MUSIC CENTRE, MANDSAUR v. STATE OF M. P. — 1988 DIGILAW 200 (MP)

G. G. SOHANI, A. C. J. ( 1 ) THE Order in this petition will also govern the disposal of Misc. Petitions Nos. 1483/84, 2063/84, 2258/84, 2237/84, 2335/84, 2336/84, 2755/84, 1751/84, 2060/85, 2122/85, 1875/85, 2476/85, 3045/85, 4107/85, 3700/85, 1192/85, 3579/85, 1253/85, 756/86, 2832/85, 1988/85, 3177/85, 2617/84, 2119/85, 1037/86, 3355/84, 840/85, 841/85, 749/86, 3902/85, 3676/85, 3279/85, 1109/86, 1986/85, 2050/85, 2228/85, 2604/85, 3715/85, 1163/86, 3207/85, 3326/85, 2589/84, 3167/84, 3489/84, 231/85, 3143/84, 136/85,1333/85 and 3272/85. ( 2 ) BY these petitions under Art. 226 of the Constitution of India, the petitioners have assailed the legality and validity of the proviso to R. 30 (1) of the Cinematograph Certification Rules, 1983, hereinafter referred to as the Rules. Though in the petitions, the petitioners had assailed the validity and legality of other provisions of law and the Rules, at the time of hearing, the petitioners confined their challenge to the proviso to R. 30 (1) of the Rules. The petitioners contended that the aforesaid proviso is ultra vires being beyond the legislative powers of the Parliament ; that it is vague and discriminatory, and that it, offends the rights of the petitioners guaranted by Art. 19 (1) (g) of the Constitution. ( 3 ) THE respondents and the Central Circuit Cine Association, which was allowed to intervene, resist the claim of the petitioners and contend that the petitioners are not entitled to any relief. They deny the allegation that the impugned proviso is unconstitutional or ultra vires. ( 4 ) BEFORE we proceed to appreciate the contentions advanced on behalf of the parties, it would be useful to refer to certain statutory provisions which are relevant. The Parliament has exclusive power under Entry 60 of List I of Schedule VII to the Constitution to legislate with respect to 'sanctioning of cinematograph films for exhibition'. The State Legislature has exclusive power under Entry 33 of List II of the Seventh Schedule to the Constitution to legislate with respect to 'theatres and dramatic performances, cinema's subject to the provisions of Entry 60 of List I. With a view to make provisions for certification of cinematograph films for exhibition and for regulating exhibitions by means of cinematograph, the Parliament enacted the Cinematograph Act, 1952 (hereinafter referred to as the Act ). Section 4 of the Act provides, that any person desiring to exhibit any films, shall in the prescribed manner, make an application to the Board of Film Certification, for a certificate in respect thereof and that the Board, may, after examining or having the film examined in the prescribed manner, sanction or refuse to sanction the film for public exhibition, as provided by that section. Section 5a of the Act providesfor certification of film. Section 6-A provides that any person who delivers any certified film to any distributor or exhibitor, shall, in such manner as may be prescribed, notify to the distributor or exhibitor, as the case may be, the title, the length of the film, the number and the nature of the certificate granted in respect thereof and the conditions, if any, subject to which it has been so granted and any other particulars respecting the film which may be prescribed. Section 7 (1) (c) of the Act provides for penalty if any person fails to comply with the provisions contained in S. 6-A of the Act. Section 8 of the Act empowers the Central Govt. to make rules for the purpose of carrying into effect the provisions of the Act. In exercise of powers conferred by S. 8 of the Act, the Central Govt. has made Cinematograph (Certification) Rules, 1983. Rule 30 (1) of the Rules prescribes the manner of compliance with S. 6a. That rule lays down that the manner of notification to the distributor or exhibitor for the purpose of S. 6a shall be by delivery of a duplicate copy of the certificate (containing both parts I and II thereof) with each copy of the certified film to be distributed or exhibited By a notification dated 28-2-1984 published in the Extraordinary Gazette of India, Part II, S. 3 sub-sec. (i), a proviso has been added to sub-rule (1) of R. 30. That proviso reads as under :"provided that in case of video film, a copy of part 1 of the certificate showing the serial No. , the category and other details, should be pasted on every video cassette as well as on its case. "it is the legality and validity of the aforesaid proviso that is challenged by the petitioners in these petitions. "it is the legality and validity of the aforesaid proviso that is challenged by the petitioners in these petitions. ( 5 ) THE fist contention urged on behalf of the petitioners is that the proviso to Rule 30 (1) of the Rules is outside the legislative competence of the Parliament. The argument advanced on behalf of the petitioners is that Entry 60 List I of the Seventh Schedule to the Constitution empowers the Parliament to make laws with respect to sanctioning of cinematograph films for exhibition and that this power does not carry with it the power to prescribe that a copy of the certificate should be pasted on every video cassette and its case. Reliance was placed on the decision in