Gujarat High Court
Rameshbhai vs State on 30 April, 2012
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Gujarat High Court Case Information System
Print
SCA/8460/1990 17/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8460 of 1990
For
Approval and Signature:
HONOURABLE
THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA
HONOURABLE MR.JUSTICE
J.B.PARDIWALA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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RAMESHBHAI
K KADIYA - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance :
MR
MB GANDHI for
Petitioner(s) : 1,(MR SR SHAH) for Petitioner(s) : 1,MR CHINMAY M
GANDHI for Petitioner(s) : 1,
MS. SHRUTI PATHAK, ASSTT.GOVERNMENT
PLEADER for Respondent(s) : 1 -
4.
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CORAM
:
HONOURABLE
THE ACTING CHIEF JUSTICE
MR.BHASKAR
BHATTACHARYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 30/04/2012
CAV
JUDGMENT
(Per : HONOURABLE MR. JUSTICE J.B.PARDIWALA) By way of this writ application under Article 226 of the Constitution of India, the writ-petitioner, an owner of a cinema, has prayed for the following reliefs:-
(A) Be pleased to declare sub-section (1) of Section 9 of the Gujarat Entertainment Tax Act, 1977 as ultra-vires being violative of Articles 14 and 19 of the Constitution of India;
(B) Be pleased to issue a writ of mandamus and a writ of certiorari and/or any other appropriate writ, direction and order quashing and setting aside the order passed by the Prescribed Officer, Collector and the Commissioner of Entertainment Tax vide Annexures "K", "K.1"
and "L";
(C) Pending hearing and final disposal of the writ petition, be pleased to stay the implementation, effectuation and operation of the impugned orders
- Annexures "K", "K-1" and "L" and an ex-parte interim order to the same effect may please be granted;
2. The facts relevant for the purpose of deciding this petition may be summarised thus:
2.1 The petitioner is the proprietor of a cinema, known and recognized as "Apsara Cinema" at Modassa, Dist. Sabarkantha. Petitioner seeks to challenge the vires of Section 9 of the Gujarat Entertainment Tax Act, 1977 (for short "the Act") as well as the order of assessment and re-assessment and imposition of penalty passed by Mamlatdar-cum-Prescribed Officer i.e. respondent No.4 herein, dated 31.7.1989 as well as order passed by respondent No.3, the Collector of Entertainment Tax, Himmatnagar dated 27.3.1990, and the order passed by the Commissioner of the Entertainment Tax, State of Gujarat, respondent No.2, in Revision dated 4.10.1990.
2.2 At the very out-set Mr. M.B. Gandhi, learned counsel appearing for the petitioner made a statement that he is not pressing the prayer so far as challenge to the Constitutional validity of Section 9 of the Act is concerned. He submitted that he is confining his challenge to the legality and validity of the impugned orders passed by the authorities below so far as the assessment, re-assessment and imposition of penalty under the Act is concerned.
2.3 In view of the fact that the prayer in so far as challenge to the Constitutional validity of Section 9 of the Act has been given-up and the challenge is now confined only to the impugned orders, we shall look into the legality, validity and propriety of the orders considering the following facts.
(i) The Deputy Collector, Modassa Division paid a surprise visit to the cinema of the petitioner on 18.1.1988 when the fourth show of the film was in progress at around 21.45 hours. A Hindi feature film "Sindur" was being exhibited. It is the case of the petitioner that the fact that the Deputy Collector paid surprise visit at 21.45 hours is very much evident from visit book maintained by the Deputy Collector, Modassa, wherein it has been stated that (i) the visit started at 21.45 hours on 18.1.1988 and (ii) copy of the statement recorded by the Deputy Collector goes to show that the statement of the petitioner was recorded at 21.45 hours and was completed at 21.58 hours. According to the petitioner, both the above referred documents bears the signature of the Deputy Collector and therefore, it is apparent that the inspection commenced at 21.45 hours. According to the petitioner, despite this fact, more particularly with regard to the time of the surprise visit, it is wrongly stated in the show cause notice that the visit took place at 23.03 hours on 18.1.1988.
(ii) The accounts of the sale of tickets in Form No. 17 vide Rule 17 Clause 4 of the Rules is required to be entered in Form No. 17 within 90 minutes from the commencement of the show vide Rule 14 Clause 4 of the Gujarat Entertainment Tax Rules, 1979. Since the surprise visit commenced at 21.45 hours, it was about 30 minutes of the film that had been completed from the commencement of the show.
