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Chemfab Alkhalis Limited Versus S. Balasubramanian

2001 (8) TMI 1423 - MADRAS HIGH COURT

Civil Suit No. 1326 of 1990 - Dated:- 21-8-2001 - Dr. A.K. Rajan For the Appellant/Petitioner/Plaintiff: Mr. P.S. Raman For the Respondents/Defendant: Mr. G. Subramanian, Senior Counsel and Mr. D. Rajagopal JUDGMENT A.K. Rajan, J. 1. This suit is for damages against the defendants. Plaintiff-company is carrying on business manufacturing various chemicals such as caustic soda, chlorine etc. It is known as Chemfab Group of Companies who are pioneers in the field of Anode manufacturing and leading .....

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re produced. The plaintiff was developing a patent design of Central Electro Chemical Research Institute, Karaikudi and is using Titanium Substrate Insoluble Anodes thereby the pollution hazard has considerably reduced compared to mercury-coated anodes. Recently, they developed a method whereby they use Membrane Cell Technology which is a revolutionary concept in the Chlor Alkhali Industry particularly from the point of view of pollution control and energy conservation. They are the first causti .....

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various authorities. The plaintiff started the factory only after various authorities involved in the environmental preservation and pollution control had inspected the site and reports given by them. Further, Directorate General for Technology Development (D.G.T.D.) had granted the plaintiff a letter of indent to put up a factory for caustic soda production outlining the various measures to be adopted by the plaintiff in the utilisation of the Chlorine Gas. The plaintiff-factory is operating to .....

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the chemical factories in the neighbourhood. In that, the factory was not mentioned; that was also published in various newspapers, viz., in "The Hindu" dated 18.2.1990, 20.2.1990 and 22.2.1990 in "Malai Malar" dated 20.2.1990 and in "News Today" dated 21.2.1990. In none of the press release, the name of the plaintiff was mentioned specifically. In order to maintain good relation with the neighbourhood, the plaintiff wrote on 17.2.1990 to the Registrar and the Vice- .....

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for Junior Vikatan sought an interview with the President of the plaintiff company, Mr. S.E. Manohar. In the interview, the said Mr. S.E. Manohar explained the various pollution control methods adopted by the plaintiff. Plaintiff's President clearly and specifically brought to the notice of the reporter that the plaintiffs company was not causing any pollution as was evident from the greenery surrounding in the plaintiffs factory. The Manager also brought to the notice of the reporter that .....

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oison Gas Danger" and "Villagers are trembling". The inside story contained at page 16 in no uncertain terms categorises the plaintiff's factory as a major pollution hazard in the locality and indeed the cover photograph itself is self-explanatory. It also referred to the influence used by the industrial Family of Birla as if the plaintiff-company was connected with the Birla family. The plaintiff has nothing to do with the Birla Group of companies. The general tenor of the al .....

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1990 issued a lawyer's notice calling upon the defendant to withdraw the allegation in the next issue and to give some publicity failing which, they would sue for damages for defamation. The plaintiff received a reply from the defendants signed by the first defendant stating that the article in the magazine contained only matters gathered personally by their reporters at Kalapet. The defendants denied that the article contained false, frivolous, imaginary details and further submitted that t .....

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that the publication Vas made in good faith. The entire publication amounts to negligent reporting and the entire publication is mala fide. By putting its photograph in the cover page with the caption, "Poison Gas Danger" it was only with the intention of maligning the name of the plaintiff; It was apparently with cheap sensationalism by the magazine. The magazine is extensively circulated all over Tamil Nadu and Pondicherry and also in other parts of the country and even abroad. Inspe .....

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quiries both in writing and through phone from various people including many of its shareholders seeking the veracity of the allegation. This publication has adversely affected the plaintiff's sister concern. The damage caused to the plaintiff s reputation and goodwill is estimated at ₹ 15 lakhs. Therefore, the suit has been filed for recovery of ₹ 15 lakhs for damages and also for permanent injunction from making any defamatory allegation against the plaintiff as well as for man .....

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blication in the field of championing the Cause of public and projecting public grievances wherever needed with a view to bring to the notice of the concerned authorities so that they will take remedial steps. The facts referred to in the publication are true and based on the information which the defendants had reasons to believe as true. The defendants are running the journal and publishing articles after due investigation and are making fair comments about the existing facts in public interes .....

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fore publishing articles in question. The article in question was only a fair comment and in the public interest. The article mainly contained the allegations made by other agencies and the article was published purely in good faith and public interest. If it is read properly and in a proper perspective, it will reveal the true significance and meaning and the article was not published on account of any recklessness or malice and it is not indicative of want of due care and caution. This article .....

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t their "Gamma Chamber" to some other place. The Courts also directed closing of several industrial units in public interest due to water and air pollution. It is the duty of any journal catering to the public cause to bring even stray incidents to the public and also the officers to maintain ecological balance. It is not done with the intention of injuring the reputation of the plaintiff; absolutely there was no malice. The pollution in the area has affected the health, life and ecolo .....

