Judgment:
ORDER
Saldhana, J.
1. An interesting issue falls for determination in this petition and having regard to the fact that the decision would be one of serious consequence to a large number of similarly situated persons, we have taken up the petition for immediate hearing, at the instance of parties.
2. The question or rather issue that is involved is Whether in the case of a duly licenced Video Cinema, it would be permissible for the operator to avail of the use of projection equipment known in the trade circles as 'Entel' whereby the picture is projected on to a large screen or whether such action would contravene the provisions of the Bombay Cinemas (Regulation) Act, 1953 and the Maharashtra Cinemas (Regulation) Rules, 1966.
3. It has been contended by the petitioner before us that such activity is outside the scope of the licence issued under the rules for running of a Video Cinema. The submissions proceed further in so far as the petitioners contend that they are running a touring talkies and that by virtue of the fact that according to them, the Video Cinemas have now started using equipment whereby the film is projected on to a large screen, that they are virtually running a small Cinema on the basis of a licence for a Video Cinema. By so doing the petitioners state that their business is seriously affected. The petitioners are also required to pay duties at a higher rate, whereas the respondents who are admittedly carrying on similar activities are paying duties at a much lower rate as prescribed for Video Cinemas. It is obvious that as a result of this, the flow of customers to the Video Cinema would naturally be more and the petitioners have contended that their business has been virtually ruined. It is on the strength of this grievance that the present petition has been filed before us with the prayers that the State authorities be precluded from permitting the use of such equipment in Video Cinemas and the respondents 3 and 4 be prohibited from using the same.
4. We have heard the learned counsel appearing for the petitioners as also the learned counsel for the respondents, who in their reply admit that they are using the type of equipment that has been complained of but they contend that it is well within the four corners of the rules and consequently that they cannot, under arty circumstances be stopped from using this equipment. Mr. Patil, the learned Government Pleader representing the State was asked to clarify the Govern-ment's stand on the matter as we were desirous of knowing the exact position since different Collectors appear to have taken divergent views. Mr. Patil has pointed Out that pursuant to the introduction of V.C.Rs. and their wide use, the Government made certain amendments in the Act and the Rules for purposes of permitting the use of this category of equipment. Mr. Patil points out that the rules are self-contained and that as far as the grant of licences were concerned, that the action was strictly in conformity with the regulations.
5. The petitioners run a touring theatre at Kanhan, which is a Tehsil place, situated in the coal-mine area of Nagpur District. They possess the requisite licence for running the threatre. The 3rd and 4th respondents, namely, Shankar Video and Bharat Video, run video cinemas in the same area. The 2nd respondent, who is the Collector of Nagpur, on behalf of the State of Maharashtra the 1st respondent, has issued the requisite licences to the 3rd and 4th respondents for running the video cinemas in question. That these licences have been validly issued and that they are current is not in dispute. The petitioners have objected to the type of licence that has been issued to 3rd and 4th respondents, who, under the guise of running a video cinema, have installed a projection device known in trade circles as 'Enter which uses a sophisticated but very compact projector for purposes of transmitting the picture on to a conventional type of screen which has been referred to by the petitioner as a 'big screen'. They have pointed out that the dimensions of the screen vary, but that in the present case they measure 16 'x 22' which in other words is equal to the screen used by the conventional cinemas for showing of the 35 mm film. It has also been pointed out that maximum 75 persons can be admitted in the video cinema hall and the area required for that is 85 Sq. meters and minimum distance between the screen and the first row prescribed is only 1.80 meters as against the prescribed area equivalent to width of the screen in a cinema under R. 13(iv). Submission with some justification is that such a wide screen was not in the mind of the rule makers at the time of framingspecial rules for video cinemas.
6. The petitioners have challenged the grant of such permission by the Collector on the ground that it is not permissible for the authorities within the framework of the rules, to grant a l icence which specifies the exhibition by means of Video Cassette Recorder/ video cassette player or such similar device. It is argued that the term 'or such similar device' is a blanket permission authorising the use of the video projector and screen, both of which are not contemplated in the case of video cinema- The petitioners alleged-that to that extent the action of respondents 1 and 2 is liable to be struck down or rather that the scope of the licence be legally limited to be in conformity with the Act and the Rules and the provisions of the Bombay Cinemas (Regulations) Act, 1953 and the Maharashtra Cinemas (Regulation) Rules, 1966 as amended up to date.
