Judgement on striking out of pleading
Querist :
Anonymous
(Querist) 20 March 2011
This query is : Resolved
Dear Advocate friends,
Can someone please provide me the contents of judgment reported in AIR 1951 Nagpur 412
which is regarding the striking out of pleadings under Order 6 Rule 16 of CPC.
Thanks in anticipation.
Gulshan Tanwar
(Expert) 21 March 2011
JUDGMENT
Jamdar, J.
1. The petitioner All India Reporter Ltd., which is a Public Limited Company incorporated under the Companies Act, 1956, is a leading law publisher in India. It publishes commentaries on various statutes, Manuals, Digests and the following Law Reports :
(1) All India Reporter
(2) Criminal Law Journal
(3) Labour and Industrial Cases
(4) Taxation Law Reports
(5) Allahabad Law Journal
(6) U.P. Law Tribune
2. The law reports published by the petitioner company are ad verbatim reproduction of the judgments delivered by various High Courts and also the Supreme Court of India. The judgments are point-noted and the head-notes are prepared showing the important questions of law adjudicated upon the concerned judgments. The law reports are published periodically in 12 parts every year, except the Allahabad Law Journal, which is published in 24 parts, and at the end of the year common Index of the whole volume is prepared and supplied to each customer subscribing to the law reports. The law reports usually contain two parts, viz., (1) Journal Section; and (2) Judgments. The Journal Section mainly consists of Articles on various legal topics and reviews of law books. It also consists of reproduction of various enactments, rules and notifications published therein. The main part of the law reports, however, consists of judgments of various High Courts and Supreme Court. From the statement filed by the petitioner during the course of hearing, it appears that out of 4,22,412 pages, of the All India Reporter published during the years from 1922 to 1982, only 6,790 (which comes to 1.63 per cent) were utilized for Journal Section, while the remaining 4,15,622 pages were utilised for reproduction of judgments.
3. The petitioner company was established in 1922, but the law reports published by the petitioner were not registered as Newspapers under the Press and Registration of Books Act, 1867, till 1957, presumably because till the aforesaid enactment was amended by Act No. 55 of 1955 with effect from 1st July, 1957 and Chapter V-A, which deals with registration of newspapers, was inserted, there was no provision in the Act which required registration. The All India Reporter and the Criminal Law Journal were registered under the Press and Registration of Books Act, 1867, as amended by Act No. 55 of 1955 in 1957 and other periodicals were so registered as and when they were acquired by the petitioner company. The petitioner company has, however, written letters (Annexure K, pages 92 to 97 of the petition) on 4th November, 1982 to the Registrar of Newspapers of India, New Delhi, for cancelling the registration of all the law reports published by the petitioner. The periodicals (i.e. Law Journals published by the petitioner), however, are registered as newspapers under S. 9 of the Indian Post Offices Act, 1898, and are transmitted by post as 'Registered Post', as contemplated by Rule 30 of the Indian Post Offices Rules, 1933.
4. The Working Journalists (Conditions of Services and Miscellaneous Provisions) Act, 1955 (hereinafter referred to as the Working Journalists Act) enacted for the purpose of regulating certain conditions of service of Working Journalists employed in the newspaper establishment, came into force with effect from 20th December, 1955. Section 9 of the said enactment prescribes procedure for fixing and revising rates of wages in respect of working journalists. The Act was amended by the amending Act No. 60 of 1974 and the provisions of the said enactment were made applicable to other persons employed in the newspaper establishment. Section 13-C, which was inserted by the said amending Act, made provision for constituting a Wage Board for the purposes of fixing or revising the rates of wages in respect of non-journalist newspaper employees. Sections 9 and 13-C of the Working Journalists Act were further amended by Act No. 6 of 1979 dated 19th March, 1979, and Ss. 13-AA and 13-DD which were inserted by the said amending Act made provision for constitution of a Tribunal for the purpose of fixing of revised rates of wages in respect of Working Journalists and Non-Journalist employees respectively. In exercise of the powers conferred by these provisions, a Tribunal known as 'Palekar Tribunal' was constituted under Ss. 13-AA(1) and 13-DD(1) on 9th February, 1979. The Tribunal gave its Award on 12th August, 1980 and as contemplated by S. 12 of the Working Journalists Act, the Government of India accepted and published part of the Award on 26th February, 1980, and accepted and published the remaining part of the Award on 20th July, 1981.
