Karnataka High Court
M/S. Vinayaka Video Theatre vs The Principal Secretary on 9 November, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
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®
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 09TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION NO.11016 OF 2011 (CINEMA)
BETWEEN:
M/s. Vinayaka Video Theatre,
Neelakanteshwar Temple Street,
Opposite Janatha Bazaar,
Santhepet,
Chitradurga,
By its Proprietor,
Sri. B.M. Prasanna Kumar,
Son of B. Mallanna,
Aged about 45 years. ....PETITIONER
(By Shri. Ramachandra .H, Advocate)
AND:
1. The Principal Secretary,
Revenue Department,
Vidhana Soudha,
Dr. Ambedkar Veedhi,
Bangalore - 560 001.
2. The Deputy Commissioner
and District Magistrate,
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Chitradurga. ... RESPONDENTS
(By Shri. K.S. Mallikarjunaiah, Government Pleader)
*****
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to quash Annexure-K, the
endorsement issued by the second respondent dated 14.2.2011
and direct the second respondent to issue license to the
petitioner theatre to exhibit the show through compact disc or
through V-SAT technology.
This petition coming on for Hearing this day, the Court
made the following:
ORDER
Heard the learned Counsel for the petitioner and the learned Government pleader.
2. The petitioner is said to be a proprietary concern engaged in the business of exhibition of films under the name and style of "Vinayaka Video Theatre". The petitioner claims that it had entered into an agreement dated 1.8.2006 with another concern, M/s Valuable Media Private Limited, which in fact, is said to be a sister concern of one M/s UFO India 2 -3- Limited (Hereinafter referred to as the 'UFO', for brevity) Kalidasa Road, Gandhinagar, Bangalore.
It is the case of the petitioner that it was mutually agreed between the parties that UFO would install the equipment for the benefit of the petitioner to exhibit films, on lease basis for a period of ten years. It was further agreed that UFO was to provide equipment for the theatre to exhibit digital cinema. The said digital equipment, according to the petitioner, includes a digital server connected to a computer with all accessories. According to the petitioner, he had paid the lease charges and other incidental expenses to UFO.
Prior to the agreement entered into between the parties, the petitioner had obtained the necessary license from the second respondent, to exhibit the films through the medium of a Video Cassette Recorder (Hereinafter referred to as the 'VCR', for brevity) and a Television screen, dated 10.1.2002. The license has been renewed from time to time to exhibit films as aforesaid. He has been screening films as such and had 3 -4- requested the Ministry of Information and Broadcasting, Government of India, to issue a No Objection Certificate to screen video shows. However, the Ministry of Information and Broadcasting, Government of India, by a letter, dated 11.12.2007, informed the second respondent that it is not in a position to supply video cassettes of approved films to such exhibitors to fulfill the conditions of license to be issued and therefore, it was not possible to certify films for exhibition. However, it was indicated that it had no objection to grant licenses to such exhibitors. That letter dated 11.12.2007 is at Annexure-C to the writ petition.
The petitioner's grievance was that the officers of the second respondent are obstructing the petitioner from exhibiting films using a laser disc video recorder.