7. The issue involved in this petition is one of far reaching consequences and it would, therefore, be necessary for us to briefly summarize not only the rival contentions head by head but also advert, briefly, to some of the material placed before us. For this purpose, it would be useful to first record the defence or the justification put forth on behalf of the Video cinema operators. They maintain that everything done by them is within the four corners of the law and that they are not to be blamed if customers prefer their form of entertainment either because it is cheaper, more efficient or for any other reason and as a necessary consequence that their right to carry on business cannot be either curtailed or infringed upon merely because the petitioners may be losing revenue. This last aspect of the matter deserves to be disposed of first because the respondents are quite right in pointing out that they cannot be stopped from doing business as long as it is in conformity with legal provisions, even if the inevitable result is the loss of revenue to a rival operator whose technique may be obsolete or unattractive. We do not for a moment question the basic right of the video operators to carry on their form of business and for that matter neither do the petitioners. All that is asked isthat reasonable restrictions be imposed and applied with regard to the manner in which such business is carried out for the reason that the law requires it.
8. As far as the technique that is employed is concerned, it has been pointed out by the operators that they are still using the conventional form of video cassette recorder / player and that a recorded video cassette is utilised in the process. It is their contention that neither do the legal provisions nor, for that matter, do the terms of the licence requires them to use a conventional television set as a medium of projection for the picture. In the conventional T.V. receiver, the images are projected on to the glass picture tube which is located at the front of the set. The viewer faces the picture tube and is able to see the images either in colour or in black and white depending on the type of equipment and the programme that is projected. It is argued that the conventional T.V. set is ideally suited and is, in fact, meant for domestic use, which presupposes the fact that the viewing area is small and that the number of persons watching is few. Furthermore, T.V. set being both expensive and fragile, in a domestic set up, the chances of damage are under control, particularly to the picture tube, being made of glass. For purposes of viewing a video cassette, the video recorder/player is connected to the T.V. set which acts as a projector for the images which are displayed on the picture tube, in other words, that the T.V. set is not acting as a receiver but that it is being used as a projector-cum-screen for the benefit of the viewers. Just as there are numerous types of sizes of T.V. sets starting with the small portable ones to the relatively large ones, each varying in degrees of sophistication, the operators point out that with the advancement in science, more functional forms of projectors have been invented which perform the very same functions as the conventional T.V. sets in the matter of transmitting images and sound from the video cassette recorder/ player to the audience. The various brochures and literature put out by different manufacturers were shown to us from which the argument that crystallises is that it is unnecessary to use the conventional T.V. sets for reproduction of a film from a video cassette as there is no outside transmission that has to be picked up and converted into images and sound and for this purpose, therefore, only the projector part of the T.V. set is used in a video projector which throws the image on to a conventional white surface or the screen and which has the capacity of magnifying the images and sound to dimensions much larger than are possible on the picture tube of a normal T.V. set. Theentire attempt was in order to demonstrate that the technique used by the video operators was in no way different to the one employed in the conventional T.V. but that it is only a means of separating the T.V. receiver from the T.V. Projector and/or focussing the images on a white screen instead on the conventional picture tube with the advantage of amplification. Our attention was drawn to the fact that it has become common place in the case of sporting events of great significance or the like to erect such gigantic screens in public places and focus the verysame picture that one would see on the conventional T.V. screen in a manner so that thousands of people could view it. The entire effort is concentrated on pointing out that the charge against the operators that they are using either techniques or gadgets that are entirely different to the ones that are permissible is a fallacy.
9. The subsidiary arguments, which are not of much consequence, revolve around the fact that the quality of image that is projected on the wide screen through this method eliminates the possible strain on the eyes and ears of the viewers who would otherwise find it difficult to appreciate the film on a conventional T.V. screen which has its limitations of dimensions. It was contended that the angle of viewing that is possible in the case of a 51 c.m. T.V. set is necessarily limited and that it would just not be possible for more than about 20 persons at the very maximum to comfortably view such a show. The operators contend that it is not a matter of choice, but one of necessity that when tickets are sold that the customer be in a position to comfortably view and hear everything from where the customer is seated, which would not be possible if the image is displayed on the conventional T.V. set. To our mind, this last argument is wholly irrelevant to the legal challenge.
