Title not extracted — [1985] Supp. 3 S.C.R. 382

Professor de Smith in his monumental work the Judicial Review of Administration Action, 4th edition at pp.335-36 says in his own terse language :

"The concept of bad faith eludes precise definition, but in relation to the exercise of statutory powers it H may be said to comprise dishonesty (or fraud) and.

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

A malice. A power is exercised fraudulently if its repository intends to achieve an object other than that for which he believes the power to have been conferred •••••• A power is exercis.ed maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise." B He then goes on to observe :

"If the Court concludes that the discretionary power has been used for an unauthorized purpose it is generally immaterial whether its repository was acting in good or bad faith. But there will undoubtedly c remain areas of administration where the subject- matter of the power and the evident width of the dis- cretion reposed in the decision"111aker render its exercise almost wholly beyond the reach of judicial review. In these cases the courts have still asserted jurisdiction to determine whether the authority has endeavoured to act in good faith in accordance with the prescribed purpose. In most instances the reservation for the case of bad faith is hardly more than a formality. But when it can be established, the courts will be prepared to set aside a judgment or order procured or made fraudulently despite the e)tistence of a generally worded formula purporting to exclude judicial review. "

Bad faith is here understood by the learned author to mean intentional usurpation of power motivated by considerations that are incompatible with the discharge of public responsibility. In requiring statutory powers to be exercised reasonably, in good faith, and on correct grounds, the Courts are still working within the bounds of the familiar principle of ultra vires. The Court assumes that Parliament cannot have intended to authorize uiireasonable action which is therefore ultra vires and void. This is the express basis of the reasoning in many well-known cases, on the subject. A necessary corollary is that, as uslll}l G throughout administrative law, we are concerned.only with acts of legal power i.e. acts which, if valid, themselves produce legal consequence.

In general, however, the Courts adhere firmly to the wide meaning of 'jurisdiction' since this is the sheet-anchor of their power to correct abuses. They appear to be willing to stretch the I

EXPRESS NEWSPAPERS V• U.O.I. [A.P. SEN, J. J 507

A doctri~e of ultra vires to cover virtually all situations where statutory power is--exe?=cised contrary to some legal principles. There are many cases in which a public authority is hela to have acted for improper motives or irrelevant considerations, or. have failed to take account of relevant considerations, so that its action is ultra vires and void : H.W.R. Wade's Administrative B Law, 5th edition at PP• 42, 348 and 369. The lellrned author aptly sums up situations in which error of jurisdiction may arise, at p.42 :

"Lack of jurisdiction may arise in many ways. There may be an absence of those formalities or things which c are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end made an ·order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice; or it may D ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the

I inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity." E

Fraud on power voids the order i f it is not exercised bona fide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by F taking into account bona fide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in s. G Pratap Singh v. State of Punjab, (1964] 4 S.C.R. 733. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an 'alien' purpose other than the one for which the power is conferred in mala fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or H alien purpose clearly speaks of the misuse of the power and it

508 SU~iE COURT REPORTS [1985] SUPP.3 s.c.R. A was observed as early as in 1904 by Lord Lindley in Geoeral .6ssmbly of free Umrch of Scotland V• OvertOliD, L.R. [ 1904 J A.C. 515, 'that there is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bona fide for the purpose for which they are conferred 1 • It was said that Warrington, C,J., in Short v. Poole Corporation, L.R. [1926] Ch. D.66, that :

"No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purportlng to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be hP.ld to be inoperative."

In LazaDis Estates Ltd. v. l!easley, [1956] 1 Q.B. 702 at pp.712-13, Lord Denning, LJ, said :

"No judgment of a court, no order of a Minister, ·can be allowed to stand if it has been obtained by fraud. D Fraud unravels everything."

See also, iu LazaDis case at p.722 per Lord Parker, CJ

"'Fraud' vitiates all transactions known to the law of however high a degree of solemnity." E All these three English decisions have been cited with approval by this Court in Par tap SiDgb.' s case.

In Dr. Rall MallObar Lobia Vo State of Bihar & Ors., [1966 J 1 s.c.R. 708, it was laid down that the Courts had always acted to res train a misuse of statutory power and more readily when improper motives underlie it. Exercise of power for collateral purpose has similarly been held to be a sufficient reason to strike down the action. In State of Punjab v. l!amj1lal & Ors., (1971) 2 s.c.R. 550, it was held that it was not necessary that any named officer was responsible for the act where the validity of action taken by a Government was challenged as mala fide as it may not be known to a private person as to wh~tters were considered and placed before the final authority and who had acted on behalf of the Government in passing the order. This does not mean that vague allegations of mala fide are enough to . dislodge the burden res ting on the person who makes the same though what is required in this connection is not a proof to the hilt, as held in Bari1a ,,_.icals Ltd. & Anr. v. CClmpany Lsw :Board, [1966) Supp. s.c.R. 311, the abuse of authority nrust appear to be reasonably probable.

EXPRESS NEWSPAPERS v. u.o.I. [A.P. SEN, J.] 509

A In the present case, the petitioners have alleged several facts imputing improper motives which have not been specifically denied and there is only a bare denial with the assertion that the facts are not rele•ant. Mere denial of all.egations does not debar the Courts from inquiring into the allegations. In answer to the rule nisi, the respondents here and in particular B respondent no.l, the Union of India, ~Iinistry of Works & Housing disdained from filing a counter-affidavit and left it to respondent no.2, Lt. Governor of Delhi to controvert as best as he could the specific allegations made by the petitioners that the impugned action was wholly mala fide and politically motiva- ted i.e. that there was malice"""Ill"""fact as well as malice in law c which actuated the authorities in issuing the impugned notices. Respondent no.2 did not controvert these allegations but asserted that the allegations were 'wholly irrelevant• to the matter in issue. He disclaimed all responsibility for the iseue of the impugned notices and insteadtried to justify all his action throughout the affair as the Lt. Governor. As the hearing progressed, on being putwise on the legal issues, respondent no.2 filed an additional affidavit trying to refute the allegations of personal bias and animosity oa his part. As already state:!, respondent no.l put a supplementary affidavit of M.K. Mukherjee, Secretary, ~'.!listry of Works & Housing which instead of meeting the specific !.llei>ations made 'oy ~he petitioners, avers that they were wholly irrelevant and that the Union of India adopts the counter-affidavit filed by respondent no.2. The submissions advanced at the Bar by learned counsel appearing for the Union of India were wholly in~onsistent with the stand taken by the respondents in their counter-affidavits. The learned counael made no attempt to refute the charge that the impugned notices were wholly ~ fide and politically motivated. F

Learned counsel for the petition.era contended that during the period of Emergency, the Indian Express had displayed exemplary courage in exposing the authoritarian trend of the Government of the day. He further contended that the impugned notices constitute an act of personal vendetta against the. G Express Group of Newspapers in general, and Ram Nath Goenlui, Chairman of the Board of Directors in particular. He also contended that respondent no.2 was actuated with personsl bias against the Indian Express and had file a criminal complaint "l!ainst the Editor-in-Chief 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 H role during the period of Emergency in the Turl<man Gate

