Delhi International Airport Pvt. ... vs Ht Media Ltd. & Ors.
2013 Latest Caselaw 2648 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment reserved on: June 08, 2013
                                     Judgment pronounced on: June 11, 2013

+                    I.A. No.9896/2013 in CS(OS) No.1220/2013

       DELHI INTERNATIONAL AIRPORT PVT LTD         ..... Plaintiff
                    Through  Mr.Maninder Singh, Sr.Adv. with
                             Mr.Harsh Kaushik, Mr.Ankur
                             Sood, Mr.Gaurav Singh &
                             Mr.Amit Ojha, Advs.

                           versus

       HT MEDIA LTD & ORS                                     ..... Defendants
                     Through            Mr.Sandeep Sethi, Sr.Adv. with
                                        Ms.Kanika Agnihotri & Mr.Vaibhav
                                        Agnihotri, Advs.

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The plaintiff, Delhi International Airport Ltd. has filed the present suit for permanent injunction against the defendants from relying upon and using the alleged report of the Comptroller and Auditor General (CAG) on the „Implementation of Public Private Partnership Indira Gandhi International Airport, Delhi‟ as the basis of package of articles, story, column, news report or item or any other form of public dissemination, through the print, electronic and social media or in any other form.

2. The defendant No.1 is a company which runs and manages the newspaper Hindustan Times. Defendant No.2 is a report of the Hindustan Times and sent an email dated 1st June, 2013 to the plaintiff stating that it

will be publishing articles based on alleged CAG report. The defendant No.3 is the Editor in Chief of the defendant No.1 and is in charge of the publishing in the Hindustan Times.

3. The plaintiff states that a reporter/defendant No.2 of the Hindustan Times has sent an email on 1 st June, 2013 stating a package of stories will be published based on the alleged CAG‟s report on Delhi Airport. The defendant No.2 has sent a questionnaire to the plaintiff seeking its comments on various issues raised in the alleged report of the CAG based on which the said defendant proposes to publish a package of stories, article/column in the Hindustan Times which has wide circulation in Delhi and other parts of India. The said email demonstrates that the prospective article is going to discuss in detail on merits various issues which are already pending consideration by the P.A.C. Publication of any such articles will interfere in the working of the P.A.C. and the administration of Parliamentary process. Publication of such an article will pre-judge the entire issue and is bound to affect the proceedings before the P.A.C. Such an article will prejudice the functioning of the legislature and against public interest. The defendants cannot rely upon or use the alleged report of CAG as the same is under examination by Public Accounts Committee (PAC). The report cannot be considered as final until the same is accepted by PAC. The plaintiff states that defendant No.1 had in the past (in the month of May, 2012) published a front page article on Delhi Airport based on the alleged report of CAG. The plaintiff is seeking injunction to restrain the defendants from relying upon or using the alleged report of CAG in any publication in its newspaper - Hindustan Times or in any other form.

4. This court on 5th June, 2013 passed the following order after issuing a short notice returnable on 7 th June 2013:

"I.A.No.9897/2013 (court fee)

Counsel for the plaintiff undertakes to file the court fee on or before 7th June, 2013. In view of the undertaking, the application is disposed of.

CS (OS) 1220/2013 & I.A.No.9896/2013

Issue dasti summons in the suit and notice in the application to the defendants for 7th June, 2013.

Learned Senior counsel, appearing on behalf of the plaintiff, presses interim order. He has been heard for some time. Learned counsel has referred to various paras of the plaint as well as documents placed on record. He has also mentioned various extract from the Public Accounts Committee. The relevant extract of the same reads as under:

"All discussions held during tour by the Committee/Study Groups with the representatives of the establishment, Ministries/Departments, non-official organisations. Labour Unions, etc. are treated as confidential and no one having access to the discussion, directly or indirectly is to communicate to the Press or any unauthorised person, any information about matters taken up during the discussions."

Counsel has also referred to the judgment of Arun Kumar Agrawal v. Union of India & Ors., Writ Petition (Civil) No.69/2012, dated 9th May, 2013.

