Orissa High Court
Varsha Priyadarshini vs Government Of India And Others ... ... on 22 March, 2023
Author: Krushna Ram Mohapatra
Bench: Krushna Ram Mohapatra
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No. 13508 of 2022
(in the matter of an application under Article 226
of the Constitution of India, 1950)
****
Varsha Priyadarshini ... Petitioner
Ms. Sujata Jena, Advocate
-versus-
Government of India and others ... Opposite Parties
Mr. Prasanna Kumar Parhi,
Deputy Solicitor General of India for Odisha ,
being assisted by Mr. B. Panda, CGC
(For Opposite Party Nos.1 and 2)
Ms. Geeta Luthra, Senior Advocate
Being assisted by Mr. Lalitendu Mishra, Adocate
(For Opposite Party No.4)
Date of Hearing : 06.01.2023 : Date of Judgment :22.03.2023
CORAM:
JUSTICE KRUSHNA RAM MOHAPATRA
JUDGMENT
KRUSHNA RAM MOHAPATRA, J.--
1. This matter is taken up by virtual/physical mode and heard counsel for respective parties.
2. This writ petition has been filed with a prayer to direct the Opposite Party Nos.1 and 2, i.e., the Ministry of Information and Broadcasting, Government of India and Registrar of Page 1 of 23 .
// 2 // Newspapers of India respectively to instruct the Print and Electronic Media not to publish and circulate any news item in the matter pertaining to marital dispute between the Petitioner and Opposite Party No.4. Further prayer has been made to take action against Opposite Party No.4 in making derogatory remarks against the Petitioner which violates her right to privacy and to live with dignity.
2.1 Contents of the writ petition reveals that both the Petitioner and Opposite Party No.4 are reputed actors of Odia Film Industry and Opposite Party No.4 is also a Member of Parliament from Kendrapara Parliamentary Constituency. There is a marital discord between them for which CP No.312 of 2020 and CP No.246 of 2021 are pending before learned Judge, Family Court, Cuttack. Further, a proceeding under the Protection of Women from Domestic Violence Act, 2005 in DV Case No.94 of 2020 is also pending before learned Sub-Divisional Judicial Magistrate, Sadar Cuttack.
2.2 Initially the Opposite Party No.4 filed HMA No.267 of 2020 praying, inter alia, for dissolution of their marriage by a decree of divorce, which was subsequently transferred to the Family Court, Cuttack as per the direction of the Hon'ble Supreme Court and registered as CP No.246 of 2021. Similarly, the Petitioner has also filed an application under Section 9 of the Hindu Marriage Act, 1955 for restoration of their conjugal life in CP No.312 of 2020, which is also pending before the said Family Court, Cuttack.
Page 2 of 23// 3 // 2.3 It is alleged in the writ petition that soon after the aforesaid cases were filed, the Opposite Party No.4 started giving statements in print and electronic media about their personal life, which were published in different newspapers and also telecast in print and electronic media. Such publications and telecast seriously infringe the private life of the Petitioner so also her right to live with dignity.
2.4 In DV Case No.94 of 2020, learned SDJM was pleased to pass an order restraining the Opposite Party No.4 from entering into the room of the Petitioner where she was staying and also not to interfere with her personal life. Looking at the situation two women Police personnel were also deployed at the house where the Petitioner was staying. Due to the alleged derogatory remarks and release of videos, Petitioner's dignity was lowered in the society and she had to face a lot of queries from her fans and friends. In the writ petition, the Petitioner also annexed the videos played in You Tube channel in a pen drive, statements made by Opposite Party No.4 in social media for his fans and followers, and the complaint dated 22nd May, 2022 lodged before You Tube Channel by the Petitioner, as Annexures-1 to
4. Viewing the release of videos in You Tube Channel people started giving their derogatory opinions. The said Videos and statements in You Tube Channel became such that the Petitioner was scared of going outside and continue her social activities. The conduct of the Opposite Party No.4 is not only violates Article 21 of the Constitution but also frustrate the Page 3 of 23 // 4 // purpose of Section 22 of the Hindu Marriage Act, 1955. The act and action of Opposite Party No.4 being intolerable, the Petitioner reported the matter to the Inspector in-charge of Purighat Police Station (Annexure-5) requesting him to enquire into the matter and take appropriate action, but to no effect. As such, the Petitioner finding no other alternative has filed this Writ Petition.