(iii) It is also the case of the petitioner that from the show cause notice as well as from the orders passed by the relevant authorities it is evident that issuance of tickets at the time of surprise visit was going on and it was not closed. According to the declared timings the fourth show would start at 21.45 hours and the entering into the account of the sale of tickets in Form No.17 would be required to be made within 90 minutes from 21.45 hours. In short, within 90 minutes from 21.45 hours the necessary details in Form No. 17 has to be filled-in.
(iv) According to the petitioner, when the surprise visit took place, 90 minutes were not completed from the start of the show and therefore, there was no breach and or violation of non-maintaining or non-entering into the account in Form No.17 with regard to sale of the tickets at that time on the relevant day.
(v) At the time of surprise visit at 21.45 hours, the ticket books of all the classes, namely Balcony, Upper and Lower were immediately seized by the Deputy Collector from the person issuing the tickets from the booking office and at the same time in Form No. 17 of the fourth show of that day, an endorsement was made that no entry should be made in Form No.17 of the fourth show.
(vi) According to the petitioner, at the time when the ticket books were taken over, few tickets of balcony were already issued as well as few tickets in the upper class and the lower class were also issued from the said book, which was taken over by the Deputy Collector. The spectators were queuing and demanding the tickets and therefore, the Deputy Collector was requested to permit the petitioner to issue the tickets and to return the said three ticket books to the petitioner for issuing the tickets or to permit the petitioner to issue tickets from another ticket book, but the petitioner was not permitted to issue any ticket even though according to the petitioner there was a line of spectators for all the three classes awaiting for the issuance of the tickets.
(vii) It is also the case of the petitioner that he repeatedly requested the Deputy Collector that since the spectators are waiting in queue for the tickets he may be permitted to issue the tickets or the spectators may be permitted to enter the auditorium so that the spectators may not have to go back home and at the same time the petitioner would also not lose business and no loss would entail to the Government so far as entertainment tax is concerned.
(viii) Under the circumstances, the Deputy Collector and the person accompanying him directed the petitioner that he might permit the spectators to enter the auditorium after collecting the sale price of the ticket including the tax and same be taken into account on completion of the inspection. According to the petitioner, thus the spectators in respect of all three classes were permitted to enter the auditorium. According to the petitioner, certain number of tickets were already issued from the ticket books for all the three classes and therefore, after tally of the actual physical verification of the auditorium with the total number of persons present in each class of the auditorium, the number of tickets already issued from the three ticket books was required to be deducted. Under these circumstances few spectators were permitted to enter the auditorium on payment of charges in the respective classes.
(ix) Thereafter, the Deputy Collector started recording statement of the spectators and at that point of time, without any physical verification of the auditorium it was not possible to make any statement as to how many spectators were there in each class of the three classes. Under such circumstances, the Deputy Collector directed for physical verification of the auditorium in each one of three classes, and the presence of the spectators in each class was noted by him. However, the Deputy Collector completely ignored the fact that because of non-permission to issue tickets, certain spectators were permitted to enter the auditorium and this fact was not highlighted by the Deputy Collector while making report to the Collector.
(x) Upon the report of the Deputy Collector, the Collector, Entertainment Tax, Himmatnagar, issued a show cause notice dated 2.3.1988. In the show cause notice the Collector alleged that on physical verification of the House, 81 spectators were found without tickets in balcony and similarly 4 spectators were found without tickets in upper class and 14 in the lower class.
(xi) The show cause notice was replied bringing it to the notice of the Collector that the tax was duly paid so far as the spectators who were found watching the movie without tickets, as they were permitted to enter without tickets under the circumstances stated hereinabove on the relevant date on which the return was to be filed and the tax was to be paid.
(xii) The Collector passed an order dated 25.5.1988 holding that there were 85 spectators without tickets watching the film and therefore, the petitioner must have allowed 85 persons without tickets every day beginning from 19.1.1985 till 18.1.1988 i.e. for 1095 days and accordingly assessed the reassessment of the entertainment tax to the tune of Rs. 2,35,59.50 and imposed penalty of an equal amount.
(xiii) Being aggrieved by the said order, the petitioner preferred a Revision Application before the Commissioner of Entertainment Tax. One of the contentions taken up by the petitioner before the Commissioner of Entertainment Tax was that the Collector not being the prescribed officer under the Act had no power and jurisdiction to pass any order under the provisions of Section 9, Clause (1) and Section (9) Clause (3) of the Act.
