Dainik Himachal Sewa vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 52 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioners in these five writ petitions are small newspapers registered with the Registrar of Newspapers for India (RNI) from different dates having different registration numbers. They are also registered under the provisions of the Press and Registration of Books Act 1867. The Director General, Directorate of Advertising & Visual Publicity (respondent No. 2 herein) (for short 'the DAVP') is entrusted with the duty and responsibility of release of Government advertisement to the newspapers registered with the RNI and empanelled with it. For the purpose of release of advertisements, it executes a rate contract with the registered newspapers and on that basis the advertisements are released to such newspapers from time to time.

2. All these petitioners were empanelled with respondent No. 2 and the rate contracts issued by respondent No. 2 were extended up to September, 2002. However respondent No. 2 stopped releasing advertisements to the petitioners from 25th July, 2002. Thereafter, these petitioners received on different dates in August, 2002 letters from the DAVP informing that for the reasons contained in these letters, it was not possible to make use of their publication for release of Government advertisements in future. The basic reason given in all these letters is that their newspapers were not available in the market/news agency counters as per the report available in the Directorate. It may, however, be appropriate to reproduce the language used in these letters in respect of each petitioner.

3. In CWP Nos. 5978 and 5979/2002, the petitioners received letter dated 6th August, 2002 to the following effect:

"A team of DAVP Officers visited the premises of your publications for spot check. It was observed that the paper titled Vyapar Udyog & Samachar from Delhi was not published in the press, whose address has been given in the medical particular form and as given in imprint line. The said newspaper was also not available in the market/news agency counters.

Under the circumstances, it is not possible to make use of your publication for release of Government advertisement in future."

4. In CWP Nos. 6086 & 6088/2002 vide communication dated 5th August, 2002 it was stated as under:

"Since you have not submitted any authenticated declaration regarding change of printing address, this is violation of PRB Act, 1867.

Moreover, the newspaper was not available in market/news agency counter

as per report available in the Directorate. The news address of the press indicated in your letter i.e. E-173, Industrial Area, Rohtak was also visited by a team of DAVP officials at about 8.30 p.m. on 11.7.2002. As per their report "premises was locked". Premises is half finished brick structure. There was no plastering, no electricity and no activity there.

Under the circumstances it is not possible to make use of your daily for release of Government advertisements in future."

5. In CWP No. 7802/02 it is stated that from July, 2002 respondent No. 2 has stopped releasing advertisements and although the petitioner submitted all documents for renewal of the rate contract which was expired on 30th September, 2002 no decision was conveyed by 30th September, 2002 and no advertisement released thereafter even when representations were made.

6. It may be mentioned at this stage that all the newspapers belong to the same group. Challenge against the impugned action of the respondent No. 2 in not releasing the advertisements is identical. In all these writ petitions, it is alleged that these newspapers being independent and fortnight publications having only the interest of readers and general public to information as its aim and objective, they pursue a policy of free, fearless and impartial reporting. One of the group publications, namely, Dainik Himachal Sewa published a news report against Smt. Sushma Swaraj, who was the then Information and Broadcasting Minister, in its issue of Wednesday, the 10th July, 2002 with following headlines:

"Despair in the World of Newspapers

Information Minister Sushma Swaraj trying to strangulate small newspapers."

Under the aforesaid headlines, it was reported that the type of behavior which was being adopted towards small and medium newspapers by the Minister, it could only be called strangulating the newspapers and nothing else. At the behest of the Minister, the DG, DAVP was leaving no stone unturned to put an axe on the newspapers just to please the Minister.

7. It is alleged that after the aforesaid news item was published the respondent No. 2 became prejudiced and vindictive towards all these newspapers which belonged to the same group and with a motive to teach a lesson to the petitioners, it stopped releasing advertisements and decided to depanel them. The whole purpose was to stifle their financial resources and make an example of it for other small newspapers so as not to publish any article/news against the Minister who is in charge of the department releasing Government advertisements.

8. It is thus clear that the foundation of all the writ petitions is same. Similar actions taken against the petitioners are subject matter of challenge. These writ petitions were therefore heard together and are being disposed of by this common judgment.

9. Basic premise on which the impugned action of the respondent No. 2 is challenged, can be paraphrased at this juncture.

(i) Action of the respondents is actuated with mala fides.

(ii) Action is also violative of principles of natural justice inasmuch as no show cause notice was given to the petitioners alleging the grounds on which action was proposed to be taken and/or giving opportunity to the petitioners to represent against the proposed action.

(iii) In the counter affidavit filed on behalf of the respondents, the grounds on which the action was sought to be justified clearly showed that it was only a post facto justification, i.e., on the basis of alleged events after the action had already been taken.