3. A detailed counter affidavit has been filed by the Opposite Party No.4 raising preliminary objection with regard to maintainability of the writ petition. It is contented, inter alia, that the writ petition involves serious disputed questions of fact. The prayers made therein are also vague and omnibus and no writ can be issued under Article 226 of the Constitution of India against an individual granting such prayers. As a counter-blast to the petition filed by Opposite Party No.4 for dissolution of marriage, the Petitioner filed DV Case No.94 of 2020 before learned SDJM, Cuttack Sadar, lodged FIR in Purighat PS under Section 498A, 506 and 34 IPC. In order to gain sympathy, the Petitioner also filed a petition for restoration of conjugal right. It is also alleged, inter alia, that the Petitioner has left no stone unturned to see that Opposite Party No.4 withdraws the petition for dissolution of marriage. It is also stated in the counter affidavit that learned SDJM, Sadar Cuttack in the aforesaid DV Case, vide order dated 5th February, 2021 along with certain directions to the Opposite Party No.4 also, directed the present Petitioner not to prevent the Opposite Party No.4 accessing the Page 4 of 23 // 5 // share household including drawing room and kitchen situated in the first floor and not to lock the entrance of the said floor. The Opposite Party No.4 had never broadcast his statement relating to the case pending in the Family Court, Cuttack by making derogatory remarks against the Petitioner, as alleged. To the contrary, Opposite Party No.4 had filed an interim application in CP No.246 of 2021 praying, inter alia, to direct the media not to telecast anything about the Family Court proceedings. Petitioner objected to the said petition by filing her objection before learned Judge, Family Court, Cuttack stating that the media platform is an independent process of the present society of developing countries and the mouth of the media should not be gagged by a judicial order. Learned Judge, Family Court, Cuttack rejected the application filed by Opposite party No.4 vide order dated 15th July, 2021 observing that the Press is the 4th pillar of democracy. Importance of the role of media in our day-to-day life is pretty evidence. It was also observed therein that the media must act as 3rd eye to keep the citizens aware of what is happening around the world and thus the right of 4th pillar of democracy to print and publish, cannot be snatched away. In view of the stand of the Petitioner before the learned Judge, Family Court, Cuttack she is estopped from making any claim before this Court more particularly as sought for in this writ petition. These facts were deliberately suppressed by the Petitioner in the writ petition. In the counter affidavit, Opposite Party No.4 also relied upon the observations of the Hon'ble Supreme Court in the case of Prestige Lights Page 5 of 23 // 6 // Ltd. Vs. State Bank of India, reported in (2007) 8 SCC 449 and Udyami Evam Khadi Gramodyog Welfare Sanstha and another Vs. State of Uttar Pradesh and others, reported in (2008) 1 SCC 560 and contended that while claiming relief of equity, the applicant must come to the Court with clean hands. It is, therefore, contended that the Writ Petition suffers from suppression of aforesaid material facts and thus is liable to be dismissed.
4. So far as publication of video is concerned, it was contended that Opposite Party No.4 had up-loaded some videos expressing the gratitude to his fans for supporting him in his hard time on his own personal and private You Tube channel. Sharing someone's own thought and freedom of speech expression is very much protected and guaranteed under the Constitution and the Opposite party No.4 has only exercised his right to speech without defaming and demeaning anyone including the Petitioner. The Opposite Party No.4 also alleged that publication and telecast of news item regarding their marital discord is without his knowledge. In order to save his image as a law maker and to protect his reputation being tarnished on daily basis in media, he released the video on 21st May, 2022 disclosing his case details and the cases filed by the Petitioner. On the other hand, the Petitioner is playing a victim card by filing the present petition only to draw attention of the media and public. The Opposite Party No.4 also wrote to the Hon'ble Speaker, Lok Sabha to refrain media from publishing news Page 6 of 23 // 7 // about their marital discord, which is sub judice before different courts vide his letters dated 11th September, 2020 and 12th February, 2022 (Annexures-D/4 and E/4) respectively. The Opposite Party No.4 also denied all other allegations the writ petition and prayed for dismissal of the same.
