Full Judgment Text
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PETITIONER:
RAILWAY BOARD, GOVT. OF INDIA
Vs.
RESPONDENT:
M/S OBSERVER PUBLICATIONS (P) LTD.
DATE OF JUDGMENT16/03/1972
BENCH:
GROVER, A.N.
BENCH:
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 dis-
criminatory. 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
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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
thereunder 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
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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.
JUDGMENT:
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
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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
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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
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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,
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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 hadbeen framed under s. 47
(1) of the Act.
Rule 17 ofPart 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 book-
stalls on the railway platforms where books, manazines and newsp-
apers 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 agree-
ment 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
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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 book-
stalls to whom licences had been given were such that they were
hardly distinguishable from the "Indian Observer" on the ground
news weekly inquestion had been sold on railway platforms since
1963 nor wasit 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
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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 thereunder 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
traveller 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
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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 anyof 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 pro-
hibition against under preference being shown by the Railway
Administration in any respect whatsoever. Tn 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 advan-
tage 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 certi-
ficate 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.
874