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Decision in the matter of Lodha Developers v. Krishnaraj Rao a.k.a. the Lodha New Cuffe Parade Defamation Case

Decision by Justice Gautam Patel.

ordjud

One of the most eloquently written decisions.

Covers matters related to Defamation, Freedom of Speech online, Right to Information Act, Injunctions for Defamation.

“The Plaintiff has an edifice complex. It calls this complex ‘New Cuffe Parade’. It is nowhere near the old — and real — one. It is at Wadala, near the truck terminal. The appellation that Lodha has adopted is a triumph of imagination over geography. Lodha uses this moniker for its Wadala development for one reason only: it adds a cachet of desirability and is supposed to portray excellence, wealth and style. The edifice in question is named ‘Dioro’ in the usual fashion of this builder, using vaguely Italian names for all its buildings. This choice of names is neither irrelevant nor accidental. With other glossy material of a promised lifestyle, it lies at the core of the dispute: this is a case about a promise the Plaintiff is said to have made, one the Defendants say it has not kept, and now cannot keep. “

“At least at this prima facie stage, this narrative is important, but not for the reasons Lodha imagines. Lodha’s narrative is important not for what it says, but for what it does not. It completely suppresses all mention of the fact that Lodha had the entire content of the first 12th November 2018 blog post and audio visual material in an email from Rao on 8th November 2018. Lodha’s plaint makes no mention of this email. We do not know why. If the other emails could be referenced, why not this one? “

“The context has nothing at all to do with mere financing or
even the level of influence or money muscle, but is traceable to an
allegation Mr Rao makes that the entire financing structure is based
on an incorrect statement of the actual carpet area of the flats being
sold. This overlaps what is being said in the previous extract. In
addition, there are incorrect representations as to the phases or
stages of constructions and their date of completion. He illustrates
this by saying that the area mentioned supposedly includes
balconies. Mr Jagtiani’s response, that this is something to which
the purchasers have agreed in their purchase documents, is
underwhelming, and that is putting it mildly. What Rao says is that
financing is obtained on the basis of a carpet area representation
Lodha knows to be inflated and incorrect. This home-grown
definition of carpet area as including balconies (and perhaps flower
beds) is a statement of fact.
That is indeed how the carpet area has
been computed. Whether this is lawful or not, and if not, why this
has been done, is an opinion, and falls squarely in the realm of fair
comment. When therefore Mr Jagtiani says that this is ‘per se
defamatory’, he throws down the gauntlet: he challenges Rao to
show that any part of it is true. Once Rao does this, and there is now
supporting material from Nadkarni’s report, it is for Mr Jagtiani to
show that the allegation is without a vestige of truth, and that it was
always so, i.e. that Rao never had any basis for his statement. He
cannot. And so, I have not even turned to Rao for his view.

Lodha may or may not like the use of the word ‘scam’. Courts
are not here to pander to Lodha’s notions of exquisite linguistic
delicacy. If indeed there is this carpet area misstatement in the
agreement itself, and obviously that statement was presented by
Lodha with purchasers having no say in the matter, then there may
be a storm coming with other, far harsher, words looming on the
horizon. The statement is not, prima facie, per se defamatory.

Rao maintains the underlying factual basis. He says it is
inconceivable that any occupation certificate or any form of
certification of fitness for the purpose could ever have been granted
to such basements. It may be that there now exists some form of
certification. That would not mean the underlying deficiencies do
not exist. The issuance of a certificate is a fact, but it does not
postulate the correctness or lawfulness of the issuance of that
certificate.
He believes that no such occupation certificate for the
basements, full or partial, could in these factual circumstances ever
have been granted. He maintains that it constitutes a safety, fire and
health hazard. He has a somewhat colourful description of it, but I
will let that pass.

Rao acted as would have any print
journalist. He gave Lodha an opportunity to respond. Lodha did
nothing. In its plaint, it suppresses all mention of this. In this factual
scenario, I do not see how Lodha can be heard to say that it has any
equity on its side entitling it even on these restricted five elements
to a broad order gagging Rao. I am therefore clear that the only
restraint under which I can conceivably place Rao today is that
which he himself volunteers and which I have noted above. Beyond
this not only am I unwilling to go, but I also believe the law will not
let me go.

