CIVIL WRIT PETITION NO. 17245 OF 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: November 28, 2008. Parties Name Sarabjit Singh Kahlon ..PETITIONER VERSUS State of Punjab and others ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE T.S.THAKUR, CHIEF JUSTICE HON'BLE MR. JUSTICE JASBIR SINGH PRESENT: Mr. H.C. Arora, Advocate, for the petitioner Mr. H.S.Sidhu, Addl. A.G., Punjab, for respondents No. 1 and 2. Mr. Anil Khettarpal, Advocate, for respondent No. 3. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? T.S.THAKUR, CHIEF JUSTICE (oral) JUDGMENT This petition purports to have been filed in public interest. It calls in question the validity of a Notification dated December 6, 1995, issued by the Government of Punjab, Department of Excise and Taxation, CIVIL WRIT PETITION NO. 17245 OF 2008 -2- whereunder the Government have in exercise of their powers under Section 11(3) of the Punjab Entertainment Duty Act, 1955, exempted all sports meets organised by the State level or National level Sports Federation from liability to pay whole of entertainment duty chargeable under the aforementioned Act in respect of as many as 21 different games including Cricket. The petitioner finds fault with the said order inasmuch as the same grants exemption retrospectively w.e.f. April 1, 1995. According to Mr. Arora, learned counsel for the petitioner, while the power to grant exemption from payment of Entertainment Tax is clearly available to the State Government under Section 11 of the Act aforementioned, there is no power to grant an exemption retrospectively as has been done in the instant case. Mr. Arora argued that the respondent – Punjab Cricket Association having collected entertainment tax from those who came to watch the events and tournaments organised by the Association could not be permitted to retain the money so collected. According to him, grant of exemption in favour of the Association retrospectively has the effect of unduly enriching the Association at the expense of the public exchequer. The power to grant exemption vested in the Government could not, according to Mr. Arora, be invoked to grant any such undeserved benefit to the Association. The respondent – Punjab Cricket Association has filed CM No. 21334 of 2008 pointing out that the present writ petition has been filed out of vengeance and rancour , which the petitioner has against the Association on account of his son Shri Vishvajit Singh Kahlon not being found fit to play cricket under Ludhiana District Cricket Association, an affiliated Member of respondent No. 3 – Association in the year 2004. Performance of the said Shri Vishvajit Singh Kahlon was, according to the Association, CIVIL WRIT PETITION NO. 17245 OF 2008 -3- unsatisfactory as against teams of Zone B and the Amritsar Team. He was also, according to the Association, guilty of abusing some players of Zone B despite repeated warnings by the Umpires. The application goes on to state that the petitioner had filed Civil Writ Petition No. 7292 of 2007 on behalf of his son complaining that he is not being allowed to participate in the trials. Subsequently, although he was allowed to participate in the trial, he could not be selected as a member of the Team as his performance was not satisfactory. The said writ petition was eventually disposed of by an order dated May 24, 2007. The petitioner then complained to the Information Commission, Punjab, at Chandigarh against the Association through Shri Anil Kashyap. The petitioner herein was the authorised representative of said Shri Kashyap before the Information Commission. The order passed by the Commission against the Association is presently under challenge in Civil Writ Petition No. 16086 of 2008, pending before this Court. The application goes on to state that the petitioner had lodged FIR No. 17 dated February 25, 2004, at Police Station Division No. 8, Ludhiana, against the office bearers of Ludhiana District Cricket Association for offences under Sections 420, 467, 471 and 120-B of the Indian Penal Code. That apart he filed a complaint case No. 2236 of 2007 against the Arya College , Police Lines, Ludhiana before the Information Commission. The Ludhiana District Cricket Association, it is common ground is using the ground of the said Arya College to train its players. The Association has in the above background prayed for dismissal of the present writ petition as the same is not, according to it, in public interest and is actuated by malice and other extraneous consideration. CIVIL WRIT PETITION NO. 17245 OF 2008 -4- We have heard learned counsel for the parties at some length and perused the record. This petition must in our opinion be dismissed for more than one reasons. Firstly, because the petition does not appear to us to be a real case of public interest, in which the petitioner ought to approach the Court with clean hands and without any extraneous motive to achieve. The petitioner in the present petition does not satisfy that requirement. As mentioned in the application filed by the Association, the petitioner had multiple rounds of litigation before this Court even in the past. That includes CWP No. 17965 of 2008, filed in public interest by the petitioner for getting back an area measuring 2.45 Acres of land from the Association on the ground that the said area had been encroached upon. The said petition was dismissed as withdrawn after the same was argued at considerable length. That apart the writ petition filed by Shri Vishvajit Singh Kahlon, the son of the petitioner, alleging discrimination and hostile treatment also failed and was eventually disposed of by this Court by order dated May 24, 2007. The filing of a case before the Information Commission in the name of Anil Kashyap , whom the petitioner has described as a friend and the pendency of a writ petition arising out of those proceedings in this Court also shows that the present proceedings are actuated by an embittered relationship between the petitioner and the Association. In the totality of these circumstances, therefore, we are of the view that the present writ petition does not qualify for being described as a genuine public interest litigation so as to justify our intervention at the instance of the petitioner. The bonafides of the petitioner in filing the writ petition apart CIVIL WRIT PETITION NO. 17245 OF 2008 -5- the legal position regarding the power of the Government to grant an exemption retrospectively stands authoritatively settled by the decisions of the Supreme Court in A. Thangal Kunju Musaliar v. M.Venkatachalam Poti, Authorised Official and Income -Tax Officer and another, AIR 1956 Supreme Court 246, and in I.T.C. Bhadrachalam PaperBoards and another v. Mandal Revenue Officer, A.P. and others, (1996) 6 Supreme Court Cases 