Telangana High Court

Vattsala Vidya Sagar, Hyderabad. vs The State Of ... on 26 April, 2022

Bench: Satish Chandra Sharma, Abhinand Kumar Shavili

 THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                          AND
    THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI

      PIL Nos.241 AND 242 of 2015 AND W.P.No.31897 of 2015


COMMON ORDER: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)



1.     Regard being had to the similitude in the controversy

involved in the present cases, these cases were analogously

heard and by this common order, they are being disposed

of.


2.     The facts of PIL No.241 of 2015 are being dealt with

for deciding the controversy which is common in all these

cases. It has been filed by one Vattsala Vidyasagar, who is

claiming himself to be a social worker. It has been stated in

the PIL that a Fashion Show took place in 'The Park' hotel in

Hyderabad on 18.06.2015 and the respondent No.2, Smt

Smita Sabharwal, IAS., along with her husband made

appearance on the ramp. The Fashion Show was conducted

by Designer Abhishek Dutta. It has been further stated that

the Outlook English Weekly Magazine in its 6th Edition July,

2015 published an article under the name and style 'NO

BORING BABU' and certain comments were made in respect
                               2




of an IAS Officer and also the Chief Minister of the State of

Telangana.


3.   The respondent No.2 issued a notice to the Outlook

Magazine for publishing the article and finally a letter was

submitted to the State Government on 29.07.2015 stating

that she intends to file a suit for defamation claiming Rs.10

crores against the management of Outlook Magazine for

publishing the article and therefore, she needs an amount

of Rs.9,75,000/- (Rupees nine lakh and seventy five

thousand only) for payment of court fee. A request was

made to sanction Rs.15.00 lakhs. The State Government by

G.O.Rt.No.2296, dated 20.08.2015, sanctioned Rs.15.00

lakhs towards legal expenses and other expenses for filing a

suit against the Outlook Magazine.


4.   The petitioner's contention is that the article was

published by the Outlook Weekly Magazine in respect of a

private function and it was not an official function and in

case, the respondent No.2 was aggrieved in the matter, it

was her private affair and by no stretch of imagination, the

State Government could not have sanctioned Rs.15.00
                                           3




lakhs for filing a suit in respect of defamation. The

petitioner has also stated that the husband of the

respondent No.2 is an IPS Officer, they are having sufficient

funds to pay the court fees and the State exchequer cannot

be burdened in the manner and method it has been done by

issuing the G.O., dated 20.08.2015. The petitioner has

prayed for the following relief:-

            "It is therefore prayed that this Hon'ble Court may
      be   pleased   to     issue    an       order   or   direction   more
      particularly one in the nature of Writ of Mandamus
      declaring      that      the        G.O.Rt.No.2296,          General
      Administration (SC.A) Department, dated 20.08.2015
      issued by the 1st respondent sanctioning an amount of
      Rs.15.00 lakhs to the 2nd respondent towards legal
      expenses to fight out her private litigation is highly
      arbitrary, bad and illegal and pass such other order or
      orders as deem fit and proper".


5.    In the other connected matters, i.e., PIL No.242 of

2015, the same G.O., is under challenge and it has been

filed by one K.Eshwar Rao and W.P.No.31897 of 2015 has

been filed by Outlook Publishing (India) Private Limited

through its Chief Editorial Manager challenging the very

same G.O.Rt.No.2296, dated 20.08.2015. In the said writ
                                  4




petition, they have given reference to the other two PILs filed

on the subject.


6.   The State Government has filed a counter affidavit in

the matter, which is duly supported by an affidavit by the

Principal   Secretary       to   the       Government,     General

Administration     Department        and    the   fact   that   the

respondent No.2 is an IAS Officer working as an Additional

Secretary   to    Hon'ble   Chief    Minister,    Government     of

Telangana has been admitted. It has been stated in the

counter affidavit that Outlook English Weekly Magazine has

published a news item of caricature of respondent No.2,

which also contains another caricature of the Hon'ble Chief

Minister of the State of Telangana along with certain

photographs. The respondent No.1 has reproduced the

extract of the article in the counter affidavit. It has been

stated that the article published in the Outlook Magazine is

defamatory and it was published to ruin the reputation of

the respondent No.2, a woman IAS Officer as well as the

Chief Minister of the State of Telangana. It was published to

create a misleading impression against the Government's
                                     5




