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Parkash Chand Anand, Mandi and ors. Vs. State of Himachal Pradesh - Court Judgment

LegalCrystal Citation
SubjectMedia and Communication
CourtHimachal Pradesh High Court
Decided On
Case NumberC.W.P. No. 377 of 1983
Judge
Reported inAIR1984HP47
ActsHimachal Pradesh Entertainments Duty Act, 1968 - Section 2; ;Himachal Pradesh Entertainments Duty (Amendment) Act, 1983; ;Constitution of India - Article 14; ;Himachal Pradesh Cinemas (Regulation) Act, 1979 - Sections 2 and 9; ;Himachal Pradesh Cinemas (Regulations) Rules, 1979 - Rule 2; ;Himachal Pradesh Cinemas (Regulations) (Amendment) Rules, 1983 - Rule 16C; ;Cinematograph Act, 1918 - Section 5; ;Cinematograph (Amendment) Act, 1952
AppellantParkash Chand Anand, Mandi and ors.
RespondentState of Himachal Pradesh
Appellant Advocate Kedar Ishwar, Adv.
Respondent Advocate P.N. Nag, Adv. General
DispositionPetition dismissed
Cases Referred(Guj) and Free Lanka Insurance Co. Ltd. v. A.M. Ranasinghe
Excerpt:
..... at lower cost - separate treatment given to video exhibition in matter of licensing procedure not violative of article 14 - vires of rules upheld - petition dismissed. -..........(aa) in section 1 of the himachal pradesh entertainments duty act, 1968, so as to define the term 'video exhibition', is discriminatory and, therefore, ultra vires article 14. (2) rule 2 of the himachal pradesh cinemas (regulation) (iiird amendment) rules, 1983, which introduces clause (xiii) in rule 2 of the himachal pradesh cinemas (regulation) rules, 1979, so as to define the term 'video exhibition', is ultra vires on the grounds that: (i) the amended rule is ultra vires the provisions of the act under which the rule purports to have been framed, and (ii) it is a discriminatory piece of legislation and hence violative of article 14 of the constitution. (3) rule 16-c (b)(i) of the himachal pradesh cinemas (regulation) (iiird amendment) rules, 1983, which refers to section 5 of the.....
Judgment:

P.D. Desai, C.J.

1. The petitioners, whoare carrying on business of exhibiting films in theatres situate in towns of Mandi, Jogindernagar, Bilaspur and Dharamsala, have challenged herein certain provisions of the Himachal Pradesh Entertainments Duty (Amendment) Act, ]983 and the Himachal Pradesh Cinemas (Regulation) (IIIrd Amendment) Rules, 1983. In the writ petition these statutory provisions, amongst others, have been challenged on diverse grounds. However, at the preliminary hearing of the petition the challenge was confined only to the following three grounds:

(1) Section 2 of the Himachal Pradesh Entertainments Duty (Amendment) Act, 1983, which introduces Clause (aa) in Section 1 of the Himachal Pradesh Entertainments Duty Act, 1968, so as to define the term 'Video exhibition', is discriminatory and, therefore, ultra vires Article 14.

(2) Rule 2 of the Himachal Pradesh Cinemas (Regulation) (IIIrd Amendment) Rules, 1983, which introduces Clause (xiii) in Rule 2 of the Himachal Pradesh Cinemas (Regulation) Rules, 1979, so as to define the term 'video exhibition', is ultra vires on the grounds that:

(i) the amended rule is ultra vires the provisions of the Act under which the rule purports to have been framed, and

(ii) it is a discriminatory piece of legislation and hence violative of Article 14 of the Constitution.

(3) Rule 16-C (b)(i) of the Himachal Pradesh Cinemas (Regulation) (IIIrd Amendment) Rules, 1983, which refers to Section 5 of the Cinematograph Act, 1918 (Act No. 16of 1918), is unenforceable because the rule making authority has misfired itself in enacting the said sub-clause inasmuch as the reference therein is to a law which has beenrepealed since long and which is no longeron the statute book.

