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2012 DIGILAW 1362 (GAU)

Sushil Choudhury v. State of Tripura

2012-12-21

SUBHASIS TALAPATRA

body2012
JUDGMENT Subhasis Talapatra, J. 1. The writ petitioner is the publisher and proprietor of a daily newspaper namely, Dainik Ganadoot, published from Agartala and he has challenged the action of the State in allotment of classified and display advertisements to the said newspaper. Previously, the writ petitioner filed another writ petition being Civil Rule No. 455/1995, which was disposed of by the judgment and order dated 02.05.1997 (Annexure-1 to the writ petition) with the directions as under: Since the reason for allotment of lesser quantum of advertisements to the newspapers of the petitioners and other 'A' category newspapers was of the said impugned Memorandum dated 14.12.93 and the said Memorandum has been quashed, the State-respondents will now have to follow its policy of advertisement contained in the Notification dated 20.11.85 and comply with the directions of this Court in the case of Dainik Sambad Vs. State of Tripura & Ors. (Civil Rule No. 889/87). and will allot to the petitioners as well as other 'A' category newspapers their equitable share of Government classified advertisements in accordance with the said Advertisement policy dated 20.11.85 of the State Government. (emphasis added) 2. Even thereafter, according to the writ petitioner, discriminatory allotment of the advertisement continued and he has been forced to file this writ petition for implementation of the said judgment and order dated 02.05.1997 and for compensation or the compensatory advertisement to make good of the loss that newspaper had suffered for such State action. At the relevant time i.e. from May, 1997 to 24.11.2000, apart the news-paper of the petitioner, other four newspapers namely, Dainik Sambad', Daily Desher Katha', 'Syandan Patrika' and 'Tripura Darpan' were in the category 'A' as per the Government policy as reflected in the notification No. F.65(166)- ICAT/93/Advt/5788 dated 18.03.1996, which was published in suppression of the earlier Notification No. F.65(19)-ICAT/89(P-II) dated 07.10.1989. 3. At the outset, Mr. A.K. Bhowmik, learned senior counsel appearing for the petitioner submitted that at present the writ petitioner has no grievance so far the allotment of the classified advertisement is concerned, but he has serious grievance so far the allotment of display advertisements is concerned. In paragraph-3 of the writ petition, the writ petitioner asserted as under: A new Advertisement policy was published by the Respondents in the month of October, 1998 wherein the provision was made for recognizing daily newspapers in 'A-1' category also. In paragraph-3 of the writ petition, the writ petitioner asserted as under: A new Advertisement policy was published by the Respondents in the month of October, 1998 wherein the provision was made for recognizing daily newspapers in 'A-1' category also. By a letter dated 16.03.2001 in unfair discrimination, the Respondents, recognized 4 other similarly situated daily newspapers namely Daily Desher Katha, Dainik Sambad, Syandan Patrika and Tripura Darpan as A-1 Category newspaper, whereas, most unjustly recognized the newspaper of the petitioner in the lower category namely 'A' category under the Advertisement policy of 1998. The newspaper of the petitioner was, however, in the same category with that of those 4 newspapers during the period from 2nd May, 1997 upto the month of January, 2001 and consequently, the newspaper of the petitioner was entitled to allotment of advertisement during the said period from the month of May, 1997 to January, 2001 equitably with the advertisement allotted to the aforesaid 4 newspapers namely Daily Desher Katha, Dainik Sambad, Syandan Patrika, Tripura Darpan and Dainik Ganadoot. The petitioner further states that although the new categorization was said to be approved on 25.11.2000, it cannot take effect from 25.11.2000 as it was published on or after 16.03.2001. The newspaper of your petitioner was given much less advertisement in comparison to other newspapers in the month of February and March, 2001 also. 4. The writ petitioner, in paragraph-4 of the writ petition has given a statement regarding the quantum of advertisement issued during the period from January, 1997 to December, 2000. For benefit, the said statement in the tabular form is reproduced hereunder January 1997 to December 2000 Sl. No. Name of Newspaper Quantum of Advertisement issued during 4 years from January, 97 to December 2K 1. Daily Desher Katha 1,23,243 cms. 2. Dainik Sambad 1,13,779 cms. 3. Syandan Patrika 1,12,317 cms. 4. Tripura Darpan 1,29,099 cms. 5. Dainik Ganadot 80,225 cms. In January, 2001 1. Daily Desher Katha 4933 cms. 2. Dainik Sambad 4489 cms. 3. Syandan Patrika 3120 cms. 4. Tripura Darpan 4308 cms. 5. Dainik Ganadot 1789 cms. 5. It is further asserted that the writ petitioner represented to the appropriate authority of the Government not to discriminate the petitioner's newspaper in contrast to the other newspapers in the category 'A' but that yielded no result whatsoever. 