Kerala High Court
U.Gopal Maller vs Union Of India on 3 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
WP(C) NO. 13906 OF 2013
PETITIONER:
U.GOPAL MALLER
PUBLISHER,KESARI WEEKLY
19/1831,SWASTHIDISHA,MADHAVAN NAIR
ROAD,CHALAPURAM.P.O,KOZHIKODE-673002.
BY ADVS.
SRI.T.A.UNNIKRISHNAN
SRI.K.S.PRAVEEN
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY SECRETARY,
DEPARTMENT OF POSTS,GOVERNMENT OF INDIA,
NEW DELHI-110001.
2 CHIEF POSTMASTER GENERAL
KERAL CIRCLE,THIRUVANANTHAPURAM-695033.
3 SENIOR SUPERINTENDENT OF POST OFFICES
CALICUT DIVISION,CALICUT-673003.
BY ADV SRI.MANU.S, DSGI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 16.12.2022, ALONG WITH WP(C).38301/2017,
41750/2017, THE COURT ON 3.2.2023 DELIVERED THE FOLLOWING:
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
WP(C) NO. 38301 OF 2017
PETITIONER:
P.K. SREE KUMAR,AGED 51 YEARS
S/O.KRISHNAN NAMBOOTHIRI, PUBLISHER, K
ESARI WEEKLY, FOR HINDUSTHAN PRAKASAN TRUST
19/1449, SWASTHIDISA, MADHAVAN NAIR ROAD,
POST CHALAPURAM, KOZHIKODE-673002.
BY ADVS.
SRI.T.A.UNNIKRISHNAN
SRI.K.K.AKHIL
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF POSTS, GOVERNMENT OF INDIA,
NEW DELHI-110001.
2 THE CHIEF POST MASTER GENERAL KERALA CIRCLE
THIRUVANANTHAPURAM-695033.
3 THE POST MASTER GENERAL
NORTHERN REGION, CALICUT-673011.
4 THE SENIOR SUPERINTENDENT OF POST OFFICES
CALICUT DIVISION, CALICUT-673005.
BY ADV SRI.K.SHRI HARI RAO, CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.12.2022, ALONG WITH WP(C).13906/2013 AND CONNECTED
CASES, THE COURT ON 3.2.2023 DELIVERED THE FOLLOWING:
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
WP(C) NO. 41750 OF 2017
PETITIONER:
P.K. SREEKUMAR
AGED 51, S/O KRISHNAN NAMBOOTHIRI, PUBLISHER,
KESARIWEEKLY FOR HINDUSTHAN PRAKASAN TRUST
19/1449,SWASTHIDISA, MADHAVAN NAIR ROAD,
POST CHALAPURAM, KOZHIKODE.673002
BY ADV SRI.K.K.AKHIL
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF POSTS,GOVERNMENT OF INDIA,
NEW DELHI.110001
2 THE CHIEF POST MASTER GENERAL
KERALA CIRCLE, THIRUVANANTHAPURAM.695033
3 THE POST MASTER GENERAL
NORTHERN REGION, CALICUT.673011
4 THE SUPERINTENDENT OF POSTS OFFICES RMS
CALICUT DIVISION, CALICUT.673005
BY SRI.S.MANU, DSGI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 16.12.2022, ALONG WITH WP(C).13906/2013 AND
CONNECTED CASES, THE COURT ON 3.2.2023 DELIVERED THE
FOLLOWING:
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017
4
MOHAMMED NIAS. C.P.,J
-----------
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017
- - - - - - - - - - - - - - - - - - ----
Dated this the 3rd day of February, 2023
JUDGMENT
The publisher of 'Kesari', a Weekly publication by Hindustan
Prakasham Trust, Kozhikode, has filed these writ petitions.
2. WP(C)No.13906 of 2013 is filed stating that it is a Weekly
newspaper published from Kozhikode, which started publication in
1951, and has a circulation of around 65,000 copies. The Weekly is
directly being delivered to the subscribers through the Indian Postal
Service based on Ext.P1 instructions, while stand-sale is comparatively
low. Normally, the Weekly is published on all Sundays and posted at
Calicut RMS on every Friday and Saturday. In August and September,
2012 the Weekly was published on 12.8.2012, 19.08.2012, 26.8.2012,
and after that, on 2.9.2012, and the index pages of the said issues are
marked as Exts.P2 to P5. While issuing Ext.P2, the third respondent
informed the petitioner that Ext.P3 issue of the Weekly violates the
instructions as the same is posted as the Annual issue and not as a
Weekly issue. Petitioner denied the allegation stating that it was in
fact, a Weekly issue and as the weight of the said Weekly issue was
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017
more, higher postage at Rs.1.10 was paid. This was intimated to the
third respondent by Ext.P6, who then required the petitioner to submit
a representation before the second respondent, which was done as per
Ext.P8. By Ext.P9, the third respondent issued a letter stating that the
concessional postage cannot be allowed as in the issue of 'Kesari' dated
19.08.2012 and 26.8.2012, the weekly period was not printed
anywhere and therefore it was treated as unregistered parcel/Book
post. Challenging Ext.P9, WP(C)No.13906 of 2013 is filed. It is the
specific contention of the petitioner that the publication is as a Weekly
and not as an Annual issue and for the extra weight in the Weeklies,
additional postage was also remitted, and as such, there is no
violation.