2. We shall deal, with these grounds seriatim. Before We do so however, we shall highlight the backdrop.

3. The cinema houses In this State aresubject to regulation under various statutoryenactments. We shall, however, refer toonly those which are relevant for the present purposes. The Himachal PradeshCinemas (Regulation) Act. 1979 (hereinafter,referred to as 'the 1979 Act') and the Himachal Pradesh Cinemas. (Regulation) Rules,1979 (hereinafter referred to as 'the 1979Rules') make provision for regulating exhibitions by means of cinematograph. TheHimachal Pradesh Entertainments Duty Act,1968 (hereinafter referred to as 'the Principal Act') and the Himachal Pradesh Entertainments Duty Rules, 1968 provide for thelevy of entertainment duty in respect of admission to public entertainments. Out of theenactments mentioned above, three havebeen recently amended, one in the exerciseof the legislative power and two in the exercise of powers conferred by way of subordinate-legislation. We are concerned herein with two amendments mads accordingly.The principal Act was amended by theHimachal Pradesh Entertainments Duty (Amendment) Act. 1983 (hereinafter referred tobe 'the Amendment Act'). The 1979 Ruleswere amended by the Himachal PradeshCinemas (Regulation) (IIIrd Amendment)Rules, 1983 (hereinafter referred to as 'theIIIrd Amendment Rules'):4. So far as the present case is concerned, the amendment which is introduced inSection 2 of the Principal Act by Section 2of the Amendment Act, is material. By thesaid amendment. Clause (aa) has been addedin Section 2 of tine Principal Act and theclause added accordingly reads as under:'

'(aa) 'Video exhibition' means the exhibition through video cassette recorder arid includes the exhibition of films through television or apparatus attached to television on the machine for transferring the films to the television screen or any other apparatus which shows a film on screen through any other means except through cinema projector.

5. So far as the 1979 Rules are concerned Rule 2 of the said Rules has been amended by Rule 2 of the IIIrd Amendment Rules. By the amendment, Clause (xiii) has been inserted in Rule 2 of the 1979 Rules. The amended provision defines the term 'Video exhibition' in the same terms in which the said expression has been defined in the newly added Clause (aa) of the Principal Act. Besides, the IIIrd Amendment Rules have introduced a new part, namely, Part II-A in the 1979 Rules and the procedure for granting licences for Video exhibition has been prescribed therein. Part II of the 1979 Rules which, till the IIIrd Amendment Rules came into force, governed the grant of licences for the exhibition of films has been made inapplicable to the grant of licences for Video exhibition. Part II-A, accordingly introduced in the 1979 Rules, contains inter alia Clause 16-C. The said clause in so fur as it is relevant for the present purposes, reads as under :

'16-C. Other conditions in relation toVideo Exhibition. The grant of renewal ofthe license under these rules shall also besubject to the condition-

(a) xx xxx

(b) that the licensee shall not exhibit,--(i) any film other than a film which hasbeen certified as suitable for unrestrictedpublic exhibition by any authority constituted under Section 5 of the Cinematography Act, 1918 (16 of 1918) and whichwhen exhibited, displays the prescribedmark of that authority, and has not beenaltered or tampered with in any way sincesuch mark was affixed thereto;

(ii) & (iii) xxxxx

(C) & (d) xxxxx

these are the material provisions which have to be borne in mind for the decision of thecase.

Re : grounds 1 and 2 :

6. It will be convenient to dispose of both these grounds together.

7. The precise submission was that by defining the term 'Video exhibition' by way of an amendment in the Principal Act as well as in the 1979 Rules, an irrational classification is made between exhibition in cinema theatres and video exhibition with the end in View of giving preferential treatment to video extibition and meeting out hostile treatment to cinema exhibition. In regard to the 1979 Rules, there is an additional challenge, namely, that the rule making authority had no 'power to define,the term 'video exhibition' inasmuch as the effect of enacting such separate definition is to curtail the ambit of the definition of the term 'Cinematograph' as contained in Clause (a) of Section 2 of the 1979 Act.

