Railway Board, Govt. of India Vs. M/S
Observer Publications (P) Ltd. [1972] INSC 82 (16 March 1972)
GROVER, A.N.
GROVER, A.N.
SIKRI, S.M. (CJ) RAY, A.N.
PALEKAR, D.G.
BEG, M. HAMEEDULLAH
CITATION: 1972 AIR 1792 1972 SCR (3) 865 1972
SCC (2) 266
CITATOR INFO :
R 1980 SC 226 (19)
ACT:
Constitution of India Art. 14-Indian Railway
Code, Clause 742 News-weekly-Sold by licensees at railway bookstalls-Ban on
sale of such news-weekly-Ban is not justified under clause 742 sub-clause (V)
if the matter is not found to be obscene but only bordering on
obscenity-Similar publications not banned-Ban is violative of Art. 14 of
Constitution.
HEADNOTE:
The sale of the Indian Observer, a news
weekly, at railway platforms was banned by an order of the appellant board in
March 1965. The respondent who was owner and publisher of the Indian Observer
filed a writ petition in the High Court alleging that the ban had been imposed
because the new weekly had carried certain articles which were critical of the
Railway administration. The appellant's case in the High Court was that the ban
had been imposed because the news weekly carried sexy and obscene matter. The
High Court allowed the writ petition holding that similar publications were
allowed to be sold by the licencees of railway bookstalls and the ban on Indian
Observer was therefore discriminatory. The High Court also held that under
clause 742 of the Indian Railway Code the appellant had no authority to impose
the ban. In appeal against the High Court's decision.
HELD : (i) In the Indian Railway Code the
policy and principle, laid down in categorical terms in sub-clause (viii) of
Clause 742 is that the contractor should provide equal opportunity. to all the
popular newspapers for sale in their stalls, on the same terms. This was
subject to certain conditions one of which in sub-clause (v) was that the sale
of obscene books and pictures and publications by the government should be
strictly banned. However the letter written by the railway dated March 26, 1965
did not impose the ban on the ground that Indian Observer was an obscene
publication which had been prohibited by the government. In that letter there
was first a recital of what had come to the Board's notice i.e., that the
articles written in the said news weekly were in very low taste bordering on
obscenity. There was no finding or decision that it was a publication which was
obscene. The conclusion of the Board simply was that the Indian Observer was
not fit for ,ale, at Railway station,;. The other condition laid down in
sub-clause (v) that its sale has been prohibited by the Government was neither
mentioned nor had it been shown that any such order had been made by the
government prohibiting the sale of the Indian Observer on the ground that it
was obscene. The Central Government was not shown to have, any power under the
Railways Act or rules there under to ban the sale of any obscene book or
publication and it was not claimed that the Railway Board could impose the ban
under any other enactment. For the above reasons the order imposing the ban
could not be justified under clause 742 of the Indian Railway Code.
(ii) The High Court had found as a fact that
publications which were freely on sale on the bookstalls to whom licences has
been given were 866 such that they were hardly distinguishable from the Indian
Observer on the ground of obscenity. It was not disputed before the High Court
that the news weekly in question had been sold on railway platforms since 1963
nor was it suggested that the Railway Board had ever accorded individual
sanction for the sale of every single book and publication at the book stalls
of the Railway Administration. The Railway Administration had itself directed
that the book stall contractors who were its licencees should provide equal
opportunity to all the popular newspapers for sale in their stalls. These very
contractors were now being directed to discriminate between the respondent and
owners or publishers of other popular newspapers on grounds which had no legal
basis or justification. The administrative act or order of the Railway Board
(which fell within the definition of 'State' in Art. 1) of the, Constitution)
could therefore be challenged by the appellant in a petition under Art. 226 of
the Constitution as violative of Art. 14. Since no proper or valid grounds had
been shown for sustaining the discrimination made, the view of the High Court
that the impugned order of the Railway Board was discriminatory must be upheld.
Railway Board v. Niranjan Singh, [1069] 3
S.C.R. 548, distinguished.
(iii)Judicial propriety and decorum demand
that a Bench while considering the question of granting a certificate for
appeal to this Court ought not to be critical of or express any dissent from
the judgment appealed against because it has not such jurisdiction and all that
it has to decide is whether the requirement of the Articles of the Constitution
on which a ,certificate can be granted have been satisfied.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2097 of 1968.
Appeal from the judgment and order dated
August 11, 1965 of the Delhi High Court in C.W. No. 197-D of 1965.
Jagdiish Swarup, Solicitor-General of India,
S. N. Prasad, B. D. Sharma and S. P. Nayar, for the appellant.
S.C. Manchanda, S. Balakrishnan and P. N.
