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The trial Court judgment

15. The trial Court has, in the impugned judgment, discussed the evidence in detail. The trial Court concluded that the imputations in the article in question "would definitely harm the reputation of any person, in the estimation of the right thinking members of the society".

16. The trial Court next proceeded to examine whether the action of the Respondents gave them the benefit of the First and Ninth Exceptions to Section 499 IPC. The trial Court concluded that the property in question had indeed been booked for unauthorised construction and despite several attempts the MCD did not take steps to demolish the said unauthorised construction. Further, the evidence of DW-3 and Ex.DW3/A proved that the Complainant did let out his property for commercial purpose. It was concluded that on a wholesome reading of the news item "it appears that the article does not specifically target any individual although it refers to the Complainant by name". There was no material on record to show that the news item had been written by the Respondents out of malice and therefore they were entitled to the benefit of First and Ninth Exceptions to Section 499 IPC as well.

25. It is plain, therefore, that the statement made at the foot of the news item that Respondent No.1 had already made applications under the RTI Act to the MCD and was awaiting the replies is not borne out by the evidence placed on record since the news item was published with the date 3rd December 2007, whereas the earliest of the applications made by Respondent No.1 under the RTI Act is dated 27th February 2008.

26. Mr. Santosh Kumar, learned counsel for the Respondents, submitted that Respondent No.1 had generally made inquires in the area and learnt of the unauthorised construction, and on that basis, proceeded to write the news article. He urged that the information gathered from the MCD pursuant to the applications made under the RTI substantiated what Respondent No.1 had stated in the news item. He laid particular emphasis on Ex. DW4/B being the reply dated 3 rd April 2008 of the MCD Building Department which showed that the property in question was booked on 12th June 2002 on account of unauthorised construction. The replies dated 3rd September 2008 (Ex. DW4/C) and 22nd December 2008 (Ex.DW4/F) showed that the action for removal of unauthorised construction could not be taken despite several requests made by the MCD to the Police. He submitted that the only inference that could be drawn from these documents was that the Appellant was well connected with the officials of the MCD and, therefore, he managed to avoid any further action being taken by the MCD. Reliance was placed on the reply dated 17th March 2010 of the MCD (Ex.DW3/A), which showed that a report dated 16 th May 2001 of the Area Inspector of the MCD showed that the basement and the ground floor were occupied by CMCS for office use; the first floor was found rented to Shubham International and first floor rented to Mr. Bindra and second floor were found locked. According to Mr. Santosh Kumar, the above document, read together with the evidence of DW1, substantiated the statements made in the news item that the property in question was being misused for commercial purposes and yet no action was being taken against it.

27. Prof. Ram Prakash submitted that when the misuse of the property by CMCS was brought to his attention, he immediately initiated eviction proceedings. As far as the Bengali Sweets Centre was concerned the evidence of DW-1 showed that the employees were only residing in the premises. It was not being used for commercial purposes. Prof. Ram Prakash submitted that the entire news item is activated by malice inasmuch as the Respondent No. 1 was himself the tenant in one room in the property in question. Prof. Ram Prakash had himself instituted eviction proceedings against Respondent No. 1 in which he ultimately succeeded up to the Supreme Court of India. Respondent No. 1 had himself constructed a kitchen on the terrace and was later ordered to remove the construction by the Court hearing Suit No. 259 of 2009 and to pay compensation to Prof. Ram Prakash. Rs. 90,000 of the decretal amount was yet to be paid. He pointed out that the notice of unauthorised construction dated 8 th April 2002 issued by the MCD was a cyclostyled document addressed to (i) Mr. Rajan Chaudhary (ii) Prof. Ram Prakash and (iii) Mr. D.N. Shrivastava. If no action was taken by the MCD then the blame should be equally shared by those who had raised the unauthorised construction. He pointed out that what transpired between the date of that notice and the publication of the article in December 2007 was not enquired into or even disclosed by Respondent No.1. He also failed to disclose in his article that he had himself a tenant in the property in question and had received notice for unauthorised construction.

Publication not in good faith

28. The Court finds merit in the submissions of Prof. Ram Prakash. The trial Court has simply concluded that the notices for unauthorised construction and demolition action proved that the case fell within the First Exception to Section 499 IPC which states that "It is defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published". What the trial Court appears to have missed completely is the fact that the notice of unauthorised construction was addressed to Respondent No. 1 himself and this fact was not disclosed in the news item.