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Mitra Prakashan Ltd. Vs. Post Master General and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Nos. 95 to 99 and 100 of 1957
Judge
Reported inAIR1957All662
ActsConstitution of India - Articles 32 and 226; Post Office Act, 1898 - Sections 9 and 9(2); Post Office Rules - Rule 30, 30(3) and 30(5)
AppellantMitra Prakashan Ltd.
RespondentPost Master General and anr.
Appellant AdvocateS.C. Khare and ;A. Ralla Ram, Advs.
Respondent AdvocateStanding Counsel
DispositionPetitions allowed
Excerpt:
constitution - writ of mandamus - article 226 of constitution of india - postal authorities passed no orders of refusal of registration - petition for renewal of registration - premature writ petition. - - this court allowed the petition and the petitioner continued to enjoy the rights of a registered periodical. provided that no such extra or supplement shall be so deemed unless it consists wholly or in great part of matter like that of the newspaper and has the title and date of publication of the newspaper printed at the top of each page. 5. the postmaster-general or officer exercising the powers of the postmaster-general of the postal circle in which the newspaper is published may cancel or refuse the registration of a newspaper (i) when he is satisfied that the conditions.....1. the petitioner mitra prakashan ltd., is a private limited company incorporated under the indian companies act with its registered office at muthiganj, allahabad city. the petitioner company has been publishing a hindi periodical known as 'manorama' since 1926. it is a monthly magazine and successive numbers of it are published at intervals of not more than 31 days. the monthly circulation of the publication 'manorama' is 22,000 copies. it has a bona fide list of subscribers above 50. this magazine has been registered since 1926 as a newspaper for transmission by inland post. its registration number was a-278. registered newspapers can be sent for a payment of one pice of postage in case the weight does not exceed 10 tolas.similarly other concessional rates for registered newspapers are.....
Judgment:

1. The petitioner Mitra Prakashan Ltd., is a private limited company incorporated under the Indian Companies Act with its registered office at Muthiganj, Allahabad city. The petitioner company has been publishing a Hindi periodical known as 'Manorama' since 1926. It is a monthly magazine and successive numbers of it are published at intervals of not more than 31 days. The monthly circulation of the publication 'Manorama' is 22,000 copies. It has a bona fide list of subscribers above 50. This magazine has been registered since 1926 as a newspaper for transmission by inland post. Its registration number was A-278. Registered newspapers can be sent for a payment of one pice of postage in case the weight does not exceed 10 tolas.

Similarly other concessional rates for registered newspapers are provided for in the first Schedule to the Indian Post Offices Act and the Rules made, thereunder. In case the newspaper is not allowed to be registered and sent as an unregistered magazine the postal charges will be about eight times higher. According to the petitioner, the postal authorities for the past 29 years have been treating the contents of 'Manorama' as fulfilling the requirements of Section 9 of the Act and the Rules framed thereunder and it continued to be registered as such with the postal authorities. Till the year 1955 it was continued to be registered from year to year.

This company is publishing three other publications 'Maya', 'Manohar Kahaniyan' and 'Man Mohan', which were all registered as newspapers under the provisions of Act VI of 1898. Writ petition No.98 deals with the periodical known as 'Man Mohan'. Writ petition No. 99 deals with the periodical known as 'Manohar Kahaniyan' and Writ petition No. 100 deals with the periodical known as 'Maya', which I have already indicated are other publications published by the present petitioner.

2. In February 1955 the Post-Master-General, Uttar pradesh, cancelled the registration of 'Maya' and 'Manohar Kahaniyan' and threatened to cancel the registration of 'Man Mohan'. The present petitioner filed a writ petition challenging the action taken in respect of 'Maya', 'Man Mohan' and 'Manohar Kahaniyan.' By my order dated the 21-10-1955 those petitions were allowed and thereafter the periodicals continued to be treated as registered newspapers till the end of 1955.

