Ajay Kumar Mittal v. UOI & Ors.

5. Description of the antiquity/antiquities, art treasure/art treasures in respect of which this permit is granted 1,350 stamps, 370 covers/letters and 79 others

6. Registration number (s) (if registered) As per list enclosed

7. Number of authenticated photographs of the antiquity/antiquities, art treasure/art treasures 1,350 stamps, 370 covers/letters and 79 others (as per list enclosed) The export permit has been granted in terms of section 3 of Antiquities and Art Treasures Act, 72 and subject to the condition that the antiquities mentioned above and as per enclosed description list will be brought back to India on or before 30th November, 96 and will be produced immediately thereafter before the Director General, Archaeological Survey of India for verification (AJAI SHANKAR)

DIRECTOR GENERAL ARCHAEOLOGICAL SURVEY OF INDIA JANPATH, NEW DELHI No.13-3/96-Ant. Dated: 11.10.96‖

(v) On 19th November 1996, the Superintending Archeologist

(Antiquities), on behalf of the Director General, wrote to the Secretary General, ASI, conveying the decision of the DOC to waive off the cooling period of three years in the case of postal stamps/philatelic objects.

8. Vide OM dated 18th June 1999, the DOC issued revised ―Guidelines for organizing exhibitions abroad for lending art objects to private and public museums and receiving exhibitions from abroad‖. Though the titular reference, in these guidelines, is only to art objects, the Guidelines also embraced antiquities. These guidelines, admittedly, envisaged a detailed procedure to be followed before antiquities or art treasures were exported abroad, which include

(i) prior approval of the DOC before grant of any commitment or agreement with any foreign country or agency to send or receive exhibits,

(ii) processing of each case through an inter-ministerial committee under the chairmanship of the Secretary (Culture) within a month of receipt of the proposal, the prior approval of which would be a pre-requisite for holding of such exhibitions.

(iii) routing of antiquities and art treasures, to be sent abroad for exhibition from private museums/societies/trusts/individuals, through the National Museum, New Delhi,

(iv) the expiry of a minimum cooling off period of three years in the case of antiquities and art treasures proposed to be exported for exhibitions abroad, after they had returned from a previous exhibition, subject to relaxation by the Minister for Human Resource Development in very exceptional cases,

(v) prohibition on sending, abroad, antiquities and art treasures to any private foreign agency unless the request came through the government of the concerned country, with the legal status of the host museum/institution being indicated in the letter, with an accompanying recommendation of the Indian Ambassador in that country.

(vi) insurance of antiquities and art treasures with a nationalized Indian insurance company on wall to wall basis,

(vii) screening and evaluation of all antiquities and art treasures, proposed to be sent for exhibitions abroad, by the National Screening and Evaluation Committee (NS & EC), which would take a view with respect to the category of the exhibits and the requirements of conservation and make specific recommendations in respect of the classification, conservation status and insurance value of each item,

(viii) approval of the draft agreement for sending or receiving exhibits by the DOC and the Department of Legal Affairs to be communicated to the nodal agency and the host agency/organization,

(ix) sending of the exhibition consignment in one lot, accompanied by a technical person, with the approval of the Secretary (Culture) being required where the exhibits were to be sent in more than one lot,

(x) sending of a copy of the agreement, under which the antiquities and art objects were sent abroad to the Ambassy/Mission of India in the concerned country, and

(xi) issuance of a TEP on request, to the nodal agency, by the

DG, ASI as per the terms of the Antiquities and Art Treasures Act, 1972 (―the AATA‖) and the Antiquities and Art Treasures Rules, 1973, covering the duration of the exhibition. The above protocol was subject to strict time limits. The guidelines concluded with the recital that the decisions of the Government of India on all matters relating to export of antiquities and art treasures with regard to exhibitions abroad would be final.

9. The petitioner has also placed on record communications with respect to the Stamp Show 2000 held at London and the PHILANIPPON 2001 exhibition at Tokyo, in the latter of which the petitioner was once again the National Commissioner.

10. In reply to a query from the National Commissioner appointed for the Stamp Show 2000 to be held at London, the MOC, vide OM dated 20th April 2000 addressed to the Director (Antiquities), ASI, clarified thus: ―The undersigned in directed to forward herewith a copy of the letter dated 17.4.2000 received from Shri Yogesh Kumar, National Commissioner, The Stamp Show – 2000 which is self-explanatory. In this connection, the attention of Archaeological Survey of India is invited to this Department‘s O.M. No.27- 40/96-M.I. dated 6th October, 1996 (copy enclosed). This Department have clarified therein that the guidelines issued by this Department are not applicable in case postal stamps / philatelic objects since these cannot be treated as art objects. Similarly, the new guidelines issued by this Department relate to sending exhibits/art objects abroad and receiving them from abroad. Since, it has already been clarified that the postal stamps /philatelic objects cannot be treated as art objects, the new procedure issued by this Department is also not applicable in their case. The Archaeological survey of India (ASI) is therefore, requested to consider the issue of TEP as per the normal rules and regulations of ASI. This issues with the approval of the JS (S).‖

