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

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 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

424 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.

A approved permitted construction by the Express Newspapers Pvt. Ltd. of a building on the entire area of plots nos. 9 and 10 with 100% ground coverage in conformity with the said agreement. Pursuant thereto, the Express Newspapers Pvt. Ltd. constructed the old Express Building to the east of the sewer line with an B FAR of 260 with reference to the entire plot leased to it i.e. plots nos. 9 and 10 although the building occupied only half of the area. After completion of the old Express Building to the east of the sewer line on March 14, 1958, the perpetual lease was executed on March 17, 1958, as already stated. The aforesaid supplemental lease was also executed on November l, 1964 permitting change of user i.e. enabling the Express Newspapers C Pvt. Ltd. to sublet two-third of the accOUJmOdation available with it.

At no stage did the Central Government go back upon their solemn comnibnent embodied in the agreement of lease dated May 26, 1954 under which the Express Newspapers Pvt. Ltd. was entitled to construct a four storeyed Express Buildil18 on the entire area of plots nos. 9 and 10. They continued to recognize the right of the Express Newspapers Pvt. Ltd. to revert to the terms and conditions thereof as soon as the obstacle to further construction thereto that had been discovered, unknown to the parties that there was an underground sewage drain running through plots nos. 9 and 10 diagonally, was removed. In E particular, they continued to recognize the right of the petitioners to build on the land kept as open space to the west of the sewer line, once the drain was diverted. This would be evident from the two facts :

l. The Union of India being the lessor left with the F Express Newspapers Pvt. Ltd. the area to the west of the drain on a reduced premium because it had to be kept as an open space for protection of the drain. And

2. While nazul plots that are to be left open are valued at Rs • 4840 per acre and ground rent is assessed accordingly, the area to the west of the drain was assessed at Rs. 36,000 per acre implying thereby that it was not an area to be kept vacant in perpetuity.

Constitutional Instruments relating to property of the Union in the Union Territory of Delhi.

EXPRESS Nll'WSPAPERS v. U.O.I. [A.P. SEN, J.] 425

A On November 3, 1958 the President of India in exercise of his powers conferred by cl.2 of Arr.. 77 of the Constitution issued the Authentication (Orders and Other Instruments) Rules, 1958 relating to, and dealing with, the conduct of business of the Government of India. In terms of the said Rules all Secretaries of the Ministries concerned were authorized to authenticate B documents on bahalf of the government of India. On November 6, 1959 all functions relating to administration of leases of Government lands in Delhi were. transferred .from the Chief Conmissioner of Delhi (Local Self Government) to the Ministry of Works & Housing. On Janwn-y 18, 1961 the President in exercise of the powers under Az t. 77(3) of the Constitution made the c Government of India (Allocation of Bµsiness) Rules, 1961. Rule 2 provided that the business of the Government of India shall be transacted in the Ministries, Departments, Secretaries and Offices specified in the First Schedule to the Rules. Rule 3 laid down that the distribution of subjects among the departments shall be as specified in the Second Schedule. Rule 4 enjoined D that the President may on the advice of the Prime Minister allocate the business of the Government of India among Ministers by assigning one or more departments to the charge of a Minister. The Minis try of Works, Housing and Supply is specified in the First Schedule at serial no .19. Under the Second Schedule, the distribution of subjects in the Ministry of Works, Housing and E Supply is allocated. Entries 1, 6 and 23 (a) and (1) come under the Ministry of Works, Housing and Supply and read as under :

"l. Property of the Union (not being railway, naval, mill tary or air force works or being the property of the Department of Atomic Energy) except (i) butldings, the construction of which has been financed otherwise F than from the civil works budget and (ii) buildings, the control of which has at the time of construction or subsequently, been permanently made over by the Ministry of Works, Housing and Supply to another Ministry." G "6, Allotment of Government lands in Delhi,"

"23. Administration of the Ministry and attached and subordinate organisations, namely :-

(a) Central Public Works Department; H ** ** ** ** ** (1) Land & Development Office."

426 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.

A In terms of the aforesaid Entries 1, 6 and 23 (a) and (1), all matters relating to the properties of the Union including allocation of Government lands in Delhi and the administration of the Land & Development Office were exclusively vested in the Ministry of Works, Housing and Supply, later the Ministry of Works & Housing. B Under Art. 299(1) of the constitution, the President issued a notification No. GSR 585 dated February 1, 1966 supersession of the earlier notification no. 1161 dated December l, 1958. The Land & Development Officer under Entry XXI, Item 7 was authorized to execute contracts assurance of property relating to matters falling within the jurisdiction of the Land &Development Office. c The relevant Entry reads :

"7. Iu the case of Land &Development Office

(i) All contracts and assurances of property relating to matters falling within the jurisdiction of Land & Development Officer; u (ii) all contracts, deads and other instruments relating to or for the purpose of enforcement of the terms and conditions of the sale/ lease-deeds of the Government Built Property in Delhi/New Delhi; j

E (iii) auctioneering agreements, bonds of auctioneers and security bonds for the due performance of works by the auctioneers."

However, by an overriding provisions contained in Entry XII, it was laid down thst 'notwithstanding the previous authorizations, any contract or assurance of property relating to any matter whatsoever may be executed by the Secretary, Special Secretary, Additional Secretary, Joint Secretary or Deputy Secretary to the Central Government in the appropriate Ministry or Deparbnent'. In terms .of the allocation of Business Rules of the Government of India, the Minis try of Works & !lousing was the appropriate authority for dealing with matters relating to lease of Government lands and in terms of the aforesaid notification no. GSR 585 issued under Art.299(1), the Secretary, Additional Secretary, Joint Secretary, Deputy Secretary and Under Secretary in the Ministry of Works & Housing were authorized to execute such contracts in the name of the President of India. It cannot therefore be doubted thst the Ministry of Works & !lousing with

EXPRESS NEWSPAPERS v. u.o.r. [A.P. SEN, J.] 427

the Minister at the head was and is the ultimate authority responaible for the following items of work, viz. "Property of the Union, Town & Country Planning, Delhi Development Authority, Master Plan of Delhi, Administration of Delhi Development Act, 1957, the Land & Development Office dealing with administration of nazul lands in the Union Territory of Delhi". B The Ministry of Works & Housing was and also is the ultimate authority in respect of the powers, functions and duties of the Delhi Development Authority as well as the Municipal corporation of Delhi, including that of the Delhi Water Supply and Sewage Disposal Committee of the Municipal Corporation of Delhi •• c Statutory changes subsequently brought about in Delhi·

It is common ground that the Delhi Development Act, 1957 is the paramount law on the subject viz. implementation of the Master Plan, Zonal Development Plan and Building Regulations, and D overrides the Delhi Municipal Corporation Act, 1957. The Delhi Development Act came into force on December 30, 19.57. The provisions of the Delhi Municipal Corporation Act were brought into force on different dates. S. 2 which is the definition clause, Chapter 11 relating the constitution of the Corporation and some other provisions were brought into force w.e.f. January E 2, 1958, s. 512 on February 15, 1958 and the remaining provisions including Chapter XIV relating to building regulations were brought into force on April 7, 1958 •. On September 10, 1962 the Central Government approved the Master Plan for Delhi, prepared by the Delhi Development Authority under s. 7 of the Delhi Development ACt. The Master Plan makes specific regulations for comnercial areas and especially for already built-up comnercial F areas i.e. walled city of Old Delhi. But the press area on the Mathura Road Comnercial Complex although specified as a commercial area is not Us ted in the list of already built-up comnercial areas which relate to the walled city of Old Delhi. On November 26, 1956 the Central Government approved the Zonal Development Plan for D-11 area prepared by the Delhi Development c; Authority under s.8 of the Act within which the press plots are located. It provided for an FAR of 400 for the press area in the Bahadurshah Zafar Marg.

The material on record discloses that the construction of the new I>xpress Building with an incresed FAR of 360 with a H

428 SUPREME COUR:r REPORTS (1985] SUPP.3 s.c.R. A double basement was in conformity with els. 2(5) and 2(i4) of the perpetual lease-deed dated March 17, 1958 inasmuch as it was with the express sanction of the lessor i.e. the Union of India. It is also quite clear that Sikander Bakht, the then Minister for Works & Housing was th1.rughout guided by the officials of the Ministry II particularly the Secretary, Ministry of Works & !lousing, who was the competent authority to act for the President with regard to any contract, grant or assurance of property of the Union relating to any manner whatsoever in relation thereto by virtue of the notification issued by the President under Art. 299(1) and further that the grant of such parmission was after the matter bad been dealt with at all levels and was in conformity with the orders of the then Vice-<:bairman, Delhi Developnent AUthority dated October 21, 1978 as one under 'special appeal'.

After the formation of th" Janata Government at the Centre on March 22, 1977 the Express Newspapers Pvt. Ltd. moved for the reiooval of the legal impedim2Ilt for the construction of the Express Building to the west of the sewer line first by moving the Municipal Corporation of Delhi for shifting of the sewer line outside plots nos. 9 and 10 and secondly, by moving the lessor i.e. the Union of India, Ministry of Works &Housing for grant of r-,quisite sanction to construct the new Express Building with an FAR of 400. On October 7, 1977 it wrote a letter to the Chief Engineer, Delhi Water Supply & Sewage Disposal Undertaking, ~ E Municipal Corporation of Delhi to inquire whether it was possible to realign the underground sewer line so that it would run outside their premises and were duly informed that the sewer line could be so shifted. Aecordingly on October 25, 1977 the Express Newspapers Pvt. Ltd. addressed a letter to the Secretary, Ministry of Works & Housing saying that additional construction on the western portion of plots nos. 9 and 10 leased out was possible after the sewer line shifted and that they were in need of a larger amount of because they wanted to start a Hindi news- paper and were also in need of an additional basement where the printing press would be located. It was pointed out that because of the underground sewer line running across these plots, no construction could be undertaken above the sewer line as they had to leave a safety distance of 25ft. parallel to the same and thus the built-up area available to them was almost reduced to half i.e. 2963 sq. yards while other presses in the area like the Times of India, National Herald, Patriot etc. were able to build over the entire extent of their respective plots. It accordingly requested the lessor i.e. the Union of India, Ministry of Works & Housing for permission to construct on the open space aclmeasuring

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 429

2740 sq.yards on the western side of plots nos. 9 and 10 indicat- A ing the permissible built-up area as also the terms on which the additional space could be so utilized. A copy of the letter was marked to the Land & De•elopment Office, Ministry of Works ~ Housing. On November 3, 1977 the Secretary instructed the Joint Secretary to call a representative of the Express Newspapers Pvt. Ltd. and the Land & Development Officer and evolve a B solution. The Joint Secretary (Delhi Division) directed the Under Secretary (Land Division) to do the needful, Incidentally, the Ministry has two separate divisions, the Delhi Division and the Land Division, both working under the control of the Joint Secretary (Delhi Division). Delhi Division deals with matters pertaining to the Delhi Development Authority and Urban Develop- C ment while the Land Division deals with matters relating tc> allotment of government lands and administration of lease. It follows that the Delhi Division was competent to deal with matters relating to construction of the new Express Building including the pennissible FAR and the grant of permission to the lessor under the lease and the question of payment of additional premium etc. had to be dealt with by the Delhi Division.

