THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 216 of 2010. Sri Azad Singh Saggoo, S/O Sri Tarsem Singh Saggoo, Proprietor Modern City Cable Network, Ratan Cinema Road, Kashipur, District U.S.Nagar. Vs. … Petitioner. 1. The Secretary, Finance, Government of Uttarakhand, Dehradun. 2. Additional District Magistrate (Finance), Udham Singh Nagar. 3. State of Uttarakhand, through Collector, Udham Singh Nagar. Date February 26, 2010. Hon’ble B.S.Verma, J. (Stay Application No. 876 of 2010) …Respondents. Mr. S.K.Jain, Advocate, with Mr. B.S.Thind, Advocate, learned counsel for the petitioner. Mr. K.P.Upadhyay, learned Additional Chief Standing Counsel for the respondents No. 1 to 3. record . Heard learned counsel for the parties and perused the By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 5-2- 2010 passed by respondent no.1 and the order dated 9-1-2009 passed by the District Magistrate Udham Singh Nagar, which was communicated to the petitioner through respondent no. 2 (Annexure- 18 and Annexure-17 respectively to the petition). By the order dated 9-1-2009 passed by the District Magistrate, the petitioner was directed to pay the entertainment tax of Rs. 34,83,675 along with penalty of Rs. 20,000/-, as mentioned in the impugned order. The petitioner preferred an appeal against the impugned order dated 9-1-2009 to the State Government-respondent no.3. The respondent no. 3 after hearing dismissed the appeal of the petitioner 2 and affirmed the order passed by the District Magistrate vide order dated 5-2-2010. The State Government further directed the District Entertainment Tax Officer Udham Singh Nagar to make available the copy of survey list to the cable operator-petitioner and to ensure realization of the entertainment tax from him. Relevant facts giving rise to the present writ petition, in brief are, that according to the petitioner, he is the Proprietor of Modern City Cable Network, operating cable network in the city of Kashipur, district Udham Singh Nagar. A notice was sent to the petitioner on 17-11-2008 to pay the entertainment tax (for short Tax) due on the basis of the survey made in the year 2006 through the officials of the department concerned. The notice was served on the petitioner on 21-11-2008 through Up Ziladhikari Kashipur; but no explanation was given by the petitioner within the stipulated time and no tax was deposited. According to the petitioner, no opportunity of hearing was given to the petitioner and an ex-parte order has been passed against him mentioning back date. He has also filed objection on 14th January 2009 in the Office and through post also, while the order had been passed on 9th January 2009 by the District Magistrate. The said order was passed by the District Magistrate on the basis of survey of 2006. The scope of writ jurisdiction under Articles 226 and 227 is limited. This Court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or reevaluate the evidence so as to arrive at a different conclusion. Only perversity in the impugned order can be seen to find out whether there is a case of mis-reading of evidence by the courts concerned. It has been observed by the Apex Court in paragraph no. 38(3) the case of Surya Dev Rai Vs. Ram Chander Rai and others [(2003) 6 Supreme Court Cases, 675 that “Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction-by assuming jurisdiction 3 where there exists none, or (ii) in excess of its jurisdiction- by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.” In the case “Ranjeet Singh Vs. Ravi Prakash” [(2004) 3 S.C.C. page 682], the Apex Court has observed inter alia in paragraph 4 of the judgment that “An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal.” In the premises of the law laid down by the Apex Court in the case of Surya Dev Rai (supra) and Ranjeet Singh (supra), the contentions of the learned counsel for the petitioner shall be dealt with and the factual position shall be referred in the order for that limited purpose. The learned counsel for the petitioner further contended that the liability of paying tax under the Act is on the franchisee (subscribers) and he is not liable to the tax. Even though he is paying the tax on behalf of the franchisee at the old rate, which was existing prior to alleged survey. The next contention of the learned counsel for the petitioner is that the survey was not made in his presence and in accordance with the Rules framed under the U.P. Entertainment and Betting Tax Act, 1979. 4 The petitioner has also filed supplementary affidavit in support of his case that a charge-sheet has been issued against the officials for not conducting proper survey. By a perusal of the charge-sheet (Annexure-SA-1 collectively), it reveals that the charge sheet was issued against Sri Suresh Chandra, District Entertainment Tax Officer, on the ground that the survey of the cable connections, which was made in the year 2006, wherein the number of connections as 6124, but the number of connections were reduced to 5643 by making a new survey at his own and submitted a report on 2-2-2007. The subsequent survey was made by the delinquent officer without permission of the higher authority. Thus, the charge-sheet is of no help to the petitioner to prove this fact that the survey was not conducted. In the order passed by the District Magistrate, it has been observed that the notice was served upon the petitioner through Up Ziladhikari Kashipur and the acknowledgement was received in the office on 18-12-2008. It is also observed that Sri Azad Singh Saggoo- petitioner himself sought 15 days’ time to file objection on 22-11-2008 to file the reply of the notice but no reply was filed and no tax was deposited. In the absence of the reply, the learned District Magistrate directed the petitioner to deposit the tax as mentioned in the impugned order (Annexure-17). The contention of the learned counsel for the petitioner that no opportunity of hearing was afforded is, therefore, not tenable. In appeal, the State Government has recorded a finding that the survey was made by the Up Ziladhikari Kashipur and the number of connections were made available to the Entertainment Tax Inspector on 14-11-2006 wherein the number of connections were shown 6124. The Tax was demanded on the basis of subsequent 5 survey report, which was made by the District Entertainment Tax Officer, Mr. Suresh Chandra, showing the connection number as 5643 and the demand notice was issued. It has also been observed in the order that the petitioner himself filed an application on 5-2-2007 and annexed list of franchisee of the area and mentioning in the application that he is liable to pay the Tax on behalf of the franchisee of the area. When the petitioner himself admitted that he is liable to pay the Tax and moved an application, the petitioner cannot take this ground in the appeal or before this Court in writ jurisdiction. The argument of the learned counsel for the petitioner cannot be accepted that he is not liable to pay the Tax. So far as the contention of the learned counsel that the survey was not made in accordance with the Act and that too in his absence, these are disputed questions of fact as to how many connections are there in the area. The petitioner himself filed application before the District Magistrate Udham Singh Nagar to file reply of the notice but did not file any reply and the alleged reply was filed after passing of the order dated 9-1-2009. In appeal all the grounds have been raised by the petitioner and the appellate authority has already dealt both the questions whether the petitioner is liable to pay the tax or whether survey was made or not. The finding on the questions of fact cannot be interfered with in exercise of writ jurisdiction. The State Government has also directed the officer concerned to supply the copy of survey before realization of tax from the petitioner. Yesterday, this Court directed the learned Additional Chief Standing Counsel to make available copy of the survey, which was made in the year 2006. Photocopy of the survey report has been shown in the Court, which was also made available to the petitioner through the authority concerned for realization of tax. The photo copy of the survey report be kept on record. 6 The learned District Magistrate has also held that the signals are being provided to the franchisee/subscribers through Sri Azad Singh through his cable network. The liability to pay the tax is on the petitioner and in the last paragraph of the judgment it has also been observed that the survey was made by Up Ziladhikari Kashipur through his Officer in the area and detailed survey was made and report was presented and the appellate authority also examined the survey report and gave a categorical finding that the entertainment tax was demanded on the basis of survey. In the result, I do not find any illegality or perversity in the orders impugned in this writ petition (Annexure-18 & Annexure- 17). Consequently, the writ petition being without any merit is liable to be dismissed outright at the admission stage. The writ petition is accordingly dismissed in limine. All pending applications stand disposed of. RCP (B.S.Verma,J.) 7