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Synopsis

The Supreme Court recently held that right to protest peacefully without falling foul of the law is a corresponding right, which consumers ought to possess just as the sellers enjoy their right to commercial speech. It asserted that any attempt to portray them as criminal offences, when the necessary ingredients are not made out, would be "abuse of process and should be nipped in the bud".

A bench of Justices K V Vishwanathan and N Kotiswar Singh quashed a defamation complaint filed against the homebuyers for putting up a poster against the real estate developer, raising their grievances.

The court observed, "Homebuyers and developers have not always been the best of friends. Instances are innumerable where the two have been at daggers drawn.This case presents one such instance. Not satisfied with the services provided by the respondent-developer and when, according to them, repeated entreaties did not elicit a response, the appellant-home buyers decided to resort to a unique form of protest. They erected a board/banner on August 10, 2015, visible to the public at large setting out in English and Hindi language."

Examining the language of the banner through the lens of Defamation, Court pointed out that all that the banner depicts is what the homebuyers think about their grievances against the respondent, with whom they had a business relationship. The banner stated that one of the key issues was “ignoring grievances” implying that there were constant issues between the two -something which was obvious in a builder-buyer relationship. 

"At the very outset, what strikes us is that there is no foul or intemperate language employed against the respondent. There is no reference to any expression like “fraud, cheating, misappropriation etc.” In mild and temperate language, certain issues, which the appellants perceived as their grievances have been aired. It is the appellants’ case that these issues have been raised in the form of letters before though the respondent has denied receipt of all of the letters attributed," the bench added.

The banner was put on August 10, 2015 i.e. approximately a year and six months after the flat purchasers were put in possession. 

The grievance raised in the banner was with regards to;

A) not forming the society even after 18 months

B) not giving society accounts

C) not co-operating with the residents

D) not attending to builders’ defects

E) not sorting water issue

F) poor lift maintenance

G) leakage problem

H) plumbing issues

I) dirty/bouncy approach road, broken podium, shabby garden

J) ignoring grievances and non-cooperation. 

The respondent-developer hit back and threatened to sue the residents for defamation unless an apology was tendered.

A criminal complaint was thereafter filed by the developer against the residents for offences punishable under Section 500 read with Section 34 of the Indian Penal Code, 1860.        

"We find that the manner of the protest resorted to by the appellants was peaceful and orderly and without in any manner using offensive or abusive language. It could not be said that the appellants crossed the Lakshman Rekha and transgressed into the offending zone. Their case wholly falls within the sweep, scope and ambit of exception 9 to Section 499. Their peaceful protest is protected by Article 19(1)(a) (b) and (c) of the Constitution of India. The criminal proceedings levelled against them, if allowed to continue, will be a clear abuse of process," the bench significantly noted.

Thus, impugned order dated June 10, 2024 passed by the High Court of Judicature at Bombay was set aside and the complaint pending before Metropolitan Magistrate Court, Borivali, Mumbai as well as summons issued on October 4, 2016 under Section 500 read with Section 34 of the IPC were consequently quashed.

Case Title: Shahed Kamal v. M/s. A. Surti Developers Pvt. Ltd.