Delhi High Court
The Institute Of Chartered Accountants ... vs Union Of India (Uoi) And Ors. on 5 August, 2005
Equivalent citations: 122(2005)DLT601, 2005(83)DRJ241, 2005(31)PTC190(DEL)
Author: Mukul Mudgal
Bench: Mukul Mudgal
JUDGMENT Mukul Mudgal, J.
1. This writ petition seeks a writ of mandamus against the respondents namely Union of India (Secretary, Ministry of Home Affairs & the Secretary Ministry of Information & Broadcasting), the DCP, Press Section-Licensing, the Registrar of Newspapers of India, M/s Living Media India Limited, Shri Anil Mehra and M/s Thompson Press India Limited to comply with the provisions of the Press and Registration of Books Act, 1867 (hereinafter referred to as the Act). It is not in dispute that from 1997 to June, 2005, Mr. Anil Mehra on behalf of M/s Living Media India Limited was printing and publishing the journal namely 'The Chartered Accountant' at the Thompson Press India Limited. It appears that disputes arose between the petitioner and M/s Living Media and the petitioner switched to another printer at Bombay namely Spenta Multimedia, leading to the filing of Civil Suit No. 950/2005 in this Court by respondent No. 5 -M/s Living Media India Limited, seeking an injunction against the petitioner from changing the printer and publisher. By order dated 15th July, 2005, the said IA No. 5245/2005 filed in CS(OS) No. 950/2005 was dismissed by Hon'ble Mr. Justice Madan B. Lokur with costs. The petitioner had also made a representation under Section 5 of the Act for authentication of the new printer appointed by the petitioner. Reminders were sent to respondent No. 3-DCP, Press Section -Licensing on 29th June, 2005, 4th July, 2005 and 6th July, 2005 and since the issue is still pending determination by DCP Licensing and the monthly issues of the publication are required to be published the present writ petition was filed. The learned counsel for the petitioner has relied upon the provisions of Sections 5(8), 8(A), (B) & (C) of the Act. Mr. Vaidyanathan, learned senior counsel for the petitioner has contended that as per the mandate of Section 5(8) every existing declaration in respect of a newspaper shall be cancelled by the Magistrate before whom a new declaration is made and subscribed in respect of the same. Sections 5(8), 8A, 8B and 8C of the Act read as follows:
"5(8) Every existing declaration in respect of a newspaper shall be cancelled by the Magistrate before whom a new declaration is made and subscribed in respect of the same.
8A. Person whose name has been incorrectly published as editor may make a declaration before a Magistrate.-- If any person, whose name has appeared as editor on a copy of a newspaper, claims that he was not the editor of the issue on which his name has so appeared, he may, within two weeks of his becoming aware that his name has been so published, appear before a District, Presidency or Sub-Divisional Magistrate and make a declaration that his name was incorrectly published in that issue as that of the editor thereof, and if the Magistrate after making such inquiry or causing such inquiry to be made as he may consider necessary is satisfied that such declaration is true, he shall certify accordingly, and on that certificate being given the provisions of section 7 shall not apply to that person in respect of that issue of the newspaper.
The Magistrate may extend the period allowed by this section in any case where he is satisfied that such person was prevented by sufficient cause from appearing and making the declaration within that period.
8B. Cancellation of declaration.-- If on an application made to him by the Press Registrar or any other person or otherwise, the Magistrate empowered to authenticate a declaration under this Act, is of opinion that any declaration made in respect of a newspaper should be cancelled, he may, after giving the person concerned an opportunity of showing cause against the action proposed to be taken, hold an inquiry into the matter and if, after considering the cause, if any, shown by such person and after giving him an opportunity of being heard, he is satisfied that--
(i) the newspaper, in respect of which the declaration has been made is being published in contravention of the provisions of this Act or rules made there under; or
(ii) the newspaper mentioned in the declaration bears 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; or
(iii) the printer or publisher has ceased to be the printer or publisher of the newspaper mentioned in such declaration; or
(iv) the declaration was made on false representation or on the concealment of any material fact or in respect of a periodical work which is not a newspaper;
the Magistrate may, by order, cancel the declaration and shall forward as soon as possible a copy of the order to the person making or subscribing the declaration and also the Press Registrar.
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]:
Provided that the Appellate Board may entertain an appeal after the expiry of the said period, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
(2) On receipt of an appeal under this section, the Appellate Board may, after calling for the records from the Magistrate and after making such further inquiries as it things fit, confirm, modify or set aside the order appealed against.
(3) Subject to the provisions contained in sub-section (2), the Appellate Board may, by order, regulate its practice and procedure.
(4) The decision of the Appellate Board shall be final."
2. The main plea of the learned senior counsel for the respondent Nos. 5,6 and 7 Mr. Rajiv Nayar and the learned counsel for respondent No. 3 Mr. George Paracken is that as per the provisions of Sections 8B of the Act when the application is made to the Magistrate by any person, the Magistrate has the power to authenticate a declaration and when he seeks to make the cancellation, he is required to give the person concerned an opportunity of hearing before action is taken. Accordingly, such opportunity was given to the printer and publisher namely Living Media India Limited i.e. respondent No. 5 and Mr. Anil Mehra i.e. respondent No. 6 as they were the persons concerned and affected by the order of cancellation deleting their name.