On the 5-11-1955 an application for renewal of the registration was made to the Post-master-General for the year 1956 in compliance with the new rules for renewal of registration. On the 16-12-1955 the postal authorities were reminded of the application for renewal. As the registration was refused the petitioner filed another petition before this Court against the refusal of the Postmaster-General to renew the registration number of the magazine on the 16-1-1956. The writ petition remained pending in this Court and on the 21-12-1956 an application was made by the opposite parties that as the renewal was claimed for the year 1956 the writ petition had become infructuous as the period for which the renewal could have been granted had already expired. No final orders could be passed on that application and in November 1956 the present petitioner again applied for renewal of registration.

No orders were passed on that application. In the meantime the petition which had been filed in January 1956 was disposed of on the ground that it had become infructuous and the present petition was filed in respect of the application filed in November 1956 for renewal of registration of 1957 on the 7-1-1957. By means of this petition it is prayed that a writ of mandamus be issued directing the opposite-party No. 1 to renew the registration number of the petitioner for 'Manorama' within the meaning of Section 9. of the Post Offices Act. The petitioner during all this period was granted interim order directing the opposite parties to treat the petitioner's magazine as a registered magazine.

3. Notices were issued to the opposite parties and a counter-affidavit has been filed in this case on their behalf.

4. The standing Counsel for the opposite parties had taken a preliminary objection that the present petition is premature. It is contended by him that no orders have been passed by the postal authorities on the application filed by the petitioner in November 1956 and consequently the petitioner is not entitled to any relief. The petitioner is not entitled to a relief of Mandamus as it cannot be said that the postal authorities had refused to consider the application in accordance with law. It is contended by the opposite parties that no mandamus can be issued by this Court directing the opposite parties to register the periodical. In the circumstances of the present case I am of opinion that there is no force in this preliminary objection. The opposite parties had cancelled the registration in 1955 on the ground that the contents of the periodical did not come within the ambit of Section 9. A petition had to be filed in this Court challenging the cancellation order. This Court allowed the petition and the petitioner continued to enjoy the rights of a registered periodical.

In the year 1956 when an application for renewal was made it was refused. If that petition had been decided on merits the court would have finally considered the respective contentions of the parties and would have decided whether the periodical came within the ambit of the definition of 'newspaper' mentioned in Section 9 of the Act or not. That petition, however, was rejected on the application filed by the opposite Parties that the writ could not be allowed to continue after the 31-12-1956. When that petition was rejected as being infructuous the petitioner was permitted to file a fresh petition and in pursuance of that the present petition has been filed.

If the Standing counsel had not consented to the present petition being disposed of on merits the petitioner would have pressed its earlier petition and it Would have asked for a decision by this Court on merits. It is therefore not open to the Standing Counsel now to take up the position that this petition should be rejected on the ground that this is premature and it is also clear from the attitude adopted by the opposite parties in the past that they had come to the conclusion that the periodical does not fulfil the requirements of Section 9 and consequently there is no possibility of the petitioner's application being considered on its own merits. In the circumstances there is no force in the preliminary objection and it is rejected.

5. Coming to the merits of the present petition. Section 9 of the Indian Post Offices Act provides as follows:

'9. (1) The Central Government may make rules providing for the registration of newspapers for transmission by inland post as registered newspapers.

(2) For the purpose of such registration, every publication, consisting wholly or in great part of political or other news, or of articles delating thereto, or to other current topics, with or without advertisements, shall be deemed a newspaper, subject to the following conditions, namely:

(a) that it is published in numbers at intervals of not more than thirty-one days; and

(b) that it has a bona fide list of subscribers.

(3) An extra or supplement to a newspaper, bearing the same date as the newspaper and transmitted therewith, shall be deemed to be parts of the newspaper: Provided that no such extra or supplement shall be so deemed unless it consists wholly or in great part of matter like that of the newspaper and has the title and date of publication of the newspaper printed at the top of each page.

6. The rules in this behalf are as follows. Rule 30 provides that:

'30. (1) (a) The newspaper shall have been registered in the office of the Post-master-General, or officer exercising the powers of the 'Post-master-General. of the Postal Circle in which it is published, and the period for which its registration or the last renewal thereof as the case may be remains in force shall not have expired.

