Back
2019 Supreme(Bom) 250
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, GOA BENCH
M.S. Sonak, Prithviraj K. Chavan, JJ.
State of Goa, Through Its Chief Secretary - Appellant
Vs.
Inox Leisure Limited - Respondent
First Appeal No. 207 of 2008, 213 of 2008
Decided On : 12-03-2019
Pravin Faldessai, Adv., S.G. Desai, Adv., Yogesh Nadkarni, Adv., Sanket Kamat, Adv.
Headnote:
Goa Entertainment Tax Act, 1964 - Cinematograph Act, 1952 - Granted a license to operate multiplex – Claim of compensation - Misconstrued of evidence - Whether multiplex theatres operated by Respondents are covered under said Scheme or not - Impugned judgments and decrees in two suits learned District Judge North has directed Appellants to pay Respondents subsidy equal to entertainment tax actually paid by Respondents in respect of their multiplex theatres in terms of Goa Entertainment Tax based Subsidy for Cinema Houses Scheme - Aggrieved by such judgments and decrees Appellants have instituted these two appeals - Learned Additional Government Advocate for Appellants submits that Scheme is to be read in its entirety instead of overemphasizing on clause of said Scheme - He submits that from reading of said Scheme in its entirety it is clear that said Scheme was formulated to incentivize existing theatres which were in a bad shape to upgrade themselves on account of oncoming International Film Festival of India - He submits that said Scheme was never intended to apply to new multiplexes already equipped with all upgraded facilities - Submits that learned District Judge has misconstrued evidence of DW1 - He submits that DW1 never admitted that Respondents were covered under said Scheme - In any case he points out that in such matters where interpretation of clauses of said Scheme was involved opinions expressed by Officers of Government are hardly relevant - He submits that learned District Judge by overemphasizing on clause of said Scheme has virtually rendered of said Scheme not to mention objectives of said Scheme totally redundant – Held, Court are satisfied that said Scheme will have to be construed in its entirety - Clauses of Scheme will have to be read and construed in harmony with one another - Overemphasis on clause said Scheme alone will not be proper - Thus construed it is quite clear that said Scheme was formulated to assist existing cinema halls theatres which were in bad shape and which required Government support by way of incentives and concessions in order to upgrade themselves up to required standard for which was to commence shortly - Scheme was not formulated to give a bonanza to brand new multiplexes equipped with all upgraded facilities - Existing cinema halls theatres on account of their ticket rates and other factors were unable to make significant investment at necessary on account of IFFI - Therefore Government by formulating said Scheme offered incentives and concessions to such old cinema halls theatres which were in a bad shape - Position of brand new multiplexes set up or operated by Respondents was entirely different - They not only had upgraded infrastructure and facilities but further they were charging proportionately higher fees to their consumers - Said Scheme was obviously not formulated to extend any assistance to such brand new multiplexes - Position of is quite peculiar - Multiplex theatre was being operated by them under a leave and license agreement with Entertainment says was an agency and instrumentality of State Government - This multiplex theatre was constructed by this agency on Government land - To extend benefit of said Scheme to would amount to award of bonanza in favor of and unjustly enrich at cost of public exchequer - Learned District Judge in present case has completely ignored clause of said Scheme which in terms provides that no inherent right shall arise out of said Scheme in favor of any person - Notwithstanding such clause it is possible to say that some person could have insisted upon enforcement of said Scheme by invoking doctrine of promissory estoppels - However in present case neither Respondents have pleaded promissory estoppels nor do there exist any circumstance justifying invocation of doctrine of promissory estoppels – Now Respondents have not made out any case that all these theatres were brand new theatres or multiplexes already having upgraded facilities - In fact there does not appear to be any serious dispute that all these theatres were old theatres which were in bad shape and which required up-gradation on account of - It is precisely these theatres which were intended to be covered under said Scheme - Therefore there is no really case of discrimination as such made out by Respondents - Principle of equality has to be adopted amongst equals – Appeals are allowed
M.S. Sonak, J.
Heard the learned counsel for the parties.
2. The learned counsel for the parties agree that the issues involved in both these appeals are one and the same and accordingly consent to the disposal of these two appeals by a common judgment and order.
3. First Appeal No.207 of 2008 is directed against the judgment and decree dated 30th April, 2008 made by the learned District Judge, North Goa, Panaji in Civil Suit No.57/2007, instituted by the Respondent-Inox Leisure Limited (ILL).
4. First Appeal No.213 of 2008 is directed against the judgment and decree dated 30th April, 2008 made by the learned District Judge, North Goa, Panaji in Civil Suit No.33/2007 instituted by the Respondent-Prakash K. Kothari (PKK).
5. By the impugned judgments and decrees, in the two suits the learned District Judge, North Goa, Panaji has directed the Appellants ( original Defendants) to pay the Respondents ( original Plaintiff ) subsidy equal to entertainment tax actually paid by the Respondents in respect of their multiplex theatres, in terms of " The Goa Entertainment Tax based Subsidy for Cinema Houses (Theatres) Scheme, 2004" ( the said Scheme ). Aggrieved by such judgments and decrees, the Appellants ( original Defendants ) have instituted these two appeals.
6. Mr. Faldessai, learned Additional Government Advocate for the Appellants submits that the Scheme is to be read in its entirety, instead of overemphasizing on clause 4 of the said Scheme. He submits that from the reading of the said Scheme in its entirety, it is clear that the said Scheme was formulated to incentivize the existing theatres, which were in a bad shape, to upgrade themselves on account of oncoming International Film Festival of India (IFFI). He submits that the said Scheme was never intended to apply to new multiplexes already equipped with all upgraded facilities.
7. Mr. Faldessai submits that the learned District Judge has misconstrued the evidence of DW1. He submits that DW1 never admitted that the Respondents were covered under the said Scheme. In any case, he points out that in such matters where the interpretation of the clauses of the said Scheme was involved, opinions expressed by the Officers of the Government are hardly relevant. He submits that the learned District Judge, by overemphasizing on clause 4 of the said Scheme, has virtually rendered clauses 2 and 3 of the said Scheme, not to mention the objectives of the said Scheme, totally redundant.
8. Mr. Faldessai submits that the multiplexes in respect of which ILL claims reimbursement of entertainment tax is constructed on Government land by an instrumentality of the Government. The ILL has only been granted a licence to operate the multiplex. The said Scheme was obviously not intended to cover the multiplex of this nature. He submits that award of any relief to ILL would virtually amount to award of bonanza to ILL and its consequent unjust enrichment. He submits that since this aspect has been totally ignored by the learned District Judge, the impugned judgments and decrees warrant interference.
9. Mr. Faldessai submits that Osia Multiplex established by PKK hardly a few days prior to the International Film Festival of India, was already equipped with upgraded facilities. There was no question of further incentivizing PKK. The award of any benefit to PKK in respect of such a upgraded multiplex, at which, PKK, was permitted to charge substantial amount to the consumers, would again, amount to unjust enrichment of PKK. Since, this aspect was not at all considered by the learned District Judge, the impugned judgments and decrees warrant interference.
10. Mr. Faldessai further submits that the learned District Judge has totally failed to consider the effect of clause 11 of the said Scheme, which clearly provides that no inherent rights are to arise out of the said Scheme in favour of any person. He submits that in the present case, neither the Respondents have made out any case for promissory estoppel
