- (1.) Petitioner has sought following reliefs:- "Issue writ, order or direction including a writ in nature of certiorari setting aside the impugned order passed by the authority dated 30.04.2004 as contained in Annexure No.1 to the present writ petition and consequential order dated 16.01.2009 passed by opposite party no.4 contained as Annexure No.2 to the present writ petition with all consequential benefits. Issue a writ, order or direction including a writ in the nature of mandamus commanding the opposite parties to allow the petitioners to continue the telecast of local news, movies channels etc. through the Cable Network Services".
(2.) The Circular dated 30.04.2004 issued by Commissioner of Entertainment Tax, U.P basically has been challenged on the ground that petitioner is a registered Firm, telecast news in District- Ambedkar Nagar with the help of cable operators and petitioner no.2 is proprietor of M/S Shahar May Abtak News Channel, not covered by the definition of "exhibition by means of video" contained in Section-2(aa) of U.P. Cinema (Regulation) Act, 1955 and even otherwise provisions made by U.P legislature are inconsistent with the Parliamentary enactments amending Cable Television Network Regulation Act, 1955.
(3.) This issue has already been considered by this Court vide judgment of date passed in Misc. Bench No. 6837 of 2014 M/S Sea T.V.Network Ltd. Thru. Its M/D Pankaj Jain Vs State of U.P wherein this Court has relied and followed earlier Division Bench Judgment in All India Local Television Channel Owners Welfare Trust & Another Vs State of U.P and Others, 2013 5 ADJ 138 and the judgment reads as under:- 1. The petitioner M/S Sea T.V. Network Ltd is a registered firm under Cable T.V Network Act, 1955 and is running local channel in the name and style of M/S Sea T.V Network Ltd in District- Agra. 2. Demand of additional fee under Rule 17 (2) of U.P. Cinema (Regulation of Exhibition by means of video) Rules, 1988 (hereinafter referred to as the, Rules 1988) has been challenged on the ground that vide Cinema (Regulation of Exhibition by means of video) (fourth amendment) Rules, 2011 (hereinafter referred to as the "Amendment Rules 2011) Rule 17 has been amended and as a result thereof, Rule 17 (2) stands deleted hence, demand of additional fee under Rule 17 (2) of Rules 1988 is illegal. 3. We find that similar controversy came up before this Court in a bunch of writ petitions, led by All India local television channel owners welfare trust and another Vs State of U.P and others, 2013 5 ADJ 138. This Court formulated following questions therein:- (A) Whether by 4th Amendment Rules, 2011 dated 31.03.2011 Rule 17 (2) of 1988 Rules has been deleted and is no more in operation? (B) Whether exhibition of programmes of local Television channels and transmission of signals by MSO/cable operators can be termed to be an exhibition by video attracting the applicability of Rule 17 (2) of 1988 Rules? (C) Whether in view of the amendments made in cable Television Networks (Regulation) Act, 1955 and the Telecom Regulatory Authority of India Act, 1997, Cable Television network has gone out of purview of the State Legislature and the State Legislature has no competence to frame/operate any rule pertaining to demand /realization of any fee under 1988 Rules? (D) On whom the liability to pay additional license fee, if any can be fastened i.e Local Television Channels or MSO or Cable operators? 4. Question no-A was answered as under:- "In view of the foregoing discussions, the submission of learned Counsel for the petitioners that rule 17 (2) is no longer on the Statue Book, cannot be accepted. Rule 17 (2) is still in force and the respondents have every right to demand additional licence fee in accordance with Rule 17 (2)". 5. Question no-B was answered by referring to U.P. Cinema (Regulation) (Amendment) Act, 2009 which amended U.P. Cinema Regulation Act, 1955 whereby the defination of video was inserted vide clause (g) and reads as under:- " "Video" means any system, by whatever name called, or recording on, or reproducing from video cassette or any other device by whatever name called or transmitting through any recording medium or directly the moving visual images with or without sound". Consequently, question-B was answered as under:- "In view of the foregoing discussions, we are of the view that the submission of learned Counsel for the petitioners to the effect that Rule 17 (2) is not applicable since there exhibition is not by means of video, cannot be accepted. 6. Now, coming to question no-C regarding legislative competence, Court answered question no-C holding as under:- "In view of the foregoing discussions, we are of the view that it cannot be said that filed which is covered by Rules 1988 as amended by 2011. Amendment is covered by any parliamentary enactment. The State has full legislative competence to enact the Act which is referable to Entry 33 List II and does not entrench on any Parliamentary enactment". 8. Question-D was answered in the light of para-13 of counter affidavit as under:- "It has been categorically stated that additional licence fee if realised from a licensee be a MSO or a cable operator or cable Television network, the same is not levied on any other person. Additional licence fee is thus, levied or realised from only one of the three participants, who are connected with exhibition on the Television screen". 