3. WP(C)No.38301 of 2017 is filed challenging Ext.P3, a demand
issued alleging improper pagination. The petitioner submits that copy
of the Weekly published on 25.8.2017 was sent to the subscribers
through post. Due to an inadvertent omission while printing this
Weekly, the first 6 pages were not numbered, numbering started from
the 7th page only and it was numbered as 3rd page, while according to
the petitioner was nothing but an oversight and not purposeful at all.
Ext.P3 was issued quantifying the amounts declining the concessional
postage tariff to the petitioner.
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017
4. WP(C)No.41750 of 2017 is filed challenging Exts.P2 and P3
and also for a declaration that condition No.14 in Ext.P1 cannot have
any force of law. By Exts.P2 and P3 the petitioner was informed by the
4th respondent that the issued of 'Kesari' Weekly publication dated
1.2.2017 and 8.12.2017 contained a printing 'posted at Calicut RMS on
every Friday and Saturday ' on the last page of the issue which it is
alleged is in violation of the condition for availing concessional postage
facility leading to a demand declining concession.
5. A counter affidavit was filed on behalf of the respondents in
WP(C)No.13906 of 2013, stating that the issues dated 19.8.2012 and
26.8.2012 are Annual issues and a perusal of the copy of the RNI
Certificate obtained by the publisher revealed that the Magazine is
published on all Sundays. Since the publisher committed a violation,
he was mulcted with the penalty. It is also argued that the action of the
publisher violates the Indian Post Office Act and Rules.
6. In WP(C)No.38301 of 2017, the contention of the respondent is
that there was an anomaly in pagination in the issue dated 25.8.2017
and essentially, pages 1 and 2, consecutive two pages contained
advertisements and inserted without continuous page numbers and the
7th page is numbered page 3 and this was against the Rules for availing
concessional postage rate. Since there was a violation the concessional
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017
rate was withdrawn and the penalty imposed.
7. In WP(C)No.41750 of 2012 the respondents have filed a
counter affidavit stating that the petitioners have violated conditions by
printing 'posted at Calicut RMS on every Friday and Saturday' , thus,
violating condition No.14 in Ext.P1, the printing of these words on the
RNP shows the date of posting which is a case of infringement of
condition, and accordingly, the petitioner was taxed.
8. Heard Sri.T.A.Unnikrishnan, the learned counsel for the
petitioners in all cases, Sri.S.Manu, Sri.Shrihari Rao and Sri.Jaishakar
V. Nair, the learned counsel for the respondents.
8. As noticed above, the penalty levied and impugned in
WP(C)No.13906 of 2013 is on the basis that the Weekly published on
12.8.2012, 19.08.2012, and 26.8.2012 were shown as Annual editions,
which according to the respondents is a violation that led to the penalty
Admittedly, concessions were given on the ground that the publication
was a Weekly. Whether the petitioners have exceeded the number of
Weeklies possible and permissible if a whole year is taken would clinch
the issue. In case the same has been exceeded, then it may be a case
of violation. It is the specific case of the petitioners that they have not
published more editions than what is permissible in a year. Certainly, it
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017
is a matter the respondents will have to consider. Much more than the
nomenclature used in the Weekly, what is relevant is to find out
whether they have exceeded the number of permissible editions in the
whole year. I find force in the contention of the learned counsel for the
petitioners that Ext.P1 actually does not mention the penalty for the
violations and what has been awarded is the maximum penalty, namely,
withdrawing the benefit of the entire concession itself. It is also to be
seen that there was no reasonable opportunity of hearing afforded to
the petitioners before the impugned demand was made.
9. As far as WP(C) No.38301 of 2017 is concerned, the penalty
was levied solely on the ground of improper pagination, which the
publisher asserts is nothing but an oversight and was not purposeful at
all. Here also, the maximum penalty was levied namely withdrawing the
concession in full. I find force in the contention of the learned counsel
for the petitioners that the penalty awarded is totally disproportionate
to the alleged violation. The respondents will also consider whether the
petitioners have derived any advantage from the alleged mistake
committed. In this case, also there was no proper opportunity of
hearing was afforded to the petitioner before the impugned penalty
was ordered.
10. The penalty in WP(C)No.41750 of 2017 was ordered on the
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017
allegation that the publications dated 1.2.2017 and 8.12.2017
contained a printing 'posted at Calicut RMS on every Friday and
Saturday'. Here also the maximum penalty possible namely, withdrawal
of the entire concession was ordered again without affording a proper
opportunity of hearing to the petitioners.
