1 S.651.83-S.652.83.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL/APPELLATE CIVIL JURISDICTION SUIT NO. 651 OF 1983 WITH SUIT NO.652 OF 1983 Kokan Unnati Mitra Mandal & Ors. ...Plaintiffs Vs. Bennet Colemna & Co. Ltd. & Ors. ...Defendants Mr. Rajendra Pai a/w. Mr. Rajendra Desai a/w Mr. Vikram Trivedi a/w. Mr. Faisal Sayyed a/w. Mr. Aloukik Pai a/w. Mr. Mayur Bhojwani a/w.Ms. Vishnupriya Kumar i/b. M.K. Ambalal & Co., Advocates for the Plaintiffs Dr. V.V. Tulzapurkar, Sr. Advocate a/w. Ms. Alpana Ghone i/b. Kanga & Co., for Defendants CORAM : SMT. ROSHAN DALVI, J. Reserved on : 8th August, 2011 Pronounced on: 9th November, 2011 JUDGMENT: 1. The Plaintiff No.1 is a registered society having Plaintiffs 2 to 13 as its trustees. Plaintiff No.2 is the Chairman of the Society and served as the Chief Minister of the State of Maharashtra immediately prior to the cause of action having arisen in this suit. Defendant No.1 is the owner of the newspaper “Times of India” and its Marathi publication and Defendants 2 to 4 are the Editor, Printer and Photographer respectively of the publications. The Defendants together shall be referred to as the Defendants. 2. The Defendants published an article and two photographs in its 2 S.651.83-S.652.83.sxw newspaper publication dated 3 rd April 1982 which the Plaintiffs claim as defamatory per se. The Plaintiffs also claim that the article carries an innuendo with regard to certain activities alleged to have been carried out by the Plaintiff No.2 in the capacity as the then Chief Minister. 3. During the tenure of Plaintiff No.2 as such Chief Minister there were certain allegations made and petitions filed by certain parties alleging certain corrupt practices of Plaintiff No.2 in respect of the allotment of cement which was at the relevant time, a rationed commodity under the Essential Commodities Act. On 11 th January 1982 a judgment of this Court indicted Plaintiff No.2. Plaintiff No.2 resigned as Chief Minister the next day. The article along with the two photographs with regard to an incident relating to the transportation and allotment of cement came to be published by the Defendants and is claimed to have been seen by its Reporter and photographed by its Photographer. The article and the photographs were reported in the English as well as Marathi publications dated 3 rd April 1982. 4. The Plaintiff No.1 a addressed letter on behalf of Plaintiff No.2 on 3 rd April 1982 informing the Defendants that the publication was defamatory containing deliberate mis-statements and stated certain facts which the Plaintiff No.1 directed the Defendants to publish in their publication to clarify the facts. The Defendants published in both their publications another article inter alia stating the facts directed by the Plaintiffs to be reported. 3 S.651.83-S.652.83.sxw 5. The Plaintiffs claim that the further publication showing further facts does not indicate any apology for having published the initial articles and the photographs and is, in fact, more insinuating than clarificatory. 6. The Plaintiffs have sued for damages for defamation in a sum of Rs.5 crores with interest @ 6% p.a from the filing of the suit till payment upon their case that the publications as well as by innuendo are defamatory per se. The Plaintiffs are required to prove the publication and the nature of defamation. The publications are not denied. It would be for the Plaintiffs to prove whether the publication initially made as well as the further publications claimed to be clarificatory by the Defendants made upon the directions of the Plaintiffs are indeed defamatory. It may be mentioned that if the articles are shown to be defamatory their falsity would be presumed and the malice, if any, in publishing them need not be shown. 7. The Defendants claim that the articles are not defamatory because they show the truth of what transpired and the Defendants were justified in publishing the same for the knowledge of the public and in public interest. The Defendants accordingly claim that they have made a fair comment upon the facts that transpired on 2 nd April 1982 to prove before the public the incident and further upon the Plaintiffs’ directions the claim made by the Plaintiffs in respect thereto. They claim that the public would need to know what transpired initially and how the Defendants clarified their position upon the Plaintiffs’ contention with regard to the initial publications. The Defendants have, accordingly made out the defence of fair 4 S.651.83-S.652.83.sxw comment in public interest. The Defendants deny malafides or malice. If the Defendants show the truth of the statements in the articles as also that their comments thereupon were fairly made the Plaintiffs would have to prove malice to succeed in the claim of defamation. 