1979 PLP 784 (CLC)

I. MAHMUD, J.-This Constitutional petition under Article 98 of the 1962 Constitution is directed against the orders passed by the Commissioner of Karachi end the Director, Excise & Taxation, Karachi, i.e. respondents 2 and 3 respectively, levying entertainment duty tinder the West Pakistan Entertainments Duty Act, 1958 in respect of payments charged by the petitioner from the public for the use of Play Machines installed at Jabees Playland at Clifton, Karachi.

2. The petitioner Jabees Ltd. owns a restaurant and an amusement hall called 'Play land' above the K. M. C. Acquarium. The restaurant, with which we are not concerned, is a different business and is in no way connected with the 'Playland'. The petitioner installed in the amusement hall a variety of play machines and mechanical games, such as `Safari' Shooting Machines, Football Machines,. Bowling Lanes, Space Ships. Kiddie Rides, Flippers, etc. Anyone wanting to play with a machine puts a, 50-Paisa coin in the slot and thereby operates the machines and provided his amusement or entertainment. But no payment is charged from the public either for admission to the hall or from bystanders or onlookers. The machines are not operated by any member of the Management of the petitioner. The Director, Excise & Taxation, Karachi issued a show-cause notice to the petitioner as to why penalty should not be imposed for holding an entertainment without payment of entertainment duty under the West Pakistan Entertainments Duty Act, 1958 (hereinafter referred to as the Act). The petitioner showed cause and contended that the play machines were not covered by the mischief of the Act. This plea was rejected by the impugned order dated 15th December 1967 holding that 'Playland' was subject to levy of entertainment duty under section 3 of the Act, but in the situation, the said duty could be levied only under section 5(2) of the Act by a consolidated weekly payment based on return of payments at the machines. Feeling aggrieved by the said order, the petitioner filed a Revision petition before the Commissioner of Karachi under section 15 of the Act. The Revision, however, was dismissed by the second impugned order dated 5th April 1969. The petitioner has, therefore; filed this petition challenging the said orders as without jurisdiction or lawful authority.

3. Before discussing the submissions of Mr. Qamarul Islam, learned counsel for the petitioner, and Mr. Abdul Sattar Shaikh, learned Additional Advocate-General for the respondents, it will be convenient to briefly set out the pertinent provisions of the Act. The object of the Act, as stated in its preamble, is the levy of a duty in respect of admission to entertainments in West Pakistan. Section 2(a) defines "admission to an entertainment" as including admission to any place in which the entertainment is held Section 2(d) defines 'entertainment' to mean "entertainment includes any exhibition, performance, amusement, game or sport, to which persons are admitted on payment". Section 3 is the charging section and subsection (1) reads . 3.(1) There shall be levied and paid to the Government all payments for admission to any entertainment, a duty (hereinafter referred to as the `entertainment duty') at the rate of 50 per cent of such payments excluding the amount of the duty." Two methods of levy of entertainments duty are specified in section 5 of the Act. The first is by means of a ticket which has been pre-stamped with entertainment duty stamps issued by the Government denoting that proper entertainment duty has been paid. The second method is by permitting the proprietor of the entertainment to make consolidated payment in accordance with the returns of payments for admission to the entertainment on such conditions as the Government may prescribe under section 5(2) of the Act. The West Pakistan Entertainments Duty Rules, 1957 provide. inter alia, that every ticket shall show particulars as to description of the place of entertainment, serial number of ticket printed by mechanical means and the stamps, seal or other :nark denoting that payment due has been made and there shall be separate tickets of different colours for each class of admission bearing consecutive or serial number for all shows including the Matinee Show.

