Writ Petition No.4076 of 1994

11th August, 2004

Respondent Counsel: Mr. K. Y. MANDALIK

Cases Cited:
Exparte Stilwell, (1923)29 V.L.R. 413 [Para 7]
Commissioner of Sales Tax Vs. M/s. Express Printing Press, AIR 1983 Bombay 190 [Para 9]

JUDGMENT

JUDGMENT :- Petitioners and their advocate are absent.

2. Heard Mr. Mandalik appearing for the respondent Nos.1 to 3.

3. The 1st petitioner is a publisher of a periodical called 'Kalnirnaya' published annually and 2nd petitioner is a sole selling agent of said publication. The 'Kalnirnaya' is published in English, Marathi and several other regional languages. The respondent No.1 Kalyan Municipal Corporation, is a statutory authority constituted under the Bombay Provincial Municipal Corporations Act, 1949 and respondent Nos.2 and 3 are the Officers of the Corporation. By this petition, the petitioners are seeking to challenge the order dated 12th April, 1994 passed by the respondent No.3 declining to grant exemption from octroi duty to the petitioners' publication 'Kalnirnaya' under Schedule-II, Part-I of Maharashtra Municipalities (Octroi) Rules, 1968.

4. It appears that Kalyan Municipal Corporation has not framed any octroi rules and the levy of octroi on the goods and articles is made from 1st April, 1994 under Maharashtra Municipalities (Octroi) Rules, 1968. Under the said Octroi Rules, octroi is leviable at the rate of 1.1/2% on ad valorem value on all books and periodicals except the text books. Schedule-II, Part-I of the Octroi Rules gives the list of goods on which Octroi shall not be payable to any Council. The goods and articles mentioned at S. No.6 in the said Schedule exempts levy of octroi on newspapers, packed examination answer books (except blank or unused answer books), old office records or records still in use excluding waste papers.

5. The petitioners claim that their publication 'Kalnirnaya' has all characteristics of a newspaper and therefore, by its letter dated 30th March, 1994, the petitioner applied to the respondent No.3 for grant of exemption from octroi on the publication 'Kalnirnaya'. The respondent No.3, however, vide his order dated 12th April, 1994, held that 'Kalnirnaya' is a calendar and is not a newspaper and therefore it cannot be exempted from levy of octroi. The legality and validity of this order is questioned by the petitioners in this petition under Article 226 of the Constitution.

6. The question is whether the petitioners' publication 'Kalnirnaya' can be considered as a newspaper. The new Oxford English Dictionary defines a newspaper as a "printed publication issued (usually daily or weekly) consisting of unstappled sheets and containing news, articles, advertisements and correspondence". "News" is defined as newly received or noteworthy information especially about recent or important events. Similarly Webster's Third New International Dictionary also defines a "newspaper" as a "paper" that is printed and distributed daily, weekly or at some other regular and usually short interval and that contains news, articles of opinion (as editorials) features, advertising, or other matter regarded as of current interest. It defines "news" as "a report of recent event; new information fresh tidings". As per Wharton's Law Lexicon, "Newspapers" are defined as "periodical publications containing intelligence of passing events". The same definition is given in Jowitt's Dictionary of English Law (1977) Edition, Vol.II, Page 1234.

7. Thus, the main content of the newspaper must be "news" though there may also be advertisements and other matters of interest in it. The fundamental distinction between a "newspaper" and "book of reference" has been well brought out by Hood, J. in Exparte Stilwell, (1923)29 V.L.R. 413 (at page 418) in the following terms (Quoted at page 485 of "Words and Phrases Judicially Defined" Vol.3 by Roland Burrows) :

"I feel no hesitation in saying that this Bradshaw's Guide is not publication "known and recognized as a newspaper in the generally accepted sense of the word. In its real nature it is essentially a book of reference and lacks every element of what I should call a newspaper. Its form, its contents and its use all point to something totally different to an ordinary newspaper, whose main object is to give recent information about the recent events and which is not a record, but is in its nature ephermeral even though many persons do file their copies for reference."