2. Dainik Sambad 4489 cms. 3. Syandan Patrika 3120 cms. 4. Tripura Darpan 4308 cms. 5. Dainik Ganadot 1789 cms. 5. It is further asserted that the writ petitioner represented to the appropriate authority of the Government not to discriminate the petitioner's newspaper in contrast to the other newspapers in the category 'A' but that yielded no result whatsoever. No separate statement for purpose of showing discrimination in allotting the display advertisement has been made by the writ petitioner. Thus it would be difficult to quantify the deficiency of advertisement in the display category the petitioner's newspaper had not received during the said period. 6. The respondents, by filing a common counter- affidavit, controverted the statement of the petitioner and stated as under: The grievance of the petitioner is that according to the judgment of the Civil Rule No. 495 of 1995 and Civil Rule No. 386 of 1995 the petitioner's newspaper were entitled to get equal share of Government advertisement distributed to the newspapers. According to the petitioner although there was judgment of Hon'ble High Court the petitioner's newspaper got lesser quantity of advertisement during the period from January, 1997 to 16th March, 2001 as a result the petitioner incurred a loss of Rs.15 lacs. And in terms quantity of advertisement he got more or less 15,000 (fifteen thousand) cms. less advertisement. He prayed that either he should be given 15,000 (fifteen thousand) cms. of advertisement or in lieu of that he should be paid Rs.15 lacs. In this regard the respondents submit that in comparison to 4(four) other newspapers namely Dainik Sambad, Daily Desher Katha, Syandan. Tripura Darpan the petitioner had not been given lesser quantity of advertisement during the period from May, 1997 to 24th Nov. 2000 during the period of which the newspaper of the petitioner and aforesaid 4(four) other newspaper were in the same category of newspaper i.e. 'A' category newspaper. During the period of May, 1997 to 24th Nov., 2000, the Daily Deshar Katha newspaper got 63,580 col. cms., Dainik Sambad got 58,702 col. cms., Tripura Darpan got 57,681 col. cms. and Dainik Ganadoot i.e. petitioner's newspaper got 61,441 col. cms. advertisement. Within the 5(five) aforesaid period among the aforesaid newspapers an average quantity of advertisement issued was 60,958.4 col. cms and Dainik Ganadoot i.e. petitioner's newspaper receipt 61,441 col. cms. of advertisement i.e. petitioner's newspaper got more than the average amount of advertisement. cms., Tripura Darpan got 57,681 col. cms. and Dainik Ganadoot i.e. petitioner's newspaper got 61,441 col. cms. advertisement. Within the 5(five) aforesaid period among the aforesaid newspapers an average quantity of advertisement issued was 60,958.4 col. cms and Dainik Ganadoot i.e. petitioner's newspaper receipt 61,441 col. cms. of advertisement i.e. petitioner's newspaper got more than the average amount of advertisement. The petitioner newspaper got 483 col. cms. more advertisement than the average amount of advertisement issued. So no discriminatory treatment was meted out to the petitioner in respect of issuing of advertisement. The petitioner newspaper was re-categorized w.e.f. 25.11.2001 so up to the date re-categorisation (SIC) the petitioner newspaper can claim for equal share of advertisement. From 25.11.2000 the petitioner newspaper categorized as 'A' whereas aforesaid 4(four) other newspaper has been categorized as 'A-1' Therefore, after 25.11.2000 the petitioner will get lesser quantity of advertisement than in comparison to the 'A-1' category newspaper. 7. Later on, while replying to paragraph- 4 of the writ petition, the State-respondents asserted as under: It is farther stated that the Hon'ble Court's order dated 22nd May, 1997 only deals with the Government classified advertisement and not the display advertisement. However, though efforts have been made for equal distribution of display advertisement, even than it is very difficult to maintain equal distribution of display advertisement for the reason that the choice to select the newspaper lies with the advertising department. Display advertisements are issued according to their requirement for communicating message to their targeted readers. A comparative statement of classified advertisement to 'A' category newspaper in which the petitioner's newspaper belongs during the period from December, 2000 to March, 2001 is enclosed as Annexure-'R-1' and from that statement it would be seen that the petitioner's newspaper has been given more advertisement than the other 'A' category newspaper in average. The State-respondents further stated in para-14 of their counter-affidavit that: there was no discriminatory treatment as the classified advertisement were distributed in equal quantum. 8. It would appear that such statement had not been made as regards the display advertisement. The State-respondents further stated in para-14 of their counter-affidavit that: there was no discriminatory treatment as the classified advertisement were distributed in equal quantum. 