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Judgment
Krishn Kumar Lahoti, J.—This appeal is directed against an order dt. 14.7.1999 in W.P. No. 4436 of 1998 by which a writ petition preferred by the respondent was allowed and it was held by the single Bench that the population of Bina-Itawa, at the relevant time; before 1999, was less than 50,000 and the compounding duty payable at the relevant time u/s 4(2)(d) of the M.P. Entertainments Duty and Advertisements Tax Act, 1936 (hereinafter referred as ''Entertainment Tax Act'') was payable @ 25% of the entertainment duty, calculated on full seating capacity of cinema hall. This order has been assailed by the appellants on the ground that by notification dt. 3.1.1949, under sub-section (2) of section 1 of the Entertainments Tax Act, the State Government had extended the provision of Entertainments Tax Act to the Bina Railway Colony, so the aforesaid colony should he included in the local area of Bina-Itawa so the rate of 30% was applicable in the matter and not of 25%. Stating aforesaid it was submitted that the order passed by the Single Bench may be set aside.
The short question involved in this appeal for consideration of this Court is whether the railway colony of Bina could have been clubbed with the population of Bina-Itawa municipal area for the purposes of calculating compounding duty u/s 4(1)(d) of the Entertainments Tax Act. To appreciate the aforesaid, it would be appropriate if factual position in the case is stated. Respondent is a Proprietor of Bharat Talkies in Bina, District Sagar. He was given facility of paying compounding duty as per section 4(2)(d) of the Entertainments Tax Act in lieu of entertainment duty. There were several slabs for payment of compounding duty. The relevant two slabs in the present case are (i) the population of the place between 25001 to 50000 on which compounding duty was 25% of the entertainment duty calculated on full seating capacity and (ii) for the population of the place between 50,000 to 1,00,000,30% of the entertainment duty calculated on full seating capacity was payable. As other slabs are not relevant in the present case, so these are not referred herein. The respondent was paying compounding duty @ 25% of the slab treating that the population of the Bina-Itawa municipal area was less then 50,000 so 25% of the duty of the full capacity was payable, but, the appellants herein had issued an order dt. 24.12.1997 by which it was held that in Bina-Itawa Township, Railway Colony Bina was included, so after inclusion of the aforesaid colony, total population of the area was 50,243 and slab of 30% was applicable. This order had caused to the respondent to file writ petition before the High Court.
The learned Single Judge considered various provisions of the Act and found that u/s 5 of the M.P. Municipalities Act, no notification was issued for inclusion of Railway Colony, Bina in Bina-Itawa municipal area, so the population of the railway colony could not have been taken into consideration for ascertaining the compounding duty and the slab of 25% will be applicable and accordingly allowed the writ petition and quashed the order dt. 24.12.1997.
To appreciate the contentions of the appellants that vide notification dt. 3.1.1949, the provision of the Entertainments Tax Act were made applicable to Bina Railway Colony area, are concerned, we have to see the relevant provisions for applicability of the aforesaid slab. The relevant provisions of the Entertainments Tax Act are section 2(cc) which defines Local area, reads thus:
Definitions.- In this Act unless there is anything repugnant in the subject or context-
(cc) "Local Area" shall mean a Municipal Area/Notified Area/Town Area within the meaning of the Madhya Pradesh Municipalities Act, 1961 (No. 37 of 1961.) or Special Area within the meaning of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhinlyam, 1973 (No. 23 of 1973) or a Cantonment within the meaning of the Cantonment Act, 1924 (No. 2 of 1924) or a village within the meaning of the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959)
Section 2(dd) reads thus:
Definitions.- In this Act unless there is anything repugnant in the subject or context.
(dd) "population" shall mean the urban agglomeration population according to the latest official census of the place, city, town or the locality concerned.
Section 4(2)(d) reads thus:
Method of levy.-(1) xx xx xx
(2) The State Government may, on the application of a proprietor of any entertainment other than entertainment by V.C.R. in respect of which entertainments duty is payable u/s 3, allow such proprietor to pay by one of the modes specified hereunder as it may think fit, in such manner and subject to such conditions as may be prescribed, the amount of the duty due, namely:
(d) by compounding duty, in lieu of the duty chargeable u/s 3 in such manner and subject to such condition as may be prescribed calculated in accordance with the method mentioned in the table below:
Provided that the amount of compounded duty shall be calculated at the rates mentioned in column (3) for 90 shows in a month only irrespective of number of shows which may be exhibited in that month.
Section 2(dd) of the Entertainments Tax Act specifically provides that the urban agglomeration population according to the latest official census of the place, city, town or the locality concerned. The municipal area has been defined in sub-section (18-a) of section 3 of the Municipalities Act which reads thus:
(18-a) "Municipal area" means the smaller urban area or the transitional area, as the Governor may, by public notification, specify, in accordance with the provisions laid down in Section 5 of this Act.
Section 5 of the Municipalities Act provides thus:
Constitution of Municipal Councils and Nagar Panchayats. -
(1) There shall be constituted:-
(a) a Municipal Council for a smaller urban area; and
(b) a Nagar Panchayat for a transitional area, that is to say, an area in transition from a rural area to an urban area:
Provided that a Municipal Council or a Nagar Panchayat as the case may be, may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment or a group of such establishments in that area and such other factors as he may deem fit, by public notification specify to be an industrial township:
Provided further that when an area is notified to be a transitional area, the Gram Panchayat haying jurisdiction over such area shall continue to function until a duly elected Nagar Panchayat is constituted under this Act.
(2) In this section, ''a smaller urban area'' or ''a transitional area'' means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors, as he may deem fit, specify, by public notification for the purposes of this Act.
The aforesaid provisions specifically provide that the municipal area shall be the area as the Governor may, by public notification, specify, in accordance with the provisions laid down in Section 5 of the Act. There is nothing on record to show that the Railway Colony of Bina was ever notified u/s 5 of the Municipalities Act as the municipal area. On the contrary, an earlier notification dt. 9.3.1984 is on record which was published in the gazette dt. 12.3.1984 in which in Ward No. 21 and 22 of Bina municipality area excluding railway area was included in the municipal area of Bina-Itawa, meaning thereby that the railway area was specifically excluded form the local area of Bina-Itawa municipal area. No other notification is brought on record to show that u/s 5 of the Municipalities Act, the railway area was notified as local area of Bina-Itawa. So far as notification dt. 3.1.1949 is concerned, the provisions of the Entertainments Tax Act were extended to the Bina Railway Colony, but, for the local area of Bina, such population was not agglomerated in the area of Bina-Itawa. In absence of any notification u/s 5 of the Municipalities Act, the population of the railway colony could not have been included in the local area of Bina-Itawa municipal area. Learned Single Judge after due appreciation of the relevant provisions has found that the population of the railway colony could not have been agglomerated in Bina-Itawa municipal area and after excluding the aforesaid population, the population of Bina-Itawa municipal area, as per the census of 1991 was 41,612 and accordingly slab of 25% was applicable in the matter. Though learned counsel appearing for the appellants/State submitted that in the year 1999, the provisions of the Entertainments Tax Act has been amended and in view of the provisions as contained in amendment Act of 1999 the respondent was liable to make payment of entertainment duty, but, in the present case the dispute is of prior to 1999 and until unless the aforesaid provisions are made applicable retrospectively, the provisions of amendment Act 1999 shall not be applicable in the present case. In the impugned order, we do not find any error warranting our interference in writ appellate jurisdiction. This appeal is found without merit and is accordingly dismissed.