1998 PLP 344 (CLC)

AMIR‑UL‑MULK MENGAL, C.J.‑‑‑The petitioner has filed present petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 assailing the order dated 11‑7‑1996 passed by District Magistrate, Quetta whereby he has been pleased to cancel the declaration granted to petitioner with a further prayer to order restoration of declaration granted in favour of petitioner by the District Magistrate on 17‑3‑1996.

2. Relevant facts for filing of this petition are that the petitioner submitted an application before the District Magistrate in January, 1996 wherein she expressed her intention to bring out a Daily Newspaper from Quetta under the name of "Al‑Mashriq". She, therefore, sought that declaration be authenticated in accordance with the provisions of Registration of Printing Press and Publications Ordinance, 1995 (hereinafter referred to as the "Ordinance").

3. The District Magistrate in response to the application, set a notice on 14‑2‑1996 to petitioner to explain as to why the request for taking out Daily "Al‑Mashriq" is not rejected as a Newspaper in the name of "Mashriq" is already being published in the same language and title from the same city and the Province. After receiving the explanation the District Magistrate on 17‑3‑1996 authenticated the declaration as sought for by the petitioner in the name of "AI‑Mashriq" to be published in Urdu. The declaration was forwarded by the District Magistrate to the Commissioner, Quetta Division, for onward transmission to the Government of Balochistan for its Information Department vide letter dated 17‑3‑1996.

4. The case of petitioner is that she started publication of Daily "Al-?Mashriq" from Quetta with effect from 17‑4‑1996 uptil 23‑6‑1996. The District Magistrate on 20‑6‑1996 issued a notice to petitioner calling upon her to explain why the declaration of "Al‑Mashriq" granted to her may not be cancelled under section 12(2)(v) of the Registration of Printing Press and Publications Ordinance 1995 as the Daily "Mashriq" is already being published from Quetta since 1976 and the Printer and Publisher of the said Newspaper has objected to the grant of declaration. The petitioner submitted her reply whereafter the District Magistrate disposed of the notice by passing short order dated 11‑7‑1996 to the effect that declaration authenticated to Mst. Shaheen Roohi Bukhari for publication of Newspaper "Al‑Mashriq" on 17‑3‑1996 was cancelled.

5. It is worth mentioning that during this period the Daily "Mashriq" Private Limited filed a civil suit in the Court of Civil Judge‑II, Quetta alongwith an application for grant of interim relief. However, after impugned order dated 11‑7‑1996 passed by District Magistrate the suit became infructuous and dismissed accordingly.

6. The petitioner 'has now challenged the impugned order through this Constitutional petition.

7. Heard Mr. Basharatullah, Advocate for petitioner, Mr. Kamran Murtaza for respondent No.3 and learned Additional Advocate‑General for official respondents.

8. According to petitioner's counsel once the declaration had been made/authenticated by the District Magistrate, he was not seized of any authority under the Ordinance, 1995 to issue notice for cancellation or to pass an order cancelling the said declaration. It was urged that the cancellation and declaration by the District Magistrate was without any statutory authority vested in him. Another limb of the argument was that on similar basis the District Magistrate had 'issued notice dated 13‑2‑1996 and he was fully satisfied from the explanation given by the petitioner that section 12(2)(b) of Registration of Printing Press and Publications Ordinance, 1995 was not attracted and accordingly authentication of declaration was issued on 17‑3‑1996. After passing of order District Magistrate had no vested power or authority to recall and cancel declaration granted to petitioner.

9. Mr. Basharatullah further argued that name of "Al‑Mashriq" was not the same as being published by respondent No.3 titled "Mashriq". With the help and assistance of different law dictionaries the counsel attempted to argue that the two words "Al‑Mashriq" and "Mashriq" were quite different and distinguished in their meaning connotation and appearance, therefore, there was absolutely no justifiable grounds or valid reasons for District Magistrate to have cancelled the declaration on the basis of similarity in the name of two separate newspapers.

10. Learned Additional Advocate‑General, Balochistan Mr. Noor Muhammad Achakzai, on the other hand opposed grant of this petition by raising a preliminary objection that under section 26 of the Ordinance appeal is maintainable but no appeal has been filed, hence the petition is not maintainable. Learned Additional Advocate‑General, further urged that the petitioner has selected a name "Al‑Mashrique" which is similar to "Mashriq" The daily Mashriq is being published since 1976 in Urdu language from Quetta City and another daily with identical name "Al‑Mashriq" also in Urdu language is clearly hit by the provisions of section 12(2)(v) of the Ordinance. The action so taken by the District Magistrate, Quetta, is therefore, unexceptionable. The District Magistrate, has cancelled the declaration of the petitioner in respect of daily "Al?-Mashriq" after due notice to the petitioner and on very valid and legal basis, therefore, such order cannot be assailed in Constitutional jurisdiction of this Court.

11. Mr. Kamran Murtaza, Advocate appearing for respondent No.3 adopted arguments of learned Additional Advocate‑General and further submitted that the petitioner was associated with the daily "Mashriq" and after when she left the paper, she intentionally attempted to bring another paper with similar name. Upon this the respondent No.3 filed a civil suit and obtained stay order.

