CHANDRABHAL SHIVSHANKAR BUKSH Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THE appellant Chandrabhal has filed this second appeal against the concurrent judgment of the Courts below dismissing his suit for refund of Rs. 2,112 -8 -0 recovered from him by way of entertainment duty.

(2.) THE appellant admittedly was a proprietor of a show which called itself 'Grand Exhibition and Amusement Park' at which a number of persons were admitted on payment of certain amount. At this show two mechanical devices, called Chairoplane and Giant Wheel, were constructed. Chairoplane is a contraption with chairs and by mechanical operation they are sent round in circular motion. The Giant Wheel is a contrivance which has hanging seats and while the wheel is going round certain number of times, the persons sit in those hanging seats. The appellant admittedly collected payments on admission to this amusement show. What the appellant contends is that he is not liable for payment of any entertainment duty on the payments received for using the two devices because under the C.P. and Berar Entertainments Duty Act (XXX of 1936) that would not mean amusement. Now, there is a definition of 'entertainment' in the Act. In Clause (b) of Section 2 there is an inclusive definition of 'entertainment' as follows: 'entertainment' includes any exhibition, performance, amusement, game or sport to which persons are admitted for payment; Now, it is difficult to appreciate that a person who is admitted for payment to enjoy a joy ride either on a Chairoplane or on a Giant Wheel is not admitted to an entertainment. It is an amusement in any case. It is not necessary for an entertainment to be 'amusement' that some other person should do something by which the visitor is amused. A visitor can be amused by amusement by doing something himself or by mechanical effect of either a Giant Wheel or a Chairoplane as it is called. I do not, therefore, agree with the contention raised by the learned Counsel for the appellant that the proprietor was not liable under the Act because he was not a proprietor of 'entertainment' to which persons were admitted for payment.

(3.) IT is further contended by Mr. Dharmadhikari, learned Counsel for the appellant, that on true construction of Section 10 of the Act the sum may become an arrear of entertainment duty only if Section 5 of the Act comes into operation, i.e. if there is prosecution and conviction and after such conviction such amount is found not to have been paid. It is difficult for me to accept this contention of Mr. Dharmadhikari. The arrear of 'entertainment duty' is that sum which should have been paid by the proprietor. The words 'arrear of entertainment duty' have not been defined in the Act and should bear their normal and ordinary meaning. If Section 3 creates a liability in the proprietor to pay the duty called entertainment duty in respect of every payment for admission, then such a duty will become an arrear of entertainment duty the moment there is payment for admission and the duty payable on such payment for admission has not been paid to the Government. I am, therefore, unable to accept this contention.