Ramakrishna Dish Antenna System Vs. the Deputy Superintendent of Police, Markapur and ors. - Court Judgment

Excerpt:
civil - licence - sections 3, 4 and 7 of telegraph act, 1885, sections 2 (1), 5, 6 and 10 of wireless telegraphy act, 1933, article 226 of constitution of india, section 38 of specific relief act, 1963, rule 4 of radio, television and video cassette recorder sets (exemption from licence requirement) rules, 1985, rule 1 of indian wireless telegraphy (possession) rules, 1965, rule 1 of commercial broadcast receivers (dealers) rules, 1965 and rule 1 of wireless receiving apparatus rules, 1965 - petitioner joined together for purchasing a disc antenna, amplifier and vcr to convey better images of picture broadcast by doordarshan and broadcasting programmes recorded in pre-recorded cassette - petitioner had no licence either in form b or form c under telegraph act or wireless telegraph act -.....orderjagannadha rao, j.1. in these writ petitions common question arise for consideration and can be disposed of together.2. the disposal of these writ petitions depends upon the provisions of the indian telegraph act, 1885 and the indian wireless telegraphy act, the radio, television and video cassette recorder sets (exemption from licensing requirements) rules, 1985, the indian wireless telegraphy (possession) rules, 1965, the commercial broadcast receiver licensing (dealers) rules, 1965 and the wireless receiving apparatus rules 1965 and other notifications and proceedings issued by the central government, as well as the provisions of the indian copyright act 1957 and the rules made thereunder and also the provisions of the cinematograph act and the rules mace by the state government.....

Judgment:
ORDER

Jagannadha Rao, J.

1. In these writ petitions common question arise for consideration and can be disposed of together.

2. The disposal of these writ petitions depends upon the provisions of the Indian Telegraph Act, 1885 and the Indian Wireless Telegraphy Act, the Radio, Television and Video Cassette Recorder Sets (Exemption From Licensing Requirements) Rules, 1985, the Indian Wireless Telegraphy (Possession) Rules, 1965, the Commercial Broadcast Receiver Licensing (Dealers) Rules, 1965 and the Wireless Receiving Apparatus Rules 1965 and other notifications and proceedings issued by the Central Government, as well as the provisions of the Indian Copyright Act 1957 and the Rules made thereunder and also the provisions of the Cinematograph Act and the Rules mace by the State Government thereunder.

3. Ths petitioners in each writ petitions are groups of associations of persons. They have joined together for purchasing a Disc (or Dish) antenna, an amplifier and a V.C.R. (Video Cassette Recorder) for use for two purposes, firstly to convey better images of the pictures broadcast by Doordarshan and secondly for broadcasting the programmes recorded in pre-recorded cassettes. The Disc antenna, the amplifier attached to it, the V.C.R. and the cable-system connecting the above to the individual T.Vs. of the members of the group are all common property. However, the individual T.Vs. in the houses of the members of the group located in or across the town are owned separately by each of the members. In each writ petition, the common property is owned by an association or group. The members initially pay a substantial amount running into thousands of rupees for purchase of the common property. They also make amonthly payment for the broadcast of not only the Doordarshan programmes effectively throughout the cable-system but also for the pre-recorded cassette programmes. The cassettes are generally hired from the market. The associations have not been paying any entertainment tax or any fee under Act or Rule. They have merely obtained permission of the Municipalities or Panchayats, as the case may be, for spreading the cables across the town or village by using poles.

4. I shall now explain in detail the two types of programmes for which the disc antenna, the amplifier, the cable, the V.C.R. and cassettes are used.

(a) The first type of programme that is cinveyed is as follows : --

The disc antenna is used for the purpose of receiving the images from the atmosphere as broadcast by the Doordarshan and then the images are amplified by means of an amplifier which is attached to the disc antenna. The above process involves the re-production of better magnetic waves which can be transmitted to the individual T.V. thereby the Doordarshan T.V. programmes can be viewed with greater clarity. The amplifier is connected by way of the cable system to the individual T.V. in the houses of the members of the associations or groups. I may here state that during the initial hearings of the case, the petitioners' counsel tried to make a submission that so far as the Doordarshan programmes are concerned, the cable system is not used and that the disc antenna merely receives the images from the transmitter installed by the Government and conveys the same through the air. But at the last hearing of the case when officials of the Doordarshan were also present in the Court. the learned counsel for the petitioners conceded fairly that the disc antenna can receive not only the images from the transmitter installed by the Government but can also receive images directly from the Satellite to some extent. He further conceded that the images of the Doordarshan programm.es so received are amplified by the amplifier and transmitted through the cable-system which runs along the town to the individual T.V. set of the members. Two important things to be noted here is the capability of the disc antenna to receive the images directly from the Satellite and the communication of these images through the cable system to the individual T.V. these images being broadcast by the Doordarahan.

(b) The second type of programmes that are shown are by the use of pre-recorded cassettes. The cassettes which are hired from the market and which contain pre-recorded programmes/cinema shows are inserted in the commonly owned V.C.R. and thereupon the cable system communicates the images throughout the town to the T.V. set of the individual member.

5. The question for consideration in these writ petitions is whether the petitioners can be permitted to use the above apparatus for the above said dual purposes without obtaining any licence under the rules made under the Indian Telegraph Act, 1885 and the Indian Wireless Telegraphy Act, 1933 or whether there are exempt under any exemptions granted under the above said rules.

