Gujarat High Court
Sudhir Shantilal Raval vs Manoj R Bhimani on 23 May, 2003
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 6714 of 2003
--------------------------------------------------------------
SUDHIR SHANTILAL RAVAL Versus MANOJ R BHIMANI
-------------------------------------------------------------- Appearance:
1. Special Civil Application No. 6714 of 2003 MR. K.S. NANAVATI, SR. COUNSEL WITH MR. KEYUR GANDHI for the Petitioner MR S.K. JHAVERI, SR. COUNSEL WITH MR. YJ TRIVEDI for Respondent No. 1-2 .......... for Respondent No. 3
--------------------------------------------------------------
CORAM : MR.JUSTICE K.M.MEHTA Date of Order: 23/05/2003 C.A.V. ORDER Mr. Sudhir Shantilal Raval-petitioner has filed this petition under Article 226 and 227 of the Constitution of India challenging the order dated 1.5.2003 passed by the Sub-Divisional Magistrate, Ahmedabad, (hereinafter referred to as SDM / respondent No. 3). The Sub-Divisional Magistrate by his impugned order has granted authentication to the declaration dated 4.4.2003 filed by respondent No. 1, Mr. Manoj R. Bhimani, by exercising power under Section 6 of the Press and Registration of Books Act, 1867 (hereinafter referred to as "the Act"). Respondent No. 3 by his impugned order has refused to authenticate the declaration dated 1.4.2003 filed by the petitioner.
2.1 The facts giving rise to this petition are as under:
2.2 It is stated in the petition that the petitioner is a person of distinct reputation and is an accredited journalist of Press Information Bureau, Government of India, since the year 1996. The petitioner has written 1400 articles and the articles are published in Gujarati Print Media. He has taken more than 80 interviews of political leaders and celebrities, including the Hon'ble Prime Minister Shri Atal Behari Vajpayee and the Hon'ble Chief Minister of Gujarat. The petitioner is also connected with social and charitable activities.
2.3 It has been stated in the petition that the office of the Registrar of Newspapers for India (RNI for short) after verifying the record, allotted title of "AARPAAR" to one Shri Chandresh Desaibhai Patel on 19.12.2000 in terms of proviso to Section 6 of the Act.
Shri Chandresh Desaibhai Patel transferred the right, title, interest and ownership in the title "AARPAAR" to the petitioner on 14.6.2001. Shri Chandresh Desaibhai Patel has filed necessary affidavit for transfer of ownership and declaration. The said declaration was authenticated by Sub-Divisional Magistrate. Shri Chandresh Desaibhai Patel wrote a letter to RNI on 14.6.2001 informing that he has transferred the title of "AARPAAR" to the petitioner with entire right of ownership.
2.4 Since the petitioner desired to start Gujarati Weekly in the name of "AARPAAR", the title allotted to him under the provisions of the Act by the Registrar of Newspaper and in view of the fact that the petitioner did not desire to publish and print the contents, he selected respondent No. 1 and appointed him as publisher and printer.
2.5 The petitioner gave an authority in writing on 27.9.2001 authorising respondent No. 1 to make and subscribe a declaration under Section 5(2) as contemplated under Section 5(2B) of the Act. In view of the aforesaid authority letter respondent No. 1 filed a declaration as contemplated under Section 5(2) of the Act on 1.10.2001 wherein it is stated that the petitioner is the owner and editor of the title "AARPAAR" and respondent No. 1 is the publisher and printer. The said declaration was authenticated by SDM on 1.10.2001.
2.6 On the basis of the aforesaid declaration, the RNI issued a certificate of registration on 24.2.2001 in respect of the Weekly Magazine "AARPAAR" under Section 19 of the Act giving registration No. R. No. GUJGUJ/2001/5521.
2.6A It has been stated that initially petitioner and respondent No. 1 worked harmoniously and because of the aforesaid dedication, efforts and overall team work of journalists, published the Magazine with various articles under the supervision and control of the petitioner since the petitioner is the owner and editor of the said Gujarati Weekly. However, thereafter, difference and dispute arose between the petitioner and respondent. It came to the knowledge of the petitioner that respondent No. 1 is not printing the name of the petitioner as owner-editor, a request was made to respondent No. 1 to print as per the Rules and maintain Code of Conduct of Journalism. However, the respondent did not print the name of the petitioner as owner-editor and violated the ethics and provisions of the Act. Thereafter, a notice was given to respondent No. 1 on 11.12.2002 to print the name of the petitioner as owner-editor. In spite of that respondent No. 1 did not print the name of petitioner at the bottom of the column as "Editor, Sudhir Raval".