Accordingly, on November 14, 1977, R.K. Mishra, General Manager and authorized representative of Express Newspapers Pvt. Ltd. waited on the Under Secretary, (Land Division), Ministry ·Of Works & Housing and was verbally informed that the requisite permission of the lessor could be sought after the building plans were approved by the Municipal Corporation of Delhi and it was then that they should seek the approval of the lessor and at that time the Ministry would intimate what additional premium, i f any, was payable. The Under Secretary also recorded a note to that effect. Thereafter on December 7, 1977 petitioner no.3 Ram Nath Goenka addressed a letter to Sikandar Bakht, the then Minister F for Works & Housing drawing his attention to the aforesaid meeting where the representative of Express Newspapers Pvt. Ltd. had been intimated that they should first submit their building plans to the Municipal Corporation of Delhi and thereafter seek permission of the lessor which would advise them of the amount of premium payable for the change of user. He requested the Minister G to issue necessary instructions directing that the plots in the press area should be treated as commercial complex which entitled the plot-holders to build over the entire area of the respective plots subject to the restriction of a height of 60 ft. as stipulated in 1951 without any restriction as to the area of various floors. There followed a meeting in the Ministry of Works & Housing on December 20, 1977 when the General Manager of Indian B

430 SUPREME COURT REPORTS [1985] sUPP.3 s.c.&.

A Express and an official of the Delhi Development Authority were present and the extent of FAR permissible was specifically discussed. This was followed by a letter of the General Manager dsted December 23, 1977 to the Secretary, Ministry of Works & Housing iµ which he referred to the meeting where it was felt that although the press area was not expressly mentioned in the B Master Plan, it would still fall under the general description of 'other comnercial areas' where only an FAR of 300 was permissible and that it would be so despite the fact that no such limitation existed when the press complex was established. He referred to the letter of Ram Nath Goenka dsted December 7, 1977 to the Minister wherein permission to build on the entire area of the plots in question was sought. A copy of the letter was endorsed to the Minister. On December 30, 1977 the Chief c Engineer, Delhi Water Supply & Sewage Disposal Undertaking wrote a letter to R.K. Mishra, General Manager, Indian Express stating . that it would cost Rs. 2.5 lakhs to divert the sewer line and that the completion of work would take about five months after the deposit was made. This was in reply to the letter sent by Express Newspapers Pvt. Ltd. on October 12, 1977. Accordingly, the Express Newspapers Pvt. Ltd. on December 31, 1977 wrote to the D Deputy Secretary, Ministry of Worl-.s & Housing that the limicipal Corporation of Delhi i.e. the Delhi. Water Supply & Sewage Disposal Undertaking had indicated that the undergro"und drain could be shifted so that it would run outside the lease hold premises and therefore there should be no objection to the cons true tion of the new Express Building, and requested the E Ministry for advice on the FAR permissible for the said building.

According to the note recorded by the Minister on the margin of the letter of petitioner no.3 Ram Nath Goenka dated December 7, 1977, instructions were to be issued to the Delhi Developnent Authority to examine the question. On January 7, 1977 F J.B.D'Souza, Secretary, Ministry of Works & Housing recorded a detailed note and put it up to the Minister. It appears that he discussed the case with the Minister on the 7th and explained to him that the Express Newspapers Pvt. Ltd. had already used up an FAR of 260 with reference to their leasehold premises i.e. plots nos. 9 and 10 although they had occupied about half of the land G with their building. It was recorded in the note that the assertion that others in the press area had an FAR of 500 was not factually correct. Maxinrum FAR for all the press plots was 300 and below except in the case of Times of India where it was 304 and the National Herald where it was 306. 3. According to him, the effect of allowing the petitioners to erect similar building on H

EXPRESS NEWSPAPERS v. u.o.I. [A.P. SEN, J.] 431

A the other half would mean a rise of FAR from 300 to 400. Perhaps an increase from 260 to 360 should be permitted if the need for starting a newspaper in Hindi was really genuine. The portion to the west of the sewer line was kept as open and was being used for parking of cars, and these would have to be parked out on the road, apart from the extra parking need that the additional B construction would give rise to. The Minister asked the Secretary to discuss the matter with Petitioner no.3 Ram Nath Goenka and arrive at a suitable solution. As a result, the Secretary noted as below :

"I find it difficult to recommend the FAR requested by C Shri Goenka, as this will inevitably lead to requests from"other plot-holders, including the Times of India, to use up their entire· land area for building upto 60 feet, which will mean in effect a rise of FAR from 300 to 400. The effect on parking and other requirements may not be acceptable. D

At the same time it is undeniable that Shri Goenka is unable to retrieve from his tenants a considerable part of his existing building, and i f his needs of starting a newspaper are really genuine~ some considerable concession will be needed. Perhaps an E increase from 260 to 360 should be permitted; with the extra .basement area the firm will build this should r give i t nearly 50,000 extra sq.feet of area."

On January 18, 1978, the Minister for Works & Housing concurred with the views of the Secretary and ordered as below: F "I agree. In the circumstances stated, 'A' above is the farthest we should accommodate. May process further accordingly."

The Ministry of Works & Housing by letter dated February 2, 1978 conveyed to the Vice-Chairman, Delhi Development Authority the decision of the Union of India to permit the petitioners to build with an FAR of 360 as below

"It has been decided that FAR in this case may be increased up to 360 so that with the extra basement area the firm would have an additional built-up area of nearly 50,000 sq.feet. You are requested to take H necessary actio~ in the matter."

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

A Copies of this letter were endorsed to the Town & Country Planning Organisation and Officer Inchrage, Master Plan in the Delhi Development Authority. The Additional Secretary, (Master Plan), Delhi Development Authority however maintained that the FAK permissible for the press area was only 300 with 80% ground coverage, 70~ on the first floor and 50 % on the second, third B and fourth floors.

Another letter dated March 6, 1978 was addressed by petitioner no.3, Ram Nath Goenka, to the Minister in which he reiterated the earlier request made by him for allowing the •petitioners to build on 100% of the plinth area, only with the height restriction of 60 feet. It stated that the Minister had c informed him that an order allowing the petitioners to build upto an FAR of 360 had already been passed and further construction beyond it would be sanctioned later.

lnmediately thereafter the Ministry of Works & Housing took a decision adverse to the Express Newspapers Pvt. Ltd. On April 15, 1978, P.B. Rai, TCP.:.II put up a note objecting to the D Government decision to increase the FAR to 360 on the ground that it was in total contravention of the Master Plan and would have serious implications. It is a long note, relevant part of which may be extracted :

"As per Master Plan, FAR 300 in commercial areas does E not exist for any area in Delhi whatsoever."

He further stated that such a decision to permit construction upto an. FAR of 360 would not be implemented by the Municipal Corporation of Delhi as their existing bye-laws and rules permitted construction upto 300 only and added that the rules and bye-laws should not be modified for one particular case or building or for one particular commercial area.

Upon the receipt of the TCP-II 's note, the Joint Secretary (Delhi Division) on May 6, 1978 directed the Deputy Secretary to put up a clear note for obtaining the orders of the Secretary G Ministry of Works & Housing and the Minister because the petitioners wanted to build the 100% coverage, while the TCP-II's note showed that the permissible FAR was 300. Accordingly, the Under Secretary put up a detailed note on May 8, 1978 explaining the various view points, bye-laws etc. and recommended reduction of FAR to 300. On the same day, the Deputy Secretary marked the H file to the Joint Secretary. On May 18, 1978, the Joint

EXPRESS NEWSPAPE).{S v. U.o.I. [A.P. SEN, J.] 433

A Secretary, (Delhi Division) pointed out that the petitioners were not happy with FAR 360 against their original demand of 500 and they now wanted FAR 430.67 while the maximum FAR permissible was 300 as pointed out by the Secretary (Master Plan), Delhi Development Authority. He therefore recommended restriction of the FAR to 300 as per the bye-laws of the Municipal Corporation B of Delhi and the Secretary endorsed the said recommendation. Therefore, the Minister approved of the restriction of the FAR to 300.

On May 19, 1978, M.N. Buch, Vice-Chairman,' Delhi Development Authority wrote to the Joint Secretary, Ministry of Works & Housing stating that the Government's decision of FAR 360 was c "totally unacceptable and added that 'making of exceptions of this nature was precisely the stick with which the Delhi Development Authority was beaten' for its own office building i.e. Vikas Minar which far exceeded FAR 400 and was in breach of all buHding bye-laws. He accordingly suggested that FAR 300 might be D permitted with the condition that necessary parking facilities would have to be provided. On May 24, 1978, the Deputy Secretary recorded a note directing that further action to implement the said decision of the Minister to restrict the FAR to 300 may be taken by the Land & Development Officer. On June 9, 1978, the Deputy Secretary, Delhi Development Authority informed the E Vice-Ghairman of the decision of the government restricting the FAR to 300.

