(1.) WRIT petition under Article 226 of the Constitution, filed by Proprietor of Deepali Theatre, Ahmednagar challenges order Exhibit F dated 23-10-1989 issued by respondent No. 2 Collector and District Magistrate, Ahmednagar, by which petitioner is directed to pay an amount of Rs. 14,207. 65 Ps. towards the entertainment duty on exhibition of tax free movie Salam Bombay. Further amount of Rs. 1,634. 15 Ps. is claimed by way of interest. Petitioner is also cautioned that in case of failure to deposit the amount within ten days, the amount would be recovered as if arrears of land revenue, in view of section 9 of the Bombay Entertainments Duty Act, 1923 (for the sake of brevity, hereinafter the Act of 1923 ). Petition also prays a declaration that Clauses (f) and (g) of section 3 (3) of the Act of 1923 are illegal and hence inoperative.
(2.) PETITIONER is the proprietor of Cinema House, styled as Deepali Theatre at Ahmednagar and holds valid licenses in forms E and F granted by respondent No. 2 under Rules 101 and 108 of the Maharashtra Cinemas (Regulation) Rules, 1966 (for short, the Rules of 1966 ). Respondent No. 2 had been collecting the entertainment duty under the provisions of the Act of 1923, and more particularly, as per provisions of section 3 (1) (c ). The relevant provision is reproduced at Exhibit A to the petition. Under this provision, entertainment duty was levied on the exhibition of cinematograph on percentage basis over the payment for admission. Maharashtra Act VII of 1987 introduced new provision. Sub-section (3) of section 3 of the Act of 1923 is reproduced at Exhibit B to the petition. Under the new provision introduced by amendment, as can be seen from Exhibit B ; the entertainment duty was leviable every week, at 25% of notional gross collection capacity of a show, multiplied by 21. It is not in dispute that theatre of petitioner is permanent cinema as defined by section 2 (f-1) of the Act of 1923 and for the purposes of section 3 (3) (a) and more particularly the table below the same, it is covered by entries (iii) (i), which reads as follows:<FRM>JUDGEMENT_201_BCR2_2002Html1.htm</FRM> This is because, the theatre is situated within the limits of Ahmednagar city, which was having population exceeding 25,000 but below 1,50,000 at the material time. Newly introduced provision - section 3 (3) - gave an option to the licensee to pay the consolidated entertainment duty as per formula mentioned therein, irrespective of number of shows held by the licensee, in view of sub-section (3) (b) of section 3. Thus, by virtue of amendment, there were two classes of licensees, on the basis of manner of payment of entertainment duty, i. e. those, who continued to pay the entertainment duty under existing section 3 (1) (c) i. e. percentage on actual payment for admissions and second those, who paid the consolidated entertainment duty on the basis of notional gross collection capacity for a show. Petitioner opted for the payment of consolidated entertainment duty under the newly introduced provision by application Exhibit C dated 26-12-1988 for the year 1989 and taking into consideration the notional gross collection capacity for a show i. e. 256 seats at the rate of admission of Rs. 4/- and 545 seats at the rate of admission of Rs. 3/- i. e. gross collection of Rs. 2659 for a show, the consolidated entertainment duty per week was fixed at Rs. 13,960. Permit to that effect seems to have been issued by the Collector, Ahmednagar dated 22-12-1988 Exhibit D. (Although during the course of his arguments, learned Counsel Shri Gursahani claimed that the petitioners theatre is covered by section 3 (1) (II) and therefore, relevant entry under the amended section 3 (3) (a) is entry Nos. (ii), (i) of the table below said section. On reference to Exhibits C and D to the petition, this appears to be wrong submission, and on the basis of petitioners application his permanent cinema is covered under entry Nos. (iii), (i) of the table below section 3 (3) (a) i. e. amended provision ). Petitioner exhibited the feature film Salam Bombay for three weeks i. e. 24-3-1989 to 30-3-1989, 31-3-1989 to 6-4-1989 and 7-4-1989 to 13-4-1989 daily one show commencing at 12 Noon ( Matinee for the sake of brevity ). Petitioner ran the show at usual rates of admissions i. e. Rs. 4/- and Rs. 3/- for balcony and dress circle respectively. This was for allegedly want of instructions from the respondents inspite of a specific enquiry, who professed that said feature film was declared as duty free. (During the arguments, it was not disputed that the feature film was so declared to be duty free ). Respondents, therefore, contend that petitioner ought not to have charged the tax. Respondent No. 2 issued a notice Exhibit E calling upon petitioner to deposit Rs. 14,207. 65, the amount recovered by petitioner towards the entertainment duty. He was also invited to state whether he was willing to pay entertainment duty for compounding offence as provided by section 9 (A) of the Act of 1923. He was further directed to appear in person before respondent No. 2 on 11-7-1989. It appears that after this notice, by communication dated 19-7-1989, petitioner submitted elaborate say and denied the liability to pay entertainment duty as claimed in the notice, claiming that entire entertainment duty towards exhibition of cinemas for any number of shows for the week was already paid by petitioner under the amended provision for payment of consolidated entertainment duty. According to petitioner respondent No. 2 was satisfied with the explanation of petitioner and promised to refer the matter to the State, instead, issued the impugned notice. Writ petition was filed in view of the threat in the said notice for recovery of entertainment duty as if the amount was arrears of land revenue. The impugned notice is challenged mainly on the basis of section 3 (3) (b) of the Act of 1923. According to petitioner, once the consolidated duty is paid on the basis of notional gross collection capacity, petitioner is not liable to pay any other amount towards the entertainment duty, irrespective of actual number of shows held during the week. Sub-clauses (f) and (g) of amended sub-section (3) of section 3 are challenged as illegal and inoperative, because according to petitioner, those frustrate the scheme as introduced by amended sub-section (3 ).
(3.) AT the beginning of his argument Shri Gursahani conceded that subsequently in the year 1997, the State has introduced further amendment to section 3 (3) (a) by which even the consolidated entertainment duty on the basis of percentage over the gross collection capacity for a show is now also based on number of shows actually held during the week. He, therefore, stated that the decision of the writ petition will govern the liability of petitioner only for the year 1989 and more particularly regarding peculiar case of exhibition of tax free feature film Salam Bombay.