Rao showed me some documents that indicate that another
flat purchaser took the Right to Information Act route to obtain
some information including copies of the sanctioned plans and
occupation certificate. The Public Information Officer seems to
have sent this on to Lodha for comments. To my very great surprise,
I find that this request for disclosure was opposed tooth and nail
even up to appellate proceedings with Lodha claiming something called ‘commercial confidence’, ‘trade secrets’ and ‘intellectual
property protection’. Against a flat purchaser I do not see how any
vendor of a consumer facility or product can make any such claim.
The implications for Lodha are serious, and none redound to its
credit. Is the flat purchaser not entitled to see a sanctioned plan? An
occupancy certificate? Not entitled at all to any information about
the flat in which he supposed to live? Is he supposed to simply pay
money and then accept whatever he is given to him without
complaint? I do not see how a builder or developer offering flats for
sale is any different from a manufacturer of plastic buckets or any
other consumer product. There is nothing so very special about
Lodha. It has no special immunity or privileges. If there is a defect,
its purchasers, like all consumers, are entitled to entitled to
complain; and they may complain often, and loudly, and in every
available medium. It is no answer for the manufacturer or producer
of a defective product to claim commercial secrecy, confidentiality
or to shelter behind trade secrets or intellectual property protection
laws. The Right to Information Act was brought into force for a
reason and it has an avowed a constitutional mandate. There is no
reason this should be compromised for any builder.

There is the other dimension to this matter. It involves
YouTube in particular, and social media in general. Rao’s journalism
is not in the more traditional form of print. But what of that? Does it
make the slightest difference? There is no different standard of law
that applies to online journalism or comment. If a statement is made
knowing it to be false, without believing it to be true, or in reckless
disregard of the truth, the medium in which it is made is entirely
irrelevant. The statement is actionable. But a statement is not to be
viewed as suspicious only because it is not made in print and is made
only online, or using one or more of the available modern
communications channels or technologies. That new technology
may have made us a noisier society. Certainly there may be
something to be said about the proliferation of what is known as fake
news, but that does not mean that everything about the technology
is evil or undesirable. We should not be misled into assuming that
every recipient of news or information is completely mindless and
will swallow wholeheartedly whatever comes his way.


Complain About The Police To The Maharashtra State Police Complaints Authority (Mah. SPCA)

This article deals with the setup, procedure and working of The Maharashtra State Police Complaints Authority (Maharashtra SPCA) राज्य पोलीस तक्रार प्राधिकरण which is established to receive complaints about Police Officers in Maharashtra.

You can complain about various Police excesses, wrongful arrest, wrongful detention, property grabbing, harassment, human rights violations, custodial violence, custodial death and even malpractice and corruption by police officers.

Which laws govern the working of the Maharashtra State Police Complaints Authority?

  • Maharashtra Police (Amendment and Continuance) Ordinance, 2014 (Mah. Ord. VIII
    of 2014) Published on 5th April 2014 and deemed to come into force on 1st February 2014.
    Maharashtra Division Level Police Complaint Authority (Administration and Procedure) Regulations, 2018
  • Maharashtra Government Resolution No.: NPC-1008/2/CR-6/POL-3, dated 25th July 2008
  • Maharashtra Government Resolution No.: PCA-1013/CR-109/Pol-3 dated 15th July 2013

In addition to this, the Supreme Court Case that brought about the Government to form the Complaints Authority was:
Judgment dated 22/09/2006 of the Hon’ble Supreme Court of India in Writ Petition (Civil) No.310/1996 in Prakash Singh and Others Vs. Union of India and Others.

How many Police Complaints Authorities are existent?

As per the Law, 2 Police Complaint Authorities should be formed:

  • State Level
  • District Level

However, presently there is only the State Level Complaints Authority which has been setup.

Where is the Maharashtra State Police Complaints Authority located?

