' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 19-6- 1979 passed by a Division Bench of the High Court of Sindh in Constitution Petition No,66 of 1970, filed by the respondents, challenging the levy of entertainment duty in respect of an amusement hall called `play land' situated above the K.M.C. Acquarium hereinafter referred to as the Playland, allowing the same. Leave to appeal was granted to consider the question, whether in view of definition of the term "entertainment" given in section 2(d) of the Entertainment Duty Act, 1958 (Act X of 1958) hereinafter referred to as the Act, the play land was liable to entertainment duty under subsection (1) of section 3 of the Act.
2. The facts to be noted are that the respondent, which is a private limited company and owns a hotel by the name Jabees Hotel, Karachi, had taken on lease from the K.M.C. a hall situated above Acquarium at Clifton, for opening a restaurant. In a portion of the hall, the respondents started a restaurant and in the other portion, they established Playland wherein they installed mechanical games like 'Space Ship', 'Target Gallery', 'Ton Pins', 'Safari', 'Motor Cars', `Motorcycles', etc. The entrance to the amusement hall is free of charge but the public is admitted to any particular machine, at one time, on inserting a 50 paisas coin in the slot machine concerned, which starts operating automatically and provides amusement or entertainment to the person operating the machine. The above machines are generally used by the children. It appears that appellant No,3, by his order dated 15-12-1967 held that the Playland was subject to entertainment duty under section 3 of the Act. It may be pertinent to reproduce the relevant portion of the order, which reads as follows:- "Payment for admission has also been liberally defined in section 2(d) of the Act. It is not confined to admission into an enclosure. It also means payment for any purpose whatsoever connected with an entertainment which a person is required to make as a condition of attending the entertainment. The contention of the management, therefore, that because admission into the amusement hall is without ticket entertainment duty cannot be levied on payments made at individual machines is incorrect. Admission to entertainment thus also means payment for attending an entertainment. In holding this view I am supported by the past practice of the Department in taxing individual items of entertainment in a fare ground the admission to which is free. The analogy between the two is complete and exact. Admission to a ground where a variety of entertainments is held is free but payment made by a spectator for participating in an entertainment (like merry-ground, sewing etc.) is subject to entertainment duty. The onlookers because they do not pay are not taxed.
' The contention of the management that the Act envisages levy of entertainment duty only on these payments which are made through tickets is also not tenable. Section 5(2) of the Act expressly lays down the payment of duty in ways other than a stamped ticket. It is possible to obtain returns of payments from various machines and work out the entertainment duty payable on the whole."
' Against the above order, the respondents filed a revision under section 15 of the Act, which was dismissed by appellant No,2 by his order dated 5-4-1969. After that, they filed the above petition, which was allowed by a Division Bench of the Sindh High Court by holding inter alia as follows:- "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 petitioner."
' Thereupon, the appellants i,e, the Government and the other two appellants filed a petition for leave to appeal, which was granted to consider the above question.
3. In support of the above appeal, Mr. Rashid Akhtar Qureshi, learned A.S.C. Appearing for the appellants, has vehemently contended that the definition of the term "entertainment" given in section 2(d) of the Act is very wide in its scope and if it is to be read with the other provisions of the Act, it becomes evident that the Playland was rightly held by the Department to be subject to the levy of entertainment tax.
' On the other hand, Mr. Qamar Abbas, learned A.S.C. Appearing for the respondents, has urged as follows:-
(i) that the words "amusement" and "game" used in clause (d) of section 2 of the Act, are to be construed in context with the preceding words used therein, namely, "exhibition and performance" in view of the application of ejusdem generis rule;
(ii) that since the Court is construing a taxing statute, the same is to be construed strictly; that the Act is to be read as a whole while construing any provision of the same; and
(iv) that the Playland is used by the children and, therefore, this Court should uphold the judgment of the High Court in which beneficial construction has been given.
