Research › Search › Judgment

Madhya Pradesh High Court · body

2002 DIGILAW 845 (MP)

Ramesh Kumar Goswami v. State of M. P.

2002-09-09

ARUN MISHRA

body2002
ORDER Arun Mishra, J. 1. Petitioner in the instant writ petition prays for relief to strike down the demand raised by Janpad Panchayat for realization of entertainment/show tax as per demand notices P/3 and P/4. 2. Petitioner submits that the petitioner is a citizen of India and resides at Khurai, district Sagar. He is the sole proprietor of Hemant Talkies which exhibits films at Khurai district Sagar within the limits of Municipal Council, Khurai. Petitioner challenges the levy as also the competence of respondent No. 3 to impose and recover entertainment tax-show tax from the petitioner. Petitioner submits that in exercise of the powers conferred by M.P. Panchayat Act section 103 (Act 7 of 1962) the State Government divided the Districts into Blocks vide notification P/1 dated 7-7-1965 published in the Madhya Pradesh Rajpatra dated 31 July 1965, in which Patwari Halka No. 50, new number is 17, has been expressly excluded from the Blocks mentioned in the notification. Thus, the petitioner submits that Patwari Circle No. 50 does not fall within the jurisdiction of Janpad Sabha or Panchayat. The Municipal Council, Khurai recovers show tax from the petitioner, one of such receipt is P/2, granted by the Municipal Council, Khurai. Under sub-section (2) of section 4 of the M.P. Panchayat Act, 1981 the State Government is empowered to divide districts into Blocks., In the notification, Patwari Circle No. 50 has been excluded from the operation of the M.P. Panchayat Act, 1962. There is no notification to the contrary so far issued under the Panchayat Adhiniyam. The demand raised of entertainment/show tax as per P/3 of a sum of Rs. 4137.30 and Rs. 3204.58 as per P/4 is illegal. Petitioner filed objection to the demand notice P/5. Chief Executive Officer rejected the objection as per order P/7 dated 8-5-1990. Thereafter Naib Tehsildar, respondent No. 5 issued demand notice dated 6-7-1990 for Rs. 2100/- for the period November 1989 to May 1990. Petitioner submits that this Court in M.P. No. 26/1997 (B.K. Marfatia vs. State of M.P.) and in M.P. No. 1269/1984 (Kum Kum Talkies Panna and another vs. State of M.P.) held that Janpad Panchayat cannot recover show tax outside its territorial limits. 3. A return has been filed by the respondent No. 3 contending that the challenge is misconceived. Janpad Panchayat has authority to impose entertainment/show tax. Now another notification R/1 dated 8-10-1990 has been issued. 3. A return has been filed by the respondent No. 3 contending that the challenge is misconceived. Janpad Panchayat has authority to impose entertainment/show tax. Now another notification R/1 dated 8-10-1990 has been issued. The decision in Kum Kum Talkies be referred to larger Bench. However, it is not disputed that the Talkies is situated in Patwari Circle No. 50, new number of which is 17. 4. A rejoinder has been filed by the petitioner pointing out that the village has been constituted under section 3 and village Khurai does not include Patwari Circle No. 17. Decision of this Court in Kum Kum Talkies P/13 has been filed and also of Shree Mohan Talkies P/14 - M.P. No. 156/94 (Shree Mohan Talkies Katni and ors. vs. State of M.P. and ors.) decided on 3rd April, 1997. 5. Learned counsel for the petitioner submits that the area in question is not included in the Janpad Panchayat area. It has been specifically excluded as per notification P/1 and the notification of village P/12 issued in the year 1994 also does not include Patwari Circle No. 17 in the village as such it should be taken that the area in question is not included in the Block Khurai, of which Janpad Panchayat, Khurai is consisted. Thus, the recovery as per the demand notices P/3 and P/4 and the order P/7 of rejection of the objection of the petitioner - be quashed. 6. Learned counsel appearing for Janpad Panchayat submits that the area in question has been included within Block Khurai as per R/1 notification dated 8-10-1990. Thus, the action is proper. No interference is called for. Notification of village is under section 3 of the Panchayat Adhiniyam 1993 is for a different purpose, not for constitution of Block. 7. Shri Ashok Agrawal, learned counsel appearing for respondents No. 1, 2, 4, and 5 has supported the stand taken by Janpad Panchayat. 8. First question for consideration is whether the area in question was included within the territorial limit of Janpad Panchayat, Khurai and if yes, till what time. The division of blocks as per notification dated 31-7-1965 P/1 indicates that though in Khurai other Patwari Circle numbers were specifically mentioned, but, Patwari Circle No. 50 was specifically excluded from area included in the Block established under section 103 of M.P. Panchayat Adhiniyam 1962. The division of blocks as per notification dated 31-7-1965 P/1 indicates that though in Khurai other Patwari Circle numbers were specifically mentioned, but, Patwari Circle No. 50 was specifically excluded from area included in the Block established under section 103 of M.P. Panchayat Adhiniyam 1962. Section 103 of the M.P. Panchayat Adhiniyam 1962 read as under: 103. Division of district into blocks. - (1) The