Bombay HC throws out Lodha Developers' plea for gag orders on activist
Had uploaded videos, that later went viral, of walls in Wadala project crumbling under the force of a punch.
In an interim order in the Rs 100-crore defamation suit filed by Lodha Developers against RTI activist and journalist Krishnaraj Rao, the Bombay High Court has dismissed the main notice of motion filed by the developer and virtually given a clean chit to Rao.
The matter pertains to some videos and articles by Rao on his channel on YouTube and on his blog, The Brave Pedestrian, questioning the quality of construction in the two flats owned by a couple, Amit Jaisingh and Shilpi Thard, in the New Cuffe Parade project in Wadala. One of the videos, in which Rao is seen punching a wall in the flat, went viral leading to the defamation suit in January this year.
Dismissing the main notice of motion for lack of merit and denying reliefs sought by the developer, Justice Gautam Patel used wit to underline the crux of the dispute, describing New Cuffe Parade as “a triumph of imagination over geography”, and the developer’s penchant for naming building after “vaguely Italian names”. “This choice of name 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,” he said.
The notice of motion sought gag orders against Rao posting any material about Lodha’s constructions anywhere and, specifically, about the construction quality of Dioro where Thard’s flats are located.
The order said Thard and Jaisingh purchased flats 3013 and 3014 on the 31st floor in Dioro’s B wing and paid the developer a sum of close to Rs 6 crore. While the developer claimed the duo took possession in February 2018 without protest or demur, they claimed that possession was promised in 2015 but was “thrust” upon them without giving them a chance to inspect the flats till they signed some documents.
The duo noticed leakage and seepage and Thard also participated in public protests before she approached Rao to write about it. Rao shot photographs and videos, and wrote critically about the construction quality. Before the content was posted online, he sent the entire content of the blog post of November 12, 2018, and audio video material in an email to Lodha on November 8, but received no response. Lodha made allegations of extortion and blackmail against Thard and Rao.
Referring to a January 9 blog post by Rao, which alleged that planning authority MMRDAhad connived with the developer by granting an occupation certificate when the building was not fit for occupation, Justice Patel observed that the statement was not defamatory and rejected the injunction sought.
Referring to a second statement which alleged “golmaal” (fraud) in the acquisition of the plot from MMRDA, which was originally intended for infrastructure, the judge accepted Rao’s contention that he would not repeat the statement without necessary factual basis.
On a third statement alleging violations of the National Building Code and the Development Control Regulations, the court did not accept Lodha’s contention that it was defamatory per se and refused the request for injunction.
Referring to a fourth statement alleging collusion by certain banks in the Lodha “scam”, the court refused an injunction saying the comment was an opinion and a fair comment. “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,” the order said.
Referring to a fifth statement alleging that the basement of the project did not have an occupation certificate and neither the fire brigade nor MMRDA has inspected it, the court felt that Rao had justification to prima facie support the statement with “contemporaneous documentation” and refused to grant an injunction.
“The plaint suggests that nothing that was stated in this material was true, and almost the whole of it was defamatory; what was true was trivial and was in the nature of routine rectification. Prima facie, that does not appear to be so and Lodha must be held to have failed to make out a prime facie case even on these five statements to which Lodha has now limited its injunction application,” the order said.
The court said Rao had emailed the alleged defamatory content to Lodha in advance and had given the developer an opportunity to respond. The court also expressed surprise at Rao’s contention that when another flat buyer sought copies from MMRDA of sanctioned plans and the occupation certificate under RTI Act, Lodha opposed disclosing of information on the grounds of “trade secrets” and “intellectual property protection”. “Is the flat purchase not entitled to see a sanctioned plan? An occupancy certificate? Not entitled at all to any information about the flat in which he is supposed to live? Is he supported to simply pay money and then accept whatever is given to him without complaint. I do not see how a builder or developer offering flats for sale is any different from a manufacturers of plastic buckets or any other consumer product…It is no answer for the manufacturer or producer of a defective product to claim commercial secrecy, confidentiality or shelter behind trade secrets or intellectual property protection laws,” said the 28-page order, questioning how any builder could compromise RTI Act which has constitutional mandate.
Justice Patel also refused to order a take-down against YouTube sought by the developer. Rao’s journalism is not in the traditional form of print, but there is no different stand of law that applies to online journalism or comment, he said.
He said a statement is not to be viewed as suspicious only because it is made online or using available modern communication channels. “Calling out someone, with fair comment and justification, is not defamation. To put it differently, to say the emperor has no clothes is not defamation. It never has been,” the order said.
