Basara Movies (P) Ltd. vs Director, Information and Public Relation Department

Ruma Pal, J.—The Petitioner No. 1 owns and runs a cinema house by the name of Kamala Cinema. The question involved in this writ application is whether the writ Petitioner No. 1 is entitled to the benefit of the West Bengal Cinema Development Scheme, 1976 (hereinafter referred to as the scheme).

The scheme came into force in the whole of the State of West Bengal with effect from April 1, 1976. It was formulated, inter alia, to encourage the growth of new exhibition outlets and simultaneously foster the growth of the film production industries in the State. The scheme was to remain in force in the first instance for a period of 5 years from April 1, 1976 and could be extended further if considered necessary by the State Government. However, the scheme was rescinded with effect from May 5, 1980

Under the scheme the State Government sanctioned a subsidy to the owner of every ''eligible cinema house'' subject to certain procedure. The incentive was to be equivalent to the aggregate amount of show tax and entertainment tax paid under the Bengal Amusement Tax Act, 1922 during the period of three years from the date of the Cinema House first starting exhibition of films.

The grant of the subsidy was subject to the owner of an ''eligible. cinema house'' executing a written agreement with the State Government to reserve 60% of its aggregate show time per year for the exhibition of ''eligible films''. An eligible film has been defined in the scheme as meaning any feature film which was recognised as such by an order of State Government which had either been shot for more than 50% of its length in West Bengal or the original version of which had been produced in West Bengal in the Bengali or Nepali language. In default of the owner abiding by this reservation the subsidy paid was refundable to the State Government. The owner of eligible cinema house also had to apply for registration with the Adminustrator appointed for the implementation of the scheme in the appropriate form. The object of this requirement was clearly to boost the local film industry.

It is not in dispute that the Petitioner No. 1 has not executed any such agreement nor had it applied for registration with the Administrator when the scheme was operative.

According to Respondent the dispute in this case is that the Petitioner No. 1 is also not the owner of an ''eligible cinema house'' within the meaning of the scheme at all.

An ''eligible cinema house'' has been defined in CI. 3(c) of the scheme as follows:

(c) ''Eligible cinema house'' means a permanent cinema house possessing a valid licence under Rule 6 of the West Bengal Cinemas (Regulation of Public Exhibition) Rules, 1956, for which a permission for construction was granted under Rule 4 of the said rules after the first day of April 1976.

The moot point therefore, is whether the permission to construct Kamala Cinema was granted after April 1, 1976.

In this case one Satya Charan Ghosh and Ranjit Sarkar had applied on June 11, 1973 for permission to construct a cinema house at 55/22/1, G.T. Road, Mahesh, P.S. Srirampore, District. Hooghly (referred to as the premises). The application was submitted along with three copies of the building plan.

By an order dated June 28, 1974 the District Magistrate granted permission to Satya Charan Ghosh and Ranjit Sarkar to construct a permanent cinema house at the premises according to the plan submitted. One of the conditions of the permission was that the building was to be completed to the satisfaction of the District Magistrate by June 15, 1975 positively.

The construction of the cinema house commenced pursuant to such permission. While the Cinema house was under construction on September 22, 1975 the foundation stone was laid and the cinema house was given the name ''Kamala Cinema''.

By a letter dated March 6, 1976 Satya Charan Ghosh and Ranjit Sarkar wrote to the District Magistrate stating that after they commenced the construction work, ''for stability and greater financial scope'' they had formed a company under the name and style of ''Basara Film Industries Limited'' (the Petitioner No. 1). They accordingly asked for amendment of the construction order so that it would facilitate the obtaining of the loan from the bank.

As already noted the scheme came into effect from April 1, 1976. On April 21, 1976 the District Magistrate wrote the following letter to the Petitioner No. 1. Reference: Your petition dated 8.3.1976.

The undersigned is to inform that your prayer for permission for construction of a permanent Cinema may now be accorded in the name of your Co. for the same site in lieu of Sri Satya Charan Ghosh and Sri Ranjit Sarkar.

Sd/- (Illegible)

For District Magistrate, Hooghly

According to the Petitioners they started exhibiting the films on the basis of temporary licence issued under the West Bengal Cinema (Regulations) Act, 1954 (referred to as the Act) from December 7, 1980 when the scheme had already been rescinded on May 5, 1980. They were granted a permanent licence on January 15, 1982. It does not appear that the Petitioner No. 1 had shown any ''eligible films'' during this period.

