# Smt. Nirmal Devi v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 1189
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-12-08
- **Case number:** Civil Misc. Writ Petition No.155 of 2005
- **Bench:** Prakash Krishna, S.C. Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-nirmal-devi-v-state-of-u-p-and-others-41430
- **Pages:** 6

## Headnote

U.P. Entertainment and Betting Tax Act
1979-Section
3-Entertainment
Tax
exemption from Tax liability for 5 years
by
G.O.
dated
11.8.2000-petitioner
inspite
of
total
exemption
realized
Rs.19,95,890/- from cinema goers-it
would be travesty of justice if cinema
owner allowed to appropriate the huge
amount from cinema goers-direction
issued to pay the amount collected
unauthorisedly with cost of Rs.5000/-.

Held: Para 15

In the above case the Apex Court has
held that in such a situation where the
cinema goers had lost huge amount, it
would be travesty of justice if the
owners of the cinema theaters become
eligible to appropriate the amount for its
own benefits. To the aforementioned
extent,
the
doctrine
of
unjust
enrichment may be held to be applicable.
A person who unjustly enriches himself
cannot be permitted to retain the same
for its benefit except enrichment. Such
licencee/picture hall owners cannot and
could not collect any entertainment tax
from the cinema goers and if collected,
they are liable to deposit the same with
the State treasury, otherwise it would
amount unjust enrichment.
Case law discussed:
2009 NTN (Vol. 41) 33

Additional Note- with all respect to the
view taken by Court if amount of
entertained tax unauthorisdly realized by
the cinema owner from cinema viewers,
how
it
can
be
deposited
towards
entertainment Tax lead except in head of
Pradhan Mantri Rahat Kosh.

## Text

3 All] Smt. Nirmal Devi V. State of U.P. and others
1189
as a Class-IV employee and he is
otherwise eligible for promotion, I do not
find it a fit case warranting interference at
this stage in extraordinary equitable
jurisdiction under Article 226 of the
Constitution. The writ petition lacks
merit, and, is accordingly dismissed in
limine.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.12.2009

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.
THE HON'BLE S.C. NIGAM, J.

Civil Misc. Writ Petition No.155 of 2005

Smt. Nirmal Devi

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Govind Krishna

Counsel for the Respondent:
Sri C.B. Yadav, C.S.C.

U.P. Entertainment and Betting Tax Act
1979-Section
3-Entertainment
Tax
exemption from Tax liability for 5 years
by
G.O.
dated
11.8.2000-petitioner
inspite
of
total
exemption
realized
Rs.19,95,890/- from cinema goers-it
would be travesty of justice if cinema
owner allowed to appropriate the huge
amount from cinema goers-direction
issued to pay the amount collected
unauthorisedly with cost of Rs.5000/-.

Held: Para 15

In the above case the Apex Court has
held that in such a situation where the
cinema goers had lost huge amount, it
would be travesty of justice if the
owners of the cinema theaters become
eligible to appropriate the amount for its
own benefits. To the aforementioned
extent,
the
doctrine
of
unjust
enrichment may be held to be applicable.
A person who unjustly enriches himself
cannot be permitted to retain the same
for its benefit except enrichment. Such
licencee/picture hall owners cannot and
could not collect any entertainment tax
from the cinema goers and if collected,
they are liable to deposit the same with
the State treasury, otherwise it would
amount unjust enrichment.
Case law discussed:
2009 NTN (Vol. 41) 33

Additional Note- with all respect to the
view taken by Court if amount of
entertained tax unauthorisdly realized by
the cinema owner from cinema viewers,
how
it
can
be
deposited
towards
entertainment Tax lead except in head of
Pradhan Mantri Rahat Kosh.

(Delivered by Hon'ble Prakash Krishna, J.)

1. By means of the present petition,
the petitioner has challenged the order of
the District Magistrate, Azamgarh dated
10-1-2005
whereby
the
District
Magistrate has asked the petitioner to
deposit a sum of Rs.19,95,890/- as the
same was unauthorisedly realised by her
from the cinema goers.

