TMI Blog2003 (7) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt from making any statements, declarations, utterances, writings and publications in the media regarding the Maheshwar Project which are defamatory of the plaintiff. (b) That pending the hearing and final disposal of the suit the Defendants and/or other activists of the Narmada Bachao Andolan be restrained by an order and injunction of this Hon'ble Court from issuing defamatory Press Notes against the Plaintiffs or holding demonstrations with defamatory material or leading or participating in moriches and agitations against the plaintiffs. It may be noted here that the injunction granted in terms of prayer Clauses (a) and (b) of the Notice of Motion No. 4541 of 2001 is continuing till today. 2. The brief facts are that the Appellant Company Shree Maheshwar Hydel Power Corporation Limited is implementing the Hydro Electric Project known as Maheshwar Hydro Electric Project which is being implemented pursuant to the Narmada Water Dispute Tribunal Award. The said Award relates to the various projects to be constructed in the Narmada River basin, and one of them is the Maheshwar Hydro-Electric Project. 3. It appears that initially, the Maheshwar Project was taken up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efamatory statements made in the said Press-Note had approached the Bombay City Civil Court for grant of injunction restraining the Respondents from publishing such defamatory statements. The main offending part of the said Press-Note dated 2nd October, 2001 reads as under :-- Mangat Verma of Village Lepa said that it is clear that officers of the Indian, Public Financial Institutions and Industrialists such as S. Kumars have connived to, siphon off and loot hundreds of crores of rupees of public money -- money that is the lifetime saving of common Indian citizens. He warned the Institutions and the Project Promoters of this privatized Project -- the S. Kumars that the youth of the area would not stand for the unleashing of senseless terror by the S. Kumars and that it is the time for the S. Kumars to withdraw from the Project. He also warned the Indian Financial Institutions that the people would expose the conspiracy between these officers and the Industrialists. 6. The Appellant Company was mainly aggrieved by the five highly objectionable defamatory expressions used in the said Press-Note which expressions read as under:-- (A) Connived (B) Conspiracy (C) Sip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this judgment, this Court has clearly held as under:-- Even if the publication of articles is in public interest, it is necessary that before publication the defendants take reasonable precaution to ascertain the truth of the same. There is no charter to the newspaper to publish something without ascertaining the correctness of it and when the newspaper claims justification, then it is necessary to ascertain whether the newspaper had taken reasonable precaution and had the material from which a reasonable person could conclude that the allegations are true. 9. Thereafter, the learned counsel Mr. Gulam Vahanvati referred to the observations of the Appellate Bench when the aforesaid matter in the case Dr. Yashwant Trivedi was carried in Appeal. The Appellate Bench in paragraph N0. 3 of its judgment has held has under :-- It is not necessary to lengthen our judgment by referring the other authorities which have taken the same view in a libel action, the position of law is not different in our country. In our view in the matter of granting or refusing temporary injunction it is not material that in India the Judge has to decide both question of law and fact, unlike in Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the comments are not mala fide. 12. Therefore, Mr. Vahanvati, the learned counsel appearing on behalf of the Appellant Company has contended that in England, a mere plea of justification by the Defendants would be sufficient for the Court for not to grant any interim relief, however, in India, a mere plea of justification by itself would not be sufficient but the defendants will have to also show sufficient material and the material disclosed should establish the truthfulness or the veracity of the statements, and that a reasonable person should be able to accept such a statement as true based on such materials. 13. In this context, Mr. Vahanvati referred to and relied upon a well known textbook by Gatley on Libel And Slander' Eight Edition (1981), wherein it is clearly mentioned that to establish a plea of justification, the defendants must prove that the defamatory imputation is true. It is not enough for him to prove that he believed that the imputation was true, even though it was published as belief only. It is also mentioned therein that the defendant must prove the truth on the very imputation complained of; he may not under a plea of justification prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el Project including but not limited to allegations viz. connivance, conspiracy, syphoning of funds, loot, unleashing terror. 18. Thus, the learned counsel for the Appellant Company has contended that the Respondents should be restrained only to the above extent and not in a wider manner as sought before the trial Court. Mr. Vahanvati has further made a suggestion that, in the event of the Respondents being of the opinion that they are in possession of authentic and factual material in relation to the Shree Maheshwar Hydel Project which they intend to publish, they will first forward the same to the Appellants who will be entitled to furnish to the Respondents their clarification within 24 hours, and for the said purpose the Respondents may nominate any one of their officers who can be contacted, and if the said persons does not respond or if notwithstanding the response, the Respondents nevertheless wish to proceed with the publication, they will do so but at their own risk. The above suggestion was made by the learned counsel for the Appellant Company with the object that before making any statement, the veracity of the same would be tested so as to prevent unnecessary defama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion but not falsification. In the same paragraph No. 20 of the judgment, the learned counsel for the Appellant Company has brought to my notice the observation of the learned Judge whereby the learned Judge has adopted a wrong principle of law by observing that it has been held by the Courts in England as well as in India that once justification of fair comment is pleaded, an action of injunction against defamation cannot sustain. 