1989. it was entitled for grant-in-aid to the extent of 100% entertainment tax for the first 2 years. The petitioner prayed for quashing the order dated 16.7.1993 and issuance of direction for not depositing any money towards any entertainment tax. The Joint Secretary (Institutional Finance) respondent No. 2. vide order dated 13.9.1993 informed the petitioner that the Government Order dated 18.7.1989 had been amended vide order dated 14.5.1992 and. therefore, the order dated 16.7.1993 passed by the respondent No. 3 was valid and legal. After the Joint Secretary (Institutional Finance) respondent No. 2, had communicated the decision upholding the legality of the order dated 18.7.1993, the respondent No. 4 had passed another order on 22.9.1993. directing the petitioner to deposit a sum of Rs. 71,563.53 being 25% of the entertainment tax for the period 10.5.1993 to 7.9.1993. The orders dated 14.5.1992. 16.7.1993. 22.7.1993, 13,9.1993, 22.9.1993 are under challenge in the present petition.