"54. We have referred to the report of the CAG, the role of the PAC and the procedure followed in the House, only to indicate that the CAG report is always subject to scrutiny by the Parliament and the Government can always offer its views on the report of the CAG.

55. The question that is germane for consideration in this case is whether this Court can grant reliefs merely placing reliance on the CAG‟s report. The CAG‟s report

is always subject to parliamentary debates and it is possible that PAC can accept the ministry‟s objection to the CAG report or reject the report of the CAG. The CAG, indisputably is an independent constitutional functionary, however, it is for the Parliament to decide whether after receiving the report i.e. PAC to make its comments on the CAG‟s report.

56. We may, however, point out that since the report is from a constitutional functionary, it commands respect and cannot be brushed aside as such, but it is equally important to examine the comments what respective ministries have to offer on the CAG‟s report. The ministry can always point out, if there is any mistake in the CAG‟s report or the CAG has inappropriately appreciated the various issues. For instance, we cannot as such accept the CAG report in the instant case."

After having considered the statement made in the plaint and decision referred to by the learned counsel for the plaintiff, it is directed that till the next date of hearing, the defendant shall maintain the status quo with regard to CAG report relating to Delhi Airport.

Copy of the order be given dasti under the signature of the Court Master."

5. Pursuant to the service, Mr. Sethi learned Senior counsel appearing on behalf of the defendants has insisted that the order dated 7th June 2013 should be vacated as the interim order which has been passed on 5 th June 2013 with regard to CAG report has already been published in the print media and there is no why there should be any such embargo against the defendants to further analyzing the CAG report. Mr Sethi stated that he intends to rely upon the documents which have been handed over by him with the index considering the urgency of the matter seeking immediate vacation of the interim order. Mr. Sethi submits that since it involves legal

issue, his clients at this stage only referred the document placed on record on 7th June, 2013.

6. Thereafter the matter was directed to be listed on 8 th June 2013. The matter was argued at great length by both the counsels appearing for the parties.

7. Mr. Maninder Singh, learned senior counsel for the plaintiff has made his submissions which can be outlined in the following manner:

a) Mr. Singh argued that the report of CAG relating to implementation of public private partnership at Indira Gandhi International Airport shall be subjected to process provided under the rules of practice in parliament. The said report shall be with first examined by the PAC (Public Accounts committee) which shall scrutinize the said report and thereafter would submit its report. It has been argued that thereafter the said CAG report shall be laid before the parliament. In the process of the pendency of the CAG report before the PAC which will examine the veracity of the said report and shall examine into several facts, the publication of any article by the defendants in the newspaper affecting the merits of the controversy would be violation of rule 275 of the rules of the procedure of Lok Sabha.

b) Mr. Singh has argued the proceedings which are pending before the PAC are kept confidential and publication of any facts affecting the merits of the CAG report when PAC is seized of the matter would be prejudging the controversy and if not then certainly the same would affect public opinion adversely when the competent authority is yet to decide the matter.

c) Mr. Singh has argued that the nature of the questionnaire sent by defendant No.2 with his email dated 1.6.2013 would clearly show that the defendant intends to publish the facts affecting the merits of the correctness or otherwise of the CAG report after seeking clarifications from the plaintiff. Mr. Singh argued if his client would state the answer in affirmative or in negative or even avoid answering the said questionnaire, the defendant would publish the said version as it is which would affect the public opinion adversely towards the role of the plaintiff or any other participant who all are subject matter of the CAG report. All this would prejudice the interests of the parties and would also affect the working of the parliamentary process unnecessarily when the competent authority is seized of the matter. Under these circumstances, Mr. Singh argued that the defendants should be prevented from publishing the articles containing the facts affecting the merits of the controversy.