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

denolitions. The Express Group of Newspapers, particularly the A Indian Express, had during the period of Elnergency and illlnediately thereafter openly criticised the highhanded action of reapondent no.2 who was the then Vice-Chainnan of the Delhi Develojllll!Ilt Authority and close to the powers that be. The subnission is that the proposed act of re-entry by the lessor i.e. the Union of India, Ministry of Works & Housing at the B instance of respondent no.2 was meant to be an act of political vendetta. The learned counsel particularly highlighted the following sequence of events of assumption of office by respondent no.2 as the Lt. Governor of Delhi on February 17,

1980. It was pointed out that illlnediately upon assumption of office on the forenoon of February 17, 1980 which was a Sunday, the first act of his was to sUIIlllon the Municipal Comnissioner c and to call for the files of the Indian Express Buildings. On the 18th morning the files relating to the grant of sanction for the ~onstruction of the new Express Building were made available to him. On February 20, 1980 admittedly the important files of the Delhi Developnent Authority i .e, relating to the Expresa Buildings were sent to respondent no.2. On February 29, 1980 he, through the Comnissioner, Municipal Corporation of Delhi cauaed the lacks of the office and cupboards of the Zonal Engineer (Building) broken open to take away the files relati:>I! to the new • Express Building. Inmediately thereafter on March 1, 1980, respondent no.2 convened a press conference in which he handed over a press relea.se (set out in the earlier part of the judgment) alleging that the new Express Building put up by the petitioners was in contravention of law in several respects.

On March 1, 1980 he purported to appointed what he termed in the counter-affidavit as a comnission of tnquiry under s.3 of the Comnissiona of Inquiry Act, 1952 consisting of three members, the Chief Secretary and two other officers of the Delhi F Administration to make an investigation into the circ\Jlllitances under which the sanction was granted by the then Minister for Works & Housing and the alleged breaches cOUlllitted by the petitioners in the construction of the Express Buildings. The learned counsel contends that the so-called inquiry directed by respondent no.2 into the affairs of the Union of India, Ministry G of Worl<s & Housing was nothing short of inquisition into the functioning of the previous Goveranent at the Centre and particularly that of Minister for Works & Housing. On the same cjay, the Zonal Engineer (Building), City Zone, Municipal Corporation, presumably at the behest of respondent no.2 served a notice on petitioner no.l Express Newspapers Pvt. Ltd. to show Ii

EXPRESS NEWSPAPERS v. u.0.1. [A.P. SEN, J.) 511

A cause why action should not be taken for demolition of the Express Buildings Under ss. 343 and 344 of the Delhi Municipal Corporation Act, 1957.

Three days after i.e. on March 4, 1980 a second press release was issued from the Raj Nivas, the official residence of B respondent no.2 and sent by a si;ecial courier to all newspaper offices to justify his action in initiating an inquiry and the mode that had been prescribed for holding such inquiry stating a show cause notice had been issued by the Municipal Corporation for unauthorized deviations from the sanctioned plan in the construction of a double basement with a floor area of 23,000 square feet in the Municipal Corporation were summoned by c respondent no.2 before the press conference on ~larch 1, 1980, the files of the l'dnistry of Works & Housing were summoned by him in the first week of lt"'rch, 1980. It is admitted by the Ministry that the said files were made available to respondent no.2 on March 7, 1980. On ~JBrch 7, 1980 the Land & Development Officer D acting as part of the overall plan of respondent no.2 and presum- ably at his instigation issued a show cause notice in terms set out above. Admittedly, on that day the files of the Ministry of Works & Housing had been handed over by the l'dnistry to the Three Member Committee constituted by respondent no.2. E On March 10, 1980 · the Engineer Officer in the Land & Development Office under the Ministry of Works & Housing issued a notice of re-entry upon forfeiture of lease in supersession of his earlier notice dated March .7, 1980 under cl. 5 of the perpetual lease-deed dated March 17, 1958 while alleging several breaches of els. 2(14) and 2(5) thereof and proposing re-entry by the lessor i.e. the Union of India. On March 12, 1980 at a F specially convened press conference, respondent no.2 released the report of the Three-Member Comnittee which substantiated the allegations he had aired at his press conference on ~ch 1, 1980 and through the press release of March 4 , 1980. The learned Counsel particularly relied upon the averment of respondent no.2 in para 89 of the counter-affidavit, set out at the beginning of G this judgment, that the breach was 'irremediable' and therefore 'the lease was liable to be forfeited' and 'the Express Buildings built thereon demolished'. Learned counsel contends that these facts clearly show that the impugned notices were issued in bad faith and actuated by improper motives. He accordingly contends that the impugned action was wholly mala fide and politically motivated. B.

512 SUPREME COURT REPORTS [1985) SUPP.3 s.c.R.

A The expression 'Government' in the context is the function- sry of the Central Government i.e. the Minister for Works & HOUtiing who is vested with executive power in the relevant field. The executive power of the Union vested ir. the President under Art. 53(1) connotes the residual or governmental functions that remain after the legivlative and judicial functions are taken B away. The executive power with respect to the great departments of the Government are exercisable by the Ministers of the concerned departments by virtue of Rules of Business l ssued by the President under Art. 77 ( 3) • For purposes of the present controversy, the functionary who took action and presumably on whose instructions the impugned notices were issued was no one than the Lt. Governor of Delhi who, according to learned counsel c for respondent no. l., could not usurp the powers and f\Dlctions of the Union of India in relation to the property of tbe Union and therefore had no functions in relation to the lease in question. It seems that the Minister for Works & Housing was taking his orders from respondent no.2. The dominant purpose which actuated respondent no.2 in initiating governmental action was not so much for implementation of the provisions of the Mast.er Plan or the D Zonal Development Plans ·framed under the Delhl Development Act or the observance of the relevant Municipal Bye-laws under the Delhi Mllnicipal Corporation Act, but to Woe these provisions for an 'alien' purpose and in bad faith i.e. for demolition of the Express Buildings with a mark of retribution or political vendetta for the role of the Indian Express during the period of E Emergency and thereafter and thereby to bring about closure of the Indian Express. If the act was in excess of the power granted to the Lt. Governor or was an abuse or misuse of power, the matter is capable of interference by the Court.

The Court in Pratap Singh's case observed that the F Constitution enshrines and guarantees the rule of law and the power of the High Courts under Art.226 (which is equally true of Art .32) is designed to ensure that each and every authority in the State, including the Government, acts bons fide and within the limits of its powers and that when a court iS"'iiiii:isf ied that there is an abuse or misuse of power and its jurisdiction is G invoked, it is incumbent on the Court to afford justice to the individual. The Court further observed that in such an event the fact that the authority concerned denies the charge of mala fide, or asserts the absence of oblique motives, or of its having taken into consideration improper or irrelevant matter, does not preclude the Court from inquiring into the truth of the H

EXPRESS NEWSPAPERS v. U.O.I. :A.P. SEN, J.] 513

allegations wade against the authority and affording appropriate relief to the party aggrieved by such illegality or abuse of power in the event of the allegatio11s being wade out.