X X X X X X (2) An application for the first registration of a newspaper for the purposes of Clause (a) of Sub-rule (1) shall, save in the case of a newspaper printed or published under the orders of any Government in India or for official purposes, be made in the form prescribed for the purpose by the Director-General, and be accompanied by a list showing the names and addresses of at least fifty bona fide subscribers and

(i) by a certificate from the District Presidency or Sub-Divisional Magistrate within whose local jurisdiction the newspaper is printed or published or the printer or the publisher resides, that-

(A) the declaration or declarations required by Section 5 of the Press and Registration of Books Act. 1867 (XXV of 1867), has or have been made, or

(b) no such declaration is required under the said Act as the publication is not a newspaper according to the definition given in that Act, or

(ii) in the case of a newspaper published in the French or Portuguese Territories in India, by a recommendation in writing from the Consul General for India at Pondicherry or Goa as the case may be in support of the application.

(3) A first registration shall remain in force till the 31st December of the calendar year following that in which it was effected. Every subsequent renewal of a registration shall remain in force for one calendar year.

(4) Nothing in this rule shall be deemed to prevent newspapers from being transmitted by post, either singly or otherwise, at the rates and under the conditions prescribed for book packets, and if a newspaper sought to be transmitted by post as a registered newspaper fails to comply with any of the conditions specified in Sub-rule (1), it shall be transmitted by post at the said rates and under the said conditions.

5. The postmaster-General or officer exercising the powers of the Postmaster-General of the Postal circle in which the newspaper is published may cancel or refuse the registration of a newspaper (i) when he is satisfied that the conditions specified in Sub-section (2) of Section 9 of the Act do not continue to be fulfilled; or (ii) as soon as the certificate or the recommendation mentioned in item (i) or item (ii) of Sub-rule (2), respectively, is formally cancelled or withdrawn by the authorities concerned.'

By an order dated the 3rd of January 1955 the following note has been added below Rule 30 (3):

'Application for renewal of registration shall be made at least one month before the expiry of the previous registration. A late fee of Rs. 6/-shall be charged for each application for renewal received later than the last day of the calendar month preceding the last month of the period of previous registration. Registration Of newspapers applications for renewal of registration of which are made within a month prior to the date of expiry, shall be renewed within a week from the date of receipt of the application for renewal if accompanied with the prescribed late fee of Rs. 5/- (five only) and in case the previous registration expires before registration is renewed the paper shall be prepaid at book packet rates pending issue of the renewal. In case the application for renewal is received after the date of expiry of the previous registration, fresh enquiries as in case of first registration shall be necessary and a fresh registration number shall be allotted in such case.'

This is not the only provision which provides the procedure for the renewal of registration and a reading of this note makes it clear that a fresh enquiry has only got to be made in the case of a new registration and in cases where the application for renewal is received after the date of the expiry of the previous registration. In other cases the renewal is to be granted as a matter of course. No further enquiry is contemplated in case the application for renewal has been made before the expiry of the period of registration.

7. Several points have been urged by the counsel for the petitioner. Firstly, it was contended by him that on an examination of the contents of the periodical it is clear that it fulfils the requirements of Section 9 of the Indian Post Offices Act. Secondly, it was contended that the petitioner was entitled to the renewal of registration as a matter of right and the Postmaster-General was not competent to enter into fresh enquiry into the matter and to determine whether the periodical fulfilled the requirements of Section 9 of the Act or not. Thirdly, it was contended that the grounds on which the petitioner's registration had been refused are not covered by the provisions of Rule 30(5). Fourthly, it was contended that the successive Postmasters-General for the last 29 years having exercised their discretion in favour of the petitioner and they haying held that the periodical fulfilled the requirements of Section 9 it is not open to the present Postmaster-General to unsettle that long series of decision and refuse registration to the periodical in question. Lastly, it was contended that in the circumstances of the case the order was mala fide.

