CHHANGANI, (Actg.) C. J - (1.) THIS is an appeal by His Highness the Maharaja of Jaipur Mussum Trust, City Palace, Jaipur, against the judgment and order of a learned single Judge of this Court dated 13-9-69 dismissing the appellant's writ application with costs.
(2.) THE material and relevant facts are these - THE former Ruler of Jaipur, by a registered deed created a trust on the 16th April, 1959 and founded a museum in a portion of the City Palace, Jaipur, for the benefit of the public. THE said trust was said to be a public charitable trust in respect of the said museum and one of its ex-officio trustees is the V. C. of the Rajasthan University. H. H. the Maharaja had a vast and valuable collection of various articles of historical, scientific, literary and archaeological interest and importance which came to his possession from several past generations. He relinquished all his right. , title and interest over the property and handed them over to be placed in the mu-seum for which the aforesaid trust was created by him. THE museum was founded for the benefit of the public and visitors who visited the historic city of Jaipur It is stated that research scholars, students of history and persons interested in archaeology, architecture science or arts derive benefit out of the museum which provides an opportunity for further studies and to augment their knowledge in the above subjects. That the Secretary of the trust, vide his order dated 24th May, 1965, framed rules prescribing the ticket charges for admission to the museum. THE ticket charges varied from Re. 1/- to Rs 4/- according to the categories of the visitors and areas of interest. THEre is also provision for free pass in certain cases. His Highness further donated rupees one lac for the upkeep and maintenance of the said museum. On the 1st of December, 1961, the Entertainment Tax Officer cum-Sales Tax Officer, "b" Circle, Jaipur City, issued a notice to the appellant to pay entertainment tax leviable on the admission tickets issued by the trust and demanded year wise account of the sale of the tickets issued till 15th of December, 1961. The appellant filed a reply denying the liability to tax. It was stated that the museum is neither a place of (entertainment nor any performance is held there. It is a place of historical importance where persons of literary and artistic taste came to study the work of art. According to the appellant, the museum is a place of study rather than a place of entertainment. The appellant also moved the Commissioner, Excise & Taxation, Rajasthan, Udaipur, claiming non-liability to entertainment tax. The Commissioner, Excise & Taxation, Rajasthan, Udaipur, after an examination of the case reached a conclusion that "museums are educational and historical in nature and are not places of entertainments. No entertainment tax can, therefore, be charged. " He addressed letter dated 1-1-62 to the Sales Tax Officer, "b" Circle, Jaipur City. In consequence of the decision of the Commissioner, the proceedings were dropped and the appellant received no further communication from the Taxation Department for about seven years. The respondent No 2, however, after a lapse of seven years, issued a notice dated 28th October, 1967 to the appellant, intimating the appellant's liability to tax and requiring the appellant's appearance to produce documentary evidence and to show cause, if any, against the proposed action under section 10 (3) of the Rajasthan Entertainments (And Advertisements) Tax Act, 1957 (Act No. 24 of 1957) (hereinafter to be referred to as the Act.) The appellant again denied its liability and relied upon the of previous instructions issued by the Commissioner, Excise & Taxation, Rajasthan, Udaipur. The respondent No. 2 did not accept as binding the departmental instructions issued earlier by the Commissioner of Excise & Taxation, and after examining the case passed an order on 3-10-1968, holding - " (i) that the museum comes within the definition of entertainments as given in the Act. (ii) that tax is leviable on the admission fee charged for admissions. " He further held that the Director failed to comply with the provisions of the Act and continued to commit an offence under section 6 (1) of the Act, and imposed penalties for the offences committed between 17-7-1968 to 20-7-1968. The respondent No. 2 further issued a notice dated 15-10-68 intimating further violation of section 6 (1) of the Act by the appellant in respect of further period from 1 8-1968 to 7-8-1968 and required the appellant to show cause against imposition of penalties. On 29-10-68 the appellant filed a writ application in this Court praying that the orders of the respondent No. 2 dated 3-10-68 (it is not an order but a notice) be quashed by a writ of certiorari or any other writ or direction. The appellant also prayed for a writ of prohibition restraining the respondents from issuing any notice or levying any entertainment tax or imposing