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article in question with a caption, "Visha Vayu Bayangaram" based on the materials gathered personally by the reporters of the second defendant in and around Kalapet and also from several other persons affected due to pollution caused by the chemical industries in that area. The public at large complaining about the menacing health hazards they were facing due to pollution. The publication was not intended to defame any one nor is it motivated; but only because of the public particula .....

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The defendants took all care and steps to bring to the notice of the plaintiffs President and in fact the impugned article also contains the report of the President also in a special box column. This clearly establishes the bona fides of the defendant. The article does not contain any false or frivolous or imaginary details. Therefore, this article cannot be said to be defamatory. It is also stated that the relief of injunction cannot be granted. If such a relief is granted, it will tantamount .....

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pany was started utilising the technical expertise and experience of several nationalities of several countries and there was a wide spread commendation of the unit being pollution-free. Merely because there were reports in "The Hindu" and "Malai Malar" and "News Today", it did not prove that the plaintiff is free from complaints of causing pollution. The people around the factory were constantly making complaints to various authorities; the omission on the part of .....

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ganization cannot be considered as sacrosanct. It is not correct to say that the name and reputation of the plaintiff are prejudiced. Therefore, the suit is devoid of any merits and hence, it has to be dismissed. 7. On these pleadings, the following issues were framed: 1) whether the plaintiff is entitled to damages claimed? 2) Whether the plaintiff is entitled to injunction as against the defendant? 3) Whether the report published in the journal is defamatory or made in good faith or for espous .....

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defamatory or not?." They are not interested in the quantum of damages; that may be granted. Therefore, the only issue for consideration is, Whether the impugned article is defamatory or not? Therefore, other issues are not considered, as they are not pressed. 9. Issue: The plaintiff's counsel referred to Halsbury's Law of England-4th Edition Profusely. He has referred to the following passage. 16. Falsity and malice: In an action for libel or slander, it is the practice to allege .....

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ermination of the questions whether or not the words were understood to refer to the plaintiff, and whether they were understood to bear a meaning defamatory of him. 18. Damages in libel: If a person has been labeled without any lawful justification or excuse, the law presumes that some damage will flow in the ordinary course of events from the mere invasion of his right to his reputation, and such damage is known as "general damage." thus, a plaintiff in a libel action is not required .....

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mages to be awarded are said to be "at large" that is to say the award is not limited to any pecuniary loss that can be specifically proved. At common law the assessment of damages is the exclusive function of a jury. The object of damages is to compensate the plaintiff and not, except in special circumstances, to punish the defendant. ........Thus, exemplary damages may be awarded where the defendant has published in a newspaper a defamatory statement knowing it to be untrue, or reckl .....

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ause the prospects of material advantage outweigh the prospects of material loss. Relying on these passages, the counsel for plaintiff contended that the plaintiff need not prove falsity or malice; the onus is on the defendant to prove "Justification" that the publication, complained of were fair comment on a matter of public interest; 10. Mr. P.S. Raman, counsel for the plaintiff argued that if the plaintiff proves that the matter published is defamatory, it is for the defendants to p .....

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ayu Bayangaram" meaning "danger of poisonous gas" ending with a exclamation mark. Further beneath it is printed in a prominent manner in big letters, "Nadungi kondirukkum Gramangal" that means, "trembling villages" with a question mark and also an exclamation mark; and below that in small letters, "Oru Echarikkai Report" meaning, a "caution report". 12. The counsel for the plaintiff argued that the publication is "per se" defamator .....

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lage Kalapet was likely to become another Bhopal. It means that the villages are trembling with fear that the poisonous gas would escape and cause damage to the life of the people. That is, there is no doubt expressed by the publication, but "it asserts that the people are trembling with fear for their life and there is a danger of this village becoming another Bhopal. "If it is read along with the cover page, the intention is made clear. The defendant wanted to covey the idea that the .....

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, and the publisher is directed to make another publication withdrawing their allegation in their very next issue with the same prominence as was given earlier. 13. Counsel for the defendants Senior Advocate Mr. G. Subramaniam argued that the intention of the article is only to prevent recurrence of a similar tragedy that struck Bhopal. It is purely with the good intention of cautioning the people and also the authorities to take timely preventive action and save the people of that locality from .....

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y and so on. It also states that the Vice Chancellor Mr. K. Venkata Krishnan who has served earlier as the Director of the same plaintiff-company. The report also says, on hearing that, the reporter felt something, fishy". He has also published the photograph of the Vice-Chancellor in the report itself. Therefore, the reporter has not concealed anything. He has even stated that there appears to be something "fishy" that the Vice-Chancellor was earlier occupying the post of Directo .....

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. It cannot be looked in piecemeal; one line should not be taken out of context and said that this particular sentence is defamatory. So viewed this article was not published with any mala fide or with intention to defame the name and fame of the plaintiff-company; it was published only with the intention of protecting the people from any possible danger that may strike due to some reason in future. It also laments whether anyone will not protect the lives of the people. The penultimate paragrap .....