6. It is true that exhibition in cinema theatres and video exhibition ate the media of public entertainment and that both, in that sense, form a single class. Indeed, both these were covered by the definition of the word 'Cinematograph' given in Section 2 (a) of the 1979 Act. The effect of the introduction of Clause (aa) in Section 2 of the Principal Act is to take video exhibition out of the larger class of cinematographs with a view to treating it separately for the purposes of levy of entertainment duty etc. Similarly, by the introduction of Clause (xiii) in Rule 2 of the 1979 Rules, video exhibition has been defined with the end in view of treating it separately for the purposes of grant of licence etc. However, the mere fact that a separate definition has been enacted with the above ends in view, does not tender the enactments invalid on the ground of violation of Article 14. It is settled law that the legislature is not prevented from making a classification amongst objects, articles, or things which are similar or comprehended in a single class, provided the classification is rational and there is a nexus between the classiticaiion and the object sought to be achieved thereby. It is not capable of being disputed that the extent of coverage and cost of entertainment provided to the public by exhibition in cinema theatres is much greater than that which is involved in providing entertainment by video exhibition. Judicial notice can be taken of the fact that (video as well as television have become common media of domestic entertainment or media for providing entertainment to small groups of people on commercial basis at a comparatively less cost. To subject video and television to the same procedure in regard to licensing and to the same rate of entertainment duty may work . hardship. The amendments in the Principal Act as well as in the 1979 Rules have been made to implement the State policy to make the licensing procedure simpler and the incidence of entertainment duty lighter on video exhibitions. The policy is not only rational but it is also in the larger public interest since it places entertainment within the easy reach of larger sections of people at lower cost. Therefore, the virtual sub-classification of cinematograph into cinema exhibition in theatres and video exhibition is rational and there is a nexus between such classification and the object to beachieved thereby, namely, to place entertainment within the easy reach or the larger sections of the community at lower, cost. There is, therefore, no substance in the challenge that the newly introduced Clause (aa) in Section 2 of tlhe Principal Act is violative of Article 14. Similar challenge, against the newly inserted Clause (xiii) in the 1979 Rules must also fail.

9. The submission that Clause (xiii) is ultra vires the Act is equally untenable. The rule-making authority (has merely given effect to the intention of the legislature whereby inter alia, separate treatment was intended to be given to video exhibition in the matter of licensing procedure. If the rules could be validly framed laying down the procedure for licensing of cinematographs, there is no reason why the rule-making authority could not be held to have the power to introduce a definition for the purpose of prescribing separate procedures for licensing of cinematograph exhibitions other than video exhibition and video exhibition. Re : ground 3 :

10. The submission was that Rule 16-C (b) (i) refers to Section 5 of the Cinematograph Act, 1918 (16 of 1918) which has been, repealed by tlhe Cinematograph Act, 1952, that such repeal has taken place long prior to the enactment of Rule 16-C and that, therefore, the provisions of Rule 16-C (b) (i) wherein a reference has been made to the repealed law are unenforceable and that the rule-making authority has misfired itself in enacting the rule.

11. It is true that sufficient care has not been taken while enacting Rule 16-C. Apart from the fact that the said rule makes reference to a repealed law, even the relevant section of the repealed law has not been correctly mentioned. Instead of Section 5, Section 4 of the repealed law was required to be referred to having regard to the context and collocation. Be that as it may, the Cinematograph Act, 1952 has in Section 3 a provision similar in effect to Section 4 of the repealed law though the provisions are not exactly identical. In order to effectuate the clear intention of (he rule-making authority and in order to ensure that an otherwise validly enacted rule does not fall to the ground merely on account of an error OP mistake on the part of the draftsman, it would be permissible by way of legal interpretation to read into the sub-clause the words 'Section 3 of the Cinematograph Act, 1952 (Act No. 37 of 1952)' in place and stead of 'Section 5 of the CinematographAct, 1918 (16 of 1918)'. Such an exercise by way of interpretation is permissible (see : Commr. of Income-tax, Gujarat III v. Poonjabhai Vanmalidas : [1976]105ITR388(Guj) and Free Lanka Insurance Co. Ltd. v. A.M. Ranasinghe, (1964) AC 541 (PC)).

12. Since there is no merit in any of the above submissions made on behalf of the petitioners, the writ petition deserves to he summarily rejected and it is accordingly rejected.


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