In order to overcome the day-to-day harassment from the second respondent's officers, the petitioner had approached this court and had filed a writ petition in WP 4876/02, questioning 4 -5- the action of the said officers, which was disposed of by an order dated 20.3.2003, with an observation that the writ petition was premature, while reserving liberty to the petitioner to approach this court as and when it had a cause of action. The license however, was renewed up to 26.12.2009. The petitioner had submitted an application to the second respondent on 23.12.2009 seeking further renewal for the period 2009-10. The application filed by the petitioner was pending. On 23.6.2010, a notice was issued by the second respondent, cancelling the exhibition of video films, without giving an opportunity of hearing to the petitioner. Being aggrieved by the same, the petitioner had filed yet another writ petition in WP 25958/2010, challenging the impugned order at Annexure-G, and the writ petition was disposed of on 5.1.2011, reserving liberty to the petitioner to make a representation to seek issuance of license for exhibition of films recorded on Compact Discs (Hereinafter referred to as the 'CDs', for brevity) or through VSAT Technology, and the second 5 -6- respondent was required to consider the said representation in accordance with law and the regulations applicable. Liberty was also reserved to the petitioner to make a representation within a period of two weeks from the date of receipt of a certified copy of the order. The second respondent was to consider the same within a time frame of six weeks. The petitioner had accordingly made a representation. On receipt of the representation, an endorsement has been issued dated 14.2.2011, intimating the petitioner that in view of Rule 6(3) of The Karnataka Exhibition of Films on Television Screen through Video Cassette Recorder or Laser Disc (Regulation) Rules, 1984 (Hereinafter referred to as the '1984 Rules', for brevity), there was a prohibition for the issuance of a license to exhibit films using VSAT technology and that the petitioner could use only a VCR. The same is marked at Annexure-K. Being aggrieved by the impugned endorsement, the petitioner is before this court.
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3. The learned Counsel for the petitioner would highlight the circumstance that the 1984 Rules, which are quoted by the respondents are clearly outdated. The learned Counsel for the petitioner would draw attention to the provisions of the 1984 Rules and the fact that the said legislation contemplated a film being cinematographed and recorded on a video cassette tape or a laser disc and using a VCR or a laser disc player. It is to be noticed that even cinematographed exhibition of films recorded on laser disc was incorporated by way of amendment, only in the year 2002. The learned Counsel would submit that the legislation had stopped short of considering the development of technology as it stood in the year 2000 and the law makers have remained blissfully unaware of, and oblivious to, the strides that are made in technology over the past decade and this has resulted in the respondent-authority taking a closed view in rejecting the petitioner's request for renewal of license on the ground that the rules in question do not provide for licensing the exhibition of films through VSAT technology. 7 -8-
4. As seen from the impugned order, the authority has stated that the petitioner cannot be permitted to exhibit films with the use of VSAT technology as the Rules do not contemplate the same. The counsel for the petitioner has placed reliance on a decision of this court in the case of RADHIKA VIDEO CENTRE, TUMKUR AND OTHERS VS. THE DISTRICT MAGISTRATE, TUMKUR DISTRICT, TUMKUR AND OTHERS, 2003 (5) KLJ 354. In the said case, this court was dealing with a batch of writ petitions wherein the petitioners had claimed that they were entitled to install Laser Disc Player or a Video Compact Disc Player in their video theatres for the purpose of exhibition of cinematograph shows. The Rules, as the same stood prior to amendment of the year 2000 (which came into effect from 30.10.2002), contemplated the exhibition of films on television screens only through a VCR.
5. This court referred to the decision of the apex court in Senior Electric Inspector vs. Laxminarayan Chopra, AIR 1962 8 -9- SC 159. The apex court, in that case, was considering whether the definition of "telegraph line" in the Indian Telegraph Act, 1885, which was included by reference to the Act, was wide enough to take in electric lines used for the purpose of wireless telegraph and whether the old maxim "Contemporanea exposito est optima et fortissima in lege" (The best and surest mode of construing an instrument is to read it in the sense which would have been applied when it was drawn up), could be invoked in construing the provisions of a modern statute. The apex court, while noticing that in the year 1885, the Legislature could not have dreamt of the future discovery of wireless telegraphy and therefore could not have intended to use the expression "telegraph line" in a comprehensive sense so as to take in electric wires of a receiving station of wireless telegraphy - has discussed the scope of the above maxim in its application to the interpretation of modern statutes as follows:
" 8. It is necessary to consider the scope of the said maxim in its application to the interpretation of 9
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modern statutes. In Craies on Statute Law, 5th edn., the said rule is explained in the words of Coke thus at p.77:
" This and the like were the forms of ancient Acts and graunts, and the ancient Acts and graunts must be construed and taken as the law was holden at that time when they were made."