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. 14. Further, the counsel argued that the press have a right to bring to the notice of the public at large and to the authorities such dangers faced by the public and while discharging that duty or exercising that right, the members of press have a privilege or liberty even to exceed limits, to some extent. Therefore, the suit is to be dismissed. 15. The counsel for the defendants also referred to the typed set wherein he has compiled number of earlier such reports on the incidents which were b .....

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depending on the circumstances, included; the seriousness of the allegation; the nature of the information and the extent to which the subject matter was a matter of public concern; the source of information; the steps taken to verify the information; the status of the information; the urgency of the matter; whether comment had been sought from the plaintiff; whether the article contained the gist of the plaintiffs side of the story; the tone of the article; and the circumstances of the publicat .....

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occasion to deal with a similar matter in the case reported in the case of Ramaswamy v. Karunanidhi (1970 L.W. (Crl.) 245), wherein Justice Somasundaram held as follows: Thus, the plea of fair comment would not be sustained unless facts were proved which made it reasonable to make such a suggestion. Where base and sordid motives which are not warranted by the facts, are imputed to a person, the defence that the publisher bona fide believed that he is publishing what is true will not be a defenc .....

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faith and for the public good." Counsel for the defendant argued that basis for damage is malice. Admittedly, there is no malice on the part of the defendant. Therefore, there is no defamation at all. 17. Counsel for plaintiffs relied upon a decision reported in Union Benefit Guarantee Company Limited v. Thakorlal P. Thakor and others (A.I.R. 1936 Bom 114 at 123), for the proposition that the publication should be a fair comment, The onus is on the defendants to show that the matter comment .....

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ss public affairs or to penalize it through libel judgments is to abridge or shut off discussion of the very kind most needed. This Nation, I suspect, can live in peace without libel suits based on public discussions of public affairs and public officials. But 1 doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticising their government, its actions, or its officials. An unconditional right to say what one pleases about public affair .....

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e truth; also they have interviewed various persons in and around the locality; the article mostly contained the opinion and views of the persons who were interviewed and the publication only gives the true picture of the statements made by these persons. It is only a report as stated by the persons in and around that area. The reporter also published the views of the manager or the plaintiff-company. The personal opinion of the publisher did not find a place. Therefore, the article as such, can .....

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igence in the senses that the publication was made negligently without ascertaining the truth. This article is per se defamatory, especially the cover page. Merely seeing the cover page, any person would get an impression that the plaintiff-company is guilty of spreading poisonous gas into the atmosphere and that poses a danger to the lives of the people living in the surrounding areas. Further, the cover page itself clearly shows the plaintiff-company's name. Therefore, by publishing this p .....

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for or against. The publication should be taken as a whole. 21. As stated already in Ex.A.1, the cover page bears a photograph of the storage tank of the plaintiff-company, the name of chemfab is clearly seen. Therefore, there is no difficulty to come to the conclusion that this article relates to the plaintiff-company. Further, the skull and the two cross bones published in red conveys danger to life. This is printed over the left corner of the photograph of the plaintiffs storage tank. Undern .....

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f them together, it conveys the meaning that, is it true that the villagers are trembling with fear ? and whether such a situation could exist? That is the message it conveys when one reads the caption along with the question mark and the exclamation mark. Beneath that, there is also a caption "Caution Report, "Echarikkai Report", whereby the author cautions the authorities and the people that they should be vigilant in order to avoid any mishap. It cannot be said that the article .....

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of students, teachers and staff as well as the people are affected. Thereafter, it also contains the statements made by various persons and the interview of the Manager of the plaintiff-company. The statement of the Manager that the company was awarded by Indian Chamber of Commerce and Industries in appreciation of keeping the environmental pollution under control has also been published; it also said that each one is blaming the other, but everyone forgets that the people are in danger. "D .....

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the University was headed by a former Manager of the plaintiff-company. Therefore he expressed his opinion that there is something "fishy" in the entire episode. Therefore, it also expressed a doubt as to whether the report filed by the University would be true in its entirety or whether it may have been actuated by some extraneous considerations. Further, it also states that the University and the company people blamed each other. Therefore, if it is read in its entirety without any .....

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ation in good faith, for protection of the health and life of public. By no stretch of imagination, it can be said that this article was not published in good faith. Therefore, this article has been published only in the interest of the public, in good faith. 24. Freedom of Press which is included in the Freedom of Speech and Expression gives a privilege in such matters even to exaggerate or 'playdown' to a small extent, provided it is only in the interest of the public at large. The pre .....

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rticle contains the gist of the plaintiffs version. 25. Bearing this in mind, if the article is perused, it will definitely fall within the ambit of qualified privilege. The article conforms to all these tests. The author has taken all these steps before publication. Therefore, the publication is entitled for qualified privilege. 26. The intention of the publication appears to call the attention of public to the issue, with the ultimate aim of protecting the public from even a remote chance of r .....

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