2.7 Therefore, by way of precautionary measure, by his communication dated 14.12.2002, the petitioner informed respondent No. 3 not to consider any application for transfer in anybody's name except when the petitioner personally apply for transfer of title.
2.8 In spite of notice by the petitioner, the respondent did not print the name of the petitioner as owner and as editor and the differences could not be resolved. The petitioner thereafter addressed a notice dated 12.3.2003 to respondent No. 1 informing him that he is removed as printer and publisher and shall not be entitled to print and publish any further issue under the title "AARPAAR" with effect from midnight of 31.3.2003. A copy of the said letter was forwarded to respondent No. 3, Sub-Divisional Magistrate. The petitioner also addressed a letter dated 13.3.2003 to respondent No. 3, inter alia, informing him that petitioner has removed respondent No. 1 as the publisher and printer of "AARPAAR" Gujarati Weekly and requested respondent No. 3 to pass orders cancelling the declaration made by respondent No. 1 on 1.10.2001 and 8.1.2002. Thereby, the petitioner unequivocally withdrew his authority given to respondent No. 1 vide letter dated 27.9.2001.
2.9 In view of the aforesaid circumstances, the petitioner filed a fresh declaration on 24.3.2003 requesting respondent No. 3 to give authentication of the petitioner as publisher, printer, owner, editor of the title "AARPAAR". To the great shock and surprise, respondent No. 3, returned the original declaration to the petitioner on 24.3.2003 and directed him that he should file declaration only after 31.3.2003. It is the case of the petitioner that respondent No. 3 has no right to return the original declaration given. It is stated that once the petitioner has filed the declaration it becomes a part of the Government record. Any paper which is part of the Government record cannot be returned as there is no provision in the Act or Rules to return the original papers. By returning the original record, respondent No. 3 has abdicated his function in this regard.
2.10 The petitioner thereafter through his advocate addressed a notice dated 26.3.2003 to respondent No. 1 calling upon respondent No. 2 not to accept any subscription from subscribers/agent since respondent No. 1 has been removed as publisher and printer.
3. Being aggrieved and dissatisfied with the said action, respondent No. 1 (plaintiff in Suit) filed a Regular Civil Suit No. 871 of 2003 before the City Civil Court, Ahmedabad, wherein respondent No. 1 sought the prayers, namely, to restrain the defendant (the petitioner herein) by an order of temporary injunction from printing, publishing any magazine in the name of AARPAAR Weekly magazine or in any other similar name. It may be noted that none of the prayers are to the effect of seeking a declaration of ownership of title AARPAAR. On 31.3.2003 the learned City Civil Court Judge passed the following interim order which was operative upto 2.4.2003.
"Heard. The plaintiff shall file his rejoinder on 2.4.2003 and till then both the parties would not print any issue."
It may be noted that after 2.4.2003 the said interim relief has not been continued.
4. In continuation of earlier declaration dated 24.3.2003, the petitioner filed a declaration on 1.4.2003 showing himself as publisher, printer, owner and editor. Respondent No. 3 had thereafter addressed a letter dated 1.4.2003 to respondent No. 1 in connection with the aforesaid declaration made by the petitioner and stated that if he (i.e respondent No. 1) has any objection, he may file the same within 7 (seven) days.
5. The respondent No. 1 thereafter filed a declaration on 4.4.2003 before respondent No. 3 showing himself as publisher, printer, and editor. However, in the column of owner the respondent once again showed the petitioner as the owner, with the remark "disputed and the matter is subjudice vide Civil Suit No. 871 of 2003 in the Hon'ble City Civil Court. Respondent No. 3 also issued a notice dated 8.4.2003 calling upon the petitioner to file objection within 7 days. Respondent No. 3 also sought a reference from RNI, New Delhi as contemplated under proviso to Section 6 of the Act in respect of the ownership of the title since it is not within the jurisdiction of respondent No. 3, Sub-Divisional Magistrate.
6. The petitioner filed his detailed objection on 9.4.2003 before the Sub-Divisional Magistrate justifying that the declaration filed by respondent No. 1 should not be authenticated. The petitioner also addressed a letter dated 16.4.2003 to RNI and pointed out the action of respondent and prayed to give opinion to respondent No. 3 about the ownership of AARPAAR as per the record. The petitioner also addressed another letter dated 16.4.2003 because according to him there was illegal publication of AARPAAR Gujarati Weekly Magazine by Mr. Manoj Bhimani. He further prayed RNI to give necessary direction to respondent No. 3 to authenticate the declaration filed by the petitioner. The Sub-Divisional Magistrate, respondent No. 3, also addressed a letter to the petitioner that he has referred the matter to RNI, New Delhi.
