P L D 2009 Islamabad 33 (PLP)

SARDAR MUHAMMAD ASLAM, C J.

Through instant appeal, appellant seeks setting aside of order dated 24-1-2005 passed by the Chief Commissioner, I.C.T. Islamabad, and rejection of respondent No.2's application as well as cancellation of declaration of daily "Pakistan" in his favour. It is further prayed that respondent No.2 be restrained from printing and publishing daily "Pakistan", damages to the tune of Rs.100,000,000 be awarded in favour of appellant and respondent No.2 be prosecuted for illegally and un-authorisedly printing, publishing and disseminating newspaper titled daily "Pakistan", Islamabad.

2. Respondent No.2, Mr. Sardar Khan Niazi, styling himself to be the Chairman, Board of Directors, daily "Pakistan" submitted an application before the District Magistrate, Islamabad on 22-3-2001 for declaration of the said daily in his name, after cancellation of same from the name of Mr. Umer Majeeb Shami with the contention that he was authorized by appellant-publisher, for the transfer of declaration in his name. The District Magistrate, Islamabad issued notices dated 4-5-2001 and 21-5-2001, to the appellant to appear before him, but none-appeared on 12-6-2001 and 13-6-2001, whereupon he cancelled the declaration issued in the name of appellant vide order dated 13-6-2001, and respondent No.2 was advised to apply fresh, for issuance of declaration in his favour. Order of District Magistrate, Islamabad was assailed in Writ petitions Nos. 2271 and 2351 of 2001, before the Lahore High Court. By judgment dated 30-7-2002, it set aside the order of District Magistrate, Islamabad with the observation that Sardar Khan Niazi's application shall be deemed to be pending before Secretary, Ministry of Information and Media Development, Government of Pakistan, who shall decide the same afresh, after giving an opportunity to both the parties, in accordance with Islamic Common Law. The order of Lahore High Court was assailed before the august Supreme Court of Pakistan in C.P. No.1431 of 2002. The Hon'ble Supreme Court of Pakistan, vide order dated 8-9-2004, directed the Chief Commissioner, Islamabad to dispose of the application of the petitioner in terms of order dated 30-7-2002 passed by learned Judge in Chamber of Lahore High Court within a period of two months. Parties were also directed to appear before the Chief Commissioner Islamabad on 13-9-2004 at 9-30 a. m.

3. In compliance of the order of august Supreme Court of Pakistan, Chief Commissioner, Islamabad vide order dated 24-1-2005 cancelled the declaration in favour of Mr. Umer Mujeeb Shami-appellant and accepted the application of respondent No.2 on usual terms and conditions.

4. Appellant has alleged that order passed by the Chief Commissioner, Islamabad on 24-1-2005 whereby declaration of daily "Pakistan", Islamabad in favour of the appellant has been ordered to be cancelled and the declaration of the daily "Pakistan", Islamabad in the name of respondent No.2 has been authenticated is in excess of jurisdiction, against all norms of justice and fair play. Respondent No.1 has clearly acted in complete defiance of the judgment of this court passed in case titled "Umer Mujeeb Shami v. The District Magistrate Islamabad and 2 others", as well as order dated 8-9-2004 passed by august Supreme Court of Pakistan in Civil Petition for leave to appeal No.1431 of 2002. This Court has declared the order dated 13-6-2001, passed by the District Magistrate Islamabad as illegal and without lawful authority while observing that provisions of sections 4, 9, 10, 12, 23, 24, 48 and 49 are no more part of the Ordinance XXX of 1963 and the District Magistrate acted illegally in assuming the jurisdiction under the same provisions of Ordinance IV of 1995 or Ordinance XLVII of 1997, which had lapsed long ago as is obvious from the judgment reported as 2003 CLC

