DURGA FILMS TRADERS P LTD Vs. DISTRICT

JUDGEMENT

(1.) THE petitioner 'Durga Films and Traders (P) Ltd.' assails the order of the District Magistrate, Cuttack dated 8 6 1994 refusing reduction of number of seats in its Cinema Hall with effect from the date of application and for exemption of entertainment tax in view of the reduced seat, while allowing reduction from the date of passing of the order under Annexure 7. The prayer of the petitioner is that, it should be allowed reduction in the sitting capacity with effect from 11 9 1989, the date of first application and for quashing the Certificate Case Nos. 41 and 42 of 1994 for realisation of arreat entertainment taxes.

(2.) THE short fact of the petitioner's case is that it is a private limited company engaged in business of exhibition of films in its hall 'Durga Talkies' at Cuttack. On 11 9 1989, it made an application to the District Magistrate, the Licensing Authority under the Orissa Cinemas (Regulation) Act, 1954 for allowing reduction of the sitting capacity from 1199 seats to 850 seats, but the Licensing Authority did not accept such proposal to reduce the sitting capacity vide letter dated 7 11 1989 (Annexure 2), indicating further that the deviation in that regard would be viewed seriously. The petitioner again on 29 12 1989 and 20 3 1991 vide Annexures 3 and 4 made further applications for reduction of the sitting capacity, but on 3 7 1992, the Magistrate in charge of judicial section informed the petitioner under Annexure 5 that any notice for addition or alteration in the show cause should be accompanied by complete plans, elevations and sections and specification of the works proposed to be executed, drawn up in duplicate in the manner prescribed in Rule 8 in accordance with Orissa Cinema Regulation Rules, 1964 (Rule 15 (2)) and therefore it may submit fresh proposal enclosing required plans etc, as required under the Rules. Petitioner states that in response to the aforesaid letter, it intimated the details of the number of seats to be reduced and informed that for reduction of the sitting capacity, only the number of chairs are to be reduced and all other fittings and, affixtures would remain unchanged and therefore as per the provisions of law, the detailed particulars are not necessary. In spite of repeated requests, the District Magistrate having not considered the prayer, it moved this Court in O. J. C. No. 3505 of 1993 and this Court disposed of the writ application by directing the District Magistrate to consider the case of the petitioner for allowing reduction in the sitting capacity and for considering as to whether the relief can be granted from the date of application.

(3.) THE petitioner's specific case in paragraph 14 of the writ petition is that it could not reduce the number of seats from the date of its application due to the order of the District Magistrate dated 17 11 1989 (Annexure 2) even though the seats are lying vacant in every show and therefore it is not liable to pay entertainment tax on the existing seats and the reduction in sitting capacity should be given effect to from the date of his first application and not from the date of the order of the District Magistrate, as directed. It is stated that the certificate of clearance of entertainment tax as directed has no nexus with the reduction of the sitting capacity since there is a separate forum for recovery of the entertainment dues and therefore the order of the District Magistrate allowing reduction of the sitting capacity subject to payment of arrear entertainment taxes is ex facie illegal and unsustainable. Petitioner has also assails the demand raised by the Commercial Tax Officer, Cuttack I West Circle towards entertainment tax for the period from April, 1989 to 31 3 1993 of Rs. 16,19,837/ basing upon the total number of seats, which, according to the petitioner is illegal and unsustainable in law, since it is liable to pay entertainment tax on the basis of the reduced seats with effect from the date of application. Petitioner has moved the Commissioner Commercial. Taxes as against the order of the Commercial Tax Officer in an appeal, which is said to be pending and in the meantime, the Commercial Tax Officer has initiated proceeding under the O.P D.R. Act.