AB against the Government at the Centre, the allegations in the Writ Petitions can conveniently be classified into three groups. The first set of circumstances relates to tlie period prior to tne Parliamentary elections J.n 1971, and the second to the· period subsequent thereto till the declaration of Internal &lergency by tne Ptesident on June 25, 1975 and the third relates to tne period during the Emergency and thereafter. The petit.ioners allegations may be thus summarized. The Express Group of Newspapers in general and the Indian Express in parti- C cular have always taken an independent stand and have been critical of the Government and the authorities and of any authoritarian trend and had therefore.been considerably harassed in var~ous ways. For over a decade, Congress Government have had an animosity against the petitioners and have tried in many ways to finish them off. After the Congress split of 1969 the Indian iJ Express severely criticised those who had backed out from supporting the official Congress candidate. AB a result, various administrative agencies began roving and fishing inquiries into the affairs of the Express Group of companies. on more occasions than one, matters relating to petitioner no.3 Ram Nath Goeill<a and the Exptess Group of Companies were discussed iti Parliament. E After the Congress (R) secured overwhelming majority in the 1971 Parliamentary elections, the Express Group of Companies and petitioner no.3 had to wage a constant battle for survival on various fronts and against various onslaughts. the animosity of the Congress (R) CrilVernment towards the petitioners intensified after the Gujarat and Bihar Movements gathered strength. llecause of the close association of petitioner no.3 Ram Nath Goertka with ~· tile late Snri Jayaprakssh Narayan, efforts were made to secure his cooperation to persuade the late Shri Jayaprakssh Narayan to withdraw from the Bihar Movement. His refusal to I intercede on behalf of the Government led to further inquiries by which both he and the Express Group of companies were sought to be pressurized and persecuted. G

The White Paper on the Misuse of Mass Media dUritli the Internal Emergency issued by the Government of India in August, 1977 brill!!S out certain facts. After the Proclamation of Emergency by the President on June· 25, 1975, various acts of repression were perpetrated against the Express Group of Companies subverting lawful processes, well-estabiiehed H

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

A conventions and administrative procedures and practices and by abuse of authority and misuse of power. It was evident therefore that a 'high level meeting' where the ~dnis ters of Law & Justice and Information & Broadcasting were present, it was decided that 'inquiries into the Express Group of Newspapers and Shri Ram Nath B Goenka's industrial empire were to be given inmediate attention'. All that the Express Group of Newspapers, particularly the Indian Express, had to face during the Emergency is now a matter of history.

There is a considerable body of literature dealing with the role of the media during the period of Emergency. Perhaps the two c best known papers which attempted to stand up to the Government's repressive tactics were the Indian Express and the Statesman. The Indian Express had been cool to Government pressure to publicize the benefits of Emergency. The Government then arrested Kuldip Nayar, the Editor-in-chief, dissolved the Board of Directors and appointed a new Board under the Chairmanship of K.K. Birla consisting of persons approved by the Government; printed in other newspapers allegations of financial offences cOillilitted by petitioner no.3 Ram Nath Goenka, the proprietor of the paper; withdrew Government advertisements and reduced the credit limits provided by the banks; cut off the supply of electricity and finally issued an abrupt notice of the auctioning of the Indian Express Buildings at New Delhi for failure to pay outstanding truces - which Goenka was disputing in Court. The Express Building was sealed of for two days but by that time the harassment of the newspaper had attracted attention throughout the word. This became an embdrrassment to the Government which stopped some of the harassment but continued the financial persecution. The news- paper was about to collapse when the new elections of 1977 gave it a new life. White Paper on Misuse of Mass Media at paragraphs 38 to 44; Shah COillilission's R.,.,ort at PP• 34-35, Indian Politics and the Role of the Press by Sharad Karkhan!s at PP• 139-140.

As against respondent no.2, i t was suggested during the course of hearing by le.amed counsel for the petitioners that obviously one of the tasks entrusted to respondent no.2 as the Lt. Governor of Delhi was to 'discipline the press' by demolition of the Express Buildings. I refrain from expressing any opinion on that aspect l:ut it is quite evident that no action was contem- • I plated against the Express Newspapers Pvt. Ltd. by any of the respondents prior to February 17, 1980. Respondent no.2 upon . H assumption of his office as the Lt. Governor of Delhi on that day immediately set on a course of action against the Indian Express 1

EXPRESS NEliSPAPERS v. U.O.I. [A.P. SEN, J.] 515

which culminated in the issue of the impugned notices. It cannot A be doubted that his initiative to call for the files from the Municipal Corporation relating to the construction of the new Express Building was an action of his own not provoked by anyone, much less at the instance of respondent no.1, the Union .of India, Ministry of Works & Housing. The sequence of events set in motion imnediately after his assumption of office as the Lt. Governor B have already been set out in detail which demonstrate the extent to which and the keenness with which he pursued the matter. It would appear that the entire administrative machinery was geared into action by respondent no.2 and he 'activated' the taking of steps culminating in the issue of the impugned notices. c In their effort to salvage the situstion,learned counsel appearing for respondents nos.1 and 2 during the course of their respective submissions tried to impress upon us that it cannot be said from the circumstances appearing that the authorities have not acted bons fide with the object of using their powers for the purposes authorised by the Legislature but had acted with an ulterior object to achieve any sinister or collateral purpose. The submissions of learned counsel for respondent no.1 may be sumnarized thus : (1) There was no imminent danger of demolition of the Express Building nor was the impugned notice dated March 10, 1980 issued by the Engineer Officer, Land & Developnent Office, a notice of re-entry upon iorfeiture of lease. It was merely a notice of an exploratory nature requiring the Express Newspapers Pvt. Ltd. to show cause why the lease should not be forfeited under cl.5 of the lease'-deed for alleged breaches of cls.2(5) and 2(14) thereof. The Express Newspapers Pvt. Ltd. should have therefore entered appearance before the Land & Development Officer and showed cause against the action proposed. It was only if the Land & Developnent Officer was not satisfied with their explanation, that he would put up the papers before the Lt. Governor for necessary action. It would then be for the lessor i.e. the Union of India, Ministry of Works & Rousing to decide whether or not the lease should be forfeited under cl. 5 of the lease-deed. (2) Ile drew our attention to the supplementary affidavit of M.K. Mukherjee, Secretary, ~dnistry of Works & G Housing where it was denied that the imp.igned notice of re-entry dated March 10, 1980 was issued by the Engineer Officer at the behest or at the instigation of the Lt. Governor. Mukherjee had averred therein that s. Rangaswami, Additional Land & Developnent I · Officer called for a report and the file of the case on March 5, 1980 when a press clipping was put up to him in the usual course from the office of the Public Relations , Officer. The Engineer I I!

