P L D 1979 Quetta 198 (PLP)

S. No. ' Name of Cinema Locality Fixed Fixed Remarks 1. Regal Theatre. Circular Road, VI 40% Quetta. 2. Ismat Cinema. Prince, Road, Quetta. VII 35% 3. Rabat Talkies. Prince, Road, Quetta. VII 35 % 4. to 16

. (Sd.) Secretary to Government of Baluchistan. Excise and Taxation Department." The order shows that the percentage in case of the petitioners was raised to the maximum of 5 % while in case of other cinemas in the same Town was raised to 3 % only. Not in our view, but obviously this difference of 2% has been given cause to the petitioners to impugn it: Either at the outset through representations before the Governor; or then before us in this extraordinary constitutional jurisdiction. At the initial stage, the representation was presented by the petitioners on 15th October, 1973 to the Governor of Batuchistan. It is reproduced :‑ "We, the proprietors of Rabat, Regal and Ismat Cinemas, beg to submit as under :‑‑ (1) That the Secretary to Government of Baluchistan Excise arid Taxation Department vide his letter No. 1144‑38 Taxation B. O. R. date the 3rd September, 1973, informed us that the class of Rabat Talkies and Ismat Cinema has been upgraded from VIII to VII and that of Regal Theatre from VII to VI since 3‑9‑1973 without assigning any reason/ground which is arbitrarily and contrary to the provisions of law. (2) That the categories of the cinemas which have now been upgraded by the Secretary to the Government of Baluchistan, Excise and Taxation Department vide his letter under reference were determin ed by the `Special Classification Committee' headed by the Commis sioner, Quetta Division as its Chairman, the Deputy Commissioner Quetta‑Pishin, Director of Information and Director, Excise and Taxa tion Quetta, acted as its members. The `Special Classification Com mittee' keeping in dew the manners and procedures of classification of cinemas as laid down under rule 4 of the West Pakistan Entertainment Duty on Cinemas Rules, 1969 assigned the following classes as shown against each cinema,‑ Regal Theatre.................. Class VI . i e. 35 Rabat Talkies .................. Class VII i.e. 30% Other Cinemas Class VIII i.e. 25% (3) That it has been stated in the said letter that the cinema owners have offered to pay a guaranteed capacity tax around Rs. 8,80,

000. In this regard it may be respectfully submitted that the cinema owners are already paying Entertainment Duty approximately amounting to Rs. 7,31,000 during a year and welfare Cess amounting to Rs. 1,15,