Mr. Singh mainly relied upon the judgment passed by the Supreme Court in the case of Reliance Petrochemicals Ltd v. Proprietors of Indian Express News papers, (1988) 4 SCC 592 and Attorney General v. Times Newspapers Ltd., 1974 AC 273 to argue that this Court should accept the doctrine of prejudging the controversy and interference with the process of administration of the authority when it is seized of the matter and proceed to restrain the defendants from publishing the article relating CAG report on that count.

d) Mr. Singh has argued that it may be true that the CAG report as such may be available in public domain and there may be

publications which are already available in the public domain as suggested by the defendants, however the defendants may be restrained to further analyze the facts affecting the merits of the CAG report which may be prejudicial to the interest of the plaintiff in the manner attempted to be done by the defendants while seeking clarifications from the email dated 1.6.2013. In short, the submission of Mr. Singh is that the defendant may be allowed to publish the articles on CAG report which are available in public domain but should not analyze it further by asking the participants of the transaction including the plaintiff in the instant case.

e) Lastly, Mr. Singh has cited number of the case laws wherein it has been laid down that the proceedings which are pending before PAC of the parliament are to be kept confidential and even the RTI is also not permissible to make the proceedings public and It would be in breach of the rules of procedure of parliament to make such facts public or publish them till the time the proceedings are pending consideration before the committee. He relies upon the judgment of Apex Court in the case of Arun Kumar Aggarwal v. Union of India decided on 9th May, 2013 in WP(C) No.69/2012.

8. In view of the above submissions, it has been prayed by Mr. Singh that the interim order passed on 5th June 2013 should be confirmed.

9. Per contra, Mr. Sethi, learned senior counsel for the defendants has made his submissions which can be outlined in the following manner:

a) Mr. Sethi, learned senior counsel argued that the plaintiff is guilty of the suppression of the material facts and as such not entitled from any interim relief from this court. It has been argued by Mr. Sethi that the plaintiff has not disclosed before this court that the

CAG report against the publication of which, the injunction order has been sought for has already been analyzed and published many a times since the year 2012 and has been published in the print media from time to time.

Thus, the information relating to CAG report and analysis about the same has already been available in the Public domain. The defendants would be doing nothing wrong if they would publish any article relating to CAG report considering the widespread publication already available in various newspapers and print media in electronic form. Mr. Sethi has relied upon the documents to support his submission in this regard which show that the articles have been published in NDTV website, Hindustan Times website and many other places in this regard since the year 2012. In view of the same, as per Mr. Sethi, the plaintiff is guilty of misrepresentation and the order passed on 5 th June 2013 should be vacated with immediate effect.

b) Mr. Sethi has argued that the right to speech and express includes right to press as envisaged under article 19 (1) (a) of the Indian constitution, thus the preventive order against the media cannot be passed till the time the case falls within the ambit of the article 19 (2). It has been argued that it is correct that CAG report is a matter of national interest and the same is pending for consideration before PAC, but the defendants are only analyzing the CAG report as it stands in public domain and are expressing their own opinion which is a part and parcel of democratic system. The defendants are neither causing any violation of the parliamentary privilege nor doing any contemptuous act which has been apprehended by the

plaintiff. Thus, the defendants cannot be restrained from doing their business which is right to express their own opinion and analyze even in relation to CAG report.

c) Mr. Sethi has argued that this Court should accept the apprehensions of the plaintiff that the publication of the views of the defendant would be prejudging the controversy and would interfere with the administration of parliamentary system. It has been argued that when the defendants are not publishing anything relating to proceedings before PAC nor have any intention to do, it is inconceivable how the publication would lead to any prejudgment or would interfere by simply providing the opinion on CAG report. Thus, the apprehensions of the plaintiff are misconceived.

d) Mr. Sandeep Sethi also argued that the suit filed by the plaintiff is not maintainable as the plaintiff is also guilty of concealing material facts from this Court. According to him, in case those important facts would have disclosed in the plaint, an ex-parte order ought not to have been passed.

e) Mr. Sethi has also argues that the plaintiff is not entitled for injunction in view of concealment of facts from this Court. The details of the same are given as under :

i) The plaintiff has not disclosed in the plaint about the pendency of early writ petition being WP (C) No.6441/2012 filed by Youth Against Corruption wherein the plaintiff herein is one of the respondents. In the said petition, one of the prayers is sought to issue direction to CB I or to

constitute a special investigation team to initiate an investigation.

ii) The factum of CAG report which was published after tabling the same in Lok Sabha. There are already various articles in many newspapers and other media. Even the plaintiff had given its comments on that report which is now in public domain and is also available on internet. The same have not been disclosed by the plaintiff in the plaint. Mr. Sethi has referred the prayer clause of the plaint as well as the interim application wherein infact the relief sought by the plaintiff is to restrain the defendants from publishing stories and articles etc. based on the alleged CAG report relating to Delhi Airport. He argues that now the plaintiff has changed its stand by alleging that the said Article and stories should not be published in any form in any manner in the print and electronic media which may cause interfere in the working of the PAC and the administration of Parliamentary process. He argues that in the prayer no such relief was sought.

