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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD

WRIT PETITION NO.4485 of 1994

1] The Gram Chal-Chitrapat

Pradarshak Sangh, Jalgaon

through its President -

Shri Chintaman Raoji Choudhary,

Age 66 years, Occ. Business,

R/o. Bhole colony, Bhusawal,

Taluka bhusawal, District Jalgaon.

2] Sudhakar Venkat Mahajan

Age 54 years, Occ. Business,

R/o. Ruzoda, Tal. Raver,

District Jalgaon.

Petitioners

Versus

1] The State of Maharashtra

2] The Tahsildar, Raver,

Taluka Raver, District Jalgaon.

3] The Collector, Jalgaon,

District Jalgaon.

Respondents

Mr. R.N. Dhorde,, Advocate for the petitioner.

Mr. N.B. Patil, A.G.P. For respondent Nos. 1 to 3.

CORAM : B.R. GAVAI & S.V. GANGAPURWALA,JJ.

DATE : 14TH JUNE, 2010.

ORAL JUDGMENT [ PER B.R. GAVAI,J] :-

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1]

By way of present petition, the petitioner challenges the

validity of the amendment to the Bombay Entertainment Duty Act,

1923, ( hereinafter referred to as, “ the said Act”) firstly by way of

amendment in 1993 to Section 2 of the said Act thereby adding a

proviso after first proviso of Section 2 and secondly, the amendment

in the year 1994, by which the second proviso to Section 2 has been

amended and a third proviso has been inserted.

2]

Clause (b) of Section 2 of the said Act, defines “ Payment

for admission”. The said sub-section provides as to what amount

shall be liable to be levied towards entertainment duty. By the

amendment in the year 1993, by Maharashtra Act No.10/1993, a

proviso came to be added in the said amendment, which reads

thus :-

“ Provided further that, any payment not

exceeding fifty paise per ticket if charged by the

proprietor towards service charges separately and the

proprietor shows to the satisfaction of the prescribed

officer as defined in the rules made under this Act that

the amount of such service charges is spent by him

towards maintenance and providing facilities and safety

measures in the permanent cinema in addition to those

required under the provisions of the Bombay Cinemas

(Regulation) Act, 1953 and the Maharashtra Cinemas

(Regulation) Rules, 1966, or any other law for the time

being in force, such service charges shalln ot be included

in the payment for admission.”

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Subsequently, by Ordinance No.14/1994, certain amendments were

again came to be carried out. The relevant amendment for the

purpose of the present petition are as under :-

“in clause (b) :-

(a) in the second proviso :

(i) for the words “fifty paise” the words, “one

rupee” shall be substituted :

(ii) after the words “permanent cinema” the words

“ or quasi permanent cinema” shall be inserted.

(b) after the second proviso, the following proviso shall

be added, namely :-

“Provided also that, the proprietor shall submit,

every year, to the prescribed officer as defined in

the rules made under this Act, the accounts of

service charges collected and spent by him

towards maintenance and providing facilities and

safety measures as referred to in the second

proviso. If the prescribed officer on perusal of the

accounts is satisfied that the service charges or

part thereof is not spent for the purposes

mentioned in the second proviso, then, the service

charges or part thereof, not so spent shall be

included in the payment for admission; and

thereupon the provisions of sub-sections (2) to (5)

of Section 4B shall mutatis mutandis, apply for the

purpose of assessment of entertainment duty.”

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3]

Shri Dhorde, learned counsel for the petitioners submits

that by the 1993 amendment, certain benefit was given to the

permanent cinemas, which provided that certain amount spent by

such cinemas towards the maintainance and providing facilities and

safety measures shall not be liable for payment of entertainment

duty. He further submits that by subsequent amendment of 1994,

the same benefit was also given to the quasi permanent cinemas.

Howe