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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 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.

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  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,

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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