It appears that the case was revived on July 14, 1978 when Sikandar llakht, Minister for Worka & Housing wanted to know after some representative of Express Newspapers Pvt. Ltd. had visited his office, if the press ares and the FAR therefor were mentioned F in the Master Plan and whether or not the FAR achieved for the Express Buildings was 500, it would not operate for fresh construction in the press area for which the FAR was not to exceed 300. A meeting was fixed to discuss the matter in the room of the Minister on August 18, 1978 and the following note was recorded by D'Souza, Secretary in the Ministry of Works & Housing G regarding the discussions :

"The JS(D), the Vice-Chairman, DOA and I met the Minister today and explained the undesirability of allowing the Indian Express Higher FAR than already proposed in this case, particularly the repercussions it would have on the othe.r occupants of plots on this roacl. The Vice-Chairman suggested

434 SUPREMI:: COURT REPORTS [1985] SUPP.3 s.c.R.

A another possibility, namely, allotting to the Indian Express some other land where it could put up a building. The Vice-Chairman said he would get in touch with Shri Goeiika and put this proposition to him."

The Minister agreed with the Vice-Chairman's, suggestions." B On October 21, 1978, M.N. Buch, Vice-Chairman, Delhi Development Authority took the following decisions :

"(a) to amalgamate plots nos. 9 and 10 and taking into account the existing built-up area would permit on FAr of 360 overall; c (b) to allow the residual area of plots nos. 9 and 10 to be built. in line with the Times of India and Shama building;

(c) to exclude the basement from the calculations of the FAR provided the basements are not used for office D purposes;

(d) to permit parking on the service road in the same manner as it was for the other buildings in this line, adequate parking facilities would also have to be provided in the set back of approximately half portion of the line which has been suggested by the Express Newspapers Pvt. Ltd. in the drawings."

He further directed that the aforesaid order was to be treated as one under special appeal. He accordingly gave instruc- tions for issuing 'no objection' to the Express authorities for F construction on the residual area and to make a reference to the Government of India asking for confirmation of the action propo"sed. The Vice-Chairman in his order mentioned that the Minister for Works & Housing had ordered that the cases should be cleared immediately and his ex post facto sanction obtained by the Delhi Development Authority. - - - -

On November 4, 1978, R.D. Gohar, Joint Director (Buildings), Uelhi Development Authority addressed a letter to the petitioners to the effect :

"The plans submitted by you have been examined. I am ti directed to inform you that there is no objection to

<:Xl'KESS NEWSPAPE!{l) v. u.o.r. [A.P. SEN, .J.j 435

amalgamation of plots nos. 9 and 10 and allowing an overall FAR of 3.6 taking into account the existing A FAR. In that case the existing building line of the adjoining plots shall have to be maintained. The basemen< has been excluded from the calculation of the FAR and the installation of Press Machinery like any other service machinery is permitted. The parking on the service road is permitted in the same manner as it 'B is for other buildings in this lirte. However, adequate parking facility shall have to be provided in the open area which may be so planned to make usable for parking purposes."

On the detailed examination of the lay-out plan, he observed that as per FAR of 360 construction was permitted on 1,84,886.07 sq.feet as against the existing FAR covering an area of 1,29,028 sq.feet i.e. the overall ground coverage now permitted was 13.81% i.e. 37904.92 sq. feet. The petitioners were directed to submit the plans to the concerned authorities for approval. A set of plans as submitted by the petitioners and examined 'as per norms' D was enclosed. On November 17, 1978, the Vice-Chairman, Delhi . Development Authority addressed a letter to the Ministry of Works & Housing reconnnending extension of FAR from 300 to 360.

On November 24, 1978 the Government of India, Ministry of Works & Housirig addressed the following letter to the E Vice-Chairman, Delhi Development Authority

"No .K-12016/Z/78-DDA Government of India. Ministry of Works & Housing (Nirman Aur k."BB Mantralya) r' New Delhi, the 24th November, 1978.

The Vice-chairman. Delhi Development Authority, G Vikas·Minar, New Delhi.

Sub: Plots nos. 9 and 10, llahadurshah Zafar Marg, New Delhi.- Request for additional Coverage.

436 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.

A Sir,

With reference to your D.O. Letter No. PA/VC/78/874 dated 17.11.78 and in supersession of this Ministry's letter of even number dated 9.6.1978, I am directed to say th;lt, as proposed by you, the Express Newspapers Pvt. Ltd. may be allowed to construct ll on the residual plot on the basis of an FAR 360 for the whole plots.

Yours faithfully,

sd/- (V.S. Katara) Joint Secretary to the c Government of India.

Copies of the letter were endorsed to the Coumissioner, Municipal Corporation of Delhi, Land & Development Office, Town & Country Planning Organisation and Express Newspapers Pvt. Ltd. This was followed by a clarificatory letter from the Ministry of Works & Housing to the Vice-Chairman dated December 1, 1978 that the FAR 360 allowed excludes the entire area of basement as per the provisions of the Master Plan.

The permission granted by the lessor i.e. the Union of India, Ministry of Works & Housing for the construction of new Express Building with an increased FAR of 360 as accorded by Sikandar Bakht, the then Minister for Works & Housing was acted upon by the petitioners by cons true ting the four-s toreyed new Express Building by the end of February, 1980. As already stated, this was done with the sanction of the Delhi Development Authority and the Municipal Corporation of Delhi.

Pleadings of the Parties

r. Petitioners' Case

In the facts and circumstances hereinbefore adumbrated, the petitioners pleaded inter alia that : G

1Copy pinpoint1. The proposed action of re-entry by the lessor i.e. the Union of India, Ministry of Works & Housing at the instance of the Lieutenant Governor of Delhi is meant to be a.n act of political vendetta. The impugned notices have been issued with an evil eye and an H unequal hand and with a deliberate design to compel

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 437

A the 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 the factual and legal provisions. The arbitrary and discriminatory initiation of executive action under the guise of B alleged infraction of the terms of the lease and/or the Master Plan of Delhi and/or the municipal building bye-laws is violative of the petitioners' fundamental rights under Arts. 14, 19(1)(a) and 19(1)(g) of the Constitution. c

2Copy pinpoint2. The construction of the new Express Building with an increased FAR of 360 was in conformity with clause 2(5) of the perpetual lease dated March 17, 1958 inasmuch as it was with the express sanction of the lessor i.e. the Union of India. The grant of permission by Sikandar Bakht, the then Minister for D Works & !lousing to sanction the construction of the new Express Building with an increased FAR of 360 was in accordance with the Master Plan, after M.N. Buch, Vice-Chairman, Delhi Development Authority by his order dated October 21, 1978 as "one under special appeal" under the Master Plan, Chapter 11, Part A, E Zoning Regulations, Item 13, Use Zone - C-2, at p.50 directed that plots nos. 9 and 10 at Bahadurshah Zafar Marg leased to the Express Newspapers Pvt. Ltd. should be 'amalgamated together into one plot and taking into account the existing buHt-up area occupied by the old Express Building built on the eastern portion of the underground sewage drain with an FAR of 260, the F construction of the new Express ·Building on the western portion thereof after removal of the sewer line with an overall FAR of 360 was permissible'.

2. The then Minister for Works & Housing was throughout guided by the officials of the Ministry, G particularly the Secretary, Ministry of Works & !lousing, who was the compet~nt authority to act for the President with regard to any contract, grant or assurance of property of the Union relating to any matter whatsoever in relation thereto by virtue of the notification issued by the President under Art. 299(1). In terms of the Government of India H (Allocation of Business) Rules, 1961 as well as und~r

438 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.

A the aforesaid notification under Art.299(1), the Ministry of Works & Housing with the Minister at the head was and is the ultimate authority responsible to deal with the property of the Union and to enter into all contractual obligations in relation thereto. The Minister had not only full authority, power and B jurisdiction to grant permission to the petitioners to construct the new Express Building with an increased FAR of 360 with a double basement for the installation of the printing press, but the action taken by the then government was in good faith. after taking into consideration all the circumstances attendant at all levels. c

3Copy pinpoint3. After the shifting of the underground sewer line outside the leasehold premises at the cost of the petitioners to the tune of Rs. 6 lakhs and on payment of the supervision charges to the Municipal Corporation amounting to Rs. 25,000, there could be no objection to the construction of the new Express D lluilding with an increased FAR of 360 as it allowed the residual area of plots nos. 9 and 10 to be built in line with the Times of India, National Herald, Patriot and other buildings along the Bahadurshah Zafar Marg. At the time of the grant of plots nos. 9 and 10 to the Express Newspapers Pvt. Ltd., there were no restrictions as to the FAR in the construction of buildings along the Bahadurshsh Zafar Marg. Further, that the Master Plan for Delhi subsequently approved by the Central Government in the year 1962 does not mention the press area on the Bahadurshah Zafar Marg comprising of the press enclave. Although specified as F a coumercial area, it is not listed in the list of "already built-up commercial areas" because it relates to the walled city of Old Delhi. The zonal development plan for D-II area within which the press plots are located permitted an FAR of 400 Jor the press area in the Bahadurshah Zafar Marg. In short, the submission is .that all that the then Minister for Works & Housing did was to restore to the petitioners the right that they acquired under the perpetual lease dated March 17, 1958 i.e. to be treated alike all other plot holders in that area and a denial of such equal terms would be opposed to the principles of equality besides being violative of Art. 14 of the Constitution.

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 439

4Copy pinpoint4. The lessor i.e. the Union of India is estopped by the doctrine of promissory estoppel. and cannot therefore go back upon all assurances given and actions taken by the previous government, particularly when the petitioners had acted upon the decisions so reached and had constructed the new Express Building with a cost of approximately Rs.1.30 crore by February B 1980 which at present would cost more than Rs. 3 crores. In substance, the petitioners contend that where permission of the lessor i.e. the Union of India has been granted in relation to any property of the Union under a lease by the authority competent i.e. the Ministry of Works & Housing, it is not competent for the successor government to treat such permission c as being non est and to proceed as if no such permission or-sanction had been granted.