5. Before passing the Award, no individual notice was served on the petitioner company and the petitioner company neither sent a reply to the questionnaire issued by the Tribunal nor gave evidence before the Tribunal in respect of the matters referred to the Tribunal. However, on 15th July, 1981 and 3rd August, 1981, respondent No. 3 - The Deputy Labour Commissioner, Nagpur, addressed communication to the petitioner and asked the company to file its written say in the matter of non-implementation of the Palekar Award. The petitioner company submitted its reply in October 1981, inter alia, contending that the petitioner company is not a newspaper establishment and the publications published by the company are not newspapers and hence Palekar Award is not applicable to the petitioner company. However, nearly a year after the reply was filed, respondent No. 3 addressed another communication dated 18th November, 1982 (copy at Annexure F) to the Manager of the petitioner company, informing him that the long standing issue of applicability of the Working Journalists Act and the consequent recommendations of the Palekar Tribunal to the establishment of the petitioner was examined at appropriate level and requesting him to implement the recommendations of Palekar Tribunal immediately. It is this letter which gave rise to the present petition. The petition is opposed by the respondents as well as by the Indian Federation of Working Journalists and the All India Reporter Karmachari Sangh, who were allowed to intervene.
6. The main controversy in this petition is whether the law reports published by the petitioner company are newspapers within the meaning of S. 2(b) of the Working Journalists Act and whether the establishment of the petitioner company is a 'newspaper establishment' within the meaning of S. 2(d) of the said enactment. Section 2(d) of the Working Journalists Act defines 'newspaper' as follows :
"Newspaper means any printed periodical work containing public news or comments on public news and includes such other clause of printed periodical work as may from time to time noticed in this behalf by the Central Govt. in the official Gazette."
The definition of 'newspaper establishment' is given in S. 2(d) as follows :
"Newspaper establishment means an establishment under the control of any person or body of persons, whether incorporated or not, for the production or publication of one or more newspapers or for conducting any news agency as syndicate."
It is an admitted position that the petitioner company does not conduct any news agency or syndicated. The question, therefore, would be whether the establishment of the petitioner company produces or publishes one or more newspapers. It is an admitted position that the law reports published by the petitioner company are not notified as newspapers by the Central Government, as contemplated by the second part of the definition 'newspaper' given in S. 2(b). The question, therefore, that remains for consideration is whether the law reports published by the petitioner contain public news or comments on public news, it being an admitted position that the reports are published periodically.
7. The phrase 'public news' is not defined in the Working Journalists Act, nor the word 'news' is defined in any enactment. In the absence of any statutory definition, therefore, the popular meaning of the word will have to be considered. The Oxford English Dictionary defines 'news' as "Tidings; the report or account of recent events or occurrences, brought or coming to one as new information; new occurrences as a subject of report or talk" (Third Edition, page 1400). The Webster's Third International Dictionary defines 'News' as "a report of recent events; new information; fresh tidings". Corpus Juris Secondum gives the following note on the word 'News' -
"News : Information, intelligence, knowledge, as generally understood a report of recent occurrences; reports of happenings of recent occurrences of varied character, such as political social, moral, religious and other subjects intended for the information of the general reader; fresh information concerning something that has recently taken place, recent report or account of an event, fresh tiding, recent intelligence.
It is said that facts are not necessarily news unless they have that indefinable quality of interest which attracts public interest.
'News' has been held to be synonymous with "information".
Analysing these reports, it was rightly urged by Shri Manohar, the learned advocate for the petitioner, that news is a report on recent events, freshness of the information being of the essence. News has a transitory importance and the success of newspaper journalism lies in prompt publication of events of public importance or in which public have or is expected to have interest. It contemplates of an event which must be distinguished from an expert analysis of the causes that led to, or the reasons for, the occurrence. Court decisions may be news, especially in cases in which some questions of public importance are involved or which by nature of the dispute rouse public interest. But judgments which contain the facts of the case, the pleadings of the parties, the arguments advanced on both the sides and the reasoning adopted by the Judge for coming to the particular conclusion cannot be news, apart from fact that judgments are published in Law Reports after a lapse of time by which the news about the decision had already become stale.