10. In the counter affidavits filed on behalf of the respondents, it is mentioned that the owner of Vyapar Udyog Samachar, Hindi Daily is also publishing four other Hindi dailies, i.e. (i) Bharat Janani, published form Rohtak, (ii) Anant Bharat, Alwar (Rajasthan); (iii) Himachal Sewa, Hindi Daily, Shimla; (iv) Bharat Bhawana, Hindi daily published from Delhi. All the five dailies were on the approval panel of the DAVP for release of Government advertisements for the year 2001-2002. It is further stated that as per the Government of India Advertisement Policy, the Government advertisements are not intended to give financial assistance to newspapers/journals. Coming to the specific case of the petitioner, the respondents have averred that the RNI had sent a notice on 21st May, 2002 to the petitioners intimating verification of the circulation claimed by the petitioners of the newspaper Vyapar Udyog Samachar for the year 2001 with a caution that if the petitioners failed to respond to the said letter within a period of 21 days from the date of receipt of the same letter, the circulation would be de-recognised. The respondents had been time and again receiving various complaints that some of the newspapers on DAVP panel either do not exist or claim exaggerated figures. The sole objective of the Government is to reach out to the maximum number of people over a large area in order to educate them and let them participate in the various Government schemes, like employment, tenders, notices etc. In view of complaints received it was decided to send a team of responsible officers to five different places, i.e., Shimla, Rohtak, Bhopal, Delhi and Jabalpur to verify all these facts from spot and area inspection and survey. At the printing press of Vyapar Udyog Samachar at C-1/V, Ring Road, Naraina the chowkidar of the premises stated that no such newspaper is printed from this press. It was found that the machine was equipped but had not worked for the last several years and also no electricity was available in that press. This team also visited the offices and printing presses of other 17 newspapers out of which nine newspapers including five of the petitioners' namely; Bharat Janani, Bharat Bhawana, Himachal Sewa, Anant Bharat and Vyapar Udyog Samachar, Hindi Dailies published from Delhi, Shimla, Rohtak and Alwar which were found not in existence were temporarily removed from media list for issue of Government advertisements. It is contended that in view of aforesaid findings of the team, decision not to release the advertisements to these newspapers and depanel these newspapers was perfectly in order. The respondents have further explained that the DAVP is a nodal agency of the Government of India for advertisements of various Ministries and organisation of Government of India including public sector undertakings and autonomous bodies. All the activities are governed by the Advertisement Policy of the Government of India and Guidelines for Empanelment/release of advertisements to newspapers.

11. Allegations of mala fides are denied by the respondents stating that action is taken because it was found that these newspapers are not having any circulations and were collecting revenues from the advertisement issued by the DAVP and not because of some article published in Dainik Himachal Sewa regarding the then Information and Broadcasting Minister Mrs. Sushma Swaraj, It is stated that action is taken in larger interest not only against these petitioners but many other newspapers which exist only on papers to attract advertisements from the DAVP.

It is in the aforesaid position taken by the petitioners and respondents in their petitions and counter affidavits that justification in taking the action is to be adjudged.

12. Before dealing with this challenge, it would be appropriate to have a look into the Advertisement Policy of the Government of India and the Guidelines for Empanelment of Newspapers with the DAVP. The respondents have enclosed this Advertisement Policy which is effective from 1st May, 2002. It starts by mentioning that the primary objective of the Government in advertising is to secure the widest possible coverage of the intended content or message through various newspapers and journals of current affairs which are published daily, weekly, fortnightly or monthly. In para 2 of this Policy, it is specifically mentioned that the Government advertisements are not intended to be financial assistance to newspapers/journals. DAVP will empanel only such newspapers/journals as are required for issuing advertisements of the Government of India. Care is taken to empanel newspapers/ journals having readership from different sections of the society in different parts of the country. Panel Advisory Committee (PAC) is set up for empanelling the newspapers. On the recommendations of this PAC, the DAVP may empanel a newspaper. This PAC also has the power to consider the de-empanelment of a newspaper/journal where warranted. Criteria for empanelment is stipulated in para 6 which, inter alia, states that all newspapers/journals seeking empanelment for the first time should have been uninterruptedly and regularly under publication for a period of not less than 12 months and should comply with the provisions of the Press & Registration of Books Act, 1867. For renewal of rate contract, the newspapers are to submit applications in prescribed format by 31st May of each year to the DAVP. Application format is prescribed and newspapers are required to give details on paper like size, language, periodicity, print area and details of printing press etc. It is also required to substantiate that the paper is being published at a reasonable standard. As per this Policy, reasonable standard, inter alia, means that:

"(a) The print matter and photographs should be legible, neat, clear and without smudges, overwriting and tampering.