8. At this stage it is necessary to point out that the Standing Counsel had contended in reply to the arguments of the petitioner that on an examination of the contents of the periodical it is clear that the requirements of Section 9 had not been fulfilled. It was also urged that it was within the exclusive competence of the postal authorities to decide whether a particular periodical did or did not fulfil the requirements of Section 9 and this Court will not examine the facts and interfere with the exercise of the power by the competent authority on the ground that on the materials this court takes a different view of the contents of the periodical. It was then urged that the Postmaster-General had power under Rule 30(5) to refuse registration. The only limitation on his power, as held by this Court in the earlier writ petition, was that he could not cancel the registration during the subsisting period of registration but when the occasion arises for the renewal of the registration it is open to the Postmaster-General to examine the contents of the periodical afresh and refuse registration if in its opinion the periodical does not fulfil the requirements of section 9. Reliance was placed in this connection on certain observations made in the earlier decision with which I shall deal later. Lastly, it was urged that the order was not mala fide and that even though in the past registration had been granted there is no estoppel and it is open to the Postmaster-General, acting within the provisions of the Act and the Rules, to, refuse registration.

9. In the case of Kali Charan Garg v. The Postmaster-General, U. P., 1955 All LJ 886: (AIR 1956 All 87) (A) it was observed as follows:

'The registration is renewed every year and to my mind, if the post Master General, when he grants a registration in the beginning, comes to the conclusion that the Magazine conforms to the provisions of Section 9 and registers the same it is not open to him the next day to say that his predecessor committed a mistake and erroneously held that the contents of the magazine relate to current topics. When the registration is to be renewed or is to be granted originally it may be open to the Post Master General to come to the conclusion that the Magazine cannot be regarded as a newspaper for purposes of Section 9 but, after having once held that it does come within the purview of Section 9 of the Post Office Act, it is not open to the Post Master General, on the same set of facts, to come to a different conclusion sometimes afterwards during the period when the registration is in force and cancel the registration on that ground. Nothing has been suggested in the counter-affidavit to show that the contents of the magazine were substantially different when the registration was granted from what it was at the time when the cancellation order was passed.'

10. Relying upon these observations it was contended by the Standing Counsel, as I have pointed out, that the only limitation placed on the power of the Postmaster-General to cancel registration or to renew it was that it could not be cancelled during the continuance of the period of registration on the ground that at the time when the registration was granted the periodical did not conform to the provisions of Section 9 but when the registration was to be renewed after the expiry of the period of registration it was open to the Postmaster-General to consider whether the periodical conformed to the provisions of Section 9. It was however strenuously contended by the counsel for the petitioner that there was nothing in Rule 30(5) to make any such distinction between the cases where the registration was cancelled during the pendency of the period of registration and when it was sought to toe renewed. In either case the power to cancel or refuse the registration of a newspaper is when he is satisfied that the conditions specified in Sub-section (2) of Section 9 of the Act do not continue to be fulfilled. In the present case it had not been urged in the counter-affidavit that the contents of the periodical had substantially altered. It cannot therefore be said that the periodical has ceased to continue to fulfil the conditions specified in Sub-section (2) of Section 9 of the Act. It is also significant to note that Rule 30(5) only gives power to the Postmaster-General to cancel or refuse the registration of a newspaper when he is satisfied that the conditions specified in Subsection (2) of Section 9 of the Act do not continue to be fulfilled. The question therefore to toe considered is:

'What are the conditions specified in Sub-section (2) of Section 9 of the Act?'

11. Section 9, Sub-section (2), which I have already quoted in its first part defines what will be deemed to be a newpaper for the purposes of registration. Sub-section, (2) uses the words 'deemed a newspaper' which necessarily implies that a leeal fiction has been introduced and the word 'newspaper' for the purposes of registration has been given a meaning wider than its literary meaning. It further provides that:

'For the purpose of such registration, every publication ...... shall be deemed a newspaper, subject to the following conditions, namely:

(a) that it is published in numbers at intervals of no more than thirty-ons days; and

(b) that it has a bona fide list of subscribers.'