634. In A. Thangal Kunju Musaliar's case(supra), the question that fell for consideration before the Supreme Court was whether a notification issued by the Government in exercise of the powers vested in it under Section 1(3) of the Tranvancore Taxation On Income (Investigation Commission) Act,1124, retrospectively w.e.f. July 22, 1949, was legally valid. Answering the question in the affirmative, the Supreme Court held that the reasons why the Courts disfavour retroactive legislation is that the same may adversely affect vested rights. No such reason was, however, involved in the case before the Supreme Court as Section 1 (3) of the Act aforementioned authorised the Government to bring the Act into force on such date as may be appointed by a notification. In exercise of the said power, declared the Supreme Court, the Government had duly issued a Notification bringing the Act into force on a date subsequent to the passing of the Act, although the date w.e.f. which it was made operative was earlier than the date on which the notification was issued. Relying upon the decision in A. Thangal Kunju Musaliar's case (supra), the Supreme Court in I.T.C.Bhadrachalam Paper Boards' case (supra) reiterated the legal position as under: “28. There appears no reason why the logic of the above holding should not be applied to the power under Section 11(1) CIVIL WRIT PETITION NO. 17245 OF 2008 -6- of the Act. The sub-section says that the Government can grant the exemption “either permanently or for a specified period”. Having regard to the nature of the power and the character of the provision, we find no good reason to hold that this power can be exercised only prospectively. The period specified can cover either wholly or partly the period anterior to the date of order , so long as the period specified is subsequent to the commencement of the Act. We are, therefore, of the opinion that the retrospective operation given to GOMs No. 386 is valid and lawful. Once this is so, the very existence of GOMs No. 201 becomes doubtful. There cannot be a statutory and a non- statutory GO on the same subject and covering the same period, inconsistent with each other. While GOMs No. 386 provides exemption only for a period of five years prescribed therein, GOMs No. 201 pertains to grant the exemption on a permanent basis. The appellant can, therefore, claim exemption only under and in accordance with GOMs No. 386.” It is evident from the above that the power to issue an exemption notification can be exercised even retrospectively. The fault being found by the petitioner with the impugned notification, therefore, does not stand scrutiny and has to be repelled. Mr. Arora next argued that the respondent – Association had collected entertainment tax from those who had watched the tournaments and the events organisd by the Association and that grant of exemption in their favour would, according to the learned counsel, amount to enriching CIVIL WRIT PETITION NO. 17245 OF 2008 -7- the Association at the expense of public exchequer. There is, in our opinion, no merit in that contention either. The writ petition does not make any allegation leave alone a specific allegation supported by any material to the effect that the respondent – Association had collected entertainment tax from those who came for watching its sports events. In the absence of any assertion in the writ petition that any such collection had indeed taken place, we have no hesitation in rejecting the contention that the grant of exemption retrospectively would amount to permitting the Association to enrich itself unduly. It is note-worthy that according to the Association, events organised by Sports Bodies in Punjab have been exempted from payment of entertainment tax since pre-independence times. These exemptions were being granted by issue of Notifications by the Government from time to time. That Notifications granting exemption were issued till September, 1992, is not in dispute. By another Notification dated September 30, 1992 (P-1) to the writ petition, the exemption was extended upto March 31, 1995. The case of the Association is that it was all along under the impression that Notification dated September 30, 1992, granted a blanket exemption from payment of entertainment tax to the Association. That, however, proved to be erroneous, once the authorities under the Entertainment Tax Act started demanding entertainment tax in a sum of Rs. 3,02,11,899/- by letter dated August 11, 1999. It was at that stage that the Government examined the issue and decided to grant exemption to 21 different sports disciplines from payment of entertainment duty w.e.f. April 1, 1995, to 2010. The memoradum for the Council of Ministers, which sets out the background in which the exemption became necessary is in this connection relevant. It reads: CIVIL WRIT PETITION NO. 17245 OF 2008 -8- “Exemption from entertainment duty for sporting events was continued without any interruption or break from pre- independence day till 1980. Thereafter, the Government withdrew the notification and decided to give exemption on match-to-match basis. On the basis of State Sports Policy approved by the Governor-in-Council, the Government granted the exemption to all Sports meets organized by the State or National Level Sports Federation from the liability to pay entertainment duty levied under section 3 of the Punjab Entertainments Duty Act, 1955, from Ist April, 1992 to 31st March, 1995vide order No. S.O. 73/P.A. 16/55/S/11/92 dated 30-9-1992, at Annexure I. The Punjab Cricket Association, Mohali did not apply for exemption for few matches played after 1995 under the impression that a blanket exemption has been granted by the Government. Even the Department was not aware about it and did not raise issue for more than three years. Later on the recovery notice was served upon the Punjab Cricket Association (PCA), Mohali by the Department for claiming Rs. 3,02,11,899/- as outstanding entertainment duty.” In the light of the above, we do not think that there is any illegality or irregularity in the grant of exemption by the Government to the respondent – Association or to other sports association from payment of entertainment duty nor does the writ petition make out a case for our interference on the ground of undue enrichment for there is no real basis for us to hold that grant of such an exemption would result in any undeserved CIVIL WRIT PETITION NO. 17245 OF 2008 -9- enrichment. The present writ petition is in our view a clear abuse of the process of this Court hence deserves to be dismissed. We accordingly dismiss this writ petition but in the peculiar facts and circumstances of this case, leave the parties to bear their own costs. ( T.S.THAKUR) CHIEF JUSTICE (JASBIR SINGH) November 28, 2008. JUDGE DKC