IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1005 of 2010 AMRAPALI FILMS LIMITED, MONA 70MM CINEMA PREMISES EAST GANDHI MAIDAN, PATNA THROUGH ITS DIRECTOR SRI AJAY KUMAR KATARUKA, S/O LATE KASHI NATH KATARUKA R/O KATARUKA NIWAS SOUTH GANDHI MAIDAN PS-GANDHI MAIDAN, DISTT & TOWN- PATNA--------PETITIONER Versus 1. THE STATE OF BIHAR THROPUGH DISTRICT MAGISTRATE, PATNA 2. DISTRICT MAGISTRATE, PATNA 3. DEPUTY COMMISSIONER, COMMERCIAL TAXES DEPARTMENT, PATNA NORTH CIRCLE AND GANDHI MAIDAN CIRCLE, PATNA--- ------------------------------------RSPONDENTS ----------- 6 23.3.2010 The Court fails to understand the manner and mechanism by which power is being exercised by the executive. There can not be a better example of non-application of mind than the present case. The Court certifies this position after verifying the counter affidavit which has come to be filed on behalf of the District Magistrate, Patna in this regard. The reason for the petitioner to approach the High Court is that in terms of the scheme or the policy framed by the State Government under the provisions of Bihar Entertainment Tax Act, 1948, the petitioner is entitled to certain exemptions which are reflected in annexure-1 to the writ application. By virtue of the said notification movie halls engaged in commercial exhibition, after making incremental capital investment of a minimum of Rs. One crore for up-gradation/modernization etc. of the theaters are to be exempted from the burden of entertainment tax. This exemption is to be granted by the Commercial Taxes Department on a certification of the licensing authority i.e. the District Magistrate. It is the assertion and claim of the petitioner that - 2 - modification and upgradation up to the limit indicated in annexure- 1 has been made and based on the expenses incurred by the petitioner in the said upgradation an application dated 5th January, 2009 contained in annexure-3 came to be filed. Since the District Magistrate is the licensing authority his recommendation is necessary for the Commercial Tax Department to act upon. But since nothing came to be done for many a months and non- decision has implication of financial kind upon the petitioner, the present writ application has come to be filed. In the counter affidavit filed on behalf of the Commercial Tax Department their stand is that the petitioner could be entitled to the benefit in terms of the scheme but a recommendation in this regard has to be made by the licensing authority. Since there is no recommendation received by the Commercial Tax Department so far the exemption being prayed for cannot be granted to the petitioner. After many an adjournments the District Magistrate, Patna has filed his counter affidavit. An effort has been made to explain the delay in the decision making process. But the Court is least impressed by the explanation offered. The grant of exemption to the petitioner cannot be linked with the policy decision relating to Khas Mahal land. It is the impression of the Court that two things have been mixed up for no rhyme and reason. What policy the Government would like to lay down for the Khas Mahal is not the question to be decided in the present - 3 - writ application. The issue is certification by the licensing authority whether the petitioner has made upgradation and invested enough capital in this regard. From perusal of the counter affidavit it is evident that only now the licensing authority has issued the proper direction in furtherance to the application made by the petitioner. This is reflected in the communication dated 6.3.2010 of the District Magistrate, contained in annexure-D. Since much time has already elapsed since an application contained in annexure-3 has been made by the petitioner, this writ application is disposed of with a direction that the District Magistrate shall ensure that his recommendation is communicated to the competent authority for them to take decision in terms of the policy and the notification contained in annexure-1 preferably within a period of three moths from the date of communication or production of a copy of this order. This writ application stands disposed of with the above direction. RPS (Ajay Kumar Tripathi, J.)