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