D.P. Wadhwa, J.
(1) The petitioners numbering two, a Chartered Accountant and an Advocate, have Filed this petition under Article 226 of the Constitution seeking the following reliefs :-
(I)Issue .appropriate writ order or direction in the nature of writ of prohibition, prohibiting the Registrar of Trade Marks, Respondent. No.3. from registering any purported trade marks of foreign newspaper which are already registered with the Registrar of Newspapers, Respondent No.2, under Section 6 of the Press & Registration of Books Act, 1867. having same or similar names as that of the applicants Newspapers.
(II)To issue appropriate Writ, order or direction in the nature of Writ of mandamus directing the Registrar of Trade Marks, Respondent No. 3 to strictly comply, and not to ignore or violate Section 6 of the Press and Registration of Books Act, 1867, while registering the purported trade mark of any foreign newspaper.
(III)To issue appropriate order or direction in the nature of prohibition or mandamus quashing the order of Registrar of Trade Marks, Respondent No.3, registering the purported Trade Mark of foreign newspapers having same or similar name which are already in circulation and registered under Section 6 of the Press Act.
(IV)Pass any other order or orders as are deemed Fit and appropriate in the fact and circumstances of the case.
(2) There are three respondents, namely, (1) Union of India in the Ministry of Information and Broadcasting; (2) Registrar of Newspapers for India under the Press and Registration of Books Act, 1867 (for short 'the Prb Act');and(3) Registrar of Trade Marks under the Trade and Merchandise Marks Act. 1958 (for short 'the Trade Marks Act'). At the outset it was pointed out that the petitioners had no interest in the matter, they being interlopers and could not maintain such a petition. It was said that they are front men of some newspapers as prayer (i) would show where the last line refers to 'same or similar names as that of applicant newspapers'. We will come to this point at a later stage. When this petition came up for admission before Avacation Judge on 22 December 1993, he issued notice in the petition as well as in an application seeking interim relief for 24 December 1993. At this stage respondents 2 and 3 were restrained from registering any foreign newspaper with the title similar to the title 'SUN'. This order was made on an application (C.M. 9410/93) on behalf of M/s.Bandhu Associates seeking to be imp leaded as a petitioner in the petition. In their application Bandhu Associates, apart from seeking to be imp leaded as a party in the petition, also sought restraint on the respondents from registering any name, or similar name which was already registered with the Registrar of Newspapers for India under the PRB Act including the name of the applicant. Similar restraint was sought on the Registrar of Trade Marks as well that that respondent be restrained from registering any foreign newspaper with the same or similar title to the title 'SUN'. Without Bandhu Associates being imp leaded as a party in the petition, the court passed the restraint order as abovementioned. Another application (C.M. 9399/93) was filed by M/s. Times Publishing House Limited for intervention. In this also prayer was made respecting the newspaper of the applicant under the name 'FINANCIAL TIMES' as in the case of 'SUN'. On this application, while issuing notice the court recorded submission of Mr. Anil Dewan, learned counsel for Financial Times Ltd., U.K., that he would also be moving an application to be imp leaded as a party in the petition. The court recorded that Mr. Dewan drew its attention to a case pending in the Bangalore City Civil Court between Financial Times Ltd., London, and M/s. Times Publishing House Limited. In this view of the matter the court, thereforee, did not pass any interim order. The application for impleadment later filed by Financial Times Limited is C.M. 20/94. At a later date M/s. Bandhu Associates withdrew their application (C.M. 9410/93) as they said that they had themselves filed a substantive writ petition being Cwp No. 43/94. Their application was, thereforee, dismissed and the interim orders made earlier were vacated.
(3) Before dealing with various other applications filed in the matter seeking to be imp leaded as parties we directed that we would First like to determine the question of maintainability of the petition itself. The other applications are: C.M. 9400/93 by From Gupta, a public man; C.M. 9401/93 by journalist Ravinder Singh; C.M. 348/94 by V.N. Narayanan, Editorin Chiefof Tribune Publications; and C.M. 9409/93 by Iqbal Krishan Sharma. In answer to show cause notice, respondents have filed their affidavits in reply.
(4) Meanwhile, some other writ petitions on the same question also came up to be filed. We may as well note them as arguments were common. Cwp 5410/93 filed on I December 1993 is by Times Publishing House Limited. In this respondents are Union of India; Registrar of Newspapers; and M/s. Prayosha Marketing Private Limited, printers and publishers of M/s. Modern Financial Times, Bombay. The prayers are: a direction to Registrar of Newspapers to strictly comply with the provisions of section 6 of the Prb Act and not to authenticate any declaration sought to be made by any person bearing the title Which is same as or similar to thetitle'FINANCIALTIMES'ofthe petitionereither in the same language or in the same State. Yet another prayer is to quash and set aside the registration of the title 'MODERN Financial TIMES' from the Register maintained by the Registrar of Newspapers. While issuing notice to show cause on this petition, the court also directed the respondents not to register any newspaper bearing title 'FINAN- Cial TIMES' pending hearing and Final disposal of the petition.
