TMI Blog2021 (2) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... l be available, subject to the condition that no other Cinema Hall/Multiplex was existing within a radius of 10 KMs. This rider came to be deleted as per the amendment dated 04.03.2010, whereby the benefit of granting subsidy was widened to bring the then non-eligible lot also within the eligibility net. Since the benefit of the subsidy was intended to be paid for a total period of '8 years', the persons who were invited to set up the Cinema Halls/Multiplexes to augment the revenue of the State and who answered the call in the 'positive', despite the hard situations prevailing prior to 04.03.2010, cannot be pushed down for ever, when the barrier was lifted from 04.03.2010 onwards, at least in respect of the remaining period which alone has been ordered by the learned Single Judge. The amendment involved herein, bringing about relaxation for deciding the question of eligibility by deleting the rider which existed earlier under Rule 3 of the 1982 Rules, with effect from 04.03.2010, is different from a rider bringing in some new burden or liability, to be declared as only prospective. This being the position, the intention of the law makers to provide the benefit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 1982 Rules ). The review petitions have been filed mainly on two grounds, firstly, contending that the writ petitioners are not coming within the purview of eligibility under the above Rules not being the Swamis (Proprietor) which was not properly considered and secondly, that the scope of Rule 3 of the 1982 Rules with reference to the date of commencement of operation of Cinema Hall/Multiplex was never adjudicated by the Bench while finalizing the matter. 3. Coming to the sequence of events, the claim for granting benefits under the 1982 Rules to the writ petitioners was turned down by the authorities concerned which was sought to be challenged by filing Writ Petition (T) No. 1364 of 2014 {Avinash Developers Private Limited Others v. State of Chhattisgarh Others} wherein a declaration was sought that the Petitioners were eligible and entitled for the benefits/grants/incentives in the form of subsidy under the 1982 Rules. The writ petition came to be allowed as per judgment dated 22.01.2016 whereby the impugned orders were quashed making it clear that the Petitioners 1 and 2, being the owners of the Mall/Multiplex, were entitled to avail the benefit conferred und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law. It was observed that to make the Rules workable, the word Swami had to be understood in a constructive manner. The Bench held that the word Swami cannot be confined to the 'actual owner' who has no concern with the running or exhibition of a Cinema Hall or a Multiplex, thus declaring that the word Swami in the 1982 Rules will also include and mean a person who is meeting the obligation of the 1982 Rules as well, as he is the licencee who has made a significant investment in making/shaping the space made available by the builder, to be used as a Cinema Hall or Multiplex and also pays entertainment tax duly and regularly in terms of the Act, Rules and agreements entered by them with the State authorities. The Bench asserted the necessity to give a wider interpretation; lest it should defeat the very purpose of the 1982 Rules making it unworkable; thus summing up the dictum declaring that the word Swami which has been used in the 1982 Rules, especially in Spashtikaran would not only include the actual owner but also the occupier/licencee of the Cinema Hall/Multiplex, for which the test laid down or noticed shall be the guiding principle. It was in the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be invoked by this Court unless there is any error apparent on the face of the record , as repeatedly made clear by the Apex Court including in the decision reported in Meera Bhanja (Smt.) v. Nirmala Kumari Choudhury (Smt.) {(1995) 1 SCC 170} and various subsequent judgments. What is the error apparent on the face of the record is not mentioned in any of the grounds raised in the review petition. It was neither pointed out in the course of arguments as well, but for reiterating the grounds as it was given in the memorandum of appeal and also as argued before the Bench which have already been considered and finalized while passing the judgment. The attempt of the review petitioner with reference to the actual meaning of the term Swami given in the 1982 Rules is only an attempt for rehearing of the matter, which is virtually forbidden while exercising the power of review, as held by the Apex Court. 9. With regard to the other ground that the scope of Rule 3 of the 1982 Rules was not adjudicated by the Court when the matter was finalized, the contention is that the said Rule insisted that anybody making the investment by constructing a Cinema Hall/Multiplex will be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to apply after 04.03.2010, it would throw a very incongruous or contradictory situation. Paragraph 42 is extracted below for convenience of reference: 42. In the rules with which this Court is presently concerned, Rule 3 relating to applicability provides that it shall apply to all cinema/multiplex cinema whose construction has started on or after 1.7.1991. If the rider of not having existing cinema within radius of 10KMs is still read with the rules by accepting the plea of the respondents that it will only cease to apply after 4.3.2010, it would throw a very incongruous or contradictory situation inasmuch as a multiplex whose construction has been started after 1.7.1991 will not be eligible for exemption even after 10.3.2010 because on the date of commencement of exhibition of films the cinema theater was existing within radius of 10 KMs. Even if it is taken that the amendment is prospective in its application, any multiplex whose construction was started after 1.7.1991 would be eligible for the benefit of incentive/grant after 4.3.2010 for whatever period the benefit would remain available under Rule 8(c) as amended on 30.8.2003 . 11. Coming to the appeals preferred by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993. In both the cases, the 'prospectivity/retrospectivity' was analysed with reference to the additional/new burden imposed upon the assessee/party to enshoulder the same. After discussing the relevant provisions and the other rulings rendered by the Apex Court, it was held that the same could only be prospective. 13. Coming to the case in hand, it is to be noted that the provision contained herein is not with regard to imposition to any additional burden but is with regard to the relaxation given, by deleting the rider under Rule 3 of the 1982 Rules. The Rules of 1982 clearly provide for subsidy in respect of the Cinema Hall/Multiplex, construction of which was started after 01.07.1991. Of course, there was a rider that the benefit will be available, subject to the condition that no other Cinema Hall/Multiplex was existing within a radius of 10 KMs. This rider came to be deleted as per the amendment dated 04.03.2010, whereby the benefit of granting subsidy was widened to bring the then non-eligible lot also within the eligibility net. Since the benefit of the subsidy was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble force in the said submission. 15. In respect of Review Petition No. 64 of 2020, Shri Sumit Nema, the learned Senior Counsel submits that Annexure P/1 rejection order was only on the ground of 'ownership', to deny the subsidy, which for the reasons mentioned above, is not applicable for want of any error apparent on the face of record. With regard to the amendment dated 04.03.2010, the learned Senior Counsel submits that the Multiplex concerned was the First Multiplex in the State of Chhattisgarh and as such, even if the 10 KMs rider exists, it is not applicable, as no other Multiplex was available, it being the first one in the State. In the said circumstance, there is no ground for any interference. The factual position is virtually conceded by the learned counsel for the State. As such, we hold it against the Review Petitioner. 16. Coming to the Review Petition No. 65 of 2020, it is true that the operation was started on 05.02.2010. It is pointed out that no petition was pending as on 04.03.2010 and that the very first application claiming refund was made on 25.02.2011, for the period from 01.05.2010 to 03.02.2011. In view of the specific finding rendered on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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