Judgment sc-s-1985-3-382-564

382

A EXPRESS NE.l/SPAPERS PVT, LTD. & ORS. Vo UNION OF INDIA & ORS,

OCTOBER 7, 1985/NOVEMBER 5, 1985 B

Articles 32 & 226 - Executive action challenged on grounds of violjitions of Art. 14, 19(l)(a) & (g) by writ petition - Maintainability of - Issues pertaining to civil rights arising out of contracts between parties - Whether can be decided on mere affidavits. lleld: Filing of civil proceedings only remedy - Civil c Procedure Code, s.9.

Articles 19(1) (a) and (2) - Freedon, guaranteed under - Whether comprehends freedom of press. - Violation of such freedom - How to be determined.

Articles 239(1), 53(1), 72,77, 240 & 298 - Lt. Governor of D Delhi - Whether successor of the former Chief Commissioner of Delhi - Whether has power to deal with allotment/lease etc. of lands falling ··1ithin Union Territory of Delhi and which is under control and adm:f.nistration of I.and & Development Officer and vests in Govt. of India, ~dnistry of works & Rousing - Govt. of Part 'C' States Act 1951, sec. 21, Proviso, Authentication E (Orders & Other Instruements) Rules 1958, Govt. of India (Allo- cation of Business) Rules 1961 & General Clauses Act 1897, s.18.

Local Authorities -

Delhi Development Act, 1957 ss.53(3)(a), 12(4), 14,41 and F 2{d) - Construction of a building - Permission obtained from competent authority under the Act - whether i t will prevail notwithstanding anything inconsistent therewith in any other law.

Delhi Municipal Corporation Ac~ 1957 ss .343, 344 and 481 read with Delhi Nunicipal Corporation (Buildings) Bye-laws 1959 - G Bye-laws 25(2) - (IV-B), 21(1), 22(V) and 2(33) - Show cause notice for taking action u/ss.343 & 344 - Validity of - Permission already granted by competent authority under Delhi Development Act 1957 to raise the structure and acted upon - Whether raising cf structure can be questioned under ss.343, 344 - Applicability of bye-laws - Hei~ht of builoing - Restriction of H

EXPRESS NEWSPAPERS v. u.o.r. 383

- How to be decided - Construction of press building with A increased FAR of 360 with double basement for installation of printing press - Validity of - Master Plan aad Town Planning - Whether construction legal and . in compliance with terms and conditions of lease deed - Notice of re-entry upon forfeiture of lease - Validity of. B Specific Relief Act 1963, ss. S,6 and 9 - Perpetual lease granted to a private limited company by government for construction of building - Provisions in lease deed for Govt. 's right of re-entry in case of breach of lease terms - Whether lessor can enforce that right by resort to summary procedure - Recourse to Public Premises (Eviction of Unauthorised Occupants) Act, 1971 - When arises - ·Public Premises (E••iction of c Unauthorised Occupants) Act, 1971, _ss.2(3), and (g) and 5.

Government hrants Act 1895, s.3 - Effect of. 0 Administrative Law - Mala Fides - Allegations of - Misuse D of Power in bad faith for collateral purpose - \Jhether amounts to mala fide Pxercise of power - Burden and nst,.i:e of proof - Allegations tc be definite, specific and not v_ague - Court to accept them as true, if not controverted on affidavits.

Doctrine . of ultra vires - Scope of - Fraud on power - E Meaning of - Exercise of power in good faith and misuse in bad faith - Distinction between.

Doctrine of Promissory Estoppel - Applicability of - Whether applicable against government - Limitations - What are.

The Central Government had i::I. the year 1949 demarcated the press area along the Bahadur Shah Zafar Msrg, New Delhi. It consisted of plots Nos. l to 10 known as Press Enclave as a C011111ercial complex. These plots were alloted to various newspapers like the Indian Express, Times of India, Patriot, National Herald, etc. Petitioner No.1, Expr""s Newspapers Private Ltd,, eggaged in the business of printing and publishing a national newspaper, Indian Express (Delhi Edition), was alloted plot nos. 9-10 Bahadur Shih'> Zafar Marg, New Delhi by an indenture st}led as an "agreement for lease" executed on Msy 26, 1954 between the petitioner and the Secretary (Local self-government) to the Chief Commissioner of Delhi by the orders and directions of the President of India for the construction of a four storeyed building meant to be used for a newspaper. H

p. 384

A At the time of construction of buildings in the press area there were no restrictions as to the Floor Area Ratio (FAR) permissible along the Bahsdur Shsh Zafar Marg and the only restriction on cons_truction of building in that area was that the allottees of the plots should construct buildings up to a height of 60 feet. The Express Newspapers Pvt. Ltd. was allowed to build B upon the entire area of plots Nos. 9 and 10 with a ground coverage of 100%, that is, edge to edge, a structure with a mln1nnmi of five storeys including the ground floor for the purpose of installation of a printing press for publication of a Hindi newspaper. This permission was granted in response to the plans subnitted by the Express Newspapers Pv.t. Ltd. and approved in writing by the Chief Comnissioner of Delhi acting for and on c behalf of the lessor, that is, the Union of India.

During the preliminary work of construction by the Express Newspapers Pvt. Ltd. an underground sewer line was found to be running diagonally across plot nos. 9 and 10. It was agreed between the parties vide lease agreement dated November 19, 1957 that in view of the underground drain running through the plots, D the Express Buildings would be constructed only to the East of the drain till the drain was diverted. In effect, an area of 2740 square yards to the West of the drain hsd to be left open as residual plot of the land out of a total area of 5703 square yards. The Express Newspapers Pvt. Ltd. constructed the old Ezpress Building to the East of the sewer line with an FAR of 260 E with reference to the entire plot leased to it i.e. plots Nos. 9 and 10 altho1J8h the building occupied only half of the area. On March 17, 1958 another perpetual lease was executed by Assistant Secretary (LSG) to the Chief Comnissioner, Delhi by the order and direction of the President of India demising on behalf of the Union· of Indi!' in perpetuity the ~ land described therein in consideration of pa)'lllellt of a premium and yearly rent. Likewise, the earlier agreement dated November 19, 1957 so also the supplementary agreement of May 26, 1954 were also executed by the said Officer in the a.,.., lll81Uler. Both the agreements stipulated that the rules, regulations and bye-laws of the Municipal Corporation of Delhi relating to buildings which may be in force from time to time shal~ be conformed to by the lessee.

On November 6, 1959 all functions relating to administra- tion of leases of Government lands in Delhi were transferred from the Chief Comnissioner .of Delhi (LSG) to the Ministry of Works & Housing. H In the year 1977, petitioner No.l, the Express Newspapers Pvt. Ltd., approached the Municipal Corporation of Delhi for

EXPRESS NEWSPAPERS v. U.O.l. 385

shifting the sewer line outside plots Nos. 9 and 10 and also moved the lessor; the Union of India, Ministry of Worka and A Housing for grant of requisite sanction to conatruct the new Express Building with an FAR of 400. The Chief Engineer, Delhi Water Supply and Sewage Disposal Undertaking granted approval to the diversion of the sewer line at the cost of petitioner 11o.1. Thereafter, petitioner No.l, informed the Ministry of Workll and Housing about the aforesaid approval granted by the Municipal B Corporation of Delhi and requested the Miniatry for advice on the FAR permissible for the said building. The matter wu proceaeed in the Ministry of Workll and Hou.dog at varioua ·level.II ad ultimately on October 21, 1978, tbe Vice-Chainllll, Delh1 Development Authority took the foll.owing deciaione1 (a) to smalgR!!l!!te plots Noa.9 and 10. and taking into account the c existing built-up area would permit the FAii. of 360 overall; (b) to allow the reaidual area of plota Noe. 9 and 10 to be built in line with the Times of India and ShR!!I!! Building; (c) to ucl11de the buement from the calculationa of the FAii. provided the basmente are uot uaed for office purposes; (d) to penoit parking on the service road in the - 11111111er aa it waa for the other D buildioga in thia line. The Vice-<:hairman further directed that the aforeaaid order waa to be treated u one under special appeal. He accordiogly gave inatruction for iaauing 'No Objection' to petitioner No.l for conatruction on the residual area and to make a reference to the Government of India asking for confirmation of the action proposed in view of the order of the Minister for Works and Housing to clear the cases illllediately and to obtain his !!. ~ ~ sanction. On November 4, 1978 tbe Joint Director (Buildings), Delhi Development Authority iasued a "No Objection Certificate" to the petitioners and the Ministry of Works and Housing granted its !!. ~ ~ approval on November 24, 1978. Thereafter, petitioner No.l constructed its new Express Building. F

On February 17, 1980, respondent No.2 Jagmohan assumed office as the Lt. Governor of Delhi and on the same evening, be s1111111Dned the Comnissioner of the Municipal Corporation of Delhi and called for the files relating to the construction of the new Express Building at Bahadur Shah Zafar Marg, New Delhi. On the G next day, the necessary files were made available. On February 20, 1980, some important files of the Delhi Development Authority relating to the Express Buildings were sent to respondent No.2. On February 29, 1980, respondent No.2 through the Colllllissioner Municipal Corporation of Delhi caused the loclr.s of the office and cupboards of the Zonal Engineer (Building) to be brolr.eil open to H

p. 386

A take away the files relating to the new Express Building. On March l, 1980 respondent No.2 convened a press conference in which he handed over a press release alleging (i) that the new Express Building put up by the petitioners was in contravention of law in several respects; (ii) that he had ordered an inquiry to be made by a conmittee of three of his subordinate officials B and (iii) that the new Express Building might have to be demolished. On the same day, although the relevant files had been removed from his office, the Zonal Engineer (Buildings), City Zone, Municipal Corporation of Delhi served a notice on petitioner No.l, to show cause why action should not be taken for demolition of the Express Buildings under as. 343 and 344 of the Delhi Municipal Corporation Act, 1957. On March 4, 1980, a second c press releas~ was issued from the Raj Nivas, to justify th<.! action of respondent oo.2 in initiating the inquiry. The issue of show cause notice again figured in a third press release dated March 8, 1980. The Ministry of Works and Housing also submitted the files relating to the construction of the New Express BuUding to respond~t No.2 on March 7, 1980. On March 10, 1980 the Engineer Officer in the Land and Develop11ent Office under the D Ministry of Works and Housing also issued a notice to the petitioners to show cause "!thin 30 days as to why the property should not be re-entered under clause 5 of the perpetual lease on the grounds: (i) that the construction of the New Expresa Building waa without permission from the lessor under the terms of lease; (ii) that the pla.ns were not submitted for the sanction E under the terms of lease by the lessor; and (iii) that the plans were in contravention of cl.2(5) and 2(14) of the lease deed. On March 12, 1980 at a specially convened Press Conference, respondent No.2 released the report of the Comnittee of his subordinates which substantiated the view of respondent No.2 and also found that petitioner No.l was liable to pay Ra.35 la.ca as conversion charges.