4. The main question. which relates to the proper interpretation of the provisions of the Act and the Rules, is whether the type of amusement provided in the `Playland' is an `entertainment' as defined in Section 2(d) and is liable to levy of entertainments duty under section 3 of the Act. The first submission of Mr. Qamarul Islam is that the type-. of entertain ments mentioned in section 2(d), namely exhibition, performance, amusement, game or sport, to which persons are admitted on payment are ejusdem generis and belong to a class of public entertainments which are provided by the proprietor of the entertainment to persons who are admitted thereto on payment and does not include individual recreation and amusement pro vided by the individual for his own entertainment. In a public entertainment. there are entertainers and spectators or persons entertained, whereas in the instant case, there are neither entertainers, nor spectators, but the individual member of the public entertains himself by means of the Play Machines installed in the hall. Counsel submitted that the scope of the Act and the Rules is limited to an organized entertainment held in a place to which persons are admitted on payment by purchasing a ticket bearing a stamp of the requisite amount of duty, as in the case of film shows, theatrical dramas, wrestling, hockey and football matches, etc. Persons may be admitted on payment without tickets only in, exceptional cases and under conditions prescribed by the Government under section 5(2) of the Act. Counsel also emphasised the word `held' in section 2(a) to show that an entertainment has to be an organized entertainment `held' in a place. Payment of a charge for use of a play machine by an individual to provide his own entertainment, cannot be said to be a payment for admission to an entertainment held by the proprietor of the Management. Counsel further referred to Attorney-General v. Southport Corporation ((1934) 1 K B 226). In that case, the British Court of Appeal while considering the same definition of the word `entertainment' appearing in the Finance (New Duties) Act, 1916,' observed that in order to attract entertainment duty, the entertainment has to be an organised entertainment for the purpose of entertaining those who pay to see or hear it. The facts of that case were that persons could by payment obtain admission to an enclosure by the sea at Southport, which along with other amenities, such as shelters, terraces cafe and walks, contained a bathing pool. Those who paid to enter this enclosure might do so to bath or they might do so to sit in the sun or out of the wind or to watch the bathers in the pool. The bathing was not organised and no one arranged their activities for the purpose of diverting spectators or of giving a deliberate `performance' of any kind. In these circumstances, it was held that the bathing was rot an `entertainment' and consequently entertainment duty under the Act could not be charged on the payments made by non-bathers for admission to the enclosure.

5. On the other hand, Mr. Abdul Sattar, learned Additional Advocate General for the respondents, submitted that the definition of the word `entertainment' in section 2(d) of the Act was not exhaustive as the word `includes' enlarges its meaning to embrace even an amusement by an individual by himself, and referred to the definition of the `amusement' in Corpus Juris Secundum, Vol. III, page 1069, as anything that amuses is an entertainment. He also referred to Volume 30 of the same Corpus Juris Secundum, page 716, that the term `entertainment' has been held to include "recreational activities, such as games, sports, plays and dancing", He also referred to the definition of `entertainment' in various other British enactments mentioned in "Words & Phrases Legally Defined" 11 Edition by John Saunders, Volume 2 at page 168.

6. As far as the first submission of learned Additional Advocate v a, General is concerned, it is true that the word 'includes' in a definition enlarges the meaning of the word defined to include certain things, which, but for the interpretation clause, would not be included in the class of things defined. But this submission has no force since the word `entertain. A ment' has not been defined as a class at all and only certain specific types of entertainments have been included as entertainment. We are also not impressed with the definition of the words `amusement' and `entertainment' appearing in other foreign enactments which are relevant only for the purposes of those enactments.

7. Finally, the learned Additional Advocate-General referred to William Lawrence Allen v. John Emmerson and others ((1944) 1 All E R 344). In. that case, the respondent was the proprietor of Funfair premises, in which were installed automatic slot machines, pin-bagatelle tables, target machines, shooting ranges and the like. The public could obtain admission to the Funfair without paying any fee but if they desired to operate any of the machines they would have to pay the appropriate charge. The relevant statute required that "no theatre or other place of public entertainment could be used as such without licence from the local authority and penalties were provided for breach of the enactment. It was held that the Funfair was "a place of public entertainment." That case is, therefore, distinguishable since the Court was considering the limited question as to whether the Funfair was a `place' of public entertainment and was therefore required to be licensed. We respectfully agree with that conclusion. Counsel also referred to Attorney-General v. Yalentia and others (41 T L R 78) but that cases not relevant as the question there was on what proportion entertainment duty was chargeable on the subscription and entrance fees of members of the club who, in addition to certain club privileges, had the right to attend Polo matches and Tennis and other tournaments provided by the club.

8. Mr. Qamarul Islam advanced a further submission, with which we) are also inclined to agree, that a statute imposing a tax must be interpreted literally and according to the words used and clearly expressed. A subject cannot be brought to tax under any presumed intendment or equity oil spirit of the tax law. In this connection, reference may be made to the observations of the Supreme Court in Collector of Customs (Appraisement) Karachi and others v. Messrs Abdul Majid Khan and others (1977 S C M R 371) and Craies on Statute Law, 7th Edition (1971) page

112. We would, therefore,' accept the submission of Mr. Qamarul Islam that the type of amusement provided in the Playland of the petitioner is not expressly covered by the Act and the benefit of doubt must go to the petitioner.

9. No other argument was advanced. For the foregoing reasons, we would allow this petition and set aside the impugned orders as being without lawful authority. There will be no order as to costs. Petition accepted.