8. In Wharton's law Laxicon, 'Newspapers' are defined as 'periodical publications containing intelligence of passing events'. The same definition is given in Jowitt's Dictionary of English Law (1977 Edition, Vol. II, Page 1234). In Volume III of the Words and Phrases - Judicially defined, edited by Roland Burrows, following observations of Hood J., in Ex. P. Stillwell 1903 (29 B.L.R. 415) are quoted while giving judicial definition of 'newspaper'.
"I feel no hesitation in saying that this Bradshaw's Guide is not publication, 'Known and recognized as a newspaper in the generally accepted sense of the word. In its real nature it is essentially a book of reference and lacks every element of what I should call a newspaper. Its form, its contents and its use all point to something totally different to an ordinary newspaper, whose main object is to give recent information about the recent events and which is not a record, but is in its nature ephemeral even though many persons do file their copies for reference."
Corpus Juris Secondum defines 'newspaper' as a publication usually in sheet form intended for general circulation and published regularly at short intervals containing intelligence, current events and news of general interest. The following note appears after the definition :
"Newspapers are of so many varieties that it is next to impossible to give any brief definition that will include and describe all kinds of newspaper. In ordinary understanding a newspaper is a publication usually in sheet from intended for general circulation, and published regularly at short intervals containing intelligence of current events and news of general interest. Newspapers may be classed as general, devoted to the dissemination of intelligence on a great variety of topics, which are of interest to the general reader, or special, in which some particular subject as religion, temperance, literature, law, etc., has prominance, general news occupying only secondary place. Thus, if a publication contains the current events of the day, it is none the less the newspaper, because it is devoted primarily to special interests, such as legal, commercial and financial, mercantile political or religious or sporting. (66 CJ. S. - Newspaper - 1)."
The first part of the definition of newspaper given in S. 2(b) of the Working Journalists Act is not different from the ones quoted above. The essential requisite of newspaper is publication of news. The publication devoted primarily to special interests will not come within the definition of newspaper, unless it contains current news of the day, i.e., reports on recent events.
9. Admittedly, none of the law reports published by the petitioner company contain current news of the day or reports of recent events of public interest. As mentioned above, the law reports mostly contain the judgments delivered by the Supreme Court of India and various High Courts and other Tribunals, Articles on legal topics, Reviews of Law Books and some advertisements, almost exclusively relating to law books published by various Law Publications.
10. It is no doubt true that as held by Civil Division of Court of Appeal in the Incorporated Council of Law Reporting for England and Wales v. Attorney General, (1971 (3) All ER 1029), the establishment publishing the law reports can be a charitable institution, because the publication is for the benefit of the society as a whole, but the publication is not for dissemination of knowledge of law. As held in the abovementioned case, the publication and dissemination of reports of judicial decision is beneficial to the community, in that it makes a significant contribution to the sound development, administration and knowledge of law. Alternatively, the preparation of law reports could be regarded as being for the advancement of education since their purpose is to record in an accurate manner the development and application of Judge-made law and thereby disseminate knowledge of that law in a way which is essential to a study of it.
11. The reports (law reports) are defined in Corpus Juris Secondum as collections of authoritative exposition of the law by the regularly constituted judicial tribunals supplemented and arranged by an officer called the Court Reporter (77 C.J.S. - Reports - 1) In Wharton's Law Lexicon, the term 'Law Reports' is defined as -
"Reports of judgments of courts in points of law, published for the purpose of being used as precedents." (14th Edition 1945 page 575).
In the same treatise, while explaining the term 'reports', the definition given by Cook is quoted.
"'A report', says Cook, 'signifyeth a public relation or bringing again to memory of cases judicially argued, debated, resolved or adjudged in any of the King's Courts of Justice together with such causes and reasons as were delivered by the Judges." (14 Edition 1946 page 869).
Significant is the note given in the same Treatise against the word 'Book' (page 138). It is as follows :
"All the volumes which contain authentic reports of decision in English Courts, from the earliest times to the present, are sometimes called 'par excellence' 'The Books'".
