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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.
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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
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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
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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.
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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
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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
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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:-
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"(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
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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.
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