11. In the context of the Tokyo PHILANIPPON Exhibition, the petitioner has referred to the following developments:

(i) On 9th January 2001, the DOP informed the DOC that the petitioner had been nominated as the National Commissioner for the PHILANIPPON 2001 International Philatelic Exhibition to be held from 1st to 7th August 2001 at Tokyo. The communication acknowledged that, as some of the exhibits that the petitioner intended to carry with him were more than 99 years old, they required TEP from the ASI, which, in turn, required an NOC from the cultural angle from the DOC. As such, the DOC was requested by the said communication dated 9th January 2001, to issue an NOC in the name of the National Commissioner, PHILANIPPON 2001 from the cultural angle.

(ii) The DOC, vide OM dated 14th July, 2001 addressed to the ADG, ASI, communicated its ―no objection‖, purely from the cultural angle, to the appointment and participation of the petitioner as the National Commissioner for the PHILANIPPON 2001 to be held at Tokyo, and also to the issuance of TEP for the said exhibition. The relevant passages from the said OM dated 14th July 2001 read thus: ―The undersigned is directed to forward letter number 3-18/2000-Phil (in original), dated the 9th January, 2001, received from the Department of Posts, regarding issue of 'No Objection Certificate' in favour of Shri Ajay K.Mittal, who has been appointed as National Commissioner for PHILANIPPON 2001, to participate in the International Philatelic Exhibition to be held from 01- 07 August, 2001 in Tokyo. The participant also require temporary export/reimport permit for the said exhibition. In this connection it is stated that this Department has no objection purely from cultural angle at no Central Government's cost whatsoever to the release, the said permit, subject to admissibility of the said participation/ temporary permit under the rules.‖

12. Thus, contends the petitioner, for several years in the past, the DOP and the DOC were granting clearance to the participation, by the petitioner, as the National Commissioner in Philatelic Exhibitions held abroad, as well as to the export, by the petitioner, of philatelic exhibits to be exhibited in the said exhibition. They had also opined, prima facie, that the 1999 guidelines issued by the DOC were not applicable to philatelic exhibits.

13. Problems arose with respect to the participation, by the petitioner, as National Commissioner for the World Stamp Championship Israel 2008, which was held at Tel Aviv from 14th 21st May 2008. The petitioner applied, on 8th February 2008, to the DOP, for approval and clearance and for communication, to the DOC for granting the petitioner a no objection so that the petitioner could obtain the requisite TEP from the ASI, as some of the exhibits were over 99 years old. The DOP, accordingly, addressed the following communication, to the DOC on 15th February 2008: ―No.3-5/2008-Phil. Ministry of Communications Department of Posts Dak Bhawan, Sansad Marg, New Delhi-110 001 Dated 15.2.2008 To, The Secretary Department of Culture Ministry of H.R.D. Shastri Bhawan, New Delhi -110 001 Subject: Issue of ‘No objection certificate’ from cultural angle for participation in World Stamp Championship ISRAEL-2008 to be held in Tel aviv, Israel from 14-21 May, 2008. ******* Sir, Mr. Ajay Kumar Mittal is nominated National Commissioner for World Stamp Championship Israelo-2008 to be held in Telaviv, Israel from 14-21 May, 2008. You are requested to kindly issue a ‗No objection certificate‘ in the name of Shri Ajay Kumar Mittal at the earliest to facilitate him to obtain, Temporary Export Permit‘ from Archaeological Survey of India. This is urgent please. Yours Sincerely, (Jagannath Srinivasan) Asstt. Director General (Phil.) Copy to:- Mr.Ajay Kumar Mittal, D-57 South Extension -110049 for information. He is requested to kindly liaise with the Ministry of HRD for issue of a ‗No objection certificate‘ Asstt. Director General (Phil.)‖ Additionally, the DOP wrote to the Director (Antiquities) ASI, on the same day i.e. 15th February 2008 as under: ―No.3-5/2008-Phil. Ministry of Communications Department of Posts Dak Bhawan, Sansad Marg, New Delhi-110 001 Dated 15.2.2008 To, The Director (Antiquities) Archaeological Survey of India, Janpath, New Delhi -110 001 Subject: Grant of Temporary Export Permit to Mr.Ajay Kumar Mittal, nominated National Commissioner for World Stamp Championship ISRAEL-2008 to be held in Telaviv, Israel from 14-21 May, 2008. ******* Sir, Every year many international philatelic exhibitions are held in different parts of the world. A nominee of Philatelic Congress of India is appointed as National Commissioner for these exhibitions to take charge of exhibits from Indian participants. Some of the exhibits contain stamps and covers, which are more than 99 years old and require temporary export permit from ASI. Participating in such exhibitions as well as putting up such exhibits are part of international exchange in philately and takes place frequently. Getting the best / most famous exhibits from different parts of the world adds to the success of the exhibition. Similarly, putting up of some of the celebrated exhibits by Indian Philatelists adds to the image of the country at the exhibition, World Stamp Championship Isreal-2008 to be held in Telaviv, Israel from 14-21 May 2008. Mr.Ajay Kumar Mittal, D-57 South Extension Part-1, New Delhi -110049 has been nominated as a National Commissioner for this exhibition. Keeping in view the above facts, it is requested to kindly grant the TEP to Mr.Ajay Kumar Mittal at the earliest after observing the necessary formalities at your end. Asstt. Director General (Phil.)‖