8. It would appear that such statement had not been made as regards the display advertisement. The assertion of the respondents that the order dated 02.05.1997 concerns the classified advertisement and not the display advertisement, is absolutely misconceived as the direction as contained in the judgment and order 02.05.1997 (Annexure-1 to the writ petition) has been worded in no uncertain terms and it stated that the State Government has to comply with the directions of this Court in the case of Dainik Sambad & Anr. Vs. State of Tripura & Ors. (Civil Rule No. 889/1987), which was reported in (1988) 2 GLR (NOC) 34, where it has been held by this Court as under: Discriminatory allotment of Government advertisements to different newspapers of the same category by the State Government will impair the freedom of press and will therefore be violative of Articles 14 and 19(1)(a) of the Constitution of India. That being the position the contention that this Court in such a case is not to exercise jurisdiction as the matter has been pending before the Press Council is not tenable. On a reading of the said decision of this Court in Dainik Sambad (supra), it would be apparent that the overwhelming anti-discrimination legislation has found immutable expression in Article 14 of the Constitution of India paving the way for judicial review of the state action embracing the forbidden province of discrimination and for redress thereof. In order to establish discrimination the complainant has to establish that the others less well or no better qualified than himself received more favourable treatment and alleged discriminatory refusal of State encouragement, economic or otherwise may amount to hostile discrimination. The use of an ostensible unfettered discretionary power may result in discrimination. Even licencing powers, it has been held, cannot be used to discriminate against political or religious opponents as was held in Roncarelly Vs. Duplessis, as reported in (1952) 1 DLR 680. The Court shall strike down an order if it is found to have been based on Discrimination prompted by an ill-will, dislike or one's political views, favouritism or improper motives. Duplessis, as reported in (1952) 1 DLR 680. The Court shall strike down an order if it is found to have been based on Discrimination prompted by an ill-will, dislike or one's political views, favouritism or improper motives. If a discretionary power is exercised in disregard of relevant considerations that cannot be lawfully taken into account and if it results in discrimination it may be struck down. 9. In the correspondences available at Annexures 5, 6 and 7 of the writ petition, the writ petitioner alleged of discriminatory treatment, notwithstanding the effects of the judgment and order dated 02.05.1997, where this Court has observed as under: In my considered opinion, if the State-respondents continue to allot 24% of the total quantum of advertisements to the Daily Desher Kama as compared to only 6% of the total quantum of advertisement, to other 'A' category newspapers, the views expressed in the said Daily Desher Katha will have increasing away on the minds of more and more people and the general community and will affect the formation of a healthy public opinion necessary for a good democracy. Thus, the impugned Memorandum dated 14.12.1993 of the State Government is violative of freedom speech guaranteed under Article 19(1)(a) as well as the equality clause in Article 14 of the Constitution. The impugned Memorandum dated 14.12.1993 of the Government of Tripura, Information, Cultural Affairs and Tourism Department is accordingly quashed. 10. Thus, the impugned Memorandum dated 14.12.1993 of the State Government is violative of freedom speech guaranteed under Article 19(1)(a) as well as the equality clause in Article 14 of the Constitution. The impugned Memorandum dated 14.12.1993 of the Government of Tripura, Information, Cultural Affairs and Tourism Department is accordingly quashed. 10. Even though the petitioner did not specify the quantity of less allotment of the display advertisement but from the information as furnished in his communication dated 06.02.2001 (Annexure-7), the following would reveal: Name of the News papers 1997 1998 1999 2000 Total Classified Display Classified Display Classified Display Classified Display Classified Display Daily Desher Katha - 4,525 cms - 10,141 cms - 6,998 cms - 11,910 cms - 33,574 cms Dainik Sambad - 4,525 cms - 9,601 cms - 4,976 cms - 11,600 cms - 30,762 cms Syandar Patrika - 3,116 cms - 10,387 cms - 5,624 cms - 7,002 cms - 26,129 cms Tripura Darpan - 4,150 cms - 12,778 cms - 3,121 cms - 8,501 cms - 28,550 cms Dainik Ganadot - 2,526 cms - 5,447 cms - 2,886 cms - 3,540 cms - 14,339 cms Therefore, it is apparent that the petitioner's newspaper was getting the less amount of display advertisements from the year 1997 till 2000 in comparison to other four newspapers borne in the same category i.e. 'A' as per the Government policy. 11. Mr. A.K. Bhowmik, learned senior counsel appearing for the petitioner stated that the Government has misconstrued the direction of the Court He reiterated the principle that while the equality is the Constitutional right, the discrimination is anathema to it. As corollary, he urged this Court to interfere with the impugned State action. 