CHITTARANJAN KOLEY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) A large number of writ petitions under Article 226 of the Constitution of India were admitted by this Court filed by several hundred petitioners challenging West Bengal Luxury-cum-Entertainment and Amusement Tax (Second Amendment) Act, 1987 and praying for a declaration that Section 4A of the West Bengal Entertainment-cum-Amusement Tax Act, 1982 as incorporated by West Bengal Taxation Law (Second Amendment) Act, 1987 and West Bengal Cinematograph (Regulation of Special Exhibition) Order 1987 and all notifications and circulars issued thereunder are unconstitutional and void and to restrain the State respondents to initiate cases and seize the video sets where public shows are being held without permission and without payment of stipulated tax and not to disturb and/or interfere with the respective business of the petitioners and the public shows of the Video at the coffee centres and restaurants in any manner and in any farm whatsoever. Since common questions of law and facts have arisen in all the cases, they were heard analogously and/or simultaneously and by allowing some learned Lawyers to argue the case on behalf of the writ petitioners as agreed by several learned Lawyers appearing in different cases seeking reliefs in the like manner. This judgment is intended to cover all the said writ petitions popularly terms as "Video Cases".

(2.) It is commonly stated in the writ petitions that the respective petitioners with great difficulty started coffee houses and/or restaurants at different places where tea, coffee and snacks are supplied to the customers. With a view to provide extra attraction to the customers, the writ petitioners in their respective places of business, maintained television sets with video and public shows of films are held without asking any separate and/or extra fees or by selling tickets for such video shows. It is further stated that the petitioners cannot afford more spaces for the customers as are provided generally in the cinema halls and there is nothing to sell tickets and to pay any amusement tax in this behalf. According to the petitioners, the running of a video show at a restaurant and/or coffee house cannot stand at par with the shows held in the cinema halls. Since the petitioners are required to pay professional taxes under the Bengal Municipal Tax Act and West Bengal Panchayat Act for running their respective business there is no question of payment of any other tax for the video shows which are incidentally held for the entertainment of the customers and to booster the sale. The enjoyment provided to the customers is humble in nature and since notices bad been issued by the District Magistrates/other Authorities demanding weekly taxes from the coffee houses/restaurants and directed that without having licence, no exhibition of the film can be made from any such coffee house and/or restaurant, the petitioners are very much aggrieved. The petitioners have also challenged the notification where it is provided that VCR/VCP show in hotel and restaurant (without lodging facilities) will be assessed at Rs. 750 per week per set with effect from 17th July, 1987 and all exhibitors of video shows will be required to obtain licence from licensing authorities/District Magistrates in the Districts and the Commissioner of Police in Calcutta for public exhibition. There was further indication that for holding video shows in the coffee shops, restaurants, bars restaurant, buses etc., the Organizers will be required to take licence under the West Bengal Cinematograph (Regulation of Special Exhibition) Order 1987 from the aforesaid authorities and retention, display or storage of unconserved tapes, or unauthorisedly made video films for commercial purpose is prohibited. It is alleged that after the said notification the Agricultural Income-tax Officers/Sub-Divisional Officers and Block Development Officers in their respective areas are insisting that without having a proper licence for commercial video shows, the video shows will not be allowed in any hotel, restaurant and coffee house, etc., and consequently the video shows occasionally made at such places are being seriously disturbed. It is stated also that previously an attempt was made by the Government of West Bengal to bring exhibition of video films shows within the scope of West Bengal Cinematograph Act but in a previous writ petition, the Hon'ble High Court at Calcutta decided that in view of the existing provisions of West Bengal Cinematograph Act and the West Bengal Cinema Regulation Rules, the exhibition of Video cannot be brought within the purview of the said Act. It has also been highlighted that if with the existing sitting capacity of the respective places of business of the petitioners is considered in the proper perspective the amusement tax has to be assessed as done in cinema houses and the rates would be very small and the quantum of amount as claimed is arbitrary and without lawful basis whatsoever. The introduction of Section 4A of the West Bengal Entertainment-cum-Amusement Tax Act, 1982 is unjust and unfair and the amended provisions of the Act suffers from various inherent defects and the same is contrary to and inconsistent with the constitutiona1 safeguards and such an amended provision is liable to be struck down. Several defects and lacuna had been sought to be demonstrated by making a comparative study as to payment of tax in cinema halls and the restaurant and coffee house where video shows are exhibited in order to point out that the impugned legislation is ultra vires and the Court should interfere to grant reliefs to the petitioners in the manner as prayed for.

(3.) It is a specific challenge of the petitioners that the amended provisions of the Act as stated above directly impede trade of films and freedom of trade and commerce within the meaning of Article 301 of the Constitution of India and the levy per week for each coffee shop and restaurant holding a video cassette record by way of Rs. 750 per set is also arbitrary and in violation of the provisions under Articles 14 and 19(1) (g) of the Constitution of India. It is emphasized that the rate of tax is an essential legislative function. It could have been understood that like a licence or registration fee, the maximum rate should not have been fixed exceeding Rs. 100 and Rs. 200 per year. By way of permitting the Executive Authority to fix a rate without any guideline is an excessive delegation of power and the same is also hit by the constitutional safeguards. Although the petitioners have no intention to open the commercial video shows in their respective hotels, restaurants and coffee houses, the respondent authorities are insisting that the petitioners must apply for necessary licence for video house in terms of the notification and circulars otherwise they will be penalised. The petitioners further alleged that the respondents cannot compel them to apply for new commercial video show houses in terms of the memo and while the Government of India has dispensed with licence fees for television sets, videos, V.C.Rs., the State authorities are attempting to seize the video sets where public shows are being exhibited without permission and without payment of tax of Rs. 750 per week per set. It is quite distinguishable according to the petitioners from the exhibition of films through video or the shows of the films in cinema houses, there is certainly discrimination while no tax is levied by the State Government for the video shows organised by clubs, institutions and other social-organisations where the small traders and businessmen having small hotels, restaurants and coffee houses would be compelled to pay such exorbitant charges of Rs. 750 per week per set and will be subjected to obtain licence. In the changed socio-economic prospect of the rural and urban set up the video shows do not stand any further for any luxury. Those are to be treated as essential parts of life and no steps should be taken by any welfare State to put an embargo as claimed by the petitioners.