14. The DOC, this time, did not grant the NOC with as much alacrity as it had exhibited on earlier occasions. Instead, the DOC wrote to the Assistant Director General (Philately), DOP, on 25th February 2008, requiring the DOP to send the checklist for the Tel Aviv Exhibition duly signed by the head of the Division of the nodal ministry, so that a TEP could be obtained from the ASI. The concerned checklist was forwarded by the DOP to the DOC under cover of letter dated 23rd July 2007.

15. Despite lapse of time, no objection from the DOC was not forthcoming. On inquiry, the petitioner was informed that the DOC was applying, to the philatelic exhibits that the petitioner desired to export, the 1999 Guidelines which, as already noted, envisaged a detailed and exhaustive procedure to be followed before antiquities or art exhibits could be exported abroad.

16. Aggrieved by the aforesaid inaction, the petitioner has approached this Court by way of the present writ petition, invoking the extraordinary jurisdiction vested in it by Article 226 of the Constitution of India. The unrelenting passage of time has, however rendered most of the prayers in the writ petition infructuous. The prayer clause in the writ petition reads thus: ―In the aforesaid facts and circumstances it is most respectfully prayed that this Hon'ble Court may kindly be pleased to:a) Issue a Writ of Prohibition or any other appropriate Writ, order or direction thereby prohibiting Respondents Nos. 1 to 4 from taking any step whereby the Petitioner is prevented from taking exhibits of various Indian participants to Tel Aviv for World Stamp Championship Israel 2008; b) Issue a Writ of Mandamus or any other appropriate Writ, order or direction thereby directing the 2nd Respondent to issue Temporary Export Permit [TEP] at the earliest to the Petitioner; c) Issue any appropriate Writ, order or direction thereby declaring that the philatelic material sought to be taken abroad temporarily for the World Stamp Championship Israel 2008 which is more than 75/100 years are not the 'Art Objects' and are not 'Antiquity' under the definition in Sec. 2 [1][a] & [b] of the AAT Act, 1972; d) Issue any appropriate Writ, order or direction thereby declaring that the office memorandum dated 18.6.1999 cannot be applied to philately and other related subjects declaring that stamps etc. as also earlier determined by respondent no 1 vide Office Memorandum dated 20.4.2000; e) Issue any appropriate Writ, order or direction thereby directing the 4th Respondent to accept the TEP issued by the 2nd Respondent and allow the petitioner to take with him the philatelic material of exhibitors as the National Commissioner for the World Stamp Championship Israel 2008 which is going to be held from May 14-21, 2008 at Tel Aviv, Israel; f) Issue any appropriate Writ, order or direction thereby declaring that no NOC is required from the 1st & 2nd Respondent under cultural angle or otherwise in respect of the such private exhibits; g) Pass necessary orders directing the respondents to pay the cost of the present proceedings to the petitioner; and h) Pass such further and other orders as the facts and circumstances of the case may require.‖

17. Mr. Sunil Mittal, learned Counsel for the petitioner submits that, though the prayers in the petition which deal with the Tel Aviv Exhibition, have, needless to say, been rendered infructuous, the issue of coverage, of the philatelic exhibits that the petitioner desired to export, by the AATA and the 1999 Guidelines, still survives for consideration and is a matter of recurring importance as such exhibitions are held every year, and are of considerable repute. He submits that, if carriage of philatelic exhibits abroad, for participation in such exhibitions, is to be subjected to the rigour of the 1999 guidelines and the provisions of the AATA, participation in such exhibitions would become a near impossibility, and would also disincentivize, to a large degree, philatelists from pursuing their hobby, which has an international following. Mr. Mittal has, therefore, while principally arguing that the AATA and the 1999 Guidelines would not cover philatelic exhibits, argued, in the alternative, that, if this Court were to hold that export of philatelic exhibits would also be subject to the AATA and the 1999 Guidelines, directions be issued to the respondents to simplify the procedure for obtaining the requisite clearances and the TEP for carrying philatelic exhibits abroad.