4. Before dealing with the respective contentions of the learned counsel for the parties, we may refer to the relevant provisions of the Act, namely, clauses (d), (f) of section 2, and section 3, which read as follows:- "(d) Clauses (d) & (f) of Section 2 of the Act.--`entertainment' includes any exhibition, performance, amusement, game or sport to which persons are admitted on payment;
(f) 'payment for admission' includes--
(i) any payment made by a person who having been admitted to one part of a place of entertainment, is subsequently admitted to another part thereof for admission to which a payment involving duty or additional duty is required;
(ii) any payment for seats or other accommodation in a place of entertainment; and
(iii) any payment for any purpose whatsoever connected with an entertainment which a person' is required to make as a condition of attending or continuing to attend the entertainment in addition to the payment, if any, for admission to the entertainment;"
"3. Section 3 of the Act. Duty on payments for admission to entertainment.--(1) There shall be levied and paid to the Government on all payments for admission to any entertainment, a duty (hereinafter referred to as the 'entertainments duty') at the rate of fifty per cent of such payment excluding the amount of the duty: ' Provided that where the proprietor of an entertainment admits any person to any place of entertainment without any payment or on payment of an amount less than the amount normally charged for admission thereto, the entertainments duty shall nevertheless be levied and paid on the amount which would have been normally charged for admission to that place.
Explanation I: In case there be different classes in connection with an entertainment, the phrase 'place of entertainment' means the class to which a person is admitted.
Explanation II: The fact that any such person as is mentioned in the proviso to this subsection has been admitted to a class more advantageously placed for viewing the entertainment than the class to which others making larger payments arc admitted may be taken into account for determining whether the payment made is not that normally charged.
(2) Where the payment for admission to an entertainment is made by means of a lump sum paid as a subscription or contribution to any society or for a season ticket or for the right of admission to a series of entertainments or to any entertainment during a certain period of time or for any privilege, right, facility or thing combined with the right of admission to any entertainment or involving such right of admission without further payment or at a reduced charge the entertainments duty shall be paid on the amount of the lump sum; but where the Government is of the opinion that the payment of a lump sum or any payment for a ticket represents payments for other privileges, rights or purposes besides the admission to an entertainment, or covers admission to an entertainment, during any period for which the duty has not been in operation, the duty shall be charged on such amount as appears to the Government to represent the right of admission to entertainments in respect of which the entertainments duty is payable."
5. The above-quoted definition of the term "entertainment" is not exhaustive as it has employed the word "includes" instead of word "means". It has provided that entertainment includes an exhibition, performance, amusement, game or sport to which persons are admitted on payment. Similarly, the definition of the expression "payment for admission" is not exhaustive as it has also used the word "includes" in place of the word "means". It includes--
(ii) any payment made by a person who having been admitted to one part of a place of entertainment, is subsequently admitted to another part thereof for admission to which a payment involving duty or additional duty is required;
(iii) any payment for seats or other accommodation in a place of entertainment;
(iv) any payment for any purpose whatsoever connected with an entertainment which a person is required to make as a condition of attending or continuing to attend the entertainment in addition to the payment, if any, for admission to the entertainment.
It may be noticed that subsection (1) of section 3, is couched in very wide terms, as it provides that there shall be levied and paid to the Government on all payments for admission to any entertainment, a duty at the rate of fifty per cent of such payment excluding the amount of the duty. The words "all payments for admission to any entertainment" are of great significance as they cover all payments for admission to any entertainment. It may also be noticed that proviso to subsection (1) makes it clear that if the proprietor of an entertainment admits any person to any place of entertainment without any payment or on payment of an amount less than the amount normally charged for admission thereto, the entertainment duty shall be payable on the amount which would have been normally charged. It may also be observed that Explanations I and II further reinforce the above provision. Whereas, subsection (2) empowers the Government to determine the amount for the admission to an entertainment duty if the payment for admission to an entertainment is made by means of a lump sum paid as a subscription or contribution to any society or for a season ticket or for the right of admission to a series of entertainments or to any entertainment during .a certain period of time or for any privilege, right, facility or thing combined with the right of admission to any entertainment or involving such right of admission without further payment or at a reduced charge etc.