516 SUPREME COURT RF_l'QRTs [1985) SUPP.3 s.c.R.

Officer asked for putting up the case with a detailed DOte A iJJmediately. The decision to send the notice waa taken without the reference to the Lt. Governor. A note on the file pointed out that the rate at which the plot was !.nitially given to till Express Newspapers Pvt. Ltd. was concessional @ Ba. 36,000 per acre as against the prevailing rate of Rs.l,25,000 par acre for construction of building. The note was put up by RangasWlllli to B the Land & Development Officer and was also aeen by the Joint Secretary (Delhi Division) and the Secretary, Ministry of Worka & Housing. In this 'flote, Rangaawsmi further pointed out that additional preniun and additional ground rent would at all event• to recovered from the lessee tagether with intereat. The leat'll8d counsel accordingly contended that it was on the baaia of thia that the impugned notice was issued by the Engineer Officer on c March 10, 1980 and said that it waa worthwhile mentionillg that till then the report of the Three-Member Committee waa DOt before the Central Government, nor was there any cC1!11!1m1 cation in that behalf from the Lt. Governor. The report of the Comaittee wu itself dated March 12, 1980 and a copy thereof was forwarded by the Lt. Governor on March 14, 1980. It waa therefore urged that the impugned notice by the Engineer Officer purporting to act on behalf of the lessor i.e. the Dnion of India, Miniatry of Worka & HousiDg was not baaed either on the report of the Three-Member Comnittee obtained by the Lt. Governor or on the bsa1• of any communication from him. (3) Further, he urged that tbe Lt. Governor as the Ad111inistrator had to keep himself informd and canDot be said to have acted ma1a fide merely because of any possible personal malus animus otiliia part, if the quality of the action was itself in complete accord with the law·. (4) It waa said that the Government .itself was in poaaeaaion of relevant records and applied its mind to them and the impugned notice issued by the Engineer Officer who was ...powered to act on behalf of the President under Art. 299(1) of the Constitution having been authenticated in the manner required by Art. 77(3), it must be deemed to be the decision of the President on the advice of the Council of Minister1 as enjoined by Art. 74(2) and the Court was precluded from making any investigation into the circunstan- ces attendant (5) Finally, he submitted th8t it waa for re1pon- dent no.2 to meet the charges of mala fidea levallad against him. Whatever be the merit of the charga against the Lt. Governor, hie action led only to the collection of material ·on the basis of which the impugned notice was is1ued, and the action of respon- dent no.l waa unsseailable, l find it rather difficult to accept this line of argument which is nothill!! but an afterthought. Ii

EXPRESS NEWSPAPERS v. u.o.I. [A.P. SEN, J.] 517

While adhering to his stand that the Lt. Governor wss s A successor to the Chief Conmissioner .of Delhi and was therefore competent to exercise the powers of the lessor i.e. the Union of India, Ministry of Works & Housing, in relation to the lease-deed and that the Lsnd & Developnent Officer was under his administrative control, learned counsel for respondent no.2 refuted the charge of personal bias. He reiterated that the Lt. B Governor was the alter ego of the President in relation to such territory which he is called upon to administer on behalf of the President. One of the primary functions of the Lt. Governor, ss the Administrator, was to be aware of facts brought to his knowledge and therefore respondent no.2 could not have turned a blind eye to the action of Sikarider Bak:ht, the then Minister for Works & Housing in making a highly fraudulent, illegal and c improper grant of sanction to tne Express Newspapers Pvt. Ltd. to build the new Express Building with an increased FAR of 360. He also maintained that the Lt. Governor as the appointed agent or nominee of the President was entitled to act on behalf of the lessor i.e. the Union of India, Ministry of Works & Housing in D relation to the lease. Fw:ther, the contention was that respondent no.2 as the Lt. Governor was well within his rights (1) in calling for and making perusal· of tne respective files from the Ministry of Works & Housing, Delhi Developnent Authority and the Municipal Corporation of Delhi pertaining to the construction of the new Express Building witn an increased FAR of E 360, (2) in constituting a Three-Member Conmittee to inquire into the circunstances relating to the grant of sanction by the then Minister for Works & Housing and to take necessary steps as regards the unauthorised construction of the new Express Building, and (3) in forwarding the report of the Three-Member Comnittee to the concerned authority, meaning the Minister for Works &·Housing for taking necessary steps. It was contended that F the petitioners have made wild, reckless and baseless allegations against respondent no.2 merely because he directed an investigation into the affairs. In any event, he contended that this was a case of •transferred malice~ and the question of mala fides could not be decided .without impleading the late· Prime MinIStPr. I am afraid, the contention cannot prevail. The G petitioners. have impleaded respondent no .1, the Union of India and pleaded the necessary facts with sufficient particulars. The lightening speed with whicn respondent no.2 acted on assumption of his office as the Lt. Governor of Delhi on February 17, 1980 creates an impression that he started an ~inquisition~ into the affairs of the previous Government at the Centre. One should have thought that respondent no.2 holding the high position as the Lt. H

518 SUPREME COURT REPORTS [1985J SUPP.3 s.c.R.

Governor should have acted with greatest circumspection, than arrogate to himself the powers of the Union of India, Ministry of Works & Housing in relation to the property of the Union, including the lease in question •. It was somewhat strange that the Land & Develollllent Officer who was a minor functionary of the Ministry of Works & Housing should have filed a counter supporting the action of respondent no.2. I regret to sey that the Land & Develollllent Officer deliberately made an inaccurate statement that hP. is not under the administrative control of the Ministry.

I may now deal with the submissions advanced by learned counsel for respondent no .1. The contention that there was no imminent danger of d"'1!olition of the Express Building nor was the c impugned notice by the Engineer Officer a notice of re-entry upon forfeiture of lease, is against the very terms of the impugned notice. The submissions of the learned counsel run counter to the counter-affidavit filed by respondent no.2 on behalf of the respondents. There is a categoric averment that the grant of sanction by the tnen Minister for Works & Housing was illegal, improper and irregular. It is therefore futile to contend that the impugned notice dated March 10, 1980 was not a notice of re-entry upon forfeiture of lease but merely a notice of an exploratory nature requiring Express Newspapers Pvt. Ltd. to show cause why the lease should not be forfeited under cl. 5 of the lease-deed. Further, the contention that the decision to send the notice was taken without reference to the Lt. Governor does not appear to be substantiated by the facts on record. The so-called note of Rangaswami, Additional Land & Develollllent Officer put up before the Joint Secretary (Delhi Division) or the Secretary, Ministry of WorkS & Housing was for making a demand for payment of additional premium and ground rent and it never authorized the issue of the impugned notice dated March 10, 1980 by the Engineer F Officer directing a forfeiture of the lease.