18. During the course of the present proceedings, this Court, vide order dated 23rd January 2014, directed the respondent-Union of India to file an affidavit indicating the stand of the Government as to whether stamps and other philatelic materials were, or were not, covered within the definition of ―antiquity‖ or ―art treasure‖ under the AATA and also to indicate, in the affidavit, the simplified procedure for grant of TEP with respect to postage stamps and philatelic material. Pursuant to the said directions, a ―short supplementary affidavit‖ was filed by the Director (Antiquities), ASI. In the affidavit, it has been stated that, on 24th April 2014, a meeting took place under the chairmanship of the ADG, ASI, the proceedings of which were reduced into minutes. Paras 4 to 7 of the said affidavit may be reproduced thus: ―4. It would transpire from the said minutes of the meeting that it was unanimously decided by the members present in the meeting that philatelic objects and genuine postage stamps more than 75 (seventy Five) years of age are to be considered as antiquities as the same is covered under the definition of "antiquity" as provided in section 2 (II) of The Antiquities and Art Treasures Act, 1972, by way of a residuary clause to the effect that any manuscript, record or other document which is of scientific, historical, literary or aesthetic value and which has been in existence for not less than seventy five years, can be considered to be antiquity.

5. It is most humbly stated and submitted that the aforesaid definition of "antiquity" In The Antiquities and Art Treasures Act, 1972, is wide enough to include postage stamps whose age is 75 (seventy five) years and above.

6. It is respectfully stated and submitted that the issue of grant of Temporary Export Permit (TEP) for such postage stamps was also discussed and taken up in the aforesaid meeting as would be reflected from the aforesaid minutes of the meeting as annexed hereto. It was concluded by the members present regarding such issue that the existing procedure for grant of such permit is simple and cannot, perhaps, be further simplified. It is recorded in the said minutes of the meeting that the guidelines issued in 1999 for grant/issue of TEP have been already substituted by the recent guidelines issued on 25.2.2014, which has already resulted in simplification of the said process. Copy of the aforesaid Guidelines on the subject of 1999 and 2014 are annexed hereto and collectively marked as Annexure R-2 (Colly.)

7. It is most humbly stated and submitted that since philatelic objects and postage stamps older than 75 years would be covered by the definition of "antiquity" under the aforesaid provisions of The Antiquities and Art Treasures Act, 1972, the existing procedure requiring the obtainment of NOC is necessary for the safety and security of such antiquity. Under the existing process, the applicant has to apply to the Department of Posts and Telegraph with a request to appoint the Commissioner and the Department of Posts and Telegraph thereafter approaches the Ministry of Culture. The Archaeological Survey of India thereafter conducts a meeting for the purpose to take a decision on issuing the TEP.‖ The minutes of the meeting which took place on 24th April 2014 were annexed to the affidavit. The following passages, from the said minutes merit reproduction: ―At the outset, Chairman welcomed all the member of the committee and briefed about the matter. As directed by Hon'ble court the issue of philatelic object defined as antiquity was discussed in detail under the provisions of the AAT Act,1972.

ADG ASI was of the view that the philatelic objects are covered as antiquity under Section 2 (a) (II) of Antiquities and Art Treasures Act, 1972 from the date the Act came in to force and no objection has ever been raised as these objects not being an antiquities. He further intimated that section 24 of the act gave an opportunity to any citizen of the country to present, such objects, before Director General ASI if any question arises as to whether any article or object is an antiquity and the decision of the DG ASI shell be final. Director Antiquity has further intimated that article i of UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 1970, Paris, define postage, revenue and similar stamp, singly or in collections as cultural property. Hence, it was felt by the members of the committee that there should not be any question as to the philatelic objects not being antiquities. Ms. Aditi Mohan, Advocate expressed that a certificate from Director General, Archaeological Survey of India could be annexed in the affidavit to be submitted to the Hon'ble Court stating that genuine postage stamps older than 75 years are to be considered antiquities. The issue of simplification of the existing procedure for granting TEP by ASI was also discussed. Joint Secretary, MOC desired to know the entire process of granting of TEP by ASI. SA, Antiquity described the process in detail stating that after appointing Commissioner for philatelic exhibition abroad by D/o P&T, the request of applicant is forwarded to Ministry of Culture for grant of NOC from cultural angle. Once NOC is received from Ministry of Culture, the ASI convene the meeting of National Screening & Evaluation Committee (NS&EC) for screening and evaluation for the purpose of insurance and accordingly TEP is issued by DG, ASI. Joint Secretary (Culture), wanted to know the procedure of appointing philatelic commissioner for exhibition abroad by D/p P&T. ADG (Philatelic) D/o P&T informed that since the Deptt. of Post and Telegraph is the sole custodian for the philatelic material, hence they appoint the Commissioner for said purpose and forward, any request for a exhibition of the same to Ministry of Culture (MOC) for grant of NOC. While briefing the fact of the case Ms. Aditi Advocate, Delhi High Court on behalf of the Govt. counsel defending the case on behalf of ASI expressed that the Hon'ble Court is of the view that a philatelic collector who has the hobby of collection of the postage stamp and subsequently taking abroad for exhibition has to go to several organization for granting NOC hence, existing system need to be reviewed and make it more easy to avoid any problem to philatelic collector. Jt. Secretary, MOC intimated that the existing procedure is not at all complicated. Infact the guidelines issued in 1991 for issuing TEP have been replaced by the recent guidelines issued on 25 2.2014 and the procedure has been made more simple. He was of the view that since the philatelic object are covered under the definition of antiquity, the existing process for obtaining the NOC is mandatory for the safety and security of antiquity, and art treasure. The existing system is so simple that the applicant has to apply only to D/o P&T with a request to appoint the commissioner: It is the D/o P&T who approaches to the Ministry of Culture and thereafter ASI issues the TEP after conducting NS&EC meeting, The members of the committee were of the view that existing guidelines are well within the preview of the act and cannot be simplified further. It was also pointed out in the meeting that MEA in not involved while philatelic exhibition is being taken abroad. Finally, it was unanimously decided by the members present in the meeting that the philatelic objects fall under the category of the antiquity. Similarly the existing procedure of, granting TEP is well within the preview of the act and It is not possible to make it simpler for taking any antiquity and art treasures abroad for exhibition.‖

