Case: Railway Board, Government of India Vs. M/s. Observer Publications Private Limited

publication. It appears that the aforesaid clause has reference to a prohibition imposed by the Central Government under some enactment other than the Act.12. It is not claimed that the Railway Board could impose a ban under any other enactment. Nor has it been suggested that the Central Government had passed any order prohibiting the sale of the Indian Observer under any statutory provision.13. Even on the assumption that the Board could make such an order as is contemplated by sub-clause (v) of clause 742 it cannot take any advantage of that provision because in the letter dated March 26, 1965 it was nowhere stated that the publication of the news weekly was being banned on the ground of obscenity. It is thus apparent that the High Court was fully justified in taking the view that the "Indian Observer" had been singled out for being banned and this clearly amounted to a discriminatory treatment.14. The question that has next to be resolved is whether Art. 14 could be invoked by the respondent in the present case. It has not been and indeed cannot be disputed that the Railway Board will fall within the definition of "State" as given in Art. 12 of the Constitution. The learned Solicitor General has relied on Railway Board v. Niranjan Singh, (1969) 3 SCR 548 = (AIR 1969 SC 966 ).It was laid down that there was no fundamental right under Art. 19 (1) for anyone to hold meetings in Government premises. The Northern Railway was the owner of the premises and was entitled to enjoy its property in the same manner as any private individual, subject to any such restrictions as the law or the usage placed on them. We are unable to appreciate how the ratio of that decision could be applied to the present case. The meetings of workers which had taken place there had been held inside workshops, stores and depots and within office compounds. Railway platforms may be the property of the railways, but it cannot be disputed that every bona fide traveller or every other member of the public who buys a platform ticket can have access to the railway platforms. It is true that under Rule 15 of the General Statutory Rules and Orders, a railway administration may exclude and, if necessary, remove from the station platform or any part of the railway premises any person who is not a bona fide passenger and who does not have any business connected with the railway or any person who having arrived at a station by train and having no business connected with the railway refuses to leave the railway premises when required to do so. But that is a right which is reserved for being exercised only in the circumstances mentioned in the rule. There is no analogy between a station platform and a government office. Even otherwise the crux of the matter is that the respondent is not seeking to use the station platform or any part of the railway premises by sending any of its own representatives to hawk or sell the news weekly there. All that the respondent says is that the railway administration has itself directed that the book-stall contractors who were its licensees should provide equal opportunity to all the popular newspapers for sale in their stalls. These very contractors are now being directed to discriminate between the respondent and owners or publishers of other popular newspapers on grounds which have no legal basis or justification. The administrative act or order of the Railway Board can, therefore, be challenged under Art. 14. The respondent is not asking for the enforcement of any such fundamental right as would come within the rule laid down in the previous decision of this Court. In other words what the present respondent is challenging is the order of the Railway Board which led to the stoppage of the sale of the news weekly on the Railway platforms etc. If that order is discriminatory and cannot be justified on any of the well known grounds, the respondent can challenge it in a petition under Art. 226 of the Constitution as violative of Art. 14. There is no parallel between the facts of this case and the decision relied upon by the learned Solicitor General. We concur with the view of the High Court that the impugned order of the Railway Board was discriminatory. No proper or valid grounds have been shown for sustaining the discrimination made.15. A certain amount of discussion took place before us with regard to the applicability of S. 28 of the Act which contains prohibition against undue preference being shown by the Railway Administration in any respect whatsoever. In the view that we have taken about the applicability of Article 14 we do not consider it necessary to decide whether the respondent could take advantage of the provisions of that section.16. Lastly, we may refer to a preliminary objection which was raised on behalf of the respondent to the certificate which was granted by the High Court. It has been urged that the certificate is defective because in the order dated July 7, 1968 granting it the Bench has virtually given a decision as if any appeal was being entertained against the judgment dated August 11, 1965 by which the writ petition was allowed. It does appear that Deshpande J., who delivered the order of the Division Bench granting the certificate has made certain observations which seem to suggest that the previous decision was incorrect. Although such an order will not per se vitiate the certificate, both judicial propriety and decorum demand that a Bench while considering the question of granting a certificate for appeal to this Court ought not to be critical of or express any dissent from the judgment appealed against because it has no such jurisdiction and all that it has to decide is whether the requirement of the Articles of the Constitution on which a certificate can be granted, have been satisfied.