7. It may be noted that respondent No. 1 with a view to pressurise the petitioner to transfer the title, filed a criminal complaint against the petitioner wherein 471 legally published magazines were taken away by the police officials.
8. RNI by its letter dated 23.4.2003 informed the publisher that after perusal of the record it has been found that the petitioner is the owner of the title AARPAAR. It was also informed that a separate letter has also been written to respondent No. 3 clarifying the statutory provisions and the facts involved in the case.
9. As stated above, respondent No. 3 passed an order dated 1.5.2003 granting authentication to the declaration dated 4.4.2003 filed by respondent and refusing to authenticate the declaration dated 1.4.2003 filed by the petitioner.
10. It appears from the record that with a view to take advantage of the order dated 1.5.2003 and duly authentication declaration, the respondent filed another Regular Civil Suit No. 1232 of 2003 for infringement of copyright, passing of an action and account of profit against the petitioner and his company namely Vendanta Media Pvt. Ltd. The said Suit is still pending. It may be noted that in view of the injunction respondent No. 1 has started publishing Gujarati Weekly "AARPAAR".
CONTENTIONS AND SUBMISSIONS ON BEHALF OF THE PETITIONER:
11. Mr. K.S. Nanavati, learned senior advocate with Mr. Keyur Gandhi, advocate appeared on behalf of the petitioner.
12. The learned counsel has invited my attention to The Press and Registration of Books Act, 1867. The said Act is for regulating of Printing presses and Newspapers for the preservation of copies of books and newspapers printed in India and for the registration of such books and newspapers. Section 1 defines the word "editor" so as to mean the person who controls the selection of the matter that is published in a newspaper. The word "newspaper" has been defined as any printed periodical work containing public news or comments on public news. The words "Press Registrar" have been defined so as to mean the Registrar of newspapers for India appointed by the Central Government under Section 19A and includes any other person appointed by the Central Government to perform all or any of the functions of the Press Registrar. Section 3 of the Act provides particulars to be printed on books and papers. Section 4 provides keeper of printing press to make declaration. Section 5 provides Rules as to publication of newspapers. Sections 5, 5(2A) and 5(2B) of the Act provide as under:
"S. 5 - No newspaper shall be published in India, except in conformity with the rules hereinafter laid down.
S. 5(2A) - Every declaration under Rule (2) shall specify the title of the newspaper, the language in which it is to be published and the periodicity of its publication and shall contain such other particulars as may be prescribed.
S. 5(2B) - Where the printer or publisher of a newspaper making a declaration under rule (2) is not the owner thereof, the declaration shall specify the name of the owner and shall also be accompanied by an authority in writing from the owner authorising such person to make and subscribe such declaration."
12.1 Section 6 of the Act provides authentication of declaration which reads as follows:
"Each of the two originals of every declaration so made and subscribed as is aforesaid, shall be authenticated by the signature and official seal of the Magistrate before whom the said declaration shall have been made:
Provided that where any declaration is made and subscribed under Section 5 in respect of a newspaper, the declaration shall not, save in the case of newspapers owned by the same person, be so authenticated unless the Magistrate is, on inquiry from the Press Registrar, satisfied that the newspaper proposed to be published does not bear a title which is the same as, or similar to, that of any other newspaper published either in the same language or in the same State."
12.2 Section 7 of the Act provides office copy of declaration to be prima facie evidence. Section 8 provides new declaration by persons who have signed a declaration and subsequently ceased to be printers or publishers. Section 8A provides persons whose name has been incorrectly published as editor may make a declaration before a Magistrate. Section 8B provides for cancellation of declaration. Section 8C provides for appeal against the order of the Magistrate refusing to authenticate a declaration under Section 6 or cancelling a declaration under Section 8B of the Act. Section 19A provides appointment of Press Registrar and other officers. Section 19B of the Act provides Register of newspapers. Section 19C provides certificates of registration. Section 19D provides annual statement etc. to be furnished by newspapers. Section 20 provides power of State Government to make rules. Section 20A provides power of Central Government to make rules.