The facts speak for themselves. M.K. Mukherjee, Secretary, Ministry of Works & Housing in his supplementary affidavit avers that the impugned notice dated March 10, 1980 was issued by the Engineer Officer, Land & Develollllent Office on the bssis of press G reports i.e. reports of the press conference called by respondent no.2 on March 4, 1980. The sudden spurt of activity on the part of Rangaswami, Additional Land & Develo!IIlent Officer calling for a report and the file and the Engineer Officer directing that the case be put up with a detailed note :IJimediately on March 5, 1980 is a circumstance which speal<S for itself. It followed upon the ii

EXPllilSS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 519

preas conference called by respondent no.2 on March 4, 1980 after the Zonal Engineer (Building), City Zone, Municipal Corporation, Delhi had already issued a notice on March 1, 1980 requiring Express Newspapers Pvt. Ltd. to show cause why the double base- ment of the new Express Building where the printing press was installed should not be demolished under ss. 343 and 344 of the Delhi Municipal Corporati6n Act, 1957. These circumstances clearly show that the respondents were building up a case against the Ex.press Newspapers Pvt. Ltd.

In the facts and circumstances, I am constrained to hold that the impugned notices dated March 1, 1980 and March 10, 1980 were not issueli bona fide in the ordinary course of official business for implementation of the law or for securing justice but were actuated with an ulterior and extraneous purpose and thus were wholly mala fide and politically motivated.

• Whether construction of the new Express Building with an increased FAR of 360 constitutes a breach of the D Master Plan or the Zonal Development Plan or Clauses 2(5) aad 2(14) of the lease-deed.

I. The Delhi Develoiment Act, 1957: Master Plan for Delhi: Zonal Develoiment Plan for D-II area viz. the Press Enclave in the Mathura Road Conmercial Complex. E

Question is as to whether the construction of the new Express Building on the residual area of 2740 sq.yards on the western portion of plots nos. 9 and 10, Bahadurshah Zafar Marg with an increased FAR of 360 constitutes a breach of els. 2(5) and 2(14) which entitled the Engineer Officer, Land & Development Office, Ministry of works & Housing to issue the impugned notice of re-entry dated March 10, 1980 purporting to act on behalf of the Government of India, Ministry of Works & Housing to show cause why the Union of India should not re-enter upon and take possession of plots nos. 9 and 10, Bahadurshah Zafar Marg together with the Express Buildings built thereon under cl.5 of the indenture of lease dated March 17, 1958. It is not disputed that the Ministry of Works & Housing with the Minister at the head was responsible for the following items of work viz. the 'Property of the Union, Town and Country Planning, Delhi Develoiment Authority, Master Plan for Delhi and Administration of the Delhi Develoiment Act, 1957 and Allotment of Government lands in Delhi•, and was also responsible for ·'al.1 attached and subordinate offices or organizations concerned with any of the H

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

A subjects specified aforesaid including the subordinate office of the Land & Develo!'llent Officer, New Delhi, dealing wi.th the administration of lease of nazul lands' • The functions of the Ministry of Works & Housing are described in Chapter XXV of the publication entitled ~Organizational set up and Functions of the Ministr~es Departments of the Government of Irulia' , issued by the Department of Personnel & Administrative Reforms, Gabinet Secretariat, Government of India. Hence, the Minister for Works & Housing was and is the ultimate authority responsible for the following items of work viz. the property of the Union, town and country planning, Delhi Develo!'llent Authority, Master Plan of Delhi, Administration of Delhi Develo!'llent Act, 1957, Land & Develo!'llent Office dealing with the administration of nazul lands c in the Union Territory of Delhi. --

It is common ground that the Press Enclave on Bahadurshah Zafar Marg otherwise known as the Mathura Road Coomercial·Complex is not a 'develo!'llent area· within the meaning of s.2(3) of the • Delhi Develo~t Act, 1957. Admittedly, the Master Plan does not prescribe any FAR for the Mathura Road Commercial Area. In the v Master Plan at p.50 the permitted uses in the Use Zone C-2, namely, the zone in which the press area falls are specifically mentioned 3nd it is clear therefrom that the generally permitted uses do not include 'Newspaper and printing presses' • The business of printing and publishing of newspapers and ins ta!- lation of printing press is permissible only i f such user <is allowed by competent authority after special appeal' • S. i4 of the Act prohibits any person from using or permitting to be used any land or building in any area otherwise than in conformity with the plans. The Delhi Develo!'llent Authority by its letter dated November 4, 1978 conveyed to the petitioners that the set of building plans submitted by the petitioners had been examined tas per norms• and the Authority had no objection to the amalga- mation of plots nos. 9 and 10 and in allowi11g an overall FAR of 360 taking into account the existing FAR. It was further stated that the basement had been excluded from the calculations of the FAR. The installation of the press machinery like any other service machinery was expressly permitted. The petitioners were directed to submit the plans to the concerned authorities as per norms. It would therefore appear that the construction of the new Express Jluilding with an increased FAR of 360 for starting a Hindi Newspaper lilld the installation of the printing press in the double basement was allowed by the Delhi Develo!'llellt Authority, j~ accordance with the privisions of the Master Plan. H

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SE!', J.] 521

It is clear from the provisions of s.12(4) read with s. 14 A that permission for development of the residual area i.e. the construction of the r.ew Express Building with an in~rEased FAR of 360 by the petitioners for use as a printing press had to be sought for, and was given, by the competent authority i.e. the Delhi Development Authority after 'special appeal' in accordance with tl:e provisions of the ¥.aster Plan. wrere permission for development in respect of such land had been applied for and obtained under the Act, the construction of the txpress Building undertaken and carried out in terms thereof could not be treated to have been unlawfully undertaken or carried out under s. 53(3)(a) of the Act. As already stated, the Central Government through the Ministry of works & Housing is gi'\7en an overriding c authority in the matter of administration of the Delhi Development Act including the Master Plan, and the Zonal Development Plans, and the provisions· of the Delhi Development Act take effect notwithstanding anything inconsistent therewith contained in any other law. That is to say, ruerely because the Municipal Corporation of Delhi while granting sanction to the L building plan on Janusry 9, 1979 got deleted the basement beyond plinth line as well as the second basement, that was of no legal consequence. By virtu-. of the permission granted by the DDA to the sanction Plan of the new Express Building with an increased FAR of 360 with a double basement beyond the plinth area for installation of the printing press, the same must prevail. Under s. 41(3) of the Act, the Central Government through the Ministry of works & Housing had certainly the authority to issue a direction to the Delhi Development Authority to examine the question as to whether the petitioners could be granted permission to construct the Express Building with an increased FAR of 360 with a double basement for installation of the printing press, and to grant permissicn therefore. F

The Floor Area Ratio, comnonly known as 'FAR' is the restriction on the number of floors in a building with reference to the plot area.

