9911796707
TMI Blog2002 (11) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - - - - - Dated:- 1-11-2002 - Judge(s) : V. N. KHARE., S. B. SINHA JUDGMENT The judgment of the court was delivered by S. B. SINHA J.-By reason of this petition under article 32 of the Constitution of India, the writ petitioners herein have questioned the validity of an order dated September 24, 1991, as also one dated October 16, 1991, issued by the Special Secretary, Government of Uttar Pradesh, Lucknow, whereby and whereunder a direction had been issued to the effect that at the time of payment of bills for publication of Government advertisements in all newspapers having a circulation of more than 25,000 copies, 5 percent of the amount thereof, forming part of a fund for the purpose of granting pension to the working journalists, would be deducted. Petitioner No. 1 herein is a company incorporated under the Companies Act and is engaged in the bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me for Full-time journalists" etc.; the relevant portions whereof are as under: "(1) This scheme will be for full time working journalists group scheme. In this no individual policy will be issued. Life Insurance Corporation will issue one policy in favour of Director of Information. (2) The scheme will be voluntary.... This will be sharing scheme in which 50 percent of the amount will be taken from member journalists and the remaining 50 percent will be deposited by the State Government. The amount of contribution on the basis of average will be divided into the following three categories . . . 2. The following journalists will be entitled to adopt the said scheme (1) These working journalists who are regularly working for at least five years in newspapers agencies in Uttar Pradesh. The circulation of such newspapers should be at least 10,000. (2) Those workers who are covered by the definition of journalist and are in full time service.... (5) If any journalist after paying instalment for continuous ten years in Uttar Pradesh under the pension scheme is transferred to other States then he can voluntarily continue this scheme and continue to contribute the ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract. The benefits sought to be granted to the working journalists, indisputably, is covered by entry 92 of the Seventh Schedule of the Constitution, which reads thus: "92. Taxes on the sale or purchase of newspapers and on advertisements published therein." Parliament, as noticed hereinbefore, enacted the said Act. It is also not in dispute that the matter relating to grant of benefits under the said Act, is subject matter of various reports/awards of wage boards including the Bachawat Award wherein the matter relating to payment of pension to the working journalists was considered in the following terms: "Pension: 6.89. Pension constitutes an important element of wages and its importance as a social security measure is well recognised the world over, Indeed, the Committee on Fair Wages (1949) categorically mentioned that living wages should enable the worker to provide for important misfortunes, including old age. The Directive Principles of State Policy enshrined in the Constitution and the Supreme Court verdicts fully support the position. 6.90. Though, on stricto sensu construction of the definition of the term 'wages' in section 2(rr) of the Industrial D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tters contained in the lists. As noticed hereinbefore, the State of Uttar Pradesh intended to make a legislation covering the same field but even if the same was to be made, it would have been subject to the Parliamentary legislation unless assent of the President of India was obtained in that behalf. The State executive was, thus, denuded of any power in respect of a matter with respect whereto Parliament has power to make laws, as its competence was limited only to the matters with respect to which the Legislature of the State has the requisite legislative competence. Even assuming that the matter relating to the welfare of the working journalists is a field which falls within entry 24 of the Concurrent Lists, unless and until a legislation is made and assent of the President is obtained, the provisions of 1955 Act and the Working Journalists (Fixation of Rates and Wages) Act, 1958, would have prevailed over the State enactment. Thus, the directive of the State to the effect that five percent of the amount to be deducted on the amount payable for publication of Government advertisements in all newspapers having a circulation of more than 25,000 copies, would be part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot the case of the respondents that the petitioners herein have not been discharging their statutory obligations in the matter of payment of retiral benefits to the working journalists working in their own establishment in terms of the provision of the Central Acts as well as in terms of the Bachawat Award. The term "taxation" has been defined in article 366(28) of the Constitution of India in the following terms: "(28) 'taxation' includes the imposition of any tax or impost, whether general or local or special, and 'tax' shall be construed accordingly;" The impost by reason of the impugned orders may come within the purview of the aforesaid definition. (see Corporation of Calcutta v. Liberty Cinema, AIR 1965 SC 1107 ; Hoechst Pharmaceuticals Ltd. v. State of Bihar [1985] 154 ITR 64 ; [1983] 4 SCC 45 and Gasket Radiators P. Ltd. v. E. S. I. Corporation [1985] 66 FJR 403 (SC); [1985] 2 SCC 68). The question which is required to be posed and answered is as to whether the petitioners herein can be directed to bear the burden although they have no statutory liability in this behalf. We may at this juncture notice that a Constitution Bench of this court in Koluthara Exports L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no scope of implied authority for imposition of such tax or fee. It appears to us that the delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power . . ." The contention of Shri Verma, learned counsel appearing on behalf of the respondents to the effect that the petitioners are at liberty not to accept any advertisements issued by the respondents, may now be examined. The newspapers serve as a medium of exercise of freedom of speech. The right of its shareholders to have a free press is a fundamental right. In Sakal Papers (P.) Ltd. v. Union of India, AIR 1962 SC 305, this court held as follows: "34. We would consider this matter in another way also. The advertisement revenue of a newspaper is proportionate to its circulation. Thus the higher the circulation of a newspaper the larger would be its advertisement revenue. So if a newspaper with a high circulation were to raise its price its circulation would go down and this in turn would bring down also the advertise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sements which are to be published and circulated. The law which lays excessive and prohibitive burden which would restrict the circulation of a newspaper will not be saved by article 19(2). If the area of advertisement is restricted, price of paper goes up. If the price goes up circulation will go down. This was held in Sakal Paper's case, AIR 1962 SC 305, to be the direct consequence of curtailment of advertisement. The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons has been held by this court to be an integral part of the freedom of speech and expression. This freedom is violated by placing restraints upon it or by placing restraints upon something which is an essential part of that freedom. A restraint on the number of pages, a restraint on circulation and a restraint on advertisements would affect the fundamental rights under article 19(1)(a) on the aspects of propagation, publication and circulation... 43. The various provisions of the newsprint import policy have been examined to indicate as to how the petitioners' fundamental rights have been infringed by the restrictions on page limit, prohibition against new news papers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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