Accordingly, the Commissioner set aside the order of the Collector and directed that the prescribed officer shall issue fresh show cause notice giving an opportunity of hearing and decide the matter afresh.
(xiv) Thereafter, the prescribed officer, Modassa issued fresh show cause notice dated 6.1.1989. The show cause notice was replied by the petitioner on 16.5.1989. In the reply to the show cause notice, the following aspects were high-lighted by the petitioner.
(a) that no specific date was stated from which the re-assessment was to be made;
(b) the show cause notice was silent so far as from which date to which date the assessment was proposed to be made and therefore, there was non-compliance with Rule 15 as well as Form No.15;
(c) the time of inspection shown in the show cause notice is contrary to the visit book and it was also pointed out that since the visit had taken place at 21.45 hours, no question of filling in Form No.17 at the time of visit would arise;
(d) it was also pointed out that since the inspection had started before the completion of 90 minutes from the commencement of the show, it was not necessary and not possible to fill-in Form No.17 and therefore, there was no contravention of Rule 17, Clause 4;
(e) since Deputy Collector at the time of visit made an endorsement in form No.17 that no entry should be made, it was not possible for the petitioner to make any entry with regard to sale of tickets of the fourth show and therefore, on one hand when the petitioner was directed not to fill-in the form, it could not have been made a ground of not maintaining the account and entering the account in form No.17 for that particular show;
(f) it was also pointed out that prior to 18.1.1988, many inspections were carried out by the Deputy Collector and the Deputy Commissioner of Entertainment Tax, but no illegality or irregularity was noticed and therefore, for the period prior to the inspection by the Deputy Commissioner on 23.11.1987, reassessment could not have been made. It was also pointed out that since the ticket books had been taken away by the raiding party, further tickets could not be issued and recorded in the form, in view of the instructions given by the Deputy Collector and his staff.
It is the case of the petitioner that none of the grounds raised in the reply to the show cause notice was taken into consideration and the Mamlatdar-cum-Prescribed Officer proceeded to pass an erroneous and illegal order.
2.4 Feeling aggrieved by the order of the Mamlatdar-cum-Prescribed Officer, petitioner preferred appeal before the Collector. The Collector, vide order dated March 27, 1990, dismissed the appeal and confirmed the order passed by the Mamlatdar-cum-Prescribed Officer. The order passed by the Collector dismissing the appeal was further challenged by filing a revision application before the Commissioner and the Commissioner also vide order dated October 4, 1990 rejected the Revision Application.
2.5 It is at that stage that the petitioner was left with no option but to come before this Court by filing this writ application challenging legality and validity of the orders passed by the authorities below.
3. The petition has been opposed by the respondents by filing affidavit-in-reply. The stand taken in the affidavit-in-reply is as under.
3.1 On 18.1.1988, responsible officer of the cadre of Sub-Divisional Magistrate and Deputy Collector, Modassa made a sudden and surprise visit for the purpose of inspection of Apsara Cinema, near Modassa. During the inspection 81 spectators were found watching the movie sitting in balcony without tickets. In upper class 66 spectators were watching, out of which four were without tickets and in the lower class 26 spectators were watching the movie and all had tickets. Therefore, during the surprise inspection, total 85 spectators were found without tickets in the cinema.
3.2 According to the respondents, this fact has been admitted by the Proprietor of the cinema i.e. the petitioner herein, at the time of inspection. According to the respondents, as per the provisions of Gujarat Entertainment Tax Act, 1977 and Entertainment Rules, more particularly under Rule 17, clause (4), the Proprietor of the theater has to fill-up the details in form No. 17(A) within 90 minutes from the start of the show. It is the case of the respondents that in the present case, without filling up form No. 17(A), the spectators were permitted to watch the movie without tickets. It is the case of the respondents that it is not true as suggested by the petitioner that the Deputy Collector and his staff told the petitioner that he may permit the spectators to enter the auditorium and watch the movie. In all 85 spectators were found watching the movie without tickets and statements of such persons without tickets were recorded with time and date. According to the respondents, the Deputy Collector conducted the inspection by fully complying with the provisions of the Act.