Part A of Chapter II of the Master Plan contains the Zoning G Regulations which form an integral part of the Master Plan which indicate the land use permissible in various zones and .the density, coverage, floor area ratio and set-backs for various types of development. Paragraph 2 has divided the Union Territory of Delhi for purposes of the zoning regulations into twenty-four use zones. Each use zone has its special regulations because a single set of regulations cannot be applied to the entire city, H

522 SUPREME COWT REI1lRTS [1985] SUPP.3 s.c.R. A as different use zones vary in their character and functions. The area in question falls in Use Zone C-2 : General Business and Commercial, District Centre, Sub-District Centre etc. Paragraph 4 contains provi~ions regarding uses in the various use zones, such as residential, COlllllercial, industrial, recreational etc. At B p.50, there are ::>rovisions relating to Use Zone C-1 : Retail Shopping. The permitted uses in Use Zone C-2, namely, the zone in which the press area is located, do not include 'Newspapers and printing presses• except where allowed by competent authority after special appeal. Paragraph 5 contains provisions regarding de~sity, coverage, floor area ratio requirements. At p.60, these requiremet<ts for co111Dercial and retail areas are set out under c Item IV. It would appear that the coomercial areas of Connaught Place Extension, Minto Road and: Ranjit Singh Road are in zone D-II. The FAR for Connaught Place Ex.tension in zone D-I was reduced on April 27, 1974 to 250 but the FAR of the other cOD1nercial areas, IlB!llely, of Minto Road and Ranjit Singh Road redlained at 400. The relevant extract is as below :

iJ "IV. Com>ierc.ial and Retail ;

(a) Connaugbt Place El<tension, ll:lnto llDad and Banjit Singh Road - The size of plot will naturally depend on the layout of the c0111Dercial area but any further sub-division of plots in th~ Connaught Place and its E proposed extension area is not desirable.

FAR 400 Maximtmt ground floor coverage 50% Covered garages for cars & cycles 5% F Firsc floor coverage 50% Coverage for second floor and above 35%

There is a limit to the ntmtber of floors but this is subject to light and air planes.

G Semi-basement is allowed with a coverage not exceeding the ground floor for parking, servicing and storage and the same is not taken into FAR calculations,"

The Master Plan then provides for FAR coverage for already built-up c0111Dercial areas and a list of 19 localities is set out H and they all relate to the walled city of Delhi llke Chandni Chowk etc. To this was added as the 20th item Jhandewalan Scheme on December 24, 1976.

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.J 523

A The entire case of the Union of India as well as the other respondents as presented before us is that under the Master Plan an FAR exceeding 300 was totally prohibited for any commercial area including the Mathura Roa<! Coomercial Complex. This is factually wrong. The Master Plan admittedly does not refer to the press enclave situate on the Mathura Road c:>mmercial area, nor B does such <>rea fall within the 'already built-up· commercial areas i.e. the walled city of Old Delltl, as set oul in the Master Plan at pp.60-61. Since the attempt of the respondents is to bring the press area within he FAR coverages prescribed for the already built-up commercial areas in the walled city of Old Delhi, it is of ubnost importance for a proper understanding 'of c the case to set out the relevant portion

"IV. Colllnercial and Retail

(b} E.A.R., coverages etc. for already built-up Coumercial areas in the Walled City like Chandni D Chowk, etc. (List ~iven below) :-

In such cases, coverages permissible would be as applicable in the existing building bye-laws of the Municipal Corporation of Delhi, e.g., 80 per cent on the ground floor and 70 per cent on the first floor E and so on, with 150 F .A.R. for a two-storey construc- tion, 200 F.A.R. for a three-storey construction, 250

' F.A.R. for a four-storey construction and so on, pro- vided that the F .A.R, will not exceed 300.

List of already built-up commercial areas. F 1, Jama Masjid

2. Chitli Qabar

3. Bazar Sita Ram

4. Ajmere Gate

5. Chandni Chow!<.

6. Fatehpuri G

7. Lajpat Rai Market

8. K.ashmere Gate and ltJri Gate

9. Malka Ganj lQ,Sabzimandi 11.Bara Hindu Rao l2•Sadar Bazar 13.Nabi Karim H 14.Qadam Sharif

524 SUPREME COURT REP0RTS [1985] SUPP.3 s.c.R.

15.Ram Nagar 16.Paharganj 17.M:idel Busti 18.Manakpura 19.Shahdara Town B 20.Jandewala Scheme - Block E.

~ventually, Learned Counsel appearing for respondent no.l had to accept that the already built-up ccmnercial areas set out in the Master Plan at p.61 dealt with areas other than Mathura Road Conmercial Area where the press area in question is situate,

c It is quite obvious that the Master Plan does not prescribe any FAR for the press enclave situate on Mathura Road cocmercial area nor does such area fall within the <already built-up C011111ercial areas• as defines in the Master Plan i.e. ccmnercial area falling within the walled city of Old Delhi. Apparently, the contention that the FAR of no ccmnercial area in Delhi can exceed 400 is Wholly misconceived inasmuch as the Master Plan in express D terms permits FAR of the conmercial areas in Minto Road and Ranjit Singh Road at 400. The Zonal Develoflllent Plan for the D-ll area approved by the Central Government in November 1966 mentions four CO!llllercial areas, namely, (l) Asaf Ali Road commercial area (2) Minto Road comnercial area (3) Mathura Road commercial area, and (4) Circular Road Conmercial area (opposite Ramlila Ground). It is provided that the general regulations for develo!lllent should be an FAR of 400 in respect of these areas, the total area of which is stated to be 30.50 acres. It is therefore entirely incorrect to say that nowhere in Delhi is there an FAR of more than 300 for any conmercial area as stated in the Report of the Town & Country Planning Organisation dated April 14, 1978 relied F upon by the respondents. In the Zonal Develo!lllent Plan for a D-ll area, it is mentioned that Asaf Ali Road comnercial area is Cfully developed and there is no room for its expansion', but the same is not" said about Mathura Road coomercial area which is described as 'fully commercialized with press and other allied/ trading buildings'. The statement relating to Mathura Road G coumercial area is set out below :

"Similarly Mathura Road commercial area is also fully comnercialized with press and other allied trade buildings according to building bye-laws to built-up areas." H

EXPRESS NEWSPAPERS v. ij,Q,I. [A.P. SEN, J•J 525

It would be seen that the statement is prefaced by the word •s:!milarly' and thereafter the word 'also• appears. A

Learned counsel appearing for respondent no.l the Union of India contends that the use of the word 'similarly• can only mean that Mathura Road commercial area is also fully developed like Asaf· Ali Road commercial area, and further that the B statemant that buildings on Mathura Road have been constructed according to the building bye-laws applying to built-up areas means that it was fully commercialized and had been built-up according to the relevant bye-laws which regulates and control the construction of commercially built-up area and therefore the relevant bye-law applicable would be bye-la.w no.25(2) (IV) (B) of the Municipal Bye-laws which puts a ceiling on F<\R at '.loo. He c tries a draw support for this contention from what neitt follows in the Zonal Developnent Plan where it is stated : "Only two areas, namely, Circular Road and Minto Road commercial areas are to be developed",. It is said that the significance of tne wrd 'only' can mean nothing than that like the other ~imilar areas, namely,. Asa£ Ali Road commercial area and Minto Road cOIIlllietciai D area, Mathura Road commercial area had no room for expansion because it was also fully developed. According to him, what follows !mmediately thereafter in the Y.aster Plan is to provide for general regulations for developnent and not to areas which are fully developed and such regulations for develoimetlt cannot therefore apply to such areaG• I am afraid, on a plain construction, the contention cantiot be accepted.