5. Mrs. Jena, learned counsel buttressing the case of the Petitioner, submitted that this Court has ample jurisdiction under Article-226 of the Constitution to issue direction to print and electronic media not to publish/broadcast/telecast any derogatory news items concerning the marital discord between the Petitioner and Opposite Party No.4. Narrating the facts in detail, she further submitted that every citizen of the country, as the Petitioner, has right to privacy. Every citizen has fundamental right of expression, but said fundamental right should not infringe the dignity and integrity of any other person. Otherwise, it would amount to misuse of right of expression. In support of her submission, she relied upon the observation of the Hon'ble Supreme Court in the case of Justice K S Puttaswamy (retd.) and Anr. Vs. Union of India and Ors., reported in AIR 2017 SC 4161 in which it is held as under:-
".... the right to privacy is as sacrosanct as human existence and is inalienable to human dignity and autonomy. Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution...."
Xxx xxx xxx xxx "Every individual is entitled to perform his actions in private. In other words, she is entitled to be in a state of repose and to work without being disturbed, or otherwise Page 7 of 23 // 8 // observed or spied upon. The entitlement to such a condition is not confined only to intimate spaces such as the bedroom or the washroom but goes with a person wherever he is, even in a public place....."
She also relied upon a decision of the Hon'ble Supreme Court in the case of Manohar Lal Sharma Vs. Union Of India and others reported in 2021 SCC Online 985, wherein it is held as under:-
"34. Members of a civilized democratic society have reasonable expectation of privacy. Privacy is not a singular concern of journalists or social activists. Every citizen of India ought to be protected against violations of privacy. It is expectation which enables us to exercise our choices, liberties and freedom......."
In the light of the aforesaid observation, Mrs. Jena, learned counsel submitted that since the right to privacy has been encroached upon by the conduct of Opposite Party No.4 in giving statements and releasing videos which violates the fundamental right of the Petitioner, a writ petition to protect fundamental right of the Petitioner is maintainable.
5.1 Although an interim order was passed by Hon'ble Vacation Bench on 27th May, 2022 and the matter was posted to 4th July, 2022, but the Opposite Party No.4 proceeded to release videos and statements touching the integrity and dignity of the Petitioner as well as infringing her privacy. As such, the Petitioner also filed CONTC No.3983 of 2022 before this Court for violation of order dated 27th May, 2022 and to punish the Opposite Party No.4 suitably.
Page 8 of 23// 9 //
6. With regard to maintainability of the writ petition, Mrs. Jena, learned counsel for the Petitioner also cited different case laws which are as under:-
i) AIR 1999 SC 753 (U.P. State Co-operative Land Development Bank Limited Vs. Chandra Bhan Dubey and Ors.)
ii) AIR 2005 SC 2677 (Zee Tele films Ltd. and another Vs. Union of India and others.)
iii) AIR 2012 SC 3829 (Sahara India Real Estate Corp. Ltd. & Ors. Vs. Securities & Exchange Board of India & anr.
iv) AIR 2017 SC 4161 (Justice K S Puttaswamy (retd.) and another Vs. Union of India and others.
v) (2005) 5 SCC 733 (Noise Pollution (v), In Re Vs. Union of India and another) She, therefore, submits that the scope of Article 51A (e) of the Constitution clearly provides that it is the duty of every citizen to renounce practices derogatory to the dignity of women. In case of any violation of provision of the Constitution, this Court has ample power to exercise its jurisdiction under Article 226 of the Constitution to interfere with the same. She further submits that no doubt, the Petitioner has a remedy in common law forum, but that does not prevent her from filing the writ petition before this Court in view of rules of the Hon'ble Supreme Court in Justice K S Puttaswamy (retd.) (supra). She therefore prays for grant of the relief as aforesaid.
Page 9 of 23// 10 //
7. Mrs. Luthra, learned Senior Advocate appearing on behalf of Opposite Party No.4 also made lengthy arguments on the facts as well as law involved in this writ petition. Denying allegations made in the writ petition in detail she submits that the writ petition under Article 226 of the Constitution is not maintainable against private individual. In this regard, she relied upon decision in the case of Indu Jain Vs. Forbes Incorporated, reported in 2007 SCC OnLine Del 1424, in para- 57, it has been observed as follows:-
"57. From the constitutional scheme and a reading of the foregoing pronouncements, it is apparent that in order to seek enforcement of a fundamental right, the dispute must not be between two private individuals but must be between an individual and the State. Even enforcement of the fundamental right of freedom of expression under Article 19(1) has to be enforced against the State. It is well settled that other than violation of Articles 17, 23 and 24 by private parties other, disputes between two private parties cannot be urged to be an invasion of a fundamental right."