8. The Defendants, in essence, claim truth and justification. Consequently, the Defendants have not tendered the apology that the Plaintiffs demanded. 9. Based upon the respective cases of the parties 5 issues came to be framed by Justice Nirgude on 25 th July 2008 as follows and are answered as follows: ISSUES FINDINGS 1. Do the Plaintiffs prove that the Defendants have, by publication of the photographs in juxtaposition with each other and/or in conjunction with the article published thereunder at Exhibit “A” to the Plaint, per se and/or in any manner defamed the Plaintiffs (collectively) or any of the Plaintiffs (individually), having caused them or any of them to be the subject matter of defamation, contempt, hatred and/or ridicule in the eyes of the public and particularly people known to them. No 2. Do the Plaintiffs further prove that the Defendants published the above mentioned material with malafide intention to cause defamation of all the Plaintiffs or any of the Plaintiffs individually. No 5 S.651.83-S.652.83.sxw 3. Do the Defendants prove that the publication of the said photographs and the said Article at Exhibit “A” to the plaint is not malafide, malicious, false, calculated to defame the Plaintiffs (collectively) or any of the Plaintiffs (individually) and does not have the effect of defaming the Plaintiffs (collectively) or any of the Plaintiffs (individually). Yes 4. Whether the Defendants prove that the clarification published in “The Times of India” issue dated 8 th April 1982 adequately published views of the Plaintiffs and whether the said Article read with above referred clarification amounts to balanced reporting of the issue in public interest. Yes 5. What order? As per final order 10.The Plaintiffs have examined Plaintiff No.2. The Defendants have examined Defendant No.4. The parties have relied upon a number of documents which are affidavits, orders and other Court records of the previous litigations with regard to the allotment of cement in the rationed era during the tenure of the Plaintiff No.2. It may at once be stated that those documents merely show the position of facts at the relevant time and are wholly irrelevant to the issue whether the publications dated 3 rd April 1982 of the incident dated 2 nd April 1982 and the further clarification dated 7 th April 1982 upon the Defendants direction in the letter dated 3 rd April 1982 would tantamount to defamation as being a false and malicious statements of facts or whether it was the truth that would justify the publication or is a fair comment of what transpired. Amongst the documents produced by the parties the only material ones are certain charge receipt showing allotment of certain plots by the Government 6 S.651.83-S.652.83.sxw through the Collector of Bombay to Plaintiff No.1 without the annexures mentioned therein, a consequent application made on behalf of the Plaintiffs for development of the said plots, a plan of development and a letter issued by the Executive Engineer, Building Proposals, City of Greater Mumbai (MMC) dated 23 rd April 1982 with regard to the plots shown to be allotted in the charge receipt and certain other plots sought to be developed by the Plaintiffs. Other than these documents it would be material for the Court to consider only the aforesaid publications themselves. 11.Further since the publications and photographs are admitted and are sought to be interpreted by both parties, whether or not they are defamatory per se or by innuendo would have to be seen upon reading the publications and the photographs themselves. 12.Issue Nos.1 to 4 : It would be proper to consider the publications themselves in the light of the fact that the Plaintiff No.2 had come in the line of fire in certain Writ Petitions filed against him alleging allotment of cement not in accordance with law to various parties. 13.The initial publication in the English as well as Marathi newspapers of the Defendant on 3 rd April 1982 shows that a truck-load of cement was removed on 2 nd April 1982 from the plot of Plaintiff No.1 at Worli despite an affidavit filed by the Plaintiff No.1 that there was no cement at the site. It shows that certain porters (hamals) were loading a truck with cement bags from the former police barracks in the plot. It also states that porters and the driver did not indicate 7 S.651.83-S.652.83.sxw where the truck was to go. Thereafter the truck moved out, and was followed. It went up to Borivli and halted in a lonely area. After 45 mts the reporter of the Defendant thereafter gave up the chase. The article makes a reference to the said incident as a sequel to the High Court proceedings in which one Mr. Kamat who was a resident of a building opposite the plot had filed an affidavit stating that he had witnessed 70 truck loads of cement being unloaded at the plot of the Plaintiffs between 5 th February 1982 and 14 th February 1982 though the funds of Plaintiff No.1 were frozen since 16 th October 1981. The article further showed that the said Kamat’s affidavit showed imported cement bags being delivered at the site of Plaintiff No.1 which were thus illegally procured and stored, facilitated by two Trustees who were Ministers in Maharashtra Government named in the article. 