6. It becomes necessary to refer to the relevant statutory provisions and the rules under different headings.

I. Indian Telegraph Act, 1885 :

7. Section 3(1) of the Indian Telegraph Act, 1885 (as amended in 1984) defines 'Telegraph' as follows:

'3 (1) 'Telegraph means telephone or any other instrument appliance material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electromagnetic emissions, radio waves or Hertzian waves, galvanic, electric optical or magnetic means.

Explanation : Omitted;

3 (4) 'telegraph line' means a wire or wires used for the purpose of a telegraph, with any casing, coating, tube or pipe enclosing the same, and any appliances and apparatus connected therewith for the purpose of fixing or insulating the same;

'Section 4 : Exclusive privilege in respect of telegraphs, and power to grant licences-- (1) Within India, the Central Government shall have the exclusive privilege of establishing, maintaining and working telegraphs;

Provided that the subject to such rules as may be made under this Act, 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.

..........'

8. Section 7 grants power to the Central Government to make rules for the conduct of telegraphs. Sub-clause (a) of Section 7(2) deals with the form of application for the grant of a licence to establish or maintain or work telegraphs and the fees therefor. Sub-clause (aa) of Section 7(2) provides the nature of the enquiry and the factors that are to be considered for granting or refusing such licence, in the interests of general public or for the proper conduct of the telegraphs. Sub-clause (ab) refers to the period for which and the terms and conditions subject to which Such licence shall be granted. Sub-clause (e) refers to the conditions and restrictions subject to which any telegraph line, cable chamber, tower, appliance or for telegraphic communication shall be established, maintained, worked, repaired, transferred, shifted. withdrawn or disconnected. Section 20 of the Act refers to the penalties that can be levied for violation of the provisions of the Act or the Rules. It says that if any person establishes, maintains or works a telegraph within India in contravention of the provisions of Section 4 or otherwise than as permitted by rules, he shall be punished, if the telegraph is wireless telegraph, with imprisonment which may extend to three years or fine or both such that the fine shall not extend beyond Rs. 5,000/- Offences under the Act are to be bailable and non-cognisable. However the Central Government can confiscate any telegraph which is subject-matter of such conviction. Section 20A again provides for a fine up to Rs. 5,000/- and a further fine of Rs. 500/- every week for breach Of conditions of licence. Section 21 deals with using unauthorised telegraph and the fine may extent up to Rs. 1,000/-. Section 32A gives power to various officers to investigate offences under the Act arid such officer can enter and inspect any premises or apparatus and Can also seize any telegraph apparatus, registers, or records etc.

II. Indian Wireless Telegraphy Act, 1933 :

9. Section 2(1) defines 'Wireless communication' as follows : --

'2(1) 'Wireless communication' anytransmission, emission or reception of signs)signals, writing, images and sounds, orintelligence of any nature by means ofelectricity, magnetism, or Radio waves ofHertzian waves, without the use of wires orother continuous electrical conductorsbetween the transmitting and the receivingapparatus:

Explanation: Omitted.

Section 2(2) 'wireless telegraphy apparatus' means 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 telegraph apparatus but does not include.....

Sections Licenses:-- The telegraph authority constituted under the Indian Telegraph Act, 1885 (13 of 1885), shall be the authority competent to issue licences to possess wireless telegraphy apparatus under this Act, and may issue licenses in such manner, on such conditions and subject to such payments as may be prescribed.

10. Section 6 provides for offences and penalties and states that any person possessing any wireless telegraphy apparatus, other than a wireless transmitter, in controvention of the, provisions of Section 3, is liable to fine up to Rs. 100/- and in the case of second offence up to Rs. 250/-. Sub-clause (1-A) further states that the person may be imprisoned up to three years or fine up to Rs. 1,000/- or be dealt with by imprisonment and fine. Section 7 states that, officers empowered by the Central Government may search any premises and take possession of any apparatus. Sections permits the Government to confiscate the property. Section 10 enables the Central Government to make rules. Sub-section (i) of Section 10(2) states that the rules may provide for determining that any article or classof article shall be or shall not be wireless telegraphy apparatus for the purposes of this Act. Sub-section (ii) read with Section 4 enables the Central Government to grant exemptions. Sub-section (iii) enables conditions to be imposed in licenses.

III. Form of applications and licenses under the Indian Telegraph Act 1885 for domestic T.V. or for Dealers of T.V./V.C.R. for receiving transmission from Indian Satellite.

11. We have a communication D/- 9-2-1988 from the Assistant Director-General (C.S. I), New Delhi, stating that in the circular D/- 31-12-1986 it was stated that licenses to operate T.Vs. and V.C.Rs. for receiving T.V. programmes from Indian Satellite are to be issued and that the application for such licenses should be in the form as stated in Annexure A. The format of licence for individual users will be as in Annexure B and the format for licences to dealers should be in Form as in Annexure C. In the discussion hereunder, these Annexures issued under the Indian Telegraph Act, 1885 are referred to as Form A, Form B and Form C (or as Annexures A, Band C).

12. Annexure A describes the form of application for the grant of licence to possess and operate T.V./Video Cassette Recorder set for receiving T.V. programmes direct from Indian Satellite etc. under the Indian Telegraph Act 1885. The said application in Form A contains a declaration as follows :

'3. I shall establish, maintain and work the a apparatus only at the place specified above.