The word 'similarly•, in the corttext in which it appears, can only imply that Mathura Road commercial area a• having close resemblance even though obviously distinct in nature i.e. although Asaf Ali Road commercial area is fully developed, in comparison Mathura Road commercial area bears a marked likeness or resemblance as it is fully commercialized, But by no rule 0£ conatruction it is susceptib'.e of the meaning that it is fully developed. I cannot but tak<! judicial notice of the fact that at the time when the Zonal Developnent Plans were approved by the Central Government in November 1966, the developnent 1n the press area was still goitl/l on since the Gandhi Melllorial Hall, otherwise known as Pearey Lal Bhawan on Bahadurshall Zafar Marg was thtm under construction. Besides, even the so-celled fully developed areas, viz., the Asaf Ali Road commercial area which was not fully de\leloped, they would not be subject to the restriction FAR of 300 and a fortiori the Mathura Road commercial area so lona as they were not brought within the purview of paragraph 4(b) of the H

526 SUPREME COURT REPORTS [1985] SUPP.3 5,c.R.

A Master Plan by a notification issued by the Central Government for their inclusion in the list of 'already built-up commercial areas' as specified at· p.61. A building in these areas can always be pulled down and reconstructed with an FAR of 400. The Express Newspapers Pvt. Ltd. have placed on record a. recentadvertisement dated March 8, 1982 issued by the Delhi Development Authority as B published in the Indian Express announcing public auction of certain plots of land in the Asaf Ali Ro•d commercial area. It is mentioned in the advertisement that the auction purchaser would be entitled to construct a building ~ith the following speci- f;ications

"Apart from basement of 86 .11% of ground floor c coverage of 100%, a mezzanine floor of 25% of the grouud floor, four floors each of 75% coverage, to the benefit of a higher FAR being permitted in future, subject only to proportionate payment of premium."

It is therefore evident that although in the Zonal Develo?Jle!lt Plan for D-II area, Asaf Ali Road commercial area is described as fully developed.with no room for expansion, the FAR of which is admittedly 400, there could be still a further increase in FAR subject to payment of premium. This could only be under the provisions of the Zonal Developnent Plan for D-II area and therefore it must logically follow that the FAR prescribed in the Zonal Development Plan for Mathura Road commercial area where the press enclave is situate is 400. It is of some significance that the aforesaid advertisement had been issued by none else than P. Chakravarty, one of the members of the Three-Member Committee. It is regrettable that the Three-Yiember Colll'llittee should have purposely misled the authorities by describing the press area on Bshadurshah Zafar Marg as an 'already built-up area' which relates to the walled city of Old Delhi for which the FAR beyond 300 was not permissible. The press area is in Mathura Road commercial area which is not far from Asaf Ali Road commerc.ial area. It not only falls in the same D-II area but is treated as part of a compl~, of four c01I111ercial areas in the Zonal Develop- ment Plan for D-Il area. This press area is not even described as fully developed as is the Asaf Ali Road commercial area; it is only describe as fully conmercialized. If FAR 400 is prescribed and allowed for Asaf Ali Road commercial Area which is fully developed, it could not possible be impermissible for the press area which although fully commercialized was still not fully developed. H

EXPRESS NEWSPAPERS v. u.o.I. [A.F. SEN, J.] 527

There is no factual basis for the assertion of the A respondents that nowhere in Delhi the FAR for any commercfal area can exceed JOO. This is directly contrary to plots in Asaf Ali Road commercial area which have FAR 400 and a ground coverage of more than 90%. As already stated, the Delhi Development Authority has soJ.d by public auction ·plots which pemit construction of co111Dercial buildings with FAR of 400, basement of 86.11% and 100% B ground coverage. In Bhikaji Cama Place, the Delhi Development. Authority has auctioned plots for construction of a five-star hotel Hyatt Regency with an FAR of ioore than 500. Even 'Vikas Minar', the main building which houses the offices of the Delhi Development Authority situate on I.P. Estate, ia close.proximity to the Mathura Road Commercial Area, in the D-II area in Use Zone C D-II for which the permissible FAR is 150 has been built-up with an FAR exceeding 400.

II. The Delhi Municipal Corporation Act, 1957 : The Delhi Municipal (Building) Bye··laws, 1959 : Appli- cability of Bye-law 25(2) (IV-B). D

It is significant that the allegation of the alleged breach of FAR regulation is made for the first time in the affidavits and which forms the many plank of the arguments asserting the right of the lessor i.e. the Union of India, the re-entry upon forfeiture of lease is not foreshadowed in either of the impugned notices dated March 1, 1980 or March 10, 1980 issued by the Engineer Officer, Land & lleveloJ""'nt Office. But, since the point has been argued at great length and since the argument is that 'the permis·sion accorded by Sikander Bakht, the then Minister for Works & Housing was non-est if the FAR exceeded the legal limit of FAR 300, this question has to be dealt with on merits. According to the Union of India, both in the arguments as well as in the affidavits, it is asserted that in processing the application for additional construction i.e. of the new Express Bllilding proceeded on the basis that the FAR in the Press Area was 300. The assertion that every officer referred to only an FAR 300 for the Press Area is based upon the TCPO's note dated April 14, 1978 mentioned in Three Member Comiiittee's report in which it is specifically stated :

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

As stated above, this was factually wrong being contrary to the Master Plan and the Zonal Development Plan for the D-II area. It H

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

A is also contrary to the fact that: (1) In the Asaf Ali Road coumercial area, plots are of FAR 400 and ground coverage vf mnre than 90%, (2) In Bhikaji Cama Place plots have been auctioned for the construction of Five Star Hot"l with an FAR of more than 500; (3) Vikas Minar, the Delhi Development Authority's building is constructed with an FAR exceeding 400 situat" in 'Use Zone G : B GovernmP.nt and semi-Government Office~', for which the pemissible FAR is only 150. There i• no material on record to substantiate that there is no specific rule or bye-law laying down FAR ceiling for the Press Area was 300. In fact, ihe Union of ~ndia in the very first affidavit unequivocally admits this p~sition and avers

c " •••• It is submitted that under the Master Plan, Comnercial and Retail Zone is divided into the following parts :

(i) Connsught Place Extension, Minto Road and Ranjit Singh Road.

v (ii) Alree.dy built up commercial areas in the walled city, like Chandni Chowk, etc.

(iii) Diotrict Centres and proposed central business districts in Shahdara and Karol Bagh.

E (iv) Commuxdty Centres and retail centres shown in the Plan.