In Raptakos Brett and Co. Ltd. Vs. Raptakos Brett Employees Union Rep by its General Secretary and Another, reported in 2021 SCC OnLine Madras 2896, in para-8 it has been observed as under:-
"8. Since it has been admitted by the appellant that CCTVs have been installed in the men dress changing room, the second respondent also in his letter dated 29.10.2013 directed the appellant to abide by the customs prevailing in Tamil Nadu in the interest of industrial peace. Since paragraph-12 of the counter affidavit filed by the appellant in the writ petition before the learned single Judge admits the fact of installation of the CCTV even inside the rest room, which is not only objectionable but also impermissible in law, in the light of the legal position settled by the nine-Judge Bench of the Hon'ble Supreme Page 10 of 23 // 11 // Court in the case of Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 holding that the right to privacy is a fundamental right that does not need to be separately articulated, but can be derived from Articles 14, 19 & 21 of the Constitution of India; that it is a natural right that subsists as an integral part to the right to life and liberty; that it is a fundamental and inalienable right and attaches to the person covering all information about that person and the choices that he/she makes; that it protects an individual from the scrutiny of the State in their home, of their movements and over their reproductive choices, choice of partners, food habits, etc., therefore, any action by the State that results in an infringement of the right of privacy is subject to judicial review, in the case on hand, since there is no infringement of privacy by the State, the first respondent/writ petitioner cannot lay their claim before this Court under Article 226 of the Constitution of India. In the judgment of the Hon'ble Apex Court in Justice K.S. Puttaswamy (Retd.) v. Union of India (supra), Hon'ble Justice Sanjay Kishan Kaul (in his separate opinion) recognizing the breach of privacy committed by private individuals/private entities/non-State actors, called upon the legislature to legislate on this issue and ensure privacy of individuals against other citizens as well. Since the Constitution of India states that fundamental rights enshrined in Part III can only be enforced against State as defined in Article 12, we are of the considered opinion that the writ of mandamus issued by the learned single Judge against the private factory management is not legally sustainable, hence, the first respondent-Union has to work out their remedy before the appropriate forum.........."
Ms. Luthra, learned Senior Advocate submitted that issue concerning matrimonial proceeding between the Petitioner and Opposite Party No.4 being reported in print, electronic and social media already set at rest by the learned Judge, Family Court in its order dated 15th July, 2021. Petitioner deliberately suppressing the said fact has approached this Court with the selfsame relief, but in different words. It is just like 'old wine in new bottle'. She also pressed into service the order dated 15th Page 11 of 23 // 12 // July, 2021 passed by learned Judge, Family Court, Cuttack. She therefore submitted that the writ petition is not maintainable both on fact and law. In the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahostav Smarak Trust and others Vs. V.R. Rudani and others, reported in (1989) 2 SCC 691, at para-15 of which, Hon'ble Supreme Court held as under:-
"If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie...."
In course of her submission, she reiterated that the relief sought for in this writ petition is a relief of equity. Hence, the Applicant must come to the Court with clean hands. Since the Petitioner herself suppressed material fact that she had contested the application filed by Opposite Party No.4 to restrain her from making a publication in the print, electronic as well as social media taking a contrary stand, is stopped to raise a negative plea in this writ petition. While contesting the application filed by Opposite Party No.4, the Petitioner had argued that the media must be allowed to report on matrimonial discord. Taking note of her submission, and the case law, learned Judge Family Court rejected the application filed by Opposite Party No.4. Thus, the writ petition is not maintainable as by suppressing material fact the Petitioner has played fraud on the Court. In support of her submission, she relied upon a decision in the case of S.P.Chengalvaraya Naidu Vs. Page 12 of 23 // 13 // Jagannath and others, reported in (1994) 1 SCC 1, wherein it is held as under;-
".....A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."
In all fairness, the Petitioner ought to have disclosed the fact of filing of petition by Opposite Party No.4 and her objection to the said application as well as order passed therein.