4. I shall receive only the TV programmes from Indian Satellite specified above through the licenced apparatus.

5. I shall not use the licenced apparatus for transmitting the TV programmes to any other party on monetary or any other valuable consideration.

6. I shall abide by the Indian Telegraph Rules framed under Indian Telegraph Act.

7. I shall not lay or place any cables, wires or other apparatus whether used or intended to be used in conjunction with the licensed apparatus or not or whether forming part of licensed apparatus or not in, over, upon or under any land, ground, street, road or place in India and any permission required for the faying or placing of any cables, posts, wires at other apparatus as aforesaid shall be obtained by me at my own expense from the person, body corporate or company legally entitled to grant the same.

8. I shall not permit the use of licensed apparatus to interfere with other apparatus.'

Annexure B contains the form for domestic licenses for T.V./V.C.R. capable of reception from the Indian Satellite only. The licence is issued under the Indian Telegraph Act, 1885. It contains a condition that the licensee is permitted to receive only T.V. programmes from Indian Satellite. Condition No. 1 attached thereto reads as follows :

'This licence permits the use of theTelevision receiving apparatus describedherein for receiving programmes andmessages transmitted for general reception.In no case can the apparatus be used in abusiness premises or in a room jointly usedfor residential and business purposes, or forgain, for which a Dealer's Television ReceiverLicence is required. Where the licence isissued to an individual, the licence will besubject to this condition and the licensedapparatus shall be used only for private anddomestic purposes and in no case can theapparatus be used in a public place.

Condition No. 5 states inter alia as follows: --

5. ..... the possession of a wirelessreceiving apparatus without a valid licence is also punishable under the Indian Wireless Telegraphy Act, 1933.'

Condition No. 7 reads in part as follows:

'The licensed apparatus can be used by the licensee or the members of his household at the location or address specified.....'

Condition No. 9 reads as follows : --

'An aerial which crosses over, or is liable to fall or to be blown upon any telegraph or telephone line or overhead power (including electric lighting and tramway) wires must be guarded to the reasonable satisfaction of the owner of the power line or lines concerned so as to prevent any damage being done in the event of a break occurring.'

Condition No. 11 prohibits further transmission of the messages received and reads as follows: --

'Notwithstanding anything contained in condition 10 the licensee or any other person either on behalf or by the permission or with the cognizance of the licensee shall not reproduce or publish in the press or disseminate by other similar means programmes and messages received by means of the licnesed apparatus.'

Condition No. 12 further states that the licence does not authorise the licensee to do any act which amounts to an infringement of any copyright which may exist in the matter received by means of the licensed apparatus or act contrary to any rule made by a competent authority regulating musical or other performance or noises in the area in which the licensed apparatus is established.

13. Annexure C is format for dealer's licence for T.V. and V.C.R. capable of reception from Indian Satellite only. Condition No. 1 attached to the licence reads as follows:

'This licence permits the use of the television receiving apparatus described herein 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 transmitted for general reception.'

Condition No. 5 inter alia reads :

'.....the possession of a television receiving apparatus capable of reception from Indian Satellite without a valid licence is also a punishable offence under the Indian Wireless Telegraph Act, 1933.'

Under Condition No. 11 the licensee shall have to indemnify the Government and shall not reproduce or publish in the press or by similar means the programmes and messages received by the apparatus. Condition No. 12 states that the licence does not authorise the licensee to do any act which amounts to an infringement of any copyright which may exist in the matter received by means of the licensed apparatus, or contrary to any rule made by a competent authority regarding musical or other performance or noise in the area in which the licensed apparatus is established.

IV. Exemption Rules 1, 2, 3 issued in 1985 and the exception to the said rules issued in 1986 as Rule No. 4 :

14. I shall now refer to the exemption rules which have recently been issued by the Government of India in 1985 for not taking out licenses for radios, T.Vs. and V.C.Rs. These rules are of 1985 and are issued in G.S.R. 150(E) by the Central Government in exercise of the powers conferred by Section 7 of the Indian Telegraph Act, 1885 and also Section 10 of the Indian Wireless Telegraph Act, 1933. The rules are called 'Radio, Television and Video Cassette Recorder Sets (exemption from licensing requirements) Rules, 1985.' The said rules came into force from 17-3-1985. Rule 2 states that radio, television and V.C.R. sets shall not be wireless telegraphy apparatus for the purposes of Indian Wireless Telegraphy Act, 1933. Rule 3 provides that the licensing requirements under the 'Licensing of Wireless Receiving Apparatus Rules, 1965', Indian Wireless Telegraphy (Possession) Rules, 1965, and Commercial Broadcast Receiver Licensing (Dealers) Rules, 1965 do not apply in the case of 'working radio, television or V.C.R.'. It may be notedthat the second of the last mentioned rules of 1965 are made under the 1933 Act while the third of the above said rules of 1965 are made under both the Acts put together.

15. To the above exemption rules of 1985, an additional Rule 4 has been added in 1986 in G.S.R. No. 926/86 dt. 25-10-1986 which is relied upon by the respondent and it reads as follows :

'4. Notwithstanding any thing contained in Rules 2 and 3, any television set or video cassette recorder set used or capable of being used for the reception of transient images of fixed and moving objects, by the use of special antenna of any type and associated front and converter, direct from satellites operating in 'Broadcasting Satellite Service' or 'Fixed Satellite Service', shall be deemed to be wireless telegraphy apparatus for the purposes of the Indian Wireless Telegraphy Act, 1933 (17 1933), and no person shall establish, maintain or work, or possess, or deal in, such sets without a licence from the Central Government under Section 4 of the Indian Telegraph Act, 1885, (13 of 1885) or the Indian Wireless Telegraphy (Possession) Rules, 1965 or the Commercial Broadcast Receiver Licensing (Dealers) Rules, 1965, as the case may be.