5Copy pinpoint5. The impugned notice issued by the Zonal Engineer (Building), City Zone, Municipal Corporation of Delhi D dated March 1, 1980 upon the Express Newspapers Pvt. Ltd. to show cause why the Express Buildings should not be demolished under as. 343 and 344 of the Delhi Municipal Corporation Act, 1957 was illegal and ineffective inasmuch as the construction of the sald 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 thereunder. The threat to demolish the second basement especially when similar double basement/platform exists in other newspaper buildings in the press area such aq the Times of India, National Herald, Patriot etc. along the Bahadurshah Zafar Marg was violative of Arts. 14 and 19(1)(a) of the Constitution. The denial of the respondents to allow such a double basement to be constructed by the Express Newspapers Pvt. Ltd. in the new Express Building clearly infringes the petitioners' right to free speech and expression guaranteed under krt. 19(1)(a) which includes the freedom of the press as otherwise the printing apparatus installed in the lower basement would be rendered incapable of operation and is. therefore a ~qua ~ for the printing and publication of the Indian Express.

6Copy pinpoint6. The erection of the double basement or a working platform in a printing press like the Express

440 SUPl®IE COURT REPORTS [1985] SUPP.3 s.c.R.

A Newspapers Pvt. Ltd. is s compoundable deviation from the sanctioned plan and the insistence of the Municipal Corporation of Delhi to demolish the same suffers from the vice of hostile discrimination. Even assuming that the llllilicipal bye-laws do not permit the construction of a double basement in the press area B along the Bahadurshah Zafar Marg, such bye-laws would 8IJl)unt to an unreasonable restriction on the right to carry on the business of printing and publishing the newspaper and thus offends Art. 19(l)(g) of the Constitut;l.on.

7Copy pinpoint7. Respondent No.2 Jagioohsn, Lieutenant-Governor of c Delhi, cannot usurp the functions of the Union of India in relation to the property of the Union in the Union Territory of Delhi, and that the Lieutenant Governor ia not a successor of the Chief Comnissioner of Delhi. There wss no notification issued by the. President under Art. 239(1) of the Constitution for the conferral of any power on the Lieutenant-Governor I) to adioinister the lease in question. No doubt, by virtue of the notification issued by the President on September 7, 1966 under Art. 239(1), the Lieutenant- Governor has, subject to the like control by the President, the same powers and functions as well as exercisable by the Chief cOIIlllissioner with power to E administer the property of the union. There is, admittedly, no such notification issued by the President under Art. 239(1) vesting either the Chief Comnissioner of Delhi or the Lieutenant-Governor with sny such power.•

8Copy pinpoint8. In sny event, i t is inconceivable that after October 1, 1959 when the administrative control over the Land & Development Officer was transferred from the llelhJ. Administration to the Ministry of Works & Housing and by virtue of a notification issued under Art. 299(1), the Secretary, Ministry of Works & Housing was made the competent autl\ority to act for the President with regard to any contract, grant or assurance of property of the Union, the Lieutenant- Governor could still arrogate to himself the powers of the Union of India, Minis try of Works & Housing in re la tion to the lease. H

EXPRESS NEWSPAPERS v. u.o.I. [A.P. SEN, J.] 441

9Copy pinpoint9. It is alleged that respondent no. 2 Jagmohau is actuated with personal bias against the Indian Express and had filed a criminal complaint against the Chief Editor of the Indian Express and some of the officers of the Express Group of Newspapers for having published an article in the Indian Express in April 1977 with regard to his role during the period of B Fmergency in Turkman Gate demolitions. The Express Group of Newspapers, particularly the Indian Express, had during the period of Fmergency and imnedia tely thereafter openly criticized the high handed actions of respondent no.2 Jagmohan who was the then Vice- Chairman of the Delhi Development Authority for which c he was later indicated by the Shah Comnission of Inquiry.

10Copy pinpoint10. The Express Newspapers Pvt. Ltd. contend that they having approached the Central Government for exercise of its powers under s.41 of the Delhi Development Act, u 1954 for the issue of necessary directions as regards the permission to build the new Express Building with an increased FAR of 360 with a double basement for the installation of the printing press which became necessary due to want of any provision in that behalf in the Master Plan and the Zonal Development Plan in E

I regard to the press enclave and the Central Government having issued directions under the relevant provi- sions, in terms of s. 53(3A) of the Act, the sanction of the plan by the Delhi Development Authority by its letter November 4, 1978 pursuant to such directions and its authentication of the building plans approvii:g the portions objected to by the Municipal Corporation, F Delhi, overrides and makes irrelevant any other sanction granted by the Municipal Corporation subject to any qualification.

11Copy pinpoint11. The impugned notice issued by the Zonal Engineer (Building), City Zone, Municipal Corporation of Delhi G dated March 1, 1980 was illegal and void as he did not apply his mind at all to the question at issue but merely issued the same at the instance of respondent no.2. Further, the impugned notice issued by th~ Engineer Officer, Land & Development Office dated March 10, 1980 purporting to act on bahalf of the lessor i.e. the Union of India was factually and H

442 SUPl\EME COURT REPORTS [1985] SUPP.3 s.c.R.

A legally not a notice of re-entry upon forfeiture of the lease as contemplated by els. 5 and 6 of the lease-deed, based as it was on non-existent ground. Although the lease-deed permits remedy of any breach of any of the terms thereof, the opportunity to effect such a remedy has not been, and as indeed it is clear, it is not intended to be, granted to the petitioners and instead, there is a threat of re-entry upon the leasehold premises upon forfeiture of the lease.

n. Bespondents Case

l. Respondent No.2·Jagmohan, Lt. Governor of Delhi c filed a counter on behalf of all the respondents asserting that the perpetual lease-deed dated March 18, 1958 was executed on behalf of the lessor by the Assistant Secretary to the Department of Local Self Government 'under the administrative control of the Chief Comnissioner/Lt. Governor of Delhi'; that the demise land is nazul land vested in the President of lJ India, for the management, control and disposal of which the Land &Development Officer in the Department of Local Self Government, was created; and that as a matter of fiscal policy, the administrative control of the Land & Development Office, New Delhi was transferred from the Delhi Administration to the E Ministry of Works, Housing and Supply w.e.f. October 1, 1959. It was asserted that this transfer was 'purely on fiscal grounds' and did not divest the Chief Commissioner/Lt. Governor of his contractual powers, ~iven to him by the parties to the lease-deed, as the representative of the President of India and F the Head of the Local Self Government. It was averred that according to cl.2(14) of the perpetual lease-deed the land to the west of the sewer line was to be kept as an "op~n space" i.e. as lawns, paths or parking grounds to the satisfaction of the Chief comnissioner and only the lessor or the Chief Commissioner had the right to interfere with the maintenance of this area and that too only for the purpose of laying a new sewer line along the existing one. According to cl.2(9) thereof, no excavation in the demise premises should be made without the written consent of the Chief Commissioner/Lt. Governor of Delhi. Admittedly, Ii

EXPRESS fil.'WSPAPERS v. u.o.r. [A.P. SEN, J.] 443

A no permission from the Chief Commissioner/Lt. Governor pursuant to els. 2(9) and 2(14) was obtained by the petitioners. It was further asserted that the sewer line, according to the terms of the lease, could not be diverted by the Municipal Corporation of Delhi at the cost of the petitioners without the consent of the B Chief Commissioner /Lt. Governor. The petitioners had no right under the lease to change the character of this land which was to be maintained and by suppression of material facts obtained permission to build thereon sanction of building plans from authorities which they knew, under the terms of the c lease was not permissible.

2. In refuting the allegations made by the petitioners that Engineer Officer, Land & Development Office had at the instigation of the Lt. Governor issued the impugned notice for forfeiture of the lease, respondent no.2 asserted that he had not ordered the issuance of the notice in question and that the Land & Development Officer was an authority independent of the administrative control and supervision of .the Lt. Governor. It was asserted that the impugned show cause notices were issued by authorities ·which are independent of the authority of Lt. Governor or by autonomus local bodies. It was asserted The impugned >how cause notice by respondent no.5, the Engineer Officer, Land & Development Office was issued only after he came to know through Press Reports of certain serious violations of the lease-deed by the petitioners. The show cause notice by respondent no.; F was issued in exercise of powers under cl.4 of the perpetual lease-deed dated March 17, 1958 for violation of els. 2(5), 2(9) etc. As regards the impugned show cause notice issued by the Zonal Engineer (Building), City Zone, Municipal Corporation of Delhi, it was ·asserted that the same had been G issued by the Municipal Corporation of Delhi in exercise of its statutory powers under ss. 343 and 344 of the Delhi Municipal Corporation Act after verification of the allegations.

3. Respondent no.2 has sought to disown all responsibility for the issuances of two impugned show I! cause notices but asserted that being the Lt. Governor of Delhi, he was responsible for the administration of

444 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.

A the Union Territory of Delhi and as such he was acting within his powers to direct all the authorities concerned to prevent violation of laws by any person or institution. He further asserted that he, as the Lt. Governor of Delhi, was fully competent to appoint B the Enquiry Coom1ttee under the Coom1ssion of Inquiry Act, 1952. It was denied that the Union of India or the Lt. Governor of Delhi intended to inflict a reprisal on the petitioners for the independent state of the newspapers they publish. It was added :

"The respondents while welcoming, creative and c constructive criticism of Government policies and actions only expect a minimum standard of decency and fairness from the Press."