Entertaining Enterprises v. State, AIR 1984 Mad 278 and it was contended that the subject dealt with by the impugned provision was within the legislative competence of the State Legislature. ( 6 ) IT is now well settled, as held by the Supreme Court in M/s. Kasturi Lal Harlal v. State of U. P. , AIR 1987 SC 27 , that an entry in a legislative list must be read in its widest amplitude and the legislature must be held to have power not only to legislate with respect to the subject matter of the entry but also to make ancillary or incidental provision in aid of the main topic of legislation. Now 'sanctioning of cinematograph films for exhibition', a subject dealt with by Entry 60 of List I of the Seventh Schedule to the Constitution would necessarily include making an application for a certificate to a competent authority for exhibition of a film and obtaining such certificateprior to its exhibition. Entry 60 of List I would also include matters relating to exhibition of films without sanction. In the case of a certified film, a person who obtains a certificate is not necessarily the same who distributes the film to exhibitors or who exhibits the film. Therefore, S. 6-A of the Act casts a duty on a person who delivers a certified film to a distributor or exhibitor to give information in that behalf in the prescribed manner to a distributor or exhibitor. Therefore, S. 6-A of the Act casts a duty on a person who delivers a certified film to a distributor or exhibitor to give information in that behalf in the prescribed manner to a distributor or exhibitor. Section 6-A of the Act thus deals with a matter which is ancillary or incidental to the main topic covered by Entry 60 of List I. It is pertinent to note that the petitioners have not assailed the validity of the provisions of S. 6-A of the Act. If the provisions of S. 6-A are held to be valid and not outside the legislative competence of the Parliament, a rule framed for the purpose of carrying into effect the provisions of S. 6-A cannot be held to be invalid. It is true that in the case of a video film, the manner of notifying details as required by S. 6-A is different from that prescribed in the case of celluloid films. Whether such classification is or is not permissible is a matter to which we shall presently refer, but the proviso to Rule 30 (1) does no more than prescribe the manner of certification for the purpose of carrying into effect the provisions of S. 6a of the Act and hence the impugned provision cannot be held to be outside the purview of Entry 60 of List I or of the provisions of S. 6-A of the Act. The decision in Entertaining Enterprises v. State (supra) relied upon by the petitioners is distinguishable on facts. It may be that the State Legislature would also be competent to make a law with regard to exhibition of video film by virtue of the provisions of Entry 33 of List II of Seventh Schedule to the Constitution relating to the subject matter of cinema. But that would not affect the powers of the Parliament to make a law on the subject covered by Entry 60 of List I. Moreover, making of a law by State legislature with respect to cinemas under Entry 33 of List II would always be subject to the provisions of Entry 60 of List I, as provided by Entry 33 of List II. The contention advanced on behalf of the petitioners that the proviso to Rule 30 (1) of the Rules is beyond the legislative competence or the rule making power of the Central Government cannot therefore, be upheld. The contention advanced on behalf of the petitioners that the proviso to Rule 30 (1) of the Rules is beyond the legislative competence or the rule making power of the Central Government cannot therefore, be upheld. ( 7 ) IT was then contended on behalf of the petitioners that the proviso to R. 30 (1) makes an unreasonable classification between video films and celluloid films and, therefore, is violative of the provisions of Art. 14 of the Constitution. The contention cannot be upheld. In view of the special features of a video film and the facilities available for exhibiting it, the video films form a class distinct from celluloid films. Dealing with the contention that the requirement of pasting of a copy of the certificate on the video cassette and its case is discriminatory, the Bombay High Court observed in M/s Video Master, Bombay v. Union of India, AIR 1986 Bom 428 , as follows :"the contention that if such a pasting is not necessary for celluloid film then the provision is discriminatory has also no force. The video film or its exhibition cannot be equated with celluloid film and its exhibition in every respect. In this context it is pertinent to note that different forms of certificate are prescribed for video and celluloid films. The expression 'number of cassettes' used in forms relating to the video films is corresponding to word'real' as used in forms for celluloid films. If the film is divided in different parts or episodes then it might require more than one cassette. Thus the information incorporated in the certificate is also distinct and different. Therefore, having regard to the distinction between methods and the manner of processing, exhibition and copying of these two types of films, advisably a special provision has been