Explanation :--For the purposes of this rule, 'Broadcasting Satellite Service' and 'Fixed Satellite Service' shall have the meanings assigned to them in the. Radio Regulation annexed to the International Telecommunication Convention, Nairobi, 1982.'

V. Other Communication from The Central Government.

16. The learned counsel for the Central Government has placed before me a communication issued by the Assistant Director General (G.S. II) in the Ministry of Communication from Delhi on 10th Mar., 1987 to a company Shyam Antena Electronic Communication System, A-4, C, Block Community Centre, Narayan Vihar, New Delhi, stating that the Government had delegated powers of licensing to the heads of Telecommunication Circles/Districts and the said letter further states 'it is requested that the customers may please be advised to approach the concerned authorities for obtaining the licence'. There is a further communication dt. 23-5-1988 issued by the Director, Home-E, 512 Sancharbhavan, New Delhi to all General Managers, on the subject of issue of licenses to operate, possess or dealing in T.V. and V.G.R. sets for distribution of programmes through cable net work.

Part 1 of that letter reads as follows :

'Your kind attention is invited to this office letter of even number dt. 31-12-1986 under which instructions were issued that any television set or video cassette recorder set used or capable of being used for receptionof television programmes direct from Insat 1B satellite would need licence for operation/ possession and by dealer of the said equipment. Para 3. of the said circular stipaltes that the licence would be issued by the concerned Divisional Telegraph/ Telephones and by the General Manager, Maintenance. New Delhi/Bombay in case of Delhi and Bombay.'

After the said communication, applications were received for grant of licence by clubs, associations etc. Cor use of Cable-T.V. for further 'transmission'. In regard to the Cable net-work, it is stated in the important communication dated 23-5-1988 above referred to by the Director, Phones, Delhi, as follows: --

Till the issue of instructions on the subject, no licence for establishing a Cable net-work for distribution of T.V./V.C.R. programmes should be issued. However, cases foe grant of licences for individual T.V./V.C.R. may continue to be dealt as before.'

An earlier communication of the Assistant Director General (C.S. 11) Dt. 15-10-1987 shows that 'complaints have been received that certain persons are illegally receiving T.V. programmes other than Insat. 1-B and the same is also illegal.

17. The first contention of. Sri V. Jagannadha Rao for the writ petitioners is that Rules 2 and 3 of the Radio, T.V. and Video Cassette Recorder Sets (Exemption from Licensing Requirements) Rules, 1985 which came into force from 17-3-1985, exempt the T.Vs. and V.C.Rs. used by the Association for playing the pre-recorded cassettes on the T.V. and for transmitting the same to the individual T.Vs. of the members.

18. In reply, I have heard Sri P.B. Vijayakumar for the Central Government and Sri Maheswara Reddi and Sri K. Somakonda Reddi for respondents.

19. It will be noticed that the provisions of the Indian Telegraph Act, 1885 have been substantially amended in 1984 by Parliament to meet the ever growing communication through use of latest scientific developments. Under Section 3(1) of the above Act 'telegraph' includes any instrument, appliance, material or apparatus used for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, radio waves or Hertzien waves, galvanic, electrical or optical or magnetic means. Under Section 4 the exclusive privilege in respect of telegraphs and the power to grant licences vests with the Government of India and nobody can use of privilege except with a licence. Forms A, B, C above-referred issued by Government of India are the respective form-for the application, form of licence for individual users and the form for use by dealers. Form B, for users, contains condition No. 1 that the licensee is only permitted to receive T.V. programmes from Indian satellite. The apparatus cannot be used for 'gain' for which a Dealer's T.V. Receiver licence in Form C will be necessary. The condition No. 7 states that the licence apparatus can be only by the licensee at the location or address specified. Condition No. 11 prohibits further transmission of messages received.

20. I. Disc antenna (or Dish antenna), amplifier and common V.C.R., T.V. and Cable system: Now the Disc Antenna, it is conceded, receives the waves not only from the Transmitter, but also directly from the Satellite. At any rate, the Disc antenna, it is not disputed, is being used for receiving and transmitting, the signs, writing, images etc. broadcast by the Doordarshan through the satellite. The Disc antenna, it is conceded, transmits the waves through atmosphere as well as by means of the cable/amplifier to the T.V., V.C.R. and to other T.Vs. in different houses by cable. In my view, it squarely falls within the definition of 'telegraph' in Section 3(1) of the Indian Telegraph Act, 1885 as amended in 1984 and a B-Form licence is necessary for users. The exemption Rules do not apply as a Disc is not a T.V. or V.C.R. Even if a B-Form licence is obtained, under condition No. 1, the apparatus cannot be used for 'gain'. A dealer in T.V. or V.CR.s, has to obtain licence in Form C. In view of Conditions No. 1 and No. 11, above noted, such B Form licensee cannot transmit messages so received. In fact, the initial application in Form A contains a declaration in condition No. 5 that only messages will be received had not transmitted to any other party for monetary or any other valuable consideration. Therefore, it is clear that the Disc antenna which receives the waves, images or sounds, cannot, even if a licence in Form B is obtained, (cannot) be used to transmit the waves, images or sounds.