12.3 Section 20 of the Act provides power of State Government Section 20 of the Act provides power of State Government to make Rules. Section 20A provides power of Central Government to make Rules. Mr. Nanavati, learned sr. counsel has invited my attention to the Registration of Newspapers (Central) Rules, 1956 which are enacted in exercise of powers conferred under Section 20A of the Act. The said Rules are known as "the Registration of Newspapers (Central) Rules, 1956". Rule 2(b) provides "form" so as to mean a form specified in Schedule to these Rules. Rule 3 provides Form of declaration. Form 1 of the Schedule is also prescribed under the Rules and column No. 9 provides editor's name, nationality, address and column 10 provides owner's name which reads as under:
"10(a) please state the particulars of individual(s) or of the firm, Joint Stock Company, trust, co-operative society or association which owns the newspaper."
12.4 The learned counsel for the petitioner has invited my attention to Article 19(1)(a) of the Constitution which provides that all citizens shall have the right to freedom of speech and expression. He submitted that the order of respondent No. 3 by which he did not authenticate the authentication presented by the petitioner dated 1.4.2003 violated the said fundamental right of the petitioner to publish the magazine AARPAAR. He submitted that the said action of respondent No. 3 is wrongful and violates the petitioner's fundamental right to carry on the occupation of editor of the newspaper as well as business of publishing the newspaper - magazine "AARPAAR". In support of the said contention, learned counsel for the petitioner has relied on the judgement of the Hon'ble Supreme Court in the case of GOPAL DASS SHARMA VS. DISTRICT MAGISTRATE, JAMMU reported in AIR 1973 SC 213 particularly paragraphs 14 and 15 of the said judgement on page 215 which read thus:
"Para 14 - The cancellation was wrongful. It was hasty. No opportunity was given to the petitioner. The explanation of a typing error with regard to the date indicates the unseemly haste with which the District Magistrate took action against the petitioner.
Para 15 - It was said on behalf of the respondents that the petitioner had a right of appeal under S. 8C of the Act. It is also said that no fundamental right of the petitioner was infringed by the cancellation. The petitioner's fundamental right to carry on the occupation of editor of newspaper as well as business of publishing a newspaper is infringed by the illegal act."
12.5 The learned counsel has further submitted that the learned Sub-Divisional Magistrate has misread the provisions of the Act and without application of mind and completely disregarding the letter of the Registrar of Newspapers dated 23.4.2002 has authenticated the declaration filed by respondent No. 1 who was till 31.3.2003 merely working as a Publisher and a Printer and had no role to pay in the vast acceptance which the AARPAAR Weekly has obtained in the general public at large.
12.6 The learned counsel has further submitted that as per the Scheme of the Act, the Sub-divisional Magistrate is not authorised or is not vested with the jurisdiction to decide the matter as to who would be entitled to make a declaration as Editor of a newspaper with a particular name. The proviso to section 6 is intended to safeguard an existing newspaper and it imposes a limit to the otherwise unrestricted right of a new comer in regard to the choice of a title to his paper. The proviso to Section 6 prevents any person from declaring himself as a publisher of a newspaper if there existed already a newspaper of that name either in the same language or in the same State. The said proviso is intended to prevent unfair competition between two newspapers published by different persons under the same name and title. The proviso is enacted with a view to protect an existing newspaper in regard to its name. There is no provision in the Act which empowers the District Magistrate to hold an inquiry and decide the question of title or ownership and then pass an order suspending or cancelling the declaration made and thereby disabling a party from carrying on his business.
12.7 The learned counsel has further submitted that the respondent has tried to confuse and mislead the Court by time and again referring to the Civil Suits filed by him against the petitioner only with a view to gain advantage of the situation created by the impugned order. The civil litigation initiated by the respondent has no connection with the declaration sought for by the petitioner.
12.8 As contemplated under the proviso to Section 6 of the Act, it was mandatory upon the Sub-Divisional Magistrate to authenticate declaration sought for by the petitioner more particularly in view of the letter dated 23.4.2003 of the Registrar of newspapers clearly indicating therein that the petitioner is the owner of title AARPAAR which was duly registered in the name of the petitioner.
12.9 The learned counsel has further submitted that the Sub-Divisional Magistrate could not have authenticated the declaration of respondent which was not accompanied by an authority in writing of the owner of the title AARPAAR as contemplated under Section 5(2B) of the Act. The petitioner further submitted that respondent No. 1 was appointed as a Printer and Publisher and as agreed between the petitioner and respondent No. 1, respondent No. 1 was collecting the subscription and advertisement charges. Though agreed, respondent No. 1 has till date not accounted for the moneys received by him by way of subscriptions and advertisement charges and expenses incurred by him. He is holding the said amount in trust and therefore he cannot be allowed to say that the moneys he has spent is so spent from his own pocket. He further submitted that though he himself is the owner and editor, he is entitled to remuneration because he has written editorial in the magazine and for that purpose he has charged the company and therefore he has received the amount and for that purpose TDS certificate has been put by the respondent which shows that this TDS certificate Form No. 16A provides for professional charges. The petitioner had provided professional services for which he was paid professional charges that too only upto September 2002. There is nothing in writing about the petitioner charges from the magazine for which he has worked for professional.