4. It was alleged that the petitioners indulged in all sorts of "Distortions and fabrications in criticising the policies and actions of the Union of India and the D Lt. Governor" and despite all this, respondent no. 2 had taken an indulgent view of these delinquencies except when "he had to file a criminal complaint against Express Newspapers Pvt· Ltd." to uphold his self-respect and dignity", and some of the petitioners have been summoned to stand their trial by E a Court of competent jurisdiction. It is not disputed that respondent no.2 had filed a criminal complaint in Criminal Case No. Nil of 1979 in the Court of the Learned Metropolitan Magistrate, New Delhi against petitiooer no.4 for having coom1tted alleged offences punishable under ss. 500, and 501 of the Indian Penal F code, 1860 for having published a news item regarding the active role played by him in the demolition of houses near Turkman Gate in Delhi , which rendo>red thousands of persons destitutes and hom.,less which became the subject of an enquiry by the Shah Coomission during the Emergency. Respondent no.2 makes a special pleading of the demolition of the Turkman Gate operation during the Emergency by him as Vice- Chairman of the Delhi Development Authority which he styled as a clearance operation undertaken for the resettlement of the vast multitude of poor people. who were vie t1ms of exploitation at the hands of vested hands and compelled to live in sub-standard human living conditions of dirt and squalor stating that the

EXPRESS NEWSPAPERS v. u.o.r. [A.P. SEN, J.] 445

clearance operation was undertaken for improving the standard of living of the poor and their resettlement. While admitting that he had filed a criminal complaint against the Editors, Printers and Publishers of the Indian Express for defamation, he denies that the 0

respondents had any personal animosity towards the B Express Group of Newspapers and asserted that the criminal complaint for defamation was instituted because the Indian Express was guilty of fabricating and publishing false, motivated scandalous stories about respondent no.2 and others.

5, Respondent no. 2 controverted that the contractual c relations between the parties were governed by the lease agreement dated May 26, 1954 which was modified and superseded by the subsequent lease agreement dated November 19, 1957, since this had also been substituted by the registered perpetual lease dated March 17, 1958 which alone, according to him, governed the relationship effectively and legally between the Union of India and the Lt. Governor of Delhi on the one hand and the Express Newspapers Pvt. Ltd. on the other. It was denied that the Deputy Secretary, Ministry of Works & llousing, Government of India had any jurisdiction or authority to permit diversion of the sewer line as he was not authorized to represent the Central Government for the purpose of administration of the lease and, therefore, any attempt on the part of the Express Newspapers Pvt. Ltd. to rely upon the agr~ement of 1954 or on the subsequent agreement of 1957 to justify the action of the Municipal Corporation' of Delhi in shifting the sewer line beyond the leasehold premises was an exercise in futility. It was asserted that cl. 2(5) of the perpetual lease could not be availed of by the Express Newspapers Pvt. Ltd. in the absence of a permission granted by representative of the lessor, meaning .the Chief Commissioner/Lt. Governor or the Land & Development Officer and, therefore, the removal of the sewer line itself was illegal and did not create any right in the Express Newspapers Pvt. Ltd. to raise any construction on the land to the west of the old sewer line which was to be kept as "green". It was denied that by virtue of the transfer of functions relating to administration of leases executed on ll

446 SUPREl'iE COURT REPORTS [1985] SUPP.3 s.c.R.

A bahalf of the Union of India, the Chief Commissioner/ Lt. Governor was divested of all the powers conferred on him by the various clauses of the lease-deed. It was asserted that the transfer of the functions was only an administrative measure to achieve the B desired fiscal discipline in the matter of administra- tion of properties of the Union of India. Even after the transfer of functions to the Land & Development Officer, it was said that all lease agreements are being referred to the Lt. Governor of Delhi for exercise of powers conferred on him in the lease agreement. It is then said that c "It is also denied that the Ministry of Works & Housing, as such represents the lessor. It is the Land & Development Officer, the respondent no.5, who represents the lessor (President of India) for the execution of the leases and their administration under Art.299(1) of the Constitution. Statutory Bodies like the llu.'licipal Corporation of Delhi, the Delhi Development Authority, the Urban Arts Commission etc. had no power under the perpetual l:oase-deed of 1958 to vary or waive tre conditions of the lease."

Upon this basis, respondent no.2 asserted that the so-called permission obtained by the Express Newspapers Pvt. Ltd. from the Ministry of works & Rousing was void, illegal and without jurisdiction and, therefore, a nullity in law.

In para 79, it is averred F "With reference to para 27(b), it is denied that the Land & Development Officer is merely a functionary under the Ministry of Works & Reusing. Ile is, in fact, the officer appointed on bahalf of the lessor (President of India/The Chief Corunissioner of Delhi) G under the terms of the lease for the execution of management of the lease-deeds, it is submitted that the permission referred to by the petitioners was neither applied for and obtained nor granted under clause 2(5) of the lease-deed. The so-called permission, in any case, was not addressed to be H petitioners but to respondent no.6.·

EXPRESS Nl:.'WSPAl'ERS v. u.o.I. [A.P. SEN, J.] 447

6. After referring to the grant of permission by the A Ministry of Works & Housing and the Delhi Development Authority, respondent no.2 averred in para 89 :

"With reference to para 28(4) and (c) it is denied that the breach complained of was capable of remedy. As already stated, the so-called permission obtained B by the petitioners did not amount to any valid permission under the terms of the perpetual lease-deed dated March 18, 1958. It: is submitted that: the petitioners were bound to apply to the cowpetent authority and obtain prior approval of the lessor before coornenclng construction and the petitioners c knew who the cowpetent: autbority was. The petitioners did not make any appllcati<>n uoder any of the tetlllll of the lease-deed before cmmitting the breach of the lease-deed. -

(Emphasis supplied) D

The aforesaid averments clearly bring out the stand of respondent no.2 that he alone and not the Ministry of Works ~ Housing was competent to act on behalf of the lessor i.e. the Union of India and this is brought out in the averment which immediately follows: E

"It is further submitted that for any breach of clauses (3), (9) and (10) of clause 2 of the lease- deed, it was for the Chief Commissioner of Delhi to decide i f the breaches are remediable and the nature of the remedies required for the breach. If the breaches were net remediable to the satisfaction of the Chief Commissioner of Delhi, he could order removal or demolition of the construction complained of. Modification of the layout plan, conversion of the land use and violation of the FAR prescribed under the Master Plan and the Municipal Bye-laws are not remedi- able breaches." G

7. Respondent no.2 has specifically denied that the FAR for D-2 area which includes the Press Enclave is 400, and asserted that for built up areas which include partly built-up areas, the FAR under the Municipal Building Bye-laws is only 300. It was H

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

A then asserted thst the FAR for D-2 area being 300, according to the Municipal Building Bye-laws and the Master Plan for Delhi, the question of issue of direction by the Central Government under s.41 of the Delhi DevelojXDl!nt Act does not arise. Even then, it was said thst the Vice-Chairman of the Delhi II Development Authority (M.N. Buch), in view of this legal position expressed the view in his note dated October 21, 1978 that the case of the Express Newspapers Pvt. Ltd. should be treated as an isolated case to ·bring it at par and allow the FAR of 360 overall. Acco,:ding to him the reason for this as indicated in the note was thst the order of Shri c Sikander Bakht, Minister for Works & Housing "for imnediate clearance of the case and for obtaining his ex-post-facto sanction''.. Respondent No.2 denied that the letters referred to in para 30(h) and (i) of the petition could be construed as directions of the Central Government to the Delhi Development Authority under s. 41 of the Delhi Development Act. Instead of D being such a direction, the Annexure 21 was a clarification of letter dated November 25, 1978 stating thst FAR 360 was allowed excluding the basen.ent. Annexure 22 was said to be a sanction letter issued by respondent no.l on January 9, 1979 in respect of building plans submitted by the Express Newspapers Pvt. Ltd. before respondent no.3. Even Annexure 20 which is a letter dated November 24, 1978 from the Ministry of Works & Housing, it was said was not a permissipn under s. 41 of the Delhi Development Act as it gives the ex-post-facto sane tion of the proposal of the Delhi Development Authority permitting F FAR 360 for the Express Ne'wspapers Pvt. Ltd. It was then added :

"With reference to para 30(j), it is denied that the actions taken by the Ministry of Works & Housing and the Delhi Development Authority constituted a G restoration of the rights of the petitioners under the lease agreement of 1954, as the agreement of 1954 was inadmissible being non-existent and inoperative after its substitution by the agreement of 1957 as per perpetual lease-deed dated March 18, 1958, it was asserted that the petitioners could construct on the H residual area of plots nos. 9 and 10 only in

EXPRESS NEWSPAPERS V• u.o.r. [A.P. SEN, J.] 449

A accordance with the terms and conditiona of the lease-deed of 1958 and subject to the provisions of the Master Plan and the Municipal Bye-laws. It was asserted that the lease deed of 1958 envisaged compliance with the Municipal Bye-laws for any future conatructions/additions in plots nos. 9 and 10."

8. It will be seen that the points sought to' be made out by respondent no.2 in his counter-affidavit are :

(a) At present the perpetual lease-deed dated March 18, 1958 governs the relationahip effectively between the Union of India and the Lt. Governor. on the one c hand and the petitioners on the other i.e. the contractual relationa between the parties.

(b) The tranafer of administrative control of the L & D 0 on October 1, 1959 to the Ministry of Works & D Housing did not divest the Chief Commissioner of his contractual powers given under the lease and he alone represented the lessor i.e. the Union of India and not the ~dnistry of Works & Rousing.

( c) The sewer, according to the terma of the lease-deed, could not be diverted without the consent of the Chief Commissioner (Lt. Governor) and the approval of the Ministry of Works & Rousing was a nullity being without jurisdiction and legal competence.

(d) For the commercial user of the residual area to be kept as 'green', it is only the Chief Commissioner (Lt. Governor) who could give sanction to construct for the commercial user at the residual area; the petitioners were liable to pay commercial realization charges. G ( e) The Lt. Governor was a successor of the Chief Commissioner and, therefore, all the powers exercis- able by the Chief Commissioner in relation to the lease vested in him·

(f) It is for the Chief Commissioner (Lt. Governor) to decide if the breaches were ren.ediable or as to the Ii nature of the remedies required for the breach.

450 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.