430. This court has partly accepted the writ petition filed by the present appellant and the application of the respondent No.2, was ordered to be pending before Secretary Information and Media Development, Government of Pakistan and if in the meanwhile new law is promulgated, then the same was ordered to be decided by the competent authority under new law. Respondent No.2 also filed writ petition No.2351//2001 against the order of District Magistrate, Islamabad authentication of declaration of daily "Pakistan" Islamabad in the name of respondent No.2 was declined, was disposed of by this court. Respondent No.1 while acting in defiance of the order of this court as well as of august Supreme Court, instead of deciding the application of the respondent No.2, afresh on merits, has decided the same on the basis of earlier proceedings of enquiry Committee, which was constituted by the District Magistrate, Islamabad without any lawful authority. Respondent No.2 has acted illegally in assuming reasons and grounds for order dated 13-6-2001, passed by District Magistrate, Islamabad. Respondent No.1 has clearly acted in excess of his jurisdiction, inasmuch as, he was directed by the august Supreme Court vide order dated 8-9-2004 to decide application of respondent No.2 seeking authentication of declaration of the daily "Pakistan", Islamabad in his favour on the basis of application dated 22-3-2001 upon which the order dated 13-6-2001 was passed by District Magistrate, Islamabad and which was declared to be without jurisdiction by this court vide judgment dated 30-7-2002. Respondent No.1 has acted in complete disregard to the judgment dated 30-7-2002 passed by this court as well as of the august Supreme Court of Pakistan dated 8-9-2004, by passing order dated 24-1-2005, whereby application of respondent No.2 has been allowed for extraneous reasons. Section 10(2)(b) of the Press, Newspapers, News Agencies and Books Registration Ordinance, 2002 clearly provides that the competent authority may not authenticate the declaration, if he is satisfied that the title of the newspaper proposed to be published is the same as the title of the any newspaper already being published in the same language at any place in the country, not being a newspaper of different periodicity published by the same publisher or an other edition of the same newspaper published from another place. Similar provision was also contained in the Ordinance XXX of 1963 but the territorial limit of such exclusivity was confined to West Pakistan. Even Clause (4) of section 10 of Press, Newspapers, News Agencies and Books Registration Ordinance, 2002 has to be construed subject to protection of fundamental rights of the appellants to hold property, freedom of expression and freedom of press etc., otherwise the provision shall be void in terms of Article 8 of the Constitution. Appellant has been printing and publishing daily "Pakistan", Lahore since 3-2-1999. Appellant has also been printing and publishing daily "Pakistan", Islamabad since 25-2-1999, therefore, respondent No.1 by order dated 24-1-2005 could not, at all, deprive the appellant of his fundamental rights and constitutional guarantees by cancelling his declaration and passing the order for authentication of declaration of daily "Pakistan", a newspaper already being published by the appellant with same title, in the same language with same periodicity since 3-2-1999.

5. Learned counsel for the petitioner raised following contentions:-- (i) that the Chief Commissioner has travelled beyond its jurisdiction; (ii) that the provision of section 19 of Ordinance, 2002 has been seriously violated; (iii) that decision rendered on the basis of an inquiry report of a committee constituted by the then District Magistrate was of no avail as his order had been struck down in writ petition No.235 of 2001, declaring it to be without jurisdiction.

6. On the other hand learned counsel for respondent No.2 supported the decision rendered by the Chief Commissioner and opposed the contentions raised on appellant's behalf.