14.The publication was made with two photographs taken by Defendant No.4. One photograph shows the police barracks, the open space and a truck with several porters loading bags. Another photograph shows the board of the Plaintiffs. It is admitted that these are two photographs. The board of the Plaintiffs is, therefore, not at such a place near the barracks or the truck shown in the first photograph, but is printed and published alongside it. It is argued on behalf of the Plaintiffs that it is so juxtaposed as to give an impression to the public that the Plaintiffs’ board was where it was shown on the open space in front of the barrack which was allotted to the Plaintiffs upon the premise there was only one photograph. 15.The photograph of the site shows a faint barbed wire fence. It is the 8 S.651.83-S.652.83.sxw Plaintiffs’ contention that the truck is on the other side of the barbed fence which is not the land allotted to the Plaintiffs. The Plaintiffs claim that only the open land on the other side of the barbed wire fence was allotted to the Plaintiffs. That is shown in the foreground of the photograph. The bags being loaded in the truck are in the adjoining plot of land belonging to the Government of Maharashtra where the police barracks were and with which the Plaintiffs have nothing to do. The Plaintiffs, therefore, contend that upon what is going on in the adjoining plot, unknown to the Plaintiffs, an insinuation is made that uploading of the bags into the truck took place on the Plaintiffs’ plot of land which is false. The Plaintiffs further claim that taking the photograph of the Plaintiffs’ board which was on the completely different side of the Plaintiffs’ property and publishing it next to the photograph showing the loading of bags also shows the insinuation that the loading was done where the board of the Plaintiffs was which is false. The Plaintiffs, therefore, claim that the two photographs shown as one, though they are admittedly two photographs, is malicious and defamatory. 16.It may, at once, be mentioned that the two photographs are seen as two photographs in the publication rather clearly. In fact the barbed wire fence is not as clear in the photocopy of the publication shown to the Court. (The original publication has not been produced by either party). 17.It is an admitted position that the plot adjoining the Plaintiffs’ plot belonged to the Government of Maharashtra. It was used to house police barracks. The Plaintiffs’ plot was admittedly allotted to the 9 S.651.83-S.652.83.sxw Plaintiff No.1 by the Government of Maharashtra. Prior to such allotment, therefore, it was the plot of Government of Maharashtra. Consequently, both the plots initially belonged to the Government of Maharashtra. The Plaintiffs claim that a part of that plot was allotted to the Plaintiffs. The Plaintiff No.2, the then Chief Minister of the State of Maharashtra, who was the President of Plaintiff No.1, claimed that the plot allotted was to Plaintiff No.1 in such capacity. He would claim the plot of Government of Maharashtra as its then first Minister. The two plots, therefore, do not belong to wholly separate distinct, different parties. These two plots are admittedly separated only by a barbed wire fence running alongside their common boundary. It is not shown when the fence was put and by whom. Well prior to the publications the affidavit of Kamat in the writ petitions had shown unloading of cement including delivery of imported cement bags at the Plaintiffs’ plot, which statement in the writ petitions was neither claimed to be defamatory nor proved to be false. The indictment of Plaintiff No.2 therein, followed by his resigning, would in fact at least prima facie show otherwise. Consequently, the loading of cement bags from the police barracks stated to be IN the Plaintiffs’ plot was an allegation earlier made on affidavit. It has only been shown by way of the additional truck and the porters in the photograph. The fact that the Reporter of the Defendant followed the truck and then gave up the chase has not been denied by the Plaintiffs. 