1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER D.B. Civil Writ Petition No.13770/2009 (Jaipur Vivah Sthal Samiti Vs. State & Anr.) Date of Order : :: 31.03.2010 Hon'ble The Chief Justice Mr. Jagdish Bhalla Hon'ble Mr. Justice M.N. Bhandari Mr. S.C.Gupta - for petitioner Mr.G.S.Bapna, Advocate General – for the State By this Court: By this writ petition, following prayers have been made: “(i) please to declare the provision of Section 2(1)(a) of the Rajasthan Tax on Luxuries (hotels and lodging houses) Act, 1990 amended by the Act of 1996 and further by the Rajasthan Finance Act, 2007 as unconstitutional, ultra vires & against the spirit and provisions of Article 303 R/W entry no. 62 of state list of schedule 7 of the constitutional of India to the extent whereby the Luxury Tax has been imposed on marriage function. (ii) please to hold that the definition of business giving under Section 2(1)(a) of the Rajasthan Tax on Luxuries (hotels and lodging houses) Act, 1990 amended by the Act of 1996 and further by the Rajasthan Finance Act, 2007 does not include the marriage ceremony/function, condolence meetings/function and religious pravachan/ function. (iii) please to direct/restrain the respondents from collecting luxury tax 2 under the Rajasthan Tax on Luxuries (hotels and lodging houses) Act, 1990 amended by the Act of 1996 and further by the Rajasthan Finance Act, 2007. (iv) please to direct the respondents to refund the luxury tax already collected by them from the members of the petitioner samiti running marriage places, on marriage ceremonies/ functions.” It is contended that petitioner – Jaipur Vivah Sthal Samiti (for short 'the society') represents around 300 members and being a registered society under the Rajasthan Societies Registration Act, 1958, is competent to maintain this writ petition. The respondents-State, by amending section 2(1)(a) of the Rajasthan Tax on Luxuries (Hotels & Lodging Houses) Act, 1990 (hereinafter to be referred to as 'the Act') amended the definition of 'business'. In view of the amended definition any activity of providing residential accommodation or any place for the purpose of organising parties, ceremonies or functions and any other service in connection with, or ancillary to, such activities for monetary consideration, whether or not such activities are carried on with motive to make gain or profit is considered to be business. The amended definition of 'business' has been misinterpreted by the respondents thereby raising demands of luxury tax from members of the society. Members of the society are providing facilities 3 for arranging marriage thus luxury tax cannot be imposed on them. Marriage is not only a social but pious work thus should not be termed to be 'business' in any manner. In Metropolitan cities and big cities like Jaipur sufficient residential houses/homes to arrange and celebrate marriages do not exist and Municipal Corporation is not in a position to provide such facilities. Members of the society thus run marriage gardens under the licence obtained from the Municipal Corporation, Jaipur. Their work has been termed to be 'business' ignoring that they are carrying out a pious work of marriage. The definition of word 'business' as provided under section 2(1)(a) of the Act is violative of Article 303 of the Constitution of India read with Entry 62 of the State List provided under Seventh Schedule of the Constitution thus deserves to be struck down. Members of the petitioner society cannot otherwise be termed to be hotelier or doing luxury work in view of definition of 'hotelier' and 'luxury' provided under the Act of 1990 but, surprisingly, members of the society have been considered to be hoteliers as well as provider of luxury. Thus, ignoring the definition provided under section 2 of the Act of 1990 tax has been demanded from the members of the society which may be declared as illegal. Per contra, learned Advocate General appearing 4 for the State submits that the amended definition of the word 'business' is not ultra vires to the Constitution. It does not hit Article 303 of the Constitution or goes contrary to the Entry 62 of the State List under Seventh Schedule of the Constitution. Members of the society are none else but those in business of arranging marriage parties and other parties for monetary benefits thus rightly been subjected to luxury tax. A marriage may be termed to be a pious one but that is not undertaken by the members of the society, rather they are providing lawns and areas for arranging marriage parties and other parties. It is not with intention to undertake pious work without monetary gain. All the members of the society running party lawns for gaining profit as their business thus to bring them under the umbrella of the Act of 1990, definition of 'business' has rightly been amended. Members of the society are otherwise hoteliers if the definitions of 'hotelier' and 'hotel' are looked into which is provided under section 2(g) and 2(h) of the Act. Thus it is incorrect to state that members of the petitioner society cannot be termed as hotelier. The prayer is thus to dismiss the petition. We have considered rival submissions made by learned counsel for the parties and scanned the matter carefully. 5 Members of the society are subjected to luxury tax under the Act of 1990 in view of amendment in the definition of 'business'. Before averting to the challenge to the amendment in the definition of 'business', it is necessary to refer section 3 of the Act of 1990. “3.Incidence of taxation. - (1) There shall be levied a tax on the turnover of a hotelier and such tax shall be payable by him in accordance with the provisions of this Act. [(2) If a person other than the owner (including part owner) is for the time being incharge of a hotel, then such persons (excluding the manager or incharge of the hotel who is merely salaried employee and not the profit sharing body of the income of the hotel) and the owner (including part owner) shall jointly and severally be liable to pay the tax].” As per section 3 levy of tax can be on the turn- over of the hotelier. The word 'hotelier' has been defined separately under the Act. Section 2(h) provides definition of 'hotelier' which is quoted hereasunder:- “(h) “hotelier” means the owner of the hotel and includes the person who for the time being is in charge of the management of the hotel; Perusal of definition shows that owner of the hotel or the person in-charge of the management of the hotel is considered to be hotelier. In view of aforesaid, meaning of 'hotel' is also required to be looked into which is 6 provided under section 2(g) of the Act thus: “(g) “hotel” includes a residential accommodation along with the lawns thereof, a lodging house, an inn, a public house or a building or a part of a building, where a residential accommodation is provided by way of business; Perusal of definition of 'hotel' shows that residential accommodation along with the lawns thereof etc provided by way of business considered to be a work of hotel. It is a case of the petitioner society that members of the society are providing lawns for arranging marriage parties or other parties. In view of aforesaid, members of the petitioner society comes in the definition of 'hotelier' being in charge of the management of the hotel. As such, the Act of 1990 is attracted on them. The only question now remains as to whether definition of 'business', as amended, is ultra vires to the Constitution? The main argument raised in that regard is in reference to Article 303 of the Constitution of India apart from Entry 62 of the State List. Perusal of the provisions of Article 303 of the Constitution and Entry 62 of the State List does not show that definition of 'business' as amended hits aforesaid provisions of the Constitution. In fact, learned 7 counsel for petitioner society could not explain as to how the amended definition of 'business' hits aforesaid provisions. The only ground urged is that marriage is a social and pious work thus cannot be termed to be luxury so as to attract luxury tax. It has already been clarified that marriage may be pious work but it is not undertaken by the members of the society. They only provide facilities for arranging marriages and parties with monetary gain which otherwise is nothing but 'business' undertaken by the members of the society. In view of aforesaid, it cannot be said that luxury tax is on the marriage but is on the business undertaken by the members of the society. In view of aforesaid discussion, we cannot accept contention of learned counsel for petitioner-society. Accordingly, writ petition being devoid of merit, hence dismissed. Costs made easy. (MN Bhandari) J. (Jagdish Bhalla) CJ bnsharma