Back
IN THE HIGH COURT OF BOMBAY
Bhattacharjee A.M., C.J. Tipnis V.P., J.
Tata Press Limited another.... Appellants.
Versus
Mahanagar Telephone Nigam Ltd. others.... Respondents.
L.P.A. No. 100 of 1994 in First A. No. 729/1993 in B.C.C. Suit No. 6026 of 1992, decided on 8-9-1994.
Advocates appeared :
F.S. Nariman, Aspi Chinoy, Mrs. Zia Mody, Ms. Shameela Chinoy, Nihar Mody and Christopher D’Souza i/b Wadia Gandhy and Co., for appellants.
K.K. Venugopal, Sr.C. with Ms. S.I. Shah, for respondent No.1.
Arun Jetley with Arjun Sikhri, Vijay Narayan with Ms. S.I. Shah, for respondent No. 2 .
The right to make commercial speech or commercial advertisement is also a right to freedom of speech and expression as guaranteed by Article 19 (1)(a). The Court is afraid that the TATA Yellow Pages cannot be regarded as such commercial speech or commercial expression or advertisement, as the publication appears to be all commence and no speech, or at least overwhelmingly a project of commerce or trade by the appellants, in its pith and substance and, therefore, to be an exercise of a right conferred by Article 19 (1)(g). It is very much a publication made by the appellants solely for commercial purposes so far the appellants are concerned. And if this is the exercise of the right to carryon any occupation, trade or business, then while the appellants have such a right under Article 19(1)(g) the respondents have also the undisputed right to exclude, completely or partially, any other person from exercising such right under Article 19(6).
Rules 458, 452, 459 and 2(pp)-Tata yellow pages-A telephone directory or a list of telephone subscribe.
A publication in order to amount to a contravention of the Rule, as quoted above must in substance be a list of telephone subscribers for it is the substance that must count and must outweigh and take precedence over mere appearance. Before restraining the defendant Tata Press Ltd. from publishing or circulating or in any way dealing with the Tata Press Yellow Pages, the High Court has to be satisfied that to substance and in effect the same is a list of telephone subscribers or a telephone directory. The case at hand involves questions, not so much of law, but rather of semantics and common sense.
The expression subscriber has been defined in Rule 2(pp) to mean a person to whom a telephone service has been provided by means of an installation under these Rules or under an agreement. The definition of the expression Call as in Rule 2(a) is apt to create some confusion as the expression has been defined to mean a conversation between two of more subscribers. Would not a conversation between two or more persons, who are not subscribers, through a telephone line amount to a call? Be that as it may, the definition of the expression subscriber being as noted above 8 List of Telephone Subscribers would Obviously mean a list of persons to whom telephone services have been provided by means of an installation under the Telegraph Rules or under an agreement. Supreme Court, in this High Court print or publish a Book containing a list of our Judges and officers containing their names, designations, departments they are attached to, their office as well as residential addresses and also telephone numbers in the office as well as in their residence. Or, Suppose, a Bas Association or a Medical Association prints or publishers a Book containing the names of their members, their specialization, address of their offices, chambers and residences along with their respective telephone numbers. Court is inclined to thinks that such Books as aforesaid may not amount to a list of subscribers if the dominant purpose for such publication is not to notify the telephone numbers only but mainly to notify who these person are along with their designations and/or qualifications or specializations and addresses at which they would be available during as well as after office hours and the telephone numbers published in such Books would be there only to provide a fuller and more complete picture.
The High Court or the Bar Association or the Medical Association in such cases may not be proceeded against for violation of Rule 458 of the Indian Telegraph Rules, for publishing such books, if the primary object thereof is not to provide the telephone numbers only, but may be, the telephone numbers also along with various other relevant matters. If In such books as aforesaid, the names of such officer or members, who are not subscribers to telephones, are also published, the same would further go to show that such books would not be a list of subscribers.