10. These contentions are seriously disputed by learned counsel representing the petitioner who, in the first instance, submits that an examination of the relevant legal provisions, to which we shall draw attention, necessarily contemplates the use of the conventional T.V. set and to this extent that is only permissible to utilise a system that has been expressly conceived of and specifically permitted by law. The fact that similarity may exist or that the technique may be broadly similar is not the point in issue, because the fundamental difference between a video cinema and the conventional cinema, such as the one run by the petitioners, is the use of a projector and screen. Learned counsel contends that a video cinema by necessary definition limited to a small area where persons are permitted to view a programme on a T.V. screen without the use of a projector and the conventional wide screen. In support of this contention, our attention was drawn to the Maharashtra Cinemas (Regulation) Rules, 1966 and it was pointed out that quite apart from the substantial scaling down of the licence fee that under Rule 24J only the provisions of Chapter, Rr. 3 and 4 of Chapter II, Rr. J 103 and 104 and of Chapter VIII Rr. 116, 125, 127, to 129 and of Chapter IX, Rr. 131 to 133 and of Chapter X alone apply and that no other provisions of the rules apply to the video cinema. In other words, the elaborate and strict regulations generally applicable to the buildings, electrical installations, fire fighting arrangements, safety and restrictions on number of cinemas population wise etc. are not made applicable to a video-cinema. Indeed even minimal restrictions applicable to touring cinemas do not apply. It is, therefore, argued that what was in contemplation was the use of the conventional video-Television process, in other words, the commercial exploitation of that process. The moment an attempt is made to enlarge the dimenstins, the number of viewers and to modify the technique with the use of a projector and screen, in actual fact, it constitutes transgression of the rules and amounts to the running of a conventional cinema, perhaps on a smaller scale which is impermissible without a cinema licence and conversely on the strength of a video cinema licence.
11. For purposes of resolving this controversy it would be essential to refer to some of the relevant provisions. Section 2(f-6) defines 'video cinema' as follows:- -
'(f-6) 'video-cinema' means any place wherein an exhibition of moving pictures or series of pictures is given by means of a video cassette recorder, video cassette player, or any such similar instrument or device through the medium of television.'
It will be seen from this definition that there is no ambiguity whatsoever with regard, to the legislative intent as far as the anatomy of a video cinema is concerned. It is true that the definition states that the medium for the exhibition of moving pictures can be a video cassette recorder/player of 'any such similar instrument or device'. The use of the word 'such' in the definition restricts the type of devices that can be used in the video cinema to ones that are similar in function to a video cassette recorder/ player. It is essential to bear in mind that the functioning of these gadgets is to pick up from the tape that is inserted into it the images and sound that have been so recorded and to reconstruct them into such sound and images in their original form. For purposes of such reconversion, it would be permissible for the operator of a video cinema to use gadgets that may not answer to the definition of a video cassette recorder or a video cassette player, but which perform identical functions and could, therefore, be termed as similar.
12. The first stage of the equipment having been specified, we come to the last part of the definition which, without any slightest tint of ambiguity or vagueness, very specifically and in terms postulates that the display has to be through the medium of a television. The definition leaves no option in this regard and requires no uncertain terms that the viewing medium or the gadget utilised for displaying the images and sound which the Video cassette recorder/video cassette player reconverts from the tape has to be a television set. As we shall presently point out, for obvious reasons, the most important being safety of the eyes and ears of the viewers the rules prescribe a minimum requirement of a 51 cms television set, as the smaller models are understandably inappropriate for a video cinema. With the advancement and improvement in technology and marketing, T.V. sets with larger screens are now available and the use of a larger screen T. V. set exceeding 51 cms. in a video cinema would be permissible as it would not in any manner offend the concept of a video cinema as defined.