A According to him, the breaches are not remediable breaches and, therefore, the impugned notice dated March 10, 1980 issued by the Engineer Officer, L & DO for re-entry upon the land on forfeiture of the lease for breach of the condiUons was valid and proper. ll (the leamed Attorney-General has throughout in the course of his ar8'..ilts on behalf of respondent oo. l, the Union of India maintained that the Lt· Governor of Ilelbi has DOthing to do with the lease and that wherever the - of the Chief ec-tssiooer of Delhi appears, it should be scored out fl'llll the lesse-deed.)

c (Emphasis supplied)

9. One S. Rangaswami, Additional Land & llevelo1111ent Officer, Ministry of Works & Housing filed a separate counter-affidavit supporting the stand of the Lt. Governor. It was averred in para 3 :

D "The petitioners during the year 1977 applied to the Ministry of Works & Housing for permission to construct on the residual area of 2740 square yards in plots nos. 9 and 10. The petitioners have placed reliance on the letters dated June 9, 1978 from Shri L. N. Sukwami and dated 24th November 1978 from Shri E V. S. Ka tara in the Minis try of Works & Housing and claimed that these two letters constituted permission to build on the residual area of plots nos. 9 and 10. I am advised to state that under the terms of the lease deed of 1958, previous consent of either the President of India or the chief Commissioner (Lt. F Governor) or such officer or body as the lessor (President of India) or the chief Commissioner of Delhi authorised was necessary for building activity on the residual area of the plots (2740 sq. yards). 1'be M1nistry of Works & llousing did oot represent the lessor or the chief ccwnfsst.ooer. • G

10. It is somewhat strange that Land & Develo1111ent Officer, who is the last functionary in the Ministry of Works & Housing should challenge the very authority and power of the Minis try of Works & Housing to administer the lease on behalf of the President of H India. He has also averred in para 5 :

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 451

A "The impugned show cause notice of 10th March 1980 was issued to the petitioners under cl. 6 of the perpetual lease for violation of sub-clauses (5) and (14) of clause 2 of the lease-deed. The Land & llevelop!lent Officer is oot a flmcticoory nod& th:! Ministry of llo<lw 6' !lousing. He is i:he officer appointed on behalf B of the lessor to administer the lease. At no stage the petitioners approached the office of Land & Development for permission to construct on the residual area of 2740 sq. yards to the west of the pipe-line and no approval was obtained from the office of L&DO for construction of a building in c contravention of clauses 2(5), (9) and (14) of the lease. The so-celled pamissions and approvals obta!Ded by the petltimiem have no iegal validity oo the short gr"""1:! of 1Bck of legal CO'lljl2t:ence or authority under the tezm6 of the lease-deed whlch governed the relationship bet:ween the petitiooers and re.spoodent no. l." (Emphasis supplied)

The case has seen many twi:s ts and turns. The hearing commenced on April 27 , 1982. and was concluded on September 22, 1983 with intermittent breaks. I regret to say that the ambivalent attitude adopted by respondent no.1 the Union of India and the hostility of respondent no.2 prolonged the hearing which lasted as many as 43 days. This has resulted in a colossal waste of public money and valuable time of the court. On April 29, 1982 when Shri Nariman, learned counsel for the petitioners- had concluded his arguments for the day. Shri Parasaran, the learned Solicitor General made a statement that he wanted to obtain instructions as to whether the impugned notices issued by the Zonal Engineer (Building), Municipal Corporation of Delhi dated March 1, 1980 and by the Engineer Officer, Land & Development Office, dated March 10, 1980 for the forfeiture of the lease of plots nos. 9 and 10, Bahadurshah Zafar Marg granted by the Government of India in favour of the Express Newspapers Pvt. Ltd. G and the threat to re-enter upon the leasehold premises with the new Express Building built thereon and for removal of the unauthorized structures should be enforced or not. In the facts and circumstances of the case, we must say that the request for adjourmnent by the learned Solicitor General was reaso!lB.ble and was not opposed by' the learned counsel for the petitioners. We accordingly adjourned the hearing of the Writ Petitions till H August 3; 1983 to enable· respondent no.1 the Union of India to

452 SUP!®IE COURT REPORTS [1985] SUPP.3 s.c.R. A take a decision in the matter. On August 23, 1982 the matter. was taken up in Chambers when the learned Solicitor General mad~ a statement that the Writ Petitions would have to be heard on merits, meaning thereby that the lessor i.e. the Union of India were not prepared to reconsider the matter. The learned Solicitor General Later ~1.thdrew from the case. B The strange phenomenon when the hearing was resumed on November 4, 1982 of the Union of India speaking through the voice of learned counsel for respondent no.2 was irore than we could permit. We sent for Shri L.N. Sinha, the learned Attorney General and he rightly objected to anyone speaking on bahalf of the Union of India. We directed the learned Attorney General to appear and c assist the C.ourt.

During the pendency of the proceedings, Shri Sinha demitted his office and Shri Parasaran was appointed to be the Attorney General. The Union of India engaged Shri Sinha as its counsel and he continued to represent respondent no.1. We are grateful to learned counsel for the parties who dealt with all aspects of the D various constitutional issues and other questions of great public importance with their usual industry and have supplemented their arguments by filing written subnissions. Learned counsel for respondent no. l has throughout been emphatic in contending that respondent no.2 was a complete stranger to the lease and he did not represent the lessor, the Union of India. Strangely enough, Dr. Singhvi continued to appear not only for respondent no.2 the Lt. Governor but also for respondent. no.5 the land & Development Officer who is a minor official in the Mini~try of Works & Housing. When we repeatedly enquired from lMrned counsel for respondent no.l as to the right of respondent no.5 to be represented by another counsel when he was appearing for the Union of India, he asserted that Dr. Singhvi had no right to represent respondent no.5 Land & Develo~nt Officer as he was appearing for reepondent no. l and he wss not bound by his submissions. Again, there was a rather distrubing feature. Submissions at the bar by learned counsel for the respondents were not in consonance with the stand taken in the original G affidavit filed by respondent no.2 on behalf of all the respondents. Further, the respondents have been filing different affidavits from time to time to suit their purposes as the hearing progressed and it was difficult to reconcile the conflicting averments made in these subsequent affidavits. It is somewhat unfortunate that the Government should have embarked II upon this course of action.

EXPRESS NEWSPAPERS V• U.O.I. [A.P. SEN, J.J 453

At the resumed hearing on November 4, 1982, we took on A record the further affidavits filed by respondent no.2 dated July 29, 1982 with certain deletions. In trying to meet the allegations made against him, respondent no.2 cast aspersions on Sikandar Bakht, the then Minister for Works & Housing. It was averred : B "llut if Ram l<ath Goenka approached the then Minister of Worlw & Housing, Shri Sikandar Bakht and the latter misusing his authority aru! exercising blatant favouritism pressurised the officers of the Delhi Development Authority, Delhi Municipal Corporation and of his own Ministry to do totally illegal acts, there- c by giving huge financial benefits to his political assocl.ate aru! friend Ram Nath Goenka, there are no mala fides. If the statutory provisions unalterable thrOugh an executive action, of the Delhi Mas.ter Plan, Zoning Regulations and Municipal Bye-laws are ruth- lessly violated, there are no mala fides. If expert advice of the Town & Country Planning Organisation is deliberately attacked, which, in fact, makes it quite clear that E'AR 300 does not exist in any area in Delhi and that FAR and coverage are prescribed for the locality as a whole and. not fot individual building, there are no ma1a fides. And if senior officers are sent to an l.nfluentWli\iSinessman to mollify him end in the event of not being mollified, the illegal and irregular concessions asked for are granted ·without even taking the trouble of amending the law of the statutory provisions, there are no mala_ fides, according to the writ petitioners."

On the same day i.e. on ~ovem.ber 4, 1982, ~e sent for Shri L.N, Sinha, the then Attorney-General and drew his attention to the averments made by respondent no. 2 1n the fresh affidavit alleging that the orders passed by the then l'd.nister for Works & Housing were illegal, improper and irregular. We felt that it was highly improper for respondent no.2 to have made suCh extreme allegations against the then Minister for Works & Housing and against the previous Government in power~ Accordirigly, we called upon respondent no. l Union of India to clarify its stand with regard to the following aspects

1. The authority of respondent nc.2 to wake allegatlons of fraud, misuse of pwers aud misdemeanours against the functionaries of the Union cf India including the Minister, Works & Housing.

454 SUPREME COURT REPORTS (1985] SUPP.3 s.c.a. A

2. The stand of respondent no.l, Union of India, to the case of the petitioners without adopting the counter affidavit of respondent no.2.

3. The specific reply, if any, of the Union of lndia, ll to the allegations of mala fides made by the petitioners against the Government of India in paras 9(b), 11 and 12 of the Writ Petition.

4. What is the reaction of the Union of India to the averments in the counter-affidavits of respondent no.2 and the affidavit of respondent no. 5 that the c Minis try of Works & Housing Joes not represent the lessor and that respondent no.5, the Land & Development Officer alone represents the lessor. And

5. Whether a successor government was not bound by the acts of the duly constituted previous government ?

D Instead of cou.'j>lying with the directions, respondent no.l through the affidavit of M.K. Mukherjee, Secretary, Ministry of Works & Housing dated November 16, 1982 purported to raise certain additional issue :

1. I am advised to say that the orders passed by Shri E Sikandar Bakht, the then Minister for Works & Housing were clearly illegal, improper and irregular.

2. The powers and functions assigned to the Chief Commissioner of Delhi under the lease-deed were exercisable by the Lt. Governor by virtue of the notification issued by the President dated September 7, 1966 under Art. 239(1) of the Constitution.

3. The Land & Development Officer as well as the Chief Engineer in the office of the Land & Development Officer were both empowered to take action of the lease-deed and therefore the Engineer Officer was authorized by the lessor i.e. the Union of India to issue the impugned show cause notice as he was competent to do so under cl. 5 of the lease-deed having been empowered to act on behalf of the President under Art. 299(1). The said show cause notice was issued on the basis of which a press report &S per the orders recorded on the file of the Land & Development Officer and not at the instance of the Lt. Governor.

EXi'RESS NEWSPAPERS v. U.O.I. [A.P. SEN, J .. ] 455

4. The order of M.N; Buch, the then Vice-Chancellor of the ODA dated October 21, 1978 was without any legal authority or sanction and the said order was passed by him in clear violation of the procedure laid down in s. 11A(2) of the Delhi Development Act, inasmuch as no relaxation of the permission for FAR for the D-II area B could be made which was tantamount to a modification of the Master Plan~ The said decision cannot be implemented by the MCD because it would require modification of their existing bye-laws, which cannot be done for a particular case or building or for oae particular commercial area. c

It is then averred 1

"I say that the counter-affidavit filed by respondent no. 2 be read as part and parcel of this D counter-affidayit.