The address of the Maharashtra State Police Complaints Authority is:

Maharashtra State Police Complaints Authority
4th Floor, MTNL Cooperage Telephone Exchange Building,
Opp. Cooperage Football Ground, Maharshi Karve Road,
Nariman Point, Mumbai 400021.
022-22820045 / 22820046 / 22820067

Who are the officers who are a part of the Mah. SPCA?


Sr. No. Designation Currently (2019)
1. Chairperson Justice A V Potdar, Retd. Judge of the Bombay High Court
2. Member Shri Prem Kishan Jain, Ex-Addl. Director General of the Maharashtra Police
3. Member – Civil Society Representative Shri Umakant Mitkar
4. Member
5. Member-Secretary Additional Director General of Police (Administration) Dr. Pradnya Sarvade,

Does the Maharashtra State Police Complaints Authority (Mah. SPCA) have a website?

The Maharashtra State Police Complaints Authority (Mah. SPCA) official website is still not active. Once it is up, we will provide the URL here.

Notification CR 56...

Notification CR 56

In what format should we complain about the Police to the Mah. SPCA?

Self Attested Declaration

On plain paper (No Court fee required)

I Shri/Smt./Ms. ____________________ son / daughter / wife / widow of_______________________ __________ aged _________ years, permanent and current address as given below, having Aadhaar No. _______________ (self attested copy attached) do swear in the name of God and/or  hereby solemnly affirm and state as follows:

That I am the complainant in the accompanying complaint / have authorized Shri / Smt. / Ms. ______________________________________________________ to file the authorized Shri/ Smt./ Ms.____________________________________________ to file the accompanying complaint as I am unable to file the same because of________________________________________________ ________________________________________ reason.

That the facts stated in the attached complaint in paras __________________________________ are true to the best of my knowledge and in paras ______________________________________ are true to my information and belief.

I therefore request you to enquire into the above complaint and take further action as deemed fit.

Deponent

Name : ________________________

Permanent Address

Within how much time does a complaint have to be filed with the Mah. SPCA?

Commonly Registered Documents

25-Conveyance
34-Gift
36-Lease
36-अ-Leave and Licenses
40-Mortgage Deed
46-Partition
47-Partnership
48-Power of Attorney
51-Reconveyance of Martgaged Property
52-Release
58-Surrender of Lease
60-Transfer of Leaseboolean
63-Will
65-Correction Deed
66-Notice of Lease Pendancy
54-Security Bond or Motgage Deed
55-Settlement
15-Cancellation
16-Certificate of Sale
4-Affidavit
1-Acknowledgement/Possession Receipt
2-Administration Bond
3-Adoption Deed
5-Agreement or its records or Memorandum Of Agreemen
6-Agreement Relating to Deposit of Title Deeds,Pawn,
7-Execution of Power
8-Valuation
9-Apprenticeship Deed
10-Articles of Association of a company
11-Articles of Clerkship
12-Award
13-Bond
14-Bottomry Bond
17-Certificate or Other Document
18-Charter Party
19-Clearance List(Purchase or sale of government securities
20-Clearance List(Purchase or sale of cotton)
21-Clearance List(Purchase or sale of bullion or spic
22-Clearance List(Purchase or sale of oil seeds)
23-Clearance List(Purchase or sale of yarn)
24-Composition Deed
26-Copy or Extract
27-Counterpart or Duplicate
28-Customs or Excise Bond
29-Delivery Order
30-Divorce
31-Entry of Memorandum of Marriage
32-Exchange of Property
33-Further Charge
35-Insepectorship Bond
37-Letter of Allotment of Shares
38-Letter of Licence
39-Memorandom of association of a company
41-Mortgage of a crop
42-Notarial Act
43-Note of Memorandum
44-Note of Protest by Master of a Ship
45-Order for the Payment of Money
49-Protest of Bill or Note
50-Protest of a Master of a Ship
53-Respodentia Bond
56-Share Warrants
57-Shipping Order
59-Transfer
61-Trust
62-Warrant for Goods
73-Work Contract

Can The Orders Uploaded On The Official Website Of The High Court Be Considered Certified Copies?

Yes. Order uploaded on the High Court websites have legitimacy and can be submitted in lower courts as if they are certified copies, without the need for them being Certified by the High Court Department.