functioning      and   therefore,       the     IAS   Officer    made    a

representation on 03.07.2015 to the Government for grant

of   financial   assistance    to       the    respondent       No.2   and

accordingly,     the   G.O.,   dated          20.08.2015    was    issued

granting financial assistance to the respondent No.2. The

respondent No.1 has further stated that earlier also, several

IAS Officers were granted financial assistance by issuing

G.O.Rt.No.719, dated 19.02.2014 and the G.O., under

challenge is neither arbitrary nor illegal or mala fide in

nature or has been issued by abusing the power. In fact, it

has been issued in public interest as well as in protecting

and safeguarding the IAS Officer, who is working with the

Government. A prayer has been made for dismissal of the

PILs as well as the writ petition.


7.    Heard the learned counsel for the parties and perused

the record. These cases are being disposed of with the

consent of the parties.


8.    The undisputed facts of the cases reveal that the

respondent No.2 is an IAS Officer of Telangana cadre and a

Fashion show took place on 18.06.2015 in 'The Park' hotel
                                    6




at Hyderabad. It was organised by Fashion Designer

Abhishek Dutta. It is true that an article was published in

the Outlook English Weekly Magazine in 6th Edition, July,

2015, under the title 'NO BORING BABU' and the extract of

the article, as reflected in the counter affidavit' reads as

under:-

                  "TELANGANA - NO BORING BABU

           "The portfolio of a junior bureaucrat, who is posted
     in the Telangana CM's office, is a mystery. She used to be
     posted in a district earlier. But things changed all of a
     sudden after the elections. The lady is present at every
     meeting and seen in almost every official photograph sent
     out by the CMO. But what she does exactly is a puzzle.
     She makes a fashion statement, with her lovely saris and
     serves as "eye candy" at meetings, admit leading party
     politicians. In fact, it's this bureaucrat who calls up other
     officials in the CMO and asks them to come for meetings.
     She knows exactly what time the CM will arrive and leave
     the office. The lovely lady, known for her ethnic style,
     recently stunned all by appearing in a trendy trouser and
     frilly top at a fashion show. And for once, she wasn't
     sitting in an official meeting. But this appearance too
     made for a great photo op."


9.   The documents on record reveals that there was

protest in the matter by the Officers serving under the

Indian Administrative Service and the State Government
                                       7




has issued G.O.Rt.No.2296, dated 20.08.2015 sanctioning a

sum of Rs.15.00 lakhs in favour of the respondent No.2 to

file a suit against Outlook English Weekly Magazine. The

G.O.Rt.No.2296, dated 20.08.2015 is reproduced as under:-

                  GOVERNMENT OF TELANGANA
                          ABSTRACT
     I.A.S - Legal Expenses - Sanction of an amount of
     Rs.15.00 lakhs to Smt.Smita Sabharwal, IAS, Additional
     Secretary to Chief Minister towards legal expenses -
     Orders - Issued.

              GENERAL ADMINISTRATION (SC.A) DEPARTMENT
              G.O.Rt. No.2296                      Date:20.08.2015
                                                   Read:-

              From Smt. Smita Sabharwal, IAS, Additional
              Secretary to Chief Minister letter dt. 29.07.2015.

     ORDER:

In the letter first read, Smt. Smita Sabharwal, IAS, Additional Secretary to Chief Minister has informed that she is intending to file a Civil Suit worth Rs.10.00 crore against the management of the Outlook Magazine for posting an article and a cartoon in July 6th edition of Outlook Magazine. The Member of Service has further informed that as per the norms an amount of Rs.9.75 lakhs has to be deposited in the court towards Court Fee while filing the Civil Suit and requested to sanction an amount of Rs.15.00 lakhs, so as to enable her to go ahead with the above case. The approximate details of Court Fee to be deposited and other legal expenses are as follows:-

      S.No.      Particulars                           Amount
                                                       (Approximatey)
      1          Court fee for the civil suit for      Rs.9,75,426/-
                 damages
      2          Litigation expenses including Legal   Rs.5,00,000/-





             representation     for criminal
             complaint, civil suit, possible
             quashment proceedings in the
             Hon'ble High Court
                           TOTAL:              Rs.14,75,426/-

2. Sanction is hereby accorded for an amount of Rs.15.00 lakhs (Rupees fifteen lakhs only) to Smt. Smita Sabharwal, IAS, Additional Secretary to Chief Minister towards legal expenses in connection with filing of Civil Suit against the management of Outlook Magazine in the above matter, subject to condition that in case of compensation being awarded by Court, this amount should be refunded. She should give utilization certification along with detailed bills/receipts towards its use.