10. In view of the submissions advanced above, Mr. Sethi prayed that order passed on 5th June 2013 should be vacated.

11. I have gone through the plaint and documents filed therewith and the submissions advanced by the learned counsel for the parties at the bar and now shall proceed to discuss the aspects raised by the learned counsel for the parties point wise.

12. First and foremost, it is noteworthy to mention that it is correct that the CAG report is subjected to parliamentary process as provided in article

151 of the Constitution and rules of procedure of parliament as stated by the learned counsel for the plaintiff. However, what is required to be kept confidential is the proceedings before the committee as per rule 275 of the rules of the procedure. It is one thing to say that the person is expressing the opinion of the existing report of constitutional functionary, however, it is altogether different thing to say that the person is leaking information or making any information about the proceedings before the parliamentary committee public including the evidence or any facts disclosed during the progress of the proceedings. Therefore, the analysis of the CAG Report as it stands in the public domain and expression of the opinion thereon cannot be construed to mean there would be an intrusion in the proceedings or domain of the parliamentary process nor the same would be treated as the violation of rule 275 of the rules of the procedure as is evident from its express wordings.

13. Secondly, The great stress has been laid on the principle of the prejudging the controversy and the intrusion on the administration of system as the ground to seek the preventive orders from this court by placing reliance of the judgment passed in the case of Reliance (supra) and Attorney General (supra). It may however be mentioned that the careful reading of the judgment passed in the case of Reliance Petrochemicals (supra) as relied upon by the learned counsel for the plaintiff, it is evident that the Supreme Court has also quoted the judgment of the Attorney General (supra) and proceeded to observe that the freedom of press and right to know is a basic right which should not be unnecessarily curtailed and the preventive orders of injunction should be passed only to keep the keeping the system of administration of justice unimpaired and for passing the same, there should be real and imminent danger. The Supreme Court cautioned

that such power of the court should be exercised very sparingly and with great circumspection on the case to case basis. Thus, there is no need to further analyse the judgment of Attorney General (supra) as the Supreme Court has already done the said exercise in the case of Reliance Petrochemicals (supra) accepted the principle in the Indian context to the extent it has deemed expedient.

14. Therefore, even if the ratio of Reliance Petrochemicals (supra) is applied to the instant case, I do not find any real and imminent danger even if the defendants are allowed to publish any article basing upon the CAG report and does it analysis on the basis of opinions of the other persons. There would be no violation of the rules of procedure as argued by the learned Senior counsel for the plaintiff if the defendants are allowed to publish the said articles based on CAG report.

15. Thirdly, the apprehension of the plaintiff that the questionnaire which the defendants have asked from the plaintiff in their email dated 1st June, 2013 are the ones which affect the merits of the proceedings pending before the Parliament and hence, the same are prohibited to be made public, is not the correct understanding of the law. What is required to be kept confidential is the proceedings before PAC including the oral, written evidence of or proceedings of the committee and not the questions or concerns which may arise while analyzing the said report. Thus, the case laws relied upon by the plaintiff in order to fortify the argument that the proceedings before PAC are kept confidential and the rules of procedure prohibit any such publication are not applicable to the instant case and the same are clearly distinguishable. Consequently, it is up to the plaintiff whether it intends to answer the questionnaire or not, however, the same would not prevent the defendants from publishing the article relating to CAG report.

16. The plaintiff has read question No. 3 which somehow relates to proceedings before PAC and contends that the said question is not required to be answered to the defendants and all other questions of such nature would in all certainty be breach of the confidential nature of the proceedings before the parliament. I find that it is upon the plaintiff to see whether he intends to answer the said question or not and whether the same would be a contravention of rules of procedure on the part of the plaintiff or defendants if the plaintiff answers the same. But certainly the said aspect nowhere affects the defendants‟ right to publish the article till the time the defendants operate within the ambit of the provisions of the law relating to the CAG proceedings.