The petitioners .:hallenged the validity of the aforesaid two notices before the Supreme Court under Art.32 of the Constitution on the grounds: (i) That the Lt.Governor appointed by the President under Art. 239(1) of the Constitution is an G Administrator and he discharges such functions as are entrusted to him by the President of India and in the absence of a notification under Art. 239(1), the Lt. Governor cannot usurp the functions of the Union of India in relation to the properties of the Union: (ii) that the W.eutenant-Governor is not a successor of the Chief Coumissioner of Delhi. There was no notification issued by the President under Art. 239(1) of the Constitution for

EXPRESS NEWSPAPERS v. U.O.I. 387

the conferral of any power on tbe Lt. Governor to administer the lease in question; (iii) that it is inconceivable that after October 1, 1959 when the administrative control over the Land & Development Officer wss transferred from tbe Delhi Administration to the Minis try of Works & Housing and by virtue of a notifi- cation issued under Art. 299(1) the Secretary, Ministry of Works & Housing wss made the competent authority to act for the B President with regard to any contract, grant or assurance or property of the Union, tbe Lt.Governor could still arrogate to himself the powers of the Union of India, Min.i.s try of Works & Housing in relation to the lease; (iv) that respondent No.2, Jagmohan, is actusted with personal biaa against the Indian Express which had published an article in the Indian Express in c April 1977 with regard to his role during the period of Emergency in Turkman Gate dem:ilitions. The proposed action of re-entry by the lessor i.e. the Union of India, Ministry of works & Housing

- at tbe instance of the Lt. Governor of Delhi is an act of politi- r.al vendetta. The impugned notices have been issued with an evil eye and an unequsl hand and with a deliberate design to compel D tbe petitioners to close down the Express Group of Newspapers in general and the Indian Express in particular. The said notices are ex-facie illegal and without jurisdiction and are contrary to factusl and legal provisions. The arbitrary and discriminatory initiation of executive action under the guise of alleged infraction of the terms of the lease and/or the Master Plan of E Delhi and or tbe lllllnicipal building bye-laws is violative of the petitioners' fundamental rights under Arts.14, 19(l)(a) and 19(l)(g) of the Constitution; (v) that the impugned notice issued by the Zonal Engineer (Building) City Zone, Municipal Corporation of Delhi dated March 1, 1980 was illegal and void as be did not ., apply his llind at all to the question at issue but ..,rely ' issued tbe 181111! at the instance of respondent No.2. The F construction of the said building was not without or contrary to the sanction referred to in s.336 or in contravention of any of the provisions of the Act or bye-laws made there.under; (vi) that the erection of the double basement or a working platform in a printing press like the Express Newspapers Pvt. Ltd. is a compoundable deviation from the sanctioned plan and the G insistence of the Municipal Corporation of Delhi to .demolish the same suffers from the vice of hostile discrimination. (vii) that the construction of· the new Express Building with an increased FAR of 360 wss in conformity with clause 2.(5) of the perpetual lease dated March 17,1958 inasnuch as it wss with the express sanction of the lessor i.e. the Union of India. In terms of the Govern...nt of India (Allocation of Business) Rules, 1961 as well H

388 SUPREME COURT REPORTS [1985] SUPP.3 S.C.R,

A ea Ulldar a notification issued Ullder Art.299(1), the Ministry of Worka & Housing with the Minister at the head waa and is the ultimate authority re1ponsible to deal with the property of the Union 8Dd to enter into all contractual obligations relating thereto. The Minister had not only full authority, power 8Dd juri1diction to grant permis1ion to the petitioner• to construct B the new Ezpress Building with an increued FAR of 360 with a double basement for the installation of the printing prea1, but the action taken by the then Government waa in good faith after tsking into consideration all the circumstance• attendant at all levela. (viii) tl!llt there could be no objection to the construc- tion of the new Ezpreas Building with an increaaed FAR of 360 as it allond the residual area of plota Noe. 9 and 10 to be built c in line vith other building• along the Bahadur Shah Zafar Marg. Furthar, the llu ter Plan for Delhi aubaequently approved by the Central Government in the year 1962 doe• not mention the preas area on the Bahadur Shah Zafar Marg comprising of the preH enclave• Although specified u a C011111ercial area, it ia not liated in the li1t of "already built-up ~rcial areaa" beca111e . it relates to the walled city of old Delhi. The Zonal development D plan for D-II ar,.. within vbich the preH plota are located alao perlllitted an FAR of 400 for the prees area in the Bahadur Shah Zafar Marg. Therefore, all that the then Minister for Worka & llouaing did wea to rutore to the petitioner& the right that they acquired under the perpetllll leue dated March 17, 1958 i.e. to he treated a1iM alongwith other plot-bolder• in that area and E a denial of •uch equal terms would be oppoaed to the principle& of equality besid~• being violative of Art.14 of the Consti- tution. (ix) That ~be Ezpreaa Building at 9-10 Babadur Shah Zafar Marg forms the nerve-centre of the Ezprea• Group of Newspapers as the ed1 to rials and the leading articles of the Indian Ezpress are sent out and the e41tor1al policy laid down from Delhi office to ten centres all over India· In this factual background, the impugned notices have a direct impact on the freedOll of the press and being in excess of governmental authority and colourable exercise of statut11ry powers, are liable to be struck down as offending Art.19(l)(a) read with Art.14 of the Constitution. (x) that the lessor i.e. the Union of India ie estopped by the doctrine of promissory estoppel 8Dd cannot therefore go back upon all assurances given and actions taken by the previous govern- ment, particularly When the petitioners had acted upon the deci- sions so reached aDd had constructed the new Ezpreas Building with a coat of approximately Rs.1.30 crorea by February 1980 which at present would coat more than Rs.3 crorea. I!

EXPRESS NEWSPAPERS v. U.o.I. 389

It..,.. contended on~ of respondent No.l, the Union of India; (1) · that the right to occupy the land leased for the construction of a building for inatallation of a printing press ia not within Art. 19(l)(a) nor within Art. 19(l)(g) wt llUCb a right ia derived fran a grant or contract; (2) That the right arising out of a statute or out of a contract cannot be a fund&- B lllelltal right itself. Once ·a contract ia entered into or a grant ia · made, the rights snd · obligationa - of the parties are not governed by Part III of the Constitution but by the terms of the docrnnent et.bodying the contract or the grant, snd any cmplaint about its breach cannot be a matter· for grant of a writ, direction or order under Art. 226 of tbe Constitution, much less c under Art.32, snd since the petitioners are seeking to enforce a contractual right, it cannot be decided on a petition under Art• 32 of the Constitution. (3) That the content of Art. 19(l)(g) of the Constitution 1'0U1d not include the right '1hich ia. guaranteed· by other cJsuses of Art.19 (4). That. the argument of the petitioners thst ·the. 'bodldfng in ·.question is necessary for D rmming .the press and any statutory or executive action to pull it d0>1n or forfeit the lease 1'0U1d directly :IJDpinge on the right of freedan of speech and expression under Art. 19(1)(g) ia loibolly · misconceived inasmuch as every activity thst may be necessary for exercise of freedom of speech · and expression or .thst may facilitate such exercise or make it meaningful snd effective E c:amiot be elevated to the status of a furularnental right. (5) That the right to the land and the right to construct bo11ldfngs thereon for rmming a printing press are not derived fran Art. 19(1) (a) but spring fr= the terms of the grant of such 1anda by the Goverm.ent under the provision& of the Goveniment Grants Act, 1895 snd regulated by other k..s governing the subject viz. ·the Delhi Development Act, 1957, the Master Plan and the Zonal F Develoµnent Plan framed thereunder, the Delhi Municipal Corporation Act, 1957 and the Delhi Municipal Corporation · (Bnfldfng) Bye-Ia..s,. 1959 '1hich regulate construction of boifldfngs in the Union Territory of Delhi irre6pective o~ the purpose for '1hich the boifldfng is constructed. (6) That the right to run a_ press may be a . fimdamental right guaranteed under Art. c 19(1)(a) · or Art. 19(l)(g) lxlt the right to use a particular " 1:>11Jd1ng for rmming a press ia altogether another thing inasmuch as no particular building is equally fit for the running of the press and the person ·desiring to run a . press or already running the press is at liberty to acquire another suitable bnlldfng for that purpose. Further, even i f the- lxlildings in question '1ere necessary for the enjoYlllellt of the rights under Art.19(1)(a) or- -- li Art. 19(l)(g) 'a right to_ use a particular bo1lldfng does not •

- - --------- -------~---------------'------

390 5UPJ.<EME COURT REPORTS [1985] SUPP.3 S.C.R.

A become an integral part of the right to freedom of speech and expression' or the 'right to carry on any trade of business in printing and publishing a newspaper' and clearly therefore the petitions under Art. 32 are not maintainable. (7) That even on a question of fact, the direct impact of the impugned notices will not be on the double basement wherein printing press is installed B but will be wholly or in part on the two upper storeys which are not intended to be wred in relation to the press or for publi- cation of the intended Hindi newspaper but only for the purpose of letting out the same for profit; the only other possible effect may be the removal of the upper basement which the petitioners call a working platform which has been constructed in violation of the building regulations. (8) That there was no C :Imminent danger of demolition of the Express Building nor was the impugned notice dated March 10, 1980 issued by the Engineer Officer, Land & Development Office, a notice of re-entry upon forfeiture of lease. It was merely a notice of an exploratory nature requiring the petitioners to show cause why the lease should not be forfeited under cl.5 of the lease-deed for alleged breaches of els. 2.(5) and 2(14) ther~f. The Petitione!:s should have therefore entered appearance before tbe Land & Development Officer and showed cause against the action proposed. It was only if the Land & Development Officer was not satisfied with their explanation, that he would put up the papers before the Lt. Governor for necessary action. It would then be for the lessor i.e. the Union of India, Ministry of Works & Housing to decide whether or not the lease should be forfeited under cl.5 of the lease-deed. (9) That the impugned notice by the Engineer Officer purporting to act on behalf of the lessor i.e. the Union of India, Ministry of Works & Housing was not based either on the report of the Three-Menber Canmittee obtained by the Lt.Governor or on the basis of any comnunication from him, (10) That the F Lt.Governor had no powers in ~elation to the properties of the Union and, therefore, the Union of India is not bound by the acts of the Lt. Governor. The Lt. Governor had no power in relation to the lease and, therefore, he could not usurp to himself the powers and functions of the Union of India in relation to the lease deed. However the Lt.Governor as the Administrator had to keep himself informed and cannot be said to have acted mala fide merely because of any possible personal malus animus on his part, i f the quality of the action was itself in complete accord with the law. (11) That the Government itself was in possession of relevant records and applied its mind to them and the impugned notice issued by the Engineer Officer who was empowered to act on behalf of the President under Art.299(1) of the Constitution

EXPRESS NEWSPAPERS v. U.o.I. 391

having been authenticated in the manner required by Art.77(3), it A lllUSt be deemed to be the deeision of the President on the advice of the Council of Ministers. as enjoined by Art. 74(2) and the Court was precluded from making any investigation into tbe circumstances attendant thereto. (12) That it was the respondent No.2 to meet the charges of malafides levelled against him.

