Bhagabati Prasad Banerjee, J. - (1.) This writ application was moved by the petitioner on 19th February, 1988 challenging the order and direction issued by the Central Government by which the Director, National Library, Calcutta was directed to carry the sealed boxes/sealed cover containing the last thirty pages of the selected substantial portion of the publication "India Wins Freedom" by Maulana Abul Kalam Azad at New Delhi.
(2.) The petitioner's case, in short, in the writ application is that the Central Government has no role to play in the matter and as such the Central Government has no authority or jurisdiction to issue any direction upon the Director, National Library, Calcutta to take the sealed cover contrary to the terms and conditions under which the same was kept in the custody of the Director of the National Library, Calcutta. The facts of this case, in short, is that, it is alleged, that the late Maulana Abul Kalam Azad had during his life time dictated and given certain notes to late Professor Humayun Kabir (referred to as Composer) as to how India has attained the freedom and as to the parts played by Maulana Abul Kalim Azad and other leaders in the struggle for freedom ; and that the Composer had out of the materials obtained from the late Maulana Abul Kalam Azad composed a book, which was finally approved by the late Maulana Abul Kalam Azad. But it was decided by the late Maulana Abul Kalam Azad that thirty pages containing selected substantial portions of the said book should be published after thirty years of his death. It also appears that it was decided that one copy of the said thirty pages should be kept in the custody of the Director, National Library, Calcutta and the other copy at the National Archives, New Delhi, late Professor Kabir accordingly wrote letters to the Director of the National Archives, New Delhi and the Director of National Library, Calcutta seeking their consent to accept the said sealed cover on the explicit understanding that the seal will be opened only on 22nd February, 1988 Thereafter, it appears that the Nations Archives, New Delhi and the National Library, Calcutta agreed to sued proposal and that from the letter dated 3rd April, 1958 it appears that the late Prof. Kabir wrote - "I am sending the sealed cover containing Maulana Sahib's manuscript As 1 have already informed you, the seals are not to be broken till the 22nd February, 1988. When the seals are broken, Orient Longmans or their successors should have, the first option in publishing a complete version of Maulana Sahib's autobiography, incorporating the passages which will then be released to the I public. In case Orient Longmans do not publish such a version, the National Archives in consultation with the National Library and the Indian Council for Cultural Relations, may arrange for the publication of such a complete text. "It further appears that on the 2nd September, 1958 the late Prof. Humayun Kabir who was then Minister of India Council for Cultural Relations entered into an agreement with the Orient Longmans Private Limited. In the preamble of the laid agreement it is stated as follows:- "Whereas the late Maulana Abul Kalam Azad had during his lifetime dictated the given certain notes to the Composer abovenamed as to whom how India had attained freedom and the part played by himself and the other leaders in the struggle for freedom WHEREAS the Composer had out of the materials obtained as aforesaid composed a book AND WHEREAS the said book as finally composed by the Composer was approved by the late Maulana Abul Kalam Azad AND WHEREAS the complete book as composed aforesaid has been deposited under sealed cover with the National Archives, New Delhi and the National Library, Calcutta, with instructions that the seals would be broken on 22nd February, 1988 and the complete book would be made available at that time AND WHEREAS the Composer, as desired by the late Maulana Abul Kalam Azad, had selected substantial portions of the book for the Present publication under the litle INDIA WINS FREEDOM (hereinafter referred to as the Work AND WHEREAS the late Maulana Abul Kalam Azad had during his lifetime expressed the wish that the Work should be published and the royalties received from the sale thereof as mentioned hereunder should be distributed squally between him and the Composer AND WHEREAS the sole legal heirs, Fatima Begum of Shirin Nadi, Bhopal and Nooruddin Ahmed of 8 Neenabagh, New Delhi, of the late Maulana Abul Kalam Azad had agreed to the publication of the Work by the Publishers abovenamed on the terms and conditions as desired by the late Maulana Abul Kalam Azad during his lifetime as aforesaid and had agreed to the arrangement made in this regard between the Composer and the Publishers." The said agreement, inter alia, provides how the royalty should be distributed. It may be mantioned that late Prof. Kabir did not keep I any royalty reserved for himself or his heirs and on the contrary, it was directed that one-half of the amount of royalty which is payable to the Composer, in accordance with the wishes of the late Maulana Abul Kalam Azad will be paid annually for the prizes, one for the best essay id English on Islam to he written by a non-Muslim citizen of India or Pakistan and the other to a Muslim citizen of India or Pakistan for the best essay in English on Hinduism. Some heirs of the late Maulana Abul Kalam Azad, would be receiving the royalties payable under the agreement being the half share of the late Azad. The late clause of the agreement provides as follows:- "It is further agreed and understood that the Publishers shall have the first option to publish the complete book as originally composed and now lying under sealed cover with the National Archives, New Delhi and the National Library, Calcutta when the seals are broken on 22nd February, 1988 as mentioned in the preamble of the agreement."
(3.) Mr. Pradip Kumar Ghosh, learned Counsel appearing for the petitioner, contended in the first place that the Central Government has no authority or jurisdiction to issue any direction for transfer of the manuscript kept in the National Library, Calcutta for its onward transmission to New Delhi and for handing over the same to the authorities of the National Archives. It was further contended that such a transfer of manuscript from Calcutta to New Delhi and handing over the same to the National Archives and releasing the same together at a function at New Delhi would frustrate the very purpose of keeping the said manuscript at two different places with a specific direction to break open the seal on 22nd February, 1988. It was further submitted that if that was done there, in that event doubts and dispute with regard to the authenticity of such a historical document would raise unnecessarily. It was convended that everyone is interested to see the such a historical document, is published in such manner so that its authenticity could not be doubted by any person.;