19. There is, therefore, no consistency of approach, on the part of the respondents, regarding the applicability, to export of philatelic exhibits, of the provisions of the AATA and the 1999 Guidelines. We are, therefore, back to the proverbial Square One. The court is required to consider, essentially, whether philatelic exhibits, such as stamps, stamp papers and envelopes of more than a century‘s vintage, are ―antiquities‖ within the meaning of the Antiquities Act. Submissions and analysis Are philatelic exhibits ―art treasures‖?

20. I may note, here, that Mr. Vikram Jetly, learned Standing Counsel for the UOI did not seek to contend that philatelic exhibits were ―art treasures‖. Indeed, prima facie, philatelic exhibits cannot be regarded as ―art treasures‖, the expression being defined in Section 2(1)(b) of the AATA thus: ―(b) ―art treasure‖ means any human work of art, not being an antiquity, declared by the Central Government by notification in the Official Gazette, to be an art treasure for the purposes of this Act having regard to its artistic or aesthetic value: Provided that no declaration under this clause shall be made in respect of any such work of art so long as the author thereof is alive;‖

21. Antiquities are, therefore, per definition, excluded from the ambit of the expression ―art treasures‖. An item is, therefore, either, an art treasure or an antiquity. It cannot be both.

22. Unlike antiquities, art treasures require, therefore, per definition, to be declared, by notification issued by the Central Government in the Official Gazette, as such. It is nobody‘s case that philatelic exhibits have been notified as art treasures by the Central Government. Ergo, philatelic exhibits cannot be regarded as ―art treasures‖. Are philatelic exhibits ―antiquities‖?

23. What remains to be seen is whether such philatelic exhibits are, ―antiquities‖ within the meaning of Section 2(1)(a) of the AATA.

24. ―Antiquity‖ is defined in Section 2(1)(a) of the AATA thus: ―(a) antiquity‖ includes – (I) (i) any coin, sculpture, painting, epigraph or other work of art or craftsmanship;

(ii) any article, object or thing detached from a building or cave;

(iii) any article, object or thing illustrative of science, art, crafts, literature, religion, customs, morals or politics in bygone ages;

(iv) any article, object or thing of historical interest;

(v) any article, object or thing declared by the

Central Government, by notification in the Official Gazette, to be an antiquity for the purposes of this Act, which has been in existence for not less than one hundred years;

(II) any manuscript, record or other document which is of scientific historical, literary or aesthetic value and which has been in existence for not less than seventy-five years;‖

25. Section 24 of the AATA reads as under: ―24. Power to determine whether or not an article, etc., is antiquity or art treasure.—If any question arises whether any article, object or thing or manuscript, record or other document is or is not an antiquity or is or is not an art treasure for the purposes of this Act, it shall be referred to the Director General, Archaeological Survey of India, or to an officer not below the rank of a Director in the Archaeological Survey of India authorized by the Director General, Archaeological Survey of India and the decision of the Director General, Archaeological Survey of India or such officer, as the case may be, on such question shall be final.‖ Mr. Jetly sought to contend that overarching discretion vested with the DG, ASI to decide whether a particular article, object or thing, or manuscript, record or other document was, or was not, an antiquity. Inasmuch as, consequent to the order dated 23rd January 2014 passed by this Court, the DG had, in the minutes dated 24th April 2014, arrived at the view that philatelic exhibits were antiquities within the meaning of the AATA, Mr. Jetly would seek to contend that the matter must rest there.

26. The contention has only to be recorded to be rejected. No administrative decision can ever oust the jurisdiction of a court to decide a legal issue which comes before it. The question of whether an item is, or is not, an ―antiquity‖ is essentially a question of law, based on the interpretation of Section 2(1)(a) of the AATA. With respect to the DG, ASI, therefore, his decision cannot oust the jurisdiction of this Court to examine the issue that has been squarely posed before it, i.e., whether philatelic exhibits are, or are not, ―antiquities‖ within the meaning of the AATA.

