Decision by Justice Gautam Patel.
ordjudOne 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.