6. Adverting to the above submission of Mr. Rashid Akhtar Qureshi and Mr.Qamar Abbas, learned counsel for the parties, it may be observed that the former has relied upon the case of Willian Lawrence Allen v. John Emmerson and others (1944 All England Law Reports Vol.1 page 344) and the following passage from Corpus Juris Secundum, Vol.3 page 716 alongwith Note 11, which read as follows:- "Extract from Corpus Juris Secundum. Vol.3. Page 717.--Public entertainment. An entertainment held out and given to the public. Instances of the scope of the term in particular connections are listed in the subjoined note.
' Other phrases are listed in the Note 11."
"11. Phrases construed
(1) 'Entertainment of the stage N.Y.--New York City v. Eden Musee American Co., 8 N.E. 40, 41, 102 N.Y.
593.
' 20 C.J. p. 1268 Note 93 (a).
(2) 'Other houses of public entertainment,' as including restaurant. Ark.-Ft. Smith v. Gunter, 154 S.W.
181, 183, 106 Ark.
371.
(3) 'Place of dramatic entertainment.' Eng.--Russel v. Smith 12 Q.B. 217, 64 E.C.L. 217, 116 Reprint 849.
' 20 C.J. p. 1268 Note 93 (b).
(4) 'Public refreshment, resort, and entertainment,' as not including a theatrical or musical or other similar performance, but as something contributing to the enjoyment of the refreshment. OKL.-- Bryan v. Menefee, 95 P.471, 476, 21 OKP.1.
' 20 C.J. p. 1268 Note 78 (b).
(5) 'Tavern or house of entertainment.' Ga.--Bonner v. Welborn, 7 Ga. 296, 301."
' In the above case, the respondent was the proprietor of a funfair premises, in which automatic slot machines were installed including for games, pin-bagatelle tables, target machines, shooting ranges and the like. There was no public entrance fee but if any person desired to operate any of the machines, he would have to pay the appropriate charge. The relevant provisions of the statute provided that "no theatre or other place of public entertainment;", could be used as such without obtaining licence from the local authorities failure of which entailed penalty. The question before the Court was, whether the above funfair was covered by the expression "other place of public entertainment". It was held by the King's Bench Division, while allowing an appeal against the decision given by Justices under the Barrow-in-Furness Corporation Act, 1868, that the above funfair was a place of public entertainment. The relevant portion of the judgment reads as follows:- "We think a satisfactory working definition of "public entertainment" was one suggested by counsel for the appellant in argument: ' a place open to members of the public without discrimination who desire to be entertained and where means of entertainment are provided.
' Judged by this test, or indeed, by the ordinary use of language, these funfairs were, in our view, places of "public entertainment," and nonetheless so because no fare was charged for admission to the premises. ' case wrongly. The case must be remitted to them with a direction to find the offences proved and to adjudicate thereon. ' with costs. Case remitted to the justices with a direction to find the offences proved and to adjudicate thereon."