2. The State Government, in order to
provide entertainment and boost up
cinema in the villages and remote areas
promulgated schemes from time to time
known as 'grant-in-aid facility' to new
cinema halls. By the Government orders
dated 9-11-2004, 7-12-1998 and 11-82000, the State Government provided
grant-in-aid facility to newly constructed
permanent cinema buildings subject to the
fulfillment of terms and conditions
mentioned therein. The petitioner herein,
applied for and was granted exemption
from deposit of entertainment tax under
the scheme dated 11-8-2000. In pursuance
1190 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
of the said scheme, the petitioner was
provided grant-in -aid facility by order
dated 10-9-2001 for a period of five years
under the scheme dated 11-8-2000,
whereby the petitioner's cinema hall was
granted
complete
exemption
from
payment of entertainment tax for a period
of five years. The licence having been
granted to the petitioner, she started
exhibition of films being lincencee of Raj
Palace Phoolpur, Azamgarh under U.P.
Cinematograph Rules, 1951. She was
served with a notice dated 31-7-2004 by
the Entertainment Tax Officer, Azamgarh
asking her to pay a sum of Rs.19,95,890/-,
the sum realised by her from the cinema
goers as entertainment tax. The said
notice was given on the ground that under
the G.O. dated 11-8-2000, the petitioner
was
not
authorised
to
collect
entertainment tax from the cinema goers
and
the
entertainment
tax
was
unauthorisedly collected by her. A reply
dated 9-9-2004 was submitted on the
pleas inter alia that there is no fault on her
part and the statements of realisation of
entertainment tax were duly submitted to
the officer concerned with Entertainment
Department from time to time but no
objection was raised there at any point of
time. This being so, the amount thus
realised by the petitioner from the cinema
goers cannot be recovered from her and
the matter be reconsidered. The said
reply/representation was dismissed by the
Entertainment Tax Commissioner on 2312-2004. In consequence of the order
passed
by
the
Entertainment
Tax
Commissioner, a fresh demand notice
dated 10-1-2005, impugned herein, was
served on the petitioner by the District
Magistrate, Azamgarh.

3. In the counter affidavit, the stand
taken is that under the G.O. dated 11-82000, the cinema owners were granted
total
exemption
from
payment
of
entertainment tax, but under the said G.O.
such cinema owners were not entitled to
realise the entertainment tax from the
cinema goers. There being no provision
with respect to entertainment tax realised
by the cinema owners from the cinema
goers by making adjustment entry in the
treasury, the petitioner is not entitled to
retain the entertainment tax realised by
her. The petitioner has unauthorisedly
realised a sum of Rs. 19,95,890/- as
entertainment tax from the cinema goers
and the said amount is refundable to the
State exchequer. The impugned demand
notice has been sought to be justified in
the light of the provisions contained in the
G.O. dated 11-9-2000 as also the
provisions
as
contained
in
U.P.
Entertainments & Betting Tax Act, 1979
(hereafter referred to as the Act).

4. In the rejoinder affidavit, it is
contended that on a close scrutiny of
grant-in-aid scheme dated 11-8-2000,
under which the petitioner has been
permitted to raise complete construction
of
permanent
cinema
building,
the
petitioner is not liable to deposit the
entertainment
tax
for
the
period
mentioned therein. The petitioner has
been provided the benefit of the said
scheme by virtue of the order dated 10-91991. A conjoint reading of the scheme
and the order clearly establishes that the
benefit of grant-in-aid has been provided
to the new entrepreneurs who have
constructed
cinema
buildings
after
fulfilling the conditions laid down therein,
besides reiteration of the pleased raised in
the writ petition.

5. Sri Govind Krishna, learned
counsel for the petitioner submits that on
3 All] Smt. Nirmal Devi V. State of U.P. and others
1191
a true and correct interpretation of the
government order dated 11-8-2000, the
petitioner is entitled to retain the
entertainment tax realised from the
cinema goers. He submits that the
proforma of ticket showing the admission
fee and the entertainment tax was
approved
by
the
department.
The
petitioner realised the entertainment tax as
per the approved proforma on form 'B'
and as such, the department cannot take a
turn around and ask the petitioner to pay
the entertainment tax realised by her. We
were taken through the scheme dated 118-2000 as also the order dated 10-9-2001
granting exemption for a period of five
years under Section 11(2) of the Act and
form 'B' as provided under Rule 13 of the
Rules framed under the Act.

6. Sri A.C. Tripathi, learned
Standing Counsel, on the other hand,
submits that the petitioner was granted
grant-in-aid under G.O. dated 11-8-2000.
Under the said G.O., the cinema owners
were not authorised to collect the
entertainment tax and total exemption
from entertainment tax for five years was
granted thereunder, which was not so in
the earlier G.Os. dated 9-11-1994 and 712-1998. Under G.O. dated 11-8-2000,
there being no such provision permitting a
cinema owner to realise entertainment tax
from cinema goers or permitting a cinema
owner whose picture hall has been
exempted from levy of entertainment tax,
to realise the entertainment tax from the
cinema goers, the petitioner is not
authorised to keep the entertainment tax
realised from the cinema goers.

7.

Considered
the
respective
submissions of the learned counsel for the
parties and perused the record.