22. It is the contention of Mr. Vahanvati that that the learned Judge ought to have granted an injunction in favour of the Appellant Company, especially in view of the observations made by the learned judge herself in paragraph No. 50 of her judgment, which observation reads as under :-- After production of a plethora of documents, the defendants have prima facie shown justification though not of each colourable term in their publication. The facts of their publication may smack of distaste and prejudice, which it would do well for an organisation of repute to refrain from. 23. The learned counsel for the Appellant Company thereafter contended that in view of various patent inconsistencies and by adopting of wrong principle of law by the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the allegations of Syphoning of funds made in the said Press-Note, the learned counsel Mr. Desai for the Respondents referred to the affidavit of Respondent No. 1 filed before the trial Court, especially paragraph Nos. 59 onwards of that affidavit. He also referred to the Report of Comptroller Auditor General of India for the year ending 31st March, 1998 wherein it is mentioned CE. Power, NVDA stated that the expenditure (Rs. 10.47 crore) incurred by NVDA on the project was to be recovered along with interest from the private agency. However, no amount has been received so far from the private agency (August, 1998). 27. Mr. Desai thereafter pointed put that the Appellant Company has failed to implement the policy of relief and rehabilitation and in that context, he referred to the letter of Ministry of Environment and Forest, Government of India, dated January 7, 1994, wherein it is mentioned that the rehabilitation and resettlement of the project affected people should be completed by 1997-98 as proposed by extending the compensation package to the major sons, landless labourers and encroachers . He also referred to and relied upon the agreement for resettlement and reh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich reads that House to house survey of all affected villages should be undertaken to ascertain number of families and persons to be displaced and area coming under submergence so that the rehabilitation and resettlement programme could be accordingly modified. 30. Mr. Desai, the learned counsel for the respondents very strongly questioned the wisdom of having the aforesaid Maheshwar Hydel Power Project and also seriously questioned the necessity of investing more than 1000 crores of rupees on such a project, which according to him, may not at all take off. According to Mr. Desai, the learned counsel for the respondents, the State of Madhya Pradesh needs about 27000 million units of electricity whereas this Maheshwar project would only supply 823 million units of electricity. In this context, he referred to and relied upon M. R. Shivaraman Committee Report wherein it is mentioned that the projected price of power may not allow even Government of Madhya Pradesh to function properly and the State Government may even go bankrupt. It is the contention of Mr. Desai, the learned counsel for the respondents that the very project would ruin the Madhya Pradesh State Electricity Board a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended that the Appellant Company has committed various wilful defaults in repaying the amounts borrowed from the financial Institutions, and in that context, he referred to and relied upon the public notice published by the Madhya Pradesh State Industrial Development Corporation Limited to the Economic Times on 13th September, 2001, which mentions that M/s. Induj Enertech Limited Mumbai, and M/s. Modak Rubber Textile Industry Pvt. Ltd. Mumbai the Companies of S. Kumar Group are wilful defaulter in repayment of overdue principal and interest more than ₹ 11.08 crore towards financial assistance given by us to them on promise of prompt and timely repayment. Mr. Desai thereafter referred to and relied upon the balance sheet of the Appellant Company and has pointed out that said balance sheet indicates profit and even then the Appellant Company has not paid their dues to the Financial Institutions. He referred to the attachment notice issued for recovery of certain dues against the Appellant Company. Mr. Desai has contended that the Appellant Company has borrowed public money and is not repaying the same and that the Appellant Company has committed wilful defaults, and as suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interim or temporary injunction order already granted in the pending suit or proceedings. 34. Mr. Desai, the learned counsel for the respondents thereafter contended that the respondents press-note is fully protected under Article 19(1)(a) of the Constitution of India, in the sense, the Respondents have fundamental right of freedom of speech and expression and therefore the publication of the said Press-Note cannot be faulted with as the same is protected under the Constitution of India. In that context. Mr. Desai, the learned counsel for the Respondents referred to and relied upon a well known judgment of the Hon'ble Supreme Court in the case of S. Rangarajan v. P. Jagjivan Ram, [1989]2SCR204 , wherein in paragraph No. 35 the Hon'ble Supreme Court has observed as under :-- In democracy it is not necessary that everyone should sing the same song. Freedom of expression is the rule and it is generally taken for granted. Everyone has a fundamental right to form his own opinion on any issue of general concern. He can form and inform by any legitimate means. 35. The other relevant paragraphs of the aforesaid judgment of the Hon'ble Supreme Court in the case of S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of Court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule. 37. Mr. Desai, the learned counsel for the respondents thereafter referred to and relied upon the Judgment of the Hon'ble Supreme Court in the case of Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd., MANU/SC/0412/1988MANU/SC/0412/1988 : AIR198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution of India against the appellant-Company cannot be justified, inasmuch as the freedom guaranteed under Article 19 of the Constitution of India is basically the freedom guaranteed to the citizens of India against the State action, in the sense, it is a kind of fetter on the States power not to interfere with those freedoms guaranteed to the citizens except the reasonable restrictions on certain grounds as mentioned in Article 19(2) of the Constitution of India. 