any penalty on the appellant. The writ was opposed by the respondents who filed a joint reply. The respondents inter alia took a plea that the appellant had an alternative remedy by way of appeal under the statute, which he did not avail of, and, therefore, he could not be entitled to invoke the extra-ordinary jurisdiction of the Court under Art. 226 of the Constitution. Having regard to the circumstances of case, the learned single Judge over ruled the preliminary objection based on the existence of alternative remedy and entertained the writ application on merits, The learned single Judge considered the contentions advanced before him, examined the definition of various expressions in the Act and noticed the cases cited before him and recorded a conclusion that "the exhibition of the articles can come within the definition of 'entertainment' only when they are displayed with a view to provide amusement or gratification of any kind to the visitor who go to see that display, and they do provide amusement to them," He also held that some additional physical performance besides mere exhibition is not necessary. The learned Judge did not accept the suggestion that if certain persons get amusement out of certain articles or object which are exhibited in the museum and others do not derive any amusement or entertainment from them, then the exhibition of those objects cannot be subjected to any entertainment tax. The learned Judge further observed that "the very nature of articles that have been exhibited in the museum is to arouse a curiosity in the minds of spectators who go to see those articles, and, therefore, it is difficult to say that the entertainment or amusement is not in those articles but wholly resides within the person amused or entertained and not outside the person. " In the result, he dismissed the writ application. Aggrieved by this judgment and order, the appellant has filed the present appeal. We have heard the counsel for the appellant. Mr. Raj Narain repeated before us the preliminary objection that the appellant having had an alternative remedy by way of appeal, the learned single Judge ought not to have entertained the writ application He heavily relied upon the following observations in Sales Tax Officer Jodhpur and another vs. M/s Shiv Ratan G. Mohatta (1): - "we are of the opinion that the High Court should have declined to entertain the petition. No exceptional circumstances exist in this case to warrant the exercise of the extra-ordinary jurisdiction under Art 226. It was not the object of Art 226 to convert High Courts into original or appellate assessing authorities whenever an assessee chose to attack an assessment order on the ground that a sale was made in the course of import and, therefore, exempt from tax. " The Supreme Court also emphasised that the facts that the assessees have to deposit sales tax while filing appeal, does not always mean that he can bypass the remedies provided by the Sales Tax Act. It was further observed that "there must be something more in a case to warrant the entertainment of a petition under Art. 226, something going to the root of the jurisdiction of the Sales Tax Officer, something to show that it would be a case of palpable injustice to the assessee to force him to adopt the remedies provided by the Act. " These observations no doubt emphasise the advisability of not permitting easy resort to extra-ordinary remedies, specially in cases where statutory remedies, are available. The matter is, however, before us at the appellate stage against a decision on merits of the learned single Judge. In this connection, we cannot ignore the following observations in the case (1) relied upon by the Addl. Advocate General - "but as the High Court chose to entertain the petition, we are not inclined to dismiss the petition on this ground at this stage. " We are also of the opinion that in the present case there is no dispute of facts and the questions requiring determination relate to the interpretation of the statutory provisions. We, therefore, overruled the preliminary objection and proceeded to hear the appeal on merits. Corning to the merits, we may at once say that the decision of the case hinges upon the interpretation of sec. 3 Sub-sec. (5) of the Act and the meaning of the expression "entertainment". To clear the ground, two propositions, which are beyond controversy, may be stated as follows - (1) Where the Act itself provides a definition for the word used therein, the Court should look into the meaning assigned to the term by the Act itself for interpreting that word used in the statute. The Courts are not concerned with the presumed intention of the Legislature. The task of the Court is to get the intention of the Legislature as expressed in the statute itself. (2) The definition of "entertainment" is a definition which undoubtedly enlarges the scope of the examination. A substantial controversy is, however, joined as to the need and