(b) There should be no repetition of news items or articles from other issues.

 (c)    There should be no reproduction of news items or articles from other newspaper/journals without credit line. 
 

 (d)   Masthead on its front page should carry the title of the newspaper, place, date and day of publication; it should also carry RNI Registration Number, volume & issue number arid price of newspaper/journal  
 

 (e)   The newspaper should carry imprint line as required under PRB Act; and  
 

 (f)    Inner pages must carry page number, title of the paper and date of publication."  
 

 13. As per para 15, a newspaper, if declared unestablished by RNI, will be suspended from DAVP empanelment and recovery will be effected. Resumption will be considered only on receipt of the RNI certifying circulation. Paras 23 and 24 of the Policy deal with suspension of newspaper from DAVP advertisements and being relevant for our purposes, are quoted below: 
   

 "Suspension of newspaper for DAVP advertisements: 
  

23. A newspaper will stand suspended with immediate effect if found to have submitted wrong information in his application or rate renewal proforma; or if found to have discontinued its publication, changed its periodicity or its title or have become irregular or suspected to have been indulging in unethical or anti-national activities as found by the Press Council of India or if convicted by a Court of Law for such activities.

24. Before suspension of a newspaper for DAVP advertisements on grounds of unethical practices, anti-national activities, violation of the norms of decency as prescribed by the Press Council of India, such newspapers will be given due hearing by the DAVP and a final view will be taken by DAVP."

14. Before adverting to the arguments of the petitioners in detail, it would also be appropriate to take note of some of the admitted events.

15. On 21st May, 2002 a notice was served by the Circulation Officer of the respondents to the petitioners stating, inter alia, that he was directed to examine the claim of circulation of petitioners' newspapers and by the said notice he asked for various details which the petitioners were required to furnish. The information required to be sent included statement regarding circulation of newspapers for the year 2001, one set of newspaper in case of daily publication of the newspaper, newspaper of 3rd, 6th, 10th, 14th, 17, 21st and 28th of each month, details of printing press from where the newspaper was being published, statement of purchase of printing paper with proof of payment, details of local agents, hawkers, outside agents, statement of profit and loss etc. The petitioners submitted reply 27th May, 2002. Thereafter, the inspection team was sent by the respondents to make spot verification. This team visited the printing press of Bharat Bhavana (Hindi Daily) and Vyapar Udyog Samachar (Hindi Daily) on 15th July, 2002 and gave the following report:

" The team first went to the office of Bharat Bhavana at 21, Gagan Vihar, Delhi-110051. The building bears a board -- Samachar Sadan, Samachar Lane, 21, Gagan Viahr. The chowkidar directed us to the basement There was no board of Bharat Bhavana. The basement was a hall. Only one person was present there who introduced himself as Sanjay. Dr. Santoshi, the Editor/Publisher/Proprietor of this paper was not there. Shri Sanjay claimed to be a relative of Dr. Santoshi. We asked him for a copy of Bharat Bhavana dated 15.7.2002. He did not have any copy of that date or if any previous dates. He said that this paper will be available at their office situated at Rajouri Garden. He could not explain why there were no persons available in the office, though this was the time (5.30 p.m.) when a newspaper office is supposed to be busy. Then he said that he was actually looking after PVC business and knew nothing about the newspaper. Shri Sanjay also said that Dr. Santoshi will be available at Rajouri Garden office.

In this office, we could see copies of newspapers stacked in a row. The enclosed copies of newspapers were taken from these rows:

1. Bharat Janani, Rohtak, dated 20th November, 2001.

2. Bharat Bhavana, New Delhi, 3rd July, 2002.

3. Vyapar Udyog Samachar, New Delhi, 30th November, 2001.

4. Dainik Himachal Seva, Shimla, 8th September, 2001 (four pages only).

5. Dainik Himachal Seva, Shimla, 29th September, 2001 (one sheet only).

6. Vyapar Udyog Samachar, New Delhi, 4th July, 2002 (four pages only).

Then we went to printing press address given by the applicant i.e. Santoshi Printing Udyog at C1/B, Ring Road, Naraina, New Delhi at about 7 p.m. On reaching the above address, it was found that the press was locked for the last 2 to 3 years. An old man Mr. Sohan Lal claimed himself to be the chowkidar of the press said that no papers are being published from this press as it is closed for more than two years. The press did not have any sign board. He said that there is a Chandler Letter Press Machine inside but we could not see it as the door was locked and the person did not have the keys. Anyway, a Chandler Letter Press Machine is not at all suitable to print a paper which is daily. There was hardware material lying all around the premises.