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]High Court had found as a fact that publications which were freely on sale on the bookstalls to whom licences had been given were such that they were hardly distinguishable from the "Indian Observer" on the ground of obscenity. It was not disputed before the High Court that the news weekly in question had been sold on railway platforms since 1963 nor was it suggested that the Railway Board had ever accorded individual sanction for the sale of every single book and publication at the book stalls of the Railway Administration.11. Now in the Indian Railway Code the policy or the principle laid down in categorical terms in sub-clause (viii) of Clause 742 is that the contractor should provide equal opportunity to all the popular newspapers for sale in their stalls on the same terms. This was subject to certain conditions, one of which was that the sale of obscene books and pictures and publications prohibited by the Government should be strictly banned. (vide sub-clause v). The letter written by the railway itself to which a reference has been made, does not impose the ban on the ground that the "Indian Observer" is an obscene publication which has been prohibited by the Government. In that letter there was first a recital of what had come to the Boards notice i.e. that the articles written in the said news weekly were in very low taste bordering on obscenity. There was no finding or decision that it was a publication which was obscene. The conclusion of the Board simply was that the "Indian Observer" was not fit for sale at the Railway stations. The other condition laid down in sub-clause (v) that its sale had been prohibited by the Government was neither mentioned nor has it been shown that any such order had been made by the Government prohibiting the sale of the "Indian Observer" on the ground that it is obscene. The learned Solicitor General contends that the word Government in sub-clause (v) means the Railway Board because according to S. 2 of the Indian Railway Board Act. 1905, Central Government may by notification in the official gazette invest the Railway Board either absolutely or subject to conditions with all or any of the power or functions of the Central Government under the Act. Our attention has not been drawn to any provision in the Act or the Rules framed thereunder by which the Central Government can prohibit the sale of any obscene book, picture or publication. It appears that the aforesaid clause has reference to a prohibition imposed by the Central Government under some enactment other than the Act.12. It is not claimed that the Railway Board could impose a ban under any other enactment. Nor has it been suggested that the Central Government had passed any order prohibiting the sale of the Indian Observer under any statutory provision.13. Even on the assumption that the Board could make such an order as is contemplated by sub-clause (v) of clause 742 it cannot take any advantage of that provision because in the letter dated March 26, 1965 it was nowhere stated that the publication of the news weekly was being banned on the ground of obscenity. It is thus apparent that the High Court was fully justified in taking the view that the "Indian Observer" had been singled out for being banned and this clearly amounted to a discriminatorywas laid down that there was no fundamental right under Art. 19 (1) for anyone to hold meetings in Government premises. The Northern Railway was the owner of the premises and was entitled to enjoy its property in the same manner as any private individual, subject to any such restrictions as the law or the usage placed on them. We are unable to appreciate how the ratio of that decision could be applied to the present case. The meetings of workers which had taken place there had been held inside workshops, stores and depots and within office compounds. Railway platforms may be the property of the railways, but it cannot be disputed that every bona fide traveller or every other member of the public who buys a platform ticket can have access to the railway platforms. It is true that under Rule 15 of the General Statutory Rules and Orders, a railway administration may exclude and, if necessary, remove from the station platform or any part of the railway premises any person who is not a bona fide passenger and who does not have any business connected with the railway or any person who having arrived at a station by train and having no business connected with the railway refuses to leave the railway premises when required to do so. But that is a right which is reserved for being exercised only in the circumstances mentioned in the rule. There is no analogy between a station platform and a government office. Even otherwise the crux of the matter is that the respondent is not seeking to use the station platform or any part of the railway premises by sending any of its own representatives to hawk or sell the news weekly there. All that the respondent says is that the railway administration has itself directed that the book-stall contractors who were its licensees should provide equal opportunity to all the popular newspapers for sale in their stalls. These very contractors are now being directed to discriminate between the respondent and owners or publishers of other popular newspapers on grounds which have no legal basis or justification. The administrative act or order of the Railway Board can, therefore, be challenged under Art. 14. The respondent is not asking for the enforcement of any such fundamental right as would come within the rule laid down in the previous decision of this Court. In other words what the present respondent is challenging is the order of the Railway Board which led to the stoppage of the sale of the news weekly on the Railway platforms etc. If that order is discriminatory and cannot be justified on any of the well known grounds, the respondent can challenge it in a petition under Art. 226 of the Constitution as violative of Art. 14. There is no parallel between the facts of this case and the decision relied upon by the learned Solicitor General. We concur with the view of the High Court that the impugned order of the Railway Board was discriminatory. No proper or valid grounds have been shown for sustaining the discriminationdoes appear that Deshpande J., who delivered the order of the Division Bench granting the certificate has made certain observations which seem to suggest that the previous decision was incorrect. Although such an order will not per se vitiate the certificate, both judicial propriety and decorum demand that a Bench while considering the question of granting a certificate for appeal to this Court ought not to be critical of or express any dissent from the judgment appealed against because it has no such jurisdiction and all that it has to decide is whether the requirement of the Articles of the Constitution on which a certificate can be granted, have been satisfied.