8. If the definitions of the expression "newspaper" and "book" occurring in the various statutes in India be carefully scrutinised the essential distinction between the two appears to have been maintained by the Legislature.

Thus, in the Press and Registration of Books Act, 1867 a 'book' is defined as follows :

" "Book" includes every volume, part or division of a volme and pamphlet, in any language and every sheet of music, map, chart or plan separately printed"- (section 1)

The same Act defines "newspaper" as follows:

" "Newspaper" means any printed periodical work connected public news or comments of public news"- (see section 1).

Section 9(2) of the Indian Post Offices Act, 1898 is as follows :

"For the purpose of such registration, every publication consisting wholly or in great part of political or other news, or of articles relating thereto, or to other correct topics, with or without advertisement, shall be deemed to be a "newspaper", subject to the following conditions...."

In Section 2(a) of the Delivery of Books and Newspaper Act, 1956 the expression is defined as follows :

" 'Newspaper' means any printed periodical words containing public news or comments on public news published in conformity with the provisions of S.56 of the Press and Registration of Books Act of 1867."

Section 2(b) of the Newspaper (Price and Page) Act, 1956 says :-

" 'Newspaper' means any printed periodical work containing public news or comments on public news appearing at intervals of not more than a week."

Lastly, we would refer the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, where the expression is defined in section 2(b) thus :

" 'Newspaper' means any printed periodical work containing public news or comments on public news and includes such other class of printed periodical work as may from time to time be notified in this behalf by the Central Government in the Official Gazette."

9. It will thus, be noticed that in all these statutes the essential pre-requisite by a periodical in order to make it "newspaper" is that it must contain mainly public news or comments on public news. In Commissioner of Sales Tax Vs. M/s. Express Printing Press, reported in AIR 1983 Bombay 190, a Division Bench of this court held that 'Pamphlet giving predictions of lucky figures, numbers or dates and only stray news items cannot be considered as a newspaper'. The observation of Smt. Sujata V. Manohar, J., speaking for the Bench was as follows :

"Any paper, therefore, in order to be classified as a newspaper, should contain a report of recent events. A paper which mainly gives astrological and numerological predictions, cannot be considered as a newspaper. It was submitted by Mr. R. V. Patel, learned counsel for the assessee that the two publications did contain some items of news. He also pointed out that some issues contained advertisements of films also. One must, however, look to the dominant purpose of a publication. In order to be called a newspaper, a paper's main purpose must be to convey news. It may incidentally publish forecasts or advertisements. But if the pre-dominant aim of the publication is to convey news, it will be a newspaper. But an insertion of a stray item of news or advertisement in a paper which pre-dominantly gives merely predictions or forecasts or lucky numbers or figures, cannot turn that publication into a newspaper, especially if such stray news item appears to have been inserted merely in order to camouflage the publication as a newspaper."

10. In light of these established principles, the case of the petitioner that 'Kalnirnaya' contains articles of interest on various subjects for the general public and advertisements and therefore, it should be recorded as a newspaper is without any merit. In the first place, to call the periodical a newspaper, it must be published either daily or at short intervals but 'Kalnirnaya' is a yearly publication and therefore by no stretch of imagination it can be said to be a newspaper in the accepted sense of the word. Infact the publication does not contain any news. It is essentially a calendar and it also contains some information on certain topics. Apart from that, as held by the Division Bench in the case of Express Printing Press, one has to look in the dominant purpose of publication and in order to be called a newspaper, the papers' main purpose must be to convey the news. An insertion of some news item or some information on certain topics in a publication of this type cannot be considered as a newspaper. The petitioner also cannot rely upon the fact that his publication was registered as "newspaper" under the Press and Registration of Books Act. By virtue of such registration, which has been done voluntarily by the petitioner, the petitioner cannot convert the publication which is not "newspaper" into a "newspaper".

11. In view of the foregoing discussion, the petition is dismissed.

12. Parties to act on a copy of this order duly authenticated by the Court Stenographer.

Petition dismissed.