IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :
01. 03.2013 Coram THE HONBLE MR. JUSTICE VINOD K.SHARMA W.P.No.14421 o”
1. M.Thilagavathi 2. M.Prathiba, Minor, rep. by her Mother & Natural Guardian M.Thilagavathi. .. Petitioners .. Vs ..
1. Government of Tamilnadu, rep. by its Secretary to Government, Health Department, Secretariat, Chennai.
2. Tamilnadu State Aids Control Society, rep. by its Managing Director/Chairman, 417, Pantheon Road, Egmore, Chennai.
3. Corporation of Chennai, Aids Prevention & Control Society, rep. by its Chairman/ Managing Director, Thiru-vi-ka Road, Mylapore, Chennai.
4. M/s.Shashi Advertising Agency 100, Montieth Road, I Floor, Queens Court, Egmore, Chennai. (R-4 impleaded as per Court order dt. 11.04.2011 in M.P.No.1/2011) ...Respondents Prayer:- Writ Petitions filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus to direct the respondents to forbear them from displaying the petitioners' photographs in their Aids Control Campaign all over the State of Tamilnadu and forthwith remove the banners and hoardings depicting their photographs already displayed and direct them to render an unconditional apology in a Public Media and also pay a compensation of Rs.1,00,00,000/- (Rupees one crore only) to the petitioners. For Petitioner : Mr.G.Mohanakrishnan For Respondents : Mr.S.Navaneethan, AGP for R-1 : Mrs.Gomathinayagam, AAG for Mr.R.Rathnathara for R-2 : Mr.V.Bharathidasan for R-3 : Mr.AR.L.Sundaresan, S.C. for Mr.G.Rm.Palaniappan/F-4 - - - - - ORDER The petitioners pray for issuance of a writ in the nature of prohibition forbearing the respondents from displaying the petitioners' photographs in the Aids Control Campaign all over the State of Tamil Nadu and to forthwith remove the banners and hoardings depicting their photographs already displayed and further direct them to tender unconditional apology in the Public Media and pay compensation of Rs.1,00,00,000/- (Rupees one crore only). 2.It is pleaded case of the petitioners that the first petitioner is a house wife and the second petitioner is the minor daughter aged about 4 years. Petitioners seek a writ in the nature of prohibition restraining the respondents from using their photographs in the Aids Control Campaign all over the State of Tamil Nadu and forthwith to remove the banners and hoardings depicting their photographs and tender unconditional apology. 3.The learned counsel for respondent No.2 stated at the Bar that immediately on notice of the writ petition, the banners were removed and are not being used in any advertisement. 4.The second prayer of the petitioners is for tendering unconditional apology and for payment of Rs.1,00,00,000/- (Rupees one crore only), as damages. 5.The pleaded case of the petitioner is that a month prior to the filing of this writ petition, the neighbours of the petitioners informed about their photographs being displayed in several banners all over the Tamil Nadu in Aids Awareness Campaign, erected and displayed by the respondents. The said photographs were not given by the petitioners nor the permission of the petitioners was sought before using the photographs for the purpose of advertisement. 6.It is the case of the petitioners that because of the photographs, the entire neighbourhood of petitioners started avoiding them and that their relatives started suspecting that the petitioners were infected with Aids disease and have deserted the petitioners. 7.The stand of the petitioners is that before using the photographs, it was incumbent upon the respondents to take written consent of the petitioners, therefore, the act of the respondent is reckless and authoritative act and is an attempt to harass the poor and helpless people like the petitioners. 8.The petitioners also submit that because of this act of the respondents, it has become difficult for the petitioners to step out of the house due to the remarks of the people. A representation was, therefore, filed calling upon the respondents to furnish unconditional apology and on failure of the respondents to tender apology, the petitioners have filed this writ petition. 9.Counters to the writ petition has been filed, wherein the stand of respondent No.3 is, that respondent No.3 has not displayed any poster with the photographs of the petitioners nor the Society has any role in production, designing, printing or displaying of the poster having the photographs of the petitioners. Respondent No.3, thus, has disputed its liability by denying the responsibility for the act complained of. This stand of respondent No.3 raises dispute on facts. 