17. Lastly, I find that the judgments which have been relied upon by the plaintiff relates to contempt of the Court in which case the publication of the articles are allowed to prohibited that too in very rare and exceptional which I am prima facie of the opinion that the present case is not. But even otherwise, the said judgments are not applicable to instant case as in the present case, the plaintiff is calling upon this court to assume powers on the basis of the apprehended danger of contempt of the parliament which is a constitutional functionary in its own right. Therefore, the parliament has in the constitution ample powers to proceed against the contemnor if the need arises which are of-course subject to judicial review. This court while applying the judgments which are passed in the context of contempt of court wherein it can uphold their majesty by preventing to cause obstruction in the process of justice cannot proceed to assume similar powers in the context of contempt of the parliament. Therefore, neither the said judgments of Reliance Petrochemicals (supra) and Attorney General (supra) lay down the said proposition nor such proposition can be accepted in generality.

18. Rather in the case of S. Rangarajan Vs. P. Jagjivan Ram, 1989 (2) SCC 574, Supreme Court has observed as under :

"[The] commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. [In other words, the expression should be inseparably] like the equivalent of a „spark in a power keg‟."

In Virendra Vs. State of Punjab, AIR 1957 SC 896 it was held by the Apex Court that :

"It is certainly a serious encroachment on the valuable and cherished right to freedom of speech and expression if a newspaper is prevented from publishing its own views or the views of its correspondents relating to or concerning what may be the burning topic of the day.

Our social interest ordinarily demands the free propagation and interchange of views but circumstances may arise when the social interest in free speech and expression to the needs of our social interest in public order. Our Constitution recognizes this necessity and has attempted to strike a balance between the two social interests. It permits the imposition of reasonable restrictions on the freedom of speech and expression in the interest of public order and on the freedom of carrying on trade or business in the interest of general public.

Therefore, the crucial question must always be : Are the restrictions imposed on the exercise of the rights under Articles 19(1)(a) and 19 (1)(g) reasonable in view of all the surrounding circumstances ? In other words are the restrictions reasonably necessary in the interest of public order under Article 19(2) or in the interest of the general public."

19. In view of the same, I find there is no case for the grant of injunction as the CAG report which forms the basis of the proposed publication by the defendants is already available in public domain. It is upon either of the

parties as to what extent they intend to part with the information and make it public by way of publication. This court cannot comment upon the same and nor could draw any line for the same. In any case, Mr. Sethi, learned Senior counsel for the defendants very fairly stated that neither defendants are doing any violation of the parliamentary privilege and rules of procedure and nor they are intending to do. The statement of the learned Senior counsel for the defendants is accepted by this court.

20. There is no real and apprehended danger which I find may be caused to this court and there is no violation of the rules as such caused by the defendants. Thus, the balance of the convenience is also in favour of the defendants. No irreparable loss shall be caused to the plaintiff if the defendants are allowed to publish the article on the lines which is already published many a times as the proceedings are already pending before PAC which shall be giving its report unbound by any publication after analyzing the CAG report as per the rules and maintaining the confidentiality.

21. In the result, IA No.9896/2013 is accordingly dismissed and all interim orders stand vacated. The plaintiff is also burdened with cost of `20,000/- to be deposited in the Prime Minister Relief Fund within two weeks from today for not disclosing the facts of pending writ petition in this Court and not specially providing the full details of publishing all articles on the CAG report along with plaint.

CS(OS) No.1220/2013

22. Written statement be filed by the defendants within four weeks with an advance copy to the plaintiff‟s counsel who may file replication within four weeks thereafter. Documents, if any, be filed within ten weeks from today.

23. List the matter before Joint Registrar on 16th September, 2013 for admission/denial of documents and thereafter before Court on 7 th October, 2013 for framing of issues and directions for trial.

24. Dasti under the signatures of Court Master.

(MANMOHAN SINGH) VACATION JUDGE JUNE 11, 2013