' Whereas Mr.Qamar Abbas has referred to the case of Attorney-General v. Southport Corporation [(1934) 1 K.B. 226], wherein the facts were that Southport Corporation which was a borough, and was the proprietor of an enclosure which adjoined the seashore and included a sea-bathing lake; two areas were reserved for sun-bathing, there was dressing accommodation for about a thousand bathers, there were terraces with scathing accommodation for several thousands of non-bathers sheltered from the wind, and there was also an upper terrace promenade, from which accommodation non-bathers could have a view of the bathing lake. There were adjacent parks, recreation ground and sea-shore; and a cafe. The bathing was not organised. The lake and ground were widely used by visitors and residents as a meeting place and resort for sheltered sitting, and resting in the sun. The sheltered seats, terraces and cafe were open and used at the same prices whether or not there was bathing. The enclosure was open from April 30 to October 1 from 7-00 a.m. To 8-00 p.m. And for shorter period on Sundays. The charges for non-bathers were between 2- 00 p.m. And 5-00 p.m. 4d., and at any other time 3d., these charges being somewhat less than those for bathers. The admission was by ticket obtained at a turnstile. The question arose, whether the above enclosure was subject to the levy of entertainment duty under Section 1 of the Finance (New Duties) Act, 1916. The subsection (1) of section 1 and section 6, read as follows:- "1. The Finance (New Duties) Act, 1916 (6 Geo. 5, c. 11), provides:- ' Section 1. "(1) There shall be charged, levied and paid on all payments for admission to any entertainment as defined by this Act an Excise duty (in this Act referred to as 'entertainments duty') at the following rate namely:- ' Where the payment, Occluding the amount of the duty, does not exceed 6d. One penny does not exceed 2d. A half penny;
6. For the purpose of the provisions of this Act relating to entertainments duty- ' The expression 'entertainment' includes any exhibition, performance, amusement, game or sport to which persons are admitted for payment; and the expression 'admission to an entertainment' includes admission to any place in which the entertainment is held; ' The expression 'admission' means admission as a spectator or one of an audience, and the expression 'payment on admission' includes any payment made by a person who, having been admitted to one part of a place of entertainment, is subsequently admitted to another part thereof for admission to which a payment involving duty or more duty is required."
' The Commissioners of Customs and Excise claimed entertainments duty under the above provisions of the aforesaid Act. The above demand was contested before Finlay, J. Of the King's Bench Division, who held that the same was not legally sustainable for the following reasons:- "In dealing with the present case one has to take the exact facts as they are. There can be no question that these facts do not show any kind of organized entertainment. There is no band or anything of that sort. These cases are almost always near the line, and I should be disposed to take a different view of this case if anything like that came into question. There is nothing, however, except, so to speak, mere bathing by persons who are willing for their own pleasure and health to go and bathe in the lake. There is no organized swimming or diving or other entertainment of any sort, for it is found, when there is anything of that sort, that a special charge is made, and it is admitted that the entertainment tax is attracted.
' On the whole I arrive at the conclusion that what takes place at this swimming pool is not an entertainment, and, of course, it follows that if it is not, the persons who attend are not spectators of an entertainment."
' The matter was taken up before the Court of Appeal. The appeal was heard by Lords Hanworth M.R., Slesser L.J. And Romer L.J., but the above judgment of Finlay, J. Was maintained. It may be pertinent to quote the following extract from the opinion of Lord Hanworth and Rommer Li., which reads as follows:- "Extract from the opinion of Lord Hanworth, M.R. -- The bathing is not organised, save that there are galas on special occasions for which a special charge is made and in respect of which entertainments duty is paid. The sea-bathing lake and grounds are widely used by visitors and residents in Southport as a meeting place and resort for sheltered sitting and resting in the sun. The sheltered seats, terraces, lawns, gardens and cafe are open and used at the same prices whether or not there is bathing or expectation of bathing."
"Extract from the opinion of Romer L.J. I agree. In my opinion, an entertainment to come within the provisions of the Finance (New Duties) Act, 1916, just be some 'exhibition, performance, amusement, game or sport' provided, though not necessarily by the owner of the place of entertainment, for the purpose of entertaining those who pay to see or to hear it. In the present case the place that we have to deal with is a place, as it seems to me, provided by the Southport Corporation for the purpose of affording a number of amenities to the public which have been specially referred to by the Master of the Rolls, and which include the opportunity of bathing in the pool there provided. But bathing is merely one of the amenities, and is not provided for the purpose of entertaining persons who go there to enjoy the other amenities.
' In my opinion this bathing is not an entertainment provided by the Corporation or any other person."
