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Najma Heptulla vs Orient Longman Ltd. And Ors. on 29 September, 1988

Delhi High Court
Najma Heptulla vs Orient Longman Ltd. And Ors. on 29 September, 1988
Equivalent citations: 1989 (16) DRJ 5
Author: B Kirpal
Bench: B Kirpal


JUDGMENT

B.N. Kirpal, J.

(1) After having heard counsel for the parties and having considered the suggestions made by them it is proposed that the following steps be taken with regard to the original manuscripts of the book which have been brought from the National Library, Calcutta and the National Archives, New Delhi. These steps are as follows :

(2) The seals of each envelopes containing the manuscripts will be inspected by the court, counsel for the parties, directors or the representatives of the National Library and National Archives.

(3) On the court being satisfied that the seals are intact and have not been tampered with, the seals shall be broken open in court.

(4) The manuscripts will then be inspected by Dr. Parthi of the National Archives, New Delhi for the purpose of determining the state of the paper used in the manuscripts. It is agreed that if the opinion is that the paper will be damaged if it is subjected to photo-copying then in that event a different process will have to be used, possibly by taking photographs for the purposes of making copies.

(5) Copies from the original will be made under the supervision of Shri B.R. Ahuja. Joint Registrar of this court, and the copies so made shall be handed over to the counsel for M/s. Orient Longman Ltd. and the original manuscripts will be re-sealed with the seal of the Registrar of this court but retained in this court till further orders.

(6) Mr. Praveen Anand on behalf of M/s. Orient Longman Ltd. gives an undertaking, which undertaking is recorded and is hereby accepted to the effect that the said copies of the two manuscripts shall be compared by M/s. Orient Longman Ltd. and the book shall be published as early as possible but in no case will it he published and released later than the birth centenary of Maulana Azad which happens to fall either on 11th or 12th November, 1988.

(7) On the publication of the book and on counsel for the parties being satisfied that the book has been published without any distortion, mutilation or modification and is in its entirety then the original manuscripts received from National Library, Calcutta and National Archives, New Delhi shall be returned to them by this court for their custody, consul- tation, reference etc.

(8) I may here notice that it has been contended by the learned counsel for defendant No. 6 that either the photo copies of the manuscripts should be given to her after the photo copies are prepared or she should be permitted to inspect the photo copies before the book is released to public. According to the learned counsel for defendant No. 6, as a legal representative of Prof. Humayun Kabir she has a right under Section 57(2) of the Copyright Act to see that there is no distortion, mutilation or other modification of the printed work. It cannot be disputed that the legal representatives of the author do have a right as envisaged under Section 57(2). The question which, however, arises is whether this right has necessarily to be exercised before the book is printed. In my opinion this right can be properly exercised only after the printing of the book. Under Section 57(1) the author has been given a right to seek restraint or claim damages in respect of distortion, mutilation or other modification of the work. it will not be possible to know whether there has been distortion or mutilation or modification till the work has been printed, ft is only after the publication of the book that the same can be compared with the manuscript and then concluded whether there has been distortion, mutilation or modification. ll is this right which the author has under Section 57(1) which devolves on the legal representatives under Section 57(2). The legal representatives cannot and do not have a better right than that of the author. In my opinion, therefore, no serious prejudice would be caused to the legal representatives of the author if copies of the manuscripts are not made available to them till the publication of the book. The legal representatives will certainly be entitled to get copies of the manuscripts after the publication of the book so that they can see and determine whether there has been any distortion, mutilation or modification of the work.

(9) The packet received from the National Library was taken up first. The packet has an outer covering with brown paper which is tied with a string and bears the seals of the National Library. The seals have been identified by Mr. A. Dasgupta, who is the Director of the National Library. The outer wrapper also bears the signatures of Mr. Dasgupta and Mr. B.R. Ahuja, Joint Registrar.