On behalf of respondent No.2, the Lt.Governor of Delhi, it was argued: (1) That the Administrator appointed by the President under Art.239(1), as amended by the Seventh Amendment, could be called by any designation, that the Chief Coumissioner of Delhi continued to be the Administrator of the Union Territory of Delhi under Art.239(1) after November l, 1956 when the Government of C Part C States Act, 1951 was replaced by s.130 of the States Reorganisation Act, 1956 and that he functioned as such till September 6, 1966 since the Delhi Administration Act, .1966 continued to use the nomenclature of Administrator appointed by the President under Art.239(1). It was for the first time on September 7, 1966 that the Administrator of the Union Territory D of Delhi who used to be designated as the Chief Coumissioner was re-designated as the Lt.Governor. (2) that the Lt.Governor was successor of the Chief Coumissioner and, therefore, . all the powers exercisable by the Chief Coaloissioner in relation to the lease vested in him· (3) That the Lt. Governor was the alter ego of the President in relation to such territory which he is called upon to administer on behalf of the President. One of the primary functions of the Lt. Governor, as the Administrator, was to be aware of facts brought to his knowledge and there- fore respondent No.2 could not have turned a blind eye to the action of Sikander Bakht, the then Minister for Works & Housing in making a highly fraudulent, illegal and improper grant of sanction to petitioner No. l, the Express Newspapers Pvt. Ltd. to build the new Express Building with an increased FAR of 360. (4) That the Lt. Governor as the appointed agent or nominee of the President was entitled to act on behalf of the lessor i.e. the Union of India, Ministry of Works & Housing in relation to the lease and therefore, be was well within his rights (a) in calling for and making perusal of the respective files from the Ministry G of Works & Housing, Delhi Development Authority and the Municipal Corporation of. Delhi pertaining to the construction of the Express Building with an increased FAR of 360; (b) in constitu- ting a Three-Melllber Coaloittee to .inquire into the circumstances

H

p. 392

A relating to the grant of sanction by the then Miniater of Works & Housing and to take necessary stepa as regards the unauthorised construction of the new Express Building; and (c) in forwarding the report of the Tbree-tlember Comittee to the concerned autho- rity, me•ntng the Minister for Works & Housing for taking neces- sary steps. (5) that the transfer of administrative control of B the L & D 0 on October l, 1958 to the Ministry of Works & Housing did not diVe&t the Chief Commiasioner of hia contractual powers given under the lease and be alone represented the lessor i.e. the Union of India and not the Ministry of Works & Housing (6) That being the Lt. Governor of Delhi, be was responsible for the admi.n!.stration of the Union Territory of Delhi and, as such, he was acting within his power to direct all the authorities c concerned to prevent violation of laws by any person or inatitu- tion. He further asserted that he, as the Lt. Governor of Delhi, was fully competent to appoint the Inquiry Conaittee under the Comnisaioner of Inquiry Act, 1952. (7) that the Union of India or ,_ the Lt. Governor of Delhi never intended to inflict a reprisal on the petitioners for the independent stand of the nelOSpapers they publish. (8) that the respondents had no personal animosity towards the Express Group of Newspapers and the criminal complaint for defamati@ was instituted by respondent No.2 because the Indian Express was guilty of fabricating and publish- ing falae, motivated, s<;andslous stories about respondent No.2 and others. (9) That be bad not ordered the issuance of the notice in question and that the Lend & Development Officer was an authority independent of the administrative control and super- vision of the Lt. Governor, As regards the impuged show cause notice issued by the Zonal· Engineer (Building) City Zone, Municipal Corporation of Delhi, it was asserted that the same bad been issued by the Municipal Coi:poration of Delhi in exercise of its statutory powers under ss. 343 and 344 of the Delhi Municipal F Corporation Act after verification of the allegations. (10) That the perpetual lease-deed dated March 18, 1958 governs the relationship effectively between the Union of India and the Lt. Governor on the one band and the pet:itioners on the other i.e. the contractual relationa between the parties. (11) That the sewer, according to the terms of the lease-deed, could not be G diverted without the consent of the Chief Comnissioner and the approval of the Minis try of Works & Housing was a nullity being without juriadiction and legal competence. (12) that for the c011111ercial user of the residual ares to be kept as 'green' it is only the Chief Commissioner (Lt. Governor) who could give

H

EXPRESS NEWSPAPERS v. u.o.r. 393

A sanction to construct for the c0111Dercial user at the residual ares; the petitioners were liable to pay c011111ercial realization changes; and (13) that it is for the Chief Comnissioner (Lt. Governor) to decide if the breaches were remediable or aa to the nature of the remedies required for the breach. Since the breaches are not remediable breaches, the impugned notice dated B March 10, 1980 issued by the Engineer Officer, L & D 0 for re-entry upon the land on forfeiture of the leaae for breach of the conditions waa valid and proper.

Counsel for respondent No.4, Municipal Corporation of Delhi, urged (l) that the Express Newspapers Pvt. Ltd. have no c right to construct the upper basement particularly when the Corporation refused to accord sanction to it and that, in any event, it was not such an unsvoidsble necessity as to break the law; and (2) that even if some receiving floor may perhaps be neces8"1')' to receive the printed newspapers from the machine, it would be achieved by locating the machines on a suitable pedestal 0 or by laying the floor of the basement in such a manner as to discharge the newspaper on the ground floor; and (3) that under the Master Plan and the Building Bye-laws, not more than one basement is permissible and that any basement more than one will have to be reckoned for the purpose of FAR. E Counsel for respondent No.5 Land & Development Officer contended (l) that under the terms of the leaae deed of 1958, previous consent of either the President of India or the Chief Comnissioner (Lt. Governor) or such officer or body as the lessor (President of India) or the Chiaf Comnissioner of Delhi authorised was necessary for building activity on the residual area of the plots (2740 sq. yards). The Ministry of Works & F Housing did not represent the lessor or the Chief Comnissioner. ; and (2) that the Land & Development Officer is not a functionary under the Ministry of Works & Housing. He is the officer appointed on behalf of the lessor to administer the leaae. At no 11tage the petitioners approaehed the office of Land &Development for permission to construct on the residual area of 2740 sq.yards G to the west of the pipe-line and no approval wss obtained from the office of L & D O for construction of a building in contra- vention of clauses 2(5), (9) and (14) of the leaae. The so-called permissions and approvals obtained by the petitioners have no legal competence or authority under the terms of the lease-deed

H

394 SUPREME COL'RT REPORTS [1985] SUPP.3 S.C.R.

A which governed the relationship between the petitioners and respondent no.l.

Allowing the writ petitions,

BEW : By the Court (Per A.P. Sen, E.S. Venkatsramiah & R.B. Misra, J.)

(l) The writ petitions under Art.32 of the Constitution 11118t succeed and are allowed with costs. The notice issued by the C Engilleer Officer, Land & Development Office dated March 10, 1980 purporting to act on behalf of the Government of India, Ministry of Works & Housing requiring the Express Newspapers Pvt. Ltd. to show cause why the lessor i.e. the Union of India, Ministry of Works & Housing should not re-enter upon and take possession of plots nos. 9 and 10, Bahadurshah Zafar Marg, New Delhi together with the Express Buildings built thereon, under cl.5 of the indenture of lease dated llar<!h 17, 1958 for alleged breaches of cls.2(5) and 2(14) thereof, and the earlier notice dated March l, 1980 isaued by the Zonal Engineer (Building), City Zone, Municipal Corporation, Delhi requiring them to show cause why the aforeaaid buildings should not be demolished under ss.343 and 344 of the Delhi Municipal Corporation Act, 1957, are quashed. It is declared that the construction of the new Express Building on the residual portion of 2740 square yards on the western side of plots nos. 9 and 10, Bahadurshah Zafar Marg with an increased FAR of 360 with a double basement for installation of a pr1nting press for publics tion of a Hindi daily newspaper was with tile permission of the lessor i.e. the Union of India, Ministry <>f F Works & Housing and did oot constitute a breach of clauses 2(5) and 2(14) of the lease-deed. [554 E-11; 555 A]

(2) The Lt. Governor failed to make a distinction in this case between the power with respect to the subject 'Property of the Union and the revenue therefrom' which is in Entry 32 of List G I of the Seventh Schedule to the Constitution and the general powers of admin!stration entrusted to him under Article 239 of the Constitution as the administrator of the Union Territory of Delhi. The property in question is a part of the estate of the Central Government. Mere nearness to the seat of the Central

H

EXPRESS NEWSPAPERS v. U.O.I. 395

Government does not clothe the Lt. Governor of Delhi· with my A power in respect of the property of the Central Government. He can discharge only those powers which are entrusted to him by the Constitution and the laws. It is also not correct to claim that all the powers of the former Chief Commissioner of Delhi have devolved on the Lt.Gov"rnor and continue to vest in him. [556 B-il) B

l(i) Freedom of the press ill comprehended within the right to freedom of speech and expression guaranteed under Art.19(l)(a). The freedom of thought and expression, and the c freedom of the press are not only valuable freedoms in tbemaelves but are basic to a democratic foilJ of Government which proceeda on the theory that problems of the Government can be solved by the free eitchsnge of thought and by public discuaaion of the various issues facing the nation. It ia necessary to emphaaize and one 1111St not forget that the vital importUJ.ce of freedom of speech and expression involves the freedom to dissent to a free democracy like ours. Democracy relies on the freedom of the press. It is the inalienable right of everyone to c011111ent freely upon any matter of public importsnce. This right ia one of the pillars of individusl liberty-freedom of speech, which Supreme Court haa always unfailingly guarded. Howsoever precious and cherished the freedom of speech is under Art.19(l)(a), this freedom. is not akolute and unlimited at all times and under all circumstances but is subject to the restrictions contained in Art.19(2). That 1111St be so because unrestricted freedom of the preaa and is wholly free from restraints, amounts to uncontrolled licence which would lead to disorder and anarchy and it would be hazardous to ignore the vital importsnce of our social .and national interest in public order and security of the State. [474 C-il; 475 0-G)

l(ii) The extent of permissible limitations on this freedom are indicated by the fundamental law of the land itself viz. Art.19(2) of the Constitution. But, permissible restrictions on any fundamental right guaranteed under Part Ill of the Constitution have to be imposed by a duly enacted law and 1111St not be excessive i.e. they llBlSt not go beyond what is necessary to achieve the object of the law under which they ai:e sought to be imposed. The power to impose restrictions on fundamental

H

p. 396

A rights is essentially s power to 'regulate' the exercise of these rights. In fact, 'regulation' and not extinction of thst which is to be regulated is, generally spesking, the extent to which petmissible restrictions may go in order to satisfy the test of B ressonsbleness. The test laid down by the Supreme Court is whether the direct and imnediste impact of the impugned action is on the freedan of speech aDd expression guaranteed under Art.19(l)(a) which includes the freedan of the press.

In the instant case, the very threat is to the existence of c a free and illdependent press. The impugned notices of re-entry upon forfeiture of lease aDd of the threatened demolition of the Express Buildings are intended and meant to silence the vioce of the llldian Express. lt must logically follow that the impugned notices constitute a direct and imnediate threat to the freedan of the press and are thus violative of Art.19(l)(a) read with Art.14 of the Constitution. lt must accordingly be held that D these petitions under Art.32 of the Constitution are maintainable. [475 H; 476 A-C; 477 D-E]

Bemiett ColEllan & Co. & Ora. v. Union of lDdia & Ora. [1973] 2 s.c.R. 757 followed.

E Jlalll!sh 'l'happar v. State of Madras [1950] s.c.R. 594, Sakal Papers (P) Ltd. v. Union of lDdia [1962] 3 s.c.R. 842 and Express Beimpapers (P) Ltd. & Anr. v. Union of lDdia & Ors. [1959] s.c.R. 12 at 120 relied upon.

F The correctness of the landmark decision in Maneka Gandhi's case and the innovative construction placed on Art .14 in the three cases of Royapps, Maneka Gandhi and International Airport Authority (supra), which have evolved new dimensions in judicial process, is no longer open to question. [472 C-D]

G Haneta Gandhi v. Unial1 of India [1978] 2 s.c.R. 621, E.P. Boyappa v. State of Tallil Nadu & Anr. [1974] 2 s.c.R. 348 llaneka Gandhi v. Union of lDdia (supra) and llmans llayaram Sbetty v. lnternstioDal Airport Authority of India Ltd. & Ors. [1979] 3 s.c.R. 1014 affirmed. H All lDdia Bank lllllpl.oyees' Association V• Natioaal lnduatrial Tribunal & Ors. (1962] 3 s.c.R. 269 referred to.