The definition of Law Reports given in Jowitt's Dictionary of English Law (2nd Edition, Vol. II, page 1071) is the same as the one given in Wharton's Law Lexicon. In the same dictionary the phrase 'Report Law' is defined as 'a public account of a legal proceeding giving statements of fact, arguments on both the sides and the reasons of the Court for judgment.' The Oxford English Dictionary (1933 Edition, Vol. VIII, page 474) gives the legal meaning of 'Report' as 'a formal account of a case argued and determined in any Court, giving the important points in the pleadings, evidence, etc.
12. By no stretch of imagination, therefore, the Law Reports can be styled as newspapers. The basic purpose of a newspaper is materially different from that of Law Report. The object of the newspaper is to convey the tidings of the events to the public with as much promptness as possible, while the object of Law Report is to publish for the purposes of dissemination of legal knowledge and for use as precedents at a future time, the judgments containing reasoning for the decision in a particular case, the publication invariably being made after the decision ceased to be news. Newspapers which are generally printed on news-prints are not expected to be preserved and rarely compiled subjectwise or otherwise. The object of the Law Report is to preserve judgments for posterity to make use of as precedents. The Law Reports are reference publications and are rightly styled as 'The Books', as mentioned in Wharton's Law Lexicon. Unlike newspapers, Law Reports may be reprinted. The news published in the newspaper need not be authentic and no permission is necessary for publishing it. The Law Reports, on the other hand, cannot publish any judgment without permission and without an authentic text.
13. In support of the contention that the Law Reports are not 'newspapers' within the meaning of S. 2(b) of the Working Journalists Act, 1955, Shri Manohar, the learned advocate for the petitioner, placed reliance on the decision of the Orissa High Court in P. S. V. Iyer v. Commr. of Sales-tax . In that case, the
question that arose for consideration was whether Cuttack Law Times, a monthly Journal publishing verbatim decisions of Courts, was a newspaper within the meaning of the Orissa Sales-tax Act. The Government of Orissa by Notification No. 11682-F dated 8th August, 1951 exempted sales and purchases of newspapers from liability to pay sales-tax under the Orissa Sales-tax Act. This was obviously done in conformity with Entry No. 92 of List I of VIIth Schedule of the Constitution, which confers upon the Union Parliament alone the power to levy tax on the sales and purchases of newspapers and on advertisements published therein. The Cuttack Law Times, which was registered as 'newspaper, under the Post Offices Act and under the press and Registration of Books Act', claimed exemption under the aforesaid notification from liability to pay sales-tax under the Orissa Sales-tax Act. Narsimhan C.J., who spoke for the Division Bench, referred to Entry No. 39 of List 3 of the VII Schedule of the Constitution, which relates to 'newspapers, books and printing presses', and observed that the framers of the Constitution intended to convey two different meanings to the expressions 'newspapers' and 'books'. The learned Judge analysed the definition of 'Newspaper' given in Oxford Dictionary and relying on the above quoted observations of Hood J., in Ex parte Stilwell observed as follows :
"In my opinion, these observations apply with full force while considering whether Cuttack Law Times is a newspaper or book. Its form, its contents, and its use all point to the fact that it is primarily meant to be a book of reference to be cited in the Law Courts. It may contain recent reports of decisions, but as it is monthly publication the report cannot be said to be so very recent as to amount to 'news' as ordinarily understood. The few comments and the few articles that may appear in the Journal section of the monthly do not change the essential character of the publication, viz., to give an accurate report of the important decision for the purpose of being cited in law courts." (para 7).
Reference was also made to the definition of the expression 'newspaper' given in the Press and Registration of Books Act, 1867, the Parliamentary Proceedings (Protection of Publication) Act, 1956, the Delivery of Books and Newspaper Act, 1956, the Newspaper (Price and Page) Act, 1956, and the Working Journalists Act, and it was concluded (relevant observations being in para 9 of the judgment) that in all these statutes the essential pre-requisite of a periodical, in order to make it a 'newspaper', is that it must contain mainly public news or comments on public news. The learned C.J., who spoke for the Court, further observed in the same para that Books containing authoritative reports for future reference can, by no strain of language, be said to contain 'news' so as to become 'newspaper'.