The team's last visit was to the office of Vyapar Udyog Samachar (Hindi Daily) at C-14, Rajouri Garden, New Delhi-110027, around 7.30 p.m. The premises mentioned above is on the first floor of a shop in local market. There was only one person Mr. Raj Kumar in this office and he said that he actually stays at Rohtak and knows nothing about the newspaper and neither he is supposed to say anything. He refused to answer our queries and kept on saying that our questions should be put to Dr. Santoshi only. He also added Dr. Santoshi is out of Delhi and is expected to come on 16.7.2002 even though Mr. Sanjay at Gagan Vihar (21, Gagan Vihar, seems to be the residence of Dr. R.S. Santoshi) had said that Dr. Santoshi would be available at Rajouri Garden.

Observations:

These two newspapers are not printed on daily/regular basis and these are printed only on days, the DAVP ad. is received."

16. On the basis of this report and other information gathered the impugned letter dated 6th August, 2002 was sent to these two newspapers stating that paper was not published in the press whose addresses had been given and also that newspaper was not available in the market/news agency counters and in these circumstances it was not possible to make use of the petitioners' publication for release of Government advertisements in future. Similarly in respect of other newspapers vide communication dated 5th August, 2002 it was informed to the petitioners that DAVP team had visited their premises and address of printing press where it was found that there was no activity. Moreover, newspaper was not available in the market/new agency counters as per the report available in the Directorate.

17. In view of these facts which are not in dispute, it cannot be alleged that impugned action of the respondents is in violation of principles of natural justice. The petitioners were put to notice by communication dated 21st May, 2002 as to what kind of inquiry was contemplated. The petitioners were allowed to submit necessary documents. Before taking action a team was constituted which did necessary spot verification. When it was found that the addresses mentioned of the printing press given by the petitioners no such printing activity was going on and further that respondents during investigation could not find newspapers of the petitioners in circulation only thereafter impugned action was taken.

18. Learned Counsel for the petitioners submitted that before taking impugned action, no show cause notice was given and such an action was therefore bad and for this purpose he relied upon: Pepsico Restaurants International (I) (P) Ltd. v. Municipal Corporation of Delhi & Ors., , and State of Punjab and Another v. Iqbal Singh, .

19. On the other hand, learned Counsel for the respondents submitted that no such show cause notice was required to be served and relying upon paras 23 and 24 of the Advertisement Policy, his submission was that where the suspension was to be done for the reasons stipulated in para 24, requirement of hearing was prescribed specifically, there was no such requirement prescribed in para 23 when suspension was to be resorted to on the grounds stipulated in sub-para. He thus contended that requirement of principles of natural justice was excluded while resorting to action under para 23 and therefore show cause notice was not required to be given. In support of this proposition, he placed reliance on the judgments of the Supreme Court in the cases of: Dr. Rash Lal Yadav v. State of Bihar & Ors., and Union of India v. Col. J.N. Sinha and Anr., . He also submitted that the inquiries revealed that there were no newspapers of the petitioners which were printed and circulated. Only as an eye wash to prove the advertisement release by the DAVP and earn revenue there from, certain copies were printed and to give those editions semblance of newspapers, the news item other newspapers were copied and printed. To demonstrate this, learned Counsel for the respondents gave for perusal of the Court some copies of the petitioners' publications which showed that news report on the front page of news edition dated 30th April, 2002 from the newspaper Dainik Tribune which was clear from news dated 3rd September, 4th September, 2nd November, 2nd November, 7th November, 17th November and 18th November, 2001.

20. I have perused these newspapers and compared the same with the Dainik Tribune. The observations of the respondents are totally correct. Various news items appearing in the Dainik Tribune, which is a newspaper of repute, on different dates are reproduced verbatim in the petitioners' publications. Since the dates of the two newspapers carrying identical news are also same, one can clearly infer that the newspapers of the petitioners are not printed on these dates but printed afterwards at a later date after obtaining copies of the Dainik Tribune and copying there from. It is also possible that news items may have been copied from some other newspapers. It lends credence to the argument of learned Counsel for the respondents that view of the copies of the newspaper is thereafter printed at a later date in order to include the advertisement release by DAVP so that advertisement money is claimed on that basis.

21. In a case of this type, I am of the opinion that requirement of issuance of letter dated 21st May, 2002 eliciting reply and documents, consideration thereof in the light of report dated 16th July, 2002 of the inspection team would be sufficient compliance with principles of natural justice. When empanelment of newspaper with DAVP does not entitle such newspaper to have the advertisement as a matter of right and it is still the discretion of the DAVP and the purpose of releasing these advertisements is not to sustain the newspapers financially and further that there is no legal right for the newspapers to claim and demand advertisements even if empanelled, asking the respondents to issue show cause notice before depanelling would be stretching the concept of principles of natural justice a bit far.