3. The expenditure sanctioned in Para-2 above shall be debited to the relevant head of account.

4. The General Administration (Claims.C) Department is requested to draw and credit the amount in favour of "Smt.Smita Sabharwal, IAS, Additional Secretary to Chief Minister".

5. This order issues with the concurrence of Finance (EBS.I) Department vide their U.O. No.363/EBS.IA1/15, dated 01.08.2015.

(BY ORDER AND IN THE NAME OF THE GOVERNOR OF TELANGANA) VIKAS RAJ, SECRETARY TO GOVERNMENT (POLL) To Smt.Smita Sabharwal, IAS, Additional Secretary to Chief Minister. The General Administration (Claims.C) Department. The Pay and Accounts Officer, Hyderabad. The Director of Treasuries and Accounts, Telangana, Hyderabad. The Accountant General, Telangana, Hyderabad. Copy to:

The Finance (EBS.I) Department.

SF/SC // FORWARDED :: BY ORDER//

SECTION OFFICER (SC)

10. While the matter was being argued before this Court,

it was brought to the notice of this Court by the petitioners

that a civil suit was preferred, i.e., O.S.No.179 of 2016

before the learned XXV Additional Chief Judge, City Civil

Courts, Hyderabad and the same was dismissed in default

on 27.12.2021. After that, no steps have been taken for

restoration of the same and the fact is that the suit was

dismissed on 27.12.2021 and there is no denial to the

aforesaid statement made in open court.

11. The basic question, which is arising in the present

cases, is whether the State Government can sponsor a

person to file a suit which is in respect of defamation for an

event which is not arising out of discharge of his/her official

duties.

12. The undisputed facts of the case reveal that the

Fashion Show was organised by Designer Abhishek Datta

and it took place in 'The Park' hotel in Hyderabad on

18.06.2015. It has been contended by the petitioner that the

respondent No.2, IAS Officer along with her husband made

an appearance on the ramp and it is an admitted fact that

the Outlook English Weekly Magazine in its 6th Edition July,

2015 published an article in the name and style 'NO

BORING BABU' and certain comments were made in the

matter. The Fashion Show was not official show/official

programme of the State of Telangana. No document has

been brought on record that it was an official function by

the State of Telangana and therefore, it has to be presumed

that it was a private event, in which the respondent No.2

has participated.

13. The learned counsel for the petitioner has drawn the

attention of this Court towards Article 282 of the

Constitution of India and the same reads as under:-

"282. Expenditure defrayable by the Union or a State out of its revenues:- The Union or a State may make any grants for any public purpose, notwithstanding that the purpose is not one with respect to which Parliament or the Legislature of the State, as the case may be, may make laws."

14. The aforesaid constitutional provision certainly

empowers the Union of India to make any grants for any

public purpose and in the considered opinion of this Court,

the grant made in the peculiar facts and circumstances of

the case to file a suit for defamation made is certainly not a

grant made in public purpose.

15. Learned counsel for the petitioner has drawn the

attention of this Court to the Judgment delivered by the

Hon'ble Supreme Court in the case of Bhim Singh v. Union of

India1. In the aforesaid case, a prayer was made for a

direction for scrapping of the Members of Parliament Local

Area Development Scheme (MPLAD Scheme) and for

impartial investigation for the misuse of the funds allocated

in the Scheme. The validity of the Scheme was upheld by

the Hon'ble Supreme Court and the petition was dismissed.

16. The learned counsel has drawn the attention of this

Court towards the conclusion drawn in the aforesaid case in

paragraph 97 of the aforesaid Judgment, which is

reproduced as under:-

"97. In the light of the above discussion, we summarise our conclusions as follows:

(1) Owing to the quasi-federal nature of the Constitution and the specific wording of Article 282, both

(2010) 5 SCC 538

the Union and the State have the power to make grants for a purpose irrespective of whether the subject-matter of the purpose falls in the Seventh Schedule provided that the purpose is "public purpose" within the meaning of the Constitution.

(2) The Scheme falls within the meaning of "public purpose" aiming for the fulfilment of the development and welfare of the State as reflected in the directive principles of State policy.