I am advised to categorically deny any allegation of mala fides, design or animosity on the part of respondent no.las alleged."

The respondents have also placed on record two affidavits of E M.N. Buch and H.R. Ailawadi, both of whom became Vice-Chairmen, Delhi Development Authority. Ailawadi in his affidavit avers that the demised land is a nazul land which vested in the President of India. For management, control and disposal of such lands, Land & Development Office in the Department of Local Self Government was created. As a matter of fiscal policy, the administrative control of the Land & Development Office, Delhi was transferred from the Delhi Administration to the Ministry of Works, Housing & Supply w.e.f. ·October 1, 1959. He asserts that this transfer wao on administration and fiscal grounds and did not divest the Chief Commissioner of the powers given to him by the parties under the lease as the representative of the President of India. He further avers that the sewer line, according to the terms of the lease, could not be diverted without the consent of the Chief Commissioner (Lt.Governor). As regards the sanction, he asserts that M.N. Buch in fact had no authority to sanction the building plans in the instant case and that the Additional Secretary, Master Plan, had raised certain objections to the building plans and no decision on these objections was taken and then adds : H "Shri Buch contrary to all the views expressed by himself, the Ministry of Works & Housing, Office of L&DO and TCPO passed the following orders."

456 SUPIU;ME COURT REPORTS [1985] SUPP.3 s.c.R. A This is followed by the terms of the order J.n question passed by M,N, Buch. He then avers :

"Under clause 2(5) of the perpetual lease-deed only the lessor or the Chief Conmissioner of Delhi could B permit construction on the residual area of plots nos. 9 and 10. The Vice-Chairman, DDA had no authority under the terms of the lease •to permit an additional construction on these plots. No objection certificate, therefore, issued to the funicipal Corporation of Delhi and to M/s Express Newspapers Ltd. by the DOA on 4.11.1979 was without jurisdiction and a nullity. The c Ministry of Works & Housing could not have also permitted any construction at the residual area. Only the Chief Commissioner of Delhi or the Officers authorized by the President of India under Art. 299 of the Constitution were cq_mpetent to grant such permission. The Vice-chairman, DOA or the Joint Secretary in the Ministry of Works & Housing were not authorized by the President in exercise of powers under Art. 299 to administer the lease-deed.

The direction of Shri Buch to treat his order as one under special appeal was without jurisdiction and, therefore, a nullity. The procedure prescribed for special appeal waa totally disregarded. No resolution of the DOA was adopted in this regard and as a matter of practice and rule, special appeal cases are decided only by means of resolution of the author.tty. The decision of Shri Buch waa in violation of the provisions of the Delhi Development Act, Master Plan F and funicipal Bye-laws."

He then questioned the validity of the sanction to the building plan granted by the funicipal Corporation of Delhi and asserts : I

G "Sanction of the building plans by the MCD violated the following statutory provisions :

(a) FAil. : According to the funicipal Bye-laws, FAR for a built area could not exceed 300. The Press area being a built up area, permission to build up to FAR H to 360 was violative of the funicipal Building Bye-laws.

EXPRESS NEWSPAPERS V• U.Q.I. [A.P. SEN, J.) 457

A (b)Coverage According to the Master Plan and building bye-laws, which were in force prior to 24.12. 76, coverage for different floors of a five storey building was as under

Ground floor 80% First .. 70% B Second 50% Third 50% Fourth .. 50%

He then refers to the amended rule dated 24.12. 76 which· prescribed for all conmercially developed areas, including c offices, coverage of 25% · and asserts that the press area i~ covered by the amendment. He also asserts that even the earlier rule was violated by allowing 75.43% on the first floor and 77.5% coverage on the second and third floors. D Further he states that for comnercial areas, parking has to be done within the plots and within the covered area. In the present case, no proyision was made for parking of the vehicle within the plot and then adds :

"In the Municipal Bye-laws, there is no provision for waiving, relaxing and modifying the rules referred to abbve. The sanction was, therefore, accorded illegally and under undue pressure from vested interests ...

~n his counter-affidavit, M.N. Buch avers in para 3 that he had not authorized respondent no. 2 or anyone else to swear an affidavit on his behalf and, therefore, he was not bound by the same. According to him, the area in question was not a "develo!'ll"nt area" within the meaning of sub-s.(3) of s. 12 of the Delhi Development Act and as such, question of according any permission/approval by the Delhi Development Authority or by any of its officers did not arise. As regards the communication dated November 4, 1978 issued under the signature of R.D. Gohar, the then Joint Director (Building) of the Delhi Develo!'ll"nt Authority, i t could not, in his opinion, be treated to be a permission/sanction accorded under any statutory rule or regulation or Bye-law. According to him, i t was as a matter of fact a formal correspondence in response to a reference made in that behalf by the Ministry of Works & Housing and its gist and essence W<tS that the petitioners could submit plans to the concerned authorities for approval, if they so chose and that was

458 SUPREME COURT REPORTS (1985] SUPP.3 s.c.R.

A why, the set of plans as submitted by them, was returned and no plans were ever approved. On the contrary, the plans were returned for submission to the appropriate authority for approval. AB regards a number of communications from the Mini"try of Works & Housing to him, as the then Vice-Chairman, M.N. Buch contended that he had no ac:cess to the records of the Delhi B Developnent Authority and due to non-availability of the records, it was difficult for him to say anything specifically about the same.

In substance, the contentio'l of Buch is that the area in question was not a duly notified "develoµnent area" and aF such, question of granting any permission either by the Delhi c lJevelopnent Authority or by him as the Vice-Chairman did not arise and that no sanction or approval of the building plans, as alleged or otherwise, was accorded by him as such. The point of FAR raised in the petition was, according to him, not at all relevant fo< a just and proper decision of the case. He further stated that a perusal of the records would reveal that nowhere in any of the communications had he stated that any building plan j) had been sanctioned or approved. On the contrary, he had made it clear that

"It is for the Municipal Corporation of Delhi to examine the building plans in the light of the Building Bye-laws already sanctioned by the Municipal Corporation of Delhi. In other words, neither the Delhi Developnent Authority nor he as the Vic!!-Chairman had anything to rlo with the sanction/approval of the building plans in the instant case."

F It is rather pertinent to observe that in his counter-affidavit Buch does not explain the implications of his specific order as the Vice-Chairman dated October 21, 1978 for amalgamation of plots nos.9 and 10 and permitting construction of the new Express Building with an increased FAR of 360 with a double basement for installation of the printing press, directing that it was not merely a conmunication from the Vice-chairman, Delhi Developnent Authority to the Ministry of Works & Housing but per se it was an order passed by M.N. Buch as Vice-chairman, Delhi Developnent Authority and he concludes by observing :

"The Minister, Works & Housing had discussed the case with me and ordered that the case should be cleared

EXPRESS NEWSPAPERS v. u.o.r. [A.P. SEN, J.] 459

A immediately and his ex-post-facto sanLtion obtained. On this basis, we may issue cleaiancP. to the Express Authorities and also make a reference to the Government of India asking for confirmation of the action taken. 'The orrier should be treated as an order under Special Appeal',"

A perusal of the counter-affidavit of M.~. Buch bears out that the maker of an inotrument is not always its best inter- preter. Nothing really turns on the aforesaid two affidavits of M.N. Buch and H.R. Ailawadi, the then Vice-Chairman of the Delhi Development Authority which was just a belated attempt of the respondents to support the action of respondent nv.2 in initiat- c ing the proceedings which culminated in the issue of the impugned notices. The respondents have been shifting their rtand from stage to stage.

Upon these pleadings, the point£ for det<>rmination that L arise may be formulated :

1. Whether the impugned notice of re-entry upon forfeiture of lease by the Engineer Officer, Land & Development Office, Ministry of WorkE & Housing dated ~iarch 10, 1980 requiring Express Newspapers Pvt. l,td. E to show cause why the lessor i.e. the Union of India should not re-enter upon and taken possession of plots nos. 9 and 10, Bahadurshah Zafar Marg together with the Express Buildings built thereon and the impugned notice of the Zonal Engineer (Buildings), Municipal Corporation, City Zone, Delhi to show cause why the new Express building, particularly the double basement, where the Express Newspaper• Pvt. Ltd. have installed the printing press with the working platform which was a necessa:&:')' appurtenance to the installation of the printing press expressly sanctioned by the then Minister for works & Housing as well as by M.N. Buch, the then Vice-Chairman, DDA in conformity with Delhi G Development Act, 1957, the Master Plan and under ss. 343 and 344 of the Delhi Municipal Corporation Act, 1957, were violative of the petitioners' right to freedom of press guaranteed by Art. 19(l)(a) read with Art. 14 of the Constitution and therefore a petition under Art. 32 was maintainable. H

2. Whether the construction of the new Express Building on the residual area of 2740 square yards to

460 SUPREME COURT REPORTS (1985] SUPP.3 S.C.R.

A the west of sewer-line after its removal on plots nos. 9 and lO without the permission of the Lt. Governor or of the Land & Development Officer by the petitioners with an increased FAR 360 con.stituted s bruch of clauses 2(5) and 2 (14) which entitled the Engineer B Officer, Land & Development Office. Ministry of Works & Housing to issue the iuq>llgned show" cause notke dated March 10, 1980 of re-entry upon forfeiture of lease and the Union of India to re-ent..r upon and take possession of plots 9 and 10, llahadurshah Zafar Marg, together with the Express Buildings thereon.

c 3, (a) Whetber under the Master Plao, development of the Mathura Road commercial area was totally prohibited on FAR uceeding 300 i.e. whether such area does fall within the expression 'already buil~ commarcial area' or whether ..he Huter Plao doea not refer to the Matbura Road commercial atea nor doea such area fall within the expression 'already built-up D cOlll!lercial area' i.e. the area falling within the walled city of Delhi.

(b) Whei:her the pet'llitced uaes in the use-Zone C-II viz. the zone in which the press area falls do not exclude 'newspaper and printing press' except only if such user is allowed by a competent authority after special appeal that newspaper and printing presses are permitted to be installed.