propriety of imposing limitation upon the wider range indicated in the definition. On this aspect, it will be useful to refer to Hariprasad Sivshanker Shukla vs. A D. Divalkar (2 ). In that case the Supreme Court was considering the definition of the term "retrenchment" and the question before it was, does the definition merely give effect to the ordinary, accepted notion of retrenchment in an existing or running industry by embodying the notion in apt and readily intelligible words or does it go so far beyond the accepted notion of retrenchment as to include the termination of services of all workmen in an industry when the industry "itself ceases to exist on a bona fide closure or discontinuance of his business by the employer ? The Supreme Court emphasised the well settled principle enunciated in our proposition no 1, considered the meaning of "retrenchment" in its ordinary acceptation and then made the following significant observations - "what is being defined is retrenchment, and that is the context of the definition. It is true that an artificial definition may include a meaning different from or in excess of the ordinary acceptation of the word which is the subject of definition; but there must then be compelling words to show that such a meaning different from or in excess of the ordinary meaning is intended. Where, within the framework of the ordinary acceptation of the word, every single requirement of the definition clause in fulfilled; it would be wrong to take the definition as destroying the essential meaning of the word defined. " Reference may also be made to Calico Mills Ltd. vs. State of Madhya Pradesh and others (3) wherein the liability to tax under the C. P. and Berar Entertainments Duty Act (30 of 1936) came up for determination wherein the terms "entertainment", "admission" were similarly defined. After noticing the definitions, the Bench observed, "now, it will be seen that the definitions given in section 2 of 'entertainment', 'payment for admission to an entertainment' are not precise. They are inclusive definitions. The terms must, therefore, first be understood in their ordinary meaning and then in their enlarged meaning given by the definitions. It is well settled that the word 'include' is used in interpretation clauses where it is intended that while the term defined should retain its ordinary meaning, its scope should be widened by specific enumeration of certain matters which its ordinary meaning may or may not comprise so as to make the definition enumerative, and not exhaustive, and when it is so used these words or phrases, must be construed as comprehending, not only such thing as they signify according to their natural import but also those things which the interpretation clause declares that they shall include. Again, where a term is interpreted in a statute as 'including' the comprehensive sense is not to be taken as strictly defining what the meaning of the word must be under all circumstances but merely as declaring what things should be comprehended within the terras where the circumstances require that the should. The natural import of the term 'entertainment' is amusement and gratification of some sort. The term connotes something in the nature of an organised entertainment. This is evident from the fact that the Act was enacted to provide for the levy of a duty in respect of admission to the theatres, cinemas and other places of public entertainment. Therefore, an entertainment to come within the definition of section 2 (b) and of the provisions of the Act must be some exhibition, performance, amusement, game or sport for the purpose of entertainment, that is, for affording some sort of amusement and gratification to those who see or hear it. " The Bench further observed - "the C. P. and Berar entertainment Duty Act, 1936, is closely on the lines of the English Act of 1936 at least so far as the charging provisions and the definition clauses are concerned. The practice of display of fabrics, cloth, costumes and dresses by mannequin is very common in England and has existed for years. It is not a new one. But we have not been able to find any English case where a mannequin parade held independently or as a part of an exhibi-bition of fabrics, dresses etc. was held to be an entertainment in respect of which duty was payable under the Act of 1916. " It may be noticed here that the Bench took into consideration the preamble of the Act and the absence of any decision holding exhibition of fabrics and dresses as entertainment. In order to have an accurate idea of the meaning of the word "eater-tainment" in its ordinary and general acceptation, we may also refer to Butterwor-ths "words and Phrases" legally defined. There it has been stated "an entertainment to come within the provisions of the Finance (New Duties) Act 1916 (repealed) must be some 'exhibition performance, amusement, game or sport' provided, though not necessarily by the owner of the place of entertainment, for the purpose of entertaining those who pay to see or to hear it. " Venkataramaiya, similarly, in "law Lexicon" states, "entertainment" is a word of general import. In common parlance, it includes cinema shows; dramatic performance, etc. In Chambers 20th Century Dictionary, the meaning of this word is 'a performance or a show intended to give pleasure'. In Ananthakrishna Iyer's "law Terms and Phrases", "entertainment" has been stated natural import of the term is amusement and qualification of some sort. The term connotes some thing in the nature of an organised entertainment. " The emphasis evidently is upon some kind of organisation to provide amusement.