8. The controversy in the present
case centres round the interpretation of
G.O. dated 11-8-2000, but before coming
to the said G.O., earlier G.Os. dated 9-111994 and 7-12-1998 may be noticed. G.O.
dated 9-11-1994 provides certain benefit
to the permanent picture halls constructed
under the said scheme subject to the
fulfillment of terms and conditions laid
down therein, with which we are not
presently
concerned.
It
provides
incentives by way of grant of exemption
to such picture halls by granting aid to the
extent of 50% of entertainment tax
collected for the first three years subject
to the maximum limit of 50% cost of
construction excluding the cost of the
land. It provides that while preparing
form 'B', as required under Rule 13 of
U.P. Entertainments & Betting Tax Rules,
1981, the respective amounts mentioned
therein should be shown separately. It
further provides a mechanism for making
adjustment entry in the account books of
the treasury which would show the
payment of grant-in-aid amount given by
the Government to the cinema owners
without
actually
depositing
the
entertainment tax with the Government
treasury and its repayment to the cinema
goers. Emphasis in the scheme is on
payment of certain amount by way of
grant to the cinema goers out of the
entertainment
tax
collected
by
it.
Similarly, in the subsequent G.O. dated 712-1998, it is provided that the cinema
owners shall collect the entertainment tax
and
will
be
entitled
for
specified
percentage from the entertainment tax so
collected by way of grant for a period of
three years upto maximum limit of 50%
of the entertainment tax realised by it.

9. Now, we consider the G.O. dated
11-8-2000 involved in the writ petition.
1192 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
The said G.O. grants total exemption to a
new cinema hall constructed in a place
having less than one lac population on the
basis of 1991 census to the extent of
100% exemption from entertainment tax
for a period of five years. In respect of the
other picture halls i.e. constructed in an
area having more than one lac population,
100% exemption has been granted for the
first three years and 50% for the next two
years. It may be noted that in this G.O.
there is no corresponding provision for
payment of any grant by way of aid to
such picture hall owners. There is a
conscious departure in the G.O. dated 118-2000 from the earlier G.Os. in this
regard. The Government took a conscious
decision under the said G.O. dated 11-82000 to grant total or partial exemption
from entertainment tax to such new
picture halls instead of giving any amount
as grant-in-aid to the owners.

10. Entertainment tax is a tax, as is
well known, a compulsory extraction. The
State Government has been authorised to
levy entertainment tax in pursuance of the
powers conferred on it by Entry 62 of
State List of Seventh Schedule of
Constitution of India.

11. The whole emphasis of the
petitioner is on the fact that there has been
no concealment or misrepresentation by
the licencee, the impugned demand is
illegal. It was submitted that the petitioner
prepared form 'B' during the period of
grant-in-aid facility as per direction given
by the officials of the entertainment tax
department and prescribed by them. He
submits that under the said form, the
petitioner has clearly mentioned the
entertainment tax realised by her from
time to time, but no objection was raised
by the department. It was also submitted
that no prudent businessman will establish
a cinema hall in an area having population
less than one lac or in remote areas if the
grant-in-aid facility, as was granted by
earlier G.Os., is not made available to
such
entrepreneurs,
otherwise
the
business would not be viable. We are not
at all impressed by the said argument. The
G.O. should be read as it is. Nothing can
be added in it nor anything can be
subtracted from it. Learned counsel for
the petitioner could not point out any
provision therefrom permitting a licencee
to retain the entertainment tax wholly or
in part by way of grant-in-aid. This being
so, it cannot be provided by means of any
interpretative process. The petitioner, like
other licencees, preferred to establish a
cinema hall with wide open eyes after
fully understanding the contents of the
G.O. dated 11-8-2000. So far as the
inaction on the part of the officials of the
respondent department in permitting the
petitioner to realise the entertainment tax
from the cinema goers is concerned, it
will not in any manner entitle the
petitioner to retain the entertainment tax
unauthorisedly realised by her. There
cannot be any estoppel against a statute. If
a licencee, like the petitioner, under law is
not entitled to realise and retain the
entertainment tax, the said tax cannot be
pocketed by her.

12. Section 3 of the Act, which is
charging section, provides tax on payment
for admission to entertainment. It says
that there shall be levied and paid on all
payments
for
admission
to
any
entertainment, other than an entertainment
to which Section 4 or Section 4-A or
Section 4-B applies. Sections 4-A and 4-B
relate to tax on video cinema and tax on
video show in public service vehicle or
hotels with which we are not concerned
3 All] Smt. Nirmal Devi V. State of U.P. and others
1193
presently. Section 3 further provides that
the entertainment tax shall be collected by
the proprietor from the person making the
payment for admission and paid to the
Government in the manner prescribed. It
follows that a proprietor of cinema has
been authorised to collect entertainment
tax from the cinema goers and to deposit
the same to the Government in the
prescribed manner. A proprietor of
cinema is not entitled to pocket the
entertainment tax and he has to deposit it
with the State Government.

