Article 14 of the constitution cannot be enforced on the basis of negative equality : Bombay HC quashed writ challenging the constitutionality of provisions of Bombay Entertainment Duty Act, 1923.
TITLE : Drishti Adventures Sports Private Ltd and Ors V State of Maharashtra
CITATION : W.P No 2158 of 2005
CORAM : Hon’ble justice G.S Kularkani and Hon’ble Jitendra Jain
DATE: 4th December, 2023
INTRODUCTION :
A writ petition was filed under Article 226 to strike down Sectio 3(1) and Section 3(5A) of the Bombay Entertainment Duty Act,1923 as ultra vires of the constitution on the ground that activities about water based activities and amusement park activities are not distinguished and hence cannot be taxed.
FACTS :
The respondent passed a resolution granting a lease of 500 sq. mts of land to Maharashtra Tourism and Development Corporation for the development of water sports activities. The lease was granted for a period of 10 years to develop manage and operate water sports activities on the basis of terms and conditions set.
On 14th March 2002, the petitioners addressed a letter to the MTDC requesting exemption from entertainment duty payment. On 26th March 2002, the petitioners addressed a letter to the respondents recording that the water sports activity does not fall under the Bombay Entertainment Duty Act, 1923. On 27th March 2002, respondent issued a demand notice asking the petitioners to pay the entertainment duty of Rs.8,53,943.
The contention raised by the petitioners is that the respondents have not recovered entertainment duty from the persons purportedly carrying on/engaged in similar activities in the State of Maharashtra and therefore, under Article 14 of the Constitution of India, the petitioners are discriminated and the petitioners too should not be made liable for payment of entertainment duty on its water sports activities.
COURT’S ANALYSIS
The court held that the petitioners contention is in the nature of negative equality, for the reason that the petitioner is questioning the action of the State Government in the levy of the entertainment duty only. The court held that it is unacceptable on the face of the record for the petitioner to claim that the money levied by paid on the way of protest. Additionally, it was held that such claim is not under the scope of Article 14 as the claim is negative equality whereas Article 14’s scope is purely upon positive equality.
Secondly, on the issue of Constitutionality of the said provisions the court held that there is a clear distinction between water based activities and amusement park activities. The legislative on that matter is clear. The petition was dismissed.
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Written by- Sanjana Ravichandran