7.1 It is also her submission that an individual has a legal right to use the media to answer the criticism level against him. The Opposite Party No.4 being a popular actor in Odia Film Industry has a large number of fans and followers. He is also an elected Member of Parliament from Kendrapara Parliamentary Constituency. Thus, the statement made by the Petitioner in social, print as well as electronic media also tarnished his image in the society. Such statements also infringed his liberty. In support of her submission, she relied upon a case law in the case of Life Insurance Corporation of India Vs. Prof. Manubhai D. Shah, reported in (1992) 3 SCC 637, wherein it is held as under:-
"8. ....Once it is conceded, and it cannot indeed be disputed, that freedom of speech and expression includes freedom of circulation and propagations of ideas, there can be no doubt that the right extends to the citizen being permitted to use the media to answer the criticism levelled against the view propagated by him....."
Page 13 of 23// 14 // She also submitted that the Petitioner has already filed a defamation case against Opposite Party No.4 under Section 501 of the IPC and Section 67 of the Information Technology Act. The Opposite Party No.4 has already been summoned in the said case, which is registered as ICC No.377 of 2022 pending in the Court of learned SDJM, Sadar Cuttack. She therefore contended that a blanket order of injunction should not have been imposed on the Opposite Party No.4, which curtails his fundamental right of free speech and expression, especially when a defamation case has already been filed against him. In support of her submission, Ms. Luthra, learned Senior Advocate relied upon the case law in the case of R.Rajagopal @ R.R.Gopal (a) Nakkheeran Gopal Vs. J.Jayalalitha, reported in (2006) 2 LW 377, wherein High Court of Madras has held as under:-
".....The freedom of speech and expression of opinion is of paramount importance under a democratic constitution which envisages changes in the composition of legislatures and governments and must be preserved. The interim order granted by the learned single Judge is a blanket injunction. The order virtually amounts to a gag order or censorship of press. Such censorship cannot be countenanced in the scheme of our constitutional framework. Even assuming that the articles published by the appellants amount to character assassination of the respondents, there is no justification for granting a blanket injunction restraining the appellants from publishing any articles, in future. It would not be appropriate for us to examine the articles at this stage on the touchstone of defamation, but what we do observe is that they are not of such a nature warranting a restraint order, especially when the appellants are willing to face the consequences in a trial in case the same are held to be defamatory, and the plea of the appellants of truth is yet to be analysed by the Court."Page 14 of 23
// 15 // She therefore submitted that entertaining the writ petition during pendency of a criminal defamation case will amount to abuse of process of Court and utilizing the Court to take revenge on the Opposite Party No.4 to settle her score. She accordingly prays for dismissal of the writ petition with cost.
8. Heard learned counsel for the parties at length. They were also requested to file their written note of arguments along with citations. Basing upon the arguments advance by learned counsel for the parties and perusing the materials on record, this Court finds that following three points are required to be answered in this writ petition.
i) Whether the Petitioner has any cause of action to file the writ petition;
ii) Whether the writ petition in its present form is maintainable; and
iii) To what relief, if any, the Petitioner entitled to. Findings;
9. Cause of action:-
On perusal of the writ petition and upon hearing learned counsel for the Petitioner, namely, Mrs. Jena, it transpires that the Petitioner had lodged FIR before Purighat Police Station with regard to alleged derogatory remarks about her character and that of her family members by Opposite Party No.4 in public. The said remarks were allegedly made by Opposite Party No.4 in public on day-to-day basis by uploading videos Page 15 of 23 // 16 // himself or with help of his followers. When it became un- bearable and for such action the Petitioner had to undergo mental trauma and her reputation was tarnished, she finding no other alternative had to move this Court by filing the present writ petition.
9.1 It is alleged by Ms. Luthra, learned Senior Advocate appearing on behalf of Opposite Party No.4 that the Petitioner has no cause of action to file the writ petition, inasmuch as similar such application was filed by the Opposite Party No.4 before learned Judge, Family Court, Cuttack in CP No.246 of 2021 on 6th July, 2020, when the matter was pending before learned Principal Judge, Family Court, Patiala House, New Delhi. In the said application, the Opposite Party No.4 had made a prayer to prohibit the Petitioner from publishing contents of petition, pleadings, provisions, documents and any part thereof in the media platform. The Petitioner had filed her objection to the said petition stating that the Opposite Party No.4 himself initially published the information relating their marital dispute in the electronic, print as well as social media.