12.10 The learned counsel has submitted that it is mandatory upon a Publisher or a Printer to file a declaration along with an authority letter of the owner. This is a mandatory requirement stipulated under Section 5(2B) of the act and any declaration without such an authority letter cannot be authenticated. The earlier authority letter dated 27.9.2001 which is relied upon by respondent was specifically withdrawn vide letter dated 12.3.2003 and 13.3.2003 addressed to respondent No. 1 and to the Sub-Divisional Magistrate. In view of these specific letters the Sub-Divisional Magistrate could not have authenticated the declaration filed by respondent No. 1 and therefore also the impugned order authenticating the declaration of respondent No. 1 without authority letter is illegal, without jurisdiction and against the provisions of the Act.
12.11 The learned counsel further submitted that the report of Registrar of Newspapers dated 23.4.2003 is a prima facie evidence in favour of the petitioner and therefore also the Sub-Divisional Magistrate could not have ignored the said fact and authenticated the declaration filed by the respondent No.1. Moreover, the Civil Court has still not decided the status and in absence of any finding of Civil Court to that effect, the prima facie evidence referred to hereinbefore vide letter of RNI dated 23.4.2003 ought to have been taken as basis for deciding the present controversy.
12.12 The impugned order authenticating the declaration of respondent No. 1 dated 4.4.2003 is passed without authority of law, contrary to the provisions of the Act and without jurisdiction. As contemplated under Section 5(2B) if a Printer or Publisher of a newspaper is making a declaration and is not the owner thereof, the declaration shall have to specify the name of the owner and shall also be accompanied by an authority in writing from the owner authorising such person to make and subscribe such declaration. The authority letter dated 27.9.2001 authorising respondent No. 1 to file declaration was withdrawn and cancelled by the petitioner vide notice dated 12.4.2003 thereby the respondent was removed as a Publisher and Printer. A copy of the said notice was also sent to the Sub-Divisional Magistrate. As a matter of fact vide a subsequent notice dated 13.3.2003, the petitioner also informed the Sub-Divisinal Magistrate to cancel the declaration dated 1.10.2001 and 8.1.2002 made by respondent No. 2 on the ground that the petitioner has removed respondent No. 1 as a publisher and printer of "AARPAAR" Gujarati Weekly. In view of the same, the petitioner has no alternative efficacious remedy available under the Act and writ petition is maintainable.
12.13 The petitioner also stated that though the declaration which is to be filed as per the provisions of the Act and Rules, respondent No.1 has tried to omit certain words in column 10 which is written in the Rules which I have already reproduced.
12.14 He has also invited my attention to the declaration made by respondent No. 1 in which respondent No. 1 has deliberately omitted the words "which owns the newspaper". He has submitted that respondent No. 1 is expected to file a declaration as per the information of the Rules and he has filed declaration contrary to the statutory Rules that shows his mala fide intention in this behalf.
12.15 He therefore submitted that respondent No. 1 has deliberately and mala fide omitted clause of statutory Rules from filing declaration.
12.16 The Civil Suits for ownership and under the provisions of the Copyright Act are filed only with a view to side track the issue of declaration and with a view to gain undue advantage.
12.17 The impugned order of the Sub-Divisional Magistrate is violative of the fundamental rights of the petitioner to carry on his occupation / business and is in breach of principles of natural justice. The learned counsel for the petitioner has submitted that in view of the decision of the Hon'ble Supreme Court in the case of GOPAL DASS SHARMA (supra) as the petitioner's fundamental rights have been violated, the petitioner need not file any appeal under the Act. As the fundamental rights of the petitioner have been violated, the petitioner need not be relegated to an alternative statutory remedy provided under the law.