14. It is true that the question that was posed for consideration of the learned Judge of the Orissa High Court was a limited question relating only to the claim for exemption from liability to pay sales-tax under the Orissa Sales-tax Act, but the Orissa Sales-tax Act did not define the word 'newspaper' and hence the question whether Cuttack Law Times was a newspaper or not was considered on the basis of the essential pre-requisites of a newspaper, as can be spelt out from the Dictionary meaning attached to the word and also from the definition of the expression 'newspaper' given in various statutes, including the Working Journalist Act.
15. In support of his contention that the law report is a book of reference, Shri Manohar referred to S. 38 of the Evidence Act, which lays down that when the Court has to form an opinion as to a law of any country, any statement of such law contained in the book, purporting to be printed or published under the authority of the Government of such country and to contain any such law, and any report of a ruling of the Courts of such country contained in book purporting to be a report of such ruling, is relevant. Section 84 of the Evidence Act was also invoked. This section raises presumption of genuineness of every book purporting to be printed or published under the authority of the Government of any country, and to contain any of the laws of that country, and of every book purporting to contain reports of decision of the Courts of such country. What is canvassed is that the publications containing reports of decisions of the courts are styled as books as distinguished from newspapers, which phrase is also used in the Evidence Act to denote such publications.
16. Shri Bobde, learned advocate for one of the Interveners, All India Reporter Karmachari Sangh, strongly urged that the purpose of law reporting is to make the decisions known to all and the publication of law reports is for the benefit of the society as a whole. The judgments published in law reports are public news and hence the law reports are as much newspapers as publications containing news as understood in the ordinary sense of the term. In support of these propositions, Shri Bobde placed reliance on the decision in Incorporated Council of Law Reporting for England and Wales v. Attorney General (1971 (3) All ER 1029) (citation supra). In that case, the question was not whether the establishment publishing law reports is a newspaper or not. The main question was whether such an establishment can be a charitable institution and for the purpose of holding that it can be, the aspect that the publication is for the benefit of the society as a whole was emphasised. The decisive question is not whether the publication is for the benefit of the society as a whole or whether the public is interested in the publication. The question is whether what is published is public news. Everything that is published for the benefit of the public or in which public has interest is not necessary news. Unless what is published is news, the question whether the public is interested in the publication or whether the publication is for the benefit of the public is not of any significance. That aspect of the matter assumes relevance, only after it is established that what is published is public news.
17. Another decision on which reliance is placed by Shri Bobde, is the one in L. D. Jain v. General Manager, Govt. of India Press (ILR 1967 (1) Punjab & Haryana 193). The question that fell for consideration of the learned single Judge of the Punjab and Haryana High Court was whether the official Gazette of India is a newspaper within the meaning of S. 2(b) of the Working Journalists Act and whether the Government of India Press publishing the official Gazette is a newspaper establishment, to which the provisions of Working Journalists Act are applicable. The resolution of this question depended on the short question as to whether informations or reports which are published in the Gazette of India would be news. The learned Judge answered the question in the affirmative on the basis of the material placed before him, which showed that the Gazette of India contained all kinds of news and informations which the Government wished to be made known to the public, as contemplated by the very definition of the word 'Gazette'. Analysing the material placed before him and analysing the contents of the various issues of the Gazette placed before him as Annexures, the learned Judge observed as follows :
"Now although it is true that the Gazette contains numerous matters which it is necessary to publish under various statutes, statutory rules, regulations, etc., but it cannot be said nor has it been shown that the notifications of the nature contained in Annexures C/1 and C/2 (relating to the passing away of the late Prime Minister Pt. Jawahar Lal Nehru and to the death of six distinguished officers of the Armed Forces in an Air crash) as also the reports about the awards for gallantry have been published owing to any requirements of the laws of the land. It may be that when the Prime Minister passed away that fact has to be notified for public information and similarly the fact of the senior officers of the Armed Forces having dies in an air crash may have to be notified but what has been stated in these notifications, appears to indicate that they are more in the nature of such public news as would be published even in a newspaper as read and understood by all members of the public. Moreover, it seems to me that even the other matters which are published in the gazette cannot but be regarded as reports of recent events which it is necessary to be conveyed to the public in an authentic and official periodical."
