Judgment

GROVER, J. :- This is an appeal by certificate from a judgment of the Punjab High Court by which the petition under Art, 226 of the Constitution filed by the respondent was allowed and the ban imposed on the sale of a news weekly called. "The Indian Observer" by the licensees of the Railway Book Stalls throughout the country under directions issued by the appellant was set aside.

2. According to the writ petition, the petitioner was the owner and publisher of a weekly newspaper known as "The Indian Observer" which had a wide sale in India, its weekly circulation being approximately 1,35.000 copies. Till March 1965 the aforesaid news weekly was being sold at all the railway stations which were managed and were under the administrative control of the Railway Board. It was alleged that the policy of the news weekly was to publish a constructive criticism and fair comment in public interest on the working of different departments of the Government and to suggest remedial measures. In some of the copies of the news weekly, certain matters regarding the mal-administration of the Railway had been published. Reference was made in particular to the issue of 11th September, 1964 in which allegations were made about the black-marketing in deluxe train tickets. It was stated to have attained the magnitude of a big racket operating in the country resulting in lot of gain by corrupt means to the Railway staff. It is unnecessary to give the details but according to the allegations made in the news weekly, the Railway staff was corrupt and the reasons for the corruption were also given. Other comments were made which reflected adversely on the working of the Indian Railways. According to the petitioner all these statements and resolutions annoyed the Railway Authorities and on 22nd September, 1964, the Circulation Manager of the Petitioner company received a letter from M/s. Gulab Singh (P) Ltd. one of the licensees of the Railway Board for sale of printed matters intimating that the Northern Railways administration had banned the sale of "The Indian Observer" on the Railway Book Stalls. Subsequently, when the petitioner took up the matter with the authorities concerned, the General Manager, Northern Railways, wrote to him informing him that temporary permission had been given to the railway contractors of printed matters to sell the news weekly subject to proper review of that paper and final orders which would be given later. The General Manager asked the petitioner to supply copies of 12 old issues which was done. Finally, the petitioner was informed by means of a letter dated the 16th March 1965 that the sale of the weekly "The Indian Observer" could not be permitted on the railway stations.

3. In the return which was filed by the Joint Director, Traffic (General ), Railway Board, it was not denied that the news weekly "The Indian Observer" was being sold at the railway stations by the licensed contractors. It was asserted that the petitioner had been publishing "sexy and obscene literature" and the licensees had been raising objections on this score. The articles published in the news weekly were considered to be of low taste and it was decided that it would not be in public interest to allow its sale at the railway platforms by the licencees. The allegations made in the petition about the statements relating to corruption and mal-administration in the Railways which had been published in some of the issues of the news weekly was not denied. It was, however, maintained that the Railway Board had taken the action not because of the publication of those articles but because of the sexy and obscene literature of low taste which was being published in the news weekly.

4. Before the High Court, S. 28 of the Indian Railways Act 1890, hereinafter called the "Act", and the relevant sub-clauses of clause 742 of the Indian Railway Code were pressed into service for challenging the ban which had been imposed on the sale of the news weekly. T