12.18 As regards alternative remedy, in view of the decision of the Hon'ble Supreme Court in the case of GOPAL DASS SHARMA (supra) wherein the Supreme Court has entertained the petition under Article 32 of the Constitution against the order of the District Magistrate, Jammu. The Constitution Bench has held that action of the District Magistrate violates the editor's fundamental right to carry on the occupation of editor of newspaper as well as business of publishing a newspaper. He has relied on paragraphs 14 and 15 which I have quoted earlier and stated that there is no question of alternative remedy in this behalf once the fundamental right of the petitioner is violated. He further submitted that Section 8C of the Act contemplated filing of the appeal by a person aggrieved by an order of a Magistrate refusing to authenticate a declaration under Section 8B of the Act. There is however no appeal provided for against an order of the Magistrate authenticating a declaration contrary to the provisions of the Act.
CONTENTIONS AND SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
13. Mr. S.K. Jhaveri, learned senior counsel, with Mr. Y.J. Trivedi, learned advocate, on behalf of respondent No. 1, submitted that the provisions of the Act which have been relied upon by the petitioner do not deal with title or ownership of the Press in question. He submitted that the object of the Press Act was to regulate Printing Presses and Newspapers, in order to preserve copies of newspapers and books. Moreover, in order to avoid multiplicity of suits and uncertainties of liabilities, it was considered necessary to choose one of the persons from the staff and make him liable for all the articles or matters published in the paper so that any person aggrieved may sue only the person named under the provisions of the Press Act and is relieved from the necessity of making a fishing or roving enquiry about persons who may have been individually responsible for the offending matters published in the paper. In support of the aforesaid contention he has relied on the judgement of the Hon'ble Supreme Court in the case of HAJI C.H. MOHAMMAD KOYA VS. T.K.S.M.A. MUTHUKOYA reported in AIR 1979 SC 154 particularly para 13 of the said judgement.
13.1 The learned counsel for respondent No. 1 has also relied on the communication dated 19.12.2000 from the Government of India, Office of the Registrar of Newspapers for India (Ministry of Information & Broadcasting) to the SDM. As per the said communication he has stated that the owner and editor makes authenticate declaration of the publishers as required under Section 5 of the Act and forward a copy of the same to the office of the Registrar of Newspapers for India for necessary action. The publisher has to get the declaration authenticated within sixty days from the date of issue of the said letter. He further submitted that the declaration made in respect of a newspaper shall be void where the newspaper does not commence publication within six weeks from the authentication of the declaration, under Section 6 of the Act in the case of a newspaper to be published once a week or oftenly. He submitted that in this case Shri Chandresh Desaibhai Patel has transferred the rights of ownership including all liabilities in favour of the petitioner on 14.6.2001. He has submitted that the editor has filed declaration on 27.9.2001 before the Sub-Divisional Magistrate in which he has stated that he has been the owner of the title "AARPAAR" Gujarati Weekly and respondent No. 1 has filed declaration 5 in which he is publisher and printer and the petitioner is editor. He submitted that in this case for the first time in November 2000 the magazine "AARPAAR" has been published and therefore the declaration which has been filed has no effect though it has been filed by respondent No. 1 on 1.10.2001. According to him on that day AARPAAR Gujarati Weekly was not published as per communication of 19.12.2000 and therefore that authentication has no meaning in the eye of law.
13.2 The learned counsel has submitted that the Sub-Divisional Magistrate has passed order on 1.5.2003 by which he has declined to authenticate the declaration of petitioner dated 1.4.2003 and granted authentication to the declaration dated 4.4.2003 filed by respondent No.
1. He has stated that the Sub-Divisional Magistrate has given cogent and convincing reasons for coming to the said conclusion. He has relied on Section 5(2B) and 5(2C) and particularly Section 8C of the Act which provides appeal against the order of the Magistrate refusing to authenticate a declaration under Section 6 or cancellation of declaration under Section 8B of the Act. Section 8C of the Act reads as under:-
"Section 8C - Appeal (1) Any person aggrieved by an order of a Magistrate refusing to authenticate a declaration under Section 6 or cancelling a declaration under Section 8B may, within sixty days from the date on which such order is communicated to him, prefer an appeal to the Appellate Board to be called the Press and Registration Appellate Board (consisting of a Chairman and another Member to be nominated by the Press Council of India established under Section 4 of the Press Council Act, 1978 (37 of 1978) from among its members."
13.3 In support of the aforesaid contention the learned counsel for the respondent has relied on the Division Bench judgement of this court in the case of MRS. TARAMATI PRANLAL SHAH VS. ADDITIONAL DISTRICT MAGISTRATE reported in AIR 1964 Gujarat 278 and other decisions, namely, K.N. GANESH VS. CHIEF PRESIDENCY MAGISTRATE reported in AIR 1959 MADRAS 519, RAMESH CHAND AGRAWAL VS. STATE OF MADHYA PRADESH reported in AIR 1989 MADHYA PRADESH 152 and also the decision of this Court in the case of NAVALSHANKER GAURISHANKER THAKAR VS. MAMLATDAR & PRESCRIBED OFFICER reported in 42(2) GLR 956.
