The case relates to the powers of the Court to order pre-publication and pre- broadcasting Injunctions in case Defamation charges have made against the Media House. 

Relevant Facts 

The Appellant in the matter is an industrialist and Chairman of M/s. Jindal Steel & Power Limited and the Defendant is a media house company.  

• The present application is filed seeking an interim injunction to restrain the defendants, etc. from writing, telecasting or airing any material, article, news etc. directly or indirectly pertaining to the purported allegations made against the appellants. The allegation pertains to an alleged incident of the year 2001 and 2010 by a lady who has been described in the plaint as Mrs. ABC. Other connected reliefs were also sought.
• It is alleged that in September of 2012, an enormous demand by way of extortion was made by the Editors and Chairman of Defendant No. 1. This extortion call, it is said, was made pursuant to a vilification campaign against the plaintiff and his company in relation to a purported coverage of coal-gate scam in which the plaintiffs company was sought to be falsely implicated. Various Litigations were initiated by both the parties.
• The present scenario has fallen out of the WP No. 235/2014 at the Chhattisgarh High Court which was filed by Mrs. ABC on the acts of Mr. D.K. Bhargava by coming to her home and removing her clothes and robbing her chasity. D.K. Bhargava with others also took thumb expression on the documents forcibly.
• An order was made on 06.01.2015 by the HC and on this order the defendants in the present case made publications/news programs in respect of the Appellants that was alleged to be misleading and fake and was called out as a violation of Article 19 and Article 21 of Constitution.
• Argument and reliance on different cases was made by both Appellants and defendants on the issues framed by the court.

Key Issues

1. Whether the Court has the powers to grant a pre-publication or pre-broadcasting injunction against the defendants.
2. Under what facts and circumstances, should the court exercise its jurisdiction to grant an injunction regarding publication of news item or broadcasting of programmes?

Arguments made by the Plaintiff

Since the defendants have aired more than 20 news programmes, it is not just causing defamation to the Plaintiff but also interfering with the administration of justice. It is also urged that the actions of defendants are motivated by malafides and an order of temporary injunction should be passed against the defendants. Reliance was also placed on Article 21 and the rights of plaintiff were also trampled upon and also urged that irresponsible reporting was done by the defendants. 

The plaintiff’s plea of temporary injunction was also supported by a variety of case laws in the issue of pre-publication and pre- broadcasting injunction. 

Arguments made by the Defendants

It is been contented by the defendants that the suit is not maintainable as it directly corresponds to the suit of Chhattisgarh HC and it lacks a necessary party that should also be made as a party i.e Mrs. ABC. It is also put at reliance that the suit is barred as a similar suit for injunction was made in the year 2014 before the same court and the directions in the same were followed meticulously by the defendants. It was further urged that at best the reports made by the defendant are a case of fair comment and justification. It is further urged that this is a complete defence to a suit for defamation and no stay can be granted. It is also stated that the plaintiff is a public figure having been a Member of Parliament. Public is interested in the activities of a figure like the plaintiff and there can be no restrictions imposed on a right to comment upon the conduct of the plaintiff.

Analysis

The court in the present case, did not restrict its scope and granted the relief to the Plaintiff of Temporary Injunction. Court placed reliance on various decision supplied by the Plaintiff and the defendants and by which it was made clear that the courts have power to pass pre-publication or pre-broadcasting injunctions if the court is satisfied that interest of justice so requires. The court relied on the case of Reliance Petrochemicals Ltd. vs. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd. and Ors. (1) in which, “The Supreme Court ordered restraint on publication. Needless to add that after the time for subscription to the debentures had closed and the imminent danger to the subscription subsided, the Supreme Court held that continuance of the injunction is no longer necessary. The Supreme Court applied the test of real and imminent danger in order to infer as to whether the proposed publication would lead to an interference in the course of justice for the purpose of grant or non-grant of interim injunction of prior restraint against publication.”

The court also analysed the issue of the facts and circumstances under which it should issue the grant of an injunction also that the court holds the power to restrain publication in media if it arrives at a finding that the publication may result in interference with the administration of justice or against the principle of fair trial or open justice. Reliance was also placed on the case of Swatanter Kumar vs. The Indian Express Ltd. & Ors. (2) Wherein certain important deductions were made in law that were important in passing of a order in the case. They were as, “It is clear that it is the question of degree of prejudice and its nexus with fetching the fair justice or open justice which is a potent factor which is required to be examined and tested by the Courts at the time of passing of the injunction restraining or postponing the publication. The line between fairness and unfairness is sometimes blurred but if the same is likely to prejudice the accused and project him as culprit which may cause irreversible damage to a person, the Court can step in and assume jurisdiction for future prevention of such damage so that the administration of the justice is not impaired.” 