27. I may also advert, at this juncture, to a submission of Mr. Sunil Mittal, on behalf of the petitioner. Mr. Mittal sought to contend that though, initially in these proceedings, the respondents were relying on Clause (iv) of Section 2(1)(a)(I) of the AATA, which includes, within the definition of ―antiquity‖, ―any article, object or thing of historical interest‖, in the minutes of the meeting which took place on 24th April 2014 under the directions issued by this Court in its order dated 23rd January 2014, and in the affidavit filed by the DG ASI before this Court pursuant thereto, the respondents had sought to rely on Section 2(1)(a)(II) of the AATA. As such, according to Mr. Mittal, the respondents have given up their reliance on Section 2(1)(a)(I)(iv) and have restricted their case to Section 2(1)(a)(II). This Court, therefore, according to Mr Mittal, is only required to examine Section 2(1)(a)(II), and need not concern itself with Section 2(1)(a)(I)(iv).

28. This submission, too, needs merely to be recorded to be rejected. The Court, while examining whether philatelic exhibits are, or are not, ―antiquities‖ within the meaning of the AATA, cannot be bound by the view that the departmental authorities may be taking. The Court cannot, therefore, exclude, from the scope of its consideration, Section 2(1)(a)(I)(iv). Once the Court is seized with the issue of whether the AATA embraces, within the definition of ―antiquity‖ as contained in it, philatelic exhibits, it goes without saying that the entire definition of ―antiquity‖, as contained in the AATA, has to be taken into account. All clauses of the definition have, therefore, to be seen.

29. On its face, sub-clauses (i), (ii), (iii) and (v) of Section 2(1)(a)(I) do not apply. Section 2(1)(a)(I)(iv)

30. Section 2(1)(a)(I)(iv), however, includes, within the ambit of the expression ―antiquity‖, ―any article, object or thing of historical interest‖.

31. Ex facie, the expression is wide and compendious. Mr. Mittal sought to contend that Section 2(1)(a)(I)(iv) has to be interpreted ejusdem generis the remaining clauses of Section 2(1)(a)(I).

32. I cannot agree. The ejusdem generis doctrine has, in my considered opinion, no application whatsoever to interpretation of Section 2(1)(a)(I)(iv) of the AATA.

33. In Amar Chandra v. Collector of Excise, Tripura[1], the Supreme Court held that the ejusdem generis principle applied where ―(i) the statute contains an enumeration of specific words; (ii) the subjects of enumeration constitute a class or category; (iii) that class or category is not exhausted by the enumeration; (iv) the general terms follow the enumeration; and (v) there is no indication of a different legislative intent.‖ In U.P.S.E.B. v. Hari Shanker Jain[2], the Supreme Court clarified that ―if the subjects of enumeration belong to a broad based genus as also to a narrower genus, there is no principle that the general words should be confined to the narrower genus.‖

34. In any event, the ejusdem generis principle applies where a number of words, which belong to one genus, are used together, and are followed by a word of broader import. In such a case, if the word which follows is found, in its normal etymological connotation, to be broad in its scope, the ejusdem generis principle can be invoked to restrict the scope of that word to the peripheries of the genus to which the preceding words belong. The principle has no application whatsoever to a case where, as in the present, the categories of items coming within the words encompassed by the definition are enumerated under different heads. The head ―any article, object or thing of historical interest‖ is a distinct head, distinct from the heads of definition under sub-clauses (i), (ii), (iii) and (v) in Section 2(1)(a)(I) of the AATA. Words of general import, consciously so employed by the legislature, cannot, by applying the ejusdem generis principle, be narrowed in their scope and effect[3].

35. Moreover, for application of the ejusdem generis principle, it is necessary that the enumerated words or expressions, preceding the broad general word that follows, constitute a category or a genus or a family which admits of a number of species or members, as held by the Supreme Court in State of Bombay v. Ali Gulshan[4]. The

UPSEB ibid AIR 1955 SC 810 existence of a distinct genus, comprising more than one species is the sine qua non for the application of the principle.[5] Where the narrower words preceding the broad word belong to different categories, the ejusdem generis principle has no application.[6] In the present case, it cannot be said that clauses (i), (ii), (iii), and (v) of Section 2(1)(a)(I) of the AATA constitute a distinct genus so as to narrow the ambit of the expression used in Section 2(1)(a)(iv) to conform to that genus.

36. The reliance, by Mr. Mittal, on the ejusdem generis doctrine is, therefore, ex facie misconceived.

37. Any ―article, object or thing of historical interest‖ which has been in existence for not less than 100 years, is, per definition, an antiquity. The reference to ―historical interest‖ and the age of the article, object or thing as being not less than 100 years are, clearly sufficient to restrict the ambit of the otherwise wide expression ―any article, object or thing‖. No further narrowing of the expression, by application of the principle of ejusdem generis or otherwise, would, therefore, be justified; else, it may violate the legislative intent.

38. No discussion is required to conclude that postage stamps and the other philatelic exhibits that the petitioner desired/desires to export are ―articles, objects or things‖. Where they have been in existence for over 100 years, Section 2(1)(a)(I) would apply. That would not, however, render them ―antiquities‖. They must be, additionally, of historical interest. Ali Gulshan ibid Dr. Indramani Pyarelal Gupta v. W.R. Natu, AIR 1963 SC 274

39. Mr. Mittal sought to contend, somewhat surprisingly as Counsel appearing for a leading philatelist, that the philatelic exhibits that he sought to export were of no real historical value or national importance. According to him, postal stamps and stamp papers and other such documents were merely used and then thrown away. He claims to have procured the material in question as scrap.

