1 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] :- 2 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.” 3 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.” 4 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. However, the said benefit has been denied to the touring cinemas. It is submitted that the permanent cinemas, quasi permanent cinemas and touring cinemas stands on a same footing and denial of benefit to the touring cinemas which was granted to the permanent and quasi permanent cinemas would violate the mandate of Article 14 of the Constitution. It is further submitted that equally circumstanced persons cannot be given different treatment. The learned counsel has placed reliance on the Constitution Bench of the Apex Court in the case of “ P. Vajravelu Mudaliar Vs. The Special Deputy Collector for Land Acquisition, West Madras and another.” reported in AIR 1965 SC 1017. 4] No doubt, that Article 14 of the constitution mandates that no discrimination is permissible against equally circumstanced persons. However, it is also a settled law that Article 14 also does not permit equal treatment to the unequals. It is also a settled law that a reasonable classification which has a nexus with the object to be achieved, is always permissible. 5] Clause (f-1) of Section 2 of the said Act, defines “permanent cinemas” and “quasi permanent cinemas “, as under :- 5 “permanent cinema”, or “quasi-permanent cinema” means a cinema which is licensed as a permanent cinema or a quasi-permanent cinema, as the case may be, under the Maharashtra cinemas ( Regulation) Rules, 1966.” Clause (i) of Section 2 of the said Act, defines the term “touring cinema”, which reads thus :- “touring cinema”, means an outfit comprising the cinematograph apparatus and plant and enclosures taken from place to place for giving cinematograph exhibition, or for giving cinematograph exhibition in local theaters or halls; [ whether such theaters or halls are having the roof over them or are open to sky] 6] The Maharashtra Cinema (Regulation) Rules, 1966 also define “ permanent cinema” , “quasi permanent cinema” and “touring cinema”, as under :- Rule 2 (f-1) : - “permanent cinema” means any structure whether if masonry, mud, bricks, mortar, cement or other non- inflammable material wherein an exhibition by means of cinematograph is given; Rule 2(f-2) :- “quasi- permanent cinema” means any structure of steel 6 angles, iron trusses or other fire resisting material, wherein an exhibition by means of cinematograph is given; Rule 2(f-3) :- “touring cinema” means an outfit comprising the the cinematograph apparatus and plant and enclosures taken from place to place for giving cinematograph exhibition, or for giving cinematograph exhibition in local theaters or halls.” 7] From the perusal of the said rules, it would reveal that different sets of rules in so far as construction, etc. of the building to be constructed for permanent cinema, quasi permanent cinema and touring cinema, have been provided. From the definition itself, it could clearly be seen that the permanent cinemas as well as quasi permanent cinemas are housed in a permanent or quasi permanent structure at a particular place, whereas, in so far as the touring cinemas are concerned, the licence holders are required to put an outfit, comprising cinema photographs apparatus and enclosures which are to be taken from one place to another for giving cinematograph exhibition. . Perusal of the rules would reveal that in so far as permanent and quasi permanent cinemas are concerned, they are required to build a permanent structure or a quasi permanent structure at a particular place. Needless to state that the said 7 permanent structure or quasi permanent structure would require maintainance , and the licence holders would also be required to provide the facilities and safety measure, as required under the aforesaid rules. Perusal of amendment to clause (b) of Section 2 of the said Act would also reveal that the amount of the service charges collected by the Licence Holders would be exempt from payment of entertainment duty only if the prescribed officer is satisfied that such an amount has been spent by the licence holder for providing facilities and safety measures. Not only this, but the proviso which has been added by amendment in 1994, would also reveal that if the prescribed officer finds that the amount collected towards service charges has not been spent on the maintenance or providing facilities and safety measures, then the un-spent amount would be liable to be calculated for the purpose of entertainment duty. 8] As already discussed hereinabove, the permanent cinemas, quasi permanent cinemas and touring cinemas are separate classes. The classification amongst the cinemas into such type of 3 cinemas cannot be said to be unreasonable. We also find that since the permanent and quasi permanent cinemas would be required to provide certain facilities and safety measures in accordance with the rules while making construction and no such facilities are required to be provided in so far as the touring cinemas are concerned, it cannot be said that the benefit, which is given to the permanent and quasi permanent cinemas, has been arbitrarily denied to the touring cinemas. 8 9] The object of the amendment of 1994 appears to be intended to give the benefit to the permanent and quasi permanent cinemas towards amount spent by them, for maintainance and for providing certain facilities and safety measures. The amount to be entitled to be exempt from tax is required to be shown to be actually spent for maintenance and facilities, as stated hereinabove. The object of the amendment appears to be, to permit certain amount for the owners of the permanent and quasi permanent cinemas towards the service charges, to be used for maintainance and providing facilities and safety measures. 10] An amendment to the Act is a purely legislative function. The legislature in its wisdom has decided to give the aforesaid benefit by way of an amendment only to permanent and quasi permanent cinemas, and not to the touring cinemas. . As already discussed hereinabove, since we are of the view that these classes of cinemas form separate classes, a differential treatment, for these different classes would always be permissible. As already discussed hereinabove, the classification appears to be for the purpose that the owners of the permanent and quasi permanent cinemas, should be permitted to reimburse themselves for the maintenance of the structures erected by them and for providing the facilities and safety measures, which they are required to provide as per the provisions of the Act and the Rules framed thereunder. In so far as the reliance placed by the learned counsel for the petitioner on the judgment in the matter P. Vajravelul 9 Mudliar (cited supra) is concerned, in our view , the said judgment would not be applicable to the facts of the present case. In the said case, though, the land acquired was the same, a differential compensation was provided, if it was to be acquired for residential purpose and for any other purpose. The Apex Court, therefore, found that there was no jurisdiction to provide a lesser compensation to be paid to the claimants, if the land is acquired for a residential purpose; and higher compensation to be paid if the same land is acquired for any other purpose. Same is not the case here. The benefit under the amendment has been granted to different sets of cinemas, which could be clearly distinguished from the touring cinemas. 11] In that view of the matter, we do not find any merit in the petition. The same is, therefore, dismissed. Rule is discharged. [S.V. GANGAPURWALA,J.] [B.R. GAVAI,J.] grt/wp