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TMI Blog2003 (7) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the Firm in shares to the extent of 25%, 30%, 30% and 15% respectively. Prior to the constitution of the Firm, a newspaper known as 'Dainik Bhaskar' was being published by Dwarka Prasad Agarwal and his name was recorded in the Registrar of Newspapers for India (for short 'RNI'). The said Dwarka Prasad Agarwal was the karta of a larger HUF consisting of himself and his partners. He had two wives, namely, Kasturidevi and Kishoridevi. Allegedly, the firm transferred the business of publication of Dainik Bhaskar at Gwalior to a newly incorporated company, M/s. Bhaskar Publication and Allied Industries Pvt. Ltd. of which Dwarka Prasad Agarwal was the lifetime Managing Director and Chairman and therein Bishambhar Dayal Agarwal and his son, Ramesh Chandra Agarwal were shareholders and directors. A printing press of which Dwarka Prasad Agarwal was the owner is said to have been transferred to the said company for the purpose of printing of the aforementioned newspaper. According to the appellants, in the Annual Reports of the RNI, the name of the said firm was shown as the owner of the said newspaper. It is not disputed that in the year 1982, Dwarka Prasad Agarwal suffered from a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed thereupon by the said authority on 3.12.91 filed a writ petition before the Madhya Pradesh High Court. Dwarka Prasad Agarwal was made a proforma respondent herein. The said writ petition was marked as MP No. 802 of 1992 wherein the following reliefs were claimed: "(i) That the Hon'ble Court be pleased to declare by an appropriate writ, order or direction that the power conferred on the District Magistrate/ Additional District Magistrate under Section 4 and 6 of the Press and Registration of Books Act, 1867, in case of declarations submitted for same or similar titles as ultra vires to the petitioner's right under Article 14, 19(1)(a) and (g) of the Constitution of India. (ii) That the Hon'ble Court be further pleased to declare by an appropriate writ that if a power is conferred on District Magistrate/ Additional District Magistrate to grant declaration of title of same or similar nature, such a power cannot be exercised by the District Magistrate/ Additional District Magistrate till an Appellate Authority is constituted to be able to oversee and review the exercise of powers by the District Magistrate/ Additional District Magistrate. The non-provision of Appellate power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious courts and bodies and the writ petition be disposed of in terms of the said purported comprehensive agreement. The said settlement was accepted and the writ petition was disposed of in terms thereof on 29.6.1992 which was also the date of filing of the compromise memo. The said order dated 29.6.92 is the subject matter of Civil Appeal No. 4782 of 1996. Pursuant to or in furtherance of the said purported compromise, RNI altered the name of owner of title Dainik Bhaskar in his Register from the Firm to M/s. Writers on or about 3.9.1992 stating: "This is to state that in accordance with the notice issued on the above subject in the matter of ownership of Dainik Bhaskar, as per the decision in Case No. 1182/92 dated 29.6.92 of the High Court of Madhya Pradesh, at Jabalpur and agreement dated 19.6.92 M/s. Writer & Publishers Pvt. Ltd., Bhopal, has become the owner of Dainik Bhaskar. You are, therefore, requested that if you have any objection to this decision then you may approach the High Court at Jabalpur." Dwarka Prasad Agarwal having come to learn the said order of RNI dated 3.9.1992 filed an application for review of the order dated 29.6.1992 passed by the High Court which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and further orders as may be deemed fit and proper in the facts and circumstances of the case." Dwarka Prasad Agarwal died during the pendency of these proceedings. Both the wives of the said Dwarka Prasad Agarwal applied for substitution of their names in place of the deceased. The rival contentions on substitution by the two wives of Late Dwarka Prasad Agarwal came to be considered by this Court. Kishori Devi pressed her application. Kasturi Devi, however, was not sure that, she, having regard to her stand taken in the litigation, would be able to defend the action on behalf of her husband. Upon consideration of the said question, this Court directed Kasturi Devi to be impleaded as a respondent in the proceeding whereas Kishori Devi and her daughters Hemlata and Anuradha were directed to be substituted in place of Late Dwarka Prasad Agarwal. While passing the said order, however, an observation was made that the said question shall be finally decided at the time of hearing. We may, however notice that in the said proceedings for substitution, Ramesh Chandra Agarwal filed a counter affidavit calling Smt. Kishori Devi a concubine of Dwarka Prasad Agarwal. Keeping in view the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter the observations made by the High Court that the agreement was not opposed on behalf of the parties must held to be per se unreasonable and unjustified. Our attention, in this regard, has been drawn to various disputed factual aspects of the matter for the purpose of showing that several misrepresentation of fact had been made in the aforementioned agreement of settlement and the application dated 29.6.92 filed for recording the compromise before the High Court. The learned counsel would further contend that the compromise was, in any event, not lawful as thereby right of ownership of an existing title in newspaper was sought to be determined in violation of Section 19B, the proviso appended to Section 6 and Section 8B (ii) of the Press and Registration of Books Act, 1867 as in terms thereof the authorities were under a statutory obligation to preserve and protect the right of the firm as regard ownership of title Dainik Bhaskar and to prevent any person from using the same without the authorization of the firm. The goodwill of a firm, the learned counsel would urge, would also be a subject matter of division of assets of partnership firm irrespective of the fact as to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ka Prasad Agarwal had acquired various rights coupled with the common law right as a partner of the partnership firm which could not have been taken away only with his consent or by operation of law. According to the learned counsel, in terms of the provisions of the said Act, it is one thing to say that somebody is the owner of the title in relation to the newspaper in question and it is another thing that somebody is the printer and publisher thereof. As regard maintainability of the writ petition, Mr. Gupta vehemently urged that the cause of action therefor had arisen in view of illegal