000. Now with the increase in the rate of welfare Cess from paisa Ten to paisa Twenty per ticket since 3‑9‑1973, there would be another addition of Rs. 1,15,000 per annum, which would mean that the Government Revenue both from Entertainment Duty and welfare Cess will amount to Rs.9,60,000 therefore, there was no justification for upgrading categories of our cinemas. (4) That it is correct to say that the 'cinemas owners have undertaken not to claim any rebate of non‑exhibition of any show, but this offer was made on the assurance that the categories of cinemas would not be increased. This was a voluntary offer by the cinema owners so as to increase the Government Revenue at the expense of their business, therefore, there was no justification for upgrading the categories of the cinemas. (5) That the cinema owners have been asked to pay Entertainment Duty and welfare Cess at the rate of 22 shows per week irrespective of the fact whether they hold lesser number of shows or not. For instance during the sacred month of Ramazan only 14 shows are held during a week, and also some of the cinema owners close down their cinemas completely for 10 days during the month of Moharrum‑ul‑haram, but cinema owners would have to pay Entertainment Duty and welfare Cess at the rate of 22 shows per week. This is against the spirit of law and contrary to the provision of rules. Any attempt to amend the rules in this behalf would not be equitable and justifiable. (6) That we have been threatened that if we did not comply with the proposals of increase in tax, the Government might like to bring back the old system. In this respect it may be submitted that the present capacity tax system has successfully worked since 1‑7‑69 when for the first time it was adopted through West Pakistan. Apart from relieving the Cinema owners from many difficulties such as keeping stock of Entertainment Duty adhesive stamps, unnecessary visits to the Excise and Taxation Department and maintenance of accounts from show to show and checking of auditoriums by the excise staff causing inconvenience to the spectators, the present system assured fixed income to Government Exchequer. Therefore, reversion to the old method of recovery of Entertainment Duty and Welfare Cess would add much to the difficulties of the cinema owners as aforesaid. (7) That all the cinema owners enjoy the same business since cinema business is entirely dependent on the quality of Films which are screened ‑in one cinema or the other. Moreover Quetta being a small town, the cinemas are situated so close to each other that the people can reach from one cinema to the other within five to ten minutes, as such no cinema has preference of locality over other, therefore, there was no justification to assign lower class to certain cinemas and higher classes to the other cinemas for the purpose of recovery of the Entertainment Duty and Welfare Cess. In view of the circumstances stated above we humbly pray to your Excellency for fixation of ONE category in respect of all the cinemas whatever it may be. Or Rahat, Regal and Ismat cinemas may also be assigned category of 28 % as has been done in the case of majority of the cinemas of Quetta Town, which would be equitable and justifiable." It appears that on the petitioners' representation, the Government of Baluchistan vide letter No. 1923‑24‑38 Taxation 1 l/70‑Exc dated 1st Octo ber, 1974 directed the Director, Excise and Taxation Department for reclassifi cation of all the Cinemas in the Province through relevant classification com mittee. The letter is reproduced :‑ No. 1923‑24‑38 Taxation 11/77 Exc Government of Baluchistan, Excise and Taxation Department. To The Director, Excise and Taxation, Baluchistan, Quetta Subject : COLLECTION OF ENTERTAINMENT DUTY AND WELFARE TAX SYSTEM OF After due consideration it has been observed that the classification of the Cinemas in Quetta/Pishin and Sibi District is not a realistic one and as such it needs to be altered under section 6‑A(7) of the West Pakistan Entertainment Duty Act, 1958. (2) It has, therefore, been decided to reclassify all the cinemas by the various classification committees. You are, therefore, directed to take necessary steps immediately in this behalf. The existing classification ordered in this Office Memorandum No. 1144‑38 Taxation/BOR, dated 3rd September, 1973 shall continue on ad hoc basis till the finalization of the reclassification proceeding. (Sd.) 1‑10‑74 (Jahangir Shah) Secretary to Government of Baluchis tan Excise & Taxation Department. However, the upgrading made through this letter No. 1144‑38 Taxation BOR dated 3rd September, 1973 even then was kept existing on ad hoc basis till final decision of the Classification Committees. However, the Member, Board of Revenue, Balauchistan on representations of the petitioner on 6th May, 1973 had stayed further action as was to be taken on the impugned letter dated 3.9‑1973. The letter No. 1912/Regal/Entts., dated the 11th June, 1976 further shows that the petitioners' Cinemas were reclassified on 5th June, 1975 but that too only with effect from 6th June, 1975. It says :‑ To The Proprietor, Regal Cinema, Quetta. Subject : OUTSTANDING DUES ON ACCOUNT OF ENTERTAINMENTS DUTY AND WELFARE CESS NOTICE You are hereby informed that as a result of revision of classification and enhancement of percentage for payment of entertainments Duty and Welfare Cess you were required to pay weekly dues at 40 % with effect from 3‑9‑1973 but actually you were paying at 35 % in persuance of the Stay Order granted by then Member, Board of Revenue, Government of Baluchistan, Quetta. This stay order was granted in respect of your cinema till the reclassification proceedings are finalised by the Special Classification Committee. On 5‑6‑1975 your cinema was reclassified at 35 % by the Special Classification Committee but it was ordered that the said revised classification would be effective from 6‑6‑1975. (2) From the above it is clear that you paid weekly dues on account of Entertainments duty and Welfare Cess less by 5%. during the period from 3‑9‑1973 to 5‑6‑75 and as such the following amount is outstand ing against you :‑ Total No. of shows held Qustanding dues on account of less during the period 3‑9‑1973 payment by 5 %, to 5‑6‑75. 1,913 Entertainments Welfare, Cess Duty duty Rs. Rs. 31,086.23 9,565.00 (3) You are, therefore, directed to please credit the above‑mentioned outstanding dues into the State Bank of Pakistan, Quetta under the relevant heads of account within 10 days of the receipt of this Notice failing which action as required under the Law to recover the said dues would be taken against you. (Sd.) Iqbal A. Zaidi, Excise and Taxation Officer, Quetta Division, Quetta." The Memorandum No. 1106/568 DE &T dated 19th June, 1976 further shows that the reclassification dated 5th June, 1975 was not approved by the Governor of Baluchistan, who ordered for reconsideration of the recommenda tions. The letter is reproduced :‑ This is to inform you that the recommendations of 5‑6‑1975 of the Special Classification Committee which was held under tire Chairmanship of the Commissioner, Quetta Division, Quetta have not been approved by the Governor of Baluchistan who has ordered for reconsideration of the said recommendations. You are therefore requested to please attend meeting of the Special Classification Committee which will be held on 19‑6‑1976 at 10 a.m. in the office of the Commissioner, Quetta Division, Quetta. (Sd.) (Bashirahmed) Director (Secretary of Special Classification Committee, Excise and Taxation, Baluchistan, Quetta." Again on strength of the above‑said letter, dated 10th June, 1976, the Excise and Taxation Officer, Quetta asked the petitioners to pay entertainment duty for the period ranging from 3fd September, 1973 to 8th June, 1976. It was indeed the disputed period for which notices were issued as was rightly said by Mr. Basharatullah and Mr. Zaffar and indeed there is no dispute prior to 3rd September, 1973 and even after 8th July, 1976. From the facts as discussed above and the documents which have been reproduced by us and relied upon by the petitioners, we could see that from 3rd September 1973 till 31st December, 1977, the order dated 3rd September, 1973 remained intact for all purposes. It was the petitioners' case itself and so the case of respondents. However, on 31st of December, 1977, the Member II, Board of Revenue, Baluchistan passed the order in the following words :‑. "ORDER Mr. Basharatullah, counsel for the petitioners present and heard. The representative of the Department Mr. Iqbal, A. Zaidi, Excise and 40 Taxation Officer, Quetta is also present and heard. Record examined as well. (2) The brief history of the case is that on 16‑10‑1973 the above mentioned cinema owners submitted a representation to the Govern ment of Baluchistan against the enhancement of percentages made in respect of their cinemas on 3‑9‑1973 by the Government of Baluchistan under section 6‑A (7) of the Baluchistan Entertainments Duty Act, 1968 requesting that all the cinemas of Quetta Town should be treated alike on the grounds mentioned in the said representation. (3) The petitioners in their applications dated 20‑7‑1974, 21‑7‑1974 and 25‑7‑1975 addressed to the Member, Board of Revenue, Baluchistan. Quetta requested to stay the action on the Board of Revenue, Baluchis tan's Memorandum No. 1144‑38 Taxation BOR, dated 3‑9‑1973. Order was accordingly issued by the then Member, Board of Revenue vide ::.. No. 115‑38 Taxation‑11/70 dated 17‑2‑1975 and No. 30‑32‑38 Taxation II/70 dated 6‑5‑1975 respectively wherein ad‑interim stay was granted to the said petitioners till the reclassification proceedings ordered in the Board of Revenue, Baluchistan's Memorandum No. 1923‑24‑38 Taxation. II/70.Exc. dated 1‑10‑1974 were finalised. (4) On 19‑10‑1976 the said petitioners filed another review petition before the Commissioner, Quetta Division wherein the same reasons were advanced as already stated by them in their representation dated 15‑10‑1973 filed before the Governor of Baluchistan. (5) The Excise and Taxation Officer, Quetta opposed the plea taken by the petitioners against the increase in the classification of 5 % in respect of each cinema on the ground that the percentages were fixed by the Government of Baluchistan under section 6‑A(7) of the West Pakistan Entertainment Duty Act, 1958 and that the increased percentage were fixed with the prior approval of the Governor of Baluchistan and were based on the decisions taken in the various meetings with the cinema owners. (6) I have gone through the case carefully and find that ‑‑