The decision is thus based on the peculiar facts of the case, there being no ratio desidendi of general application. A Gazette containing official news cannot be compared with the publication containing judgments of the Courts.
18. The respondents, however, placed strong reliance on the decision of the Madras High Court in T. V. Ramnath v. Union of India (1975 Lab IC 488), in which Ismail, J., as he then was, held that the expression 'public news' is of sufficient wide amplitude to cover publications containing film news and publications containing reports of the judgments of the Courts as well as comments on such judgments of the Courts as well as comments on such judgments. In that case, the recommendations of the Wage Board for Working Journalists were challenged by Ramnath Publications Private Ltd., publishing three magazines, 'Pesum Padam' in Tamil, 'Cinema Rangam' in Telugu and 'Picture Post' in English, and also by Managing Partner of a partnership concern carrying on business in the publication of six Law Reporters, including the Madras Law Journal, and 'Kannan' a children's magazine in Tamil published as a fortnightly, 'Kalaimagal', a literary magazine in Tamil, published as a monthly, and 'Manjari' a monthly containing a condensation of interesting and useful articles of other publications. The only reasoning, which the learned Judge gave for the above-mentioned conclusion in respect of the publications containing reports of judgments of the Courts as well as Comments on such judgments appears in para 3. It is as follows :
"Similarly, the publications of the petitioner in the second writ petition can be said to contain 'public news' or comments on public news since it contains reports of the judgments of the Courts as well as comments on such judgments. Even though, the same may be primarily intended for that section of the public which is concerned with law and the administration of law, in the present days, nothing prevents any educated individual taking interest in such publications and the news itself being of interest to such persons. Therefore, I am clearly of the opinion that the expression 'public news' is of sufficiently wide amplitude to cover the publications of both the petitioners in question."
It appears that the learned Judge proceeded on the assumption that the publication of judgments is publication of news and as the members of the public are concerned with law and the administration of justice, publication of judgments in reports amounts to publication of public news. It is true that as observed by the learned Judge, as the definition of 'newspaper' is given in the Working Journalists Act, it is not necessary to consider the definition given in other statutes, but even the definition of newspaper given in the Working Journalists Act contemplates 'publication of public news and comments on public news'. The basic question, therefore, remains as to whether what is published in law reports is news and continues to be so, when it is published. This question was not considered also by the Full Bench in the appeal preferred by the petitioners against the decision of the learned single Judge. The Full Bench refused to go into the merits of the contentions solely on the ground that the establishment publishing Madras Law Journal has submitted itself to the jurisdiction of the Wage Board and had answered the questionnaire and had given evidence before the Wage Board. Even assuming that public news has wide amplitude, it cannot include anything which is not news basically. The fact that public is interested does not convert into news, what basically it is not.
19. Shri Bobde also referred to the decision in Jitendra Lal Banerjee v. Emperor (), in which the question for consideration of the learned Judges of the Division Bench of the Calcutta High Court was whether the Photographs of persons killed in the course of Chittagong Armoury Raid and found in possession of the petitioner accused were news sheets within the meaning of S. 2(6) of the Press Emergency Powers Act, 1931, which defines 'news sheet' to mean any document other than a newspaper containing public news or comments on public news or any matter described in Sub-s. (1) of S. 4 of the said Act. It was held that the information regarding the raid was public news, that the photographs were documents containing public news and therefore news sheets within the meaning of S. 2(6). The learned Judges referred to the definition of 'News' given in Oxford English Dictionary and considering the purpose of the Press Emergency Powers Act, observed as follows :
"Having regard to the purpose and general scheme of the Act I am of opinion that information is public news if it concerns a matter of public and topical interest as contrasted with purely historical interest. The information conveyed by the photographs satisfies this test, for although they were discovered more than two years after the raid the legal proceedings arising out of it had not terminated and the emergency measures rendered necessary in the District of Chittagong in consequence of it were still in operation. It seems to me that information regarding the armoury raid is public news whereas information regarding an event of purely historical importance such as the storming of the Bastille might not be public news."