(5) Cwp 43/94 is by M/s. Bandhu Associates. In this also while issuing notice to show cause as to why rule nisi be not issued, the court granted interim orders prohibiting the Registrar of Trade Marks from registering any title/purported trade mark of forein newspapers which was also registered with the Registrar of Newspapers, second respondent under section 6 of the Prb Act having same or similar names and not to ignore section 6 of the Prb Act. It would, thus. appear that the interim order not only protected the petitioner publisher of 'SUN', but it applied to all the foreign newspapers.
(6) Cwp 243/94 has been filed by All India Newspapers Editors Conference, through its President Vishwa Bandhu Gupta who is also the second petitioner. There are Five respondents, respectively, the Union of India in the Ministry of Law and Company Affairs; Foreign Investment Promotion Board: Reserve Bank of India; Press Trust of India; and United News of India. The petitioner has prayed as follows:-
A)issue appropriate writ order or direction directing the respondent No.2. Foreign Investment Promotion Board not to clear or grant or accept any proposal pending or applied by foreign companies or foreign nationals for equity partnership with any individual or Indian company, for printing or publishing of newspapers in India.
B)to issue appropriate writ order or direction to Respondent No.3, Reserve Bank of India, not to grant permission or approval to foreign companies for any investment or setting up of Indian venture or joint venture in India for the purpose of settig up of business or printing, publishing or circulation.
C)to issue direction to the Department of Legal and Company Affairs of Ministry of Law and Company Affairs, Union of India, respondent No. I, from granting approval to the proposals made to respondent No. I by respondent No.2 or 3 or any other category.
D)Pass any other order or orders as are deemed fit and appropriate in the fact and circumstances of the case.
(7) Cwp 1.56/94 is by M/s. Hill Media Publications. The petitioner publishes a weekly newspaper 'Sikkim Observer' from Gangtok, Sikkim, and there arc eight respondents which include the Editors' Guild and the Press Council apart from the respondents mentioned in the writ filed by All India Newspaper Editors Conference. In this petition also while issuing notice to show enuse the court granted interim orders prohibiting the Registrar of Newspapers and Registrar of Trade Marks from registering any title/purported trade-mark of any newspaper already registered with the Registrar of Newspapers under the provisions of the PRBAct and having same or similar name as that of the existing newspapers and not to ignore section 6 of the Prb Act.
(8) Writ Petition Nos.5410/93,43/94 and 156/94 were directed to belisted along with CWP5770/93. WhenCWP243/94 came to belisted before this Court for admissionit was adjourned to 22 February 1994 as on this date connected writ petitions were also listed. We were told that D.B.I of this Court on 21 February 1994 admitted C.W.P. 899/94 and issued Rule D.B. On an application for seeking interim relief similar to that in the petition before us notice was issued for I March 1994. In this case D.B. I did not issue any show cause notice. We may also note that D.B. I itself had earlier directed that Writ Petition Nos..5410/93, 43/94 and 156/94 be listed along with Cwp 5770/93 and that is how the matters came before us. In all these four petitions notices have been issued to the respondents to show cause, and in answer thereto affidavits in reply have been Filed in Cwp No. 5770/93, and we have also heard arguments at length. We, thereforee. proposed to dispose of all these matters at this stage.
(9) Before we discuss the rival pleas, we may as well note some relevant provisions of the Prb Act and the Trade Marks Act. The Prb Act, as the preamble would show. was enacted to provide for the regulation of printing-presses, newspapers, for the preservation of books and newspapers printed in India and for the registration of such hooks and newspapers. 'Newspaper' means any printed periodical work containing public news or comments on public news. Section 5 provides that no newspaper shall be published in India except in conformity with the rules hereunder laid, and the relevant rules are :-
'(2)The printer and the publisher of every such newspaper shall appear in person or by agent authorised in this behalf in acordance with rules made under Section 20, before a District, Presidency or Sub-divisional Magistrate within whose local jurisdiction such newspaper shall be printed or published, and shall make and subscribe, in duplicate, the following declaration: 'I, Ab, declare, that I am the printer (or publisher, or printer and publisher) of the newspaper entitled ____________ and to be printed or published, or to be printed and published, as the case may be at And the last blank in this form of declaration shall be filled up with a true and precise account of the premises where the printing or publication is conducted.
(2A)Every declaration under rule (2) shall specify the title of the news- paper, the language in which it is to be published and the periodicity of its publication and shall contain such other particulars as may be pre- scribed.
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(2C)A declaration in respect of a newspaper made under rule (2) and authenticated under Section 6 shall be necessary before the newspaper can be published.
(2D)Where the title of any newspaper or its language or the periodicity of its publication is changed, the declaration shall cease to have effect and a new declaration shall be necessary before the publication of the newspaper can be continued.