As the present matter was at the stage of preliminary enquiry by the police. The question was whether it will be appropriate for the Court to grant stay on publication at this preliminary stage. Do the powers of the court encompass within its sweep, the power to pass an injunction or prior restraint before or after a FIR is registered and before the court commences trial. Reliance was placed on the case of Sidhartha Vashisht vs. State (NCT of Delhi) (3), and the court appreciated the ruling i.e. “Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. In that event, it will be opposed to the very basic rule of law and would impinge upon the protection granted to an accused under Article 21 of the Constitution. In the present case, various articles in the print media had appeared even during the pendency of the matter before the High Court which again gave rise to unnecessary controversies and apparently, had an effect of interfering with the administration of criminal justice. We would certainly caution all modes of media to extend their cooperation to ensure fair investigation, trial, defence of accused and non interference in the administration of justice in matters sub-judice.”

The judgements supplied by the defendants before the court were not appreciated by the court and it was held by the court that the allegations made by the reporters of Defendant No. 1 against Plaintiff No. 1 were not per se defamatory. It was further held by the court that a pure blanket pre-telecast restraint order cannot be passed. The balance of convenience has also been a feature that has been focused by this court. The Court accepts the test of imminent and present danger on the basis of balance of convenience but on the other hand states that no formula or test has been laid down to determine how the danger should be judged in case of prevention by injunction of broadcasting in a pending trail. 

Any publication which gives excessive adverse publicity to an accused or which is likely to hamper fair trial and constitutes an interference with the course of justice could be a ground for grant of injunction. The court has ample inherent power to restrain publication in media in the event it arrives at a finding that the said publication may result in interference with the administration of justice or would be against the principle of fair trial or open justice.

Conclusion

In the present case, the court held that the balance of convenience is in favour of the plaintiff and publication or broadcasting of anything would cause Serious prejudice to the plaintiff if injunction is not granted. Accordingly, the Hon’ble court restrained the Defendants 1 and 2, by an order of injunction from publishing any article or right-ups or telecasting programmes on the allegations against the Plaintiff as made by Mrs. ABC either in the complaint or before the police, till the time the police completes its enquiry and, if necessary, investigation and files an appropriate report/document before the court. The order of injunction which is passed is of a temporary nature and is applicable only till the police completes its preliminary enquiry or any other investigation if required that may be done at a later stage. However, the defendants are free to report to the court the final conclusion of the police in the course of preliminary enquiry covered under the ambit of fair reporting on the basis of true, correct and verified information. 

(1) AIR 1989 SC 190
(2) 2014 (207) DLT 221
(3) AIR 2010 SC 2352 India

This case is based upon the applicability of deductions under Section 23(2) of the Income Tax Act, 1961 on Hindu Undivided Family.

Background

The instant case (1) was a reference proceeding under the Income Tax Act, 1961 [hereinafter referred as ‘ITA’] which was referred to the Full Bench of the Gujarat High Court, presided by Hon’ble Chief Justice Mr. S.J. Mukhopadhaya, Hon’ble Mr. Justice Akil Kureshi and Hon’ble Ms. Justice Harsha Devani. The said case was is fact first referred to the Division Bench of the Gujarat High Court [hereinafter referred as ‘HC’] but having convinced that the case involves a substantial question of law and deserves to be heard by a Full Bench, the Division Bench referred the matter to the Full Bench of the Gujarat HC. The question herein pertained to the applicability of deduction under Section 23(2) of the ITA (2) to a Hindu Undivided Family [hereinafter referred as ‘HUF’]. 

Relevant Facts 

1. The assessee in the present matter was an HUF which derived certain income from house property. Furthermore, at the time of filing of the Income Tax return the assessee made a claim of deduction under Section 23(2) of the ITA but the same was rejected by the Ld. Income Tax Assistant Commissioner who took a view that deduction under the said section can only be granted to an individual natural person. 
2. Thereafter, the assessee preferred an appeal before the Ld. Commissioner of Income Tax [hereinafter referred as ‘CIT’] but the Ld. CIT also rejected the claim of the assessee on the same grounds as applied by the Ld. Income Tax Assistant Commissioner. 
3. In further appeal, the assessee approached the Hon’ble Income Tax Appellate Tribunal, which relying upon various precedents concluded that deduction under section 23(2) can also be availed by an HUF. 
4. Accordingly, the instant case was referred to the Division Bench of the Gujarat HC under Section 256 of the ITA by the CIT, which further referred the matter to the Full Bench of the Gujarat HC. 

Issues Addressed

• Whether the benefit of deduction under Section 23(2) of the ITA can be availed by an HUF?
• Whether an HUF can be held to be a fictional entity?

Rules Applicable 

1. Section 23 of the ITA
2. Section 7 of the Wealth Tax Act, 1957 (3)
3. Section 13 of the General Clauses Act, 1957 (4)
4. Section 256 of the ITA

Analysis 

[Issue i] Whether the benefit of deduction under Section 23(2) of the ITA can be availed by an HUF?

