ORIGINAL JURISDICTION : Writ Petition Nos. 1731, 1915, 2277, 3691, 7097, 9428/81 and 2121, 7430, 7431, 8349, 9319 of 1982.
(Under article 32 of the Constitution of India)
K. C. Dua, for the Petitioners.
B. P. Maheshwari, for the Respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J. What appears to be a short and simple point has been the subject matter of a serious divergence of judicial opinion between two leading High Courts of our country, namely the Allahabad High Court and Madhya Pradesh High Court taking contrary views which have to be resolved by us in the present writ petitions.. The short point involved in these petitions turns upon the interpretation of the word "Entertainment" as used in section 2(3) of the Uttar Pradesh entertainment and Betting Tax Act, 1937 (hereinafter to be referred to as the ’Act’).
The facts of these cases lie within a very narrow compass and may be stated thus:-
The first petitioner is a partnership firm which had launched an entertaining and ingenious enterprise for the running of a Video Parlour at 3, Chauhan Market, Delhi gate, Agra. The modus operandi of the petitioner was as follows. A machine with a video screen is installed in the parlour of the petitioner. The petitioner permits persons to enter the premises without any charge to view a show on the video which consisted mainly of sports games etc. played On the screen of the video. According to the petitioner he did not Charge any admission fee but the Electronic Machines imported from Japan having educational value for persons playing the games were meant to provide educational entertainment by showing sea warfare, battle field space warfare sports and many other things which were likely to provide both education and entertainment to the viewers, particularly to young children. The mechanism for playing the machine was so designed that a coin of 50 naya paise was to be inserted into a strong box built within the machine, the keys of which were with the manufacturer. After the show was over a representative of the manufacturing company would come, open the box, collect the money and pay the share of the hirer-petitioner out of the collected sale proceeds. It was further alleged that no admission or gate entry fee was charged for entering the House or Parlour to watch or play the game or for entering into the adjacent snack shops. The shows were operated by an operator from the audience and SO paise coin was inserted into the aforesaid box before the show could start. The charge of inserting the coin was realised only from those who wanted to operate the video machine at the rate of SO paise for a show lasting up to 30 seconds.
The petitioners thus contended that the manner in which the game was shown to the viewers and operated by the person playing the games was not an entertainment within the meaning of section 2 (3) of the Act. To Buttress this argument the petitioners cited the example of several States where identical shows were not exigible to entertainment tax. It is manifest that the manner and the mechanism by which the operation of the video was done would be eligible to tax could not be determined merely because some other States did not choose to charge any entertainment tax for the video shows.
The crux of the matter is as to whether or not the show, the details of which have been described above falls within the four corners of the expression "entertainment". Sub-section 3 of section 2 of the Act may be extracted thus:-
"entertainment" includes any exhibitional,
performance, amusement, game or short to which
persons are admitted for Payment."
It is true that a part of the video show was of some educational value but that by itself would be no answer to the application of Sub-section 3. The definition as extracted above is extremely wide so as to take within its fold and includes the kind of show which was displayed by the petitioners in this case.
Before explaining the section we would like to ascertain the correct meaning and import of the word ’entertainment’ (which is neither a scientific nor a technical term) as used in the popular sense or as understood in common parlance. This was held by this Court in the case of Porritts and Spencer (Asia) Ltd v. State of Haryana.(1) In Stroud’s Judicial Dictionary (4th Edn, vol. 2. p. 916) the word ’entertainment’ has been defined thus:
"Entertainment ... for a PUBLIC OR SPECIAL
occasion"... is an entertainment in the sense of a
gathering of persons for entertainment."
"Entertainment" (Small Lotteries and Gaming
Act 1956 (c. 45, s. 4 (1) included a tombola drive
alone with out accompanying festivities.
"The monologue or patter of a comedian, even
if delivered at an entertainment provided by an
institution whose activities are partly
educational, was held to be a "variety
entertainment" within the meaning of the Section." Similarly in words and Phrases, Judicially Defined (vol. 2, p. 206-207) the word entertainment has been defined thus :-
"Entertainment is something connected with
the enjoyment of refreshment-rooms, tables, and
the like. lt is something beyond refreshment; it
is the accommodation provided, whether that
includes a musical or other amusement or not". Similarly in Words and Phrases (Permanent Edn; Vol. 14A, p. 353) ’entertainment’ has been defined thus:-
"An entertainment is a source or means of
amusement; a diverting performance, especially a
public performance, as a concert, drama, or the
like."