3. Mr. Vaidyanathan, learned senior counsel for the petitioner has, however, contended that not only was the cancellation mandatory as per Section 5(8), in view of the word 'shall' used in Section 5(8), the procedure undertaken by respondent No. 3 by issuing notice only to respondent No. 5 and 6 and not to the petitioner is clearly against the clear mandate of Section 8B and is not proper. This indicated that only one side to the lis was being heard. The petitioner, being the applicant was certainly required to be heard, whether or not the respondents Nos. 5 to 7 were heard.
4. Mr. Paracken who appears on behalf of respondent No. 3 states that he is prepared to take action under Section 5(8) read with Section 8(A) and 8(B) within three weeks from today under the statute so as to ensure that the matter is decided urgently. It is, therefore, directed that within 3 weeks from today the issue pending before the Respondent No. 3 shall be decided as per the counsel's statement after notice to both the petitioner and respondent Nos. 5 to 7.
5. Mr. Vaidyanathan, the learned counsel for the petitioner has no objection to this course of action but prays that an interim order be passed in his favor as he contends that the July edition of the publication in question has not been published by the Institute of Chartered Accountants of India owing to the dispute between the parties. He submits that since the publication containing vital information and input for the profession is also studied by the students of Chartered Accountancy as well as all the practitioners, its non-publication can lead to a vacuum and loss to the students community which this Court should not countenance.
6. The only issue which this Court has to consider is passing of an interim order pending the determination of issue by respondent No. 3. In considering the nature of the interim order, I am conscious of the fact that a Civil Court, namely the original side of this Court is already seized of the dispute between the parties which is the cessation of publication by respondent No. 5 and I have noticed that the learned Single Judge in his order dated 15th July, 2005 in I.A. No. 5245/2005 in CS(OS) No. 950/2005 has held as under:
"Learned counsel for Defendant No. 1 pointed out that the journal 'The Chartered Accountant' is intended for circulation amongst members of Defendant No. 1. these members have paid subscriptions and if an interim injunction is granted, as prayed for by the Plaintiff, the publication of the journal would have to be suspended which would cause a huge loss not only to the reputation of Defendant No. 1 but would also create unnecessary complications in so far as the subscribers of the journal, who are not connected with the dispute, are concerned. The journal has been in print for over 50 years and under these circumstances, the balance of convenience does not, under any circumstances, lie in favor of the prayer of the plaintiff being granted.
I am of the view, on an overall consideration of the facts of the case, that the Plaintiff has not been able to make out a prima facie case for the grant of any injunction as prayed for. There is also no balance of convenience in favor of the prayer of the Plaintiff being granted. No case of any irreparable loss or injury has been made out by the Plaintiff because it is not as if its entire business will come to a standstill. On the contrary, it appears that irreparable loss and injury would be caused to Defendant No. 1 if an injunction, as prayed for, is granted."
7. I am also conscious of the fact that such order has been carried in appeal to the Division Bench but no stay of the operation of the learned single Judge's order dated 15th July, 2005 has been granted, I am of the view that the publication ought not to cease while the dispute between the parties is pending under the Act.
8. Non-publication of the journal catering to professionals and students can never be said to be in public interest. Accordingly, the publication of the journal by the petitioner is permitted subject to the result of the proceedings before the respondent no. 3. This is purely an adhoc interim arrangement which shall continue during the pendency of the proceedings under the Act. However, the publication by the petitioner pending determination of the application made by the petitioner under Section 5(8) of the Act shall bear the following notation:-
"Statement to be printed in issues of 'The Chartered Accountant' July 2005 onward till such time as the matter remains sub judice.
Printed and published by Vijay Kapur (Anil Mehra) on behalf of The Institute of Chartered Accountants of India (ICAI) in accordance with order dated 5th August, 2005 of the Hon'ble High Court of Delhi in CWP No. 11689/2005. Published at.... Indraprastha Marg, New Delhi and printed at Spenta Multimedia, Spenta House, Mathuradass Mill Compound, M.M. Joshi Marg, Lower Parel, Mumbai-400013. The name of both Vijay Kapur and (Anil Mehra) are printed owing to the sub judice dispute raised by Living Media."
9. I cannot help but notice that the Press and Registration of Books Act, 1867 was enacted in the year 1867, i.e. 138 years ago. The provisions of the Act particularly Section 5(2) require the printer/publisher of a newspaper to appear in person or through an agent before a Magistrate for the declaration in respect of the publication of newspapers and every change carried out in relation to the newspaper. These provisions reflect a colonial mindset which appears to be an anachronism in the contemporary democratic era in which the freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution and is one of the pillars of the Indian democracy. It is for the Government to consider whether such outdated norms embodied in the Act which are reflective of the expression of the imperial power of the ruler over printers and publishers of newspapers ought to remain on the statute book.
10. The writ petition accordingly stands disposed of in terms of the above directions.