RESTAURANT LEE Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS order shall also dispose of Miscellaneous Petitions 676, 677, 678, 679, 689. 835, 902, 923, 968, 995, 998, 1008, 1011, 1012, 1013, 1014, 1154 and 1180, all of 1983. The petitioners in all these petitions except M. P. No. 1180 are proprietors of cafes and restaurants in different parts of Madhya Pradesh. They have their association bearing the name Madhya Pradesh Video Vyawasai Sangh. This association is the petitioner in M. P. No. 1180. The petitioners have installed in their restaurants Video Cassette Recorder (VCR) and Television (TV) sets. With the help of these the customers coming to their restaurants are shown motion pictures at particular timings. These timings of the 'show' and the pictures are advertised in bigger towns in daily newspapers or on boards. In smaller towns the advertisement is by word of mouth. The customer is ostensibly charged ranging between Rs.-/8/- to Rs. 1. 50 for tea or coffee or similar other drinks and/or some snacks. Entry in some cases is by purchase of coupons or tickets. In other cases payment is made agains a bill. The motion pictures shown are prerecorded on cassettes of magnetic tape which are relayed by the VCR on TV screen. The VCR and TV sets of the petitioners are licensed under the Licensing of Wireless Receiving Apparatus Rules. 1965 and the Indian Wireless Telegraphy (Possession) Rules. 1965 which have been respectively made under Section 7, Telegraph Act. 1885, and Section 10. Wireless Telegraphy Act. 1933. The licences held by the petitioners are commercial licences as distinguished from domestic licences. On these facts which were admitted by the learned counsel for the parties during the course of arguments, the common question that arises in these petitions is whether the use of VCR and TV sets by the petitioners in their restaurants in the manner stated above contravenes the provisions of the Madhya Pradesh Cinemas (Regulation) Act. 1952 and the Madhya Pradesh Entertainment Duty Act, 1936.

(2.) WITH the consent of the learned counsel appearing for the parties, return filed by the respondents i. e. the State of Madhya Pradesh and the district authorities in Misc. Petition No. 556 of 1983 has been accepted as return in all the petitions. The Central Circuit Cine Association. Bhusawal. was allowed to intervene in M. P. No. 556 of 1983 and it has filed a separate return.

(3.) BEFORE proceeding to discuss the contention raised in these petitions, it is convenient to notice first the relevant statutory provisions. To begin with the Constitution; Parliament has exclusive power to legislate with respect to "posts and Telegraph, telephones, wireless, broadcasting and other like forms of communication" under Entry 31 of List I of Schedule VII. Parliament has also exclusive power on the subject of "sanctioning of Cinematograph films for exhibition" under Entry 60 of List I. The State Legislature, on the other hand, has exclusive power to legislate on the subjects of public Order and public health under Entries (1) and (6) of List II. It has also exclusive power with respect to "theatres and dramatic performances, cinemas subject to the provisions of Entry 60 of List I. sports. entertainments and amusements" under Entry 33 of List II. Further, it has also exclusive power under Entry 62 of List II to impose "taxes on luxuries, including taxes on entertainments, amusements, betting and gambling. " At the time when the Constitution was framed, television was not introduced in India. With the introduction of television Parliament enacted the Telegraph Laws (Amendment) Act, 1961 to amend the definition of "telegraph" in the Telegraph Act. 1885 and the definition of "wireless communication" in the Wireless Telegraphy Act. 1933 to put the matter beyond controversy that these definitions are wide enough to cover transmission and reception of visual images by television. Section 4 of the Telegraph Act which controls the establishing, maintaining and working of telegraphs enacts that the Central Government shall have the exclusive privilege of establishing, maintaining and working telegraphs. The first proviso to Section 4 says that "the Central Government may grant a licence on such conditions and in consideration of such payments as it thinks fit to any person to establish, maintain or work a telegraph within any part, of India. " "telegraph" is defined by Section 3 (1) to mean "any appliance, instrument material or apparatus used for, capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic omissions radio waves or hertzian waves, galvanic, electric or magnetic means". The Telegraph Act does not control mere possession of wireless telegraphy apparatus. Mere possession is controlled by wireless Telegraphy Act. Section 3 of which provides that no person shall possess wireless telegraphy apparatus except under and in accordance with the licence issued under the Act. Section 5 deals with licences. This section provides that the telegraph authority constituted under the Telegraph Act shall be the authority competent to issue licences to possess wireless telegraphy apparatus under the Act. "wireless communication" is defined in Section 2 (11 of the Wireless Telegraphy Act. to mean "any transmission. omission or reception of signs, signals, writing, images and sounds or intelligence of any nature by means of electricity, magnetism or radio waves or hertzian waves without the use of wires Or other continuous electrical conductors between the transmitting and the receiving apparatus. "wireless telegraphy apparatus" is defined by Section 2 (2) to mean "any apparatus, appliance, instrument or material used or capable of use in wireless communication, and includes any article determined by rule made under Section 10 to be wireless telegraphy appara-tus. " As earlier stated, the Central Government has made the Licensing of Wireless Receiving Apparatus Rules. 1965 in exercise of its powers under Section 7 of the Telegraph Act. Rule 5 of these rules provided that licences shall be issued to persons in such form as may be prescribed by the licensing authority in accordance with the purposes for which they are required. Rule 11 says that a licence shall in addition to these rules be subiect to the conditions contained in the licence. The conditions governing licences are contained in Chapter IV of Wireless Licensing Manual issued by the Indian Posts and Telegraphs Department. It appears that there are two types of licences, domestic and commercial. A domestic licence permits the use of the wireless receiving apparatus for receiving programmes and messages transmitted for general reception but the apparatus cannot be used in business premises or in a room jointly used for residential and business purposes or for gain. The commercial licence permits the use of the wireless receiving apparatus in business premises, public places, rooms used jointly for residential and business purposes, or for gain, or for the benefit of passengers or for advertisement in public vehicles on roads or railways "for receiving programmes and messages transmitted for general reception". (Page 32 of the Manual ).