Sailendra Nath Sarkar v. State of West Bengal — 1997 DIGILAW 133 (CAL)

JUDGMENT S.B. Sinha, J. The petitioner in this writ application has questioned an order dated 4.3.97 as contained in annexure ''H'' to the writ application whereby and whereunder the Sub-Divisional Officer, Basirhat, on the subject-renewal of licence belonging to the petitioner in respect of the Cinema Hall popularly known as "Rupashree Cinema" held to the following effect: "In response to the subject and memo no. cited above, he is requested to deposit the balance revenue as directed for getting, recommendation in favour of renewal of licence, otherwise, the same may be recommended to be cancelled. This should be treated as most urgent". 2. The fact of the matter is not in dispute. The petitioner is the owner of a Cinema Hall popularly known as "Rupashree Cinema" at Haroa. Despite the fact that the petitioner is the owner of a Cinema Hall, surprisingly a licence was granted to the petitioner to hold temporary exhibition in the open air by means of cinematograph for 500 persons purported to be in terms of Rule 12 contained in Part-C of the West Bengal Cinema (Regulation of Public Exhibition) Rules, 1956 (hereinafter referred to as the said Rules). The said purported cinema licence was said to have been extended from 24.9.96 to 23.2.97. 3. The petitioner thereafter filed an application for renewal of the licence. According to the petitioner, he had paid of the requisite taxes in terms of the provisions of the West Bengal Amusement Tax Act, 1922. The petitioner however was directed to pay a sum of Rs. 1,34,540/- by a letter dated 13.2.97 by way of arrear of Amusement Tax failing which, a legal action was threatened and it was also directed that the petitioner's licence may be cancelled. The petitioner filed a writ application in this court which was registered as W.P. No. 3012(W) of 1997 and by an order dated 24.2.97, the court quashed that portion of the order whereby and whereunder legal action as against the petitioner was threatened for non-payment of the said amount by way of Amusement Tax on the ground that before assessing the dues, the respondent concerned was bound to follow the procedure laid down under s. 8A(2) of the Bengal Amusement Tax Act, 1922. According to the petitioner, despite the said order the impugned memo dated 4.3.97 has been issued. 4. Mr. According to the petitioner, despite the said order the impugned memo dated 4.3.97 has been issued. 4. Mr. Dutta learned counsel appearing on behalf of the petitioner has raised a short question in support of this writ application. The learned counsel submits that by reason of the impugned Memo, the Sub-Divisional Officer has referred to the same order which has been quashed by this court and in this view of the matter the impugned order cannot be sustained. The learned counsel submits that in terms of the provisions of the said Rules or conditions of the licence he is entitled to a renewal. Such consideration for renewal of the licence, according to the learned counsel, cannot be refused to be considered on the ground that the petitioner has failed or neglected to pay a sum of Rs. 1,34,540/- without making an assessment in terms of the 1922 Act. 5. The learned counsel for the State, on the other hand, submits that in terms of s. 4C read with s. 11 of the Act the Sub-Divisional Officer had the requisite jurisdiction to pass the impugned order. The learned counsel submits that upon inspection of the Register of the petitioner, the said authority had come to a finding that the petitioner has defaulted in making payment of the aforementioned amount of Rs. 1,34,540/- by way of Amusement Tax. It appears that the respondents from the very beginning have proceeded on absolutely wrong footings and without application of mind as regards the provision of the West Bengal Cinema (Regulation) Act, 1954 and the said Rules. In terms of s. 3 of the 1954 Act no person is entitled to give a public exhibition by means of cinematograph elsewhere than in a place in respect of which a licence has been granted under this said Act or otherwise than in compliance with any conditions or restriction imposed by license. 6. The licensing authority is the District Magistrate in terms of s. 4 of the said Act. Section 9(2)(a) of the said Act empowers the State Government to make Rule inter alia providing for the procedure and the terms, conditions and restrictions, if any, subject to which a licence may be granted under the said Act. Rule 2(ii) defines a licence to mean a licence granted under the provision of the Act. Section 9(2)(a) of the said Act empowers the State Government to make Rule inter alia providing for the procedure and the terms, conditions and restrictions, if any, subject to which a licence may be granted under the said Act. Rule 2(ii) defines a licence to mean a licence granted under the provision of the Act. Rule 3 speaks of three kinds of licensee, namely : (i) Licences for permanent cinemas, (ii) licences for temporary indoor cinemas, and (iii) licences for