12. From the other side, Mr. S. Chakraborty, learned Addl. Govt. Advocate contended that there had been no direction from the Court for equitable distribution of the display advertisement. Apart that, he contended further that the display advertisements are issued to the newspapers as chosen by the concerned departments to suit their purpose. For appreciating the contention of Mr. Chakraborty, learned Addl. Govt. Advocate, the relevant part of the advertisement policy as notified on 18.03.1996 may be excerpted: 2. For the purpose of classified and display advertisement the newspapers published from Tripura have been categorised as follows and the rate of classified advertisement will be as shown against each: I Offset Group “A” Category Rs.20.00 Per col. Chakraborty, learned Addl. Govt. Advocate, the relevant part of the advertisement policy as notified on 18.03.1996 may be excerpted: 2. For the purpose of classified and display advertisement the newspapers published from Tripura have been categorised as follows and the rate of classified advertisement will be as shown against each: I Offset Group “A” Category Rs.20.00 Per col. II other “A” Category Rs.16.00 Per col. III “B” Category Rs.12.00 Per col. IV “C” Category Rs.10.00 Per col. 3. In respect of display advertisements there will be a discount of 20% over the aforesaid rate of classified advertisements. 4. Rates of display advertisements in respect of Magazines/Souvenirs published from Tripura will be as follows: I Back Cover Page Rs.700.00 II Inside Cover Page Rs.500.00 III Ordinary full Page Rs.400.00 IV Ordinary half Page Rs.250.00 (emphasis added) 13. The object of categorisation of the newspapers is apparent from the said advertisement policy. Both the classified and display advertisements are included in the scheme of the categorisation. The said State action discriminating the petitioner's newspaper so far the display advertisement is concerned offends the equality clause in Article 14 of the Constitution of India. Moreover, it also affects the freedom of Press in as much as a large section of the readers of the said newspaper would be deprived of the information that would be disseminated through the display advertisements. However, the policy is silent about the mode of the equitable allotment of advertisements in the intra-category newspapers. In view of the various judicial pronouncements and provisions of Article 14 read with Article 19(1) of the Constitution it cannot be read that the equitable allotment of advertisements is confined to the classified advertisement alone. Equivalence has to be based either on equitable allotment of each of the categories of the advertisement or by way of the total advertisement value of the allotted advertisements from both the categories. 14. In Union of India Vs. Association For Democratic Reforms & Anr., as reported in (2002) 5 SCC 294 , the Apex Court having reference to Romesh Thappar Vs. State of Madras, as reported in AIR 1950 SC 124 observed as under; The public interest in freedom of discussion (of which the freedom of the press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves'. State of Madras, as reported in AIR 1950 SC 124 observed as under; The public interest in freedom of discussion (of which the freedom of the press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves'. (Per Lord Simon of Glaisdale in Attorney General Vs. Times Newspapers Ltd.: (1973) 3 ALL ER 54). Freedom of expression, as learned writers have observed, has four broad social purposes to serve: (i) it helps an individual to attain self-fulfilment, (ii) it assists in the discovery of truth, (iii) it strengthens the capacity of an individual in participating in decision-making and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is that people's right to know. Freedom of speech and expression should, therefore receive a generous support from all those who believe in the participation of people in the administration. (emphasis added) 15. In Indian Express Newspapers (Bombay) Private Ltd. & Ors. Vs. Union of India & Ors., as reported in AIR 1986 SC 515, the apex Court further observed as under: But where the burden is the same as that borne by others engaged in different forms of activity the similar impact on expression seems clearly insufficient to constitute an "abridging" of freedom of expression. Hence a general corporate tax, wage and hour or collective bargaining legislation, factory laws and the like are as applicable to a corporation engaged in newspaper publishing as to other business organisations. On the other hand the use of such measures as a sanction to diminish the volume of expression or control its content would clearly be as impermissible an "abridgment" as direct criminal prohibitions. The line may sometimes be difficult to draw the more so as the scope of the regulation is, narrowed. Two principles for delineating the bounds of "abridging" may be stated. First as a general proposition the validity of the measure may be tested by the rule that it must be equally applicable to a substantially larger group than the engaged in expression. Two principles for