M.M. Publications Ltd v Union of India and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 11[TH] DAY OF NOVEMBER 2021 / 20TH KARTHIKA, 1943 ``` ## **`WP(C) NO. 28973 OF 2010`** ## **`PETITIONER:`** ``` M.M.PUBLICATIONS LTD KOTTAYAM 686 001,REPRESENTED BY ITS SENIOR, GENERAL MANAGER,V.SAJIV GEORGE. BY ADVS. SRI.K.P.DANDAPANI (SR.) SRI.MILLU DANDAPANI ``` ## **`RESPONDENTS:`** ``` 1UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF COMMUNICATIONS, SANCHAR BHAWAN, ASHOKA ROAD,, NEW DELHI-110001. 2THE CHIEF POST MASTER GENERAL PMG JUNCTION, TRIVANDRUM-695 001. 3THE SPECIAL RECORD OFFICER RMS TV DIVISION, KOTTAYAM 686 001. BY ADVS. ASSISTANT SOLICITOR GENERAL SRI.KOSHY GEORGE, SC, MATSYAFED ``` ## **`OTHER PRESENT:`** ``` SRI.S.MANU, ASGI ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C).No.28973/2010** **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.28973 of 2010** ## **---------------------------------------------Dated this the 11[th] day of November, 2021** ## **`JUDGMENT`** This writ petition is filed with following prayers: - i. Call for the records leading to the case and issue a writ of certiorari or any other appropriate writ, order or direction, quashing Exhibit P3 Bill and Exhibit P9 order passed by the 3[rd] respondent. - ii. Issue a Writ of Prohibition, prohibiting the respondents from charging excess amount, other than the concessional rate, in the event of attaching and posting Extra/Supplements along with the Monthly. - iii. Declare that the petitioner is entitled for concessional rate, in the event of attaching and posting Extra/Supplements along with the Monthly. - iv. Declare that the petitioner is entitled to get refund of excess postage amount collected by the respondents. - v. Such other appropriate writ, order or direction, **W.P.(C).No.28973/2010** **3** as this Honurable Court may deem, fit and proper in the facts and circumstances of the case. vi. Award costs. 2. Petitioner is the publisher of “Vanitha Hindi”, a Hindi Monthly, printed at Malayala Manoram Press, Kottayam. This writ petition was filed in the year 2010. In the writ petition it is stated that about 564 copies of the Monthly are subscribed through post and, therefore, the copies of the Monthly are posted every month through Railway Mail Service (RMS), Post Office, Kottayam. According to the petitioner, they are entitled to concessional rate of posting from the Postal Department at the rate of 0.90 paise per copy as per the provisions of Indian Postal Act, 1898, for which the petitioner has been issued with Allotment of Postal Registration Number. Ext.P2 is the Sanction Order dated 08.12.2005 issued by the Department of Posts. The petitioner is aggrieved by Ext.P9 order issued by the 3[rd] respondent, denying the concessional rate enjoyed by the petitioner. The reason for rejection is that the contents of the Supplement 'Vanitha Skin Care' cannot be treated as wholly or in great part of matter like that of the registered newspaper. Hence this writ petition is filed. **W.P.(C).No.28973/2010** **4** 3. Heard the counsel for the petitioner and the Assistant Solicitor General of India (ASGI). 4. The counsel for the petitioner reiterated the contentions in the writ petition. The counsel drew my attention to Ext.P4, which is the magazine in dispute along with the Supplement published by the petitioner. Thereafter the counsel takes me through Ext.P9 order passed by the 3[rd] respondent. According to the counsel, even as per Section 9 of the Indian Post Office Act, 1898 and Clause 139 of the Post Office Guide Part-1, the petitioner is entitled for the concessional rate. The counsel also takes me through Ext.P5, which is the Consolidated Ruling on Registered Newspapers Superseding All Previous Ruling on the Subject and it is dated 05.05.2008. The counsel specifically takes me through Clause 23(e) and 23(f) of Ext.P5, and submitted that Ext.P9 order is unsustainable in the light of those specific clauses in Ext.P5. On the other hand, the ASGI submitted that the Supplement published along with Vanitha Hindi cannot be treated wholly or in great part of the “Vanitha Hindi” and therefore, the petitioner is not entitled for concessional rate. 5. I considered the contentions of the petitioner and **W.P.