M/s.Living Media India Ltd. v. The Union of India, Ministry of Communications, Department of Post & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16.06.2009PRESENTTHE HONOURABLE MR. JUSTICE S.NAGAMUTHUW.P.No.17113 of 1999M/s.Living Media India Ltd.,rep. by its General Manager-Sales (South),Mr.c.V.Vaidyalingam,No.98-A, Dr.Radhakrishnan Salai,IInd Floor, Mylapore, Chennai 600 004..... PetitionerVs.1.The Union of India, Ministry of Communications, Department of Post, Dak Bhavan, Sansad Marg, New Delhi 110 001.2.The Chief Postmaster-General, Tamil Nadu Circle, Mount Road, Chennai 600 002.... RespondentsPetition filed under Article 226 of the Constitution ofIndia, for issuance of a Writ of Declaration, declaring that theNote to Rule 30 of Indian Post Office Rules,1933 is ultra vires theSections 7, 9(3) and the First Schedule of The Post Office Act,1898 is and invalid insofar as the petitioner is concerned.For petitioner: Mr.P.Subba ReddyFor respondent (s): Mr.K.Ravindranath, S.C.G.C. SCGC for RR 1 and 2ORDERChallenge in this writ petition is to the validity of thenote appeared to Rule 30 of the Indian Post Office Rules, 1933issued by the Union of India in exercise of the powers conferred bythe Indian Post Office Act, 1898.2. The petitioner is a Company, which publishes variousmagazines and periodicals such as, India Today International, IndiaToday - English, India Today - Hindi, India Today - Gujarathi,India Today - Tamil, India Today - Telugu, India Today - Malayalam, https://hcservices.ecourts.gov.in/hcservices/ Business Today, Computers Today, Teens Today, Cosmopolitan andJournal of Applied Medicine. The above publications, according tothe petitioner, have been registered as newspapers as per Section9 of the Indian Post Office Act, 1898 (hereinafter referred to as"the Act"). Under Section 7 of the Act, the Central Government hasbeen empowered to issue Notification in the Official Gazette tofix rates of inland postage and other sums to be charged inrespect of postal articles sent by the inland post under this Act,and to make rules as to the scale of weights, terms and conditionssubject to which the rates so fixed shall be charged. It furtherproceeds to say, "provided that the highest rate of postage,when prepaid, shall not exceed the rate set forth for each class ofpostal articles in the First Schedule."3. Sub-section (2) to Section 7 of the Act states " Unlessand until such notification as aforesaid is issued, the rates setforth in the said Schedule shall be the rates chargeable underthis Act."4. Sub-section (3) to Section 7 reads as follows:- "The Central Government may, by notification inthe Official Gazette, declare what packets may besent by the inland post as book, pattern andsample packets within the meaning of this Act."5. The First Schedule to the Act prescribes the rates forLetters, Letter-cards, Post-cards, Book, Pattern and samplepackets, Registered newspapers and Parcels. 6. In exercise of the power conferred under the Act, theGovernment of India has issued the Indian Post Office Rules, 1933wherein the rates of postage chargeable on postal articles wherethe postage is prepaid, have been provided for.7. Rule 30 of the Indian Post Office Rule, 1933 deals withnewspapers, which inter alia states that a newspaper as defined inSection 9 of the Act and complying with the conditions specifiedshall be transmitted by post as registered newspaper from the placeof publication thereof and may also be so transmitted from anyother place with the permission in writing of the Postmaster-General or Office exercising the powers of the Postmaster-Generalof the Postal Circle in which such other place is situated.8. The Note appended to the above provision, which is underchallenge in this writ petition is to the following effect:"Note - Any newspaper in which a document ofthe following descriptions is enclosed as asupplement shall be treated as a book packet:-(i) an advertisement sheet printed for anadvertiser and sent to the publisher of newspaperfor distribution with it; https://hcservices.ecourts.gov.in/hcservices/ (ii) an advertisement sheet with an orderform attached a prospectus with an application fromattached or a proposal or enquiry form;(iii) any document drawn up in the form of adirect personal communication to the recipient suchas a printed circular in the form of a letterpurporting to be addressed to a person by whom thenewspaper in which it is enclosed is received." 9. It is contended that the aforesaid note appended to theSub rule (1) of the Rule 30 is repugnant to Section 7 and 9 of theAct. According to the learned counsel for the petitioner, anewspaper registered under Section 9 of the Act is sought to betreated as a book packet and charged with more postal charge as perthe impugned note, which is ultravires of the Act. 10. The learned standing counsel for the respondents wouldsubmit that the Rule 30, more particularly, the note appended SubRule (1) thereto does not infringe either Section 7 or Section 9of the Act.11. I have carefully heard the rival submissions.12. In order to find out a solution to the issue raised inthis case, as to whether the note under challenge is repugnant toSections 7 & 9 of the Act, one has to make a cursory comparisonof the above provisions, which would clearly establish that thereis an infringement as rightly pointed out by the learned counselfor the petitioner. In the definition contained in Section 2 of theAct, neither the term "newspaper" nor the term " book packet"has been defined. However, in Section 9 of the Act, it is providedthat the Government of India has got power to issue rule for thepurposes of registering a newspaper and for postage stamp. Thereis no controversy at all that such a rule has been issued by theGovernment of India and in accordance with the rule, thepetitioner's publication has been registered as a newspaper. Ifonce, the publication has been registered as newspaper, thenpostage should be collected strictly either in accordance with thepostage prescribed for a registered newspaper under the FirstSchedule or in accordance with the rule to be issued for such aregistered newspaper as per Section 7 of the Act. The Actclearly indicates that a newspaper shall be charged with postagefor newspaper, irrespective of the fact whether it is in the bookform or in the paper form. But, the note appended to Rule 30states that certain descriptions of documents if enclosed as asupplement to a newspaper, the same shall be treated as bookpacket. Thus, in my firm view, the above note is contrary to theFirst Schedule and Section 7 of the Act. So long as thepetitioner's publications have been registered as newspaper, theyare to be treated for the practical purpose of postage stamp, onlyas newspapers and not as book packets. If it is the case of thepostal authorities that though the petitioner's publications are https://hcservices.ecourts.gov.in/hcservices/ newspapers as registered, but they are only books and they do notsatisfy the description of a newspaper as per the Act and theRules, nothing would prevent the postal authorities to cancel theregistration of all those publications as newspapers and then tocollect necessary postage treating them as book packets. Thus, theinconsistency is so obvious. It is a well-recognised principle ofinterpretation of statutes that if the rules framed under thestatutes are in excess of the provisions of the statute or incontravention of or inconsistent with such provisions, thus theseprovisions must be regarded as ultra vires of the statute andcannot be given effect to. The rule is, therefore, ultra viresSection 7 of the Act and First Schedule to the Act. Thus, the sameis liable to be struck down.13. In the result, the note appended to sub Rule (1) toRule 30 of the Indian Post Office Rules, 1933 is struck down. Thewrit petition stands accordingly allowed. No costs.kmk Sd/- Asst. Registrar /True Copy/ Sub Asst.Registrar To1.The Ministry of Communications, Department of Post, Dak Bhavan, Sansad Marg, New Delhi 110 001.2.The Chief Postmaster-General, Tamil Nadu Circle, Mount Road, Chennai 600 002.+ 1 cc to Mr.P.Subba Reddy, SR.23902+ 1 cc to Mr.K.Ravindranath, SR.23657W.P.No.17113 of 1999 MRD(CO)GS/13/07/09