"Entertainment" denotes that which selves for
amusement, and "amusement" is defined as a
pleasure able occupation of the senses, or that
which furnishes it, as dancing, sports, or music." Likewise in Reader’s Digest Family Word Finder at p-263. ’entertainment’ has been defined thus:
"Entertainment amusement, diversion, distraction, recreation, fun, play, good time, pastime, novelty; pleasure, enjoyment, satisfaction." In Webster’s Third New International Dictionary the word ’entertainment’ has been defined at p. 757 thus:-
"entertainment - the act of diverting,
amusing, or causing someone’s time to pass
agreeably.
"Something that diverts, amuses, or occupies
the attention agreeably.
A public performance designed to divert or amuse. Similarly in the Concise English Dictionary by Hayward and Sparkes the word entertainment’ has been defined thus:-
"the art of entertaining, amusing or
diverting, the pleasure afforded to the mind by
anything interesting, amusement, other performance
intended to amuse."
A perusal of the various shades, aspects, forms and implications of the word ’entertainment’ as defined in the aforesaid books clearly leads to an irresistible inference that the word ’entertainment’ has been used in a very wide sense so as to include within its ambit, ’entertainment of any kind including one which may be purely educative. Subsection 3 itself by using the word ’entertainment’ as "any exhibitional, performance, amusement, game or sport to which persons are admitted for payment" has extended the scope of entertainment to expressly include any kind of amusement, game or sport. It cannot be disputed in the present case that by operating the video, By the operator of the video pays SO paise per 30 seconds for playing the games, sports and other kind of performances which are shown on the machine and which can be watched by interested spectators. It was vehemently argued by the Codasel for the petitioners that no admission fee is charged from viewers seeing the video. That circumstances by itself, however, cannot defuse or alter the kind of entertainment derived by the person who pays for playing the games. That he would not pay money if it did not thrill, amuse, and entertain him, is obvious. Translated into actual practice, if the operators who are from the audience play the video for one hour the amount of money collected would be Rs. 60 and if the video is played for 3-4 hours a day, the total amount comes to Rs. 180-240 per day which is doubtless a substantial amount for showing the video by way of an entertainment because when a number of people without any admission fee enter a hall for entertainment and enjoy the games it becomes a public show and the hall where the video is played becomes a public hall and amounts therefore to a public exhibition which is squarely covered by the first limb (exhibitional) of the definition of entertainment in Sub-section 3 extracted above.
It was next argued that to play these games, sports etc. involves a great amount of skill for the operator and therefore it would not be an entertainment within the meaning of Sub-section 3. This argument appears to be without any substance because he would drive pleasure and be entertained regardless of whether he possesses skill or not. If he possesses skill he may derive more pleasure on less payment otherwise he will have to pay but he will derive pleasure all the same. Besides, the game brings a substantial return for the person who makes available these facilities. In these circumstances it is impossible for us to hold that such an exhibition falls beyond the purview of the word entertainment as envisaged in sub-section 3.
Furthermore, clauses regarding payment for admission includes:- .
"Any payment for a programme or synopsis of
an entertainment."
"Any payment for any purpose whatsoever
connected with an entertainment which a person is
required to make as a condition of attending or
continuing to attend the entertainment in addition
to the payment, if any, for admission to the
entertainment."
Section 3 which is the charging section runs
thus:-
"There shall be levied and paid on all
payments for admission to any entertainment a tax
(hereinafter referred to as entertainment tax)."
Section 3 of tho Act which has been extracted above, clearly applies to the facts of this case because here the payment is based on lump sum basis calculated at the rate of SO paise per 30 seconds.