21. In fact, the letter of the Central Government dt. 23-5-1988 clearly states that, as on that day, licences are still under contemplation for cable-net-work systems. It is, therefore, obvious that without a licence in Form B, there is no authority even to receive signals, images and sounds through a Disc antenna (or Dish antenna). Even if such a licence in Form B is to be obtained, there will be no authority for any person to transmit the same unless a license for such transmission is contemplated to be issued and actually issued by the Government. As on today, no procedure is in vogue, as per Government orders, to permit transmission, no licenses are contemplated or issued. In such a situation, the petitioners who have not even licences under Form B had no authority even to receive the waves through a Disc or Dish antenna. As no licences are yet contemplated to enable transmission, such transmission through Disc antenna is a fortiori prohibited. Not only are penal provisions of the Indian Telegraph Act, 1885 attracted but even the penal provisions of the Indian Wireless Telegraph Act, 1933 are attracted in view of condition No. 5 of theForm B licence. This is because of Section 2(1) of the Wireless Telegraph Act, 1933 which defines 'wireless communication' in Section 2(1) as including reception and transmission of such waves and also because of the definition of 'Wireless telegraphy apparatus' in Section 2(2) and the need to obtain a licence under Section 5 of that Act for possessing a wireless telegraphy apparatus.

22. So far as the common T.V. and V.C.R. owned by all the persons are concerned, they are to be used merely for receiving the images broadcast by the Doordarshan. If their use is confined only to receive those images and the common T.V., V.C.R. are in no way connected to the Disc antenna, they squarely fall under Rules 2 and 3 of the 'Radio, Television and Video Recorder Sets (Exemption from Licensing Requirements) Rules, 1985' and there is no need to obtain any licence under the Indian Telegraph Act, 1885 or the Indian Wireless Telegraph Act, 1933 or the Licensing of Wireless Receiving Apparatus Rules, 1985 or the Indian Wireless Telegraphy (Possession) Rules, 1965 or in case of dealers, the Commercial Broad cast Receiver Lice rising (Dealers) Rules, 1965.

23. But once the common T.V. and V.C.R. are connected to the Disc (Dish) antenna, the amplifier and the cable system, they lose the benefit of the above exemption under Rules 2 and 3 and squarely fall under R. 4. Inasmuch as it is not disputed that the Disc antenna (Dish antenna) receives or is capable of receiving not merely the waves transmitted by the Transmitter but also the waves transmitted by the satellite, the common T.V., V.C.R. are to be deemed, under Rule 4, to be 'Wireless Telegraphy Apparatus' for the purposes of the Indian Wireless Telegraphy Act, 1933 (17 of 1933) because no person can establish, maintain or work or possess or deal in, such T.V. or V.C.R. sets without a licence from the Central Government under Section 4 of the Indian Telegraph Act, 1885 or the Indian Wireless Telegraph Act, 1933 or the Wireless Telegraphy (Possession) Rules, 1965 or if he is a dealer, the licence under the Commercial/Broadcast Receiver Licensing (Dealers) Rules, 1965. Further even if a licence is obtained by users under Form B or by dealers in Form C, they have to give an undertaking in Form A (a) that they shall not transmit the T.V. programme by means of such T.V., V.C.Rs. for monetary or other gain and (b) that they shall not transmit the T.V. programmes. As per condition No. 1 and condition No. 11 of Form B, the license is only for receiving the waves or images but not for transmitting them.

24. II. So far as the individual T.V. set sin the residences of the respective owners are concerned, if they are receiving the T.V. programmes by themselves, without any connection with the Disc antenna, amplifier and cable system, there is no difficulty and they stand exempt under Rules 2 and 3 of the exemption rules of 1985 introduced for owners of Radios, T.Vs. and V.C.Rs. But once they receive the Doordarshan waves/images amplified by the Disc antenna, through the amplifier and cable system, as is conceded before me on facts, these individual T.Vs. also lose the exemption under Rules 2 and 3 and fall under Rules 4 inasmuch as they become T.V, sets used or capable of being used for the reception of transit images by use of the special antenna and become 'Wireless Telegraphy Apparatus' for purposes of the Indian Telegraphy Act, 1933 and because no person can establish, maintain or work or possess or deal in, such sets without a licence from the Central Government under Section 4 of the Indian Telegraph Act, 1885 and the Indian Wireless Telegraphs (Possession) Rules, 1965.

25. In fact, it is clear from the communication of the Government of India dt. 23-5-1988 above referred to that for 'transmission' by Use of cable T.V. net work, the Central Government which has the exclusive rights with regard to these systems, has not even contemplated to issue licences.