11. The respondents will consider the purpose for granting
concessional tariff to the Weekly in question and also find out the
advantage that the petitioners could have got on committing the
alleged violation. The penalty in all the cases was to the maximum
namely withdrawing the entire concessional tariff on the ground of the
alleged violations, In none of the above cases there is any allegation
that the postage required to be paid for the weightage was not paid.
12. Under the above circumstances, the impugned orders are
quashed and the respondents are directed to afford a reasonable
opportunity of hearing to the publisher of the Weekly and to take an
appropriate decision in the light of the observations contained above.
This exercise shall be done within an outer limit of four months from
the date of receipt of a copy of this judgment.
The writ petitions are allowed as above.
Sd/- MOHAMMED NIAS C.P., JUDGE
dlk/23.01.2023
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017
APPENDIX OF WP(C) 38301/2017
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE MEMO DATED 29-12-2014,
TECH/1/9/KKD/WPP/08 ISSUED BY THE
ASSISTANT DIRECTOR OF THE 3RD
RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE MEMO DATED 20-11-2017,
TECH/1/9/KKD/WPP/08 ISSUED BY THE
ASSISTANT DIRECTOR OF THE 3RD
RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE SAID COMMUNICATION
NO.G 25/8 DATED 17-11-2017 ISSUED BY
THE 4TH RESPONDENT TO THE PETITIONER.
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017
APPENDIX OF WP(C) 41750/2017
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE MEMO DATED 29.12.2014,
TECH/1/9/KKD/WPP/08 ISSUED BY THE
ASSISTANT DIRECTOR OF THE 3RD
RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED
13.12.2017 ISSUED BY THE 4TH
RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED
15.12.2017 ISSUED BY THE 4TH
RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE OUTER PAGES OF THE
WEEKLY CONTAINING THE STATUTARY
PRINTING.
EXHIBIT P5 TRUE COPY OF THE EXPLANATION AND
REQUEST SUBMITTED BY THE PETITIONER TO
THE POST MASTER GENERAL DATED
18.12.2017.
RESPONDENTS EXHIBITS
EXHIBIT R1(A) TRUE COPY OF THE LICENSE CONDITIONS
ISSUED BY DEPARTMENT OF POSTS DATED
20.11.2017.
EXHIBIT R1(B) TRUE COPY OF THE LETTER DATED 3.2.2012.
EXHIBIT R1(C) TRUE COPY OF THE LETTER DATED
16.1.2015.
EXHIBIT R1(D) TRUE COPY OF THE LETTER DATED
14.3.2012.
EXHIBIT R1(E) TRUE COPY OF THE LETTER DATED
11.2.2013.
EXHIBIT R1(F) TRUE COPY OF THE LETTER DATED
29.12.2014.
EXHIBIT R1(G) TRUE COPY OF THE LETTER DATED
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017
20.11.2017.
EXHIBIT R1(H) TRUE COPY OF THE LETTER DATED
17.11.2017.
EXHIBIT R1(I) TRUE COPY OF THE DECLARATION DATED
3.10.2017.
WP(C)Nos. 13906 of 2013 & 38301 & 41750 of 2017
APPENDIX OF WP(C) 13906/2013
PETITIONER'S EXHIBITS
EXHIBIT-P1 TRUE COPY OF THE INSTRUCTIONS DATED
29.11.2012 ISSUED BY THE 3RD RESPONDENT
EXHIBIT-P2 TRUE COPY OF THE INSTRUCTIONS DATED
01.01.2013 ISSUED BY THE 3RD RESPONDENT
EXHIBIT-P3 TRUE COPY OF THE INDEX PAGE OF KESARI ISSUES
DATED 19.08.2012
EXHIHIT-P4 TRUE COPY OF THE INDEX PAGE OF KESARI ISSUES
DATED 26.08.2013
EXHIBIT-P5 TRUE COPY OF THE INDEX PAGE OF THE KESARI
WEEKLY DATED 19.05.2013.
EXHIBIT-P6 TRUE COPY OF THE LETTER DATED 05.01.2013
SUBMITTED TO THE 3RD RESPONDENT
EXHIBIT-P7 TRUE COPY OF THE LETTER NO.G 25/MISC DATED
23.01.2013,OF THE 3RD RESPONDENT
EXHIBIT-P8 TRUE COPY OF THE REPRESENTATION DATED
05.01.2013 TO THE 2ND RESPONDENT
EXHIBIT-P9 TRUE COPY OF THE LETTER NO.G 25/MISC DATED
16.05.2013 OF THE 3RD RESPONDENT
EXHIBIT-P10 TRUE COPY OF THE COMMUNICATION FROM THE 3RD
RESPONDENT DATED 28.11.2014.