4. Whether the Ministry of Works & Housina with the Minister at the head was and is the ultimate authority responsible for the following items of work.a 'Property of the Union, Town and Country Plaoning, ' Delhi Development Authority, Master Plan of Delhi, Adminia- tration of the Delhi Development Act, 1957, the Land ' Development Office dealing with the administration of nazul i..nds in the Union Territory of Delhi. If that be so, whether the orders passed by Sikaudar llakht, the then Minieter for Works & Housing granting permission to che petitioners to construct the new Express Building with an increased FAR 360 on an area of 2740 square yards to the west of plots nos. 9 and 10 was illegal, in.proper and irregular. H S. Whether the decision taken by the then Minister for Works & Housing for perlllitt1ng construction of the new

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 461

Express Building with an increased FAR of 360 with a A double. basement for the installation of the printing press wae in coofol"llli ty with the recomoenda ti on of M.N. lluch, the then Vice-<:hainnan, Delhi Developinent Authority and had been r~.ached after the matter had been de.alt with at all levels in the Minis try of Works & Housing was binding upon the successor Government B i.e. the Union of India as also the Ministry of Works & Housing and the petitioners having acted in the faith of such assur.ance and constructed the new Express Building thereon at a cost of nearly Rs.2 crores, the respondents particularly respondent no. l, the Union of India, was precluded bY the doctrine of promissory estoppel from chal:lenging the validity of c the permission granted by the then Minister for Works & Housing. If that be so, whether the present govermnent is bound to honour all assurances given by or on bahalf of the Union of India, Minis try of Works & Housing by the then Minister. D

6. Whether the Lt. Governor of Delhi has any function in relation to the lease being a successor of the Chief Commissioner of Delhi. If that be so, whether the Lt. Governor of Delhi could have set up a three- man Committe~ to inquire into and report on the alleged breaches coami tted by the petitioners in the cons true tion of the new Express Building with an increased FAR of 360 or the double basement for installation of the printing press, contrary to the sanction plan .and the building bye-laws of the Municipal Corporation of Delhi. If that be so, whether the Engineer Officer, Land & llevelopnent Office could have acted on the press report of the news cooference held by the Lt. Governor and on its basis issue the impugned show cause notice dated March 10, 1980.

7. Whether the respondents are right in contending that the alleged breach comitted by the petitioners in not obtaining t.he previous permission of the Lt. Governor as required by els. 2(5) and 2(14) was not remedial and therefore the lessor i.e. the Union of India, Ministry of Works & Housing could direct removal or demolition of the cons true tion complained of. H

462 SUPREME COURT REPORTS (1985] SUPP.3 s.c.R.

A 8. Whether the 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 Union of lndia, Ministry of Works & Housing, and that of March 1, 1980 issued by the Zor.e.l Engineer ll (Building), Municipal Corporation, City Zone, Delhi, were wholly mala fiJ~ and politically motivated.

For a proper appreciation of the points involved, it is necessary to set out the material clauses of the indenture of lease-deed dated March 17, 1958. Clause& 2(5), 2(14), 4, 5 and 6, insofar as material, run as follows : c "2(5). The lessee will not without the previous consent in writing of the Chief Commiesl.oner of Delhi or of such officer or body as the lessor or the Chief Commissioner of Delhi may authorize in this behalf make any alterations in or additions to the building erected on the said demised premises so as to affect D any of the architectural or structural features thereof or suffer to be erected on any part of the said demised premises or any building other than and except the building erected thereon at the date of these presents."

"2.(14). The lessee shall keep to the entire satisfaction of the said Chief Comdssioner the area i co the west of the pipeline adr.ieasuring 2740 sq.yards (which area for clarity's sake is delienated on the ~ plan hereto annexed and thereon shown in yellow) as an open space, that is, as lawns, paths or parking F grounds."

"4. If there shall at any time have been in the opini- on of the Lessor or the Chief Comdssioner of Delhi whose decision shall be final, any breach by leo1ee or by any person claiming through or under him of any of c; the covenants or conditions contained in sub-els. (5) ...... of cl.2 and if the said intended lessee shall neglect or fail to remedy any such breach to the satisfaction of the Chief Comdssioner of Delhi within seven days from the receipt of a notice signed by the Chief Conmissioner of Delhi requiring him to H remedy such breach it shall be lawful for the officers

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 463

A of the C:U.ef Comnissioner of Delhi to enter upon the premises hereby demised and (a) to remove or demolish any alterations on or additions to the buildings erected on the said premises without the previous consent in writing of the Chief Commissioner of Delhi or duly authorized officer as aforesaid ••••••• and it B is hereby expressly declared that the liberty hereinbefore given is not to prejudice in any way the power given to the President of India by els. 4 and 5 hereof.

5. '" ••••••• (I)f there shall have been in the opinion of c the Lessor or the Chief Comnissioner of Delhi whose decision shall be finsl, any breach by the Lessee or by any person claiming through or under him of any of the covenants or conditiorts hereinbefore contained and on his part to be observed or performed then and in any such case it shall be lawful for the lessor or any D person or persons duly authorized by him notwithstand- ing the waiver of any previous cause or right of re-entry upon any part of the premises whereby demised or of the buildings thereon in the name of the whole to re-enter and thereupon this demise and everything herein contained shall cease and determine and the E Lessee shall not be entitled to any compensation what- soever, nor, to the return of any premium paid by him ••

6. "No forfeiture of re-entry shall be effected except as herein provided, without the -permission of the Chief Comnissioner of Delhi, and the Chief F Comnissioner shall not permit such forfeiture or re-entry until the Lessor has served on the lessee a notice in writing :

(a) specifying the particular breach complained of G (b) if the breach is capable of remedy, requiring the Lessee to remedy the breach

and the Lessee fails within a resonsble time from the date of se!:Vice of the notice to remedy the breach, if it is capable of remedy, and in the event of forfeiture or re-entry the Chief Commissioner may in H his discretion relieve against forfeiture on such terms and conditions as he thinks proper.

464 SUPREME 60URT REPORTS !1985] SUPP.3 s.c.R.

A 'Die Acta

We may then refer to the relevant provisions of the Delhi Development Act, 1957 which is parmoount law on the subject and overrides the provisions of the Delhi Municipal Corporation Act,

1957. The word 'Building' is defined in section 2(b) as including B any structure or erection or part of a structure or erection which is intended to be used for residential, industrial, COlllllercial or other purposes, whether in actual use or not; And the term 'building operations as defined in section 2(c) includes rebuilding operations, structural alterations of or additions to buildings and other operations normally undertaken in connection with the construction of buildings. In section 2(d) the term c 'development' is defined with all its grammatical variations to mean the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in building or land and includes redevelopment. The expression 'development area' is defined in section 2(e) to mean any area declared to be the development area under s\lb-s.(l) of s.12. D Under the scheme of the Act, the predominant object and purpose for which the Delhi Development Authority is constituted under s.3(1) is to secure the planned development of Delhi. This hes to be achieved by the preparation of Master Plan under s.7(1) and Zonal Development Plans under s.8(1). Under s.3(3)(a) the E Administrator of the Union Territory of Delhi shall be the Chairman ex-t>fficio of the Delhi Development Authority. Under s. 6 the Authority is charged with the duty to promote and secure the development of Delhi according to plan. The l'iaster Plan as enjoJ.ned under s. 7(2)(a) defines the various zones into which Delhi may be divided for the purpose of development and indicates the manner in which tne land in each zone is proposed to be used (whether by the carrying out thereon on development or otherwise) and the stages by which any such development shell be carried out; and by cl. (b) thereof serves as a basic pattern of frame- work within which the zonal development plans of the various zones may te prepared. s. 12(1) provides that as soon as may be after the COlllilencement of this Act, the Central Government may, by notification in the Official Gazette, declare any area in Delhi to be a development area for the purposes of this Act. After the commencement of the Act, s. 12(3) enjoins that no development of land shall be undertaken or carried out in any area by any person or body (ineluding a department of government) H unless, -

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.J 465

(i) " where that area is a development area permission A for such development has been obtained in writing from the Authority in 'accordance with the provisions of this Act, i.e. according to the Master Plan and the Zonal Development Plans;

(ii) where that area is an area other than a B development area, approval of, or sanction for, such development has been obtained in writing from the local authority concerned or any officer or authority thereof empowered or authorized in this behalf, in accordance with the provisions made by or under the law governing such authority or until such provisions c have been made in accordance with the provisions of the regulations relating to the grant of permission for development made under the Delhi (Control of Building Operations) Act, 1955, and in force illlllediately before the conmencement of this Act:" D It is cOlllIOOn ground that the Press Enclave on the Mathura Road ColllOOrcial Complex has. not !Y.en declared under s. 12(1) to be a development area for pµrposes of the Act. S.14 provides that after the coming into operJtion of any of the plans in a zone no person shall use or permit to be used any land or building in that zone otherwise than in conformity with s4ch plan. S.29(1) E makes it a penal offence to undertake or carry out development of any land in contravention of the Master Plan or Zonal Development Plans or without the permission, approval or sanction referred to in s. 12 or in contravention of any condition subject to which such permission, approval or sanction has been granted. S.53(3) is important for our purpose and it reads : F 53(3): "Notwithsµmding anything contained in any such other law - I

(a) when permission for development in respect of any land has been obtained under this Act such development shall not be deemed to be unlawfully undertaken or G carried out by reason only of the fact that perod,ssion, approval or sanction required under such other law for such development' has not been obtained;

(b) when permission for which development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by H

466 SUP.REME COURT REPORTS [1985] SUPP.3 s.c.R.

A reason only or the fact that permission, approval or sanction required under such other law for such develo(lllent has been obtained."

The words 'such other law' in s. 53(3) obviously refer to the non-obstante clause in sub-s. (2) which reads : B 53(2):" ... The provisions of this Act and the rules and regulations made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law." i.e. the provisions of the Act have a overriding effect over the Delhi Municipal Corporation Act, 1957. c The Delhi Municipal Corporation Act, 1957 provides inter alia by s. 332 that no person shall erect or comnence to erect