EXPRESS NEWSPAPERS v. U.O.!. 397

(3) Even in cases involving purely contractual iaaues, the settled law is thst where statutory provisions of public law are involved, writs will issue. [484 A)

(4) (i) Section 2 of the Goverment Granu Act, 1895 excludes the operation of the Transfer of Property Act, 1892 to Government grants. Section 3 declares tbat all proviaiona, any such grant or transfer aa aforesaid ahsll be .valid and shell take effect according to their tenor, notwithatsnding any rule of law, statute or enactment of the Legialature to the contrary. A aeries of judicial decisions hsve determined the overriding effect of s.3 making it amply clear that a grant of property by tbe Government partakes of the nature of law since it overrides even c legal provisions which are contrary to the tenor of the docUMllto [478 D-E]

(4)(ii) There can be no doubt whatever on a true construction of the impugned notice dated March 10, 1980 that the Engineer Officer, Land & Development Office purporting to act on behalf of the leasor i.e. the Union of India, Ministry of Works & Housing served a notice of re-entry upon forfeiture of leaae under cl.5 of the leue-deed. There was no question of the said notice being construed to be of an exploratory nature. Since reapondent No.2 is not the successor of the Chief Commissioner of Delhi nor haa any function in relation to the lease, there ia no warrant for the suggestion thst prior approval of the Lt. Governor io a condition precedent to the right of the leasor i.e. the Union of India to exercise its right of re-entry upon forfeiture of lease under cl.5 of the lease-deed. [480 B-D]

4.(iii) The Express Newapapera Pvt. Ltd. having acted upon the grant of permission bY the lessor i.e. the Union of India, F Ministry of Works & Housing to construct the new Express Building with an increased FAR of 360 together with a double basement was clearly not an unsuthorized occupant within the meaning of s.2(g) of the Act. The Express Buildings constructed by Expreaa News- papers Pvt. Ltd. with the sanction of the lessor i.e. the Union of India, Ministry of Works & Housing on ploto Noa. 9 and 10 G Bahadurshah Zafar Marg demised on perpetual lease by registered lease-deed dated March 17, 1958 can, by no procP.sa of reasoning, be regarded as public premises belonging to the Central Government under s.2(g). That being so, there is no question of the lessor applying for eviction of the Express Newapapers Pvt.

H

p. 398

A Ltd. under 5.5(1) of the Public Premises (Eviction of unautho- rized Occupants) Act, 1971 nor has the Estate Officer any authority or jurisdiction to direct their eviction under sub-s.(2) thereof by sumnary process. Due process of law in a case like the present necessarily implies the filing of suit by B the lessor i.e. the Union of India, Ministty of Works & Housing for the enforcement of the alleged right of re-entry if any, upon forfeiture of lease due to breach of the terms of the lease. However, the Government has the power to take recourse to the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 where admittedly there is unauthorized construction by a lessee or by any other person oL Government c land which is public premises within the meaning of s.2(e) and such person is in unauthorized occupation thereof. [484 E-F; 485 A-DJ

Biahan Das & Ors. v. State of Punjab & Ors. [1962] 2 s.c.R. 69 aff~rmed.

D Wazir a.and v. State of H.P. [1955] l s.c.R. 408 & II.am Prasad Narayan Sabi v. State of Bihsr [1953] s.c.R. 1129 relied upon.

State of Orissa v. II.am <llandra Dev A.l.R. 1964 S.C. 685 criticised. E 5(i) Under the Constitution of India, Delhi became a Part 'C' State w.e.f. Janusry 26, 1960 and it was provided by Art. 239(1) that a State specified in Part 'C' of the First Schedule shall be administered by the President acting to such extent as he thinks fit through a Chief Camnissioner or Lt. Governor to be F appointed by him. [491 E-FJ

Art. 239(1) of the Constitution differed from the provision contained in s.94(3) of the Government of India Act, 1935 to the extent that the appointment of a Chief Commissioner or Lt. G Governor as an Administrator irrespective of the designation and entrustment of powers, functions and duties to him by the President, were not to be in his discretion but had to be exercised on the advice of the Council of Ministers. Except for this, s.94(3) of the Government of India Act, 1935 and Art.239(1) of the Constitution as enacted were identical in respect of the H provisions for the administration of Delhi as a Chief

EXPRESS NEWSPAPERS v. U.O.I.

Comnissioner's province under the 1935 Act and as a Part 'C' A State under the Constitution, by the Governor-General under s.94(3) and under Art. 239(1) by the President acting to such extent as he thought fit, through the Chief Comnissioner or. the Lt. Governor as an Administrator irrespective of the deaignation. [491 H; 492 A-BJ JI

5(ii) Art. 239(1) of the Constitution was amended by the Constitution (7th Amendment) Act, 1956 w.e.f. November 1, 1956 and for the words 'through a Chief Comnissioner or a Lt. Governor to be appointed by him' in Art.239(1) as originally enacted, the words substituted are 'through an administrator appointed by him c with such designation as he may specify'. Therefore, the Adminis- trator appointed by the President under Art. 239(1) whether with the deaignation of the Chief Comnissioner or of the Lt. Governor could exercise only such powers, functions and duties as were entrusted to him by the President i.e. there have to be specific entrustment of powers by the President under Art.239(1). From D November 1, 1956 Part 'C' States ceased to exist by virtue of the Seventh AmendDmt and in their place Union Territories were substituted in the First Schedule to the Constitution, including the Union Territory of Delhi i.e. the territorie~ which iumediately before the COlllllf!Ilcement of the Constitution were comprised in the Chief Comnissioner's ;;>rovince of Delhi. [493 E A-B; D-E; 493 F-G]

5(iii) On October 1, 1959 decision was taken by the Government of India to transfer the administrative control of the office o:': Land & Development Officer, New Delhi from the Delhi Administration to Ministry of Works, Housing & Supply w.e.f. October 1, 1959. This decision was duly cOlllllllnicated to the Chief F Comnissioner of Delhi and to the Land & Development Officer, New Delhi. The President of India on February 1, 1966 issued an order under Art.299(1) of the Constitution which inter alia directed that in the case of Land & Development Office (1) all contracta and assurances of property relating to matter falling within the jurisdiction of Land & Development Officer, (2) all contracta, deeds and other instrumenta relating to and for the purpose of enforcement of the terms and conditions of the sale/lease-deed of the government property in Delhi/New Delhi, etc. made in exercise of the executive power of the Union may be executed on bis behalf by the Land & Development Officer. Therefore, neither the Chief

Ii

400 SUPREME COUltT REPORTS [1985] SUPP.3 s.c.R.

Commissioner nor the Lt• Governor had anything to do with the A Office of the Land & Development or the administration of nazul. lands 1.n the Union Territory of Delhi after October 1, 1959. They have not been conferred any authority by the President under Art. 299(1) to enter into any contracts made in the exercise of the executive power of the Union or to act 'on behalf of' the President in relation to auch contract or assurance of property Jl i.e. to act on behalf <>f the President for the enforcement of the terms and cond!tions thereof, There is also no notification under Art. 239(1) by the President vesting Chief Commissioner or the Lt. Governor with any power, functions and duty in relation to the property of the Union Territory of Delhi. [495 C-il; F~; E; 497 A..JI]

c 5(iv) It would therefore, appear that the territory of Delhi as a Part •c• State under the First Schedule to the Constitution was a separate and distinct constitlitional entity as from that of a Chief CommiHioner Province under the Government of India Act, 1935, and this ia equally true of the Union Territory of Delhi. It must logically follow that with the D transformation of the territory of Delhi from a Chief Comniaaioner's Province under s.94(3) of the Government of India Act, 1935 into that of a Part 'C • State under the Constitution and after the Seventh Amendment into the Union Territory Delhi, the office of the Chief Commissioner of Delhi disappeared and that of an Administrator appointed by the President under E Art.239(1) with such designation as he may specify, came into existence. The necessary concomitant is that the Administrator of the Union Territory of Delhi derived only such powers, functions and duties aa were entrusted to him by the President under Art.239(1). [501 C-E]

F

5. (v) There was no Order in Council issued by the Governor- General under s.94(3) of the Government of lod1a Act, 1935 nor any order issued by the President under Art. 239(1) of the Constitution investing the Chief Comnissioner of Delhi to deal with the property of the Union. The matters relating to the G property of the Union of India are included in the executive power of the Union under Art.53 of the Constitution read with Art.298 which expresHly provides that the executive power of the Union shall extend to the acquisition, holding and disposal of

H

EXPRESS NEWSPAPERS v. u.o.r. 401

• A property and the making of contracts for any purpose. Such executive power of the Union is vested in the President under Art.53(1) and shall be exercised by him either directly· or through officers subordinate to him in sccordance with the Constitution. All executive actions of the Government of India B shall be expressly taken in the name of the President under Art.77(1). Under cl.(2) thereof, orders and other instruments made and executed in the nsme of the President shall be authenti- cated ·as may be specified in rules to be made by the President i.e. in the manner specified under the Authentication (Orders and other Instruments) Rules, 1958 framed under Art. 72(2). In terms of the Government of India (Allocation of Business) Rules, 1961, c all matters relating to the property of the Union, allotment of Governm£nt lands in Delhi, administration of Government estates under the control of the Ministry of Works & Housing and the administration of the Land & Development office, are matters exclusively vested in the Ministry of Works & Housing vide D Entries 1, 6 and 23 ( 1) in the Second Schedule under the bead 'Ministry of Works & Housing'. In the light of the said directive, as further confirmed by the constitutionally enacted regulations, the power over the allotment of nszul lands, administration of leases in Delhi and the control and adminis- tration of Land & Developlllellt office in particular and the property of the Union in general are subjects vest.ed solely under the control of the Ministry of Works & Housing. In the premises, by such transfer of authority, the Chief Commissioner of Delhi and necessarily his successor, the Lt. Governor, became bereft of his powers to control and administer the lease and any attempt by respondent No.2 to set up a claim that the Lt. Governor is the authority empowered to administer the lease is wholly frivolous and untenable and must be rejected. [502 F; 503 A-C; E-G]

llobd. llaqbool Dallloo v. State of J - & laahldr [1972] 2 s.c.&. 1014 & Edvard Milla eo. Ltd. Beawar & Ora. v. State of Ajller & A.Dr. [1955] 1 s.c.&. 735 distinguiohed. G

6(i) The impugned notices dated March 1, 1980 and March 10, 1980 were not issued bona fide in tbe ordinsey course of official buoiness for implementation of the law or for securing justice but were actusted with an ulterior and extraneous purpose and thus were wholly mala fide and politically motivated. [519 CJ R 6(11) iraud on power voids the order if it is not exercised bona fide for the end design. There is a distinction

402 SUPRENE COURT REPORTS [1985] SUPP.3 s.c.R.

A between exercise of power in good faith and misuse in bad faith. 'lbe former arises when an authority misuses its power in breach of law, say, by taking into account bona fide, and with best of intentions, sane extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith B arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an 'alien' purpose other than the one for which the power is conferred is mala fide use of that power. Same is the position when an order is made for c a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power. [507 F-ti]

