- (1.) OM Prakash, J. Petitioner No. 1 a partnership firm is engaged in the business of exhibiting cinematograph films in the cinema, namely, Sarju Chitra Mandir, situate at Rasra, district Ballia. Petitioner No. 2 is a partner in the said firm.
(2.) ON 25-11-1992 the cinema premises were1 inspected by the Enter tainment Tax Inspector and then he noticed that the urinals for gents and ladies were dirty and no chemicals to disinfect them and to keep hygienic conditions in order were used ; that one chair in the balcony was found broken and 15 chairs in the first class were without the back supports. He, therefore, recommended to the Entertainment Authori ties not to permit the petitioners any more to realise maintenance charges at the rate of 25 paise from each viewer, which the petitioners continued to realise with effect from 1-5. 1992, and to recover from the petitioners the maintenance charges already realised from 1-5-1992 from the cine-goers at the aforesaid rate. The inspection report of the Entertainment Tax Inspector is Annexure "3" to the counter-affidavit. Pursuant to this report the District Magistrate, Ballia, (respondent No. 2) passed an impugned order dated 17-5-1993 (Annexure "5" to the writ petition) directing the petitioners to deposit Rs. 21,710. 25 representing extra charges realised towards maintenance for the period commencing from 25-11-1992 to 29-3-1993 as entertainment tax within a week from the date of the said order. He then passed another order dated 19-7-1993 (Annexure "7" to the writ petition) directing the postmaster, Head Post Office, Ballia, to deduct Rs. 8,000 from the security account of the petitioners to enable the authorities to recover the balance amount from the petitioners. Aggrieved, the petitioners seek quashing of the impugned orders dated 17-5-1993 and 19-7-1993 (Annexures "5" and "7" to the writ petition respectively ). It is pleaded by the petitioners that simply because on the date of inspection, i. e. , 25-11-1992, one chair in the balcony was found broken ; 15 chairs in the first class were found without back supports and that the urinals were found dirty and without disinfectants, no inference can be drawn that no maintenance was done by the petitioners and that extra charges recovered at the rate of 25 paise from each viewer were not utilized towards maintenance. The contention of the petitioners is that cinema requires day to day maintenance, because as and when the electric supply is stopped or the exhibition of the film is interrupted, the viewers start breaking furniture and that repair of the furniture is done throughout. It is submitted that chairs in the balcony and in the first class are plenty and if one chair in the balcony is found broken and back supports of 15 chairs in the first class are found missing, then the conclusion drawn that extra charges recovered by the petitioners were not utilized towards maintenance, will be wholly arbitrary and unreasonable. Expenditure on maintenance of the furniture and of the cinema building as a whole, say the petitioner, is recurring one. The petitioners, therefore, pleaded that the impugned orders passed by respondent No. 2 being wholly arbitrary, unjust and unreasonable are liable to be quashed.
(3.) NEXT submission , of learned Counsel for the petitioners is that there is no provision in the U. P. Entertainments and Betting Tax Act, 1979 (briefly 'the Act') to direct the petitioners to refund the aggregate of extra charges realised by them for maintenance from the cine-goers. It is submitted by him that as per the Schedule notified vide notification dated April 12, 1989, published on 13-4-1989 rate of entertainment tax is 75%, if payment for admission is upto 50 Paise only. His submission is that if extra charge of 25 paise within the meaning of Section 3-A (1) (a) of the Act is taken to be the extra admission fee per ticket, then only 75% of that can be realised as tax and rest of that will be retained by the peti tioners and that being so, the petitioners cannot be asked to refund the entire amount realised as maintenance charges. First we take up the submission whether the conclusion drawn by the Entertainment Authorities from the inspection report dated 25-11-1992 (Annexure "3" to the counter affidavit) that extra charges realised by the petitioners were not at all utilized for maintenance of the cinema is reason able. It is a matter of common knowledge that in the cinema business, particularly, when the cinematograph films are exhibited in the far-flung areas or in the smaller districts, the crowd of viewers is not very disci plined and they cause considerable breakage of furniture and damage to other fixtures and cinema premises as a whole.;