1999 PLP 1803 (CLC)

S. SAEED ASHHAD, J.‑‑‑ This Constitutional petition has been filed by the aforesaid two petitioners challenging the show‑cause notice, dated 29‑12‑1993 issued by the Deputy Commissioner and District Magistrate, Karachi, respondent No.3 P.1 and praying for declarations; (i) that same is illegal, unlawful and void ab initio; (ii) that the declaration, dated 24‑4‑1993, filed by, the petitioner No. l under section 7 of the Registration of Printing Press and Publication Ordinance, 1988 (hereinafter referred to as the Ordinance) stands duly authenticated in view of the provisions of section 12(4) of the said Ordinance, and (iii) that the petitioners Nos. l and 2 as publishers and printers of Urdu daily "Qaumi Inkeshaf", are entitled to publish the said newspaper without any restraint from respondent No.3. The brief facts requisite for the purpose of disposal of this Constitutional petition are that the petitioners in association with respondent No.4, desired and decided to start the business of publication of a, daily newspaper. In pursuance of the above desire it was agreed to between the aforesaid parties that business of publication of Urdu daily newspaper under the name and style of "Qaumi Inkeshaf" be undertaken. Consequently, Choudhary Shoukat Hayat was to be in control and bear the responsibilities for the publication of the said daily. newspaper. Petitioner No.2 was to be the printer and respondent No.4 was to perform the duty of publisher/editor of the said newspaper. Thereafter, a declaration, dated 8‑10‑1991 was filed under section 7 of the said Ordinance before respondent No.3 in the name of respondent No.4 which was authenticated by respondent No.3 on 26‑1‑1992. Another declaration, dated 3‑11‑1991 was also submitted by petitioner No.2 before the respondent No.3 for permission to start printing of the newspaper. The first publication of the daily newspaper came in the market on 9‑2‑1992. Thereafter, petitioner No. l with a view to make further progress and expand the said business decided to form a private limited company under the name and style of Messrs Inkeshaf Publication (Pvt.) Limited and after 'complying with the requisite legal formalities before the Joint Registrar of Companies, Sindh, obtained the certificate of incorporation, dated 12‑8‑1992 issued in favour of the petitioner No. 1. Agreement, dated 12‑8‑1992 was entered into between aforesaid parties whereby the business of the newspaper was transferred to petitioner No. l and 250 ordinary shares of Rs.100 each were allotted to respondent No.4, the price of which was paid by petitioner No. 1. Subsequently, disputes and differences arose between the parties and respondent No.4 without intimating the petitioners submitted an application, dated 25‑8‑1992 to respondent No.3 requesting that the declaration of the newspaper be put in abeyance for 15 days. Not satisfied with the above action respondent No.4 submitted another application, dated 6‑10‑1992 to respondent No.3 requesting to stop the printing of the said newspaper for one month and finally he submitted an application, dated 11‑4‑1993 to respondent No.3 alongwith Form "C" under section 16 of the said Ordinance for cancellation of his declaration as well as publication of the said newspaper. The petitioner No. l after coming to know of the aforesaid facts submitted an application to respondent No.3 for termination of declaration of publisher granted in favour of respondent No.4 and also filed a declaration under section 7 of the said Ordinance dated 24‑4‑1993 requesting that declaration of publisher may be transferred in its name. Subsequently, respondent No.4 resigned from the post of Director of petitioner No.1 and acting in collusion with respondent No.3 got issued show‑cause notice under section 42 of the said Ordinance, dated 29‑12‑1993 as to why action may not be taken against the petitioners for printing and publishing of the said newspaper in contraventions of the said Ordinance. The said show‑cause notice also directed petitioner No.2 to stop the printing of the said newspaper with immediate affect. As a consequence of the above show‑cause notice, the printing of the said newspaper was stopped with immediate affect and has not been renewed since then. The petitioners not being able to satisfy respondent No.3 with regard to the illegality of his action vide the aforesaid show‑cause notice and for withdrawal thereof having no alternate remedy had no option but to file the above Constitutional petition. We have heard the arguments, of Mr. Khalil‑ur‑Rehman the learned counsel for the petitioners and Mr. Jai Jai Vishno, the learned Assistant