12. From a reading of Rule 30(5) along with Section 9 it is clear that the conditions specified in Subsection (2) of Section 9 referred to in that rule only mean the conditions, namely:

(a) that it is published in numbers at intervals of not more than thirty-one days; and

(b) that it has a bona fide list of subscribers. If any of these two conditions cease to continue to be fulfilled the registration may be cancelled. But the fact that the publication should consist 'wholly or in great part of political or other news, or of articles relating thereto, or to other current topics, with or without advertisements,' cannot be regarded as a condition specified in Section 9, Sub-section (2). It is therefore clear that even if it be held that from the examination of the periodical it appears to the Postmaster-General now that it does not consist 'wholly or in great part of political or other news, or of articles relating thereto, or to other current topics, with or without advertisements,' he cannot refuse the registration of a newspaper in the exercise of his powers under Rule 30. Sub-rule (5). It is also plain that the Postmaster-General may have to enter into an enquiry as regards the nature of the contents of the periodical when the first registration is granted or when the renewal application is made after the expiry of the period of the first registration. But there is no such, power given to the Postmaster-General when the application for renewal has been made within time under Rule 30, Sub-rule (3), with the note. In this view of the matter it was not open to the Postmaster-General to refuse registration to the petitioner. As I have said it is inconceivable that a power should be given to successive Post-masters-General to take different view regarding the contents of a periodical every time when the period of registration is about to expire.

13. As regards the point raised by the petitioner that the magazine is a newspaper within the meaning of Section 9 of the Act it was strenuously contended that the current topics do not necessarily imply that it must relate to current events. Events which had happened in the past may have, due to certain circumstances, become of interest to the public. It was contended that the word 'articles' is of a very wide connotation, it may be in the form of a short story or drama or any other form of writing. The article, in order to fulfil the definition of a newspaper, may relate to any political or other news or to other current topics. Emphasis was also laid on the words 'wholly or in great part'. The words 'great part', according to the petitioner, does not necessarily mean the greater part. If the substantial part contains articles relating to political or other news or to other current topics, it will be regarded as a newspaper within the meaning of Section 9(2).

14. Mr. Khare, who appeared for the petitioner, took me through the contents of the periodical and he tried to show that it cannot be said that it did not contain in greater part articles relating to current topics. Mr. Khare particularly referred to paragraph 15 of the counter-affidavit which states that the magazine Manorama contains stories of crime and horror, romance and suspense stories and stated that the stories and articles contained in this magazine can never be called stories of crime and horror.

This statement according to him indicates that the authorities when considering the matter of registration and even the State when the counter-affidavit was filed did not look into the contents at all and this Court will therefore examine for itself the contents of the periodical and come to its own conclusion whether it fulfils the definition of a newspaper under Section 9 or not. It is not possible to give any exhaustive meaning of the words 'articles relating to political or other news or to other current topics'. The definition of a newspaper in Section 9 is obviously larger in its import than the dictionary meaning of the word 'newspaper'' but it is not possible to give the full scope of the word 'newspaper' as defined in Section 9(2).

Each periodical will have to be examined .and it may be possible to say on examination whether it comes within the definition of a newspaper or not. Reference may be made to the case of Hannegan v. Esquire, reported in (1946) 327 U. S. 146 (B). This was a case where a writ of certiorari was obtained for the review of a judgment of the United States Court of Appeals reversing the dismissal by the District Court of United States for the District of Columbia of a suit enjoining the order of the postmaster-General revoking a second class permit on the ground that it did not conform to condition 4. it was held that :--

'Congress did not intend by the Fourth condition of Section 14 of the Postal Classification Act of 1879 to give the Postmaster General the power to classify publications on the basis of the quality of their content.

If the Post-master General's order is sustained he becomes established as a censor with 'vague and absolute authority' over the moral and literary value of news papers and periodicals.'

