Equality Cannot Be Claimed On Any Illegality & Cannot Be Enforced By Court In A Negative Manner: Bombay High Court

The Bombay High Court has observed that equality cannot be claimed on any illegality and cannot be enforced by a Court in a negative manner.

In that context, the Bench of Justice GS Kulkarni and Justice Jitendra Jain observed that, "under Article 14 of the Constitution guaranteeing equality before law is a positive concept, which cannot be enforced by a citizen or a Court in a negative manner. The Court held that if an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of the Supreme Court that the same illegality or irregularity be committed by the State or an authority which can be held to be a State within the meaning of Article 12 of the Constitution. It was held that such petitioners can question the validity of the actions of the State which are set to have been passed in favour of those persons who were not entitled to the same, but they cannot claim orders, which are not sanctioned by law in their favour on the principle of equality before law."

Senior Advocate Nitin Thakker, along with others, appeared for the petitioners, while AGP Jyoti Chavan appeared for the State.

In this case, a petition under Article 226 of the Constitution was filed, pressing for a declaration that certain provisions of the Bombay Entertainment Duty Act, 1923, inserted by the Bombay Entertainment Duty (Amending) Act, 1998, were ultra vires.

The petitioners, who were engaged in water sports activities, had leased land from the Maharashtra Tourism and Development Corporation (MTDC). The dispute had arisen when the respondents demanded entertainment duty, which was challenged in a statutory appeal. The Revisional Authority had granted a partial exemption, leading to the filing of the petition for a refund.

The petitioners had argued discrimination under Article 14, citing instances where similar operators were allegedly not subjected to entertainment duty. The respondents had countered that the activities of the petitioners differed and that the petitioners were aware of their liability.

The Court observed that the acceptance of the petitioner's contention that the petitioner should be given relief because the State has not recovered tax from similar activities carried on by others would amount to calling upon the Court to give relief on the basis of negative equality. With that background, the Court stressed that equality cannot be claimed on any illegality and cannot be enforced by a Court in a negative manner.

The Court tested the submission of the petitioners through an illustration, wherein it was said that, "Assuming that Mr.A is regularly paying income tax on its business activity. Mr.B is carrying out the same business activity and earning income but is not paying any tax nor does the Revenue Authority takes any action against Mr.B for recovery of tax. In such scenario, Mr.A cannot file a writ petition against the State to claim the refund of the amount which he has already paid on the ground that since the State has not recovered the tax from Mr.B, hence there is a violation of Article 14 of the Constitution of India qua him and therefore, Mr.A should also not pay any tax or get refund of the tax already paid. The submission made by the petitioners would result in a legal absurdity. The Court cannot be called upon upon to recognise and validate any illegality. Such contention can never be accepted."

Subsequently, the petition was dismissed.

Cause Title: Drishti Adventures Sports Private Ltd. & Anr. vs State of Maharashtra & Ors.

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