CONCLUSION AND FINDINGS:
14. In my view the fundamental right for freedom of speech and expression includes freedom of press and circulation. The freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. Liberty of circulation is as essential to that freedom as the liberty of publication. Without circulation the publication would be of little value. (Re: ROMESH THAPPAR VS. STATE OF MADRAS reported in AIR 1950 SC 124)
14.A I have gone through the reasoning in the order of the Sub-Divisional Magistrate. The learned SDM has narrated the facts of the case and also pendency of the two Suits. In my view the order of the learned SDM rejecting authentication filed by the petitioner on 1.4.2003 and also approving the authentication filed by respondent No. 1 on 4.4.2003 is illegal and without jurisdiction and without considering the provisions of the Act and Rules. The learned SDM has not considered even the provisions of the Act and Rules. The learned SDM has not properly appreciated the communication dated 23.4.2003 addressed by the Registrar of Newspaper for India to him wherein the Registrar has specifically stated that the ownership of the title "AARPAAR" Gujarati Weekly stands in favour of the petitioner. The Registrar has also directed to take into consideration the relevant provisions and after considering the said aspect take a decision. SDM has not considered the fact that originally the owner Shri Chandresh Desaibhai Patel has transferred his right, title, interest and ownership in favour of the petitioner and necessary declaration was made to RNI in this regard. The petitioner has given authority to respondent No. 1 to file declaration as contemplated under Section 5(2B) of the Act. Section 5(2B) of the Act inter alia provides that where the printer or publisher of a newspaper making a declaration under Rule (2) is not the owner thereof, the declaration shall specify the name of the owner and shall also be accompanied by an authority in writing from the owner authorising such person to make and subscribe such declaration.
14.1 In fact the declaration dated 1.10.2001 specifically shows the petitioner as owner and editor of the newspaper. Registration has also been given by RNI on 24.12.2001. The action of the SDM is, therefore, illegal and bad when on 24.3.2003 the SDM surprisingly and unauthorisedly returned the original declaration filed by the petitioner. The SDM is a statutory authority and once papers are filed before him it becomes part of the record of the office. He cannot return the original paper to the petitioner or anybody else. In my view he has clearly abdicated his function and his action of returning the original papers is beyond the provisions of the Act and Rules. It may be noted that on identical situation in one Excise matter when the Excise Collector returned the refund claim made by the petitioner, a Division Bench of this Court (Coram: R.K. Abichandani and K.M. Mehta, JJ) by its order in Special Civil Application No. 4539 of 2003 dated 6.5.2003 held that such course adopted by Assistant Commissioner of returning original claim application without making any order thereon amounts to refusal to perform that statutory duty imposed on him to consider the application and make an order thereof, in accordance with law.
14.2 It appears that the learned SDM has returned the original declaration made by the petitioner on 24.3.2003 to see that the original declaration made by the petitioner may not be on the record of the SDM. In fact in the impugned order he has not referred the said declaration.
14.3 The Civil Suit filed by the petitioner will have to be decided by the City Civil Court. I do not decide any controversy or dispute between the petitioner and respondent No. 1 qua the aforesaid Suit. I do not express any opinion in this regard and the City Civil Court will decide the Suits independently without being influenced by the judgement of this Court. The learned Judge is requested to decide the Suits in accordance with law.
14.4 The learned SDM has completely misread the provisions of the Act and without application of mind and complete disregard to the letter of RNI dated 23.4.2003 has authenticated the declaration filed by respondent No. 1 who was till 31.3.2002 merely worked as a publisher and printer and has no role to play in the vast acceptance of "AARPAAR" Gujarati Weekly in the general public at large. .
14.5 It is no doubt true that Registrar of Newspaper for India has addressed a letter dated 19.12.2000 to the SDM which says that the publisher has declared within 60 days from the date of the authorisation of the letter and if he has filed the same such declaration has no effect in the eye of law. In this case only in June 2001 the petitioner got title in this behalf. In September 2001 he has selected respondent No. 1 as publisher and printer and thereafter on 1.10.2001 declaration under Section 5 of the Act has been filed. Thereafter in November 2001 he has started publication of the weekly. He also got registration in December 2001. In view of this fact, I do not see any substance in the case of respondent No. 1 that declaration made earlier by the petitioner becomes bad.