It was observed by Justice Douglas who delivered the opinion of the Court as follows :--

'But a requirement that literature or art conform to some form prescribed by an official smacks of an ideology foreign to our system. The basic values implicit in the requirements of the Fourth condition can be served only by uncensored distribution of literature. From the multitude of competing offerings the public will pick and choose. What seems to one to be trash may have for others fleeting or even enduring values. But to withdraw the second-class rate from this publication to-day because its contents seemed to one official not good for the public would sanction withdrawal of the second-class rate tomorrow from another periodical whose social economic views seemed harmful to another official. The validity of the obscenity laws is recognition that the mails may not be used to satisfy all tastes, no matter how perverted. But Congress has left the Postmaster General with no power to prescribe standards for the literature or the art which a mailable periodical disseminates.'

In the view, however, which I have taken, it is not necessary to examine in details the case of every periodical and decide whether it is covered by the definition of 'newspaper' under Section 9 or not. I have held that there is no power in the Postmaster-General to refuse the renewal of registration on the ground that in his opinion the contents of the magazine dirt not fulfil the requirements of Section 9(2). Mr. Khare strongly relied upon certain observations in the case of united States of America Ex. Rel. Milwaukee Social Democratic Publishing Co. v. Albert S. Burleson, (1921) 65 Law Ed.704 (C). At page 715 of the above report it was observed that:--

There is, also, presented in brief and argument, a much broader claim in support of the action of the Postmaster-General. It is insisted that a citizen uses the mail at second-class rates not as of right, but by virtue of a privilege or permission, the granting of which rests in the discretion of the Postmaster-General. Because the payment made for this governmental service is less than it costs, it is assumed that a properly qualified person has not the right to the service so long as it is offered; and may not complain if it is denied to him. The service is called the second-class privilege. The certificate evidencing such freedom is spoken of as a permit. But, in fact, the right to the lawful postal rates is a right Independent of the 'discretion of the Postmaster-General. The right and conditions of its existence are defined and rest wholly upon mandatory legislation of Congress. It is the duty of the Postmaster-General to determine whether the condition prescribed for any rate exists. This determination in the case of. the second-class rate may involve more subjects of inquiry, some of them, perhaps, of greater difficulty than in cases of other rates.

But the function of the Postmaster-General is the same in all cases. In making the determination, he must, like a court or a jury, form a judgment whether certain conditions prescribed by Congress exist, on controverted facts or by applying the law. The function is a strictly Judicial one, although exercised in administering an executive office. And it is not a function which either involves or permits the exercise of discretionary Dower. The so-called permit is mere formal notice of his judgment, but indispensable to the publisher because, without it. the local postmaster will not transmit the publication at second-class rates. The same sort of permit is necessary for the same bulk service at first, third or fourth-class rates.'

This passage has been relied upon by the petitioner's counsel to show that if the grant or refusal to register amounts to a determination by the Postmaster-General it is not a subjective but an objective determination which can be examined by this Court in the exercise of its powers under Article 226 of the Constitution and thus it is open to this Court to examine the contents of the periodical and to come to its own conclusion whether it conforms to Section 9 or not. In case it does the refusal to register is a violation of a statutory duty which can be enforced by means of a writ petition. As I have held earlier that the Post master-General in the circumstances of the present case had no right to examine the question afresh it is not necessary for me to assume that by refusing to register the Postmaster-General had made certain objective determination which can be examined by this Court. a large number of cases of the various High Courts were cited to show that the news may consist in certain symbols and certain pictures; but in the view, which I have taken, it is not necessary to go into that question.

15. In my opinion therefore all these petitions must be allowed and the petitioners are entitled to a writ of mandamus directing the Postmaster-General to renew the registration numbers of the petitioners for 'Manorama', 'Tlismi Jasoos', 'Jasoosi Duniya (Published in Urdu)', 'Jasocsi Duniya (published in Hindi)', 'Roomani Duniya (published in Urdu)', 'Man Mohan', 'Manohar Kahaniyan' and 'Maya' in accordance with the provisions of Rule 30 read with Section 9 of the Act. The petitioner of Writ No. 95 of 1957 will, however, get its costs from the opposite parties; but in all other cases the parties will bear their own costs.


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