12. Besides, hearing the arguments, we also perused the parawise comments filed by District Magistrate. In the parwaise comments the District Magistrate has clearly mentioned that not only a notice was served upon the petitioner but both the parties (the petitioner and respondent No.3) were summoned for personal hearing on 7‑7‑1996. It is transpired that the petitioner applied for grant of another declaration titled "Al‑Magrib‑o‑Mashriq". The learned District Magistrate has further, clarified that action was taken by him on the application of respondent No.3 who filed objections on legal grounds with specific reference to relevant law. The District Magistrate mentioned that although a declaration has been initially granted to the petitioner but the petitioner has failed to publish dummies even after expiry of the period of about 4 months as is evident from the record of office of District Magistrate, Quetta where even a single copy has not been received.

13. We have given our anxious consideration to the arguments so advanced. Attending firstly to the moot question pressed by petitioner's counsel that once the District Magistrate authenticated a declaration, he is divested of any power/authority to cancel a declaration as there is no express power granted to him under the Ordinance, suffice is to observe that the general principle of locus poenitantipe shall apply in such case. Mr. Basharatullah, however, strenuously urged that District Magistrate, Quetta was conscious of the fact that there was some similarity in the names of two newspapers namely the Daily "Mashriq" and "Al‑Mashriq" but still he granted declaration and authenticated it. Resultantly the petitioner started its publication by engaging employees and investing huge amount. Thus, a vested right accrued in favour of petitioner which could not have been taken away by the District Magistrate in exercise of powers under section 12 of the said Ordinance. In fact the argument was that though the District Magistrate was fully authorised under section 12 of the Ordinance to have refused authentication but after once he exercised his authority by allowing authentication then there is no provision in the Ordinance for cancellation of such authentication. Moreso, when after authentication the petitioner started working by engaging employees and by publishing the paper "Al‑Mashriq". In order to supplement his argument reliance has been placed on PLD 1969 SC 407 in which inter alia it was observed that an authority competent to make order has power to undo it. However, the order cannot be withdrawn or rescinded once it has taken legal effect and certain right created in favour of an individual. Applying this principle to the facts of present case it may be observed that the District Magistrate granted declaration and authentication on 17‑3‑1996. However, thereafter, the respondent No.3 (The Daily "Mashriq") filed an application for cancellation of such declaration. But in the meanwhile according to petitioner she started publishing the Daily "Al‑Mashriq" with effect from 17‑4‑1996 and kept on doing so till 23‑6‑1996. This contention, however, was repudiated by the District Magistrate according to whom the office has never received any copy of such publication during the said period and only copy was brought when notice was issued on 7‑7‑1996. Furthermore, not a single copy of such publication has been attached alongwith this petition. Thus, it cannot be safely concluded without further probe whether the petitioner at all has started publication of "Al‑Mashriq" in pursuance of order passed by District Magistrate. This view can further be substantiated from the fact that in the meanwhile petitioner processed another application for grant of declaration title "Al‑Maghrib‑O‑Wal Mashriq". Thus, she clearly did not persue the cancellation of first authentication. Yet another fact worth consideration is that towards this period the Civil Court passed ad interim order by stopping the petitioner from publishing the Daily "Al‑Mashriq". Furthermore, the petitioner has failed to supply the serial number of the newspaper with the name of Publisher and Printer which could prima facie supplement the arguments advanced by the petitioner's counsel that, in fact, authentication of the paper Daily ' Al‑Mashriq' has been acted upon. A right can accrue only when the order passed in lawful exercise of jurisdiction has been acted upon. In a recent case reported in 1997 SCMR 15 the Honourable Supreme Court observed that principle of locus poenitentiae would be available to the authorities whereby any order which was made by mistake could be undone, yet such order could not be withdrawn or rescinded once it had taken legal effect and created certain rights in favour of any individual. Nothing, has been produced before us to prove that the authentication of declaration given to petitioner for the Daily ' Al‑Mashriq" has, in fact, been acted upon, thus, created a vested right in favour of the petitioner. The District Magistrate has, in the impugned order, observed as under:‑‑

"It will be pertinent to mention here that the respondent also failed to exercise his rights as contemplated in subsection (6) of section 9 (which are subject to discretion of District Magistrate) and at no stage came up with any intimation regarding reasons for non‑publication even after passage of more than three months." Having concluded so we now proceed to see whether the District Magistrate considered relevant provision and for valid reasons cancelled declaration or otherwise. In this regard the observations made by District Magistrate which will be relevant, are as follows:‑‑

"It is apparent that the rights of appellant are likely to suffer both in terms of monetary benefits and prestige. Furthermore it also appears that the readers are likely to be misled by the similarity of titles of proposed publications and the sponsoring agencies for commercial advertisements may also suffer on the same account. In addition to this it has been established beyond any doubt that the respondents have failed to perform mandatory obligation as contemplated in subsection (1) of section 9 of Registration of Press and Publications Ordinance, 1995 by failing to publish the newspaper within a maximum period of three months." The contention of Mr. Basharatullah that the two words "Al‑Mashriq" and "Mashriq" were quite different and distinct in their meaning, connotation and appearance, is not convincing at all. "Al‑Mashriq" and "Mashriq" carry same meaning for general public and a daily newspaper in the name of "Mashriq" is being printed and published from Quetta which is a daily and in Urdu language, therefore, no exception can be taken to the order made by the District Magistrate. Since we have decided the material questions, hence we do not feel it necessary to attend to the preliminary objection raised by Additional Advocate General as regards maintainability of the petition in view of the fact that the appeal was maintainable. For all such reasons we are pursuaded to dismiss the petition. We order accordingly. However, we pass no orders as to costs. A.A./651/Q????????????????????????????????????????????????????????????????? ??????????? Petition dismissed