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2012 DIGILAW 2209 (RAJ)

Vishnu Cinema v. State of Rajasthan

2012-11-19

DINESH MAHESHWARI, VINEET KOTHARI

body2012
JUDGMENT 1. - After having heard the learned counsel for the petitioner-appellant and having perused the material placed on record, we are unable to find any reason to entertain this petition seeking review of judgment dated 19.8.2011, as passed in D.B.S.A.W. No. 345 of 2002 by a Division Bench of this Court to which, one of us (Mr. Dinesh Maheshwari, J.) was a member. 2. The appeal aforesaid was directed against the order dated 18.4.2002 as passed in S.B.C.W.P. No. 930 of 2001 whereby the learned Single Judge of this Court dismissed the petitioner's writ petition and consequently upheld the demand raised towards water charges payable under the Rajasthan Irrigation and Drainage Act, 1954 ('the Act') and the Rajasthan irrigation and Drainage Rules, 1955 ('the Rules'). 3. In the intra-Court appeal filed by the petitioner-appellant against the aforesaid order dated 18.4.2002, after considering the provisions contained in the Act and the Rules, more particularly Clause 5(a) of Schedule-I of the Rules, which specifies the rate of water charges for industrial purposes; and after considering the fact that the petitioner had its venture of film exhibition in theater, this Court noticed that similar nature question was considered in the cognate matters led by S.A.W. No. 837/2001 Bhupendra Singh v. State , wherein it was held that the activity of fish breeding was that of an industry. In regard to the activity of the petitioner, of exhibition of films, this Court found that the view taken in Bhupendra Singh's case squarely covered the matter and observed as under: "7. The appellant has raised the same arguments, which were raised in the case of Bhupendra Singh both in writ petition and now in this appeal except with the difference that in this case the activity which fall for consideration was "exhibition of films" in cinema theater, whereas in the case of Bhupendra Singly it was fisheries. However, the nature of attack to impugned demand was almost identical in both the cases. The learned Single judge placed reliance on all the leading case law on the subject including the view taken by him in Bhupendra Singh case (Supra) and held that "exhibition of films in Theater" in also an industry and hence the appellant (writ petitioner) is liable to pay water charges as per the rates specified for "industrial purpose" in Clause 5(a) of the Rules. 8. 8. In our considered opinion, the detail reasoning given in our judgment in the case of Bhupendra Singh(supra) delivered today would apply to this case as well as for holding that activity of exhibition of films in cinema theater is also an industry and hence appellant's are liable to pay water charges as per the rates prescribed for "industrial purpose" in Clause 5 (a) of the Rules. Indeed in the light of law laid down in the case of Banglore Water Supply case, we have no hesitation in holding that exhibition of films in Cinema Theater is also an industry." 4. Though the learned counsel for the petitioner has attempted to argue that there had been marked distinction in the facts of the present case from those of Bhupendra Singh's case; and that some of the arguments were not considered, but having examined the matter in totality, it is noticed that in the judgment dated 19.8.2011, this Court specifically held that exhibition of film in theater was an industry and hence, the appellant was liable to pay the water charges as per the rates specified for 'industrial purpose'. In this regard, the ratio of decision of the Hon'ble Supreme Court in Banglore Water Supply case was also referred and so was the judgment in the cognate matter i.e., in Bhupendra Singh's case. 5. The basic argument of counsel for the petitioner that the water supply to the theater was not used exclusively for running the cinema, but was mainly used for drinking purposes by public visiting the theater, was also considered and rejected by this Court while observing as under: "A supply of water is to a theater which is held to be an industry, it is a commercial activity. It is not in dispute that appellant has been using water for myriad purposes for running his business including using it for drinking purpose by the public. This submission has thus no merit. It is accordingly rejected." 6. The matter having been considered on facts and law, the arguments against the judgment impugned cannot be considered in the review petition nor the review petition could be entertained for the purpose of rehearing of the matter on merits.Accordingly, this review petition stands rejected.Review petition dismissed. *******