13. It is necessary in this context, therefore, to note that the definition excludes the introduction of any other gadgets than the video cassette recorder/video cassette player and the T.V. In other words, the use of a projector, even if it were to be called a video projector, would not be permissible. The argument that the video projector and the screen are using the same technique as the T.V. set is unacceptable for the simple reason that such equipment is not only outside the definition, but is excluded by the spirit of the Section, and for good reason. The Act contemplates the existence of the conventional cinema and by amendment, the Act has made provision for this new form of exhibition, but the Act does not admit of the second encroaching on the first. What, in fact, has been attempted through the use of the 'Entel' equipment is to create a hybrid situation where the 'video projector' is used to confuse and get over the unpleasant fact that a T.V. set is not being utilised whereas in reality one is going back to the technique of the conventional cinema.
14. We draw considerable support in arriving at this conclusion from the literature relating to 'Enter equipment which is marketed also under the brand name of 'Cine vision' and possibly other names, but, in fact, conforms to the same process. It is described as 'A projector to give your Video Theatre the exciting impact of a Cinema Theatre.' The following extracts will amplify the position :--
'(i) Cine vision Hi-Beam 550 is a professional series of Projection T.V. system which is capable to give continuous programmes, of direct telecast or projection of prerecorded Video Cassettes through ordinary VCP/ VCR on wide screen presentation without the use of Television.
(ii) Conversion Hi-Beam 550 is capable for projection On ordinary plastic screen size --20' x 18', 16 'x l2', 12' x 9', 10' x 8' and 8' x 6', according to the choice and requirement of individual users.
(iii) The equipment is to be installed at a distance 1.5 times the width of the projection size and can be mounted either on ceiling or on the floor through special mounting brackets supplied with the equipments.
Most modern and reliable sound system comprising of Powerful Solid State Amplifier and two-tone Speaker systems are supplied with the equipment in order to give melodious and qualitative sound re-production exactly like in regular modern Cinema Houses. The sound systems are available for theatres having seating capacity from 250 to 750 Audience.
(IV) Now, Entel introducer PJ 180, the only superior Class Video Projector with latest technology from Japan. A Projector to give your Video Theatre the exciting impact of a Cinema Theatre.
(v) Your Multi-System VCRPAL/ SECAM/NTSC/M-NTSC can be connected to the Entel PJ 180 so that you can show Video Tapes from any part of the world in your Video Theatre.'
The literature relating to the Video Projector makes no secret of the fact that it claims to and, in fact, does convert from the video cassette recorder/player the images and sound through the use of a projector which are, in turn, transmitted to a large screen in a manner no different from the conventional cinema talkies. In effect, therefore, what is sought to be achieved is that the T.V., which is a necessary requirement under the definition, is eliminated and in sum and substance instead of utilising the conventional cine film, which is on reels, the more modern form of the same material recorded on a compact video tape is utilised. All this will go to show that the charge of the petitioners, which is to the effect that the respondents are, in fact, utilising the Entel equipment and running a conventional cinema, even if it is on a similar scale, is, in fact, justified. If one were to be more correct about the definition, the activity carried out by the 3rd and 4th respondents is not the running of the video cinema but, in fact, a mini theatre. By permitting such activity to be carried on through a misreading of the rules or by the issuance of a licence for such activity through a misconception of the rules, the respondents are acting in contravention thereof. It needs to be clarified, however, that, as rightly pointed out by the learned Government Pleader, the licences issued to respondents Nos. 3 and 4 do not anywhere permit them to use equipment other than what is required by the Act and the Rules.
15. Considerable reliance was placed by both the parties on certain references as appearing in the rules which, to our mind, do require consideration. The first of them is the provision appearing in rule 241 (4)(i), which reads as follows:--
'(4)(i) the distance between the television screen or any other screen used for exhibition of video cinema and the front row of seats shall not be less than 1.80 metres:'
16. Learned counsel appearing on behalf of the operators placed considerable emphasis on the phrase 'any other screen' and contends that the rules do specifically contemplate a screen other than the T.V. screen. The contention is that this rule which refers to 'T.V. screen JDT any other screen' in no uncertain terms indicates that it shall be permissible to use a screen other than a T. V. screen and that, therefore, the large screen which is being used by respondents 3 and 4 is within the permissible type of screen as contemplated by the rules. We have considered the various submissions advanced in this regard and specifically sought a clarification from the learned Government Pleader appearing on behalf of the State as to what the term 'any other screen' would indicate. Mr. Patil pointed out that in so far as the rules would not permit the reproduction of the picture through the medium of any instrument other than a T. V. set that it could only be a reference to an addition to the normal T.V. screen which is very much in vogue. Considering the fact that apart from the additional filter screens which are often used in front of the Television, it is necessary to note that where the desire is to provide as good a viewing picture as possible to all the customers apart from a filter, is would be permissible for the operator to use a magnification screen for the benefit of the customers, Such a screen would necessarily have to be placed at a short distance in front of the T. V, set and this rule which prescribes the minimum distance from the viewing surface to the front row could only refer to such an additional screen. It would not at all be permissible in the light of the definition referred to by us earlier and the fact that the medium for showing the picture being the T. V. set, for the operator to be permitted to use a conventional cinema screen because that could only be done by eliminating the T.V. set and using a projector. Further reliance was placed by the respondents' counsel on rule 241 (4)(ii) which reads as follows:--
'241 (4)(ii) the television set used for exhibition through the video cassette recorder, video cassette player or any other instrument shall be kept on an elevated fixed platform so as to be visible to the viewers sitting in the last row.'