action on the part of the official respondents resulting from misuse of judicial process. He would urge that publication of a newspaper is a fundamental right in terms of Article 19(1) of the Constitution of India and as the action of the official respondents directly resulted in infringement of the right of the said writ petitioners. Reliance, in this connection, has been placed on Express Newspapers Pvt. Ltd. Vs. Union of India and Others [1986) 1 SCC 133] and Jhumman Singh and Others Vs. Central Board of Investigation and Others [(1995) 3 SCC 420]. Dr. A.M. Singhvi, learned senior counsel ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the prayers contained in clauses (1) and (2) thereof, there cannot be any doubt whatsoever that the writ petition before the High Court was maintainable and only because at a later stage the private dispute between the parties was resolved, the same by itself would not lead to a conclusion that the writ petition ceased to be so. Mr. Rao would submit that legality or otherwise of the said compromise cannot be held to have been questioned by Late Dwarka Prasad Agarwal as no illegality in relation thereto was pointed out by anybody. Mr. Shanti Bhushan, learned Senior Counsel appearing on behalf of Mahesh Agarwal, however, conceded that the order dated 29.6.1992 of the High Court based on compromise must be set aside and consequently prayer (a) in the writ petition may also be granted. However, according to the learned counsel the petitioner is not entitled to any other relief. Several questions of importance, as noticed hereinbefore, have arisen for consideration in these appeals and the writ petition. A writ petition is filed in public law remedy. The High Court while exercising a power of judicial review is concerned with illegality, irrationality and procedural improp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s furthermore required to apply its own mind for the purpose of arriving at a finding as to whether it, in public law remedy, could record the compromise and dispose of the said writ petition in terms thereof. The order dated 29.6.1992 passed in M.P. No.280 of 1992 was purported to have been clarified by the High Court in its order dated 13.11.1992 in the review petition being MCC No. 477 of 1977. The said order clearly demonstrates a total non-application of mind on the part of the High Court. Several issues of grave importance were required to be addressed by the High Court. The High Court sought to take a short cut in holding that the said compromise was not binding upon Dwarka Prasad Agarwal and thereby no writ was issued. The consequence of recording of the said compromise was tell-tale. Not only pursuant thereto or in furtherance thereof the Registrar of Newspapers, New Delhi, passed an order dated 3.9.1992; it was construed to be a judgment of the High Court which had been taken aid of by the respondents herein for the purpose of withdrawal of suits wherein various disputed questions of facts and law including the genuineness or otherwise of the agreements were in question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the obligations and liabilities incurred by them under orders of the court - the rule of law will certainly become a casualty in the process - a costly consequence to be zealously averted by all and at any rate by the highest courts in the States in the country. It does not, in our view, require any extraordinary exercise to hold that the memorandum and terms of the compromise in this case became part of the orders of the High Court itself when the earlier writ petition was finally disposed of on 13-2-1991 in the terms noticed supra, notwithstanding that there was no verbatim reproduction of the same in the order. The orders passed in this regard admit of no doubt or give any scope for controversy. While so, it is beyond one's comprehension as to how it could have been viewed as a matter of mere contract between the parties and under that pretext absolve itself of the responsibility to enforce it, except by doing violence to the terms thereof in letter and spirit. As long as the earlier order dated 13-2-1991 stood, it was not permissible to go behind the same to ascertain the substance of it or nature of compliance when the manner, mode and place of compliance had already been sti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... renching upon the jurisdiction of the civil court indirectly which it could not do directly. For the purpose of granting permission even for withdrawal of suit in terms of Order 23, Rule 1 of the Code of Civil Procedure, the civil courts themselves were required to apply their mind as to whether having regard to the dispute between the parties, a case therefor has been made out or not. The civil court is required to act on its own and not on the basis of any direction of any other court determining a totally foreign issue. Furthermore, a writ court can pass an effective order provided it has jurisdiction in relation thereto. With the enlargement of the power of the court recording compromise in view of the Code of Civil Procedure (Amendment) Act, 1976, the responsibility and duty of the court also has increased. By reason of Order 23, Rule 3 of the Code of Civil Procedure, a party can challenge the legality of the compromise only before the same court and in that view of the matter the court was enjoined with a solemn duty to decide such controversy in a lawful manner. A question as to whether a compromise is void or voidable under the Indian Contract Act or any other law for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, hasten to add that as at present advised we do not intend to enter into the contention of the petitioners that their fundamental right under Article 19 of the Constitution of India had been infringed. This Court would have entered into the question, if the facts were undisputed or admitted. The question as regard infringement of fundamental right and that too under Article 19 of the Constitution of India cannot be gone into when the facts are disputed. Whether Dwarka Prasad Agarwal and consequently the substituted petitioners are owners of the newspapers and if so to what extent being disputed, it cannot be said, that by reason of the impugned order dated 3.9.1992 passed by the first respondent herein alone, the fundamental right of the petitioners under Article 19 had been infringed. We are, therefore, of the opinion that the interest of justice would be sub-served if the appeals and the writ petition are allowed and the impugned orders dated 26.9.1992 and 13.11.1992 passed by the High Court as also the order dated 3.9.1992 passed by the first Respondent, Registrar, Newspapers for India, are quashed. All action taken and all orders passed by the statutory authorites and the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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