It is submitted that for the purposes of claim of deduction under section 23(2) of the ITA, there are two essentials which shall be fulfilled by the assessee: 

1. The assessee must be in self-occupation of the property; and
2. The assessee must be a natural person. 

The entire facet of deduction under Section 23(2) is based on the central premise that the property of the assessee must be self-occupied and it must

not be used for purposes other than residence. Accordingly, the intent of the legislature is clear that it wants to provide the benefit of deduction from annual value of property only in cases where the use of the property is for residential purposes only. Reference can be made to the relevant provision of the ITA which states as follow:

“23. Annual value how determined. – 

(2) Where the property consists of a house or part of a house which 

(a) is in the occupation of the owner for the purposes of his own residence; or 

(b) cannot actually be occupied by the owner by reason of the fact that owing to his employment, business or profession carried on at any other place, he has to reside at that other place in a building not belonging to him, 

the annual value of such house or part of the house shall be taken to be nil.”

The use of the term owner in the aforesaid section of the ITA has been particularly a moot question and different HC(s) have expressed their opinions on the said term. For instance, the case of CIT v. Mohammad Tyamboo (5), wherein the Hon’ble Jammu and Kashmir HC held that the term owner under section 23(2) essentially refers to a natural person or in other words an individual and the benefit of deduction under the said section cannot accordingly be availed by a partnership firm. 

Similarly, in the case of CIT, Delhi v. Dewan Chand Dholan Dass (6), it was propounded by the Hon’ble Delhi HC that the nature of relief under Section 23(2) is available only to an assessable entity and not by a company or a partnership firm which constitute different individual assessable entities. 

For the purposes of availment of benefit under Section 23(2) of the ITA by an HUF reliance can also be placed upon the provision of section 7(4) of the Wealth Tax Act, 1957 which was similar in application and interpretation to the section 23(2) of the ITA. The Gujarat HC while interpreting the applicability of the said section on an HUF held that HUF can own as well as reside in a property and accordingly can avail the benefit of deduction under Section 7(4) of the Wealth Tax Act, 1957. (7)

Moreover, the provision of Section 13 of the General Clauses Act, 1897 also holds special importance for the purpose of delineating the scope of deduction under Section 23(2) of the ITA. It states that: 

“13. Gender and number: In all Central Acts and Regulations, unless there is anything repugnant in the subject or context, 

(1) words importing the masculine gender shall be taken to include females; and

(2) words in the singular shall include the plural, and vice versa.”

Keeping in view the aforesaid, it is submitted that the interpretation of the term owner under Section 23(2) of the ITA shall accordingly include owners for the purpose of claim of deduction made thereof and an HUF can also be brought within the ambit of the said section. 

[Issue II] Whether an HUF can be held to be a fictional entity?

It is submitted that an HUF from the jurisprudential point of view is essentially a group of individuals as distinct partnership firms or a company who come together in order to function as a group for common economic benefits. An HUF being a person for the purposes of ITA and headed by a Karta cannot be treated as a legal fiction in stricto sensu as it is essentially a group of individuals who either connected by blood or through some other means and accordingly can avail deduction under Section 23(2) of the ITA. 

Similar Case Law  

1. Income Tax Officer v. Tarlock Singh and Sons (8)

The instant case was an appeal filed by the Revenue Department before the Income Tax Appellate Tribunal [hereinafter referred as ‘ITAT’] under Section 253 of the ITA. The appeal concerned the question of law as to whether deduction under section 23(2) can be claimed by an HUF. The Hon’ble ITAT after hearing both the parties concluded that deduction under Section 23(2) can be availed by a natural person who can physically occupy a premise. Further, the ITAT also observed Karta who is the representative of an HUF is also a natural person who can reside in a premise and accordingly the benefit of deduction can also be availed by an  HUF and the words ‘in occupation of the owner for the purposes of his own residence’ also includes an HUF. 

Conclusion 

It is concluded that the approach followed by the Hon’ble Gujarat High Court in the instant matter is plausibly good in law as it protects the interests of an HUF and gives due regard to the intention of the legislature as to provide benefit of deduction under Section 23(2) to an HUF. A literal interpretation of the words ‘in occupation of the owner’ as used under Section 23(2) would however have led to a flawed conclusion to the detriment of an HUF for the availment of deduction in case of self-occupied property. 

Additionally, the reasoning of the court while taking into account the jurisprudence of the existence of HUF is another plausible aspect of the judgement as it clearly distinguishes an HUF from other entities such as a partnership firm and a company which are fictional entities and cannot be allowed to claim deduction under Section 23(2) of the ITA due to the want of the requirement of self-occupation as mandated by the legislature for the purposes of deduction under section 23(2) of the ITA.  

(1) In Re: Commissioner of Income Tax v. Hariprasad Bhojnagarwala, Appeal No. 174 of 1995 (Guj. HC).
(2) § 23(2), The Income Tax Act, No. 43 of 1961, India Code (1961).
(3)  § 7, The Wealth Tax Act, No. 27 of 1957, India Code (1957).
(4)  § 13, The General Clauses Act, No. 10 of 1897, India Code (1897).
(5) Commissioner of Income Tax v. Mohd. Amin Tyamboo, 125 ITR 375.
(6) Commissioner of Income Tax, Delhi v. Dewan Chand Dholan Dass, 132 ITR 790.
(7) Commissioner of Wealth Tax v. Ashok Raje Gaekwad, 276 ITR 54.
(8) Income Tax Officer v. Tarlock Singh & Sons, 1989 29 ITD 139 (Delhi).