The material question before the learned Judges of the Division Bench of the Calcutta High Court was whether the information contained in the photographs was of a recent event and on the facts of that case, they held that it was. They pointed out the distinction between 'a recent event' and 'an event of purely historical importance'. This decision, therefore, cannot be invoked in support of the proposition that everything that is published and in which public has interest is necessarily public news.
20. Reliance was also sought to be placed by Shri Bobde on the decision of the Division Bench of this Court consisting of Tulpule and Padhye JJ., in Writ Petition No. 1259 of 1974 decided on 2nd January, 1981. In that case only reference was made to the decision of Madras High Court in T. V. Ramnath's case (1975 Lab IC 488) (Supra) and the Orissa decision in P. S. V. Ayer's case and no opinion was expressed about the controversy.
21. Shri Bobde then took us to the definition of 'Working Journalist' given in S. 2(f) of the Working Journalists Act. 1955, and contended that there is nothing in the definition to exclude a Law Reporter or a writer of features on legal topics. True it is that 'Working Journalist' defined in the Act means a person whose principal avocation is that of a journalist and includes an editor, a leader-writer, news-editor, sub-editor, features-writer, copy-tester, reporter, correspondent, cartoonist, news-photographer and proofreader, but the question whether a particular publication is a newspaper and whether a particular establishment is a newspaper establishment, to which the Working Journalists Act is applicable, cannot be determined on the basis of this definition. The Act is applicable to all employees who come within the definition of 'Working Journalist' only if the establishment which employs them is a newspaper establishment.
Hence, simply because an establishment which publishes law reports employs persons belonging to the categories mentioned in the definition of 'Working Journalist', it does not necessary become a newspaper establishment.
22. As mentioned above, All India Reporter and Criminal Law Journal were registered as newspapers in 1937 (1957) under the Press and Registration of Books Act, 1867, long before the said enactment was amended by Act No. 55 of 1955 consistent with the passing of the Working Journalists Act, 1955. Before this amendment, which introduced Part V-A relating to registration of newspapers, it was not compulsory to register a newspaper and what S. 5 of the Press and Registration of Books Act, as it stood before the above-mentioned amendment, contemplated was a declaration in the form mentioned in Sub s. (2) of S. 5. All India Reporter and Criminal Law Journal were, however, registered as newspapers in 1937 (1957) and the other periodicals were registered as and when they were acquired. The declaration contemplated by S. 5 of the Press and Registration of Books of Act was made by the petitioner as far back as on 6th May, 1948. It is also an admitted fact that the periodicals published by the petitioner are registered as newspapers under S. 9 of the Indian Post Office Act and are provided with the facility of being transmitted by post as 'registered newspapers' as contemplated by sub-rule (1) of Rule 30 of the Indian Post Officer Rules, 1933. Clause (a) of sub-rule (1) of Rule 30 requires that the newspapers shall have to be registered in the officer of the Post Master General or the officer exercising powers of the Post Master General of the Postal Circle in which the newspaper is published. Sub-rule (2) contemplates that an application for the first registration of a newspaper for the purpose of cl. (a) of sub-rule (1) shall inter alia be accompanied by a certificate from the District Presidency or Sub-Divisional Officer concerned that a declaration required by S. 5 of the Press and Registration of Books Act has been made or that no such declaration is required as the publication is not a newspaper. In view of these admitted facts, it was urged on behalf of the respondents that the petitioner is estopped from contending that it is not a newspaper. It is difficult to accept his submission, firstly because no plea of estoppel is raised by the respondents in their return. Secondly, there is no dispute as to what the publications published by the petitioner contain. Ordinarily the question whether a periodical is a newspaper or not is a mixed question of fact and law, the factual position being the nature of the contents of the publication. Once, the position of fact is established or admitted the question whether the publication is a newspaper within the meaning off the relevant statute ceases to be a mixed question of law and fact and reduced to a question of application of law to be decided on the basis of relevant definition of 'newspaper'. When the facts are fully set out and admitted, a party's opinion about the legal effect of those facts if of no consequence, and no estoppel arises, by reason of admission of the party as to such effect. (See Kalidas v. State of Bombay [1954-II L.L.J. 696].