Lekhi, for the respondent.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by certificate from a judgement of the Punjab High
Court by which the petition under Art. 226 of the Constitution filed by the
respondent was allowed and the ban imposed on the sale of a news weekly called
"The Indian Observer" by the licensees of the Railway Book Stalls
throughout the country under directions issued by the appellant was set aside.
According to the writ petition, the
petitioner was the owner and publisher of a weekly newspaper known as "The
Indian Observer" which had a wide sale in India, its weekly circulation
being approximately 1,35,000 copies. Till March 1965 the .aforesaid news weekly
was being sold at all the railway stations 867 which were managed and were
under the administrative control of the Railway Board. It was alleged that the
policy of the news weekly was to publish a constructive criticism and fair
comment in public interest on the working of different departments of the
Government and to suggest remedial measures., In some of the copies of the news
Weekly, certain matters regarding the maladministration of the Railway had been
published. Reference was made in particular to the issue of 11th September,
1964 in which allegations were made about the black-marketing in deluxe train
tickets. It was stated to have attained the magnitude of a big racket operating
in the country resulting in lot of gain by corrupt means to the Railway staff.
It is unnecessary to give the details but according to the allegations made in
the news weekly, the Railway staff was corrupt and the reasons for the
corruption were also given. Other comments were made which reflected adversely
on the working of the Indian Railways. According to the petitioner all these
statements and resolutions annoyed the Railway Authorities and on 22nd
September, 1964, the Circulation Manager of the Petitioner company received a
letter from M/s Gulab Singh (P) Ltd., one of the licensees, of the Railway
Board for sale of printed matters intimating that the Northern Railways
administration had banned the sale, of "The Indian Observer" on the
Railway Book Stalls. Subsequently, when the petitioner took up the matter with
the authorities concerned, the General Manager, Northern Railways, wrote to him
informing him that temporary permission had been given to the railway
contractors of printed matters to sell the news weekly subject to proper review
of that paper and final orders which would be given later. The General Manager
asked the petitioner to supply copies of 12 old issues which was done. Finally,
the petitioner was informed by means of a letter dated the 16th March: 1965
that the sale of the weekly "The Indian Observer" could not be
permitted on the railway stations.
In the return which was filed by the Joint
Director, Traffic (General), Railway Board, it was not denied that the news
weekly "The Indian Observer" was being sold at the, railway stations
by the licensed contractors. It was asserted that the petitioner had been
publishing "sexy and obscene literature" Lind the licensees had been
raising objections on this score. The articles published in the Pews weekly
were considered to be of low taste, and it was decided that it would not be in
public interest to allow its sale at the railway Platforms by the, licencees. The
allegations made in the petition about the statements relating to corruption
and maladministration in the Railways which had been published in some of the
issues of the news weekly was not denied. It was, however. maintained that the
Railway Board had taken the action 868 not because of the publication of those
articles but because of the sexy and obscene literature of low taste which was
being published in the news weekly.
Before, the High Court, s. 28 of the Indian
Railways Act 1890, hereinafter called the "Act", and the relevant
sub-clauses of clause 742 of the Indian Railway Code were pressed into service
for challenging the ban which had been imposed on the sale of the news weekly.
The High Court was of the view that the petitioner before it had cited and
produced instances of publications which were freely on sale on the bookstalls
on the railway platforms to show that the material which was sought to be
excluded or) grounds on obscenity, was hardly distinguishable from the other
popular magazines of foreign and Indian origin. Reliance was placed on the
provisions of clause 742 of the Indian Railway Code which established that a
publication to attract the ban imposed by the Railway Board must have been
previously prohibited by the Government. As the Railway Board was not
authorised to exclude any publication from sale on its own determination that
it was obscene, it was held that the order which was made by that Board was
without authority. The ban had hit the writ petitioner who had been made the object
of discriminatory treatment.
Consequently, the restriction imposed on the
sale of "The Indian Observer" was quashed.
Section 120A of the Act which was inserted
for the first time by Act No. 13 of 1959 provides that if a person canvasses
for any custom or hawks or exposes for sale any article whatsoever, in any
railway carriage or upon any part of a railway except under and in accordance
with the terms and conditions of a licence by the railway administration shall
be punishable with fine which may extend to two hundred and fifty rupees. He
can also be removed from the carriage or any part of the railway by any railway
servant so authorised. It appears that prior to the insertion of this section,
rules had been framed under s. 47 (1) of the Act.
Rule 17 of Part 11 of the Rules laid down
that no person could canvass for any custom or hawk or expose for sale any
article whatsoever, on any train, station, platform or premises without a
licence granted by the railway administration. Clause.
I of Rule 17 has been incorporated in s.