7. It was vehemently urged by Mr.Qamar Abbas that since the Act in hand is borrowed from the above English Finance Act, the above case on all fours is applicable to the present case. The above case indistinguishable from the present case, as pointed out by Romer L.J. That in fact the bathing facility was one of the amenities provided by the Southport Corporation to the public. Secondly, the ratio of the above case seems to be that since bathing was not organised and it was individual acts of the persons to have bath in the lake, it cannot be covered by the definition of the expression "entertainment" which included an exhibition, performance, amusement, game or sport. It was pointed out by Lord Hanworth M.R. That the galas which were organised on special occasions and for which special charges were recovered, were subject to the payment of entertainments duty.
The case relied upon by Mr.Rashid Akhtar Qureshi in fact supports the case of the appellants, as it has held that a funfair is a public entertainment even though it might be said that by operating machines the public provided their own entertainment. The Note 11 quoted above from the Corpus Juris Secundum, Vol.3 in connection with the definition of "public entertainment" also supports the appellants' case. It cannot be denied that whosoever puts coin or a token after making payment for the same in the slot machine, is admitted to entertainment in terms of section 2(d) of the Act read with subsection (1) of section 3, which is a charging section and which has used the words "admission to any entertainment" as pointed out hereinabove. The introduction of slot machines is a modern concept and it is not confined to games or amusements but even for selling various articles like packets of cigarettes, chocolates, cold drinks, dry nuts, chips etc. Slot machines are installed at the public places. Can it be said that there is no sale transaction when a person puts coins into a slot machine for purchasing an eatable item? The answer to the above question would be in the negative. Similarly, it cannot be said that slot machines, which operate mechanically, do not provide game or amusement because they are not being operated by someone on behalf of the owner of the playland. We may observe that the playland is open to members of the public without discrimination, who desire to be entertained by use of the slot machines. There is also an element of organization as the slot machines are properly laid in the hall, and they are regularly maintained. Their operation is supervised by the staff of the playland.
8. Mr. Qamar Abbas then referred to the following cases in order to reinforce his submission that, while construing the definition of the term "entertainment", ejusdem generis rule is to be applied. In other words, his submission was that the words "amusement" and "game" employed in the above definition of the term "entertainment" have to be construed with reference to the preceding words "exhibition and performance" and, therefore, in order to make an entertainment subject to levy of duty under the Act, the "amusement" and "game" should be organised as "exhibition and performance" are organised.
(i) The Thames and Mersey Marine insurance Company, Limited v. Hamilton, Fraser & Co. 1887 House of Lords, Vol. XII 484;
(ii) Alexander v. Tredegar Iron & Coal Co. Ltd. 1944 (1) K.B.CA. 451; and
(iii) Eton Rural District Council v. Thames Conservators 1950 (1) Chancery Division 540.
' In the above first case, the House of Lords, while considering the question, whether the expression "perils of the sea and all other perils", would cover the damage caused to the donkey-engine which was being used in pumping water into the main boilers due to closing of the valve either accidentally or due to negligence of an engineer, it was held that the words "all other perils" were to be construed with reference to the preceding words "perils of the seas" by applying ejusdem generis rule. Whereas in the above second case, the Court of Appeal of England, while construing the words "obstruction" employed in section 47 of the Coal Mines Act, 1911, which inter alia provided that "Every haulage road shall be kept clear as far as possible of pieces of coal and other obstruction", held that the word "obstruction" does not include a truck which is being legitimately moved along the rails but which caused a collision owing to failure to signal or a disregard of signal by construing the word "obstruction" by applying ejusdem generis rule. In the above last case, Saisey, J. Of the Chancery Division, while construing the words "or otherwise" used in section 9 of the Land Drainage Act, 1930, which provided that "It shall be the duty of every catchment board to take steps for the commutation of all obligations imposed on persons by reason of tenure, custom, prescription or otherwise, to do any work (whether by way of repairing of banks, maintaining of watercourses or otherwise) in connection with the main river", held that the above words "or otherwise" were to be construed as having meaning ejusdem generis with the preceding words "tenure, custom, prescription".