26. It is ununderstandable how the various companies selling Disc Antenna (Dish Antenna) equipment through cable net work are advertising publicly that no licence is required either for the Disc antenna (Dish antenna), the amplifier, the common V.C.R., T.V. or the Cable system or for the individual T.Vs. of members which are using antenna for purposes of reception. In fact the Central Government had clearly informed one dealer, as earlier stated, on 10-3-1987 that licences have to be taken in Form B and Form C even for receiving, by use of Disc antenna, the Waves transmitted by Doordarshan. It is a pity that the dealers are misleading the customers and the customers are in their turn misleading the individual T.V. owners that no licences are required. It is clear that even for establishing, maintaining or possessing or dealing-in Disc (Dish) antenna, amplifier, common T.V., V.C.R. and cable-system and the T.V. sets of individual householders which receive images through cable system, they all require licenses in Form e if they are not dealers and in Form 'c' if they are dealers, under Section 4 of the Indian Telegraphs Act, 1885 read with the Indian Wireless Telegraphy (Possession) Rules, 1965 and (in case of dealers) read with the Commercial Broadcast Receiver Licensing (Dealers) Rules, 1965. These licenses permit them merely to receive the Doordarshan programmes directly from the Satellite or Transmitter and even after getting Form A/B licences, none of these items -- including the Disc (Dish) antenna, amplifier, cable net work, common V.C.R., T.V. can be used to transmit any such images without permission of Central Government and the Government is yet to evolve a procedure for licensing such transmission. In the result, all these petitioners will have to be treated as persons/groups offending the penal provisions of the Indian Telegraph Act, 1885 and the Indian Wireless Telegraph Act, 1933 for working without a Form B licence and for transmitting the images illegally even before the Government has evolved a procedure for transmission of such images. The dealers, in my view, must have Form C licence and have no right or authority to mislead customers saying that the customers need not have any licence (e.g., Form B licence) nor to telling them that they can use the Disc antenna and Cable T.V. system for transmission of messages. The dealers also therefore fall within the penal provisions of both the above statutes.

27. III. So far as the transmission of pre-recorded casettes is concerned. this is again done by use of the commonly owned V.C.R. and T. V, and the cable net work. Under Rules 2 and 3 of the Exemption Rules of 1985 above referred to, what are exempt are only the V.C.R. and T.V. used for personal use without any further transmission. But, once the cable net work is used for transmission of these images, sounds from pre-recorded cassettes, though R. 4 of the exemption Rules does not come into play so far as images received by using the Dish antenna, still the common T.V., V.C.R. come under 'Wireless Telegraphy Apparatus' under the Indian Telegraphy Act, 1933 because no person can establish, maintain or work or possess such sets without licence under Form B, as per the Indian Telegraph Act, 1885 read with the Indian Wireless Telegraphy (Possession) Rules, 1965 or in case of dealer, the Commercial Broadcast Receiver Licensing (Dealer) Rules, 1965. Thus the use of the cable T.V. system without licenses in Form B or C, as the case may be, attracts the penal provisions of both Acts. Even if the owners of common T.V., V.C.R. have a licence under Form B, they cannot use them for gain or for transmission of images, as per the undertaking in the Form A application and conditions No. 1 and No. 11 of the licence in Form B.

28. A question came up before the Delhi High Court in 1984 (before the Indian : Telegraph Act was amended in 1984). In Balwinder Singh v. Delhi Administration. : AIR1984Delhi379 , there the petitioner owned a V.C.R/V.C.P. and a T.V. set. He had, in fact, taken out commercial licences for the V.C.R./V.C.P. and the T.V. as opposed to licence for domestic purposes. He had paid the higher fee postulated for taking out a commercial licence. He hired a commercial shop in Delhi and installed T.V. and Video sets and was displaying films and charging Rs. 2/- per show per head inclusive of entertainment tax. The sitting capacity, was 25. He admitted liability to pay entertainment tax as per the principle laid down by the Supreme Court in the Video-games case, Geeta Enterprises v. State of U.P., : [1983]3SCR812 . The respondents insisted on a licence under the Cinematograph Act, 1952 before he can exhibit films. The petitioner prayed for a writ of Prohibition restraining the respondents from interfering with the conduct of the video shows, and contended that the said Act did not apply to video shows and that Article 19 was offended. The learned Judges referred to the provisions of the Indian Wireless Telegraphy Act, 1933 in Sections 4, 5 and to the definition of 'Wifeless Telegraphy Apparatus' in Section 2(2). They also referred to the unamended provisions of 'telegraph' in Section 3(1) of the Indian Telegraph Act, 1885 and Section 4. Though the petitioner had a commercial licence under the Indian Telegraph Act, 1885, it was held not sufficient to enable him to run a mini-cinema. After referring to condition No. 1, their Lordships set out condition No. 12 which prohibited reproduction or publication of any material by using the apparatus and condition 13 which prohibited the licensee from doing 'any act which is contrary to any rule made by a competent authority regulating musical or other performance or noise in the area in which the licensed apparatus is established.' The learned Judges held that the provisions of the Cinematograph Act, 1952 applied to these shows and that, as the business pf the petitioner was without a licence under that Act, there is a violation of condition No. 13 of the license granted under the Indian Telegraph Act, 1885 and hence no injunction could be granted. They observed :

He can receive messages on his television or receive the films transmitted by the video on the television. He can do no more, if there are any rules which prohibit him from doing | so.'

The Bench held that not only the television butalsothe V.C.R, come within Section 3(1) of the Telegraph Act, 1885. They observed that a V.C.R. was 'an appliance capable of use of transmission of signs, signals, images and sounds' and was also a 'telegraph'. They also held that both the T.V. and the V.C.R. were 'cinematograph' under Section 2(c) of the Cinematograph Act and followed the decisions of the Madhya Pradesh High Court in Restaurant Lee y. State of Madhya Pradesh, AIR 1983 Madh Pra 146 and of the Bombay High Court in Dinesh Kumar Hanuman Prasad v. State of Maharashtra, : AIR1984Bom34 .