7. Heard and record perused.

8. The root cause of the litigation between the parties, is an application submitted by respondent No.2 to the District Magistrate, ICT Islamabad on 22-3-2001, seeking authentication of amended Form-B of declaration showing his name as Publisher. It is useful to re-produce the contents of this petition:-- "To The District Magistrate I.C.T., Islamabad. SUBJECT:--Request for the change of Publisher With due respect, it is submitted that Umar Shami, Publisher of daily "Pakistan" has surrendered the declaration of daily "Pakistan" in my favour as per agreement dated 27-6-2000 (copy enclosed). It is therefore requested that the amended `Form B' of declaration showing the name of undersigned as publisher may please be authenticated and oblige. Yours (Sd.) (Sardar Khan Niazi) Chairman Board of Directors 22-3-2001". Bare reading of the application manifests that appellant has surrendered declaration of daily "Pakistan" in his favour in terms of agreement dated 27-6-2000. The sole question begging answer is as to whether Umer Mujeeb Shami, appellant has surrendered the declaration as claimed by respondent No.2 in terms of agreement dated 27-6-2000. I have gone through the agreement, entered into between appellant as first party, Barex Limited, a company incorporated under the Companies Ordinance, 1984 through its Chief Executive, Mujibur Rehman Shami, second party and respondent No.2, SRN Media (Pvt.) Ltd., as party No.3. The agreement bears signatures of all the parties. Clause-(a) contains mat appellant is a sole proprietor of daily "Pakistan" and a declaration for Punjab, Islamabad and Sindh is in his name. Party No.2 has the right of printing and publication of daily "Pakistan". Share holders of respondent No.2 fully authorized, Mr. Mujeeb-ur-Rehman Shami, to enter into an agreement with the above referred parties regarding printing and publishing of daily "Pakistan": as well as lease of its assets relating to Islamabad office. Further they have confirmed that agreement will be binding on the company according to terms and conditions agreed by Mujeeb-ur-Rehma Shami through this agreement. Clauses (3) and (4) of agreement are of some importance, which are re-produced below:-- "

3. That the declaration of the Newspaper relating to Punjab, Islamabad and Sindh shall be transferred from Party of the First Part to Party of the Second Part after the signing of the agreement. This transfer shall be without any consideration.

4. That the Party of the Second Part has agreed to give rights of printing and publishing of the Newspaper to Party of the Third Part only for the area which at present falls under circulation limits of daily "Pakistan", Islamabad, for the life long period unless otherwise decided by the Committee." Reading of Clauses (3) and (4) indicates that declaration of the newspaper relating to Punjab, Islamabad and Sindh shall be transferred from appellant to second party and that the second party has agreed to give rights of printing and publishing of the newspaper to respondent No.2. In clause (9) compensation for arrangements referred in clauses (4) and (5) of this agreement shall be Rs.2,05,000, payable to the second party within one week from close of a month. Any dispute arising out of this agreement was to .be resolved by a committee constituted under clause-(1) of this agreement.

9. Transfer of declaration is sought on the basis of an agreement. Minute reading of the agreement shows that Party No.2 in the agreement had to transfer and the compensation was to be paid by respondent No.2. Party No.2 was neither before respondent No.1 nor impleaded in the constitutional petition. The agreement, in the absence of second party was not enforceable.

10. Constitutional petitions filed by appellant as well as respondent were disposed of by a Honourable learned judge in chamber, partly accepting the appellant's constitutional petition. Order dated 13-6-2001, passed by District Magistrate, Islamabad was set aside holding that application of respondent No.2 shall be deemed to be pending. The above said judgment was challenged by respondent No.2 before the Hon'ble Supreme Court in Civil Petition No.1413 of 2002 which was disposed of by a consent order . Para-2 of the judgment is re-produced below : -- "We have heard the learned counsel for the parties and with their consent this petition is being disposed of as under:-- That as under the new law i.e. the Press, Newspapers, News Agencies and Books Registration Ordinance, 2002 (Ordinance XCVIII of 2002), District Coordination Officer has been empowered to deal with cancellation of declaration or its transfer in the name of some one else and etc. and whereas the said new law does not provide powers with the Secretary, Ministry of Information and Media Development, Government of Pakistan, to dispose of the said application to whom the case was remanded by learned Judge in Chambers of the Lahore High Court for decision afresh according to new law, therefore, the learned counsel for the parties have agreed that Chief Commissioner, Islamabad may be directed to decide the application of petitioner in terms of the order of the High Court C in the capacity as District Coordination Officer which office is admittedly not created so far in Islamabad." From reading of para. 2 above, it appears that both the parties have consented for remand of this case for decision afresh according to new law.