The discussion ended with the following words at p.79:
" In Assheton Smith v. Owen, 1906-1 Ch 179, Cozens-Hardy, L.J., said: 'I do not think that the doctrine of contemporanea expositio can be applied in construing Acts which are comparatively modern,' and the Court declined to apply the rule to the interpretation of local Acts of 1793 and 1800." In Halsbury's Laws of England, 2nd edn., Vol. 32, it is stated in the context of telegraph legislation thus at p.4:
"The fact that new methods of telegraphy have been invented since the date of passing of the Acts containing the definition does not prevent the application of the Acts to such methods, provided that they answer the requirements and fall within the terms of the definition."10
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In Sutherland's Statutory Construction, 3rd edn., Vol. 2, dealing with the said maxim, the learned author states at p. 508 as follows:
"As a general rule it may be stated that legislative intent should be determined as of the time the legislation goes into effect. But surrounding circumstances, and situations occurring after the enactment of the statute may be of great or even conclusive assistance in determining a meaning which was intended to be conveyed. Legislative standards are generally couched in terms which have considerable breadth. Therefore a statute may be interpreted to include circumstances or situations which were unknown or did not exist at the time of the enactment of the statute."
Decided cases accepted the said liberal approach in construing modern statutes. In Attorney-General v. Edison Telephone Co. of London, (1880) 6 QBD 244 a telephone was held to be a "telegraph" within the meaning of the Telegraphs Acts, 1863 and 1869, although the telephone was not invented or contemplated in 1869. Stephen, J., observed at p. 254:
"Of course no one supposes that the legislature intended to refer specifically to telephones many years before they were invented, but it is highly probable that they would and it seems to us clear 11
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that they actually did, use language embracing future discoveries as to the use of electricity for the purpose of conveying intelligence."
The Privy Council in In re, Regulation and Control of Radio Communication in Canada, 1932 AC 304 held that broadcasting fell within the meaning of the expression "telegraphs" in S. 92 of British North America Act, 1867, though at the time when that Act was made broadcasting was not in vogue. In R. v. Brislan; Ex parte Williams, (1935) 54 CLR 262 the question was whether a law of the Commonwealth Parliament with respect to radio to broadcasting was one with respect to "Postal, telegraphic, telephonic and other like services under S. 51(5) of the Australian Commonwealth Act, and the Court held that the words were wide enough to take in radio broadcasting. In James v. Commonwealth of Australia, 1936 AC 578, Lord Wright has stated the principle in felicitous language thus:
"....... the meaning of the words changes, but the changing circumstances illustrate and illuminate the full import of that meaning."
This Court in construing the words "sale of goods"
in Entry 48, List II of the Seventh Schedule to the Government of India Act, 1935, accepted the 12
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aforesaid principle in State of Madras v. Gannon Dunkerley & Co., (Madras) Ltd., 1959 SCR 379:
(AIR 1958 SC 560) and restated it at p. 416 thus: "The principle of these decisions is that when, after the enactment of a legislation new facts and situations arise which could not have been in its contemplation, the statutory provisions could properly be applied to them if the words thereof are in a broad sense capable of containing them."
The legal position may be summarized thus: The maxim contemporanea expositio as laid down by Coke was applied to construing ancient statutes, but not to interpreting Acts which are comparatively modern. There is a good reason for this change in the mode of interpretation. The fundamental rule of construction is the same whether the Court is asked to construe a provision of an ancient statute or that of a modern one, namely, what is the expressed intention of the Legislature. It is perhaps difficult to attribute to a legislative body functioning in astatic society that its intention was couched in terms of considerable breadth so as to take within its sweep the future developments comprehended by the phraseology used. It is more reasonable to confine its intention only to the circumstances obtaining at the time the law was made. But in a modern progressive society it would be unreasonable to 13
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confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human activity. Indeed, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them. We cannot, therefore, agree with the learned Judges of the High Court that the maxim contemporanea expositio could be invoked in construing the word "telegraph line" in the Act."
This Court hence held that the definition of "cinematograph" under the Karnataka Cinemas (Regulation) Act, 1964 - included any apparatus for the representation of moving pictures or series of pictures.