In the matter of Shital Dhake v. Krushna Dhake it was held by Ravindra Ghuge J. of the Aurangabad Bench of the Bombay High Court that:

2. …the print out of the orders of this Court from the official website has sanctity and the trial Courts are expected to consider the said orders, if they are cited after taking a print out from the official website.The said orders are also available before the trial Court from the official website and there can be a counter verification to find out whether such an order is actually uploaded to the official website or not. In this backdrop, there is no harm if such a print out from the official website is placed before this Court. …

3. …It is informed by the learned Advocates that, in several cases before various trial Courts, the learned Judges insist on production of the certified copy of the order and they are not inclined to consider the print out of an order from the official website of the Bombay High Court, as being a reliable document. As observed in the foregoing paragraphs, in the event of any doubt in the mind of the learned Judge, it can be checked from the official website of the Bombay High Court as to whether such an order has been uploaded or not? Once the order is uploaded on the official website, it is a reliable document to be considered by the Court before whom it is cited.

This opinion was again confirmed by the Chhattisgarh High Court, Bilaspur in TAXC No. 172 of 2017, where the Court held that:

In Re: Acceptability of web copy of orders/judgments

7. Before parting we must address an important issue raised by Shri Maneesh Sharma, learned standing counsel for the Revenue, concerning the acceptability of the ‘web copy’ of the orders/judgments obtained from the official website of the High Court of Chhattisgarh i.e. ‘highcourt.cg.gov.in’.

8. The issue arose because Shri Maneesh Sharma, having armed with web copy of the order, was still reluctant to produce the same before us apprehending that the web copy may not be accepted by the Court. Shri Sharma carried this impression because, according to him, several Courts and the authorities are not accepting the web copy as authentic copy of the order/judgment passed by this Court.

9. Shri Maneesh Sharma, Shri Sandeep Dubey, Shri Parag Kotecha, Shri Vivek Chopda, Ms Swati Upadhaya, Shri Bharat Rajput, Shri Ashok Mishra, Shri Vivek Bhakta, Shri Virendra Verma, Shri C.K. Kesharwani, Shri Abdul Wahab Khan, Shri Shailendra Bajpai, Shri Abhishek Pandey, Shri R.K. Mishra, Deputy Advocate General, Shri P.K. Bhaduri, Govt. Advocate, Shri Wasim Miyan, Panel Lawyer, Shri Arvind Dubey, Panel Lawyer Shri Rajendra Tripathi, Panel Lawyer, learned counsels present in the Court also addressed on the aforesaid issue. They would request that since the web copy of an order/judgment obtained from the official website of the High Court of Chhattisgarh carries a watermark impression indicating ‘not official’, the trial Courts and subordinate authorities sometimes refuse to act upon the web copy, therefore, appropriate directions may be issued in this regard.

10. After hearing the leaned counsels for some time, their apprehension does not appear to be wholly unfounded, as we have come across several complaints by the Lawyers about the reluctance of the Courts and authorities to accept the web copy even for immediate purpose in urgent cases.

11. In order to set the matter at rest we hold that web copy of the orders/judgments passed by this Court as is available in the official website of the High Court of Chhattisgarh can be relied upon unless the opposite party raises a doubt about the authenticity of the web copy.

12. In taking this view, we are fortified with the view taken by a learned Single Judge of the High Court of Judicature of Bombay Bench at Aurangabad in Shital Krushna Dhake v Krushna Dagdu Dhake in Misc. Civil Application No.244 of 2017 (decided on 02.02.2018), wherein also an apprehension was raised that the trial Court may insist upon production of certified copy of the order passed by the High Court, despite production of the web copy. In the said circumstances it has held thus : …

…13. In view of the foregoing, we direct that the trial Courts and other subordinate authorities shall accept the web copy of the order/judgment in urgent cases where delay in production of the certified copy would result in miscarriage of justice or the person would be adversely affected, despite there being an order in his favour. In case of any doubt, suspicion or apprehension, the trial Court or the authority may verify from the official website of the High Court of Chhattisgarh to ascertain whether such an order/ judgment is actually uploaded to the official website or not.