1. The petitioners are distributors and exhibitors of cinematographic films (now referred to as 'films'). The question raised in the petition is whether they are actual users of films within the meaning of the Import Policy, 1978-79. The import of films is canalised by that policy through the first respondent.
2. On 16th August 1978 the petitioners applied for the import of eight foreign feature films. They declared that 'the goods for the allotment of which this application has been made are meant for use in our own establishment at the above mentioned address for the distribution.' They further declared that 'if the goods are allocated to us, the same shall be utilised only in our factory/premises/establishments for the distribution/screening as indicated above...' On 26th September 1978 the first respondent informed the petitioners that it could only import films for distribution by itself and not for distribution by others. The petitioners then approached the 2nd respondent. He, on 5th December 1978, advised the petitioners to sort out the matter with the 1st respondent and the Ministry of Information and Broadcasting. On 20th February 1979 the petitioners wrote to the 1st respondent recording this correspondence and required them to confirm that the import required by them would be made. A letter was also written on that day to the 2nd respondent asking him to 'see to it' that the 1st respondent 'carries out its obligations under the Import Policy.'
3. On 6th April 1979 this petition was filed. It prays for a mandamus requiring the 1st respondent to import for the petitioners the films mentioned in their application.
4. Pursuant to what transpired at the hearing before Pendse J. on 9th November 1983, the 1st respondent's attorneys wrote to the petitioners' attorneys asking that the petitioners should substantiate the aforesaid declaration in the application by furnishing details of their own establishments where the imported films would be used and furnish details of ownership or such information as would establish that such establishments were the petitioners' own establishments. On 25th November 1983 the petitioners attorneys wrote to the first respondent a letter which did not furnish the information required. All that it said of a factual nature was that the petitioners had held import quotas as established importers and the films imported by them were exhibited in cinema houses hired under weekly or monthly contracts and that the 1st respondent had itself entrusted to the petitioners the exhibition of films imported by the first respondent for distribution. On 16th December 1983 the first respondent addressed a letter to the petitioners' attorneys and informed them that it was observed upon the letter of the petitioners' attorneys dated 23rd November 1983 that the petitioners did not have a theatre of their own and that they had not produced any evidence in support of their contention that they were in a position to exhibit feature films in cinema-houses hired to them. Since no evidence was forthcoming and upon the basis of the statements of the petitioners themselves, their application was rejected An amendment to the petition challenges this rejection.
'Actual User' is defined by para 5 of the Import Policy for 1978 79 Clause (I) reads thus:
(1) 'Actual User' means a person who applies for secures a licence for the import of any item or an allotment of a canalised item required for his own use, and not for business or trade in it. Thus in the case of an industrial undertaking, the item concerned shall be utilised for the manufacturing processes or operations conducted within its authorised premises (or made available to jobbing units outside only as part of such production effort). In the non-industrial category, such as hospitals, research and development or any other institutions, commercial establishments and individuals, the concerted item shall be utilised for its/his own use i e. for the purpose for which the item was sought for import.
Clause (4) specifically defines 'Actual User (Non-industrial)' thus:
(4) 'Actual User (Non-industrial)' means:
(a) any commercial establishment which has been registered or holds a certificate for at least 3 years under the local law applicable to shops and Establishments generally and which carries on any business, trade or profession, whether for the purpose of gain or not, but does not include a shop, factory, residential hotel, restaurant or eating house; or
(b) any establishment holding a licence for at least 3 years under the local law relating to the exhibition of cinematographic films to the public at the authorised premises; or
(c) any person who, not being an employer or wage earner, is himself engaged in any profession or calling and has been assessed to Income-tax as such; or
(d) any laboratory, scientific or research and development institution, university or other educational institution, hospital or any other commercial establishment not included in (a) above; or
(e) any local authority.
5. It was contended by Mr. Patel, learned advocate for the petitioners, that an actual user included a commercial establishment which was registered under the applicable local law and which carried on any business, trade or profession. The petitioners were registered under the Bombay Shops and Establishments Act. They carried on the business of distribution and exhibition of feature films. They were not a shop, factory, residential hotel, restaurant or eating house. They were, therefore, non-industrial actual users entitled to call upon the first respondent to import for them the films mentioned in their application. Mr. Patel also sought to draw assistance from the definition of 'commercial establishment' under the Bombay Shops and Establishments Act. In his submission, it was not necessary that an actual user in relation to films should be one who owned a cinema theatre or held a licence for the exhibition of films.
6. The definition of 'actual user' in paragraph 5, Clause (1) states that 'actual user' means a person who applies for and secures a licence for the import of any item or an allotment of a canalised item required for his own use, and not for business or trade in it. This requirement embraces a non-industrial actual user. The exhibition and distribution of films is a business or trade. The petitioners carry on this business or trade. Therefore, the petitioners fall outside the scope of the definition of 'actual user' under the Import Policy.
7. Sub-clause (b) of Clause (4) of paragraph 5 defines a non-industrial actual user to mean also any commercial establishment holding a licence for at least three years under the local law relating to the exhibition of films. This sub-clause provides a special definition in regard to the actual user of films. An actual user of films must satisfy the conditions of that special definition Admittedly, the petitioners do not satisfy those conditions.
8. Upon both these counts, therefore, the petitioners are not actual users of films within the meaning of the Import Policy and are not entitled to require the first respondent to import for them any films.
9. The position is, accordingly, dismissed, with costs in twp sets. 10 Rule discharged.
10. Rule discharged.