13. In view of Section 3 of the Act,
when a proprietor of cinema collects tax
by way of entertainment tax from the
cinema goers, it would be entitled to
collect such tax which is subject to levy
and collection by the State. The authority
in this behalf is implicit. Only for the
aforesaid purpose, the statute provides for
the mode and manner in which the tax is
to be collected. This being so, there is no
reason for appropriation of entertainment
tax by the proprietor of cinemas. The
Government order under consideration
was issued in conformity with the above
principle and that is the reason that there
was a conscious departure from the earlier
Government orders.

14. It is not out of place to mention
here that the Apex Court examined the
scheme of a cognate Act namely, Bombay
Entertainment Duty Act, 1923 and the
Rules framed thereunder in the case of
State of Maharashtra & others Vs.
Swanstone Multiplex Cinema (P) Ltd.
2009 NTN (Vol. 41) 33 and held that the
State Government is entitled to recover
entertainment
tax
collected
by
a
proprietor of cinema from the cinema
goers, subject to such exemption and
concession as have been given to them. A
proprietor of cinema when collects tax by
way of entertainment tax from the cinema
goers, it would be entitled to collect such
tax which is subject to levy and collection
by the State. Paragraph-24 of the
judgment is reproduced below:-

"24- In absence of any express
statutory
provision,
allowing
the
proprietors of the multiplex theatre to
retain the benefit, it is difficult for us to
arrive at such an inference. The State has
power to impose tax. The State has a
power to grant exemption or concession
in respect of payment of tax. It has no
power in terms of the provisions of the
Constitution or otherwise to allow an
assessee to collect the tax and retain the
same. We will assume that to that effect
the provisions are not very clear but the
superior courts will not interpret the
statute in such a way which will confer an
unjust benefit to any of the parties, i.e.,
either the taxpayer or tax collector or the
State. The statute must be interpreted
reasonably. It must be so interpreted so
that it becomes workable. Interpretation
of a statute must subserve a constitutional
goal."

15. In the above case the Apex
Court has held that in such a situation
where the cinema goers had lost huge
amount, it would be travesty of justice if
the owners of the cinema theaters become
eligible to appropriate the amount for its
own benefits. To the aforementioned
extent, the doctrine of unjust enrichment
may be held to be applicable. A person
who unjustly enriches himself cannot be
permitted to retain the same for its benefit
except enrichment. Such licencee/picture
hall owners cannot and could not collect
any entertainment tax from the cinema
goers and if collected, they are liable to
1194 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
deposit the same with the State treasury,
otherwise
it
would
amount
unjust
enrichment.

16. This being so, the petitioner is
liable to pay the amount unauthorisedly
collected from the cinema goers as
entertainment tax as per the impugned
demand notice. There is no merit in the
writ petition.

The writ petition is dismissed with
costs of Rs.5,000/-
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.12.2009

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Bail Application No.25273
of 2007

Shakeel Ahmad

...Applicant
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri I.M. Khan
Sri Rahul Kumar Tripathi
Sri R.J. Alvi
Sri Shahabuddin

Counsel for the Opposite Party:
Sri Deepak Dubey
Sri R.B. Sahai
A.G.A.

Code of Criminal Procedure Section-439Parity-offence under Section 302 IPC-the
role of applicant as well as the coaccused-discharging shots which death
of deceased-post Mortem report two gun
shots injury noticed-Trail in progressconsidering
conviction
of
life
imprisonment of applicant and progress
of Trail-ensure fair Trail-can not be
released on Bail.

Held: Para 6

Considering the facts, circumstances of
the case, submission made by learned
counsel for the applicant, learned A.G.A.,
learned counsel appearing on behalf of
the complainant, the allegation against
the applicant and co-accused Sahab is
that
they
discharged
the
shots
consequently, the deceased sustained
injury. According to the post mortem
examination report, the deceased had
sustained two fire arm wounds of entry,
the motive has also been attributed to
the applicant, the applicant is having
criminal
antecedent,
he
is
having
criminal back ground and he has been
convicted by the Sessions Court for life
imprisonment, the trial is in progress,
with having all respect to the order
dated 20.9.2007, passed by another
bench of this Court granting bail to the
co-accused Sahab, I do not feel it proper
to extend the benefit of the parity to the
applicant because he has been convicted
for life imprisonment by the Sessions
Court and is involved in some other
criminal cases also, the benefit of parity
may not be given as a rule. The trial is in
progress to ensure the fair trial, it is not
proper to release the applicant on bail.
The prayer for bail is refused.

(Delivered by Hon'ble Ravindra Singh, J.)

1. Heard Sri I.M. Khan, Sri R.K.
Tripathi, Sri R.J. Alvi and Sri Shahab
Uddin, learned counsel for the applicant,
learned A.G.A. for the State of U.P., Sri
Deepak Dubey, Sri R.B. Sahai, learned
counsel for the complainant and perused
the record.

2. This Bail application has been
filed by the applicant Shakeel Ahmad
with a prayer that he may be released on
bail in case crime no. C-6 of 2005, under