(10) Inside the outer wrapper there is another wrapper, also brown, which is tied with a string and bears the seals of the Government of West Bengal as well as the seals of the National Library. The outer wrapper also bears the signatures of Mr. R.N. Sengupta, Chief Secretary of the Govern- ment of West Bengal and Mr. D.K. Basu, Commissioner of Police, Calcutta and Ms. Bhuvanesh Kumari, Director of M/s Orient Longmans and Mr. R.K. Dasgupta, the then Director of the National Library, Calcutta. The seals were intact on the outer wrapper.

(11) Inside the wrapper is a box in a gunny bag. The said box has a lock and the lock is covered by a brown paper, tied with a string. The lock is also covered by a cloth and bears the seals of the Government of India, as identified by Dr. A. Dasgupta, who says that the National Library also uses this seal.

(12) The box contains naphthalene balls, cotton wool, the rmacol packing material. Inside the box there is a brown wrapping paper bearing seals in which originally something must have been kept. On the brown paper the following words are written :- “THIS sealed box containing the Azad manuscript is placed today, 2nd February, 1978 at 4 p.m. inside the Godrej iron safe specifically built according to the recommendation of the Intelligence Bureau of the Ministry of Home Affairs, Government of India (Vide a D.O. Letter No. ll(l)/77(ii) dated 17th September, 1977 read with Department of Culture D.O. letter No. F. 8-33/77- CA-1.2 dated 27th October, 1977”.

Below this writing are the signatures of S.N. Khanna, Administrative Officer, National Library; Mr. B.B. Chaudhary, Librarian, National Library: and R.K. Dasgupta, Director, National Library. Below each of these signatures is the date of 2nd February, 1978. Also noted on the said brown envelope are the words “Azad’s MSS” and there is also an endorsement contained on this is as follows :- “HANDED over to prof. R.K. Dasgupta, Director” and underneath” the signatures appear of B. B. Chaudhary and the date 1st July 1977. There appears to be a bit of over-writing on the figure “77”. It seems that it is “73” converted to “77”. Along will this is also the signatures of Mr. B.B. Chaudhary dated 31st July 1973 and below the signatures of B.B. Chaudhary bearing the date 1st July, 1977 are the signatures of Mr. R.K. Dasgupta dated 1st July, 1977. The present Director of the National Library, A Dasgupta states that possibly R.K.. Dasgupta tool over as the Director of the National Library on 1st July, 1977 This brown envelope is marked “A” for identification.

(13) Also inside the box is a cloth envelope. On the top of this cloth envelope is written in bold letters “NOT To Be Opened Till 22 February 1988”. The envelope is addressed to the Librarian, National Library, Belvader, Alipore, Calcutta 27. It bears the signatures of Y.M. Mule, Deputy Librarian, National Library, Calcutta and is dated 22nd April, 1958. On this very envelope there are also signatures of one D.R. Kalia dated 30th November, 1967. This cloth envelope is also marked by me as mark “B” for identification. This cloth envelope is empty and bears the seals of the National Library. The sides of this envelope have been cut, which indicates that a brown packet, which is also in this box, must have originally been in this cloth envelope and has been taken out of this envelope. The brown envelope bears the seal with the initials “H.K.”. Ms. Pinky Anand has produced before me a brass seal bearing the initials “H.K”, and according to her, this is the seal of Prof. Humayan Kabir and it is this seal which was used when this brown envelope containing the manuscript was scaled by him. On this brown envelope is pasted another piece of paper on which the following words are typewritten :- “NOTTO Be Opened Till 22ND February, 1988″ The Librarian, National Library, Belvader, Calcutta.”

The seal which has been produced by Ms. Pinky Anand has been handed over to Mr. B.R. Ahuja for safe custody. This brown envelope has been marked ‘C’ for identification. Inside this envelope is another envelope which is from the Government stationery and contains the seal of the Minister of Civil Aviation, Government of India. According to Ms. Pinky Anand Prof. Kabir was the Minister for Civil Aviation, Government of India in April, 1958. This Government envelope is marked ‘D’ for identification. Inside the aforesaid Government envelope is another envelope which is brown in colour and which has been marked ‘E’ for identification.