11. Section 6 of Press, Newspapers, News Agencies and Books Registration Ordinance, 2002 caters for procedural requirement for filing of declaration. Section 10 provides authentication of the declaration made under section-6. Subsection (2) of Section-10 provides that District Coordination Officer may not authenticate the declaration if he is not satisfied that:-- (a) the, declaration has been filed by a person other than the owner or proprietor of the newspaper or the printing press or a person not authorized by such proprietor; and (b) the title of the newspaper proposed to be published is the same as the title of any newspaper already being published in the same language at any place in the country, not being a newspaper of different periodicity published by the same publisher or another edition of the same newspaper published from another place; (c) the declaration has been filed by a person who was convicted of criminal offence involving moral turpitude and or for wilful default of public dues; (d) the declaration has been cancelled or denied anywhere else in Pakistan. Section-19 deals with cancellation of a declaration. It provides that on application of the Press Registrar, either suo motu or based on the information through any person, the District Co-ordination Officer, empowered to authenticate a declaration under this Ordinance is of opinion that any declaration made in respect of a newspaper should be cancelled, he may, after giving the person concerned an opportunity of showing cause against the action proposed to be taken, hold an inquiry, into the matter and if, after considering the cause, if any, shown by such parties and after giving them reasonable opportunity of being heard, is satisfied firstly that:-- (a) the newspaper, in respect of which declaration has been made is being published in contravention of the provisions of this Ordinance or rules made thereunder; or (b) the newspaper mentioned in the declaration bears a title which is the same as, or similar to that of any other newspaper published either in the same language or in the country; or (c) printer and publisher has ceased to be the printer or publisher of the newspaper mentioned in such declaration; or (d) the declaration was made on knowingly false representation or on the concealment of any material fact or in respect of a periodical work which is not a newspaper, the District Co-ordination Officer may by order cancel the declaration and shall forward as soon as possible a copy of the order to the person making or subscribing the declaration and also to the Press Registrar. (2) During the period of sixty days of the cancellation order no person shall be issued a declaration in the name of the same title to any other person.

12. Adverting to the impugned order dated 24-1-2005, passed by Chief Commissioner, Islamabad, it is evident that reliance has been placed on the report of an inquiry committee constituted by the District Magistrate, whose order was set aside besides the fact that appellant was not associated with the inquiry and condemned unheard. There is clear defiance of direction, in relying upon report of inquiry committee, calling for a fresh decision in accordance with new law. The Chief Commissioner has failed to take into consideration section 19 of the Ordinance and has travelled beyond jurisdiction directing cancellation of declaration not, even, asked for by respondent No.2, in his application.

13. Admittedly the declaration of the newspaper was in the name of appellant. Respondent No.1 lost sight of the provision of section 10(2)(b) by issuance of a declaration to respondent No.2, of the newspaper with title of the newspaper already being published by appellant in the same language. Learned counsel for respondent No.2 argued that word "country" was substituted for word "province" in the new Ordinance and that Islamabad fall outside the province of Punjab and, thus, declaration could have been issued. This contention is without force, firstly, that the direction was issued by the Hon'ble Supreme Court for decision of the application in accordance with the new law and secondly the appellant held a declaration for Islamabad in his name.

14. Section 19(2) provides that no declaration shall be issued in the name of the same title to any other person until expiry of 60 days of the cancellation order, but the declaration in favour of respondent by way of impugned order was issued on the same day by respondent No.1.

15. Argument of the respondent's counsel with reference to subsection (2) of section 45 of this Ordinance will be of no assistance, as authentication of declaration in his favour by District Magistrate was declared to be without jurisdiction.

16. Though the appellant has claimed damages but on record no evidence is available to ascertain the loss suffered by the appellant.

17. In view of the above discussion, this F.A.O. is allowed. The impugned order of respondent No.1 is set aside. However, relief to the extent of damages claimed by the appellant, is refused in absence of any evidence. S.A.K./U-1/Isl. Appeal accepte