14.6 In my view the judgement of the Hon'ble Supreme Court in the case of HAJI C.H. MOHAMMAD KOYA (supra) which has been relied upon by the learned counsel for the respondent has no bearing on the facts of the present case because that was a matter where provisions of Representation of the People Act were challenged before the Hon'ble Supreme Court where election of the returned candidate was set aside under the provisions of the Representation of the People Act. In that context, the Hon'ble Supreme Court has made certain observation regarding the object of the Act. The said decision is binding on me. However, the said decision does not decide the controversy and the dispute which is raised in the present matter. The said decision is therefore not applicable to the facts of the case.
14.7 As regards alternative remedy, it is no doubt true that respondent has relied on two/three decisions of various High Courts including judgement of this Court, which I have quoted earlier, to show that the petition of the petitioner is not maintainable at law and the petitioner should be relegated to a remedy of appeal provided under Section 8C of the Act. This Court does not accept this contention of the learned counsel for the respondent on two counts, namely (1) that there is a direct judgement of the Hon'ble Supreme Court in the case of GOPAL DASS SHARMA (supra) particularly paragraph 15 of the said judgement is complete answer to the contention of the respondent. It may be noted that in this case petition against the District Magistrate's order was preferred under Article 32 of the Constitution and the Constitution Bench of the Hon'ble Supreme Court has decided the said point. If there are other judgements of the High Courts which do not take into consideration the aforesaid judgement. So contention of the learned counsel for the respondent No. 1 that the petitioner should be relegated to an alternative remedy cannot be accepted as I am bound by the judgement of the Hon'ble Supreme Court in the case of GOPAL DASS SHARMA (supra). Therefore, I do not accept the contention of the learned counsel for the respondent relying on the aforesaid judgements of the High Courts.
14.8 However, I do not rest my finding in this behalf. As regards the Division Bench judgement in the case of MRS. TARAMATI PRANLAL SHAH (supra) in that case a declaration was made under Section 4 of the Act and that the petitioner challenged. In that case whether the petitioner has alternative remedy or not has not been decided. As regards the decision in the case of K.N. GANESH (supra) it is not doubt the same is helpful to the respondent but in view of the judgement of the Hon'ble Supreme Court in the case of GOPAL DASS SHARMA (supra) I do not accept the said judgement. As regards the decision in the case of NAVALSHANKER GAURISHANKER THAKAR (supra) wherein the question of alternative remedy is discussed but the same judgement has not considered the judgement of the Hon'ble Supreme Court in the case of GOPAL DASS SHARMA (supra) and it will not be possible for me to rely on the said decision of the learned Single Judge of this Court in NAVALSHANKER's case. As regards the decision of the Madhya Pradesh High Court in the case of RAMESH CHAND AGRAWAL (supra) this judgement in fact did not help the respondent but in my view the same helps the case of the petitioner. The Division Bench has partly allowed the petition and gave direction to the Magistrate.
14.9 Now question regarding ad-interim relief is concerned, in this case I have considered the judgment of the Apex Court in the case of Hindustan Petroleum Corporation Ltd. Vs. Sriram Narayan & Anr reported in (2002) 5 SCC 760 which lays down the principle for granting or refusing temporary injunction. In the said judgment at para 7 on page 765 the Hon'ble Supreme Court has observed as under:
"para 7. It is elementary that grant of an interlocutory injunction during the pendency of the legal proceeding is a matter requiring the exercise of discretion of the court. While exercising the discretion the court normally applies the following tests:
(i) whether the plaintiff has a prima facie case;
(ii) whether the balance of convenience is in favour of the plaintiff; and
(iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed."
14.10 In the facts and circumstances of the case, I am of the view that the petitioner has proved that he has a prima facie case, the balance of convenience also lies in favour of the petitioner, the petitioner would suffer irreparable injury if his prayer for injunction is disallowed. In view of the same, the interim relief which has been prayed by the petitioner may be granted.
15 In view of the same, I am of the view that the petition requires to be admitted and the same is admitted. The order dated 1.5.2003 passed by the Sub-Divisional Magistrate is stayed. In view of the same, authentication dated 4.4.2003 filed by respondent No. 1 is stayed.
(K.M. MEHTA, J) After pronouncement of this judgement, Mr. K.S. Jhaveri, learned advocate for the respondent requests the Court that this order may be stayed for a week since he wants to approach higher Forum. The request is granted and this order is stayed till 7.6.2003 so as to enable the respondent to file appeal or to take any further proceedings in accordance with law.
(K.M. MEHTA, J) (pkn)