State Government may, by notification, divide a district into blocks. (2) A notification under sub-section (1) shall specify the name by which the block shall be known and shall define the limits of the area comprised therein. There is nothing on record to indicate that this position changed upto the year 1990 when fresh notification R/1 was issued on 8th October, 1990. The Patwari Circle No. 50, new number of which is admittedly 17, was included in the block Khurai. Thus, it is clear that upto 8-10-1990 the area in question in which Hemant Talkies is situated was not included in the Block Khurai. Thus, it was out side the purview of Janpad Panchayat. Khurai. Now the position after 8-10-1990 is different. The area in question is now included in the Block and as per section 10 of the M.P. Panchayat Adhiniyam 1990, Janpad Panchayat is consisted of Blocks. Similar is the provision in section 10 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. which reads as under: 10. Establishment of Gram Panchayat, Janpad Panchayat and Zila Panchayat. - (1) There shall be a Gram Panchayat for every village specified as a village for the purposes of this Act under section 3. (2) The Governor may by notification, divide a district into blocks. The notification shall specify the name of every such block, its head-quarters and the area comprised therein. For every block there shall be a Janpad Panchayat which shall be known by the name of the block. (3) There shall be a Zila Panchayat for every district: Provided that every Municipal Corporation, Municipal Council or Nagar Panchayat constituted under the relevant law for the time being in force shall form a separate administrative unit for the area within its jurisdiction. For every block there shall be a Janpad Panchayat which shall be known by the name of the block. Thus, it is clear that the area in question is included in Janpad Panchayat, Khurai w.e.f. 8-10-1990. For every block there shall be a Janpad Panchayat which shall be known by the name of the block. Thus, it is clear that the area in question is included in Janpad Panchayat, Khurai w.e.f. 8-10-1990. Thus, in my opinion the demand raised by Janpad Panchayat, Khurai with respect to the period prior to 8-10-1990 is absolutely without jurisdiction. However, the position is different after 8-10-1990, Janpad Panchayat Khurai is entitled to recover the entertainment/show tax. 9. The Apex Court has considered the question in Radhakisan Rathi vs. Additional Collector, Durg and ors., AIR 1995 SC 1540 and held that a cinema theatre situated within the territorial limits of local municipality or a corporation can be taxed by the concerned municipality in exercise of its powers under the relevant Municipal Act. But, if the same theatre is also situated within a block duly constituted under the Panchayats Act it would fall within the territorial limits of the concerned Janpad Panchayat constituted for that block also, their Lordships further laid down that Janpad Panchayat can undertake the activities even within the local limits of municipalities which may also form a part and parcel of the block area within the jurisdiction of the concerned Janpad Panchayats. To some extent the functions of Municipalities and Janpad Panchayats may overlap but the functions for the welfare of the public even though overlapping can harmoniously co-exist and can be discharged in cooperation with each other. But, in the facts and circumstances of the case, it is clear that area in question was not included in the Janpad Panchayat, Khurai till 8-10-1990. The Division Bench of this Court has also held that if the area is not within the concerned Janpad Panchayat, recovery cannot be made. This view is taken by this Court in Kum Kum Talkies, Panna and anr. vs. State of Madhya Pradesh and ors., the decision is P/13. Another decision of Division Bench of this Court is P/14 i.e. Shree Mohan Talkies Katni and ors. vs. State of Madhya Pradesh and ors. decided on 3-4-1997. This Court laid down that if the area in question is included within the area of Municipal Council as well as Janpad Panchayat, it is open for both the parties to recover the tax. But, the position is different in the instant case, till 8-10-1990 the area in question was not included in Janpad Panchayat, Khurai. decided on 3-4-1997. This Court laid down that if the area in question is included within the area of Municipal Council as well as Janpad Panchayat, it is open for both the parties to recover the tax. But, the position is different in the instant case, till 8-10-1990 the area in question was not included in Janpad Panchayat, Khurai. No notification contrary to P/1 is placed on record by the respondents. Thus, the operation of the notification Annexure-P/1 has continued till fresh notification was issued on 8-10-1990 as per R/1. 10. Thus, the writ petition is allowed in part. It is held that the respondent; Janpad Panchayat, Khurai is not entitled to recover the entertainment/Show tax for the period prior to 8-10-1990. The demand made as per P/3 and P/4 is quashed and the order P/7 rejecting the objection is also quashed. However, Janpad Panchayat, Khurai can recover the entertainment/Show tax w.e.f. 8-10-1990. Costs on parties. Security amount, if deposited, be refunded to the petitioner.