Accordingly, those writ petitions were allowed and even though the Rules at the relevant time did not contemplate the 14
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exhibition of films through the medium of a compact disc player or a laser disc player, the same was directed to be permitted.
6. Though the petitioner, in the present case on hand, has not chosen to explain, in the body of the petition, as to the details of the present technology that is sought to be employed by the petitioner in exhibiting films, the following is gathered from material presented at the time of hearing. VSAT (Very Small Aperture Terminal) is a satellite communication system that serves home and business users. A VSAT end-user needs a box that interfaces between the user's computer and an outside antenna with a transceiver. The transceiver receives or sends a signal to a satellite transponder in the sky. The satellite sends and receives signals from an earth station computer that acts as a hub for the system. A Digital Cinema System is sought to be employed by the petitioner.
This means an alternate mode of transmission of films to theatres electronically by satellite or fibre optics where 15
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after the image is stored in a Digital Video Server. Once the film is stored in the server, the same is played out and the signal is fed to a video projector and displayed on to the theatre screen. A Digital Versatile or Video Disc Player (Hereinafter referred to as the 'DVD', for brevity) can also be substituted for the server and the signal is routed through a projector and displayed on the screen.
It is apparent that the petitioner seeks to graduate into a more sophisticated cinema system employing satellite receiving systems, play-out servers, digital projectors, computer systems and other equipment.
It is even possible for this court to acknowledge that the legislature has not addressed the explosive advances in technology especially the free access to uncensored live content, by individuals with the use of unlicensed permissible systems and equipment, from any corner of the globe. 16
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In so far as the law regulating exhibition of cinematography, it is not so much the medium utilized for exhibition which is sought to be regulated, but the content of the exhibition apart from the conditions that affect the health and safety of the general public.
In so far as the exhibition of films on television screens are concerned, there are special conditions imposed namely that the films exhibited are certified by the Censor Board and are covered under the provisions of the Copy Right Act, 1957 (Hereinafter referred to as the 'CR Act', for brevity). The licensee is prohibited from exhibiting any film, other than a film, which has been certified as suitable for public exhibition by the authority constituted under Section 4 of the Cinematograph Act, 1952, and which when exhibited, displays the prescribed mark of the Board of Film Censors and has not been altered or tampered with in any way since such mark was affixed thereto.
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7. In the light of the above, the objections filed on behalf of the State, to this petition, is to the effect that exhibition of films through VSAT Technology is prohibited. This is not evident from the provisions of law. The provisions however, do not contemplate the technology. It is also indicated in the impugned endorsement that the petitioner can only be permitted to exhibit films using a Video Cassette Player or a Laser Disc Player.
In the opinion of this court, the use of equipment to exhibit films can only be checked if it poses any health hazard or is otherwise illegal in any manner. The absence of recognition of the particular system or equipment, under the Rules or other Regulations, ought not to prevent such use of the same. However, the licensee is not to be thereby enabled to exhibit content which has not been duly certified as suitable for public exhibition by the competent authority. 18
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Therefore, the respondents shall with the assistance of competent technical experts examine the manner in which the VSAT systems or Digital Cinema Systems are operated. If it is established that uncensored live content is capable of being exhibited, without any possibility of regulating or curbing such mischief, the respondents shall be justified in seeking to prohibit or restrain the petitioner from exhibiting films using the newer technology. On the other hand, if it is otherwise possible to restrict and regulate the exhibition of films ensuring due compliance with all applicable Rules and Regulations, the respondents shall re-consider the case of the petitioner to license the use of such technology. The respondents shall undertake and complete such exercise not only with reference to the systems and equipment sought to be used by the petitioner, but with reference to all similar systems or equipment utilised by the trade within the State of Karnataka or elsewhere and prepare a detailed report, preferably in English, which may prove useful for several other purposes, including 19
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the introduction of the necessary legislation to govern the same. The respondents shall endeavor to carry out such exercise, as directed above, within a period of four months, if not earlier, from the date of receipt of this order.
Sd/-
JUDGE Rd/- / nv 20