(3.) IN the light of the principles annunciated in the cases and the meanings assigned to the word "entertainment" in the various books referred to above, and having regard to the preamble of the Act, we have no hesitation in coming to the conclusion that to bring an exhibition into the definition of "entertainment" a continuous process of performance may not be necessary but it is essential that the exhibition should be displayed with a view to provide amusement or gratification of kind to the visitors and the fact that some persons might derive subjective gratification from exhibition, though not arranged for that purpose, is not relevant. The learned single Judge conveyed the same idea when he made the observations that the exhibition of articles can come within the definition of "entertainment" only when they are displayed with a view to provide amusement or gratification of any kind to the visitors who go and see that display and that they do proper amusement to them. In proceeding to judge the case in the light of the above principles, it becomes necessary to have a precise appreciation of the concept of "museum". In Encyclopaedia Britannica, Volume 15, page 964, under the head "purposes and Activities" it has been stated as follows - "in any case, the most important fact to be determined about a museum is its purpose. . . . . . Education may be considered the foremost purpose of the museum. . . . . . There must also be an appeal, particularly an aesthetic appeal. . . A museum must also serve as an archive for objects that must be protected from destruction or loss because they are precious, rare, significant or indispensable for research. " I Similar ideas have been expressed in other Dictionaries and Books of Reference, although jit has been noticed that the museum may incidentally provide amusement to some. Reference may also be made in this connection to exhibit "k" referring to the recommendations of the Central Advisory Board of Museums dated 28-2 66 and Government of India's decision to accept some of them. The Board in making the recommendations referred to the definition of "museum" as adopted by a Special Committee of the American Association of Museums in June, 1962, and observed, "the Board generally agrees with this definition and considers that in view of the great part which museums play in visual educational museums in India should be treated as educational institutions and not places of entertainments. " This recommendation also is consistent with the idea of museum as derived from the various books of reference. Having taken into account the above concept and the purposes of museum and the organisation of the museum by a charitable trust which was brought about by the Maharaja of Jaipur having relinquished his right, title and interest in a large number of valuable pictures, paintings, portraits, works of art, several caskets, silver ware, china ware, cut glass, books of art, ornament pieces, ivory ware etc. and the association of the Vice Chancellor as an ex-ofiicio trustee of the trust, we are wholly unable to accept that the trust is organising a museum to provide entertainment or amusement. In our opinion, the trust's dominant idea is to fulfil above mentioned traditional purposes of museum and not to create it as a place of entertainment. It may be that some visitors might derive entertainment or amusement but that may be incidental. On the analogy of the observations made in Calico Mills Ltd. (3) in connection with the exhibition of fabrics, dresses etc. We might also observe that although museums have been in existence for centuries and although there are statutes providing for levy of entertainment tax in this country and in other countries also, we have not been able to find any case where a museum was held to be entertainment in respect of which tax was payable on the admission fees. During the course of arguments the counsel for the parties made reference to entry 62 in List II of the Seventh Schedule as also some other entries in Schedule I and II of the Constitution and some provisions of the Sunday Entertainments Act,1932, but we do not think it necessary or useful to make detailed references to them as they do not provide any assistance in the determination of the controversy before us. ;