6(iii) It is not for the parties to say what is relevant or not. The matter is one for the Court to decide. Mala fidea on the part of the Government in power or its functionaries would be sufficient to invalidate the impugned notices. [505 F]

6(iv) The petitioners have alleged several facts imputing improper motives which have not boon specifically denied and there is only a bare denial with the assertion that the facts are not relevant, Mere denial of allegations does not debar the courts fran inquiring into the allegations. It is quite evident that no action was contemplated against the Express Newspapers Pvt. Ltd. by any of the respondents prior to February 17, 1980. Respondent No.2upon assumption of bis office as the Lt. Governor of Delhi on that day !mediately set on a course of action against the Indian Express which culminated in the issue of the impugned notices. It cannot be doubted that bis initiative to call for the files from the Municipal Corporation relating to the construction of the new Express Building was an action of his own not provoked by anyone, much less at the instance of respondent No.l, the Union of India, Ministry of. Works & Housing. The sequence of events set in motion imnediately after his assumption G of office as the Lt. Governor demonstrate the extent to which and the keenness with which be pursued the matter. It would appear that the entire administrative machinery was geared into action by respondent no.2 and he 'activated' the taking of steps culminating in the issue of the impugned notices. [509 A-B; 515 A-BJ H

EXPRESS NEWSPAPJ!RS v. U.O.l. 403

A 6(v) The dominant purpose which actuated respondent no.2 in initiatillg governmental action was not so much for implementation of the provisions of the Master Plan or the Zonal Development Plans framed under the Delhi Development Act or the observ8IICe of the relevant Municipal Bye-laws under the Delhi Municipal r.orpo- ration Act, but to use these provisions for an 1alien' purpose B and in bad faith i.e. for demolition of the Express Bni l dings with mark of retribution or politiC'll vendetta for the role of IDdiBn Express during the period of Emergency and thereafter and thereby to bring about closure of tbe Indian Express. (512 D-E)

6(vi) It was somewhat strange that tbe Land & Development c Officer who was a minor fllllCtiODarY of the Ministry of Works & Housillg should have filed a counter supporting the action of respondent no.2. There is no doubt that the Land & Development Officer deliberately made an inaccurate statement that be is not under the sclmfnistrative control of the Ministry. [516 B)

6(vii) The contention that there was no :lmninent danger of demolition of the Express Buildillg nor was the impugned notice by the Engineer Officer a notice of re-entry upon forfeiture of lease, is against the very terms of the impugned notice. There is a categoric avel'lllent tbat tbe grant of sanction by the then MiDister for Works & Housillg was illegal, improper and irregular. E It is therefore futile to contend that tbe impugned notice dated March 10, 1980 was not a notice of re-entry upon forfeiture of lease but merely a notice of an exploratory nature · requiring Express Newspapers Pvt. Ltd. to show cause why the lease should not be forfeiture under cl.5 of the lease-deed. [518 C-E]

c.s. ~jee &Ora. Vo A.Po State Jload Transport Corporation F [1964] 4 s.c.R. ·330 relied upon•

S. Pratap Singh v. State of Punjab (1964] 4 S.C.R. 733 & General •ss"Ehly of Free a.urcb of Scotland Vo Overta1m L.R. (1904] A.c. 515 relied upon. G Short Vo Poole Corporatico L.R. [1926] Cb,D, 66 1 . Lazarus Estates Ltd. v. Beaaloy [1956] 1 Q.B. 702 at pp.712-13, Dr. Baa Hpoohar Labia V• State of Bihar & Ors. [1966) l· S,C,R, 708 & State of Punjab v. llmojilal & Ora. [1971] 2 s.c.R. 550 relied upon.

J1ar1m <>-rtcals Ltdo & Aur. Vo 7be Canpany 1- ~ R [1966] Supp. s.c.R. 311 relied upon.

404 SUPREME COURT REPORTo [1985] SUPP.3 s.c.R.

A Judicial Review of Administration Action, 4th Edn. pp.335-36 and by Prof. De. Smith and H.w.R. Wade's Administrative Law, 5th Edn. pp.42, 348 and 369 referred to.

7(i) The construction of the new Express Building with an increased FAR of 360 for starting a Hindi Newspaper and the .8 installation of the printing press in double basement waa allowed by the Delhi Development Authority, in accordance with the provisions of the Master Plan. [520 HJ

7(ii) The Press Enclave on Bahadurshah Zafar Marg otherwise known as the Mathura Road Comercial Complex is not a 'development area 1 i.1.thin the meaning of s.2(3) of the Delhi c Development Act, 1957. The Master Plan does not prescribe any FAR for the press enclave situate on Mathura Road ccmnercial area nor does such area fall within the 1already built-up ccmnercial areas' aa def:l!led in the Maater Plan i.e. commercial area falling within the walled city of Old Delhi. Apparently, the contention that the FAR of no commercial area in Delhi can exceed 400 is wholly misconceived inasmuch as the Master Plan in express terms D permits FAR of the commercial areas in Minto Road and Ranjit Singh Road at 400. The Zonal Development Plan for the D-lI uea approved by the Central Govemment in November 1966 mentions four ccmnercial areas, namely (1) Asaf Ali Road commercial area (2) Minto Road ccmnercial area (3) Mathura Road commercial area, and E (4) Circular Road ccmnercial area (opposite Ramlila Grouwl). Although in the Zonal Development Plan for D-11 area, Asaf Ali Road comnercial area is described as fully developed with no room for expanaion, the FAR of which is admittedly 400, there could be still a further increase in Fil aubject to payment of premium. F This could only be uwler the provisions of the Zonal Development Plan for D-II area and therefore it lllllSt logically follow that the FAR prescribed in the Zonal Development Plan fo~ Mathura Road c<>mMrcial area where ·the preaa enclave ie aituate ie 400. 'lbe presa area 1a not far from Asaf Ali Road c:amiercial area. lt not only falls in the aame D-lI area but is treated aa part of a G complex of four commercial areas in the Zonal Development Plan for D-II area. Thia preas area is not even deacribed aa fully coamercialized· lf FAR 400 ia prescribed and al.lowd for Aaaf At! Road ccmnercial area which is fully developed, it could not poasibly be :lmpemiasible for the press area vbicb although fully commercialized waa still not fully developed. [520 D; 524 c-E; 526 D-G]

7(iii) The floor area ratio or FAii. ia the restriction on the llllllber of floors in a building with refere11Ce to the plot area. Where FAR ie not apecified in the Muter Plan which

EXPRESS N~'WSPAPERS v. l.).O.I. 405

A admittedly is the case in regard to press area on Bahsdurshah Zafar Marg, the only bye-law applicable would be bye-laws 21 and

22. Bye-law 21(1) restricts the height of a building to 70 feet. This height is to be measured from the centre of the adjacent portion of the 'nearest street'. Admittedly as is clear from the sanction plan, the height of the new Express Building is about 47 B feet. The adjacent portion which is the service road is on level with the plinth of the additional construction. Taking Mathura Road as the 'nearest street', the level of Mathura Road stretches from 2 ft. to 5 ft. higher than the plinth level of the addi- tional construction. In any view of the matter, the additional construction could therefore be permissible if it did not exceed a height of 63 feet. This is because of bye-law 21(1) and also c because of FAR with which is linked the ground floor cover'l-ge is not specified in the Master Plan. In order to avoid congestion the ""'xinnnn height is further restricted under bye-law 22 in proportion to the width of the abutting street. In the instant case, Mathura Road which is the abutting street measures in width D 150 feet. This is apart from the immediately abutting service road which, even if reckoned as an abutting street, is 63 feet in width. Therefore, applying bye-law 22(4) read with bye-law 21(1), it is the service road of the street that governs the height of the buildings in the press area as well as the number of floors, the miniuaJm floor height being already specified in bye-law 19. E The ~estriction on the height of buildings is therefore governed by the width of the street subject to the maximum height of 70 feet and this is the measure adopted where FAR for a particular area. is not specified in the Master Plan. [529 C, E-F; 530 A-{;; F-11; 531 A)

7(iv) Bye-law 25(2)(IV-ll) only applies to "already built up commercial areas as indicated in the Master Plan such other areas as may be declared as commercial areas by the appropriate authority from time to time.• The list of already build-up commercial areas as defined in the Master Plan admittedly does not include the press area on th" Mathura Road. At the time of coustruction of buildings in the press area, there were also no restric.tions as to the FAR along the Mathura Road and the only restriction on construction of such buildings was that the allottees of the plots in the press area shodd construct buildings upto a height of 60 ft. [533 E-F)

7(v) It lllUSt therefore be held that the permissfon granted by Sikander Bakht, the then Minister for Works & Housing for the construction of the new Express Building with an increased FAR of 360 with a double basement ior installation of the printing press was not in violation of the Master Plan for Delhi or the Zonal De\relopment Plan for D-II area or the Delhi Municipal Corporation

p. 406

A (Buildings) Bye-laws, 1959 inasmuch as ex facle by-law 26 read with 25(2)(IV-B) was not applicable tothe press area on the Matlura lload. Admittedly, the Master Plan does not prescribe any FAR for the Press enclave. The Zonal Development Plan for the first time prescribed FAR for the four c011111ercial areas for B general business and C0111Dercial areas. All these C0111Dercial areas fall within D-Il area for which the Zonal Development Plan prescribes an FAR of 400. (535 E-F]

B(i) The non-obstante clause in section 53(A)(i) of the Delhi Development Act clearly gives an overriding effect to the sanction granted by the Delhi Development Authority for the c construction of the new Express Building with an increased FAR of 360 and a double basement for installation of printing presa or the working platform. The effect of grant of such permission by the Authority was to modify the sanctioned plans of the Municipal Corporation to that extent. That apart the term "development" as defined in section 2(d) of the Act includes the carrying <>ut of builclinga •• •• •••• in, on, over or under land in any building etc. D and la wide enough to include the structures in question. As the Authority approved each of these structures for which the impugned show cause notice under ss. 343 and 344 of the Delhi Municipal Corporation Act, 1957 had been issued by the Zonal Engineer (Buildings), City Zone, Municipal Corporation, it is clear that he had acted beyond his authority and power. (537 A-C) E 8(11) There is no diapute that all the structures are below the ground. The main purpose of the upper basement i.e. a working platform measuring 6000 sq.ft. was meant to work the printing press. If the upper basement ·or the working platform constructed by the Expreaa Newspapers Pvt. ,Ltd. is demolished, the installa- F tion of the printing press itself in the lower basement with the sanction of the Delhi Development Authority under the appropriate statutory provision would be nullified and the Ezpreas Newspapers Pvt. Ltd. would not be in a poaition to operate the printing presa at all. Without the water storage tank the Express News- papers Pvt. Ltd. would not get tl.e completion certificate and it is difficult to understand how the underground tunnel passage, to connect the old and new Express Building would cause traffic hazard. At ey rate, such minor deviation would not result in a demolition of the Express Buildings. The manner in which the impugned notice was got iasued by the Municipal Corporation at the direction of respondent no.2 shows that it was done with an ulterior purpose, The illegality of the action is writ large and the manner in which it was done creates a ground for belief that the action was motivated. [538 C-EJ

EXPRESS NEWSPAPERS v. U.O.I. 407

A B(iii) It is evident from page 16 of the Printed Master Plan and the zonal Development Plan for D-11 area at pages 935 and 936 that semi-basement, meaning a second basement is permissible under the Master-Plan as well as the ZOnsl Development Plan. The Bye-laws of the Delhi Municipal Corporation do not prohibit second basement and on the contrary bye-law 54 B usea the term 'basements', Moreover, double basements have, in fact, been permitted in the case of many hoteis by the Delhi Development Authority. [543 B-ll)