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(3)As often as the place of printing or publication is changed, a new declaration shall be necessary: Provided........ xx xx xx
(8)........Provided that no person who does not ordinarily reside in India, or who has not attained majority in accordance with the provisions of the Indian Majority Act, 1875 (9 of 1875), or of the land to which he is subject in respect of the attainment of majority, shall be permitted to make the declaration prescribed by this section, nor shall any such person edit a newspaper.
Section 6 deals with authentication of declaration and, in relevant part, is as under:
6.Authentication of declaration. - Each of the two originals of every declaration so made and subscribed as is aforesaid, shall be authentiicated by the signature and official seal of the Magistrate before whom the said declaration shall have been made: Provided that where any declaration is made and subscribed under section 5 in respect of a newspaper, the declaration shall not, save in the case of newspapers owned by the same person, be so authenti- cated unless the Magistrate is. on inquiry from the Press Registrar, satisfied that the newspaper proposed to be published docs not bear a title which is the same as, or similar to, that of any other newspaper published either in the same language or in the same State. Deposit. -........ Inspection and supply of copies.
..... A copy of the declaration attested by the official seal of the Magistrate or a copy of the order refusing to authenticate the declara- tion, shall be forwarded as soon as possible to the person making and subscribing the declaration and also to the Press Registrar. Section 8B deals with cancellation of declaration, and is as under:- 8B. Cancellation of declaration.- If, on an application made to him by the Press Registrar or any other person or otherwise, the Magistrate empowered to authenticate a declaration under this Act, 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 person and after giving him an opportunity of being heard, he is satisfied that -
(I)Hthe newspaper, in respect of which the declaration has been made is being published in contravention of the provisions of this Act or rules made there under: or
(II)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 same State; or
(III)the printer or publisher has ceased to be the printer or publisher of the newspaper mentioned in such declaration; or
(IV)the declaration was made on false representation or on the conceal- ment of any material factor in respect of a periodical work which is not a newspaper the Magistrate 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.
Section 8C provides for appeals to the Press and Registration Appellate Board constituted under section 4 of the Press Councils Act, 1978, by any person aggrieved by an order of Magistrate refusing to authenticate a declaration under section 6, or cancelling a declaration under section 8B of the Act. Sections 12 to 17 under Part Iv provide for penalties for contravention of various provisions of the Act. Part Va deals with registration of newspapers. Sections 19A to 19-L fall under this Part. Section 19A deals with appointment of Press Registrar and other officers; section 19B with Register of newspapers and the.particulars to be entered therein; under section 19C, on receiving from the Magistrate under section 6 a copy of the declaration in respect of a newspaper and on the publication of such newspaper, the Press Registrar shall issue a certificate of registration in respect of that newspaper to the publisher thereof. Other sections under this Part Va provide for furnishing of annual statement,returns,righ to facces soft he Press Registrar or any gazetted officer to the records and documents, penalty for contravention of some sections under this Part.
(10) The Trade Marks Act, as the preamble would show, provides for the registration and better protection of trade marks and for the prevention of the use of fraudulent marks on merchandise. Registrar of Trade Marks is a statutory authority to administer the provisions of this Act. It is not mandatory to register atrademark. The principal advantage of registration of a trade mark under the Act is that it confers upon the registered proprietor certain benefits, like, filing a suit for infringement of trade mark. A person whose trade mark is not registered, but claims infringement of trade mark, cannot File such a suit but he can only File a suit for passing-off action under the common law. 'Various sections under this Act provide for procedure for registration; rights conferred by registration: assignment and transmission of trade marks; rectification of the register on the grounds of non-use; rectiFication, correction and alterations of register; powers of the Registrar of Trade Marks, and the procedure to be adopted by him; suit for infringement of passing-off; reliefs; appeals; and groundless threats, etc. Any person claiming to be the proprietor of a trade mark uses or proposed to be used by him, who is desirous of registering it, shall apply in writing to the Registrar of Trade Marks in the prescribed manner for registration of his trade mark [section 18(1)]. The Trade Marks Act does not discriminate between Nationals of this country or the foreign Nationals in the matter of application for registration of the trade mark. Provisions of the Act provide that when an application for registration of a trade mark is received in the office of the Registrar of Trade Marks a search is caused to be made by the Registrar in order to see whether the application meets the requirements of the various statutory provisions. Once an applica- corporation is accepted for registration or ordered to be advertised before acceptance, any person may file notice of opposition within the prescribed period [Section 20(1). The opposition is then dealt by the Registrar of Trade Marks as a Tribunal and he acts as a quasi judicial authority. The validity of registration itself can be attacked on various grounds. The Act provides for removal of a mark from the register if it is shown that it was registered without sufficient cause, or that it wrongly remained on the register. An application for rectiFication can be made either to the Registrar of Trade Mark or to the High Court. The Act also provides for alteration or amendment of the entries in the register including the trade mark. Section 33 of the Trade Marks Act saves vested rights inasmuch as this Act does not entitle the proprietor of registered trade mark to interfere with or restrain the use by any person of a trade mark identical with or nearly resembling it in relation to goods in relation to which that person or a predecessor in title of his has continilosuly used that trade mark from a date prior - (a) to the use of the First-mentioned trade inrelation to those goods by the proprietor or a