18.The only aspect, therefore, that remains to be considered is whether aside from the open plot shown in the foreground on one side of the barbed wire fence which is admittedly the Plaintiffs’ plot with the 10 S.651.83-S.652.83.sxw Plaintiffs board at some place therein, the Government plot with barracks and having the truck with the porters loading the bags thereon admittedly of cement was the plot with which Plaintiff No. 2, who claims to be defamed, had anything to do. 19.The test of defamatory character of the publication read along with the two photographs would be to see whether the Plaintiffs’ plot and the adjoining plot are two separate, distinct, identifiable plots of two different and distinct parties. That would be to see that the adjoining plot is a plot with which the Plaintiffs would have nothing to do, directly or indirectly. 20.It would be apt to show the most appropriate documentary evidence with regard to the two plots before considering the Plaintiffs’ exception taken to the publications and the photographs and the Defendants further publications. 21.The charge receipt marked Exhibit-P-9 in evidence shown to be dated 28 th April 1981 is for plot Nos.73A, 74, 74A and 74B. This is admittedly the land allotted to the Plaintiffs alone. The charge receipt describes these plots as being encumbered with two structures and one overhead tank as well as occupants thereon. A list of the occupants annexed to the charge receipt along with a plan is not produced in evidence. The Plaintiffs desired the said plot allotted by Government of Maharashtra to Plaintiff No.1 to be developed. One Mr. S.Y. Madan, the Architect on behalf of the Plaintiffs addressed a letter dated 15 th June 1981 to the Assistant Engineer, Buildings and Factories, of MMC marked Exhibit-P-28 in 11 S.651.83-S.652.83.sxw evidence. The letter was in respect of the plots allotted to the Plaintiffs. The letter shows that the author would be submitting the plans for development of the property on behalf of the owners. The owners desired a temporary site office to be set up on the plot. A plan for setting it up was enclosed in triplicate along with a site plan. The letter requests approval for construction of the site office. The site plan annexed to the letter shows an L–shaped site office proposed to be constructed. The location plan shows the plot in red. It also shows the adjoining plot. The adjoining plot shows two rectangular structures. It may be mentioned that the land adjoining the plots allotted to the Plaintiffs was government land and had police barracks. It, therefore, stands to reason that the two structures are the police barracks shown on the plan. 22.Upon such description of the plots allotted to the Plaintiffs and the adjoining plots of the Government of Maharashtra, a copy of a letter addressed by the Executive Engineer, Building Proposals of the MMC to one Professor Warde dated 23 rd April 1982 must be appreciated. The said letter makes a reference to the Architect Mr. S.Y. Madan who had written to the MMC on 15 th June 1981 as aforesaid. It shows the proposal made for development of the aforesaid plots allotted to the Plaintiffs AND three other plots being Plot Nos.242, 243 and 244 all of scheme No.52 at Worli. Plaintiff No.2, examined on behalf of the Plaintiffs, has been confronted with a copy of this letter in his cross examination. In question No.132, upon being shown this letter, he agreed that Plaintiff No.1 had applied for construction on plot Nos.242, 243 and 244 of Scheme No.52 Worli also. These are admittedly the plots of the Government of 12 S.651.83-S.652.83.sxw Maharashtra where the police barracks are. These are admittedly the adjoining plots. These are admittedly also the plots where the truck was located being loaded with cement bags as shown in the photograph published by the Defendants. Plaintiff No.2 has not refuted what is stated in the letter about the allotment of those plots. He has instead stated that one Mr. P.K. Sawant looked after the day- to-day matters of Plaintiff No.1. He further stated that Mr. P.K. Sawant who was a man of great integrity could never have instructed Mr. Madan to write to the Municipal Corporation for construction on the plots which do not belong to Plaintiff No.1. He claimed that the letter was an insult to Mr. Sawant and the name of the Trustee was misused by Mr. Madan. Mr. Madan as aforesaid was the Architect on behalf of the Plaintiff No.1, the owners of the plots. He stated that Mr. P. K. Sawant and others had briefed Mr. Madan and “whether Mr. Madan had exceeded his brief”. 