120A(1) of the Act in 1959, that Clause having been deleted from the rule. The
bookstalls on the railway platforms where books, manazines and newspapers are
sold, belong to the licencees who have entered into an agreement with the President
of India. It is not disputed that according to the usual clauses in these
agreements of licence, the ale of newspapers shall not be stopped by the
licencees at any time save when it is due to causes beyond the, control of the:
869 licensee. The learned Solicitor General
produced a sample agreement in court which was not objected to by the counsel
for the respondent. According to clause 3(b) thereof the licensor can reserve
to himself the right to require the licencee to sell specified books or types
of books and periodicals and the licencee was bound to comply with such
requirements. . Under clause 5 the licensor had the right of prohibiting the
sale, or exhibition of any publication of an obscene or scurrilous nature and
of any publication to which good, sufficient, and reasonable objections could
be shown and the decision of the licensor was to be final and binding oil the
licensee.
The Railway Board which is the appellant
before us has issued certain instructions and laid down essential principles
and policy directions which have been Published in the form of a Code called
the "Indian Railway Code" for the Traffic Department (Commercial). It
may be Mentioned that the Solicitor General himself maintained that all those
were of a mandatory nature and it is stated in the preface to the Code.
Chapter VII, Part A of this Code deals with
catering and vending services. Part B relates to book-stalls, sale of
newspapers and periodicals on railway platforms. Clause 742 to the extent it is
material is reproduced below (v) The sale of obscene books and pictures and
publications prohibited by the Government should be strictly banned.
(viii)The contractors should provide equal
opportunity to all the popular newspapers for in their stalls on the same
terms. A list of popular newspapers and magazines should be drawn up by the
Railway Administration in consultation with the Zonal Railway Bookstall
Advisory Committee".
The main argument of the learned Solicitor
General on behalf of the appellant is that sale of books on railway platforms
or in railway carriages is a matter which is regulated by the terms of the
agreement of licence between the bookstall contractors and the railway
authorities and it is open to the appropriate authority to stop the sale of any
newspaper or publication which was considered obscene or scurrilous or to which
sufficient and reasonable objections could be shown. In the letter of the
Railway Board dated March 26, 1965 it was stated that it had come to the
Board's, 870 notice that the "Indian Observer" generally contained
"articles written in very low taste bordering oh obscenity". It was
further .stated that after a perusal of few Copies of the said weekly the Board
had come to the conclusion that it was not fit for sale at railway stations. It
was desired that the book stall contractors should be, instructed to stop with
immediate effect the sale of the "Indian Observer" from their
bookstalls as well as on the platforms as also along train side and in station
premises. According to the Solicitor General the action taken by the Railway
Board was perfectly competent and was taken in accordance with the terms of the
licence granted to the book stall contractors. It is urged that ,the respondent
had no right or locus standi to insist on or ask for the sale of the Indian
observer oil the platforms etc., which are the private property of the railway
and where the sale .of any publication could only be subject to such terms and
conditions as obtained between the licensor or licencee.
Before the High Court and before us the main
complaint of the present respondent is based On an infraction of Article 14 of
the Constitution and it has been asserted that the news weekly "Indian
Observer" was singled out for discriminatory treatment inasmuch as
publications containing similar material were not prohibited from sale by the
Railway Board on the book-stalls at the platforms and in the trains etc. The
High Court had found as a fact that publications which were freely on sale on
the bookstalls to whom licences had been given were such that they were hardly
distinguishable from the "Indian Observer" on the ground news weekly
in question had been sold on railway platforms since 1963 nor was it suggested
that the Railway Board had ever accorded individual sanction for the sale of
every single book and publication at the book stalls of the Railway
Administration.
Now in the Indian Railway Code the policy or
the principle laid down in categorical terms in sub-clause (viii) of Clause 742
is that the contractor should provide equal opportunity to all the popular
newspapers for sale in their stalls on the same terms.
This was subject to certain conditions, one
of which was that the sale of obscene books and pictures and publications
prohibited by the Government should be strictly banned. (vide sub-clause v).
The letter written by the railway itself to
which a reference has been made, does not impose the ban on the ground that the
"Indian Observer" is an obscene publication which has been prohibited
by the Government. In that letter there was first a recital of what had come to
the Board's notice i.e. that the articles written in the said news weekly were
in very low taste bordering on obscenity. There was no finding or decision that
it was a publication which was obscene. The conclusion of the Board 871 simply
was that the "Indian Observer" was not fit for sale at the Railway
stations. The other condition laid down in sub-clause (v) that its sale had
been prohibited by the government was neither mentioned nor has it been shown
that any such order had been made by the government prohibiting the sale of the
"Indian Observer" on the ground that it is obscene. The learned
Solicitor General contends that the word 'Government' in sub clause (v) means
the Railway Board because according to s. 2 of the Indian Railway Board Act
1905, Central Government may by notification in the official gazette invest the
Railway Board either absolutely or subject to conditions with all or any of the
powers or functions of the Central Government under the Act. Our attention has
not been drawn to any provision in the Act or the rules framed there under by
which the Central Government can prohibit the sale of any obscene book, picture
or publication on.