It is from the said sources, the Petitioner could know filing of a case for dissolution of their marriage by decree of divorce in the Court of Principal Judge, Family Court, Patiala House, New Delhi. Thus, the Petitioner filed a transfer petition before Hon'ble Supreme Court and pursuant to the direction of the Hon'ble Court, the matter was transferred to the Court of learned Judge, Family Court, Cuttack and registered as CP Page 16 of 23 // 17 // No.246 of 2021. It is further contended in her objection that since the Opposite party No.4 initially made publication of matters relating to their marital dispute in the print, electronic as well as social media, he would not be prejudiced if the Petitioner published information about their marital dispute as well as day-to-day progress of the proceeding in the media. Considering the rival contentions of the parties, learned Judge Family Court observing that the Press being the fourth pillar of democracy important role of media in our day today life is pretty evident. Thus, the right of the fourth pillar of democracy to publish and print cannot be snatched away when it has been disclosed before them by the parties or by their respective learned counsel. It was further observed that at the same time, such electronic, print and social media cannot be permitted to scan day-to-day proceedings of the Court so also pronounce pre-trial judgment on the oral version of the parties so also their respective counsels, right of which is vested in Court only. As such, the petition filed by the Opposite Party No.4 was rejected vide order dated 15th July, 2021 (Annexure- C/4 to the Counter Affidavit filed by Opposite Party No.4). The case record also reveals that the Petitioner has filed a case in ICC No.377 of 2022 before learned SDJM, Sadar, Cuttack under Section 501 IPC and 67 of Information and Technology Act. Such material facts were not disclosed in the instant writ petition. Propriety demands that the Petitioner should disclose all relevant and material facts relating to the case in her pleadings for just adjudication of her claim.
Page 17 of 23// 18 // 9.2 Miss Luthra, learned Senior Advocate harped upon the same and submitted that the Petitioner has committed fraud on Court by suppressing aforesaid material facts. Thus, the question that cropped up for consideration as to whether the Petitioner has still any cause of action to seek for the aforesaid relief in the present writ petition.
9.3 No doubt, the Petitioner has not disclosed about filing of similar nature of application by Opposite Party No.4 before learned Judge, Family Court, Cuttack and also filing of a criminal proceeding, which is pending in the Court of learned SDJM, Sadar Cuttack. It further appears that order dated 15th July, 2021 passed by learned Judge, Family Court, Cuttack in CP No.246 of 2021 has not yet been varied or set aside by any higher forum. In the above factual backdrop, it has to be considered whether the Petitioner has still any cause of action to agitate her grievance before this Court. On perusal of the writ petition, it discloses that inaction on the FIR filed by the Petitioner in Purighat PS at Cuttack and publication of derogatory remarks on the character of the Petitioner as well as her family members is the cause of action to file the writ petition. No material has been produced before this Court to arrive at a conclusion that filing of either the petition by Opposite Party No.4 before learned Judge, Family Court or filing of a criminal defamation case by the Petitioner, which is pending before learned SDJM, Sadar Cuttack was filed on the cause of action of the writ petition. On the other hand, it appears that cause of action for filing of the petition either Page 18 of 23 // 19 // before learned Judge, Family Court or complaint before learned SDJM, Sadar Cuttack are quite different than in the present writ petition. Cause of action is a bundle of facts and the Petitioner can bring a legal action on any one of such fact. Thus, this Court is of the considered opinion that in view of either suppression of material fact or filing of the petitions before different Courts, as stated above, cannot be a ground to throw away the present Writ Petition on the ground of lack of cause of action. Thus, this Court holds that the Petitioner has cause of action to file the present writ petition.