(C).No.28973/2010** **5** the ASGI. I also perused Ext.P9 order. It will be better to extract Ext.P9 order, which is impugned in this case: “With reference to your letter dated 18-09-2009 in connection with WP(C) No.6579/2007 of the Honorable High Court of Kerala, I am directed to inform you as follows: "Vanitha(Hindi)" Monthly dated January 2007 issue was not permitted to be posted at concessional rate since it contained a supplement 'Vanitha Skin Care' which cannot be treated as wholly or in great part of matter like that of registered newspaper. As per Section 9 (3) of Indian Post Office Act and clause 139 of Post Office Guide Part -1 'an extra or supplement to newspaper bearing the same date as the newspaper and transmitted therewith, shall be deemed, to be part of newspaper provided that no such extra or supplement shall be deemed, unless it consists wholly or in great part of matter like that of the newspaper and has the title and the date of publication of the newspapers printed at the top of each page'. Note (1) below the clause 139 stipulate that 'an advertisement sheet printed for an advertiser and sent to the publisher of a newspaper for distribution as a supplement should be treated as book packet'. The supplement of Vanitha (Hindi) January 2007 issue is not strictly according to the conditions enshrined in the rule. Hence the action of Sub Record Officer, RMS 'TV' Division, Kottayam was **W.P.(C).No.28973/2010** **6** strictly in order as per the rules on the subject. You have intimated that Union of India has passed a consolidated ruling No.22-17/2008/PO dated 05-052008 on Registered Newspaper, Superseding all previous Ruling on the subject. Postal Directorate DO Letter No.9-6/2007-PO dated 07-09-2009 inter alia clearly clarified that the intention of PO Division's circular No.22-17/2008-PO dated was only to supplement/clarify the relevant provisions of the Indian Post Office Act, 1898(6 of 1898) and the Indian Post Office Rules 1933 and in no way to supersede it. It is therefore informed that the statutory provisions of Section 9 of the Indian Post Office Act 1898 & of clause 139 of PO Guide part 1 continue to be applicable. Hence we are not in a position to refund the fines that had been imposed by the Sub Record Officer, RMS 'TV' Division, Kottayam. ” 6. In Ext.P9, the respondents relied on Section 9 of the Indian Post Office Act, 1898 and Clause 139 of the Post Office Guide Part-1. Based on the same, it is stated that the respondents are not in a position to refund the fines that had been imposed by the Sub Record Officer, RMS 'TV' Division, Kottayam. It is also stated that the intention of PO Division's circular No.22-17/2008-PO was only to supplement/clarify the **7** ## **W.P.(C).No.28973/2010** relevant provisions of the Indian Post Office Act, 1898 (6 of 1898) and the Indian Post Office Rules, 1933. Hence the prayer for concessional rate was rejected by the 3[rd] respondent as per Ext.P9. It will be better to extract Section 9 of the Indian Post Office Act, 1898 and Clause 139 of the Post Office Guide Part-1 for a proper disposal of the case: “9. **Power to make rules as to registered newspapers** - (1) The Central Government may make rules providing for the registration of newspapers for transmission by inland post as registered newspapers. (2) For the purpose of such registration, every publication, consisting wholly or in great part of political or other news, or of articles relating thereto or to other current topics, with or without advertisements, shall be deemed a newspaper, subject to the following conditions, namely:— (a) that it is published in numbers at intervals of not more than thirty-one days; and (b) that it has a bona fide list of subscribers. **(3) An extra or supplement to a newspaper, bearing the same date as the newspaper and transmitted therewith, shall be deemed to be part of the newspaper:** ## **Provided that no such extra or supplement shall** **be so deemed unless it consists wholly or in** **W.P.