2002 (11) TMI 88 - SC - Income Tax

Whether the petitioners herein can be directed to bear the burden although they have no statutory liability in this behalf? Held that - The respondents being a State, cannot in view of the equality doctrine contained in article 14 of the Constitution of India, resort to the theory of take it or leave it . The bargaining power of the State and the newspapers in matters of release of advertisements is unequal. Any unjust condition thrust upon the petitioners by the State in such matters, in our considered opinion, would attract the wrath of article 14 of the Constitution of India as also section 23 of the Indian Contract Act. It is trite that the State in all its activities must not act arbitrarily. Equity and good conscience should be at the core of all governmental functions. It is now well settled that every executive action which operates to the prejudice of any person must have the sanction of law. The executive cannot interfere with the rights and liabilities of any person unless the legality thereof is supportable in any court of law. The impugned action of the State does not fulfil the aforementioned criteria. Thus the impugned orders dated September 24, 1991, and October 16, 1991, are unconstitutional and void and must be declared as such.

Summary

Issues Involved:
1. Legality of the impost as a tax or fee.
2. Legislative competence of the State of Uttar Pradesh.
3. Ultra vires nature of the orders under Article 14 of the Constitution of India.

Issue-wise Detailed Analysis:

1. Legality of the Impost as a Tax or Fee:
The petitioners contended that the impost is not leviable either as a tax or as a fee, considering that the legislative field concerning the payment of retiral benefits to working journalists is covered by the Parliamentary Act, namely, the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. The court noted that the benefits sought to be granted to the working journalists are covered by entry 92 of the Seventh Schedule of the Constitution, which pertains to "Taxes on the sale or purchase of newspapers and on advertisements published therein." The court held that the State of Uttar Pradesh's directive to deduct 5 percent from the amount payable for government advertisements in newspapers with a circulation of more than 25,000 copies to fund the retiral benefits of working journalists was beyond the legislative competence of the State.

2. Legislative Competence of the State of Uttar Pradesh:
The State of Uttar Pradesh had no legislative competence to issue the impugned orders under Article 162 of the Constitution or otherwise. The court emphasized that even if the matter relating to the welfare of working journalists falls within entry 24 of the Concurrent List, any State legislation would be subject to the Central legislation unless the President's assent is obtained. The court further noted that the State executive was denuded of any power in respect of a matter with respect to which Parliament has the power to make laws. The court cited previous judgments, such as Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd., to underline that pension and gratuity are well-known measures of social security and cannot be imposed without specific legislative authority.

3. Ultra Vires Nature of the Orders Under Article 14 of the Constitution of India:
The court held that the impugned orders were ultra vires Article 14 of the Constitution of India. The respondents' contention that the petitioners could choose not to accept government advertisements was examined and rejected. The court highlighted that advertisements play a crucial role in the revenue of newspapers and that the State, being in a position of unequal bargaining power, could not impose unjust conditions on the petitioners. The court cited previous judgments, such as Sakal Papers (P.) Ltd. v. Union of India and Bennett Coleman and Co. Ltd. v. Union of India, to emphasize the fundamental right to freedom of speech and expression, which includes the right to publish and circulate newspapers without undue restrictions. The court concluded that the State's action was arbitrary and violated the equality doctrine contained in Article 14 of the Constitution of India.

Conclusion:
The court declared the impugned orders dated September 24, 1991, and October 16, 1991, as unconstitutional and void. The writ petition was allowed, but no order as to costs was made.