(i) several meetings were held in the Board of Revenue between the cinema owners and the Officers of the Excise and Taxation Depart ment. 1n these meetings it was decided that the increase in the percentages may be made by 3 % to 5 % in respect of each cinema of Quetta Town. Keeping in view the locality, business, seating capacity and conditions of the cinemas of the petitioners the increase by 5% quite justified. (ii) the increase of 5 % in respect of each cinema of the petitioner was made with the prior approval of the Governor of Baluchistan under section 6‑A(7) of the West Pakistan Entertainments Duty Act, 1958. (iii) the increase of 5 % in respect of said each cinema of the petitioners was nominal keeping in view the fact that the increase was made after lapse of about four years of the first classification done in the year 1969 especially when the number of cinema goers had increased substantially due to dismemberment of One Unit and subsequent establishment of Provincial Governments with Quetta as its Capital. The increase cannot be taken as a burden especially when the cinema owners including the petitioners were not inclined to restoration of Ordinance No. VI of 1973 reviving the previous system of "One man, One ticket": This refusal was a positive proof of the fact that the increase was detrimental to their interests. (iv) The Government of Baluchistan while increasing the percentage in respect of the cinemas of Quetta Town including the cinemas of the petitioners had also increased the rate of Welfare Cess from paisas 10 to paisas 20 per ticket. In this way the petitioners lost a ,little by way of Entertainment Duty but gained a lot due to the enhancement of the rate of Welfare Cess. A comparison tatement of the entertain ments duty and welfare cess payable per show at the rate of 35%. in respect of Rabat Talkies and Ismat Cinema and 40% in respect of Regal Theatre and the Optimum Tax Capacity per show in respect of said cinemas are as under :‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ Sr. Names of cinema. Optimum Tax Entertainments Gain No. capacity of duty and Welfare the entertainments Cess payable Cinema Duty and per show. Welfare Cess per show.

