Remanded

Ambika Shivaji G. Naidu v. State of Maharashtra and Anr.

Bombay HC10 Oct 2005WP/6076/2005

Case brief

AI extract

What is this about?

The court set aside an order cancelling a certificate for entertainment duty payment issued to the petitioner. Remanding the matter to the authority to determine its power to issue/transfer certificates and assess evidence of a forged signature, while declining to restore the certificate immediately.

What did the court decide?

Impugned order set aside; matter remanded to authority for recording findings on powers to grant/transfer certificates and evidence of forgery; no stay granted; no immediate restoration of license.

Ambika Shivaji G. Naidu Vs State of Maharashtra and… — Writ and Judicial Review | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
 WRIT PETITION NO. 6076 OF 2005

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 Mrs. Ambika Shivaji G. Naidu ..Petitioner.

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 Versus

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 The State of Maharashtra & Ors. ..Respondents.

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 -----

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 Mr.N.V.Walawalkar with S.D. Patil for the Petitioner.
 Mr. S.K.Chinchalikar, AGP, for the Respondent No.1.
 Mr.Y.S.Jahagirdar with R.N.Kachare for the Respondent
 No.2.

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 -----

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CORAM : S. A. BOBDE, J.
DATED : 10TH OCTOBER, 2005.
P.C.:

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 1. Rule returnable forthwith. Mr. Chinchalikar,
 learned AGP for respondent No.1 and Mr. Kachare,
 Advocate, for respondent No.2 appear and waives

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 service of rule. Heard by consent.

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 2. The petitioner is aggrieved by the order dated

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 16.08.2005 passed by Additional Collector, Mumbai
 Suburban District, in purported exercise of his powers
 under the Bombay Entertainments Duty Act, 1923,
 hereinafter referred to as ‘the Act’; cancelling a
 certificate issued in her name.

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 3. The dispute between the parties arises out of
 a certificate issued in favour of the Respondent No.2-

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 Bhavani Prasad Murlidhar Naidu under section 3 of the
 Act, for doing the business of cable operator. This
 certificate is issued under section 4(2)(b) of the
 Act. Section 4 (2)(b) reads as follows :-

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 "4. Method of levy :-

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 (1) ...........

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 (2) [Every proprietor of any entertainment in
 respect of which the entertainment duty is
 payable under section 3, shall apply to the
 prescribed officer by the fifteenth days of
 January of every calendar year, to allow him
 to pay the entertainment duty due and payable,
 and the prescribed officer may, on receipt of
 such application, allow the proprietor, on
 such conditions as the State Governmentd may
 specify by general or special order issued in
 that behalf, to pay the amount of
 entertainment duty due.)

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 (a) ...........

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 (b) in accordance with returns of the payments

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 for admission to the entertainment and on

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 account of the duty;"

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 4. It appears that there is no specific power to
 issue a certificate, at least under section 4 of the
 Act. It appears that ‘licence’ or aforesaid
 ‘registration certificate’ was transferred to her
 under an order dated 05.11.2003. Therefore, according
 to the petitioner, she became the transferee of the
 certificate and is entitled to carry on the business
 of the Three Star Cable and pay entertainment duty.

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 5. Having heard the matter for some time, it
 appears that there is no specific provision in law
 empowering issuance of licence or registration
 certificate for payment of entertainment duty. No
 specific provision is relied on by either side or the
 State to show the power conferred on the Collector or
 on any other officer to issue such a certificate or
 transfer such a certificate in favour of any other
 party. In the circumstances, the original transfer
 claimed by the petitioner in her favour on 05.11.2003
 of the registration certificate, which the respondent
 No.2 claims belongs to him, itself appears to be
 questionable. There is no application of mind by the
 authority to this aspect.

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 -: 4 :-

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 6. As far as the impugned order is concerned, the
 order appears to have been passed by the authority on

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 the basis of the report of the Documentary Expert of
 the State of Maharashtra, who has obtained the opinion
 of the hand writing expert on 09.07.2005, which shows
 that the signature of Bhavani Prasad Naidu on the
 letter, purporting to transfer a licence in favour of
 the petitioner, is forged and therefore, criminal
 action has been initiated against the petitioner.
 Having regard to the nature of controversy stated
 above, I am of view that it is necessary to set aside
 the impugned order without, however, granting any stay
 to the direction of the authority who has issued a
 certificate in favour of the petitioner.

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 7. The authority is directed to consider the
 existence and exercise of the powers to grant
 certificate and to transfer the same from one party to
 another. The authority may also consider whether it
 has the power to receive evidence on oath and render a
 finding of forgery, having regard to the nature of
 powers conferred on it by the Act.

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 8. In the circumstances, impugned order is set

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 aside. The matter is remanded back to the authority
 for recording findings on the above issues.

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 9. I am not inclined, however, to restore the
 licence to the petitioner in exercise of the
 discretion of this court under Articles 226 and 227 of
 the Constitution of India in view of the report of the
 hand writing expert that the signature of Bhavani
 Prasad on the original transfer is a forgery. This
 shall however, not prevent the petitioner from
 establishing either before the appellate authority or
 before a competent court of law that it is not a
 forgery, as may be advised.

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 10. The authority shall decide the matter after
 remand on its own merits without being influenced by

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 this order.

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 DT. 10.10.05 (S.A.BOBDE,J)

Ambika Shivaji G. Naidu v. State of Maharashtra and Anr.

Case brief

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What did the court decide?

Ambika Shivaji G. Naidu v. State of Maharashtra and Anr.

Case brief

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