(C).No.28973/2010** **8** **great part of matter like that of the newspaper and has the title and date of publication of the newspaper printed at the top of each page.** ” 7. Section 9(3) says that an extra or supplement to a newspaper, bearing the same date as the newspaper and transmitted therewith, shall be deemed to be part of newspaper. The proviso to Section 9(3) says that no such extra or supplement shall be so deemed, unless it consists wholly or in great part of matter like that of newspaper and has the title and date of publication of the newspaper printed at the top of each page. Similarly, Rule 139 of Indian Post Office Rules also says that an extra or supplement to a newspaper, bearing the same date as the newspaper and transmitted therewith, shall be deemed to be part of newspaper. The proviso to Rule 139 also says that no such extra or supplement shall be so deemed, unless it consists wholly or in great part of matter like that of newspaper and has the title and date of publication of the newspaper printed at the top of each page. I perused Ext.P5 also. 8. I perused Ext.P4, the 'Vanitha Hindi' along with the supplement produced by the petitioner. In the Supplement published along with Vanitha Hindi, the title and date of **9** ## **W.P.(C).No.28973/2010** publication of the same is printed at the top of each page. But the point mentioned in Ext.P9 is that the contents of the Supplement is not part of the matter like that of 'Vanitha'. The contents in these magazines are mainly about the articles related to women. I perused the Supplement also. Supplement contains articles about 'skin care' of women. That also shows that articles are related to women. In such situation, according to me, the findings in Ext.P9 will not stand. I think a reconsideration by the 3[rd] respondent is necessary in the facts and circumstances of the case, in the light of Ext.P5. Therefore Ext.P9 can be set aside and the matter can be directed to be reconsidered by the 3[rd] respondent. Therefore, this writ petition is allowed in the following manner: 1. Ext.P9 is set aside. 2. The 3[rd] respondent is directed to reconsider the matter, and pass appropriate orders in the issue in dispute, after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment. **10** ## **W.P.(C).No.28973/2010** 2. The 3[rd] respondent is free to conduct the hearing either virtually or physically. Sd/- **P.V.KUNHIKRISHNAN JUDGE** JV **11** ## **W.P.(C).No.28973/2010** ## **`APPENDIX OF WP(C) 28973/2010`** - `PETITIONER EXHIBITS Exhibit P1 PHOTOCOPY OF LETTER DATED 23/11/2005 ALLOTTING POSTAL REGISTRATION NUMBER TO THE PETITIONER.` - `Exhibit P2 PHOTOCOPY OF SANCTION DATED 08/12/2005 ISSUED BY THE DEPARTMENT OF POSTS.` - `Exhibit P3 PHOTOCOPY OF BILL DATED 18/12/2006 FOR RS. 4,512/- ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.` - `Exhibit P4 TRUE COPY OF VANITHA (HINDI) MONTHLY AND SUPPLEMENT VANITHA SKIN CARE JANUARY 2007 ISSUE PRINTED AND PUBLISHED BY THE PETITIONER.` - `Exhibit P5 PHOTOCOPY OF CONSOLIDATED RULING NO. 22/17/2008-PO DATED 05/05/2008 PASSED BY THE 1ST RESPONDENT.` - `Exhibit P6 PHOTOCOPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 17/06/2008 RENDERED IN WPC NO.6579/2007 G.` - `Exhibit P7 PHOTOCOPY OF NOTICE KI/KTM/GL DATED 17/08/2009 ISSUED BY THE 3RD RESPONDENT TO PETITIONER.` - `Exhibit P8 PHOTOCOPY OF WRITTEN ARGUMENT SUBMITTED BY THE PETITIONER ON 18/09/2009.` - `Exhibit P9 PHOTOCOPY OF ORDER NO. KL/KTM/050/2006-08 DATED 01/12/2009 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.` - `Exhibit P10 COPIES OF SUPPLEMENTS VIZ, SPICEINDIA, TODAY, HOME-INDIA TODAY, LIFE AND STYLE OUTLOOK AND LIFE AND STYLEOUTLOOK.` ``` RESPONDENT EXHIBITS Exhibit R1(A)TRUE COPY OF LETTER NO.9-6/2007 P.O. DATED 07/09/2009. ```