22. In so far as argument of learned Counsel for the petitioners that respondents are trying to justify the action post facto after prejudging the matter, same also does not hold good in view of the facts noted above. Action of 5th/6th August, 2002 was preceded by notice dated 21st May, 2002 reply to this notice and report of the inspection team on 16th July, 2002. The petitioners may be right to the extent that even after the said action, certain inquiries/ investigations have been carried out and the respondents have relied upon these reports of later date also to justify the action. However, had the material available on record been only of date after 5th/ 6th August, 2002 there could have been substance in what the petitioners are arguing. This is the not the position here. It appears that after the report dated 16th July, 2002 and further findings that the newspapers of the petitioners were not found in circulation, they were informed that it would not be possible to release the advertisements. The matter could have rested even at that. However, the respondents continued with further inquiry. May be because the petitioners were also making representations. In the process spot verifications were conducted by the team and report dated 31st October, 2002 was also submitted and ultimately letter dated 13th November, 2002 was written to the petitioners stating that as the petitioner bad failed to produce necessary documents as demanded on 21st May, 2002 and printing press as well as electricity connection was not at the place of printing, the publication of the petitioners was treated as unestablished for the year 2001. It may be mentioned that thereafter the respondents have sent another letter dated 9th December, 2002 informing the petitioners that they may send request for circulation check for the year 2002 supported by necessary documents to examine their request.

Thus this further material even after 6th August, 2002 only confirms that the action of the respondents was valid. Even if this material is ignored, action taken on 5th/ 6th August, 2002 can be substantiated on the basis of material on record on that date. Therefore, this argument of the petitioners is also without any substance.

23. This brings us to the argument of mala fides raised by the petitioners. It is alleged that respondents started taking action and stopped releasing advertisements only after news item dated 10th July, 2002 published in Dainik Himachal Sewa implicating the then Information and Broadcasting Minister Smt. Sushma Swaraj. It was submitted that it cannot be a coincidence that all of a sudden all the five newspapers belonging to same group would stop receiving the advertisements on same grounds and that too immediately after this news item. However, it appears that the petitioners are trying to capitalise the said news item to allege mala fides. The publication of this news item is to be considered Along with other events and circumstances. Admittedly, the complaints had been received by the respondent No. 2 to the effect that certain newspapers on the DAVP panel either do not exist or claim exaggerated figures- In view of these complaints, the DAVP had constituted a team of responsible officers to examine the credential of such newspapers. Inquiries had started against various such newspapers. It goes without saying that those newspapers who do not exist or claim exaggerated figures would be in the category of small or medium scale. Letters dated 13th May and 21st May, 2002 were written to the petitioners' publication as well. Therefore, the petitioners very well knew about such an inquiry in the offing, If the claim of the petitioners' newspapers, as stated in the application for empanelment with DAVP was bogus, they knew that they would be exposed in the on-going investigations. In this background, news item dated 10th July, 2002 gets published and is sought to be made basis of attack for the action which was already under contemplation. Moreover, what the news item dated 10th July, 2002 reads. It only states that the Minister is trying to strangulate the medium and small scale newspapers. Obvious reference is to the action initiated for verifying the claim of some of the newspapers belonging to this category pursuant to complaints received. It can, therefore, clearly be inferred that it was a motivated news item by a newspaper with almost nil circulation as it is found ultimately. Whether this news item ever came to the notice of the Director, DAVP or the Minister may itself be in doubt. Moreover, neither the Minister nor the then DG, DAVP are imp leaded in their personal capacity. Such allegations, therefore, cannot be looked into even on this ground. Furthermore, when it is found that action is on the basis of investigation which had started much prior to the so-called offending news item and there is material to justify that action, these allegations of mala fides fall in the pale of insignificance.

24. One may take note of another important aspect. In four petitions the petitioners have challenged the impugned action dated 5th/6th August, 2002. The contract expired on 30th September, 2002 and was not renewed. Renewal action is not challenged contained in letter dated 13th November, 2002. Furthermore, the RNI has de-regonised these newspapers. The action of the RNI is also not challenged. As per the Advertisement Policy only those newspapers can be empanelled which are recognised by the RNI. On this ground also, no relief can be given to the petitioners.

25. The result of the aforesaid discussion is that these petitions are misconceived and without merit which are accordingly dismissed.

26. There shall be no order as to costs.