VERY IMPORTANT POINT
Deduction of 5 from the amount of Government Advertisement Bill from the Private Newspapers for pension fund of working Journalists is an executive act of the U.P. State Government which operates to the prejudice of Newspapers and is invalid as it has no sanction of law. It is neither under State s Legislative Competence nor is due process of "law".

Headnote:(i) Constitution of India, 1950-Articles 32, 162 Schedule 7 List I Entry 92 r/w 96 and List II Entry 55 r/w 66 and List III Entry 24-U.P. State Government s order to deduct 5 from Government Advertisement Bill on various Newspapers for benefit of working Journalists Pension Fund-Whether a contractual matter? (No), Executive of State exercising its Constitutional Power under Article 162-Whether beyond their Legislature competence and invalid? (Yes)-Case Law referred-Writ Petition allowed.
       Held : The backdrop of formulation of the said scheme as also the impugned orders clearly go to suggest that by reason thereof the respondents have exercised its constitutional powers and the matter does not relate to a contract qua contract. (Para 13)
       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 the 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 List, unless and until a legislation is made and assent of the President is obtained, the provisions of 1955 Act of 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 5 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 fund meant to be used towards retiral benefits of the working journalists, must be held to be bad in law. As the said Act, as also the Bachawat Award specifically deal with the matter relating to pension scheme for journalists, we have no hesitation in holding that the impugned orders were beyond the legislative competence of the State. (Paras 19 and 20)
       (ii) Constitution of India, 1950-Article 300A-No property of any person to be taken without the authority of law-Whether 5 deduction from Government Advertisement Bill of Private Newspapers for pension fund of working Journalists is bad under Article 300A? (Yes)-Words and Phrases "Law"- Taxation" whether petitioners can be directed to bear the burden of 5 deduction although they have no statutory liability in this behalf? (No).
       By reason of the impugned directives of the State, the petitioners have been deprived of their right to property. (Para 22)
       The expression law , within the meaning Article 300A, would mean a Parliamentary Act or an Act of the State Legislature or a statutory order having the force of law. (Para 23)
       The impost by reason of the impugned orders may come within the purview of the aforesaid definition. (Para 25)
       The burden of the impost, thus, can be placed only when there exists relationship of employer and employee between the contributor and the beneficent of the provisions of the scheme. In the instant case, also, no such relationship exists. In any event, the State cannot make any compulsory exaction from any citizen unless there exists a specific provision of law operating in the field. In relation to a compulsory payment, it is well-settled, there is no room for any intendment. (Paras 27 and 28)
       (iii) Constitution of India-Articles 19(1)(a) and 14-Freedom of Speech and Equality-5 deduction from Government Advertisement Bill of State Government-Contention that petitioners are at liberty not to accept any advertisement issued by State of UP in such a case-Whether correct? (No)-Liberty was illussary-Writ Petition allowed-Contract Act, 1872-Section 23-Legality of such deduction-Not supportable in law.
       Held : Advertisements in a newspaper have a direct nexus with its circulation. (Para 32)
       It is not in dispute that advertisements play important roll in the matter of revenue of the newspapers. (Para 34)
       It is neither in doubt nor in dispute that for the purpose of meeting the costs of the newsprint as also for meeting other financial liabilities which would include the liability to pay wages, allowances and gratuity etc. to the working journalists as also liability to pay a reasonable profit to the shareholders vis-a-vis making the newspapers available to the readers at a price at which they can afford to purchase it, the petitioners have no other option but to collect more funds by publishing commercial and other advertisements in the newspaper. 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. See Central Inland Water Transport Corporation Limited & Anr. v. Brojo Nath Ganguly & Ors. etc. [(1986) 3 SCC 156] and Delhi Transport Corporation v. D.T.C. Mazdoor Congress & Ors. [AIR 1991 SC 101]. It is trite that the State in all it 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 fulfill the aforementioned criteria. We are, therefore, of the considered view that the impugned orders dated 24th September, 1991 and 16th October, 1991 are unconstitutional and void and must be declared as such. This writ petition is, therefore, allowed. However, in the facts and circumstances of the case, we make no order as to costs. (Paras 36, 37, 38 and 39)

JUDGMENT

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 24th September, 1991 as also one dated 16th October, 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 of the amount thereof, forming part of a fund for the purpose of granting pension to the working journalists, would be deducted.

2. Petitioner No.1 herein is a company incorporated under the Companies Act and is engaged in the business of publishing newspapers including The Hindustan Times . Petitioner No. 2 is a shareholder of Petitioner No.1 and Petitioner No. 3 is its Director.

3. The petitioners have questioned the legality/validity of the said orders, inter alia, on the following grounds :-

1. The impost, is not leviable either as a tax or as a fee having regard to the fact that the legislative field in relation to the payment of retiral benefits to the working journalists is covered by a Parliamentary Act known as the Working Journalists and other Newspapers Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 ( the said Act ).

2. As the State of Uttar Pradesh had no legislative competence, it could not have issued the impugned orders in exercise of its power under Article 162 of the Constitution of India or otherwise.

3. Assuming, that welfare of the working journalists is a field falling within Entry 24 of List III of the VIIth Schedule of the Constitution of India, any State legislation would be the subject to the Central legislation and in that view of the matter too, the impugned orders are ultra vires Article 14 of the Constitution.

4. The contention of the respondents, on the other hand, is that the scheme in question was made upon obtaining suggestions from the managements of the leading newspapers in terms whereof a beneficent measure for grant of pension to the working journalists was taken and in the event the petitioners are not agreeable thereto, they are free not to accept the offer of the respondents. In any event, as issuance of advertisements is a matter of contract by and between the State and the publishers of the newspapers, the petitioners cannot claim any legal right in relation thereto.

5. The matter relating to grant of pension to the accredited journalists is said to have been under consideration of the Respondent-State for a number of years. A Bill to the said effect was presented in the Vidhan Sabha and referred to the Select Committee. However, following dissolution of the Vidhan Sabha, the said Bill lapsed.

6. With a view to give effect to the scheme, despite lapse of the said Bill, by reason of the impugned executive instructions issued under Article 162 of the Constitution of India, the Respondent No. 1 upon inviting suggestions from several newspaper publishers, made a scheme, known as the Pension and Social Security Scheme for Full-time Journalists the 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 of the amount will be taken from member journalists and the remaining 50 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)

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2002 Supreme(SC) 1086

Cases Referred (12)