(14) The aforesaid envelope contains the address of the Director, National Archives of India, Janpath, New Delhi. There is also a piece of paper which is pasted on this envelope, on which it is written “Not to be opened till 22nd February, 1988”. This envelope also bears the seals of the Minister of Civil Aviation. Inside this is a file cover placed on a card- board flap. This is marked ‘F’ for identification. Inside this is the type- written manuscript, including a Note by Editor bearing the signatures of Humayun Kabir. These signatures have been identified before me by defendant 6, who is his daughter. The manuscript consists.of 296 pages and in addition thereto is a Note by Editor consisting of 2 pages. The last page of the manuscript only bears by hand the words “September, 1-957”. According to defendant 6, this handwriting is that of Late Prof. Humayun Kabir.

(15) The second packet has an outer cover of cloth which has been sewn. It also bears the seals of the Government of India, and signatures of two persons, namely, A.S. Gill and S.N. Prasad. Underneath the signatures of S.N.Prasad, there is the date of 31st July, 1978. According to Dr. R.K.Perti, Director of Archives, National Archives of India, Mr. A.S. Gill was the Addl. Secretary in the Department of Culture, Ministry of Education and Mr. S.N. Prasad was the Director of the National Archives. This cloth cover has been marked ‘G’ for identification.

(16) Inside the aforesaid cloth covering is a card board box and this box is marked ‘H’ for identification. Inside this box is an envelope of Government stationery bearing the address of the Director, National Archives, New Delhi and on the same it is also stated “Not to be opened till 22nd February, 1988”. This also bears the seals of “H.K.”, which appear to be similar to the seal which was used on the packet contained in the box received from National Library, Calcutta. In addition thereto, the words Humayun Kabir are also written in hand, in capital letters and there are also initials of “H.K.”. Neither the defendant 6 nor anyone else is able to identify as to who has written these words and initials. But it does appear to her and Mr. R.K. Anand that the pen used seems to be the same which was used on the packet received from Calcutta. This envelope is marked ‘I’ for identification. Inside this is another brown envelope addressed to the National Archives of India, New Delhi and also bearing the inscription ‘Not to be opened till 22nd February, 1988″. This also bears the seals “H.K.” and has been marked ‘J’ for identification.

(17) There is yet another envelope inside the aforesaid envelope which has been marked ‘K’ for identification. This is also addressed to the National Archives of India, New Delhi with the inscription “Not to be opened till 22nd February, 1988”. This also has the seal of “H.K.”. Inside this is a file cover marked ‘L’ for identification. It contains the manuscript of 296 pages and also bears the words “September 1957” written in hand, similar to the one which was in the earlier manuscript received from the National Library. In addition thereto, there is also a Note by the Editor of two pages signed by Humayun Kabir, whose signatures are identified by defendant 6. It may here be noted that both the note by editor are dated 2nd April, 1958. It appears that the manuscript received from the National Library, Calcutta is the original and the manuscript from the National Archives, New Delhi is the carbon copy.

(18) The manuscript received from Calcutta has been placed in a grey brief case of Vip make. The other manuscript received from the National Archives is placed in a light green brief case also of Vip make. Both the brief cases are old and have been handed over to Mr. B.R. Ahuja, Joint Registrar. 20. Mr. Ahuja is directed to get prepared in his presence one photo copy of each of the two manuscripts including the note by the Editor and certify the same as being the true photo copies and hand over the same to Mr. Pravin Anand, counsel for the Orient Longmans. The original manu scripts shall be sealed by Mr. Ahuja, after the photo copying has been completed and kept in safe custody. Photo copying of the manuscript from National Library will be first done and that will be followed by the photo copying of the manuscript from the National Archives.

(19) The other materials in which the manuscripts were wrapped will also be kept by the Joint Registrar in safe custody.

(20) Mr. Pravin Anand undertakes to deposit in the Registry the photo copying charges which may be leviable on the photo copies given him. Mr. Pravin Anand gives an undertaking, which is hereby recorded an accepted that the entire manuscript along with the note by editor will be published by Orient Longmans without any alteration, distortion or modification or addition.

(21) To come up for further orders on 15th November, 1988.

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