It appears that the aforesaid clause. has
reference to a prohibition 'unposed by the Central Government under some
enactments other than the Act. It is not claimed that the Railway Board could
impose a ban under any other enactment. Nor has it been suggested that the
Central Government had passed any order prohibiting the sale of the Indian
Observer under any statutory provision.
Even on the assumption that the Board could
make such an order as is contemplated by sub-clause (v) of clause 742 it cannot
take any advantage of that provision because in the letter dated March 26, 1965
it was nowhere stated that the publication of the news weekly was being banned
on the ground of obscenity. It is thus apparent that the High Court was fully
justified in taking the view that the "Indian Observer" had been
sin-led out for being banned and this clearly amounted to a discriminatory, treatment.
The question that has next to be resolved is
whether Art. 14 could be invoked by the respondent in the present case. It has
not been and indeed cannot be disputed that the Railway Board will fall within
the definition of "State" as given in Art. 12 of the Constitution.
The learned Solicitor General has relied on Railway, Board v. Niranjan
Singh(1). It was laid down that there was no fundamental right under Art. 19(1)
for anyone to hold meetings in government premises. The Northern Railway was
the owner of the Premises and was entitled to enjoy its property in the same
manner as any private individual, subject to any such restrictions as the law
or the usage placed on them. We are unable to appreciate how the ratio of that
decision could be applied to the present case. The meetings of workers which
had taken place there had been held inside workshops, stores and depots and
within office compounds, Railway platforms may be the property (1).[1969] 3
S.C.R. 548.
872 of the railways, but it cannot be
disputed that every bona fide traveler or every other member of the public who,
buys a platform ticket can have access to the railway platforms. It is true
that under Rule 15 of the General Statutory Rules and Orders, a railway
administration may exclude and, if necessary, remove from the station platform
or any part of the railway premises any person who is not a bona fide passenger
and who does not have any business connected with the railway or any person who
having arrived at a station by train and having no business connected with the
railway refuses to leave the railway premises when required to do so. But that
is a right which is reserved for being exercised only in the circumstances
mentioned in the rule. There is no analogy between a station platform and a
government office. Even otherwise the crux of the matter is that the respondent
is not seeking to us the station platform or any part of the railway premises
by sending any of its own representatives to hawk or sell the news weekly
there. All that the respondent says is that the railway administration has
itself directed that the bookstall contractors who were its licensees should
provide equal opportunity to all the popular newspapers for sale in their
stalls. These very contractors are now being directed to discriminate between
the respondent and owners or publishers of other popular newspapers on grounds
which have no legal basis or justification. The administrative act or order of
the Railway Board can, therefore, be challenged under Art. 14.
The respondent is not asking for the
enforcement of any such fundamental right as would come within the rule laid
down in the previous decision of this Court. In other words what the present
respondent is challenging is the order of the Railway Board which led to the
stoppage of the sale of the news was weekly on the Railway platforms etc. If
that order is discriminatory and, cannot be justified on any of the well known
grounds. the respondent can challenge it in a Petition under Art.226 of the
Constitution as violative of Art.14. There is no parallel between the facts of
this case and the decision relied upon by the learned Solicitor General. We
concur with the view of the High Court that the impugned order of the Railway
Board was discriminatory. No proper or valid grounds have been shown for
sustaining the discrimination made.
A certain amount of discussion took place
before us with regard to the applicability of s. 28 of the Act which contains
prohibition against under preference being shown by the Railway Administration
in any respect whatsoever. In the view that we have taken about the
applicability of Art. 14 we do not consider it necessary to decide whether the
respondent could take advantage of the provisions of that section.
873 Lastly, we may refer to a preliminary
objection which was raised on behalf of the respondent to the certificate which
was granted by the High Court. It has been urged that the certificate is
defective because in the order dated July 7, 1968 granting it the Bench has
virtually given a decision as if an appeal was being entertained against the
judgment dated August 11, 1965 by which the writ petition was allowed. It does
appear that Deshpande J., who delivered the order of the Division Bench
granting the certificate has made certain observations which seem to suggest
that the previous decision was incorrect. Although such an order will not per
se vitiate the certificate, both judicial propriety and decorum demand that a
Bench while considering the question of granting certificate for appeal to this
Court ought not to be critical of or express any dissent from the judgment
appealed against because it has no such jurisdiction and all that it has to
decide is whether the requirement of the Articles of the Constitution on which
a certificate can be granted, have been satisfied.
The appeal fails and it is dismissed with
costs.
G.C Appeal dismissed.
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