made in that behalf for the video films. We do not find that there is anything unreasonable in it. "we respectfully agree with the aforesaid observations. ( 8 ) IT was then contended that the proviso to Rule 30 requiring pasting of a copy of Part (1) of the certificate on the video cassette as well as on its case imposes unnecessary restrictions on the fundamental right guaranteed by Art. 19 (1) (g) of the Constitution. The contention cannot be upheld. ( 8 ) IT was then contended that the proviso to Rule 30 requiring pasting of a copy of Part (1) of the certificate on the video cassette as well as on its case imposes unnecessary restrictions on the fundamental right guaranteed by Art. 19 (1) (g) of the Constitution. The contention cannot be upheld. The restrictions imposed are reasonable and in the interest of general public as envisaged by Art. 19 (6) of the Constitution In the absence of such restrictions, it would be difficult to control and regulate the exhibition of uncertified video films and the whole purpose of sanctioning films for exhibition would be frustrated. As observed by the Supreme Court in Raj Kapoor v. Laxman, (1), all freedom is a promise, not a menace and, therefore, is subject to socially necessary restraints permitted by the Constitution. The impugned provision is in the interest of the general public as well as in the interest of the purchaser of video film cassettes. Under the circumstances, the contention that the proviso to R. 30 (1) is violative of the provisions of Art. 19 (1) (g) cannot be upheld. ( 9 ) IT has then contended that the impugned provision is vague and compliance with it would cause unnecessary hardship. It is difficult to appreciate this contention. All that the impugned provision requires is to paste a copy of Part (1)of the certificate on every video cassette and its case. In the context in which the expression 'copy' is used in the impugned proviso, it can only, mean a true copy of the original certificate. As held by the Supreme Court in Hindustan Construction Co. v. Union of India, (2), a copy means a document prepared from the Original which is an accurate or true copy of the original. In our opinion, there is no vagueness in the requirement imposed by the provisions of the impugned proviso. ( 10 ) THERE was some debate at the time of hearing that the provisions of R. 30 (1) would be attracted only in the case of public exhibition of video films and that the petitioners, who run video cassette libraries and give cassettes on hire to their members, should not be held obliged to comply with the requirement of the proviso to R. 30 (1 ). It is necessary to bear in mind that R. 30 (1) comes into play only in the case of a certified film. That is the mandate of S. 6-A. Now as required by S. 4, certification of a flim is necessary whenever a person is desirous of exhibiting a film. The expression 'exhibit in the context means a public display as held by this Court in Restaurant Lee v. State, AIR 1983 Madh Pra 146 ). The obligation to comply with the requirement of R. 30 (1) would arise only in the case of a person who delivers any certified film to any distributor or exhibitor. The question as to whether there is violation of R. 30 (1) will have, therefore, to be decided on the basis of facts proved in any particular case and merely because the petitioners are running video cassette libraries, they cannot be held immune from the operation of R. 30 (1 ). ( 11 ) IT was contended by the petitioners in some cases that seizure of cassettes from their possession was illegal. We refrain from expressing any opinion in that behalf, because the question as to whether the seizure was or was not justified will depend upon the facts of each case which will be decided by the Court before which the question of legality of seizure is pending. ( 12 ) IT was then contended that no retrospective operation could be given to the amended provisions of R. 30 (1 ). No fact was, however, brought to our notice to show that retrospective operation was being given to the proviso to R. 30 (1 ). The provisions of Art. 20 of the Constitution makes it clear that no person could be held guilty for commission of an act, which was not illegal on the date of commission. Penal consequences for violation of the proviso to R. 30 (1) will, therefore, ensue only if it is proved that after the proviso to R. 30 (1) came into force, a person failed to do that which is required by the proviso to R. 30 (1 ). ( 13 ) THE petitioners have failed to satisfy us that proviso to R. 30 (1) of the Rules is ultra vires or unconstitutional. ( 13 ) THE petitioners have failed to satisfy us that proviso to R. 30 (1) of the Rules is ultra vires or unconstitutional. As regards relief against seizure of video cassettes, sought by the petitioners in some cases, the petitioners are at liberty to agitate that question before appropriate courts where the question of legality of seizure is pending. The petitioners are not entitled to any relief in that behalf in these petitions. ( 14 ) FOR all these reasons, these petitions fail and are accordingly dismissed. In the circumstances of the case, parties shall bear their own costs. Security amount, if any, be refunded to the petitioners. Petitions dismissed. .