It is true that the prohibition against publication without permission of the Telegraph Authority, as contained in Rule 558 of the Indian Telegraph Rule" is against the publication of any list of telephone subscribers. Under Rule 452 of the Indian Telegraph Rules, a copy of telephone directory shall be supplied free of charge for each telephone, extension or party line, rented by the subscriber. Since every subscriber is entitled, as a matter of right, to a telephone directory containing the list of telephone subscribers and their telephone number free of charge, any publication of a mere telephone directory or a mere list of telephone subscribers, without more would be entirely useless from a commercial point of view as no one would be interested in purchasing the same, since such a one would be available to all the telephone subscribers free of charge. It must be noted in this context the Rule 459 of the Indian" Telegraph Rules empowers the Telegraph Authority to publish or allow the publication of advertisements in the body of the Telephone Directory" and, therefore, a Telephone Directory would not cease to be so merely because advertisement are also published the therein.
2. In this very Court Room, about four decades ago an appeal was heard by the Division Bench presided over by Chief Justice Chagla. The case related to gold-topped fountain pens and the Customs had contended that gold-topped fountain pens were gold, nevertheless, and, therefore, duty was to be levied upon them, not as fountain pens, but as gold. The duty on the latter was very much higher than on the former. Chief Justice Chagla requested the Advocate-General to hand up to him a specimen of the gold-topped fountain pen which the Customs had adjudged as gold and the learned Chief Justice took the pen in his hand and asked the Advocate- General as to what he would call the object which the Chief Justice was holding in his hand. The Advocate-General had to reply that the Chief Justice was holding a fountain pen and to that the learned Chief Justice said that that was the whole of the case and would conclude the matter. The appeal was accordingly disposed of by the learned Chief Justice, who was not at all required to go into the intricacies of the Customs Act, into such fine points as to what is gold and what is not, and so on and so forth interminably. (See ROSES IN DECEMBER, by Chagla, M.C., 1990 Edition — pages 158-159).
3. We have heard very interesting arguments advanced by Mr. Nariman appearing for the appellants, Tata Press Ltd., Mr. Venugopal appearing for respondent No. 1, Mahanagar Telephone Nigam Ltd., and Mr. Jetley appearing for Respondent No. 2, Union of India. As usual, a large number of precedents have been piled up along with a number of Law Lexicons in order to understand the denotation and connotation of the expressions. “List of Telephone Subscribers” and “Telephone Directory”. The two expressions, not having been defined in the Indian Telegraph Act and the Rules made thereunder, we would have to go by the plain meaning of these plain English words. We have reminded ourselves of the classic observations of Justice Vivian Bose in (Seksaria Cotton Mills v. State of Bombay)1, A.I.R. 1953 S.C. 278 at 281-282, to the following effect :
“…. the more learned their advisers were in the law the more puzzled they would be as to what advice to give, for it is not till one is learned in the law that subtleties of thought and bewilderment arise at the meaning of plain English words which any ordinary man of average intelligence, not versed in the law, would have no difficulty in understanding.”
We, however, have not felt much difficulty in understanding the import of the aforesaid expressions. May be, we are not that learned in law and, therefore, do not suffer from any amblyopia, which, according to Justice Vivian Bose, is generated by legal learning. We think that after examining carefully and meaningfully the impugned book published by the Appellants under the caption “Tata Press Yellow Pages” we would be in a position to decide whether it is a “Telephone Directory” or a “List of Telephone Subscribers”, shorn of all forensic logomachy and legal abracadabra.
4. Rule 458 of the Indian Telegraph Rules is as hereunder :—
“Publishing of Telephone Directory.—Except with the permission of the Telegraph Authority no person shall publish any list of telephone subscribers.”
There should be no doubt that a publication in order to amount to a contravention of the Rule, as quoted above, must in substance be a “list of telephone subscribers” for it is the substance that must count and must outweigh and take precedence over mere appearance. Before restraining the defendant Tata Press Ltd. from publishing or circula
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