(3) Both Articles 275 and 282 are sources of spending funds/monies under the Constitution. Article 282 is normally meant for special, temporary or ad hoc schemes. However, the matter of expenditure for a "public purpose" is subject to fulfilment of the constitutional requirements. The power under Article 282 to sanction grant is not restricted.

(4) "Laws" mentioned in Article 282 would also include Appropriation Acts. A specific or special law need not be enacted by Parliament to resort to the provision. Thus, the MPLAD Scheme is valid as Appropriation Acts have been duly passed year after year.

(5) Indian Constitution does not recognise strict separation of powers. The constitutional principle of separation of powers will only be violated if an essential function of one branch is taken over by another branch, leading to a removal of checks and balances. (6) Even though MPs have been given a seemingly executive function, their role is limited to "recommending" works and actual implementation is done by the local authorities. There is no removal of checks and balances since these are duly provided and have to be strictly adhered to by the Guidelines of the

Scheme and Parliament. Therefore, the Scheme does not violate separation of powers.

(7) Panchayati Raj institutions, municipal as well as local bodies have also not been denuded of their role or jurisdiction by the Scheme as due place has been accorded to them by the Guidelines, in the implementation of the Scheme.

(8) The court can strike down a law or scheme only on the basis of its vires or unconstitutionality but not on the basis of its viability. When a regime of accountability is available within the Scheme, it is not proper for the Court to strike it down, unless it violates any constitutional principle.

(9) In the present Scheme, an accountability regime has been provided. Efforts must be made to make the regime more robust, but in its current form, cannot be struck down as unconstitutional.

(10) The Scheme does not result in an unfair advantage to the sitting Members of Parliament and does not amount to a corrupt practice."

17. The learned counsel for the petitioner has placed

heavy reliance upon the sub-paragraph (1) of paragraph 97

and it has been argued with great force that the Union and

the State have the power to make grants for a purpose

irrespective of whether the subject matter of the purpose

falls in the Seventh Schedule provided that the purpose is

"public purpose" within the meaning of the Constitution.

18. Filing of a case by an individual in his private capacity

against another private entity can never said to be for the

'public purpose'. In the present case, it is not the case

where the State of Telangana has taken action against the

Outlook Magazine or the respondent No.1, nor any comment

was made by the Outlook Magazine against the respondent

No.2 in respect of an event relating to discharge of official

duties and therefore, in the considered opinion of this

Court, the sanction by the State of Telangana can never

said to be the sanction made in respect of any 'public

purpose'.

19. The learned counsel for the petitioner has also placed

reliance upon the Judgment delivered in the case of Common

Cause v. Union of India2, the Supreme Court was dealing with

publicly funded advertising campaigns through

print/electronic media by Central Government, State

Governments, their Departments and instrumentalities for

furthering political motives of the political party in power.

Learned counsel has drawn the attention of this Court in

(2014) 6 SCC 552

paragraphs 18 and 19 of the aforesaid Judgment and the

same are reproduced as under:-

"18. In Shrilekha Vidyarthi v. State of U.P. [(1991) 1 SCC 212:1991 SCC (L&S) 742], this Court unequivocally rejected the argument based on the theory of absolute discretion of the administrative authorities and immunity of their action from judicial review and observed: (SCC p. 239, para 29) "29. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional."

Similar reasoning was rendered in Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489:(1979) 3 SCR 1014] and in Col. A.S. Sangwan v. Union of India [1980 Supp SCC 559 : 1981 SCC (L&S) 378] . Hence, it was submitted that judicial review of government policies is permissible if it does not satisfy the test of reasonableness and against the public interest.

19. Although, as asserted by the respondents herein that it is not the prima facie jurisdiction of this Court to examine what constitutes as "public purpose" or not, however, as per judicial precedents in Kasturi Lal Lakshmi Reddy v. State of J&K, (1980) 4 SCC 1 and other case laws as stated above, this Court is duty-bound to interfere whenever the Government acts in a manner, which is unreasonable and contrary to public interest. In succinct, the Government cannot act in a manner, which would benefit a private party at the cost of the State;

such an action would be both unreasonable and contrary to public interest. The present writ petitions challenge the government advertisements of political nature at the cost of the public exchequer on the ground that they are in violation of Articles 14 and 21 of the Constitution. We shall examine and scrutinise the situation as portrayed by the petitioners as to whether there is need for specific guidelines to be issued by this Court to regulate the same."