predecessor intitle of his; or (b) to the date of registration of the First-mentioned trade mark in respect of those goods in the name of the proprietor or a predecessor intitle of his; whichever is the earlier, and the Registrar shall not refuse (on such use being proved) to register the second-mentioned trademark by reason only of the registration of the First-mentioned trade mark. The Act also contains provisions for Filing of appeal to the High Court from an order or decision of the Registrar under the Act or the Rules made there under [section 109]. It would, thus. beseen that the Trade Mark Act is a comprehensive legislation dealing with rights which aperson can acquire in respect of his trade mark, the mode of acquisition of such aright, the manner of transfer of that right to others, the precise nature of infringement of such a right, and the remedies available in respect thereof. The Fourth Schedule to the Trade and 672 Merchandise Marks Rules Framed under the Trade Marks Act contain classification of goods respecting which trade mark could be registered. A newspaper can also be registered as a trade mark. Item 16 of this Schedule provides for registration of trade mark in respect of 'paper and paper articles, cardboard and cardboard articles: printed matter, newspapers and periodicals, books;book-binding,material;pholographs:.....' In his affidavit, the Registrar of Trade Marks, respondent No.3, has mentioned some of the well known trade marks registered for newspapers and these are 'Times of India, States- man. Stateman Sunday, Economic Times.' With this affidavit a list of marks relating to newspapers and periodicals which are registered with the Registrar of Trade marks has been filed, and so also the details of other applicants who have already filed their applications for registration of trade marks for their newspapers.
(11) Petitioners submit that their fundamental rights and those of citizens of India especially under Articles 14, 19(l)(a) and (g) and 21 wouldbeaffected,ifnot destroyed, if foreign newspapers and journalists are allowed to publish their respective newspapers and journals in India, and that the entry of such foreign newspapers and journals is not only illegal and without jurisdiction but would be deterimental to the national interest. security of the State, sovereignty of the country, etc. , and that whereas Indian press is extremely responsible and knows how to express the views and exercise its freedom of speech, the foreign press will act irresponsibly and abuse the right to freedom of speech and. thus, causing great harm and prejudice to this country and its citizens. We have been unable to appreciate these arguments. Rather we find that these petitions are based not on any violation of any right of the petitioners but speculative in nature and a product of some misapprehension in the minds of the petitioners. It cannot be presumed that the foreign newspapers and journals would contravene the law of this country, or indulge in activities prejudicial to the integrity of the country and maintenance of public order.
(12) It is a well known fact that over a considerable period of time foreign newspapers and journals have been freely sold and circulated in this country and it is not suggested that such circulation of foreign newspapers and journals has caused any harm to the citizens of India, or has endangered the security and sovereignty of the State. Enough safeguards exist in law against sedicious, obsecene writings, or writings which promote enmity between different groups on grounds of religion, place of birth, language, etc., or doing acts prejudicial to maintenance of harmony. Then there is a Press Council Act. 1978. which establishes a Press Council for the purpose of observing the freedom of Press and of maintaining and improving the standards of newspapers and news agencies in India. Press Council has power to censure if it has reason to believe that a newspaper or news agency has offended against the standards of journalistic ethics or public taste or that an editor or a working journalist has committed any professional misconduct. Much has been said by the petitioners about the PRBAct and the Trade Marks Act that they are in conflict with each other in that it is the Prb Act which is a special enactment which would prevail when it comes to registration of newspapers. We have not been shown any instance where such a conflict has arisen. We have set out various provisions of these two Acts to a certain extent. As and when conflict arises between the two Acts court can always resolve it based on well settled principles of interpretation of statutes. Since no such conflict has been shown to arise in any particular case, it is, thereforee, unnecessary for us to consider this argument in abstract. Court does not answer an academic question howsoever tempting that may be. Remedies have been provided in both the Act. if there is infringement of the provisions of any of them. Moverover, the orders passed under these two Acts are quasi judicial orders against which judicial review and appeals are maintainable. As a matter of fact, in some cases we have already held that where orders passed are quasi judicial public interest litigation would not be maintainable (for example see Cmmon Cause v. The Commissioner of Municipal Corporation of Delhi and another, 1991 (3) D.L. 118.
(13) It is argued that the executive must stick to its policy of the year 1955 laid under the Cabinet decision that no foreign owned newspaper or periodical can be permitted to be published in India, and no foreign newspapers and periodicals which deal mainly with news and current affairs be allowed to bring out Indian editions. That is a policy and policy can change with change of times. It is a political decision and the courts have no role to play therein. Constitution itself has been amended number of times since 1950. Judiciary is not a policy making body. A policy decision when taken may be subject matter of judicial review. Power of judicial review itself has limitations. It cannot be absolute. In Kumari Shrilekha Vidhyarthi etc. v. State of U .P. and others. : AIR1991SC537 , the court said that the scope of judicial review may vary with reference to the type of matter involved. but the fact that the action is reviewable, irrespective of the sphere in which it is exercised, cannot be doubted. Then the court observed as under :-
'IT is significant to note that emphasis now is on reviewability of every State action because it stems not from the nature offunction, but from the public nature of the body exercising that function; and all powers possessed by a public authority, howsoever conferred, are possessed 'solely in order that it may use them for the public good'. The only exception limiting the same is to be found in specific cases where such exclusion may be desirable for strong reasons of public policy.'