- Satish Nandgaonkar
In an interim order in the Rs 100-crore defamation suit filed by Lodha Developers against RTI activist and journalist Krishnaraj Rao, the Bombay High Court has dismissed the main notice of motion filed by the developer and virtually given a clean chit to Rao.
The matter pertains to some videos and articles by Rao on his channel on YouTube and on his blog, The Brave Pedestrian, questioning the quality of construction in the two flats owned by a couple, Amit Jaisingh and Shilpi Thard, in the New Cuffe Parade project in Wadala. One of the videos, in which Rao is seen punching a wall in the flat, went viral leading to the defamation suit in January this year.
Dismissing the main notice of motion for lack of merit and denying reliefs sought by the developer, Justice Gautam Patel used wit to underline the crux of the dispute, describing New Cuffe Parade as “a triumph of imagination over geography”, and the developer’s penchant for naming building after “vaguely Italian names”. “This choice of name 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,” he said.
The notice of motion sought gag orders against Rao posting any material about Lodha’s constructions anywhere and, specifically, about the construction quality of Dioro where Thard’s flats are located.
The order said Thard and Jaisingh purchased flats 3013 and 3014 on the 31st floor in Dioro’s B wing and paid the developer a sum of close to Rs 6 crore. While the developer claimed the duo took possession in February 2018 without protest or demur, they claimed that possession was promised in 2015 but was “thrust” upon them without giving them a chance to inspect the flats till they signed some documents.
The duo noticed leakage and seepage and Thard also participated in public protests before she approached Rao to write about it. Rao shot photographs and videos, and wrote critically about the construction quality. Before the content was posted online, he sent the entire content of the blog post of November 12, 2018, and audio video material in an email to Lodha on November 8, but received no response. Lodha made allegations of extortion and blackmail against Thard and Rao.
Referring to a January 9 blog post by Rao, which alleged that planning authority MMRDAhad connived with the developer by granting an occupation certificate when the building was not fit for occupation, Justice Patel observed that the statement was not defamatory and rejected the injunction sought.
Referring to a second statement which alleged “golmaal” (fraud) in the acquisition of the plot from MMRDA, which was originally intended for infrastructure, the judge accepted Rao’s contention that he would not repeat the statement without necessary factual basis.
On a third statement alleging violations of the National Building Code and the Development Control Regulations, the court did not accept Lodha’s contention that it was defamatory per se and refused the request for injunction.
Referring to a fourth statement alleging collusion by certain banks in the Lodha “scam”, the court refused an injunction saying the comment was an opinion and a fair comment. “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,” the order said.
Referring to a fifth statement alleging that the basement of the project did not have an occupation certificate and neither the fire brigade nor MMRDA has inspected it, the court felt that Rao had justification to prima facie support the statement with “contemporaneous documentation” and refused to grant an injunction.
“The plaint suggests that nothing that was stated in this material was true, and almost the whole of it was defamatory; what was true was trivial and was in the nature of routine rectification. Prima facie, that does not appear to be so and Lodha must be held to have failed to make out a prime facie case even on these five statements to which Lodha has now limited its injunction application,” the order said.
The court said Rao had emailed the alleged defamatory content to Lodha in advance and had given the developer an opportunity to respond. The court also expressed surprise at Rao’s contention that when another flat buyer sought copies from MMRDA of sanctioned plans and the occupation certificate under RTI Act, Lodha opposed disclosing of information on the grounds of “trade secrets” and “intellectual property protection”. “Is the flat purchase not entitled to see a sanctioned plan? An occupancy certificate? Not entitled at all to any information about the flat in which he is supposed to live? Is he supported to simply pay money and then accept whatever is given to him without complaint. I do not see how a builder or developer offering flats for sale is any different from a manufacturers of plastic buckets or any other consumer product…It is no answer for the manufacturer or producer of a defective product to claim commercial secrecy, confidentiality or shelter behind trade secrets or intellectual property protection laws,” said the 28-page order, questioning how any builder could compromise RTI Act which has constitutional mandate.
Justice Patel also refused to order a take-down against YouTube sought by the developer. Rao’s journalism is not in the traditional form of print, but there is no different stand of law that applies to online journalism or comment, he said.
He said a statement is not to be viewed as suspicious only because it is made online or using available modern communication channels. “Calling out someone, with fair comment and justification, is not defamation. To put it differently, to say the emperor has no clothes is not defamation. It never has been,” the order said.
- Satish Nandgaonkar
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