20. In the light of the aforesaid Judgment, it can be safely

gathered that the action of the State can be subjected to

judicial review in respect of Government policy also if it does

not satisfy the test of reasonableness and is against the

public interest.

21. In the present case, the State exchequer has been

subjected to financial burden for the benefit of a private

party and in the considered opinion of this Court, the action

of the State is unreasonable and contrary to the public

interest.

22. The learned Advocate General appearing on behalf of

the State of Telangana has argued before this Court that the

respondent No.2 is an All India Service Officer and the

Department of Personnel and Training has issued executive

instructions, dated 15.09.1993 for providing assistance to

All India Service Officers in connection with litigation action

taken by them in case of discharge of their official duties.

The executive instruction on which heavy reliance has been

placed is reproduced as under:-

"IX. LEGAL ASSISTANCE TO ALL INDIA SERVICE OFFICERS IN CONNECTION WITH LITIGATION ACTION TAKEN BY THEM IN THE CASE OF THEIR OFFICIAL DUTIES"-

1. Government can provide assistance to a MoS in public interest, with litigation action taken by them in the cases of their official duties:- I am directed to refer this Department's letter No.45/5/53 - Estt.(A) dated 8.1.59 on the above subject and to say that on increasing tendency has been observed among certain sections to lodge legal complaints against members of the All India Service in their personal name for official acts done by these officials in the cases of their official duties.

2. While State Governments and the Central Government vide DP&AR letter No.45/5/53 - Estt(A) dated 8.1.59 do have provisions to undertake the defence of such government servants in case it is in the public interest, whereupon all arrangements are made by the Government, there in often a tendency for the State Governments to ask the officer to undertake the defence on his own and consider reimbursement of the legal expenses only in case such officer is successful in the legal proceedings. In other cases, the State Governments may agree to provide legal expenses but subject to the condition that in case is lost, the officer has to bear the

entire cost of litigation. The practice of asking officers to defend themselves in such legal proceedings in bound to cause harassment for such officers in addition to expense, the reimbursement of which by the State Government and the extent thereof being uncertain.

3. In the performance of the official acts, the officer usually is only implementing the decision of the Government and it is not unjust to expect that the Government would undertake the defence of all government servants who have been impleaded in such legal action. For this purpose, there appears no need to make a distinction as to whether the complaint has been filed against the officers in their official designation or in their individual name.

4. While the State Governments are themselves the best judge of the public interest in respect of acts done by officers working for them the above may please be kept in mind while examining the case in which officers are subjected to harassment through such legal action.

[Letter No.11017/17/93 - AIS(II) dated 15/9/93]"

23. This Court has carefully gone through the aforesaid

executive instruction and it is not a case where the officer

has been subjected to harassment through legal action in

respect of an act done by the officer nor the case has been

filed by the officer in respect of discharge of official duties

and therefore, the aforesaid executive instruction does not

help the State Government in any manner.

24. The learned Advocate General has also placed reliance

upon the Judgment delivered in the case of R.Rajagopal v.

State of Tamil Nadu3. In the aforesaid case, one Shankar @

Gauri Shankar @ Auto Shankar was charged and tried for

as many as six murders. While he was in jail, he wrote his

autobiography and it was alleged that it was handed over to

his advocate to ensure that his autobiography is published

in magazine 'Nakkheeran'. The Inspector General of Prisons

wrote a letter dated 15.06.1994 to the magazine requesting

it to stop publishing the serial forthwith and in those

circumstances, the Hon'ble Supreme Court in the aforesaid

case, in paragraph 26 has held as under:-

"26. We may now summarise the broad principles flowing from the above discussion:

(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent -- whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating

(1994) 6 SCC 632

the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media.

(3) There is yet another exception to the rule in (1) above -- indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is

true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule.

(4) So far as the Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them.

(5) Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media. (6) There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media."

25. The Hon'ble Supreme Court in the aforesaid case has

finally held that the petitioners therein have right to publish

the life story/autobiography of Shankar @ Gauri Shankar @

Auto Shankar and the State or its officials cannot prevent or

restrain the said publication. It was also held that the

remedy of the affected public officials/public figures, if any,

is after the publication only.

26. This Court is of the considered opinion that the facts

and circumstances of the aforesaid case and the facts and

circumstances of the present case are altogether different.

In the present case, it is a case where respondent No.2 has

participated in a private event, some article has been