10. Maintainability of the writ petition:-
Maintainability of the writ petition is vital issue to be considered in this writ petition. Broadly speaking case of the Petitioner is that in the facts and circumstances of a particular case, a writ of maintenance can be issued against a private individual restraining him from doing any act which violates his/her fundamental right. On the other hand, the stand of Opposite Party No.4 is that a writ petition under Article-226 is not maintainable against a private individual for issuance of a prohibitory order in the matter of publication of contents relating to matrimonial dispute between the parties in print, electronic and social media. In the case of Chandra Bhan Dubey (supra), it is held that the expensive and extraordinary power of High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person, even a private individual and be available for any Page 19 of 23 // 20 // (other) purpose, even one for which another remedy may exist. It is also held therein that "But it is one thing to affirm the jurisdiction, another authorizes its free exercise like a bull in a china shop. This Court has spelt out wise and clear restraints on the use of this extra-ordinary remedy and the High Courts will not go beyond the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered speaking in critical retrospect and portentous prospect, the writ power has, by and large, being the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights." Further, in Zee Tele films Ltd. (supra), it is held that any violation of a fundamental right will have the claim against the State and unlike the rights under Articles-17 and 21, which can be claimed against a non-state actors including individuals, the right under Article 19(1)(g) cannot be claimed against an individual or a non state entity. In Sahara India Real Estate Corp. Ltd. (supra), it is held that the right under Article 21 to a fair trial and all that it comprehends would be entitled to approach an appropriate writ Court and seek an order of postponement of the offending publication/broadcast or postponement of reporting of certain phases of the trial. From the above it transpires that the writ court under Article 226 of the Constitution is not denuded of the power to entertain a writ petition where there is violation of Articles 17 and 21 of the Constitution. But that should be Page 20 of 23 // 21 // exercised in an exceptional case and that too with circumspection. For that the aggrieved person (the writ Petitioner) must make out a strong case to satisfy the Court that he/she has an indefeasible right to invoke writ jurisdiction under Article 226 of the Constitution against a non-state entity, i.e., a private individual.
10.1 In the instant case, perusal of the prayer made in the writ petition makes it abundantly clear that the Petitioner has sought for a direction to Opposite Party Nos.1 and 2 to instruct the print, electronic and social media operators not to publish any material with regard to matrimonial proceedings pending in different Courts between the Petitioner and Opposite Party No.4.
10.2 In course of hearing, this Court made a query to Mrs. Jena, learned counsel for the Petitioner to satisfy the Court that if the Opposite Party Nos.1 and 2 have any statutory/legal and legal obligation to issue the instruction as prayed for. But it could not be satisfactorily replied by learned counsel for the Petitioner. Moreover, the learned counsel for the Petitioner could not satisfy the Court as to whether Opposite Party No.2 as described in the writ petition, namely, Registrar of Newspapers of India, Ministry of Information and Broadcasting is really existing or not.
10.3 Ms. Luthra, learned Senior Advocate relying upon the aforesaid case laws as detailed herein above stating that the Page 21 of 23 // 22 // prayer sought for in the writ petition cannot be granted in exercise of power granted under Article 226 of the Constitution. The case law cited by Ms. Luthra, learned Senior Advocate has also bearing in adjudication of the case. The general principle that a writ petition is not maintainable against a private individual cannot be brushed aside completely. As discussed above, the Petitioner has to make out a strong case for issuance of a direction as sought for. No case is made out by the Petitioner in this writ petition to call for an immediate intervention of this Court. No material is placed before this Court to infer that the Petitioner had no efficacious remedy for redressal of her grievance. No doubt, a writ petition is maintainable even if an alternative remedy is available. But when the alternative remedy is equally efficacious the writ Court should be slow to intervene in the matter.
10.4 In addition to the above, the allegations and counter allegations require factual adjudication by receiving evidence from the parties. A competent Civil Court has jurisdiction to delve and adjudicate the issue involved in the instant writ petition. It has also the power to grant any interim relief as sought for in the present writ petition. Thus, in my considered opinion the writ petition, in the facts and circumstances of the case, is not maintainable.
11. What relief the Petitioner is entitled to:-
In the facts and circumstances of the case, when this Court is of the considered opinion that the writ petition as laid down is Page 22 of 23 // 23 // not maintainable, the Petitioner is not entitled to any relief as prayed for. But the same does not take away her right to work out her remedy before a common law forum in accordance with law.
12. While parting with the case, this Court feels and expects that both Petitioner and Opposite Party No.4 should maintain self- restraint and mutual respect in asserting their legal and constitutional right.
12.1. With the observations, as aforesaid, the writ petition stands dismissed, but in the facts and circumstances, there shall be no order as to costs.
13. The Interim Order dated 27th May, 2022 passed in IA No.7125 of 2022 stands vacated.
Issue urgent certified copy of this judgment on proper application.
(KRUSHNA RAM MOHAPATRA) JUDGE s.s.satapathy High Court of Orissa, Cuttack The 22nd March, 2023 Page 23 of 23