10.The second respondent, in their counter, has taken a stand that respondent No.2 is a Society registered under the Societies Registration Act, 1975, and is working under the aegis of the Health and Family Welfare Department of Government of Tamil Nadu, funded by National AIDS Control Organisation, a Delhi based Government of India organisation that disperses funds received from the Global agencies to the State AIDS Control Societies. It is the case of respondent No.2 that under the Information, Education and Communication strategy, directions have been given to different agencies for displaying banners, hoardings and posters. Respondent No.2 makes use of various media technologies in propagating the message through mass media such as cinema, television and radio and one such media is displaying of banners, hoardings and posts through empanelled agencies. 11.It is the case of respondent No.2 that the photographs of the persons used may or may not be infected with HIV/AIDS. It is for the concerned advertising agency to get clearance and formal permission from the individuals before publication. Respondent No.2 also has denied having any involvement in using the photographs of the petitioners. The liability of respondent Nos.2 and 3, if any, can be fixed only by leading evidence. 12.It is also the case of respondent No.2 that the banners show the petitioners as healthy mother and child advising the general public to visit the Integrated Testing and Counselling Centres. 13.It is the positive case of respondent No.2 that the advertising agency obtained copyright from the photographer on payment and has raised an invoice of Rs.92,697/- (Rupees ninety two thousand six hundred and ninety seven only) towards cost of 11 Nos. of design and artwork charges for the hoardings and thereby, it has denied its responsibility in any way for the alleged wrong done to the petitioners. Though they denied the factual position, it is also the stand that respondents have stopped using the photographs of the petitioners. 14.The stand of the fourth respondent is, that the writ petition against respondent No.4 is not maintainable, as it is a private agency, which is not amenable to writ jurisdiction, therefore, no liability of compensation can be fastened against respondent No.4 in exercise of writ jurisdiction. It is also the case of respondent No.4 that respondent No.2 had approached respondent No.4 for designing banner for the noble cause of creating awareness among people and respondent No.4 purchased photographs from one Mr.Joel Doussat, who reserved the copyright of the photographs of the petitioners and he made the photographs available for commercial use. The stand of respondent No.4, therefore, is that it is under the authority of the copyright holder, who was paid for the photographs, that the picture was used. 15.The reading of the counters filed by respondents shows that the respondents have already stopped using the photographs of the petitioners, therefore, relief of prohibition has been rendered infructuous.
16. However, as regards the claim for damages and defamation is concerned, this is a question to be decided on evidence by the parties, and cannot be gone into in exercise of writ jurisdiction. The petitioners will have to lead evidence, pinpoint the person responsible for the lapse. It will have to be decided by evidence as to what amount of compensation the petitioners will be entitled for the civil wrong done, and from whom. The writ petition raises disputed questions of facts as to fixation of liability for civil wrong. 17.This writ petition qua claim of damages under Article 226 of the Constitution of India is not competent. 18.The writ petition is, accordingly, ordered to be dismissed, with liberty to the petitioners to avail the alternative civil remedy or other remedies in accordance with law, if so advised. 19.No costs. 01.03.2013 Index : Yes/No Internet : Yes/No sra Note: Issue order copy on 11.03.2013 To 1. Government of Tamilnadu, rep. by its Secretary to Government, Health Department, Secretariat, Chennai.
2. Tamilnadu State Aids Control Society, rep. by its Managing Director/Chairman, 417, Pantheon Road, Egmore, Chennai.
3. Corporation of Chennai, Aids Prevention & Control Society, rep. by its Chairman/ Managing Director, Thiru-vi-ka Road, Mylapore, Chennai. VINOD K.SHARMA,J.
(sra) W.P.No.14421 o”
01. 03.2013