40. The submissions do not merit acceptance, even at face value, either on facts or in law.

41. In the first place, Section 2(1)(a)(I)(iv) does not refer either to ―national importance‖ or even to ―historical value‖. It requires the ―article, object or thing‖, covered by the clause, to be of ―historical interest‖.

42. The expressions ―historical interest‖ and ―historical value‖ are neither synonymous not, when used in parliamentary legislation, capable of being regarded even as analogous. There is an inherent difference between the words ―interest‖ and ―value‖, insofar as the element of subjectivity or objectivity inbuilt in the expressions are concerned. ―Interest‖, used as a noun, is fundamentally subjective. What may be of interest to one person, or to a few, may be of no interest to the vast multitude of their fellow beings. If, however, an item is of interest even to a niche segment of the populace to whom it appeals, it is an item ―of interest‖.

43. Most vintage items, per se, are items of ―historical interest‖. History is but a hark back to posterity, and an effort to appreciate and assimilate, years, decades or centuries later, the lives, trials and tribulations of past times. Items which date back to such past times are, therefore, intrinsically of ―historical interest‖. Indeed, the very expression ―historical interest‖ would encompass, within its wide scope, all items which serve as indicia and indicators of the times that have gone, never to return.

44. A diamond, at heart, is but carbon. Terming any submission that philatelic exhibits, including postages and revenue stamps and stamp papers and other such documents of over a century‘s vintage are not items of ―historical interest‖ as preposterous cannot, in the opinion of this Court, be regarded as an exaggeration. Such exhibits are of immense historical and, to an extent, even of scientific, interest – and, for that matter, even of historical value. Philately is a hobby of the discerning connoisseur, who appreciates the intrinsic value of vintage stamps and other such documents. The very fact that international exhibitions are held for such connoisseurs of the art, indicates, clearly, that philatelic exhibits are of great value. A postage stamp of 1900 vintage which, at that time, may have been used and thrown away would, if found a hundred years later, have increased its value a thousand-fold. The historical importance of such exhibits cannot, either, be undermined in any manner. They are an indispensable indicia of the times in which they were issued, and the manner in which transactions were transacted at that time. The very paper on which such exhibits are printed has its own fascination, for the discerning aficionado. Such philatelic exhibits are, therefore, obviously articles, objections or things of historical interest. In fact, though a select group of collectors may take the trouble to collect such exhibits, their inherent and intrinsic historical value far transcends the covers of the albums that such collectors may maintain. They are, therefore, ex facie ―antiquities‖ within the meaning of Section 2(1) (a)(I)(iv). Section 2(1)(a)(II)

45. In fact, in my opinion, such philatelic exhibits would be antiquities even within the meaning of Section 2(1)(a)(II). Section 2(1)(a)(II) covers ―any manuscript, record or other documents which is of scientific, historical, literary or aesthetic value and which has been in existence for not less than 75 years‖. While the word ―manuscript‖ refers, etymologically and legally, to a written document, the expression ―record‖ is of wider amplitude. It stands defined, in P. Ramanatha Aiyar‘s Advanced Law Lexicon thus: ―A memorial or remembrance; an authentic testimony in writing. A memorial of a thing done; a writing preserved as evidence; a transcription into something permanent for preservation as a memorial. A ‗record‘ is a memorial of what has been done; authentic written evidence, considered as either public or private but usually public. Information that is written on a tangible medium (a document) or stored in an electronic or other medium and retrievable in perceivable form.‖

46. In H v. Schering Chemicals Ltd.7, the expression ―records‖ has been defined as ―documents which a historian would regard as original or primary sources, that is documents which either give effect to a transaction itself or which contain a contemporaneous register or 1983 (1) All ER 849 information supplied by those with direct knowledge of the facts‖.

47. The words ―manuscript‖ and ―record‖ do not constitute a genus. The words ―other document‖ which follow the words ―manuscript‖ and ―record‖ in Section 2(1)(a)(II) cannot, therefore, be read ejusdem generis with the words ―manuscript‖ and ―record‖. Inasmuch as there is no similarity between the words ―manuscript‖ and ―record‖ except that they are both documentary, it would be futile to seek to interpret the words ―other document‖ which follows the words ―manuscript‖ and ―record‖ in Section 2(1)(a)(I) by applying the noscitur a sociis principle either, which basically advocates judging the meaning of a word by the company it keeps[8].

48. The only commonality between ―manuscript‖ and ―record‖, which are the words with which the expression ―other document‖ in Section 2(1)(a)(II) keeps company, is that they are both documents.