Thus, on a consideration of the legal connotation of the word ’entertainment as defined in various books, and other circumstances of the case as also on a true interpretation of the word as defined in s. 2 (3) of the Act, it follows that the show must pass the following tests to fall within the ambit of the aforesaid section:
1. that the show, performance, game or sport,
etc. must contain a public colour in that the
show should be open to public in a hall,
theatre or any other place where members of
the public are invited or attend the show.
2. that the show may provide any kind of
amusement whether sport, game or even a
performance which requires some amount of
skill.
In some of the cases, it has been held that
even holding of a tombola in a club hall
amounts to entertainment although the playing
of tombola does, to some extent, involves a
little skill.
3. that even if admission to the hall may be
free but if the exhibitor derives some
benefit in terms of money it would be deemed
to be an entertainment.
4. that the duration of the show or the identity
of the person who operates the machine and
derives pleasure or entertained or that the
operator who pays him self feels
entertainment is wholly irrelevant in judging
the actual meaning of the word
’entertainment’ as used in s. 2 (3) of the
Act. So also the fact that the income derived
from the show is shared by one or more
persons who run the show.
The Allahabad High Court in the case of Gopal Krishna Agarwal, v. State of Uttar Pradesh and Ors(1) which was also a case under the Act, held that entertainment tax was leviable on video games. The High Court has very carefully analysed sub-section 3 of s. 2 of the Act and the import of the word ’entertainment’ and observes as follows:-
"The context in which the word ’includes, has
been used in the definition clauses of the Act
does not indicate that the Legislature intended to
put a restriction or a limitation on words like
’entertainment’ or ’admission to an entertainment’
or ’payment for admission’. With the advance of
civilization and scientific developments new forms
of entertainment have come into existence. Video
Games are probably the latest additions to the
means of entertainment. These games require skill
and precision as so many other games do. They are
a source of amusement and enjoyment to those who
participate in the games. Others who stand by and
watch also derive some pleasure and amusement
though not to the same degree. Admission to the
premises where the Video Machines are installed
may be free but payment is admittedly made if one
wants to play the game. The money charged for use
of the Video Machine is an admission to
entertainment and the payment made by the person
who uses the Machine is the payment for admission.
In any case it is a payment for admission. In any
case it is a payment
connected with entertainment which a person is
required to make as a condition of attending the
entertainment
We find ourselves in entire agreement with the observations of the Court and fully approve of the ratio decendi of this case . The Allahabad High Court has given almost the same reasons as given by us in the earlier part of the judgment.
It is true that in the case of Harrish Wilson v. State of Madhya Pradesh and Ors.(1) the Madhya Pradesh High Court had taken a contrary view and held as follows:-
"Therefore, what entertains a person in the
video games parlour is his own performance and not
the exhibition, performance, amusement, game or
any sport offered by the petitioners. The payment
made by a person to another to provide him with
tools for deriving pleasure from his own
performance with the help of the tools can not be
held to be payment to that another for ’admission
to entertainment’ as contemplated by the Act. In
our opinion, therefore, it cannot be held that the
petitioners receive ’payment for admission to
entertainment’, when they collect amounts inserted
by the persons in the slot."
And the Gujarat High Court in N. T. Gursahaney v. State and Anr.(2) has taken a similar view. Apart from the wrong line of reasoning adopted by the Madhya Pradesh High Court it seems to have completely overlooked certain important aspects of the question which we have dealt with in our judgment. Moreover even the language of the charging provision of the Act which fell for interpretation in that case does not appear to be absolutely in pari-materia with the language of the various sections of the U. P. Act. Even so the pivotal conclusions derived by the Madhya Pradesh High Court and the Gujarat High Court do not appeal to us. The mere fact that payment is not made at the time of entering the premises is irrelevant. Payment made at a later, stage by inserting a coin is nonetheless for being admitted to a place of entertainment. Thus the fee being charged in a different manner at a different stage is in any case for providing entertainment. We, therefore, with due respect to the High Courts, disapprove their decisions.
For the reasons given above we hold that the decision of the Allahabad High Court is correct and we hereby over rule the decisions of the Gujarat and Madhya Pradesh High Courts. In our opinion, the video show in the instant case is clearly exigible to tax under section 3 of the Act. The Writ petitions are accordingly dismissed with no order as to costs. H.S.K. Petitions dismissed.