-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2152 OF 2008 1. Bombay Hospital Trust, a charitable trust registered under the provisions of Bombay Public Trusts Act, 1950 with its registered office at 12, New Marine Lines, Mumbai--400 020. 2. S.V.Muzumdar, a trustee of Bombay Hospital Trust having its office at 12, Marine Lines, Mumbai--400 020. 3. S.De, the Manager (Legal) of Petitioner No.1 abovenamed with his office at 12, New Marine Lines, Mumbai--400 020. : Petitioners V/s. 1. State of Maharashtra. 2. The District Collector, Mumbai City (Entertainment Tax Branch) with his office at Old Custom House, 3rd Floor, S.B.S. Marg, Fort, Mumbai--400 001. -: 2 :- 3. Divisional Commissioner, Konkan Division, Mumbai City, Entertainment Branch, Old Secretariat, Annex Building, Next to University, 1st floor, M.G.Road, Fort, Mumbai. 4. Principal Secretary and Officer on Special Duty (Appeals), Revenue and Forests Department. : Respondents ... Mr.Virag Tulzapurkar i/b.Kanga & Co., for the petitioners. Mr.N.P.Pandit, Asstt. Govt. Pleader for the respondents. ... CORAM : SWATANTER KUMAR, C.J.& S.A. BOBDE, J. Date of Reserving ): 19.11.2008 the Judgement. ) Date of Pronouncing): 18.12.2008 the Judgement. ) JUDGEMENT (Per S.A.Bobde, J.) 1. By this Petition, the petitioner no.1, which is a public charitable trust, and others have questioned the liability to pay entertainment duty in respect of the cable television net-work in the premises of the Hospital and have prayed for setting aside the orders demanding -: 3 :- such duty and confirming the demand. 2. According to the petitioners, the petitioner no.1 is a public charitable trust which runs the Bombay Hospital and Medical Research Centre without any motive of earning profit. A cable operator in the area is said to have offered its basic service of 32 channels free of charge as a special case for one year, to be renewed subsequently. In pursuance thereof, the petitioners have installed about 150 television sets with cable connection in some rooms and in common waiting areas where relatives/friends of patients wait in the hospital. According to the petitioners, the hospital does not charge any special fee from the patients in respect of the television sets installed by it. It, however, appears from the Information Booklet of the hospital that the rooms are classified in terms of the facilities and conveniences available in it, including features such as television. 3. The District Collector of Mumbai City (Entertainment Tax Branch) raised a demand of entertainment duty on the petitioners for cable connections in respect of each T.V. in the hospital by way of a monthly entertainment tax of Rs.15/- from May 1998 to March 2000 and Rs.30/- from April, 2000, on the basis of a survey. Thereafter, though a personal hearing was offered by the 2nd respondent to -: 4 :- the petitioners, the petitioners did not attend the hearing. The 2nd respondent passed an order dated 11.12.2003 levying entertainment tax from April 2003 till November 2003. Thereafter, in Writ Petition No.193 of 2004 filed by the petitioners, this Court granted liberty to the petitioners to file an appeal under section 10A of the Bombay Entertainments Duty Act, 1923, hereinafter referred to as the "Act". After hearing, the appellate authority, i.e. the Divisional Commissioner, Konkan Division, dismissed the appeal and confirmed the demand. 4. A revision preferred by the petitioners before the Principal Secretary and Officer on Special Duty (Appeals), Revenue and Forests Department, was also dismissed. All the authorities have held that the petitioners are liable to pay entertainment tax on 150 connections in the hospital. The said orders are impugned. 5. According to the petitioners, they are not liable to pay any entertainment duty since the petitioner no.1 is not a proprietor as defined by the Act and, in any case, not liable since it does not collect any contribution or admission fee from any of its patients or visitors viewing the cable T.V., which is a condition for the activity being classified as entertainment. -: 5 :- 6. The Act defines "entertainment" as follows:- "2(a) "entertainment" includes any exhibition, performance, amusement, game or sport to which persons are admitted for payment, or, in the case of television exhibition with the aid of any type of antenna with a cable network attached to it or cable television or Direct-to-Home (DTH) Broadcasting Service, for which persons are required to make payment by way of contribution or subscription or installation and connection charges or any other charges collected in any manner whatsoever but does not include magic show and temporary amusement including games and rides." 7. The first question that may be considered is whether the exhibition on the television sets installed by the petitioners is not entertainment because the petitioners do not collect charges for such exhibition, from their patients or visitors nor; do they make any payment to the cable operator, Aasia Industrial Technologies Private Limited, who is said to have donated its basic service to -: 6 :- the petitioners. 8. On a construction of the definition, it appears that the payment made by the petitioners to the cable operator is not relevant. What is relevant is whether the persons who watch the television are required to make payment by way of contribution or subscription or any other charges collected in any manner whatsoever. According to the petitioners, the hospital does not charge any special fee from any of its patients or anyone else in respect of the television sets installed by them and, therefore, the services are provided by the hospital free of charge. It is, however, not possible to accept the contention that no charges are collected for the entertainment at all. Under section 2(a), such television exhibition by means of cable television is defined as entertainment when persons are required to make payment by way of contribution or subscription, etc. The provision does not appear to include only such charges which are made by way of contribution or subscription specially for being permitted to view the television exhibition. It contemplates payment of "any other charges collected in any manner whatsoever". In the present case, though the hospital may not be charging its patients or visitors any amounts specially for viewing the television sets, it can hardly be said that the patients do not pay for the -: 7 :- facility as a part of the room charges. Barring 10% of the treatment which is given free of charges to poor and needy patients under section 41AA of the Bombay Public Trusts Act and to certain out-patients, it is clear that services in the hospital are not rendered free of charge. Undisputably, the patients who are admitted in the hospital and are provided rooms have to pay for the rooms. As observed earlier, it is noteworthy that the rooms are graded from Ordinary to Deluxe class with proportionately increasing charges on the basis of the facilities and conveniences provided in the rooms which include television, vide the Information Booklet of the Bombay Hospital & Medical Research Centre. It cannot, therefore, be stated that charges for television exhibition are not collected in any manner whatsoever. We are of opinion, therefore, that the provision of television exhibition by means of cable television network in the hospital constitutes entertainment as defined under section 2(a). 9. The next contention on behalf of the petitioners is that the petitioner no.1 is not a proprietor in relation to the entertainment within the meaning of section 2(c). The provisions of section 2(c), to the extent it is relevant, read as follows:- -: 8 :- "(c) "proprietor", in relation to an entertainment, includes any person-- (i) responsible for the management thereof, or (ii) connected in whatsoever manner with the organisation of the entertainment, for any duration whatsoever, or (iii) charged or entrusted or authorised with the work of admission to the entertainment, or (iv) responsible for, or for the time being in charge of, the management of an entertainment, whether or not he has obtained licence, if any, for a place of such entertainment under any law for the time being in force;" Having observed that the activity of exhibition on television by means of a cable network amounts to entertainment, we see no reason why the petitioner no.1 -: 9 :- ought not be treated as a proprietor in relation to it. It is obvious that the petitioners are responsible for management of the entertainment and, in any case, are connected to some degree with the organisation of entertainment and are charged with and are responsible for or for the time being are incharge of the management of entertainment as contemplated by clauses (i) to (iv) of sub-section (c) of section 2. We, therefore, reject this contention. 10. In the result, we do not find any merit in the petition which is hereby dismissed. Sd/- CHIEF JUSTICE Sd/- S.A. BOBDE, J.