(14) Petitioners say that there were certain press reports that several foreign newspapers are seeking to enter Indian market with names and titles more or less similar to titles already published in India, and that these foreign newspapers are seeking registration under the Trade Marks Act and seeking to convert such titles into proprietorial rights. It is again asserted that the Prb Act and the Trade Marks Act are not in harmony to each other, and that the party can patent a name under the Trade Marks Act to the effect that it could deprive the existing newspaper from publishing. An example has been given that if a party patents the title 'Tribune' under the Trade Marks Act and having got the name so registered could enforce and seek injunction against the established paper 'The Tribune' published from Chandigarh for the last many years. The petitioners, thus, apprehend that it would be a case of collusion between the functionaries of the office of the Registrar of Trade Marks and lobbyists of the public relation agencies of the foreign companies to the effect that names and titles would be registered by the Registrar of Trade Marks to the detriment of the interest of the local parties and in violation of the provisions of the Prb Act. We have already stated above that so far we have not been given any concrete example where such a thing has happend. We, thereforee, would not take notice of such a argument. In any case enough safeguards exist in the two Acts against registration of common names of foreign newspapers or fof that matter of any newspaper.
(15) In the writ petition Filed by the Times Publishing House Limited (CWP 5410/93) a direction is also sought against Registrar of Newspapers not to authenticate any declaration sought to be made by any person which would bear a title which is same as or similar to the title 'Financial Times' either in the same language or in the same State, and petitioner also seeks to quash registration of the title 'Modern Financial Times' from the register maintained by the Registrar of Newspapers which name has been registered in the name of the third respondent M/s. Prayosha Marketing Private Limited ('Prayosha' for short). Since such aprayer, if granted, would affect the Financial Times Limited, London (F.T. Ltd.), an application has been filed on its behalf in all these matters for impleadment. The applicant F.T. Ltd. filed an application for registration of the trade mark 'Financial Times' under No. 468937 in Class 16 in respect of printed matter, newspaper, periodical publication, book materials, stationery, etc. under the provisions of the Trade Marks Act and this application was advertised in theTrade Marks Journal No. 1052 dated I April 1993 to enable any party to 'file notice of opposition. No party filed any such notice of opposition. In accordance with the provisions of the Trade Marks Act the application for trade mark 'Financial Times' was registered in October 1993 in favor of F.T. Ltd. effective from 9 March 1987. The F.T.Ltd.is.thus the registered proprietor of trade mark 'Financial Times'. It is stated that F.T. Ltd. is publishing daily newspaper under the title 'Financial Times' since 1888 and is one of the oldest financial dailies in the world. It has world wide circulation including India and it is stated that F.T. Ltd. sold issues of the newspaper 'Financial Times' worth Rs.66 lakhs during the year 1992 in India alone. Prayosha started publication of newspaper under the title 'Modern Financial Times'. Times Publishing House Limited (CWP 5410/93) Filed asuit in the Bangalore City Civil CourtagainstPrayoshaand the Registrar of Newspapers in or around December 1992and sought atemporary injunction restraining Prayosha from in any manner using the name 'Modern Financial Times'. It is stated that Times Publishing House Limited failed to obtain any such injuntion, and rather F.T. Ltd. filed a suit against Prayosha on 4 June 1993 in the Bombay High Court for passing off action and the Bombay High Court granted ad . interim injunction restraining Prayosha from publishing its newspaper under the title 'Modern Financial Times'. It is admitted that since July 1993 Prayosha has changed the name of its newspaper from 'Modem Financial Times' to 'Modern Financial Trends'. F.T. Ltd. then states that in November 1993 Times Publishing House Limited and a company known as Wellcast Press Limited, Bangalore, started publishing a newspaper under the title 'Financial Times'. It is stated that earlier in July 1993 Times Publishing House Ltd. had attempted the publishing of a newspaper under the name 'Financial Times' but after bringing out a few issues it discontinued its publication. F.T. Ltd. filed a suiton 3 December 1993 in the Bangalore City Civil Court against Times Publishing House Ltd. and Wellcast for infringement of its registered trade mark and for a passing-off action. The City Civil Court, Bangalore, granted ad interim injunction in favor of F.T. Ltd. restraining Times Publishing House Ltd. and Wellcast from publishing its newspaper titled 'Financial Times'. Times Publishing House Ltd. then took the matter in civil revision to the Karnataka High Court, but failed. Then it is stated that on 15 February 1994 Times Publishing House Ltd. filed a writ petition in the Karnataka High Court challenging the orderdated4 December 1993 of the City Civil Court, Bangalore, granting injunction. But this writ petition was also dismissed in liming. This position is not disputed before us,and Mr. Arun Jaitley admitted that since Prayosha is now publishing newspaper under the title 'Modern Financial Trends' he has no grievance against Prayosha. The controversy between F.T. Ltd. and Times Publishing House Limited is already before the City Civil Court, Bangalore, and we have p73 nothing to say.