29. In Restaurant Lee's case, AIR 1983 Madh Pra 146 decided by the Madhya Pradesh High Court, the T.V. and V.C.Rs. of the petitioners were licensed under the Licensing of Wireless Receiving Apparatus Rules, 1965 and the Indian Wireless Telegraphy (Possession) Rules, 1965 which rules are made respectively under Section 7 of the Telegraph Act, 1885 and Section 10 of the Wirless Telegraphy Act, 1933. These were commercial licences as distinguished from domestic licences. The question was whether by showing prerecorded cassette programmes through a T.V, and V.C.R. in the restaurant hall there was violation of the M.P. Cinemas (Regulation) Act and the M.P. Entertainments Duty Act, 1936. The Court held that a licence is required under the former M,P. Act and that, if the petitioners did not stop exhibiting the movies without a licence, the authorities could take action under the Act Coming to the latter M.P. Act, dealing with taxation, they held that the exhibition of films was an entertainment Referring to the unamended provisions of the Copyright Act, 1957, the Court left the matter open.

30. The Madras High Court, in Entertaining Enterprises v. State, : AIR1984Mad278 considered the constitutional validity of the T.N. Exhibition of Films on Television Screen through V.C.Rs. (Regulation) Act (7/1984) and the provisions of the unamended Copyright Act, 1957. They referred to the Madhya. Pradesh judgment and also an unreported judgment of the Karnataka High Court in connection with the applicability of Cinematograph regulations. Our High Court had also to deal with the applicability of A.P. Cinemas (Regulation) Act, 1955 and A.P. Entertainment Tax Act, 1939 to T.V. and V.C.Rs. in M.V.S. Free Video Parlour v. State of A.P., (1986) 2 APLJ (HC) 16. The Delhi, Madras, Madhya Pradesh, Andhra Pradesh and the Bombay High Courts decisions did not have to deal with the amended provisions of the Indian Telegraph Act, with the licences in Form B and Form C, and the exemption rules for Radio, T.V. and V.CRs. issued in 1985 or the Rule 4 issued in 1986. Except for the discussion regarding the commercial licences in the Delhi case (which, by comparison of the conditions, appears to be different from the present Form C licence), the above decisions do not have much bearing on the present case.

31. However, the learned counsel for the respondent Sri Maheswara Reddi, representing some cinema owners, has placed before me a judgment of a single Judge of the Rajasthan High Court in M/s. Krishna Talkies, Malpura v. Benigopal Jhalan, C.R.P. No. 369 of 1988, reported in (1988) 1 Raj LR 1044 decided by justice G.K. Sharma. Though it is not an authorised report, I shall refer to it, as it deals with cable T.V. net work. There the petitioner appears to have filed a civil suit for perpetual injunction restraining the respondents from exhibiting feature films through their satellite disc. In that case, the respondents applied for a licence (either in Form B/Form C above referred to) to operate TV/VCR set for 'receiving' T.V. programmes direct from the Indian Satellite under the Telegraph Act, 1885. A licence was granted on 17-2-1988 by the office of the Telecom Dt. Engineer. Then, the respondents started using a Cable net work for transmitting' the images so received to the various T.Vs. in different houses of the members. The petitioner relied upon letters of the Central Government authorities in D.O.T. No. 5-4/86-PHC dt. 31-12-1986 and 17-8-1988 stating that the T.V., V.C.R.' are not to be used for other purposes. The learned Judge referred to the application for grant of licence (Form A above referred to), wherein in para 4 the applicant undertook only to receive the images/signals. The respondent-applicant had no licence to use the apparatus for transmission. The learned Judge also referred to a condition in the licence that the licence shall not be used for any reception or transmission purposes other than the purpose applied for. It was therefore held that the respondents therein should be restrained from using the T.V., V.C.R. Disc antenna, Cable net work for transmitting images.

32. A-copy of the issue of 'Screen' dt. 27-1-1989 was placed before me referring to an interim order of the Bombay High Court passed by Smt. Sujata Manohar, J. in a Disc Antenna-- Cable net work case -- restraining the defendants from in any manner communicating by way of exhibition or broadcast to any one, any film, which whether by wire or wireless diffusion, including cable T.V. or Dish Antenna, for which the defendants did not possess any licence. In that case the plaintiffs also referred to the amendments of the Copyright Act, 1984.

33. The next aspect to be considered isthe right of inspection, search and seizure. Inthe Indian Telegraph Act 1885, a new Section 32Ahas now been introduced in 1984 which saySthat any gazetted officer of the CentralGovernment authorised by it, by general orspecial order, may, if he has reason to suspect'the commission of any cognizable offenceunder the Act, investigate such offence. Hemay ask for information, or enter and inspect,for purposes of investigation, at all reasonablehours, any place or premises, for the purposeof examining any telegraph apparatus,registers, records or other documents andrequire the production thereof for inspection.He may examine any person in charge of thepremises or that person's employees. He maymake copies of the books, extracts etc. andwhere he has 'reason to believe' that any suchoffence under the Act has been committed,search the premises or place and seize anytelegraph apparatus, registers, records orother documents as he may consider relevantin respect of that offence etc. The provisionsof the Cr.P.C. 1973 are to apply, so far as maybe, to any search or seizure as they apply toany search or seizure made under theauthority of a warrant issued under Section 94 ofthat Code.