B(iv) lt is difficult to conceive how the huge printing press with a height of 24 ft. could be placed on a pedestal or be c laid on the floor of the basement in such a manner as to dis- charge the newspapers on the ground floor. lt is COlllllOn ground that there is a working platform in all the other printing presses in the same line of buildings like that of the Times of lndia, the National Herald, Patriot and the old Indian Express Building. In all these buildings, the printing presses are D installed in the lower basement and there is an over-hanging platform in the printing press in each of the buiidings to receive the printed material. Therefore, there is no justifica- tion of the working platform. If the Municipal Bye-laws do not permit the construction of a double basement then they would be clearly violative of Art.14, 19(l)(a) and 19(l)(g) of the E Constitution. [543 F-il; 544 A)

9(i) The basic principle of eatoppel is that a person who by some statement or representation of fact causes another to act to his detri..,nt in reliance on the truth of it is not allowed to deny it late?, even though 1.t is wrong. Justice here prevails over truth. Estoppel is often described as a rule of evidence, ~· but more correcUy it is a principle of law. As a principle of common law it applies onfy to representations about past or present facts• But there is also an equitable principle of 1 promisSOl:Y estoppel' which can apply to public authorities. [545 E-F) G 9(11) In public law, the most obvious limitation on the doctrine of estoppel is that it cannot be evoked so as to give an overriding power which it does not in law possess. In other worda, no estoppel can legitimate action which is ultra vires. Another limitation is that the principle of estoppel does not operate at the level of Government policy. Es toppels have however been allowed to operate against public authority in minor matters of formality where no question of ultra vires arises. [548 A-C]

In the instant case, the then Minister for Works & Housing actad within the scope of his authority in granting permission of

408 SUPREME COURT REPORTS (1985] SUP~.3 s.c.R.

A the lessor i.e. the Onion of Inclis, Ministry of Works & Housing to the Express Newspapers Pvt. Ltd. to construct new Express Building with an increased FAR of 360 with a double basement for installation of a printing press for publication of a Hindi newspaper under the Rules of Business framed by the President under Art.77(3). Therefore, the doctrine of ultra vires does not come into operation. In view of this, respondent no. l the Union of India is precluded by the doctrine of promissory estoppel from questioning the authority of the Minister in granting such pei:miasion. In that view, the successor Government was clearly bound by the decision taken by the Minister particularly when it had been acted upon. [548 0-F] c Robertson v. Hinl.Jlter of Peuaiona L.R. [1949] I K.B. 227, 1laion of IDdia i Ora v. HI• lndo-Afghan AgeDcies Ltd. [1968] 2 s.c.R. 366 & Century SpimWlg & llanufacturing eo. Ltd. & Anr • .,. Ullia81>agar llmlicipal eoi-u & Anr. [1970] 3 s.c.R. 854, HI•· llotilal Padapat Sugar Mills Co. (P) Ltd. v. State of Uttar Pradeah & Ora. [1979] 2 s.c.R. 641 & Jit Ka Shiv~ & ors. v. D State of ll8ryana &Anr. (1980] 3 s.c.R. 689 referred to.

Marltiae IU.ec. Co. Y• r.eneraJ Dair1e8 Ltd. [1937] A.c. 610 P.C. & Sout:lreod-ol>-5ea Corporation v. llodgren (V:lckforcl) Ltd. (1962] 1 Q.B. 416 distinguished.

Judicial Review of Administrative Action 4th Edn. p.103 by Prof. De Smith & Administrative Law 5th Edn. p.232 by Prof. H.W.R. Wade, relied.upon.

(10) The Express Newspapers Pvt. Ltd. are liable to pay conversion charges in terms of cl.2(7) of the lease-deed and it is directed that the Union of India, Ministry of Works & Housing shall enforce its claim for recovery of conversion charges by a duly constituted suit or by making a law prescribing a forum for adjudication of its claim. It is also directed that the Municipal Corporation of Delhi shall colllpOund the construction nf the double basement of new Expreas Building, the excess basment beyond the plinth limit and the underground passage on payment of the usual CCllllpOsition fee. [555 B-<:]

l(i) The material available is sufficient to hold that the impugned noticea suffer from arbitrariness and non-application of llind. They are violative of Article 14 of the Constitution. Hence they are liable to be quashed. It is not necessary therefore to ezpresa any opinion on the contentions based on Article 19(l)(a) of the Constitution. (556 F]

EXPRESS NEWSPAPERS v. u.o.r. 409

A l(ii) The said notices were issued by the authorities concerned muler the Pressure of the second respondent. 'lbe question whether the notices should be issued o" not doea not appear to have been coosidered iDdependently by the concerned administrative authorities before issuing then. [555 F] B l(iii) The Lt. Governor failed to make a distinction between the power with respect to the subject 'Property of the Union and the revenue therefran' which is in Entry 32 of !J.st I of the Seventh Schedule to the Coostitution and the general powers of administration entrusted to him muler Article 239 of the Constitution as tche Administrator of the Union Territory of c Delhi. The property in question is a part of the estate of the Central Government. Mere nearness to the seat of the Central Government does not clothe the Lt. Governor of Delhi with any p?Wer in respect· of the property of the Central Government. Be can discharge only those powers which are entrusted to him by the Coostitution and the laws. Moreover, all the powers of the former D Chief Cooloissioner of Delhi have not devolved on the Lt. Governor and continue to vest in him. [ 556 B-D]

2(i) The question arising out of the lease, auch as, whether there has been breach of the covenants muler the lease, whether the lease can be forfeited, whether relief against forfeiture can be granted etc. are foreign to the scope of Article 32 of the Coostitution. lhey cannot be decided just on affidavits. These are matters which should be tried in a regular civil proceeding. One should remember that the property belongs to the Union of India and the rights in its cannot .be bartered away in accordance with the sweet will of an officer or a Minister or a Lt. Governor but they should be dealt with in accordance with lsw. At the same time a person who has acquired rights ill such property cannot also be deprived of then except in accordance with law. The stakes in this case are very high for both the parties and neither of then can take lsw into his own hands. [556 H; 557 A-BJ G 2(ii) No opinion is expressed on the rights of the parties wider the lease and all other questi.oos argued in this case. They are left open to be decided in an appropriate proceeding. It io however, open to both the parties if they are so advised to take such fresh action as may be open to them in lsw on the basis of all the relevant facts including those which existed before the :Impugned notice dated March 10, 1980 was issued by the Engl neer H Officer of the Land and Development Office to vindicate their respective rights in accordaw::e with lsw. This order is made without prejudice to the rights of the Union Government to

410 SUPRfilJE COURT REPORTS [1985] SUPP.3 s.c.R. A compound the breaches, if any, comnitted by the lessee and to regularise the lease by receiving adequate premium therefor from the lessee, if it is permissible to do so. [557 C-E]

2(iii) It is open to the Delhi Municipal Corporation to B examine the matter afresh independently and to take such action that may be open to it in accordance with i.aw. The Delhi Municipal Corporation· may, if so advised instead of taking any further action against the petitioners permit the petitioners to compound the breaches, if any, comnitted by them in accordance with law. [557 E-F] c Per Misra, J.

l(i) The impugned notices threatening re-entry and demolition of the construction are invalid and have no legal value and must be quashed for reasons detailed in the two judginents. [557 H] D l(ii) The other questions involved in the case are based upon contractual obligations between the parties. These questions can be satisfactorily and effectively dealt with in a properly instituted proceeding or suit and not by a writ petition on the basis of affidavits which are so discrepant and contradictory. [558 A-BJ E

2. The right to the land and to construct buildings thereon for running a business is not derived from Article 19(l)(a) or 19(l)(g) of the Constitution but springs from the terms of contract between the parties regulated by other laws governing the subject, viz., the Delhi Development Act, 1957, the Maater F Plan, the Zonal Development Plan framed under the Delhi Municipal Bye-laws, 1959 irrespective of the purpose for which the buj]dings are constructed• 'Whether there has been a breach of the contract of lease or whether there has been a breach of the other statutes regulating the construction of buildings are the questions which can be properly decided by taking detailed' G evidence involving exmnlnstion and cro•s-examination of witnesses. [558 B-D]

ORIGINAL JURISDICTION : Writ Petition Nos.535-539 of 1980. AND Review Petition No. 670 of 1985 H (Under Article 32 of the Constitution of India)

F.s. Nariman, P.H. Parekh, Arun Jately and Pinski Misra for the Petitioners.

EXPRESS NEWSPAPERS v. u.o.I. [A.P. SEN, J. J 411

Lal Narayan Sinha, M.M. Abdul Khader, Miss A. Subhaehini, A c.v. Subba Rao and p,p, Singh for Respondent No.l.

Dr. L.M. Singhvi, Miss A. Subhashini and Roshan Lal Tandon for Respondent No. 2.

Dr. L.M. Singhvi and Miss A. Subhashini for Respondent B No. 5.

IJr, L.M. Singhvi, Miss A. Subhashini and Abishek Manu Singhvi for Respondent No.6.

The following Judgments were delivered by c SEN, J, These petitions under Art. 32 of the constitution are by petitioner no.l, the Express Newspapers Pvt. Ltd., which is a company incorporated under the companies Act, 1956 engaged in the business of printing and publishing the national newspaper the Indian Express'(Delhi Edition) from the Express Buildings at D 9-10, Bahadurshah Zafar Marg, New Delhi, held on a perpetual, lease from the Union of India under a registered indenture of lease dated March 17, 1958. It is a wholly owned subsidiary of petitioner no.2, the Indian Express Newspapers (Bombay) Pvt. Ltd. of which petitioner no.3 Ram Nath Goenka is the Chairman of the Board of Direc tors • Pe ti tioner no"' Nihal Singh was the then E Editor-in-chief of the Indian Express and petitioner no.5 Romesh Thapar was the Editor of the Seminar published from the Express Buildings.

Respondent no. l is the Union of India, no.2 is Jagmohan, Lt. Governor of Delhi, no.3 the Municipal Corporation of Delhi, no.4 the Zonal Engineer (Buildings), n.o.5 the Land & Development F Officer, etc.

The petitioners challenge the constitutional validity of a notice of re-entry upon forfeiture of lease issued by the Engineer Officer, Land & Development Office, New Delhi dated March 10, 1980 purporting to be on behalf of the lessor i.e. the G Government of India, Ministry of Works & Housing, New Delhi. The said notice required petitioner no.l, .the Express Newspapers Pvt.r.td., New Delhi to show cause why the Union of India should not re-enter upon and take possession of the demised premises i.e. plots nos. 9 and 10, Bahadurshah Zafar Marg together with the Express Buildings built thereon under cl.5 of the aforesaid indenture of lease dated. March 17, 1958 for the alleged breach of H els. 2(14) and 2(5) of the lease-deed. They also challenge the validity of an earlier notice dated March l, 1980 issued by the Zonal Engineer (Buildings), Municipal Corporation, City Zone,

p. 412

A Delhi to petitioner no.l, the Express Newspapers Pvt.Ltd., New Delhi to show cause why the aforesaid buildings being llilautho- rized should not be demolished under ss. 343 and 344 of the Delhi Municipal Corporation Act, 1957.