23.It is to the credit of Dr. Tulzapurkar that he relied only upon this most important document, from amongst a mass of documents admitted by both parties. This letter was shown to Plaintiff No.2 in confrontation in his cross-examination. The witness himself could not explain the letter and did not refute its contents, but sought to blame the Architect. Hence the fact that Plaintiff No.1 had also sought to apply for construction on the adjoining plots being Plot Nos.242, 243 and 244 as its own plot cannot be bypassed. This aspect further shows that that plot was sought to be used by Plaintiff No.1 as its own plot at an earlier point in time when it sought to put up certain development on that plot also. The Plaintiff No.1, therefore, did have some connection with the said plots. Plaintiff 13 S.651.83-S.652.83.sxw No.1 did try to at least usurp the plots even if they were not allotted to it and remained to be the property of the State of Maharashtra. The land of Plaintiff No.1 was adjoining those plots. The Plaintiff No.2, the President of Plaintiff No.1 and the then Chief Minister of the State of Maharashtra, was a common entity to represent both the plots. Plaintiff No.1 through its Architect did at least try to develop it. The Plaintiff No.1 has taken no steps against the Architect at any point in time. It is that plot over which the truck was parked. It is that plot on which the truck was loaded and it is that plot from which the cement bags were delivered. 24.Allegations had been made earlier on affidavit in a Court proceeding. They were only graphically illustrated by way of the photograph later in the impugned publications. The plot of Plaintiff No.1 and the activities of Plaintiff No.2 is not wholly distinct and different from the adjoining plots. In his capacity as the Chief Minister of the State of Maharashtra, Plaintiff No.2 would be in a very comfortable position to utilize the plot adjoining the plot allotted to Plaintiff No.1 whose President he was. Consequently, the publication showing that the truck was being loaded with cement bags from the former police barracks IN the plot is not far remote from the truth. The barbed wire fence is the only thin dividing line between the two plots. Since initially the two plots belonged to the State of Maharashtra, the barbed wire fence would not have been there. It is only after allotment of the plots to the Plaintiff No.1 which was a part of the plots of the State of Maharashtra that Plaintiff No.1 may have put up the fence. Despite that the activities alleged to have been carried out by Plaintiff No.2 were carried out 14 S.651.83-S.652.83.sxw not only on the plot of Plaintiff No.1 but also the adjoining plot as is shown in the photographs. 25.It is in view of these facts that the affront taken by the Plaintiffs to the two publications and the two photographs in the letter written to the Defendant on the date of the publications must be seen. 26.The Plaintiffs by their letter dated 3 rd April 1983 took strong exception to the aforesaid publication. The Plaintiffs and more specially its President, Plaintiff No.2 claimed that it contained false and misleading statements. The letter of Plaintiff No.1 more specially stated that the barracks which appear in the photograph in the aforesaid two publications were owned by the State of Maharashtra and were in the physical possession of the Executive Engineer, Public Works Department (PWD) Bombay Central Division, Worli, Mumbai. The Plaintiffs sought to clarify a certain information gathered by them and stated that cement was stored in those barracks by one A.N. Shaikh, Executive Engineer, Bombay Central Division, Worli, Mumbai of the PWD of the State of Maharashtra and that the department had “received the cement in the ordinary course of their work for using it in the works concerned”. The Plaintiffs, however did not specify what could be the ordinary course of the business of the State of Maharashtra to receive and hoard cement. This very first communication by the Plaintiffs taking umbrage at the contents of the publication must be understood in the light of the fact that the Plaintiffs had themselves claimed ownership of not only the plots which were alloted to them, but the adjoining land also belonging to the State of Maharashtra and had sought, under their 15 S.651.83-S.652.83.sxw Architect’s letter, even to develop it. The Plaintiffs, as the principals, must be held primarily responsible for the acts of their agent, the Architect under the seminal rule Qui facie per alium, facie per se. Though then unknown to the Defendants, the Plaintiffs claimed that the land was of the State of Maharashtra since it was yet not transferred to the Plaintiffs to shrug off their connection and responsibility with what happened on that plot. The Plaintiffs called upon the Defendants to publish the entire letter of the Plaintiffs in their publication at the same space occupied by the initial publication. 27.The Defendants have, of course, not published the entire letter. The contents of the news