- (1.) Is a private members club obliged to obtain permission from and pay amusement fees under Section 422 of the Kolkata Municipal Corporation Act, 1980 and whether the premises of a private members club is a "place of public amusement" within the meaning of Section 422 of the Kolkata Municipal Corporation Act, 1980 and, therefore, falls for consideration in the present writ petition.
(2.) THE first writ petitioner is a club registered under the Societies Registration Act, 1961. It claims to be a private members club and not open to outsiders, having stringent admission policies. It contends that, it is not obliged to obtain permission under Section 422 of the Kolkata Municipal Corporation Act, 1980 and, therefore, not liable to pay amusement fees under such section.
(3.) IN support of such contentions Mr. Abhrajit Mitra, learned Senior Advocate for the writ petitioners relies upon (The Joint Commercial Tax Officer, Harbour Division, II -Madras v. The Young Men s Indian Association (Regd.), Madras and Ors, 1970 1 SCC 462), (Commissioner of Income -Tax v. Darjeeling Club Ltd, 1985 153 ITR 676), (The Saturday Club Limited v. Assistant Commissioner, Service Tax Cell, Calcutta and Ors, 2005 1 CalLT 575) and (Bengal Club Ltd. v. Deputy Commissioner of Police and Ors, 1989 CrLJ 535). Mr. Mitra contends that, Section 422 of the Kolkata Municipal Corporation Act, 1980 contemplates a situation where a premises is open to the public and is used for recreation, amusement and like purposes, then the owner of such premises may be obliged to obtain permission under Section 422 of the Kolkata Municipal Corporation Act, 1980 and pay amusement fees for the same. So far as the writ petitioners are concerned, he submits that, the premises of the first writ petitioner is not a public place and, therefore, does not satisfy the requirements of Section 422 of the Kolkata Municipal Corporation Act, 1980 for the first writ petitioner to apply for and obtain a licence under such section. He contends that, the first writ petitioner is not liable to pay the amusement fees for the same. Mr. A.K. Ghosh, learned Advocate for the Kolkata Municipal Corporation submits that, the first writ petitioner satisfies the definition of a resort within the meaning of Section 422 of the Kolkata Municipal Corporation Act, 1980. He relies upon the dictionary meaning of various words used in such Section and submits that, the first writ petitioner is obliged to obtain permission under Section 422 of the Kolkata Municipal Corporation Act, 1980 and pay the fees thereunder. He refers to (Calcutta Municipal Corporation and Ors. v. East India Hotels Limited and Ors, 1994 5 SCC 690) and submits that, the Supreme Court has held that a restaurant within a hotel premises with dancing floors is covered by the expression "other similar place" of public resort under Section 443 of the Calcutta Municipal Act, 1951. He contends that the words used in Section 443 of the Calcutta Municipal Act, 1951 and Section 422 of the Kolkata Municipal Corporation Act, 1980 are similar. Consequently, he submits that, the first writ petitioner is within the purview of Section 422 of the Kolkata Municipal Corporation Act, 1980 and is obliged to obtain permission thereunder and pay amusement fees. Section 422 of the Kolkata Municipal Corporation Act, 1980 is as follows: - 422. Theatres, circuses, exhibitions, and places of public amusement not to be established without permission. (1) No person shall, without the written permission of the Municipal Commissioner or otherwise than in conformity with the conditions, if any, of such permission, which shall be granted subject to the provisions under section 425, use, or permit to be used, or materially alter, enlarge or extend the use of any premises for the purpose of establishing or keeping open any theatre, cinema house, drive -in theatre or cinema house, circus, fair, fete, exhibition or dancing hall, or any other place or similar public resort, recreation or amusement for any such purpose : Provided that nothing in this section shall apply to private performance in any place. (2) The Municipal Commissioner may specify any conditions for providing, within the premises, space for the vendors catering to the public needs in connection with such purposes. Section 422 of the Kolkata Municipal Corporation Act, 1980 obliges a person establishing or keeping open any theatre, cinema house, drive -in theatre or cinema house, circus, fair, fete, exhibition or dancing hall or any other place or similar public resort, recreation or amusement for any such purpose to apply for obtain a permission from the Municipal Commissioner. The places enumerated in Section 422 are places where the public have access. This Section 422 empowers the Municipal Commissioner to grant permission for the holding of such recreation and amusements in such public places subject to the conditions that may be laid down by him. The question is whether the first writ petitioner uses or permits to be used or extends the use of its premises for the purpose of establishing or keeping open any theatre, cinema house, drive -in theatre or cinema house, circus, fair, fete, exhibition or dancing hall, or any other place of similar public resort, recreation or amusement for any such purpose. The proviso to sub -section (1) of Section 422 of the Kolkata Municipal Corporation Act, 1980 states that, nothing in the section shall apply to private performance in any place.;