B The petitioners allege thst the impugned notices of re-entry upon forfeiture of lease and of threatened demolition of the Express Buildings at Bahsdurshsh Zafar Marg, New Delhi which constitute the nerve centre of the newspaper the Indian Express which has the largest combined ~irculation among all the daily newspapers in India and is published simultaneously from eleven cities in the country, are wholly mala fide and c politically motivated. They further allege thst the impugned notices constitute an act of personal vendetta against the Express Group of Newspap<1rs in general, and Ram Nath Goenka, chairman of the Board of Directors in particular, and are violative of Arts. 14, 19(l)(a) and 19(l){g) of the Constitution. We are informed thst a teleprinter is installed at the Express Buildings at Bahsdurshah Zafar Marg from where the Delhi edition D of the Indian Express is published and the editorials, editorial policies and leading articles are transmitted to ten cities all over India from where the other editorials of the Indian Express are published simultaneously every day, namely, Ahmedabad, Bangalore, Bombay, Chandigarh, Cochin, Hyderabad, Madras, Madurai, Vijayawada and Vizianagaram. E The issues raised in this case are far-reaching in significance to the maintenance of our federal structure of · Govertllllent. It necessarily involves a claim by the Lt. Governor of Delhi that he hss the power and authority to administer properties of the Union of India within the Union Territory of F Delhi which he is called upon to adlllinis ter • The questions presented are whether the Lt. Governor of Delhi could usurp the functions of the Union of India, Ministry of Works& Rousing and direct an investigation into the affairs of the Union of India i.e. question the legality and propriety of the action of the then Minister for Works & ·Housing in the previous Government at G the Centre in granting permission to the Express Newspapers Pvt. Ltd. to construct the new Express Building with an increased FAR of 360 with a double basement for installation of a printing press for publication of a Hindi Newspaper on the western portion of the demised premises i.e. plots nos. 9 and 10, Babadutshah Zafar Marg, New Delhi with the Express Buildings built thereon. H The Lt. Governor asserts that he has the power and authority to adlllinister the properties·of the Union of India in the Union Territory of Delhi. The further question is whether the

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 413

A grant of sanction by the then Minister for Works & Housing and the consequential sanction of building plans by him of the new Express Building was contrary to the Master Plan and the Zonal Development Plans framed under the Delhi Development Act, 1957 and the llllnicipal bye-laws, 1959 made under the Delhi Municipal Corporation Act, 1957 and therefore the lessor i.e. the Union of B India hsd the power to issue a notice of re-entry upon forfeiture of lease under cl. 5 of the indenture of lease dated March 17, 1958 and take possession of the demised premi91'S together with the Express Buildings built thereon and the Municipal Corporation had the authority to direct demolition of the said buildings as unauthorized construction under ss. 343 and 344 of the Delhi c Municipal Corporation Act, 1957. The ultimate question is whether the threatened action which the petitioners characterise as arbitrary, illegal and irrational was violative of Art. 19(l)(a) read with Art. 14 of the Constitution.

History of the matter D

FACTS OF l'llE CASE

The facts are somewhat involved and present a feature which is r.ather disturbtng. It would be convenient to set forth the facts relating to the impugned notices. E

Put very briefly, the essential facts are these. On February 17, 1980, respondent no.2 Jaguxihsn assumed office as the Lt. Governor of Delhi. That very evening which was a Sunday, he summoned the Colllllissioner of the Municipal Corporation of Delhi and called for the files relating.to the construction of the new Express Building at Bahadurshah Zafar Marg, New Delhi. On the F next day i.e. on the 18th mrning, the files relating to the grant of sanction for the construction of the same were made available to him. On February 20, 1980, some important files of the Delhi Development Authority relating to the Express Buildings were sent to respondent no.2. On February 29, 1980, respondent no.2 through the Comnissioner, Municipal Corporation of Delhi G caused the locks of the office and cupboards of the Zonal Engineer (Building) to be broken open to take away 'the files relating to the new Express Building. J;mmediately thereafter i.e. on March l, 1980 respondent no.2 convened a press conference in which he handed over a press release alleging that the new Express Building put up by the petitioners was in contravention of law in several respects. The press release stated inter alia H that :

p. 414

A l. The government had been receiving complaints that additional space was sanctioned to the Indian Express Buildings in total disregard of tbe provisions of the Master Plan, zonal. regulations and Municipal Corporation bye-laws.

2. The Lt. Govemor had ordered an inquiry into the grant of sanction of the building plans in January 1979 by the Municipal Corporation for the construction of the new F.xpress Building and had entrusted the inquiry to a Buildiug and had entrusted the inquiry to a committee of three of his subordinate officials. c 3. The committee had been asked to sub:nit its report within three days and the authorities of the DDA and the MCD had been separately directed to extend all co-.iperation to the commi.ttee and made available all relevant files and connected papers.

4. The Commissioner of the MCD had been separately D advised to take inmediate action in regard to the unauthorized deviations made from the sanctioned plan in the construction of the new Express Building.

The Lt. Governor also held out a threat at the press conference that the new Express Building might have to be demolished. The E holding of the press conference was broadcast over ~he All India Radio within an hour and within two hcurs the Delhi Doordarshan telecast the same and read out the contents of the press release. It also exhibited the film both of the press conference as well as of the new Express Building. F On the same day i.e. on March l, 1980, although the relevant files had been removed from his office, the Zonal Engineer (buildings). City Zone, Municipal Corporation served a IlOtice on petitioner no.l the Express Newspapers Pvt. Ltd. to show cause why action should not be taken for demolition of the Express Buildings undP.r ss. 343 and 344 of the Delhi Municipal G Corporation Act, 1957. It reads as under

"Number 79/B/ua/cz/80'/;/.III Dated 1.3.1980.

You are hereby informed that on your property situated at Bahadurshah Zafar Marg bearing nwnbers 9 & 10, you have started unauthorized construction of excess

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 415

basement beyond sanction and construction of upper basement without sanction as sJ-.own red in the sketch below.

Therefore, I, L.S. Pal, Zonal Engineer (Buildin3) as authorized by the Comnissioner under D.M.c. Act, 1957 vide s. 49 to serve upon you notice and call upon you to appear in my office within three days of the receipt of this notice during office hours with all relevant records and documents relating to the above constructi.on to explain as to why· under sub-clause I of clause 343 as .to issuing for demolitl.on of unauthorized construction should not be issued. C

Please further note under sub-clause I of clause 344 you are ordered to stop construction work on this land failing which under sub-clauses 2 and 3 action will be taken against you and the construction will be demolished at your risk and cost. D

Sd/- (L.s. Pal) Zonal Engineer (Bldg.) Office Address : City Zone, Municipal Corporation, E Delhi.

Served on :

M/s. Indian Express Newspepers (P) Ltd. 9/10, Bahadurshah Zafar Marg, Delhi ... F

Three days after i.e. on March 4, 1980, a second press release was issued from the Raj Nivas, the official residence of respondent no.2. It was sent by a special courier to all newspaper offices to justify the action of resp.ondent no.2 in initiating an inquiry and the mode that had been prescribed for G holding the inquiry. It stated

"In regard to the unauthorized deviations fro:n the sanctioned plan and construction of about 23,000 sq.ft. in the lower basement and upper basement, the spokesman indicated that the show cause notice had been issued by the Corporation authorities. Further ll action would be taken in the light of the reply received by the party concerned."

p. 416

A Again, the issue of the show cause notice figured in the third press release dated March 8, 1980 wherein under the heading "Additional Cons true tion in the Indian Express Buildings" the above extract was repeated verbatim· Respondent no.2 in his counter had asserted that the show cause notice was issued by the Coomissioner in accordance with his statutory functions after Jl verification of the allegations. However, it is asserted that respondent no.2 being responsible for administration of the Union Territory of Delhi was obliged to ask all the authorities concerned to prevent violation of lease by any person or institution. Whereaa the files of the Corporation were SU11111>Jned by respondent no.2 before the press conference on March 1, 1980, the files of the Ministry of Works &Housing were summoned by him c in the first week of March 1980. It is admitted by the Ministry of Wcoks & Housing that the said files were made available to respondent no.2 on March 7, 1980. On March 7, 1980, the Land & Development Officer acting as part of the overall plan of respondent no. 2 issued a notice of re-entry upon forfeiture of the lease signed by the Engineer Officer in the Land & Development Officer under the Ministry of Works & Housing D purporting to act for and on behalf of the President of. India under clause XIX of the agreement of lease alleging that there were breaches in contravention of cl· (ll) of the agreement for lease dated May 26, 1954. This notice was later withdrawn because it was realized that forfeiture of the lease had to be with reference to the registered indenture of lease dated March 17, E 1958 and not under cl. XIX of the agreement for lease of 1954. On March 10,1980, the Engir.eer Officer in the Land & Development Office issued a notice in supersession of the said notice dated March 7, 1980 in these terma :

F No. L.II 10(2)/76 Government of India Mirdstry of Works & Housing Land & Development Office, Nirman Bhawan, New Delhi, dated the 10.3.80. l G To

The Manager, Express Newspapers Ltd., Post Box No. 751, Express Building, l! Bahadurshah Zafar Marg, New Delhi.

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.) 417

Sub: Premises situated at plot nos. 9 &10 A ,Delhi Mathura Road, New Delhi.

Dear Sir,

I am to inform you that you have started the cons true tion of additional block on the land to be kept open without taking the B permission from the lessor under the terms of lease, nor the plans were submitted by you for the sanction under the terms of lease by the lessor for the construction of multistoreyed building over open plot which is in contravention of clause 2(14) and 2(5) of the lease-deed. c You are, therefore, hereby requested to show cause within 30 days from the date of receipt of this letter to why .the property should not be re-entered under clause 5 of the perpetual lease.

Please take notice that if no satisfactory cause is shown within the stipulated period as referred to above, action t.o D re-enter upon the premises will be taken against you without any further reference to you.

This is in supersession of this office letter of even no. dated 7.3.1980. E Yours faithfully,

Sd/-(R. S •.Sibal) Engineer Officer For & on behalf of the President of India. Tele: 388727." F On March 12, l980·at a specially convened press conference

' respondent no.2 released the report of the cODlllittee of his subordinates. The comnittee in its . report substantiated the allegations which respondent no.2 had aired at his press conference on March l, 1980 and through the press release dated March 4, 1980 and among other findings recorded that the Express Newspapers Pvt. Ltd. was liable to pay Rs.35 · lakhs as conversion charges. From the report it appears that the Land & Development G

Officer hsd been functioning in close coordination with respondent no.2 as is evident from the following extract from the report of the Three"*"1nber Comnittee:

· "The representative of· Land & Development Officer who H was present at the site was directed by the Comnittee

p. 418

to take measurement of the new constructions. But the A measurement could not be completed before the CollllJlittee left the site. Therefore. the representative of Land & Development Officer was aSked to complete the measurement by 10. 3.1980."

It is clear that there had been no application of mind by the B Engineer Officer in issuing the show cause notice.