(16) As we have seen above, an order is also sought in 'some of these petitions that Foreign Promotion Investment Board be restrained from approving or granting permission, or promoting any collaboration of any foreign newspaper with any Indian party. It is stated that F.T. Ltd. signed a joint venture agreement with the Ananda Bazar Palrika Ltd. for the purpose of publication of F.T. Ltd's newspaper 'Financial Times' in this country. An application (C.M. 1439/94) has also been Filed by Ananda Bazar Patrika Ltd. forimpleadment in the writ filed by M/s. Hill Media Publications (CWP No. 156/94). M/s.Hill Media Publications publishes 'Sikkim Observer' and is not in itself aggrieved with any joint venture agreement between F.T. Ltd. and Ananda Bazar Patrika group. Except for the writ filed by Times Publishing House Ltd. (CWP 5410/93), other writ petitions are in the nature of public interest litigation. It will be certainly for the Foreign Promotion Investment Board to grant or to withhold permission of joint venture as per the policy. As will be noticed again hereinafter from the affidavit filed by the Union of India and the Registrar of Newspapers that no such approval has so far been granted.
(17) In the writ petition Filed by M/s. Bandhu Associates (CWP 43/94) there is a prayer that the Registrar of Newspapers and the Registrar of Trade Marks be restrained from registering any foreign newspaper with the title which is same or similar to the title 'SUN', a publication of the petitioner. This petitioner has not stated if any foreign company has applied to either of these two authorities for registration of its publication 'The Sun'. We see no reason as to why the authorities under the Prb Act and the Trade Marks Act would not act according to the provisions contained in these two Acts. We do not know if any such application has at all been made. We cannot prevent the authorities from exercising their discretion in accordance with law particularly when the orders passed by them are quasi judicial orders which are subject to judicial review and appeal etc. We, thereforee, cannot pass any such order as prayed by M/s. Bandhu Associates.
(18) Respondents I and 2 have stated that under the Prb Act no newspaper can be published in India except in conformity with the Rules laid down under this Act. This is, of course, section 5 of that Act. They have also referred to a Cabinet decision of September 1955 and of the proposal of M/s. Anand Bazar Patrika Limited in an equity tie up with Financial Times of London. This is para 3 of the reply to the show cause notice and is as under:-
'ASper Cabinet Decision of September, 1955 no foreign owned newspaper or periodical can be permitted to be published in India and no foreign newspapers and periodicals which deal mainly with news and current affairs be allowed to bring out Indian editions. In view of this decision, no Indian edition of a foreign newspaper/periodical even with a tie-up of an Indian party has been allowed to be published in the country, except 'Readers' Digest' which was considered and approved by the Cabinet in 1955 itself. Thereafter publication of 'Parade' for 5 years up to November 1992 injoint venture was also allowed. Extension of further publication of this magazine is under review. These two periodicals were registered in terms of the various provisions of the Prb Act and no foreigner was involved as the publisher, printer, editor and owner. It is furthr submitted that the Ministry of Industry,Department of Industrial Development, Foreign Collaboration Division, vide their letter dated 2.2.94, with reference to Cw No. 156/94, M/s. Hill Media Publications v. UOI. pending before this Hon'ble Court,hasintimated that in view of the Cabinet decision of September, 1955 and the recommendations of Ministry of Information & Broadcasting no proposal prmitting any Collaboration/Foreign Newspaper with any Indian Party or otherwise for undertaking printing publishing or circulatig business has been approve so far by the Foreign Investment Promotion Board and that the recent proposal of M/s. Anand Bazar Patrike Ltd. for an equity tie up with Financial Times of London has also not been cleared in view (of) O.M. No.10/23/93-Press dated 21.1.94.'