For the first time on February 28, 1991 the Petitioners wrote to the Respondent authorities asking for the extension of the benefit under the scheme to them. This was followed by another demand for justice on March 6, 1991. The writ application was moved on March 18, 1991 in which the Petitioners did not refer to any of the earlier facts preceding the order dated April 21, 1976. An exparte order was passed on April 18, 1991 disposing of the writ application by directing the Respondents to grant the Petitioners all incentives under the scheme within a period of two months from the date of registration of the Petitioner under the scheme.

On January 13, 1992 the Respondent made an application for recalling the order dated April 18, 1991. On June 23, 1992 the writ Petitioners filed a contempt application alleging that the Respondents had violated the order dated April 18, 1991. By an order dated April 28, 1992 the order dated April 18, 1991 order was recalled. An Affidavit-in-Opposition has since been filed by the Respondents in which the documents pertaining to the earlier permission to Satya Charan Ghosh and Ranjit Sarkar earlier and the correspondence previous to the permission granted to the Petitioner No. 1 on April 21, 1976 have been disclosed.

It is clear from the definition of the phrase ''eligible cinema house'' that only those owners who had been granted permission to construct under Rule 4 after April 1, 1976 would be entitled to the subsidy. In my view the Petitioner No. 1 cannot be considered to be the owner of an eligible cinema because the permission to construct the cinema house in question had been granted to Satya Charan Ghosh and Ranjit Sarkar on June 28, 1974. The permission dated April 21, 1976 was not an original permission but an amendment of a permission already granted. The amendment merely substituted the name of the owner. The cinema house to be constructed remained the same.

The Petitioners have relied upon the decision of the Division Bench of this High Court in Rabindra Nath Sadhukhan and Another Vs. State of West Bengal and Others, to contend that they were entitled to the relief on the basis of the principles of promissory estoppel. According to the Petitioners they would not have constructed the cinema hall but for the incentive scheme.

From the relation of facts already made, the statement is clearly incorrect and the decision in Rabindra Sandhukhan is clearly distinguishable on facts. In that case although the application for permission to construct had been made in 1972 the permission to construct was granted by an order dated March 28, 1977 i.e. after April 1, 1976. It was clearly a case covered by the, definition of the phrase ''eligible cinema house''.

Apart from the ineligibility of the writ Petitioner No. 1 in terms of the scheme, in my opinion the writ application is also liable to be dismissed on the ground of unconscionable delay. In Rabindra. Sandhukhan''s case almost immediately after getting the permission, and during the validity of the scheme, the owner wrote, several letters to the authorities for registration of the cinema house under the scheme and for grant of the incentives. The writ application itself was moved in 1979 (C.R. No. 14599(W) of 1979). By way of contrast, in this case there is a singular lack of activity on the part of the Petitioner No. 1 for a period of 15 years from the grant of the ''permission'' relied upon by the Petitioners. Not a single document has been produced before this Court to show that the Petitioners had applied for registration or even asked for grant of the subsidy during the validity of the scheme. The first demand was made about almost 11 years after the scheme had been rescinded. It is noteworthy that in Rabindra Sandhukhan''s case the Division Bench noted the fact that the owners of the cinema house had not been ''sitting pretty'' or ''sleeping upon their rights''. In this case they have.

Besides to direct the grant of subsidy now without having discharged the obligation of the Petitioner showing ''eligible films'' would defeat the object of the scheme.

The other decision cited by the Petitioners in this context namely, Inder Pal Yadav and Others Vs. Union of India (UOI) and Others, and K. Prasad and Others Vs. Union of India (UOI) and Others, are wholly inapposite.

I am. also of the view that the Petitioners are not entitled to avail of the" principles of promisory estoppel in the facts of this case. The construction of the cinema house had admittedly been started much prior to the publication of the scheme. It could not therefore, be said by the Petitioners with any degree of credibility that they had started the construction on the basis of the incentives envisaged under the scheme, in Rabindra Sandhukhan''s case the earlier application for construction was not pursued and was revived only after the incentive scheme was published. In that case admittedly the constructions commenced upon the getting of permission subsequent to coming into force of the scheme. In such circumstances, the Division Bench held that the Petitioner held that the Petitioners could rely upon the principle of promissory estoppel so that the State Government could not deny the Petitioners the benefit under the scheme.

Finally the writ petition is liable to be dismissed on the ground of suppression of material fact. The Petitioners should have in all fairness candidly approached the Court with the full disclosure of the facts prior to April 21, 1976 and the circumstances under which the ''permission'' relied upon by them was granted on April 21, 1976.

For all these reasons the writ application is dismissed with costs.