temporary open air cinemas. Rule 4(2) of 1976 Rules deals with the procedure for grant of permanent cinema licences. Sub-rule (2) of Rule 6 provides for renewal. It may be renewed from year to year on receipt of an application in writing from the licensee. Part-B of the said Rules relates to temporary indoor cinemas. As the petitioner is the owner of a cinema hall a temporary licence could be granted to the petitioner only in terms of the aforementioned rules. Sub-rule (2) of Rule 9 provides for the period of validity of licence and in terms whereof the licence so granted shall remain valid for such period as may be specified in the licence subject to the condition that no such licence shall remain valid for more than two years at the same site. The licence however was granted to the petitioner in terms of Part-C of the said Rules although the said Rules was not applicable in the case of the petitioner. 7. Rule 12 provides that such licence for temporary open air cinemas shall remain valid for a period upto 12 months at time for holding open air cinemas shows subject, among others, to the condition that where the shows are held by the management of industrial concerns for the benefit of labour in industrial area or by academic or cultural institutions, the rates of admission shall be nominal and that such shows shall not be utilised by the licensee for making profit. There is no provision for renewal of licences in respect of both temporary indoor cinemas and temporary open air cinemas. 8. Mr. Dutta, learned counsel for the petitioner submit that in terms of sub-rule (3) of Rule 19 as also the conditions No. 2 of the terms and conditions of such licence, the petitioner was entitled to file an application for renewal of the licence. 8. Mr. Dutta, learned counsel for the petitioner submit that in terms of sub-rule (3) of Rule 19 as also the conditions No. 2 of the terms and conditions of such licence, the petitioner was entitled to file an application for renewal of the licence. Sub-rule (3) of Rule 19 contemplates a situation in lieu of s. 6 where the licensee has transferred his licence upon satisfying the conditions laid down therein to any other persons. During the period of validity of the said licence, an application for renewal is to be dealt with in accordance with the said rules. 9. Rule 8 of the Rules reads thus :- "A licence granted under these rules shall not save as hereinafter provided in this condition, be transferable and shall be personal for the benefit only of the person to whom it is granted. If, however, the proprietorship of the business to which the licence relates passes during the period of its validity from the licence to somebody else by the reason of the death of licensee, the licensing authority may, on receipt of a written application in this behalf from the successor in interest of the licensee within one month from the date of such transfer of proprietorship, substitute the name of successor in the licence as the licensee for the remaining period of its currency. An application for the renewal of such licence shall be dealt with in accordance with the rules". 10. In this view of the matter, there cannot be any doubt that sub-rule (3) of Rule 19 and/or condition No. 8 cannot be said to have any application whatsoever in the instant case. 11. The question of renewal of temporary indoor cinemas and temporary open air cinemas for a period of more than two years or one year is impermissible. 12. However, there cannot be any doubt whatsoever that in terms of s. 4 read with s. 11, the S.D.G. has a power to make inspection for the purpose of assessment of tax. If there exists a dispute, the same has to adjudicate upon compliance with the provision of sub-s. (2) of s. 8A of the Act. In any event, the licensing authority is bound to comply with the second proviso appended to s. 11(2) of the said Act. 13. If there exists a dispute, the same has to adjudicate upon compliance with the provision of sub-s. (2) of s. 8A of the Act. In any event, the licensing authority is bound to comply with the second proviso appended to s. 11(2) of the said Act. 13. In view of the fact that the petitioner is not entitled to renew the licence, no relief can be granted to the petitioner, inasmuch as, his application for renewal of the said licence was beyond the purview of 1956 Rules. 14. However, in the event the petitioner files an application for grant of a fresh licence in terms of the said Rules, the same may be considered and disposed of in accordance with law keeping in view the fact that according to Mr. Dutta, learned counsel, the petitioner's only source of livelihood is from the said Cinema Hall. 15. The licensing authority may consider the desirability of disposing of the application at an early date and preferably within a period of 8 weeks from the date of filing of such application. 16. The writ application is disposed of with the aforementioned observations. Urgent Xerox certified copy, if applied for, be supplied on priority basis. Writ Application disposed of.