(19) We were shown photo copy of this Office Memorandum by Mr. Mittal. He said this might not be referred to or shown to any of the parties. We are unable to agree to such a submission. When reliance is placed on this office memorandum in the affidavit, it forms part of the affidavit and no privilege can be claimed, and it is also too late in the day to raise a claim of any such privilege. We may reproduce this Office Memorandum which is as under:-
'21STJan., 1994. Office Memorandum SUBJECT:- Proposal from M/s. Ananda Bazar Patrika Ltd. for an equity tie-up with Financial Times of London.__ The undersigned is directed to refer to Ministry of Industry. Deptt. of Industrial Development's O.M. No. FC(1)13/1/92 dated 21.12/93 on the subject mentioned above and to say that inaccordance with the Cabinet Decision of Sep., 1955,no foreign-owned newspaper or periodical should be permitted to be published in India and that no foreign newspapers and periodicals which dealt mainly with news and current affairs be allowed to bring out Indian editions. In the light of this decision of the Cabinet, no Indian edition of a foreign newspaper periodical, even with a tie-up of an Indian party, has been allowed to be published in the country. However, a review of 1955 Cabinet Decision is under consideration in this Ministry before being sent to Cabinet. As the present proposal of M/s. Ananda Bazar Patrika Ltd. for equity tie-up with Financial Times, London, for bringing out an Indian edition, comes under the ambit of 1955 Cabinet Decision, it may be kept pending till a decision in the matter is taken. sd/- (MANOJPANDEY) Officer of Special Duty (IP)'
This affidavit-in-reply has been Filed in Cwp 43/94 but Mr. Mittal said that this would be in all the writ petitions. Reference has also been made to proviso to Rule 8 [also referred to as sub-section (8)] of section 5 of the Prb Act which we have already reproduced above. Then these respondents state as under :-
'ASsuch, it is submitted that the ofFice of Registrar of Newspaper for India has so far not cleared any such title under Prb Act which is same or similar to the Indian newspapers to any and in future also the provisions of Press and Registration of Books Act, 1867, will be strictly followed. It is further submitted that uptil now, Rni have not allowed any title to a person who does not ordinarily reside in India and would not do in future except as per the Prb Act explained herein above. It is also stated that such person who does not reside in India has not been allowed to have a foreign newspaper registered by us as per the provision to sub- section 8 of section 5 of the Prb Act. '
(20) Third respondent the Registrar of Trade Marks, has denied that there is any anomaly or any peculiar situation would be created if the trade marks of foreign newspapers or periodicals are registered, or that there will be any violation of any fundamental right of the petitioners or others. Registrar of Trade Marks also dismisses the apprehension of the petitioner that there will be a confusion if a similar mark is allowed to be used in the Indian market. We have seen above that provisions of the Trade Marks Act contain necessary safeguards before an application is accepted for registration of a trade .mark to check any probabilities of confusion or deception. With reference to the registration of the trade mark 'Financial Times' the Registrar of Trade Marks states as under :-
'IT is correct an application for registration of a trade mark 'Financial Times' made by Financial Times Ltd., England, has been filed in this office under Application No. 589811 and 468937. While application 589811 is pending registration. Application No. 468937 is registered. So far as pending Application is concerned, as stated above, the application will proceed for consideration as per the provisions of the Act & Rules. The entry of the Regd. Trade Mark No. 468937 mark has been made in the Register, after following the procedure laid down under the Act. If any person is aggrieved by the existence of such an entry on the Register, he may apply for Rectification of the Register as provided under the provisions of the Trade Marks Act. 1958, and the Rules framed there under.'
It is, thus, submitted that the present petition is ill-conceived and based on misconception and mis-interprelation of law. The purposes and objects of the Prb Act and the Trade Marks Act are different and these two statutes operate in different fields and respondents submit that these do not contravene the provisions of each other. We have already referred to the objects of these two Acts. A trade mark is a mark used in relation to a particular goods in order to distinguish from similar goods of a different proprietor. Since printed publication and newspapers are also goods, a trade mark in relation to such goods is registerable under the provisions of the Trade Marks Act. The third respondent also asserts that provisions of the Prb Act do not impinge upon the provisions of theTrade Marks Act. We, however, do not wish to comment upon the rival submissions in these petitions, but at the same time we do not think that even if there is no harmony between the two Acts, it is of such a nature that it cannot be resolved by proper interpretation.
(21) We had thought the replies filed by the respondents would have satisfied the ap- prehensions, if any, of the petitioners.