9. The above cases have no application to the present case, as ejusdem generis rule cannot be pressed into service while construing the words "amusement" and "game" used in clause (d) of section 2 of the Act in the definition of term "entertainment". In our view, the definition of the term "entertainment" given in above section 2(d) gives the species of entertainment, namely, exhibition, performance, amusement, game or sport and, therefore, each of the above words represents independent specie of entertainment. This conclusion is supported, firstly, by the use of the word "includes" in the above definition clause, and secondly, employing of the expression "all payments for admission to any entertainment" in subsection (1) of section 3 of the Act.
10. Then, Mr. Qamar Abbas has referred to the following cases:--
(i) Muhammad Younus v. Central Board of Revenue, Government of Pakistan and others PLD 1964 SC 113;
(ii) Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others PLD 1961 SC 119;
(iii) The Commissioner of Agricultural Income Tax, East Bengal v. B.W.M. Abdur Rahman, Taki Bara Taraf Wards Estate 1973 SCM R 445;
(iv) Collector of Customs (Appraisernent), Karachi and others v. Messrs Abdul Majeed Khan and others 1977 SCM R 371; 'in order to contend that, while construing a taxing statute, strict construction is to be placed and in case of any ambiguity, the benefit should be given to the subject. It is a well-settled principle of law that all charges upon the subject must be imposed by clear and unambiguous language and a subject is not to be taxed unless the language of the statute clearly imposes the obligation and language must not be stretched in order to tax a transaction, which, had the Legislature thought of it, would have been covered by the appropriate words. It is also a well-settled principle of construction of a fiscal statute that one has to look merely at what is clearly said and there is no room for any intendment, there is no equity about a tax, there is no presumption as to a tax and nothing is to be read in and nothing is to be implied and one has to look fairly at the language used. But at the same time, this is also a well settled principle of law that if a person sought to be taxed comes within the letter of law, he must be taxed, however great the hardship may appear to the judicial mind. We do not find any ambiguity in the relevant provisions of the Act in order to hold that the benefit of the ambiguity is to be extended to the appellants.
11. We are mindful of the fact that the slot machines in question are used by the children and that it may not be conducive to their healthy development to burden their recreation by the above duty, as there is paucity of recreation places for children in Karachi. We would have liked to hold that the duty is not leviable on the above slot machines, but in view of the clear language of the statute and because of the factum that the case involves an important question of public importance namely, whether slot machines which provide entertainment, can be subjected to the levy of duty. This question may also arise in relation to other mechanical equipments which are used for entertainment. However, we would like to observe that the Government may consider to exempt from the payment of duty the slot machines, which provide entertainment to the children.
12. It was then contended by Mr. Qamar Abbas that the Act is to be read as a whole. Reliance was placed by him on the case of Lt.-Col. Nawabzada Muhammad Amir Khan (supra). There cannot be any cavil to the above proposition.
' Then, he invited our attention to subsection (1) of section 5 of the Act, Rules 5, 8, 20 and 24 (2) of the Entertainments Duty Rules, 1958, in order to contend that the Act contemplates levy of duty in cases where tickets are sold for entertainment. The above contention is negated by subsection (2) of section 3, and subsection (2) of section 5 of the Act, the latter subsection empowers the Government upon an application of a proprietor of any entertainment to permit him to pay the amount of the duty due--
(a) by a consolidated payment; or
(b) in accordance with returns of the payments for admission to the entertainment and on account of the duty; or
(c) in accordance with the results recorded by any mechanical contrivance that automatically registers the number of persons admitted. Whereas, subsection (3) of section 5, lays down that the provisions of subsection (1), which refer to the payment of customs duty on ticket, shall not apply to any entertainment, in respect of which duty is payable in accordance with the provision of subsection (2).
13. The upshot of the above discussion is that we allow the above appeal; set aside the judgment of the High Court and recall the writ, but there will be no order as to costs.