R.A.SHARMA - (1.) In pursuance of an agreement executed in 1974 between Municipal Board, Haridwar and the petitioner, the letter has installed a plant of Cabinride Aerial Ropeway for carrying passengers from lower terminal station to upper terminal station, namely, temple of Godess Mansha Devi in Haridwar. The petitioner is accordingly transporting the passengers between the two terminal stations on fixed charges. The Distt Magistrate, Haridwar issued an order dated 15-12-1992 under the U.P. Entertainment and Batting Tax Act, 1979 (hereinafter referred to as the Act) directing the petitioner to deposit the entertainment tax at the rate prescribed therein on the amount earned by it. The petitioner filed its objection against the said notice. Another notice dated 12-2-1993 was issued to the petitioner asking it to deposit the entertainment tax for the period from July, 199 3/11/1993. Against the said notice the petitioner filed writ petition No. 635 (T) of 1993 before this Court in which on 13-7-1993 the petitioner was granted stay order subject to furnishing of adequate security. Another order dated 13-2-1994 was issued by the Additional District Magistrate, Haridwar asking the petitioner to deposit the amount mentioned therein. Against the said order the petitioner filed another writ petition No. 83 of 1994 in which on 1-2-1994 this Court granted an interim order. Writ Petition No. 635 of 1993 was disposed of by a Division Bench of 10-7-1995, directing the concerned authority to decide the matter afresh. Thereafter a notice dated 30-10-1995 was given to the petitioner calling upon it to submit its reply. The petitioner submitted its reply and Commissioner of Entertainment Tax, U.P. passed the order dated 2-4-1996, holding the petitioner liable to pay the entertainment tax under the Act. Feeling aggrieved by the said order the petitioner has filed this writ petition. In this writ petition on 12-8-1996 this Court passed the following interim order :'Heard learned counsel for the parties. Judgment reserved. The amount of tax which the Government realizes shall be kept in a separate account, which will be subject to the order passed by this Court in this writ petition. Attachment of the property shall continue till the disposal of the writ petition.It may be mentioned that writ petition No. 83 of 1994 has also been dismissed on 24-7-1995.
(2.) Parties have exchanged affidavits. Sri Ravi Kant, learned counsel for the petitioner has made two submissions in support of the writ petition, namely, (i) the impugned order has been passed in violation of the principles of natural justice; and (ii) the ropeway service provided by the petitioner is not 'entertainment' within the meaning of the Act and, therefore, no entertainment tax is liable to be paid by it, Sri Rakesh Dwivedi, learned Additional Advocate General has disputed the said submissions.
(3.) According to the judgment of this Court dated 10-7-1995 in Writ Petition No. 635 of 1993 the concerned authority was directed to decide the question as to whether the ropeway service provided by the petitioner is being used for entertainment purposes or for transporting the devotees as a means of transport. The authority was further directed to decide the said question after making 'thorough inquiry and investigation and also if need be recording evidence etc. etc.' and after affording reasonable opportunity of being heard to the parties within the specified time. Pursuant to the said judgment, inquiry was conducted by Sri Arvind Narain Misra, Additional Commissioner (Entertainment Tax), who submitted his report to the Commissioner. The Inquiry Officer before submitting his report made spot inspection/survey and examined the passengers also, who were carried from the lower terminal to the temple by the ropeway. This inquiry was ex parte as no information was given about it to the petitioner and spot inspection/survey and examination of the passengers were also made in the absence of the petitioner's representative. On the basis of the said report the notice dated 30-101995, containing the conclusion arrived at by the Inquiry Officer, was issued to the petitioner calling upon it to submit its reply as to why it should not be charged entertainment tax. In its reply, apart from disputing its liability, the petitioner raised an objection that inquiry has been conducted in its absence and without giving it any notice or opportunity. It also requested for a copy of the inquiry report so as to enable it to file an effective reply. However, its request for copy was turned down and the impugned order, which was based on the said report of the Inquiry Officer, was passed. When this Court in its judgment dated 10-7-1995 in Writ Petition No. 635 of 1993 has directed the respondents to decide the disputed question after making 'thorough inquiry and investigation and also if need be recording evidence etc. etc.' and after giving reasonable opportunity of being heard to the parties, it was incumbent upon the respondents to make the spot inspection/ survey in the presence of the authorised representative of the petitioner and to hold the inquiry after giving reasonable opportunity of being heard to it. But in the instant case no information or notice was ever given to the petitioner about the spot inspection/survey and the inquiry. The Inquiry Officer conducted the spot inspection/survey, examined passengers and conducted the inquiry in the absence of the petitioner. Such a course is contrary to the direction issued by this Court by the aforesaid judgment dated 10-7-1995. Apart from the direction given by this Court, in such a serious matter, which is to be decided on the disputed facts, the respondents should have conducted the inquiry and made spot inspection in the presence of the petitioner's representative.;