1. Asmat Cinema 432.75 200.60 232.15

2. Rahat Talkies 397.50 186.48 211.02

3. Regal Theatre 325.0 170.00 135.00 Thus it is quite clear that the cinema owners were benefited due to the increase in the rate of welfare Cess whereas the Government remained in loss. (7) In view of the facts explained above there seems no justifications in accepting the plea taken by the petitioner in their petitions quoted at paisas 2 and 4 above and as such the said petitions are rejected. The stay order dated 17‑2‑1975 and 6‑5‑1975 issued by the Board of Revenue, Baluchistan are also hereby withdrawn. Recovery may be made from the petitioners, from the date the enhanced rates of percentages were enforced. Announced. 31‑12‑72 (Sd.) Malik Abdus Samad, Member‑II, Board of Revenue, Government of Baluchistan, Quttta. In the first sentence, the order shows that Mr. Basharatullah appeared for the petitioners before the Member, Board of Revenue and argued the case before him. It is really strange that at one stage the petitioners acquiesed in the jurisdiction of the Member, Board of Revenue expecting to get some favourable decision but when the order went against them, they challenged it is constitutional petitions before this Court. Besides the petitioners thrice i.e. on 20‑7‑1972, 21‑7‑1974 and 25‑7‑1975 had approached the Member, Board of Revenue for stay of the recovery as was being taken against them on letter No. 1144‑38/Tax/BOR dated 3‑9‑1973. Indeed on their request, the Member, Board of Revenue had actually stayed the action by letters . No. 115‑38/Tax/II‑70 dated 17.2‑1975 and No. 30‑32‑38/ Tax/II/BOR dated 6‑5‑1975. The record further reveals that on 19th of October, 1976, the petitioners had even filed review petition before the Commissioner, Quetta Division wherein the same reasons were taken as already advanced in their representation made on 15th October, 1973 before the Governor of Baluchis tan. We have gone through the decision of Member Board of Revenue indeed he has very elaborately dealt with the case and has given convincing reasons for his decision. We find nothing wrong with his order. We indeed fear if in these circumstances as were placed before us the petitioners could be allowed to be benefited in constitutional jurisdiction by this Court. An is evident, the petitioners has concealed the fact of the filing of review petitions dated 19th October, 1976 before the Commissioner. The para. 4 of the order dated 31st December, 1977 established that the petitioners actually had filed review petition before the Commissioner, Quetta on 19th October, 1976, wherein the same reasons were advanced as already advanced by them in their representations before the Governor of Baluchistan. Such act indeed sullied the hands of the petitioners. Besides, the Government not only intended but actually legislated an Act to review the old system "one man one tax" method of charging the entertainment duty. But the request and representation of the petitioners was not or is being brought into operation in the Province. The petitioner indeed could not be allowed to blow hot and cold simultaneously. The R petitioners as having not come with clean hands in High Court before us, wet are not inclined to give discretionary remedy as was prayed by them in our' extra ordinary jurisdiction. On the principles laid down in the cases, Abdul Wahid Khan v. Custodian of Evacuee Property, West Pakistan, Karachi and others (P L D 1966 Quetta 25) and Wali Muhammad v. Secretary, Home Department, Government of Baluchistan, Quetta and 2 others (P L D 1972 Quetta 33). In case of Abdul Wahid Khan v. Custodian of Evacuee Property, West Pakistan, Karachi and others, it is held :‑ "It is a settled principle of law and equity that a person invoking the equitable jurisdiction of the Court should come with clean hands. Anybody whose own role is not above board should not be allowed to invoke this discretionary jurisdiction. We are convinced that ,the conduct of the petitioners from the very outset has rather been dubious and shady." In case Wali Muhammad v. Secretary, Home Department, Government of Baluchistan," Quetta and 2 others, it is held :‑

"As a constitutional petition is a discretionary remedy, it is not available to the petitioner because he has not come with clean hands." For the reasons discussed above, we find that the authorities relied upon by the learned counsel for the petitioners would neither come to their help nor to rescue as being distinguishable on facts and not relevant in law.

7. However, hereinabove in clear words we have held that under subsec tion (7) of 6‑A of the Act, the Government is competent to alter classification of Cinemas, first contention of Mr. Basharatullah that the Secretary, Excise and Taxation Department Government of Baluchistan was not competent for having upgraded the petitioners' Cinemas fails. Besides, we have too observed that there was nothing wrong with the order of the Member, Board of Revenue Baluchistan; however, even for the sake of arguments, if we agree with the contention of Mr. Basharatullah that the Member, Board of Revenue was not competent for having passed the impugned order in the way he had done, even then the order dated 3rd September 1973 passed by the Secretary, Excise and Taxation Depart ment would remain in field and the petitioners .would not be benefited at all. In result, we dismiss the petition with no order as to costs in the peculiar circumstances of the petitions. M. A. K. Petition dismissed.