Learned counsel contends that the phrase 'or any other instrument' as appears in this rule contemplates the use of an instrument other than the T.V. and video cassette recorder/ player and necessarily refers to a video projector. We are unable to accept this contention because it would amount to tearing the phrase out of the genera! context and admitting a meaning that does not fit in with the overall scheme of the Act and the Rules. This rule unequivocally requires that the T.V. set used for exhibition must be kept on an elevated fixed platform so that it is visible to the viewers sitting at the last row. There cannot be the slightest ambiguity about the fact that the rule contemplates a situation where the T.V. set on which the picture is to be viewed must be kept facing the viewers at an elevated place, obviously in order to afford a clear vision to all of them. This is because unlike in a cinema theatre where the seals are generally arranged on an inclined slope, the sitting arrangement in a video cinema is on a flat surface. The viewers in the back rows would not be able to see the T.V. screen properly unless it is sufficiently elevated. The reference to the term 'or any other instrument' is an obvious reference to the video cassette player/video cassette recorder and takes into account any other similar instrument that may be used for playing the cassette and which may not go by the same trade name. We do not, therefore, accept that this rule can in any way assist the respondents.
17. Once again, reliance was placed on the wording of rule 241 (4)(iii) which reads as follows:--
'(4)(iii) the size of the television screen or screen used for any other media shall not be less than 51 centimetres.'
The reference to the minimum size of 51 cms. is a requirement whereby a T.V. set with its screen of less than 51 cms, such as a small portable T.V., cannot be used. Learned counsel for the operators however, contends that the term 'or screen used for any other media' must necessarily refer to a screen other than the T. V. screen, such as the one used by the Entel projector. He argued that the reference to any other media, in conjunction with the screen which states that this equipment shall be other than the T. V. screen, clears all doubt and in terms permits the use of the Entel equipment. In our view, the manner in which these rules have been generally framed and worded does leave scope for argument of this type and it is most unfortunate that the State Government has not taken the trouble to ensure that minor inconsistencies and ambiguities were eliminated. It has been pointed out with considerable justification that the rules are drafted in a shoddy fashion and this provides the implementing authorities with elbow room to turn a Nelson's eye at infringements of the present type and to even provide justification for acting contrary to the spirit of the provisions on the ground that such a course of action is permissible by virtue of the unsatisfactory wording. We are reminded in this context of the following verse attributed to an unknown British poet:
'I am the Parliamentary draftsman
I draft the country's laws
And of half the resulting litigation
I am undoubtedly the cause.'
18. In our considered view; nothing in the rules can override the definition in the Act and, therefore, the only possible reading of this most unsatisfactorily worded rule can be an innovated form of the very equipment itself. We have dealt in detail with the ambit and scope of the concept and a video cinema within the framework of the Act and the Rules and suffice it to say that a redundant word or phrase appearing in one of the rules can never be pressed into service for purposes of changing the permissible technique in a video cinema.
19. Learned counsel appearing on behalf of the operators then drew our attention to S. 2(j) of the, Bombay Entertainment Duty Act, 1923 as amended up to date and the 'definition of the term 'video exhibition' which reads as follows:--
' 'video exhibition 'means an exhibition of a cinem atograph film or moving pictures or series of pictures organised for a financial gain by playing or replaying a pre-recorded cassette by means of a video cassette player or recorder either on the screen of a television set or video-scope or otherwise, at a residential or non-residential place of entertainment, other than a hotel or a public vehicle, which is or which is not licensed under the Bombay Cinemas (Regulation) Act, 1953 and the rules made thereunder or under any law for time being in force.'