3.3 According to the respondents, the statement of the petitioner as Proprietor of the cinema was recorded at the time of inspection and he admitted in the statement that spectators were allowed to watch the film without ticket. According to the respondents, the counter-foils of the tickets which were kept with the door keeper did not tally with the number of spectators present at the time of inspection. In the statement of the petitioner, the petitioner has admitted that when the counter-foils were asked from the door-keeper, only 14 counter-foils were found. Three tickets were given to the employees and therefore, in all 17 tickets were torn from the ticket book. According to the respondents this goes to show that tickets were not issued to the spectators as per the number of spectators found sitting in the auditorium.
3.4 It is the defence of the respondents that the order passed by the Collector dated 25th May, 1988 under Section 15 of the Act is just proper and legal. According to the respondents, the Prescribed Officer had issued show cause notice under Section 15 of the Act, read with Section 9 of the Act for assessment and re-assessment with penalty. Though the Deputy Collector of the Entertainment Tax inspected the cinema on 23.11.1987, but that does not mean that the assessment should be made only from that day. According to the respondents under Section 15 of the Act, there is a provision for assessment for a period of 3 years from the date of inspection.
3.5 According to the petitioner, the order passed by the authorities are proper, valid and legal and no interference is warranted as there are concurrent findings of three authorities.
4. Contentions of the petitioner:
4.1 Mr. M.B. Gandhi, learned Senior Counsel appearing for the petitioner vehemently submitted that the decision of all the authorities, namely
- the Mamlatdar-cum-Prescribed Officer, the Collector and the Commissioner of Entertainment Tax is tainted with administrative bias, inasmuch as the first order was passed by the Collector though he had no jurisdiction and when the first order passed by the Collector was set aside for want of jurisdiction, the Commissioner observed that otherwise on merits the order passed by the Collector was just and proper. According to Mr. Gandhi, if the Commissioner remands the matter with such observations, then in that case the fresh hearing would be just an empty formality as the Mamlatdar-cum-Prescribed Officer would definitely get influenced by the observations made by the Commissioner.
4.2 According to Mr. Gandhi, even if re-opening of the assessment is ordered under Section 9 of the Act, the reassessment can be made only for a period of 3 years in view of Rule 15 of the Rules, which reads as under:-
"Rule 15 - Assessment or reassessment of tax under Section 9 may be made within a period of 3 years from the date the tax would have been payable."
Thus, the assessment or reassessment under the provisions of Section 9 could be made within a period of 3 years only and the period has to be reckoned from the date the tax would have been payable. According to Mr. Gandhi, the assessment and reassessment can be made for 1095 days, but the question is from which date to which date that the period is to be reckoned with. According to Mr. Gandhi, the surprise visit took place on 18.1.1988 and the show cause notice was issued on 6.1.1989. Under Rule 15, the period of 3 years would begin from the date of the show cause notice which is 6.1.1989, and so far as going back by 3 years is concerned, reassessment could be made only from 6.1.1986 and not prior to that. According to Mr. Gandhi, reassessment from 19.1.1985 to 6.1.1986 would be barred by limitation.
4.3 According to Mr. Gandhi, learned counsel for the petitioner, the tax would become payable when the assessment and reassessment is made. In the present case, the assessment of the tax said to have been escaped, is made on 31.7.1989 and therefore, from that day, going back 3 years, the reassessment could not have been made beyond 31.7.1986. According to Mr. Gandhi, the amount of reassessment as well as penalty for the period between 19.1.1985 to 31.7.1986 would be barred by limitation.
4.4 It is submitted by Mr. Gandhi that the imposition of penalty to the extent of equal amount of tax assessed in the present case is also illegal, without any authority and contrary to the settled position of law. Mr. Gandhi has relied upon an un-reported judgment of this High Court, rendered in SCA No. 3213 of 1987. Mr. Gandhi has relied upon the observations made by this High Court in the above referred case, which is reproduced below:-
"........On plain reading of the above sub-section 9(3) it is clear that the Prescribed officer making the assessment and reassessment under sub-section (1) would impose penalty if he satisfies that the proprietor was guilty of mis-statement or suppression of fact."
".....Unless the Prescribed officer reaches the conclusion that the proprietor was guilty of willful misstatement or suppression of facts he is not competent to levy penalty under that sub-section. To put it differently the jurisdictional facts regarding willful mis-statement or suppression of facts must be laid before exercise of power under section 9(3) of the said Act"
"....It is further observed that:- In the show cause notice this expression have been reproduced but that is neither here nor there because what is important is that the prescribed officer must record a finding of fact which alone would entitle him to exercise the justification under Section 9(3) of the said Act. Since the authority has not come to the positive conclusion that the petitioner was guilty of willful misstatement or suppression of fact we have no hesitation in concluding that the impugned orders levying penalty cannot be sustained."