23. It is also not disputed that the petitioner has not derived any special benefit by registering itself as a newspaper under the Press and Registration of Books Act, 1867. The petitioner never obtained any news-print quota from the Government nor claimed the exemption available on import of newspaper machinery. Moreover, the benefit derived by way of concession in postage by registering the periodicals as newspapers under the Indian Post Office Act ensures to the benefit of the subscribers because the price is exclusive of postage, which has to be borne by the subscriber. Hence, the admission on the part of the petitioner would not foreclose the plea that the establishment publishing law reports is not a newspaper within the meaning of the Working Journalists Act.
24. In support of the plea of estoppel, reliance was sought to be placed on the decision in the Letters Patent Appeal against the order of Ismail J., in the case of Madras Law Journal, referred to above. In that appeal, the Division Bench held that it was not open to the Madras Law Journal to contend that their publications are not newspapers within the meaning of S. 2(b) of the Working Journalists Act and refused to go into the question on merits. It is, however, pertinent to note that the Madras Law Journal, which published other periodicals also, submitted to the jurisdiction of the Wage Board constituted under the Working Journalists Act, had submitted replies to the questionaire issued by the Wage Board that the publications of the Madras Law Journal were not newspapers. It was also pointed out to the learned Judges that the Madras Law Journal by representing that they were a newspaper had obtained certain facilities. No facility of any kind was obtained by the All India Reporter by registering its publications as newspapers under the Press and Registration of Books Act. No notice was issued to the petitioner by the Wage Board constituted under the Working Journalists Act and the petitioner did not file any reply to the questionaire nor submitted to the jurisdiction of the Wage Board in any other manner. It is, therefore, difficult to accept the submission made on behalf of the respondents that in view of the conduct of the petitioner in voluntarily registering its publications as newspapers, the petitioner is estopped from contending that its publications are not newspapers within the meaning of S. 2(b) of the Working Journalist Act. We are also told and the position is not disputed that except Madras Law Journal, no other law report in this country was noticed by the Wage Board for working journalists. No other law reports submitted to the jurisdiction of the Wage Board. This position can be seen from the Annexures to the Palekar Award.
25. Shri Paliwal, who appeared for other Intervener, the Indian Federation of Working Journalists, relying on a pamphlet published by the All India Reporter in 1946 tried to contend that as the All India Reporter is a partner of the Madras Law Journal, which by virtue of the above referred decision is held to be a newspaper within the meaning of the Working Journalists Act, the publications of All India Reporter will have to be deemed to be newspapers within the meaning of the said Act. It is, however, pertinent to note that what was said in the pamphlet was that All India Reporter was a partner in the business of the Madras Law Journal only relating to the publication of Law Digests. Much, therefore, cannot be made of the fact that some years ago All India Reporter represented to be a partner of Madras Law Journal. We have, therefore, no hesitation in coming to the conclusion that the law reports published by All India Reporter are not newspapers with in the meaning of S. 2(b) of the Working Journalists Act, and the Working Journalist Act is not applicable top the establishment of the petitioner company and its employees.
26. The petition is, therefore, allowed. Rule is made absolute and the letter-cum-order dated 18th November, 1982 (Annexure F) is quashed.
27. No order as to costs.
and who said that it relates to striking out the pleadings under 6/16CPC?
Querist :
Anonymous
(Querist) 21 March 2011
There are many judgments that refers to this judgment. I am not sure the above one is the right one. Below giving the jugment that refers the above. Kindly provide the right one if the above is not correct.
http://indiankanoon.org/doc/56908/
12. A similar view was taken by the Nagpur High Court in All India Reporter v. D.D. Datar A.I.R. 1951 Nag. 412. In that case, the suit was to recover money by way of remuneration alleged to be due to the plaintiff from the defendant. The defendant alleged that the plaintiff had been dismissed and at the same time admitted that the plaintiff's services were terminated by consent. The question arose whether the allegation regarding the alleged dismissal was liable to be struck out. Though the trial Court directed the striking out, in revision it was held that the statement in the written statement that the plaintiff had been dismissed was not inconsistent with the defenant's admission that the plaintiff's services were terminated by consent and that the Court ?cannot ignore the specific plea of a party and deny it the right given by law to defend itself by raising available pleas. In that view, it was held that the order striking out the pleadings was wrong.