34. Likewise, under Section 7 of the Indian Wireless Telegraph Act, 1933, any officer specially empowered by the Central Government in that behalf, may search any building, vessel or place in which he 'has reason to believe' that any wireless telegraphy apparatus, in respect of which an. offence punishable under Section 6 has been committed is kept or concealed and take possession thereof. Apparatus can be confiscated under Section 6(3) of the Act.

35. It will he noticed that under the Indian Telegraph Act 1885 and the Indian Wireless Act, 1933 the above powers of inspection, search and seizure are to be conferred only on officials of the Central Government by the Central Government.

36. The question as to how far programmes exhibited through a Dish antenna, at the individual residences of the members (but not at a single common restaurant type hall) fall under the provisions of the A.P. Cinemas (Regulation) Act, 1955 or under Appendix-IX of the Rules made thereunder (i.e., Rules and specifications applicable to the public exhibition of films on video) does not arise for decision in this case and I am therefore not referring to the powers of inspection, search or seizure in the said Act and Rules.

37. However, it is necessary to notice the Copyright (Amendment) Act 1983. Under that amendment of 1983 (Act 23/83), S. (dd) is introduced defining 'broadcast' as communication to the public.

(i) by any means of wireless diffusion whether in any one or more of the forms of signs, sounds or visual images; or

(ii) by wire and -includes rebroadcast. Section 2(ff) is introduced defining 'Communication to the public' as communication to the public in whatever manner, including communication through satellite; and Section 2(g) j is amended stating 'delivery' as including 'broadcast'. Section 2(m) defines 'infringing copy' and includes the infringement right to the 'broadcasting right' of Government of which the Government is declared as sole owner, unless licence is given. Section 51 deals with the acts which constitute rights of infringement of copyright. Under Section 37(1), (2), the Government, for every programme broadcast by Government there is a 'broadcast reproduction right' statutorily vested in Government for 25 years and under Section 37(3)(a) no other person can, without a licence either (i) rebroadcast or (ii) cause the programmes to be heard in public.

38. Again the Copyright Act is amended in 1984 by Act 65/1984 under which an Explanation is added in Section 2(f) stating that Video' films 'shall also be deemed to be work produced by a process analogous to Cinematography. Section 2(hh) is introduced defining 'duplicating equipment' as may mechanical contrivance or device used or intended to be used for ma king copies of any work. Again Section 52-A is newly introduced and Sub-section (2) thereof says : 'Section 52-A(1).....

(2) No person shall publish a video film in respect of any work unless the following particulars are displayed in the video film, , when exhibited, and on the video cassette or other container thereof;

(a) to (c).....

Again Section 63 is amended raising the extent of the sentence of imprisonment/fine. Section 63-A is introduced for enhanced penalty on second and subsequent convictions. Section 64(1) is newly substituted and reads as follows :

'Section 64(1): any police officer, not below the rank of a Sub-Inspector, may, if he is satisfied that an offence under Section 63 in respect of infringement of Copyright in any work has been, is being, or is likely to be, committed, seize without warrant, all copies of the work, and all plates used for the purpose of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable be produced before a Magistrate.'

39. It will thus be seen that while the powers of inspection, search and seizure are vested in the officers of the Central Government under the Telegraph Act 1885 and the Wireless Telegraph Act, 1933, there are provisions in the Copyright Act, which confer powers on police officers not below the rank of Sub-Inspector, for seizing without warrant the infringing copies of the work and plates.

40. In the present cases before me, (e.g., W.P. No. 349/89) the Union Government is impleaded through the Secretary. Information and Broadcasting. The State of Andhra Pradesh and the Circle Inspector are also impleaded apart from the MandaI Revenue Officer, for restraining them not to interfere with the cable-T.V. system and showing of films:

41. In my view, no blanket injunction against the Central Government or its officers or against the State Government or its officers or the Police Officer can be granted.

42. As already stated, the petitioners have no licence either in Form B or Form C under the Telegraph Act 1885 or the Wireless Telegraph Act, 1933. They only have a licence from the local authority to take the cables across the town/village concerned. I have held that the Disc(Dish) Antenna and the amplifier and common V.C.R., T.V. and Cable network, all require licences under the Telegraph Act 1885 read with the Wireless Telegraph Act 1933. I have also held that for installing and 'receiving' by means of the individual T.Vs., the programmes broadcast by the Doordarshan licence in Form B is necessary. 1 have a so held that 'reception' of pre-recorded cassettes through cable-network requires the same licences. So far as 'transmission' of programmes of Doordarshan, the Government which is exclusive owner of the privilege is yet to evoke a procedure to issue licences. Likewise under Section 37 of Copyright Act, licences for 'broadcasting' is necessary. Receipt of prerecorded cassette programmes without licence a nd their transmission offend likewise the 1885 Act and 1933 Act.

43. Temporary or permanent injunction by way of writ of mandamus cannot be granted either under Article 226 of the Constitution of India or under Section 38 of the Specific Relief Act, 1963 when there is no existing legal obligation in favour of petitioners. The petitioners' conduct of business through the cable T.V. system without the requisite licenses does not entitle them to the grant of any relief as claimed

44. For the aforesaid reasons, all the writ petitions are dismissed and the interim orders granted in the W.P.M.Ps. are all vacated.