(22) It is not for this Court to lay down or formulate a policy for the executive to follow, or call upon it to adopt a particular policy. As noted above, the powers of the court are only of judicial review. In S.B. Sampath Kumar v. Union of India and others, Air 1987 S.C. 386, the Supreme Court has pronounced that judicial review as exercised by the Supreme Court and the High Courts to be unalterable 'basic structure of the constitution'. The court questions the acts and even the policies of the other wings of the State if they are outside the confines of the Constitution and the laws. Courts cannot take the role of the legislature or of the executive. The Supreme Court has cautioned against the temptation to depart from the judicial function and entertaining of public grievances by the courts and has said that the courts must not forget their limitations in social action litigation and wamed against judicial legislation. In Bandhua Mukti Morcha v. Union of India and others, : [1984]2SCR67 , Pathak,J.(as his Lordship then was)said as under (paras 62and 63):-
'WHEREthe Court embarks upon affirmative action in the attempt to remedy a constitutional imbalance within, the social order, few critics will find fault with it so long as it confines ilself to the scope of its legitimate authority. But ther is always the possibility, in public interest litigation. of succumbing to the temptation of crossing into territory which properly pertains to the Legislature or to the Executive Government. For in most cases the jurisdiction of the Court is invoked when a default occurs in executive administration, and sometimes where a void in community life remains unfilled by legislative action. The resulting public grievance finds expression through social action groups, which consider the Court an appropriate forum for removing the deficiencies. Indeed, the citizen seems to find it more convenient to apply to the Court for the vindication of constitution alrights than appeal to the executive or legisia- live organs of the State. In the process of correcting executive error or removing legislative omission the Court can so easily find itself involved inpolicy making of a quality and to a degree characteristic of political authority, and indeed run the risk of being mistaken for one. An excessively political role identifiable with political governance betrays the Court into functions alien to its fundamental character, and tends to destroy the delicate balance envisaged in our constitutional system between its three basic institutions. The Judge, conceived in the true classical mould, is an impartial arbiter, beyond and above political bias and prejudice, func- tioning silently in accordance with the Constitution and his judicial conscience. Thus does he maintain the legitimacy of the institution he serves and honour the trust which his office has reposed in him. '
(23) Sabyasachi Mukharji,C.].,in Hind Hitrakshak Samitiand others v. Union of India and others, : [1990]1SCR588 , said as under :-
'IT is well-settled that judicial review, in order to enforce a fundamental right, is permissible of administrative, legislative and governmental action or non-action, and that the rights of the citizens of this country are to be judged by the judiciary and judicial forums and not by the administra- tors or executives. But it is equally true that citizens of India are not to be governed by the Judges or judiciary. If the governance is illegal or vocative of rights and obligations, other questions may arise out whether, as mentioned hereinbefore, it has to be policy decision by the Government or the authority and thereafter enforcement of that policy, the Court should not be, and we hope would not be an appropriate forum for decision. '
(24) We asked the counsel appearing for the petitioners as to what apprehension they had that the authorities would not act as per law or as per policy initiated in 1955 and could the court interfere merely on that. In this connection Mr. Chitale referred to a decision of the Supreme Court in State of Madhya Pradesh and another v.Bhailal Bhai and others, : [1964]6SCR261 . In this case the court was concerned with the question of refund of tax which was not validly levied by the State Government. The question was about the power of the High court to order refund in such a case. In this connection the court made the following observations (para 15) :-
'WEsee no reason to think that the High Courts have not got this power. If a right has been infringed - whether a fundamental right or a statutory right - and the aggrieved party comes to the court for enforcement of the right it will not be giving complete relief if the court merely declares the existence of such right or the fact that that existing right has been infringed. Where there has been only a threat to infringe the right, an order commanding the Government or other statutory authority not to take the action contemplated would be sufficient. It has been held by this Court that where there has been a threat only and the right has not been actually in fringed an application under Art. 226 would lie and the courts would give necessary relief by making an order in the nature of injunction. It will hardly be reasonable to say that while the court will grant relief by such command in the nature of an order of injunction where the invasion of a right has been merely threatened the court must still refuse, where the right has been actually invaded, to give the consequential relief and content itself with merely a declaration that the right exists and has been invaded or with merely quashing the illegal order made. '
We do not think that these observations of the Supreme Court in any way help the petitioners. There has to be some basis for apprehension. Here there are two Acts-PRB and Trade Marks, operating in the field and there is Government decision of 1955. It is submitted that Government might change its decision. How can the court stop the executive from arriving at a different decision? As observed earlier the court can interfere only in exercise of power of its judicial review if the change of policy is unconstitutional or against the provisions of the law. We, thereforee, reject the argument. Petitioners fail on their principal ground of attack, namely, the registration of common names of newspapers; granting approval of joint venture with foreign newspaper, and allowing publication of foreign newspapers as per the existing policy.
(25) In view of the above discussion, we do not find any merit in any of the petitions. It appears to us that some fear psychosis has gripped the newspaper industry which led to filing of these petitions. In the view of the existence of the policy of the year 1955 and of the Prb Act and the Trade Marks Act there cannot be any threat as perceived by the petitioners. If the executive wants to change the policy, court cannot help the petitioners. It is for the petitioners to approach the executive to reconsider and, if necessary, to amend, vary or rescind its order or policy altogether, if there is any change in the policy of the year 1955. Court's powers are not unlimited. The petitioners have unnecessarily rushed to the court. All these petitions are, thereforee, dismissed and interim orders vacated. Applications seeking impleadment are also dismissed. In the case of C.W.P. 5770/93 we Find the petitioners have no locus standi and as the prayer would show they were put as front men by some third person. Both these petitioners in this petition are, respectively, a Chartered Accountant and an Advocate, and they would be well aware of the decision of the Supreme Court laying criteria as to who can file a public interest litigation. In janata Dal v. H.S. Chowdhary and others. : 1993CriLJ600 , the court said that only a person acting bona fide and having sufficient interest in the proceeding of Pil would alone have a locus standi and could approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration.and that a vexatious petition under the colour ofPIL brought before the court for vindicating any personal grievance. deserved rejection at the threshold. We are not satisfied about the bona fide of these two petitioners in Filing this petition. This petition is, thereforee, dismissed with costs. Counsel fee Rs.5,000.00 . Costs when realised shall be payable to Indian Council of Legal Aid and Advice, Chamber No.3, Lawyers' Chambers, Delhi High Court, New Delhi.