delineating the bounds of "abridging" may be stated. First as a general proposition the validity of the measure may be tested by the rule that it must be equally applicable to a substantially larger group than the engaged in expression. Thus a special tax on the press alone or a tax exemption available only to those with particular political views or associations would not be permitted. Second neither the substantive nor procedural provisions of the measure, even though framed in general terms may place any substantial burden on expression because of their peculiar impact in that area. Thus the enforcement of a tax or corporate registration statute by requiring disclosure of membership in an association, where such disclosure would substantially impair freedom of expression should be found to violate first amendment protection. (emphasis supplied) 16. From these excerpts it is apparent that the expanse of the freedom of the press has quite succinctively been re-emphasised and that the sanction to diminish the volume of expression or to control its content would clearly be as impermissible an abridgment as the direct criminal prohibitions. Here also though the petitioner's newspaper was borne in the same category of the newspapers, but he received the lesser amount of display advertisements discarding the very classification as made by the state. In the counter-affidavit, the State-respondents stated that during the period from May, 1997 to 24.11.2000, the petitioner's newspaper and other four newspapers namely, 'Dainik Sambad', Daily Desher Katha', 'Syandan Patrika' and Tripura Darpan' were in the same category, but from the table showing the allotment of display advertisements it is evident that the petitioner's newspaper had got less advertisements of that category. Apart that, for purpose of equitable allotment in terms of the said advertisement policy, the average of the allotment of the category can never be the yardstick for comparison. 17. The similar action has been denounced time and again by the Apex Court in Bennett Coleman and Co. Ltd. & Ors. Vs. Union of India & Ors., as reported in AIR 1973 SC 106 . The Apex Court further restated the law there as under: The various provisions of the newsprint import policy have been examined to indicate as to how the petitioners' fundamental rights have been infringed by the restrictions on page limit, prohibition against new newspapers and new editions. Vs. Union of India & Ors., as reported in AIR 1973 SC 106 . The Apex Court further restated the law there as under: The various provisions of the newsprint import policy have been examined to indicate as to how the petitioners' fundamental rights have been infringed by the restrictions on page limit, prohibition against new newspapers and new editions. The effect and consequence of the impugned policy upon the newspapers is directly controlling the growth and circulation of newspapers. The direct effect is the restriction upon circulation of newspapers. The direct effect is upon growth of newsprint through pages. The direct effect is that newsprint are deprived of their area of advertisement. The direct effect is that they are ex-posed to financial loss. The direct effect is that freedom of speech and expression is infringed. 18. In this case also the direct effect is that the writ petitioner had to suffer financial loss and the direct effect therefrom resulted is infringement of the freedom of speech and expression. In view of this, the contention of Mr. S. Chakraborty, learned Addl. Govt. Advocate that the display advertisement is not part of the equitable distribution or not part of the direction as passed in the judgment dated 02.05.1997 is absolutely unsustainable and a fragile shield for protecting the impugned act. 19. Having situated thus, the respondents are directed to re-calculate the total value of the advertisements (both classified and display) as distributed to the newspapers borne in the category 'A' as per the Government policy during the period from May, 1997 to 24.11.2000 and if it is found that the petitioner's newspaper has got less advertisement value in comparison to the newspaper which got the highest advertisement value (the classified and the display, all taking together), the respondents shall have to release the advertisement to the extent of the value, equivalent to the difference that would be calculated, in a phased manner, but such release shall be completed within 1½ (one and halt) years in addition to what the petitioner's newspaper is entitled to as per the new advertisement policy or the new categorisation of the newspapers. In the alternative, the respondents may also reimburse the value to the extent of the difference of the advertisement value as stated within a period of 1½ (one and half) years or by 30.06.2014, whichever is earlier. In the alternative, the respondents may also reimburse the value to the extent of the difference of the advertisement value as stated within a period of 1½ (one and half) years or by 30.06.2014, whichever is earlier. With these observations and directions, this writ petition stands allowed. There shall be no order as to costs. Petition allowed.