The recital of these events clearly shows that reapondent no.2 displayed great zeal in causing a probe into the manner in which sanction was granted by the then Minister for Works & Housing for the construction of the new Express Building with an increased FAR of 360 with a double basement for installation of a c printing press and the entire administration was geared into action with lightning speed so as to ensure that some action or other was taken against the Express Newspapers Pvt. Ltd. This is evident from the fact, for instance, that he gave the Thre~ber CollllJlittee only thtee days to examine questions which, if they were properly scrutinized, would require inspection of the records from the year 1949 onwards of at least six agencies viz. Ministry of Works & Housing, Land & Development Office in the Minis try of. Works & Housing, New Delhi Municipal Comnittee, Municipal Corporation of Delhi, Delhi Water Supply and Sewage Disposal Undertaking and the Union of India. He not only constituted a colllllittee of subordinates to go into the affairs of the Union of India, Ministry of Works & Housing but also procured the files of the Central Government. The Ministry of Works ~. Housing apparently made available to the said Colllllittee all the relevant files of the Government pertaining to the new Express Building. There was no confidentiality maintained. Without the express authorization of the Government of India, respondent no.2 published the minutes of the proceedings of the Government. After F the suhnission of the report by the Three-Member Colllllit.tee, he on March 14, 1980 addressed a letter to the then Minister for Works & Housing to the effect :

<Xl!IFIDENTW. D.O.No.60/LG/80 G March 14, 1980.

Dear Shti P.C. Sethi,

I am enclosing, for your information, a copy of the Enquiry Report in respect of the Indian Express Building. Some action msy H bcessary at the Ministry's end.

EXPRESS NEWSPAPERS v. u.o.I. [A.P. SEN, J.J 419

A I am seeking legal opinion to ascertain as to what action can be taken at this stage to salvage the situation created by irregularities and illegalities committed in this case. I will write to you further in the matter.

With kind regards, B

Yours sincerely, Sd/- (Jagmohan)

Shri P.c. Sethi, Minister for Works & !lousing, c Nirmlin Bhawan, New Delhi.

Encl: Enquiry Report"

From the tenor of the letter is difficult to imagine that the Lt. D Governor could address such a letter to a Union Minister. On the same day, the Lt. Governor also ruidressed to a letter on similar terma to the Vice-Chairman, Delhi Development Authority and the Comnissioner, Municipal Corporation of Delhi.

Execution of agreement for lease dated May 26, 1954: E Allotment of plots nos. 9 & 10, Bahadurshah Zafar Marg to Express Newspapers Pvt.Ltd.

By an indenture styled as an 'agreement for lease' executed on May 26, 1954 between the late Feroze Gandhi, Managing Director, Express Newspapers Pvt. Ltd. of the one part and the Secretary (Local Self ,Government) to the Chief Commissioner of F Delhi 'by the orders anci directions of the President of India' of the other part, the Express Newspapers Pvt. Ltd. were allotted plots nos. 9 and 10, Bahadurshah Zafar Marg in terms of the intended lease entered into between the parties on November 17, 1952, pursuant to the allotment of the said plots to the Express Newspapers Pvt. Ltd. for construction of a four-storeyed building G meant to be used for a newspaper, installation of a printing press therefore on the ground floor with residential accommodation for the staff on the top. Incidentally, the Central Government had in the year 1949 demarcated the press area along the Bahadurshah Zafar Marg consisting of 10 plots nos. l to 10 known as the Press Enclave as a cODDD.ercial complex for allotment to the press viz. to various newspapers like the Indian Express, H Times of India, Patriot, National Herald etc. These other

p. 420

A newspapers like the Times of India, Patriot, National Herald were also granted similar plots on the same conditions and were allowed to build on the entire area of their respective plots without any restrictions whatsoever. The petitioners case is that the Express Newspapers Pvt. Ltd. was first allotted plots no.l B and 2 but later at the request of Pandit Jawaharlal Nehru, the Prime Minister of India, it accepted instead plots nos. 9 and 10 as the Govermnent required plots nos. 1 and 2 for construction of the Gandhi Memorial Hall known as the Pearey Lal Bhawan.

Preliminary work of construction of the Express Buildings Discovery of underground sewer line: c Execution of fresh lease agreement dated November 19,1957.

While the preliminary work of construction was started by the Express Newspapers Pvt. Ltd. on the basis of the aforesaid agreement, an underground sewer line was found be running diagonally across plots nos. 9 and 10. Thereupon, the parties D entered into negotiations for modification of the said agreement. It was agreed between the parties that in view of the underground drain running through the plots, the Express Buildings would be constructed only to the east of the drain and in such a way as to leave the drainage system unaffected i.e. till the drain was I diverted. The Express Newspapers Pvt. Ltd. was thus disabled from ' building on a substantial part of the land allotted to it until the underground drain was realigned outside the boundary of the two plots. In effect, an area of 2740 square yards to the west of the drain had to be left open as residual plot of the land out of the total area of 5703 square yards. The agreement was embodied in a document styled as a lease agreement executed between the parties on November 19, 1957 so as to protect the underground sewage drain and restrict the construction of the building to the ea~t of the drain.

On April 11, 1956, J.N. Ambegaokar, Under Secretary to the Government of India, Ministry of Works & Housing addressed a G letter to the Express Newspapers Pvt. Ltd. to the followi0g effect:

"I am directed to state that the allotment of land to the Indian Express Newspapers on the Delhi Ma thura Road, New Delhi, has been revised on the following basis: (i) 2965 sq. yards to the east of pipe line @ H as. 1,25,000 per acre plus 2-1/2% annual ground

EXPRESS t<'EWSPAPERS v. U,Q,I, [A.P. SEN, J.] 421 \

A rent thereon; (ii) 2740 sq. yards to the west of the pipe line @Rs. 36,000 per acre plus 2-1/2% per acre annual ground rent thereon. In addition to the premium as indicated above, .the following amount should also be recovered : (a) 50% of the ground rent of Rs. 2424 (@ 2-1/2% of the total premium of Rs.96,955) per B annum for the period from 17 .11.1952 the date of original allotment to 14.1.1956 - Rs. 3838, (h) an advance ground rent for 1-1/2 years @ Rs. 2424 per annum - Rs. 3636."

The revised allotment was subject, among others, to the c following conditions :

"The area of the west of the pipe line as mentioned in para l(ii) of this letter should be maintained as an open space i.e. as lawns, paths or parking ground. The lessor shall have the right to construct and maintain another sewer line along this land, if necessary."

The letter went on to say that necessary instructions had been issued to the Chief Commissioner of Delhi in that behalf with a request that the Exp~ess Newspapers Pvt. Ltd. should get in touch with the Land & Development Office, New Delhi for taking possession of the land. It would appear from the letter that the Ministry of Works & Housing permitted the Express Newspapers Pvt. Ltd. to construct on plots nos. 9 and 10 to the east of the sewer line with a corresponding reduction in the amount of 'premium and ground rent for the area west of the sewer line as compared to the amount chargeable to the area east of the sewer line. F Execution of the indenture of lease dated March 17, 1958 and the terms thereof.

By a registered indenture of lease dated March 17, 1958 executed between the President of India of the one part and the Express Newspapers Pvt. Ltd. of the other part, the Chief G Commissioner of Delhi 'under the instruction of the Government of India relating to the disposal of building sites in the new Capital of India' demised on behalf of the Union of India in perpetuity the nazul land described therein in consideration of payment of a premium of Rs.96,955 admeasuring 1.179 acres of thereabout being plots nos; 9, 10, Bahadurshah Zafar Marg on payment of the yearly rent Rs.1212 stipulated therein for the H period November 17, 1952 to January 14, 1956 and thereafter @

422 SUPREME COURT REPORTS [1985] SUPP.3 $,C.R.

A Rs. 2424 per annwn. The lease-deed inter alia provided as per cl.2(4) that the lessee shall keep tathe---.atisfaction of the Chief Col!lldssioner the area to the west of the sewer line running diagonally on plots nos. 9 and 10 from north-west to south-west admeaauring 2740 sq. yards as green i.e. as open space on which no building activity was permitted. The petitioner were charge B premiwn at two different rates of the leasehold premises. The premiwn charged was at Rs.36,000 per acre for the area west to the sewer line and for tlie remaining portion, i.e. to the east of the sewer line on which construction of the building was permitted, the price of the land was fixed at Rs.l,25,000 per acre. It may be mentioned that the above perpetual lease was executed by Assistant Secretary (Local Self Government) to the c Chief Col!lldssioner, Delhi by the oraer and direction of the President of India. Likewise, the earlier agreement dated November 19, 1957, s.o also the supplementary agreement of May 26, 1954 to which we shall presently refer, were executed by the said officer in the same manner. Both the agreements stipulated (under clause V of both) that the rules, regulationa and bye-laws of the Municipal corporation of Delhi rt!lating to bulldings which may be in force from time to time shall be conformed by the lessee.

On November 17, 1964, a supplemental lease was executed between the President of India and the Express Newspapers Pvt. Ltd. allowing the permanent change of user in respect of one lac square feet of the total accommodation of one and a half lac square feet i.e. two-third of the total acc011100dation in the Express Buildings for general office use, comnercial or otherwise, i.e. allowing the petitioners to sub-let upto 2/3rd of the floor area of the Express Buildings in lieu of payment of a awn of Rs.2,23,875 by them to the Union of India, the lessor, as an additional premiwn and in conaideration of their covenant to pay additional ground rent of Rs.5,746.88p. per annwn for the land demised over and above the rent reserved by the perpetual lease. Th~ recital in the deed was to the effect :

"The lessor doth hereby permit the lessee to use l,00,000 (one lac) sq.feet out of the total G accollllllOdation of l,50,000 (one and a half lac) sq.ft. in the said Express Newspaper Building for general office use comnercial or otherwise, excluding coomercial ventures like hotel, cinema, restaurant etc. and subject to ·the other provisions and conditions mentioned in clause 7 of the said lease. H

EXPRESS NEWSPAPERS v. U<O.I. [A.P. SEN, J.] 423

Provided further that the lessee shall all along A continue to use atleast 50, 000 (fifty thousand) sq .feet of the accommodation in the said Express Newspaper Building for the use of press/presses, office/offices of its newspaper, publications and other ventures." B And that

"And this indenture further witnesseth that in consideration of the premises, the lessee doth hereby covenant to the lessor that the lt!ssee will pay an additional ground rent of Rs. 5746.88p. per annum as C and from the 15th day of January 1960 over and above the ground rent reserved under the said principal lease to be paid by equal half-yearly payments from the 15th day of July each year as provided in the said principal lease-deed." D The effect was that the lessor i.e. the Union of India, Ministry of Works & Housing permitted permanent change of user of the existing Express Building by the Express Newspapers Pvt. Ltd. in respect of 1,00,000 sq.ft. of total accommodation. and it was permitted to let out 75,000 sq.ft. of the surplus accommodation with them to the State Trading Corporation for a period of 3 E years from February 1, 1960 @Rs.60 per month per 100 sq.ft. with liberty to the State Trading Corporation to sublet any part of. the area over and above its own needs.

At the time of cons true tion of buildings in the press area, there were no restrictiona as to the FAR permissible along with Bahadurshah Zafar Marg, also known as the Mathura Road Commercia: F Complex, and the only restriction on conatruction of buildings in that area was that the allottees of the plots in the press area should construct buildings upto a height of 60 feet. Under the agreememt of lease dated May 26, 1954, the Express Newspapers l'vt· Ltd. was allowed to build upon the entire area of the plots in question being plots nos. 9 and 10 with a ground coverage of G 100% i.e. edge-to-edge, a structure with a minimum of five storeys including the ground floor for the purpose of installation of a printing press for publication of a Hindi newspaper. This permission was granted il\ response to the plana submitted by the Express Newspapers Pvt. Ltd. and approved in writing by the Chief Commissioner of Delhi acting for and on bahalf of the lessor i.e. the Union of India. Such plana as H