40. Mr. Vahanvati, thereafter referred to and relied upon the judgment of the Hon'ble Supreme Court in the case of P. D. Shamdasani v. Central Bank of India Ltd., [1952]1SCR391 , wherein the Hon'ble Supreme Court has clearly held as under :-- The language and structure of Article 19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legitimate exercise of its power to regulate private rights in the public interest. Violation of rights of property by individuals is not within the purview of the article. 41. In the aforesaid judgment in the case of P. D. Shamdasani, referred to and relied upon by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany has referred to and relied upon the recent Electricity Act, 2003. In fact, one of the Statement of Objects and Reasons mentioned is that there is a policy of encouraging private sector participation in generation, transmission and distribution and the objective of distancing the regulatory responsibilities from the Government to the Regulatory Commissions. Mr. Vahanvati, the learned Counsel for the appellant-Company has submitted that the whole concept of awarding the hydro-electric project to private agency is in consonance with the said policy. He also emphasised that under the new Act, the generation of power is being deli sensed and captive generation is being freely permitted. Hydro Projects would, however, need approval of the State Government and clearance from the Central Electricity Authority which would go into the issues of dam safety and optimal utilisation of water resources. 44. Mr. Vahanvati, the learned Counsel for the appellant-Company has also pointed out that the average costs of power would come to ₹ 3.46 per unit. He contended that the judgment of Hon'ble Supreme Court referred to and relied upon by Mr. Desai, the learned Counsel for the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contention must be rejected for several reasons. The respondents are not seeking equitable relief against forfeiture. They are asserting their legal right to the shares on the ground that the forfeiture is invalid, and they continue to be the legal owners of the shares. Secondly, the maxim does not mean that every improper conduct of the applicant disentitles him to equitable relief. The maxim may be invoked where the conduct complained of is unfair and unjust in relation to the subject-matter of the litigation and the equity sued for. Mr. Vahanvati therefore contended that as far as the present case is concerned, there is no question of the plaintiff-company coming to the Court with unclean hands or that their conduct is such hence not entitled to equity. 47. Mr. Vahanvati, the learned Counsel for the applicant-Company thereafter referred to and relied upon the letter of the Hon'ble Chief Minister of State of Madhya Pradesh dated 5th March, 1998 addressed to the Chairman of the State Bank of India, wherein it is mentioned that the State Government shall expeditiously grant lease rights to the project for Government land required for the project and will issue necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the same matter in appeal, the judgment of this Court in Purshottam Odhnvji Solanki v. Sheela Bhatta dated 3rd December, 1990, judgment of this Court in the case of Mrs. Betty Kapadia v. Magna Publishing Co. Ltd. dated 22nd July, 1991, and the judgment in the case of Indian Express Newspapers (Bombay) Ltd. v. M/s. Magna Publishing Co. Ltd., dated 21st July, 1995, it is clear that in India, a mere plea of justification would not be sufficient for denial of interim relief. The defendants, apart from taking a plea of justification will have to show that the statements were made bona fide and were in public interest, and that the defendants had taken reasonable precaution to ascertain the truth, and that the statements were based on sufficient material which could be tested for its veracity. Therefore, in India, the Court is very much entitled to scrutinise the material tendered by the defendants so as to test its veracity and to find out whether the said statements were made bona fide and that whether they were in public interest. Therefore, in India, even at the interlocutory stage, the Court is very much entitled to look into the material produced by the defendants for the plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of such expressions regarding the conduct of the Appellant Company. The contention of Mr. Desai, the learned Counsel for the respondents that the Hon'ble Financial Minister in the House of Parliament, has used the expression ; loot of public money with regard to defaulters, and hence, the respondents are also entitled to use the same expression, cannot be accepted at all. It may be noted here that the statement made by the Hon'ble Finance Minister was within the four walls of the Parliament and hence, the same was privileged. The respondents, however, do not have any such privilege to make such a type of statements by using such expressions. 52. Even the tenor of use of such expressions in the said Press Note quoted hereinabove, which has been complained of do not indicate that the same has been made bona fide and in the larger public interest. If the respondents were keen about making the statement in large public interest, there were means and ways by which the same could have been communicated, but not by using of such highly damaging expressions. The respondents also have not taken the reasonable precaution of ascertaining the truth before publication. 53. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mere plea of justification by itself would not be adequate, but it should be supported by sufficient material subject to scrutiny by the Court for its veracity, and that the statement made should be bona fide and should be made in the larger public interest and that the Defendants had taken reasonable precaution of ascertaining the truth. 56. In fact, the learned Judge of the Bombay City Civil Court, while declining the interim relief has observed that the Defendants have prima facie shown justification though not of each colourable term in their publication. The learned Judge has also observed that the facts of their publication may smack of distaste and prejudice, which it would do well for an organisation of repute to refrain from. That is to say the learned Judge has held that the Defendants have made a statement which cannot be fully justified and they ought to have refrained from making such a statement. If that be so, the learned Judge of the Bombay City Civil Court ought to have granted injunction in favour of the Appellant Company, and by not granting the said injunction, after the above conclusions, the learned Judge of the Bombay City Civil Court has acted rather arb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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