9. The operative part of judgment which contains answer to aforesaid questions as also further direction for assessment etc, read as under:- "In the results of the foregoing discussions, we are of the view that writ petitions are to be decided with following conclusions and observations: (i) Rule 17 (2) of 1988 Rules as amended by 4th Amendment Rule 2011 is still operative and in force. (ii) The exhibition on the Television screen of subscribers by MSO, cable operators or local Television channels is exhibition by means of video within meaning of Rule 17 (2) of 1988 Rules. (iii) Amendments made in U.P. Cinemas (Regulation) Act, 1955 and the Rules framed under section 13 are within the legislative competence of the State. (iv) The liability of payment of additional licence fee is to be imposed on MSO, Local cable operators and the local Television channels after taking into consideration the facts of each case and it is open for the State to fasten liability of realization of additional licence fee on any one of the above three, which is held responsible for exhibition on different Television screens. However, additional licence fee can be realized only once. (v) The petitioners against whom assessment of additional licence fee has been made within the meaning of Rule 17 (2) of 1988 Rules, have remedy of filing appeal to the State Government under rule 23 read with sub section (3) of Section 5 of U.P. Cinemas (Regulation) Act, 1955. (vi) The writ petitions having been pending in this Court for consideration, we are of the view that liberty be given to those petitioners against whom assessment orders have already been passed to file a statutory appeal under Rule 23 of 1988 Rules within a period of one month from today and in event the appeals are filed against the assessment orders, the same shall be entertained without raising any objection of limitation. With the observations and directions as above, all the writ petitions are dismissed subject to liberty to file a statutory appeal within 30 days to those petitioners against whom final assessment orders for payment of additional licence fee has already been passed. The parties shall bear their own cost. 10. Learned counsel for petitioner, however, submitted that a matter went from State of Uttrakhand to Supreme Court in District Magistrate, Haridwar and Anr Vs. Harish Malhotra, Civil Appeal No. 10855 of 2014 decided on 09.12.2014. It has considered Rule 17 (2) and Section 2 (aa) of Cable Television Network Regulation Act, 1955 and held in para-12, 13, 14 & 15 as under:- "The claim of the respondent is that the business carried out by him does not come within the purview of Section 2 (aa) of the U.P. Rules 1988, and thus the liability of fee imposed under rule 17 (2) is bad in law. From a plain reading of Section 2 (aa), it is clear that it would not apply to the Respondent who is a cable operator telecasting video channels "to the Public" and not in Public. It is an established principle of statutory interpretation that plain meaning is to be given to words contained in a statute. "The notification No. 145/XXVII (5) Entertainment Tax/2005 dated 17.08.2005 doesn't apply to the respondent as it seeks to tax "Exhibition by means of Video". The respondent's activities are not covered by the aforementioned expression. For the definition of the said expression the U.P. Cinemas Regulation Act, 1955 has to be referred even though the notification has been issued under U.P (Entertainment and betting) Tax Act, 1979. The expression can be said to be in pari materia and definition of a term under one Act, can be used to interpret provisions of rules under the other Act. "The provisions of the U.P. (Cinemas) Regulation Act, 1955 do not apply to the respondent and for the reason the expression "Exhibition by means of Video" within the meaning of 2 (aa) of the said Regulation is not applicable to the respondent. Thus, Rule 17 is also not applicable to the respondent". "As long as there is no statutory sanction for imposition of a tax, no liability of paying a fee can be imposed relying on the alleged "consent" or acquiescence to the same imposition in part. The statutory sanction cannot be found under the Uttar Pradesh Entertainment and Betting Tax Act, 1979 or any rules made thereunder". 11. He submitted that, in view of the above Supreme Court judgment in District Magistrate, Haridwar and Anr Vs. Harish Malhotra, Division Bench of this Court in All India Local Television Channels Owners Welfare Trust and Another is no longer a good law. 12. The submission is thoroughly misconceived for the reason that in State of Uttrakhand, statutes as were applicable in the State of U.P as on 09.11.2000, when State of Uttrakhand came in existence, were adopted and followed and the same came to be considered before Supreme Court in District Magistrate, Haridwar and Anr Vs. Harish Malhotra. But in State of U.P , there is a substantial change, firstly by amending definition of Section 2 (aa) U.P. Cinemas (Regulation) Act, 1955 and, secondly, by inserting definition of "Video" vide clause (g). The provisions as amended in State of U.P were not available in State of Uttrakhand. Therefore, the judgment of District Magistrate, Haridwar and Anr Vs. Harish Malhotra has no application so far as State of U.P is concerned where there is substantial amendment in relevant statutes. 11. On the contrary amended statutes have been considered by Division of this Court in All India Local Television Channel Owners Welfare Trust & Another. In view of the above discussion and for the reason stated in this Court's judgment in All India Local Television Channel Owners Welfare Trust & Another Vs. State of U.P and in the same terms, observation and directions, this writ petition is dismissed.;