He sought to place reliance on the fact that this Act contemplates a situation where the exhibition is done through the means of a 'video scope or otherwise' and he contended that it is very clear that the Legislature had in mind exhibition through the use of video projectors. It is unnecessary for us to deal with this argument in any detail because the licensing statute is the Bombay Cinemas (Regulation) Act, (953 and the exhibition is governed by the Maharashtra Cinema (Regulation) Rules, both of which circumscribe the type of equipment that can be used in a video parlour. S. 2(j) of the Bombay Entertainment Duty Act, 1923 deals with video exhibition and takes into account any exhibition whether or not the same is under licence. We are in this case concerned with the aspect of licensing only and not with the levy of entertainment duty which may for obvious reasons take into account even other forms of exhibition or entertainments.
20. There is yet another angle to this issue. Video show of the type respondents 3 and 4 are showing is virtually a cinema show in truth and substance. Rule 24(j) exempts the video cinema from certain regulations. Entertainment duty for cinema is also much higher. Interpretation sought to be canvassed on behalf of respondents 3 and 4, if accepted, renders equals as unequals and unequals as equals and threatens the relevant rules with vice of being violative Arts 14 and 19(i)(g)of the Constitution. The rule of interpretation demands that if possible interpretation which saves the validity of the rule has to be preferred.
21. Our attention was invited by the learned counsel for respondents 3 and 4 to two Division Bench decisions of Madhya Pradesh High Court: in the case of Anand Jaiswal v. State AIR 1987 KP96 and. Jaiswal v. Dist. Magistrate. Sahdol, : AIR1989MP143 . The Division Benches 'were essentially concerned with different regulations wherein there is no definition of the term 'video cinema'. Moreover, what is laid down is that by executive instructions the restriction on the large screen cannot be imposed. In this matter, we are concerned with a different situation and with a larger issue raised before us which was not raised before the Madhya Pradesh High Court. We also see a conflict between two decisions. The following observations in the former case are to the point :
'We would like to make it clear that the licensee in view of the existing rules and licensing conditions, is certainly not entitle to use a separate screen apart from the screen of the picture tube of a television receiver with a view to enlarge the image...............
We may, however, make it clear that this shall not permit the petitioner to use a separate screen to enlarge the picture produced on the screen of the picture tube'.
The above observations precede the quotation of following passage from the book 'Television theory & Servicing' by Clyde H. Herrick:
'A black-and-white television system comprises a transmitter and a receiver as the transmitter utilizes a television camera, which breaks the image up into tiny picture elements. These picture elements are changed into electron (electric) currents, which are suitably processed and fed to a transmitting antenna. From the antenna, the television signal is radiated in the form of electromagnetic waves. At the receiving location the incoming electromagnetic waves stricken the receiving antenna. In turn the waves are fed to the television receiver. These signal currents are suitably processed and finally produce a visible image on the screen of a picture tube.'
22. Undoubtedly in the later decision, a different note is struck. What has weighed with the learned Judges is various developing technological aspects of video exhibition. The view taken is that his technology has come to stay and must not be discouraged. But this in our view does not mean that all technologies -- irrespective of their varying nature and impact -- can be similarly treated for the purpose of their regulation.
23. In the result, the petition succeeds. Having regard to the unsatisfactory manner in which the prayer clauses are worded, we direct respondents 1 and 2, their officers and licencing authorities in the State (i) to restrain from issuing licences for the conduct of video cinemas, which use systems having separate projectors and separate screen (ii) to issue video licence to only those who use T. V. Sets with in-built picture tube of a size more than 51 cms. and (iii) to forth with cancel such illegal licences if issued and to stop shows on separate screens in video cinemas.
24. We are informed by Shri Patil, the learned Government Pleader that different and contradictory view has been taken by the different Collectors in the State. We, therefore, direct the State Government to issue appropriate directions to all Collectors and to send a copy of this judgment to them.
25. Rule made absolute accordingly. No order as to costs, Copy out of turn.
26. Rule made absolute.