49. The expression ―other documents‖, as employed in Section 2(1)(a)(II) has, therefore, to be accorded full scope, and its ambit cannot be narrowed by applying interpretative calisthenics. In this context, it is worthwhile to refer to the judgment of the Supreme Court in Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd.9, which held that, in the expression ―newspapers or other documents‖, the words ―other documents‖ would include documents of any kind and would not take their colour from the word ―newspaper‖.

50. The word ―document‖, obviously, is a word of wide and Rohit Pulp and Paper Mills v. Collector of Central Excise, (1990) 3 SCC 447. AIR 1964 SC 1882 comprehensive import. In Aparna Trading Corporation (I) Pvt. Ltd. v. CCT10, the following explanation of the expression ―document‖ is to be found: ― ―Document‖ is something that furnishes evidence, Especially legal deed or other piece of writing. ―Documents‖ shall also include any matter written, expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, which is intended to be used, or which may be used, for the purpose of recording that matter. ―Document‖ will also include summons, notice, requisition, order, other legal process and registers. Any decipherable information, which is set down in a lasting form would be a document; ―Document‖ is a written paper or something similar, which may be put forward in evidence. The term ―document‖ means a document legally enforceable. The expression ―document‖ would also mean something, on which things are written, printed or inscribed, and which gives information and would also include any other material thing affording information, proof or evidence of anything— ―Document‖ would also mean and include something to provide with factual or substantial support for statements, made on a hypothesis proposed and also to equip with exact references to authoritative supporting information.‖

51. The Queens Bench, in Huddleston v. Controlled Risks Information Services Ltd.11 interpreted the expression ―document‖ even more widely by including, within its ambit, ―a written instruction or any other object carrying information such as photographs, tape recording or computer disk‖.

52. Given the amplitude of the expressions ―record‖ and ―other document‖ as employed in Section 2(1)(a)(II), it is possible to hold that stamps, stamp papers, envelopes and other such material, if they contain information, hand-written or otherwise, come within the ambit of the expression ―manuscript, record or other document‖. For that reason, too, they would also qualify as ―antiquities‖ within the (1982) 51 STC 199 meaning of Section 2(1)(a)(II) of the AATA.

53. Mr. Mittal also sought to place reliance on the preamble of AATA, which reads thus: ―An Act to regulate the export trade in antiquities and art treasures, to provide for the prevention of smuggling of, and fraudulent dealings in, antiquities, to provide for the compulsory acquisition of antiquities and art treasures for preservation in public places and to provide for certain other matters connected therewith or incidental or ancillary thereto.‖

54. To my mind, the preamble to the AATA really does not assist in resolving the controversy before this Court in the present case. It merely states that AATA is an act to regulate export trade in antiquities and art treasures and to provide for the prevention of the smuggling of, and fraudulent dealings in antiquities to provide compulsory acquisition of antiquities and art treasures for preservation in public places, among other things. No substantial assistance, regarding the scope and ambit of the expression ―antiquity‖ as defined in the AATA can, therefore, be derived from the preamble thereto.

55. As against this, the statement of objects and reasons to the Antiquities and Art Treasures Bill which preceded the AATA identifies the items forming subject matter of the AATA as ―objects of antiquarian or historical interest or significance‖. Philatelic exhibits, of near or more than a century‘s vintage, in my opinion, are clearly ―objects of antiquarian or historical interest or significance‖.

56. Viewed any which way, therefore, it is not possible to accept (1987) 1 WLR 702 the submission of Mr. Mittal that philatelic exhibits in the nature of postage and revenue stamps, stamp papers, envelopes and other such material are not ―antiquities‖ within the meaning of the AATA.

57. But for contending that philatelic exhibits do not come within the ambit of the AATA, the petitioner does not seek to challenge the 1999 Guidelines, or their applicability on any other ground. As a result, the sequitur to the decision, hereinabove, that philatelic exhibits are ―antiquities‖ within the meaning of the AATA, would be that the 1999 Guidelines would also apply to such exhibits. Alternative prayer

58. Mr. Mittal also advanced an alternative prayer, in the event that this Court was of the view that philatelic exhibits were covered by the AATA. He prayed that the respondents be directed to simplify the procedure for grant of NOC and TEP for export of philatelic exhibits, if possible by resorting to a one window procedure. That is entirely a matter of administrative discretion, and this Court, in exercise of its jurisdiction under Article 226, cannot direct framing of any such guidelines. The demographics of export of antiquities and art treasures may involve several competing considerations and a ratiocination of issues which this Court lacks the expertise to deliberate upon. Apropos this prayer of Mr Mittal, therefore, the Court can only permit the petitioner to represent to the respondent for simplification of the procedure for obtaining NOC from the DOP, the DOC and obtaining a TEP from the ASI, for export of philatelic exhibits. In the event, any such request is made, the Court is sanguine that it would meet with the degree of attention that it deserves.

59. This Court is, therefore, not in a position to grant the reliefs in this petition.

60. Subject to the liberty granted by para 58 supra, therefore, the petition is dismissed with no orders as to costs.

C.HARI SHANKAR, J NOVEMBER 4, 2022