Relying on the observations made by the Division Bench of this Court while deciding SCA No. 3213 of 1987 referred to above, Mr. Gandhi submitted that in the present case also neither in the show cause notice nor in the order passed by the Mamlatdar-cum-Prescribed Officer he has arrived at an independent conclusion that there was suppression of facts or wilful mis-statement of any fact in the returns filed by the petitioner. According to Mr. Gandhi, the assessment and reassessment is made on the basis of inferred and presumed facts and therefore, the Prescribed Officer could not have arrived to the conclusion with regard to mis-statement of fact or suppression of fact for the purpose of levying penalty under Section 9 clause (3) of the Act.
4.5 Mr. Gandhi strenuously urged that the charge levelled against the petitioner to the effect that 85 persons were not issued tickets and were allowed to watch the film is baseless and false. According to Mr. Gandhi, tickets were issued to all the persons and as per the Rules and Regulations, within 90 minutes of the show, form No.17(A) is required to be filled-in. The show started at 9.30 P.M and therefore, 90 minutes were still available to get the form filled-in. However, within about 15 minutes of the start of the show, orders were passed by the authority who inspected the theater by making an endorsement in Form No. 17(A) that no further details be noted in the register.
4.6 According to Mr. Gandhi, though in form No. 17(A) entry was not allowed to be made, but on the relevant date tax was paid and the self-assessment form was also filled-up. An amount of Rs. 363/- was deposited with the challan. Not only that but for entire period of seven days i.e. from 15.1.1988 to 21.1.1988, the total tax liability was also discharged by the petitioner by paying an amount of Rs. 4,880.30. According to Mr. Gandhi, once the theater is checked and the officers put in their signatures, in that case if anything is found contrary to the Rules or Regulations thereafter, then the authority has no power to go beyond the last checking date. Lastly, Mr. Gandhi very vociferously contended that the entire enquiry conducted against the petitioner is not only tainted with malafides, but can be termed as in complete violation of the principles of natural justice. According to Mr. Gandhi, neither Mamlatdar-cum-Prescribed Officer, nor the Collector permitted the petitioner to cross-examine the persons whose statements were recorded, to the effect that tickets were not issued to them. According to Mr. Gandhi, a bare look at the statement would suggest that except the name of the person, there is no other detail worth the name so as to identify a particular person. The manner in which the statements have been recorded does not inspire confidence worth the name. Mr. Gandhi contended that even the copies of the statements of such persons were not supplied though requested. According to Mr. Gandhi, in a quasi-judicial proceedings it is necessary to supply all the documents relied upon for the purpose of a fair and impartial enquiry and an enquiry cannot be conducted at the back of the person. Mr. Gandhi submitted that a specific ground to this effect was taken before the Commissioner, but the Commissioner also has turned a blind eye to this patent irregularity in the conduct of the enquiry going to the root of the matter.
Contentions of respondent:
5. Learned AGP Ms. Shruti Pathak appearing for the respondents submitted that the orders are passed on findings of facts recorded by the adjudicating authority and re-appreciated and confirmed by the appellate and revisional authority. She submitted that this Court, in exercise of writ jurisdiction, may not undertake re-appreciation of evidence and may not disturb the findings of fact which have been arrived at by the Appellate and Revisional authority, more so when it is supported by evidence and the conclusions cannot be said to be perverse. Ms. Pathak went to the extent of submitting that this petition in substance is a petition under Article 227 of the Constitution as three authorities below have looked into the matter and thereafter the matter has reached before this Court. Ms. Pathak submitted that as all the issues raised in this petition have been taken care of by the authorities below, this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India may not disturb the findings. Ms. Pathak submitted that in a summary enquiry of the present nature, there is no question of giving any opportunity of cross-examination to the petitioner. According to Ms. Pathak, there is no such legal obligation for giving an opportunity of cross-examining the persons whose statements have been recorded. Ms. Pathak submitted that the enquiry, which was conducted can be said to be fair, impartial and in accordance with law. She submitted that there is no merit in this petition and the same deserves to be rejected.