Advocate‑General, Sindh on behalf of respondents Nos. 1, 2 and 3. None appeared on behalf of respondent No.4. The contention of the learned counsel for the petitioners is that show cause notice, dated 29‑12‑1993 issued by respondent No.3 in collusion with respondent No.4 is an absolutely illegal and void document as the same is in belatant contravention of the provisions of said Ordinance. He further; submitted that there is no provision in the said Ordinance whereby respondent No.3 could have immediately stopped the printing of the said newspaper even if it was found by him that the petitioners had committed any illegality or had contravened any provision of the said Ordinance in printing the said daily newspaper. He further, submitted that the declaration of publisher of the newspaper filed in the name of respondent No.4 was duly authenticated on 26‑1‑1992 within the period of 4 months as contemplated in section 12(1) of the said Ordinance but the declaration of printer of the said newspaper filed by petitioner No.2 was neither authenticated in accordance with section 12(1) of the said Ordinance by respondent No.3 nor he passed an order in accordance with subsection (2) of section 12 of the said Ordinance. However, the same stood authenticated on 3‑3‑1991 in accordance with the provision of section 12(4) of the said Ordinance, which provides that if the District Magistrate, (respondent No.3 in the case in hand) fails to authenticate the declaration under subsection (1) or to pass an order under subsection (2) of section 12 within a period of 4 months, the declaration submitted by the publisher and the printer shall be deemed to have been authenticated on the expiry of the said period of four months. Mr. Khalil ur‑Rehman, further submitted that the declaration by petitioner No.2 as publisher of the said newspaper under section 7 of the said Ordinance was submitted on 3‑11‑1991 but the same was neither authenticated nor an order under subsection (2) of section 12 of the said Ordinance was passed b5 respondent No.3 within the period of four months, which expired on 3‑3‑1992 Thus, the same stood authenticated on 3‑3‑1992 and the said daily newspaper could be legally printed on 3/4 March, 1992, whereas publication and printing of the same was started on 9‑2‑1992 and at the most the petitioners could be penalized for illegally printing the said newspaper before authentication of the printers declaration in favour of petitioner No.2. He finally submitted that for the aforesaid illegal act of the petitioners, respondent No.3 could impose penalty on the petitioners/printer under section 42 of the said Ordinance which could be a fine not exceeding of Rs.20,000 of imprisonment for a period not exceeding six months or both. Mr. Jai Jai Vishno, A.A.‑G., appearing on behalf of respondents Nos. 1, 2 and 3 frankly conceded that the show‑cause notice, dated 29‑12‑1993 is not legal and valid as it is not in accordance with the provisions of the said Ordinance, but is clearly in violation of the same. The said Ordinance do not empower respondent No.3 to stop printing of the newspaper for violating or contravening the provisions of sections 7 and 12 of the said Ordinance. He further, submitted that at the most respondent No.3 could have proceeded against the petitioner for illegally printing the said daily newspaper from 19‑2‑1992 till 3‑3‑1992 during which period no valid printing declaration was in existence, but the printing of the said newspaper could not be stopped after 3‑3‑1992 as the declaration for printing submitted by petitioner No.2 by efflux‑of time had attained authenticity and the petitioners were legally entitled to print the said daily newspaper. He, also contended that the show‑cause notice, dated 29‑12‑1993 is illegal and of no consequence in so far as it related to stoppage of printing of the said newspaper and is to be declared as void. He, however, submitted that direction be issued to respondent No.3 to proceed against the petitioners for illegally starting printing of the said daily newspaper prior to the authentication of the printer's declaration during the period from 19‑2‑1992 to 3‑3‑1992. We have considered the arguments advanced by the learned counsel for the parties and have perused the material on record. Declaration for publication of the said newspaper submitted on 8‑10‑1991 was duly authenticated by respondent No.3 on 26‑1‑1992. The declaration for printing the said newspaper was submitted to respondent No.3 on 3‑11‑1991 but respondent No.3 neither authenticated the same in accordance with section 12(1) nor passed any order in accordance with the provision of section 12(2) of the said Ordinance within the period of four months. According to the provisions of section 12(4) of the said Ordinance, on failure of respondent No.3 to act in accordance with the provisions of subsections (I) and (2) of section 12, the declaration attained authenticity on the expiry of the period of four months, i.e. on 3rd March, 1992 and the said daily newspaper could be validly printed and circulated in the market with effect from 3/4‑3‑1992. However, the printing of the said newspaper was started about i2 days before the printer's declaration had attained authenticity and as such printing of the said newspaper from 19‑2‑1992 to 3‑3‑1992 was absolutely in contravention of the relevant provisions of the said Ordinance and was illegal. For such illegal printing of the said newspaper the printer of the said newspaper should have bee^, proceeded against by respondent No.3 under section 42 of the said Ordinance but no such action was initiated or taken by respondent No.3 and the printing of the said daily newspaper continued without any interruption or objection from respondent No.3 till 29‑12‑1993 when the impugned show‑cause notice was issued and served on the petitioners directing them to forthwith stop the printing of the said newspaper. The said Ordinance does not confer any power on respondent No.3 to direct stoppage of printing of the daily newspaper on the ground of violation or contravention of the provisions of section 7 of the said Ordinance either by the publisher or the printer. The Ordinance provides penalty for violation if aforesaid provisions of the Ordinance and respondent No.3 in exercise of that power could have punished the printer for illegally starting the printing of the said daily newspaper. The action of respondent No.3 in stopping printing of the said newspaper was absolutely contrary to the provisions of the said Ordinance, illegal, void ab initio and of no consequence. '' With regard to the contention of Mr. Jai Jai Vishno, that respondent No.3 be directed to proceed against the printer for illegally starting the printing of the said daily newspaper before the authentication of printer's declaration and again after the publisher's declaration in favour of respondent No.4 was cancelled on 11‑4‑1993 but the printing of the said newspaper continued even thereafter till the issuance of the said show‑cause notice. we are of the view that the said illegality had been committed more than 5‑1/2 years ago and after commission of the said illegality the said daily newspaper continued to be printed without any interruption or objection for a period of about two years when its printing was stopped by the petitioners on account of the aforesaid illegal and void order of respondent No.3, dated 29‑12‑1993 and the printing thereof has never been undertaken till this day. We are mindful of the fact that due to lapse of time the illegal act of the printer in printing the said daily newspaper without authentication of printer's declaration has neither vanished nor the printer has been absolved of the said illegal act, but we are of the view that the petitioners have suffered much more than what they would have suffered if a penalty had been imposed on them under section 42 of the said Ordinance. It is also pertinent to note that after submission of the letter by respondent No.4 for cancellation of his publisher's declaration, petitioner No .l had submitted an application, dated 24‑4‑1993 requesting for transfer of the publisher's declaration in its name but no action was taken by respondent No.3 in accordance either with the provisions of subsection (1) or subsection (2) of section 12 of the said Ordinance, and consequently in accordance with the provision of section 12(4) of the said Ordinance, the publishers declaration in favour of the petitioner No.l attained authenticity. In the circumstances we are unable to agree with Mr. Jai Jai Veshno, that the petitioners were illegally publishing the said newspaper after 25‑8‑1992 when respondent No.4 vide his letter of the said date informed respondent No.3 of his having ceased to be the publisher of the said newspaper. Upon the above discussions, we are satisfied that the respondent No.3 had acted illegally and in excess of the power exercisable by him under the said Ordinance and his aforesaid order is absolutely illegal void and no consequence: petition was allowed on 4‑12‑1997 and the By a short order this p impugned order/show‑cause notice was set aside as being illegal and void relating to stoppage of printing of said newspaper. The above are the reasons for allowing the said petition. MRS. MAJEDA RAZVI, J.‑‑‑ I agree.