Analysis:
6. Having heard learned counsel for the respective parties and having gone through the materials on record, the picture that emerges is that the petitioner herein is the proprietor of a cinema known as "Apsara Cinema" situated in the city of Modassa of Dist. Sabarkantha. On 18.1.1988, a surprise visit was undertaken by the Deputy Collector of Modassa Division at around 9.45 P.M of the theater in question. As per the case of the respondents, upon verification it was found that 85 persons sitting in the auditorium were not issued tickets and were permitted to watch the film. The case set up by the authorities is that money was collected for watching the film but tickets were not actually issued with the sole intention of evading entertainment tax. Manifold contentions have been raised by the petitioner as regards violation of certain provisions of the Act as well as the Rules, but what has appealed to us is the serious complaint of the petitioner so far as the manner, the method and the mode in which the entire enquiry was conducted. We have noticed that the entire case is based on few statements of the persons said to have been watching the film without tickets on that particular day, recorded by the Deputy Collector and other officers. We have noticed that in the statements, except the name and the age and the name of the town, there is no other detail on the basis of which a person can be identified. When the petitioner right from the beginning requested the authorities that he may be permitted to cross-examine such persons whose statements have been recorded, then in that case this opportunity ought to have been given to the petitioner as a part of the principles of natural justice. There are serious allegations levelled by the petitioner that as a matter of fact, some of the persons are not even existing while statements of some of the persons are such who were actually not even present on that particular day in the theater. This could have been verified only if the petitioner would have been given an opportunity of cross-examining such witnesses. Apart from rule of audi-alteram partem, one of the facets of principles of natural justice is fairness. A statutory authority under the law is duty bound to act fairly and not to the detriment of the interest of the person proceeded against. We have noticed that even the highest authority, namely the Commissioner has over-looked this aspect. A specific ground to this effect has been taken in the memo of the revision application and even in the notes of argument, but very conveniently it seems to have been over-looked. The statements which have been recorded have been perused by us. Some of the statements are to the effect that they have actually not paid the price for the ticket because the owner is known to them i.e. the petitioner herein, whereas some of the statements are that money was paid to the door keeper, but the tickets have not been issued. On perusal of the statements we find that none of the statements inspire confidence and the entire enquiry seems to have been conducted in a slipshod manner. We find it appropriate to quote the entire ground which has been taken up in the memo of the revision application before the Commissioner. In so many words it has been stated that "neither the Mamlatdar, nor the learned Entertainment Tax Collector has allowed cross-examination of checking staff, persons who are alleged to be found in auditorium without ticket etc. though requested. Copies of statements recorded of the persons found to be without tickets have also not been supplied though requested. In a quasi-judicial proceedings it is necessary to supply copies of all documents relied upon by the Presiding Officer and an inquiry cannot be conducted at the back of the person. It is false that the statements were recorded in the presence of cinema management, at the booking office since proprietor was sitting in his office. Thus, principles of equity and natural justice are violated and the entire proceedings are illegal and liable to be quashed and set aside." In the written arguments also in so many words it has been stated as under.
"The statements recorded by Deputy Collector at the time of checking were bogus. No address of such witnesses have been mentioned i.e. of the persons whose statements have been recorded. The persons who were not present in the cinema such persons statements were recorded. None of the persons have mentioned in their statement that they were found without ticket in auditorium or seeing the film."
We are of the view that since heavy reliance has been placed by the authorities on the statements of the persons who were said to have been watching the film on that particular date without tickets, the authorities ought to have given an opportunity of cross-examining such persons and also by providing the statements which were recorded in writing. Since there is a serious lapse in the conduct of the entire enquiry and proceedings, it is difficult for us to accept the contention of Ms. Pathak, learned AGP that this Court may not interfere as the orders are passed on findings of fact recorded by the adjudicating authority and re-appreciated and confirmed by the appellate and revisional authority. We thus, allow this petition based on the aforesaid reasoning. SCA No. 8460 of 1990 is hereby allowed. The order passed by the Mamlatdar-cum-Presiding Officer dated 31.7.1989 at Annexure "K", the order passed by the Collector dated 27.3.1990 at Annexure "K-1" and the order passed by the Commissioner of Entertainment Tax, Gujarat, dated 4.10.1990 at Annexure "M" confirming both the aforesaid orders, are hereby quashed and set aside. Rule is made absolute with no order as to costs.
(Bhaskar Bhattacharya, Actg. C.J.) (J.B. Pardiwala, J.) */Mohandas Top