(v) Neighbouring shopping centre•

It u llO doubt true that oone of these areas make ao:r apecific reference to Presa l!oclave situated CJD llllhadurBbah Zafar Karg." (Emphasis supplied)

tt is therefore admitted that the Master Plan does not prescribe any FAR for the Press Ares in the Mathura Road commercial area. G Learned counsel appearing for the Union of India seeks to spell out a new argument that none of the officials who were conversant with the matter evHr referred to an FAR of 400 then mentioned in the Zonal Development PlaJt for D-II area (which comprises of the press -area) and contends that since in the Zonal li Development Plan the Mathura Road Commercial Area is described as

EXPRESS NEWSPAPERS v. u.o.r. [A.P. SEN, J.] 529

similar to the Asaf Ali Road cOlllllercial area which 'is fully developed with no room for expansion' and again as 1 fully comnercialized with press and other allied trade buildings built according to bye-laws applying to the press area'; the FAR of 400 (with ground coverage of 50%) as specified · in the Zonal Development Plan for D-II area cannot obviously apply to the press area. During his address he put the question : How could the Mathura Road commercial area be fully commercialized even if it is not fully developed ?

The floor area ratio or FAR is the restriction on the tlUlllber of floors in a building with reference to the plot area. The expression 'FAR' is defined in bye-law · 2(33) of the Delhi C Municipal Corporation (Buildings) Bye-i....,, 1959 in the following terns :

"2, Definitions- In these bye-laws, unless the context \ otherwise requires :- D (33) floor Area Ratio or FAR means the quotient obtained by dividing the ll!lltiple of the total of the covered area on all floors and 100 by the area of the . plot i.e.

FAR • Total covered area of all floors x 100 E Plot area"

Where FAR is not specified in the Master Plan which admittedly is the case in regard to press area on Bahadurshah Zafar Marg, the only bye-law applicable would be bye-laws 21 and 22. Bye-law 21(1) reads : F "21. Mnn,..., beigb.t of 1Jii1fldfngs :-

(1) Except with the permission in writing of the Colllnissioner, and subject to the provisions contained in bye-law 19, no building shall be erected or raised to a greater height than seventy feet as measured from G the level of the centre of the adjacent portion of the nearest street.

Note : This bye-law shall be applicable only to those buildings which are not otherwise governed by FAR wherever specified in the Master Plan." H

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

A This bye-law restricts the height of a building to 70 feet. Now, this height is to be measured from the centre of the adjacent portion of the 'nearest street'. Admittedly, as is clear from the sanction plan, the height of the new Express Builditll) is about 47 feet (see section plan of the sanction plan : l" ' 8 ft.), the adjacent portion which is the service rosd is on level ...:I.th the plinth of the additional construction. Taking Mathura Rosd as the 'n..arest street', the level of Mathura Rosd stretches from 2 ft. to 5 ft• higher than the plinth level of the additional conatruction. In any view of the matter, the additional construction could therefore be permissible if it did not exceed a height of 63 feet. 'This is because of bye-law 21(1) and also because of FAR with which is linked the ground floor cover"!!" is not specified in the Mast~r Plan. Bye-law 22 further restricts the maxi!llllD height of a building permissible under bye-law 21 and it, insofar as material, provides :

·22. 11an- height of hdldfnp with reference to width of streets :-

D Subject to the provisions of bye-laws 19 & 31, the maxilllllll height of any building abutting on t:o any street shall be regulated by the width of such street as follows :

(iv) when the width of the street is 40 ft. or more, E the maxilllllll height shall be the width of the street;

Note : This bye-law shall be applicable only to those buildings which are not otherwise governed by floor area ratios wherever specified."

F Even though the maxilllllll height of 70 feet is specified in bye-law 21, in order to avoid congestion the maxillllm height is further restricted under bye-law 22 in proportion to the width of the abutting street. In the instant case, Mathura Road which is the abutting street measures in width 150 feet (see the sketch plan of Zonal Development Plan for D-II area). This is apart from G the immediately abutting service road which, even if reckoned as an abutting street, is 63 feet in width. Therefore, applying bye-law 22(4) read with bye-law 21(1), it is the service road of the street that governs the height of the buildings in the press area as well as the number of floors, the minilllllll floor height being already specified in bye-law 19. The restriction on the Ii height of buildings is therefore governed by the ltldth of the

EXPRESS NEWSPAPERS v. u.o.I. [A.P. SEN, J.] 531

street subject to the. maxi!llJlll height of 70 feet and this is the measure adopted where FAR for a particular area is not specified in the Master Plan.

The learned counsel then adverts to the further description with reagard to the Mathura Road commercial area, namely, that the press and other allied trade buildinga have been constructed according to building bye-laws applying to 'built up areas'. According to him these bye-laws according to which the buildings have been erected were to apply to 'built up areas' so that the net result is that the Mathura Road commercial area was fully commercialized and has been built up according to the relevant bye-laws which controlled the construction of commercially built- C up area. He contends that the description contains a declaration that the whole area was a commercial area and that it was fully commercialized and the relevant bye-law applicable to the Mathura Road commercial area was and is bye-law 25(2)(IV-B) which puts a ceiling on FAR at 300. It is next contended that since the Mathura Road commercial area was a fully developed and commercial area built up according to the relevant bye-lawa, it has not been declared to be a 'development area' under s.12(1) of the Act. Sub-s.(2) thereof forbids the Delhi Development Authority to undertake or carry out development of any land in an area which is not a. development area and therefore the matter falls to be governed by sub-s.(3) which forbids development of land except with the approval or sanction of the local authority i.e. the Municipal Building Bye-lawa applicable to 'built up areas' which evidently refers to bye-law 25(2)(IV-B). The relevant provisions of bye-law 25 provide as follows :

"25. Permissible covered area :- F (1) Notwithstanding anything contained in these bye-laws no building shall be erecte1 or allowed to be erected in contravention of the Master Plan or any Zonal Development Plan.

(2) The following provisions shall apply to buildings in different use zones :-

IV. Coomercial and Retail ZOoes

A. Minto Road and Ranjit Singh Road area.

B. Already built-up commercial areas as indicated in the Master Plan or such other areas as may be declared

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

c011111ercial areas by the appropriate authority from time to time.

(a) <'.oftrage :

The maxilllllll permissible coverage shall be subject to the provisions of bye-laws 26 & 27 and the requirement of the FAR as provided in sub-Cl.(b) below.

(b) l .A.R. :

The FAR shall not exceed in the case of baild!ng having the storeys mentioned in colwnn 1 !Molow by the figure mentioned in colwnn 2 below :- c

Two storeys 150 Three storeys 200 lJ Four storeys 250 More than Four storeys 300

(c) STOIU!iS :

The number of storeys shall be subject to the E provisions of bye-law 22 relating to the mu:lmm height, of bye-law 31(1) & (2) relating to air and light planes and the provisions that the FAR does not exceed 300".

The contention put forward by learned counsel for respondent F NO. 1 is that there are two important factors governing construction of buildings viz. the ground floor coverage and the FAR. Normally, for all c0111Dercial buildings, the ground floor coverage is 25%. However, under bye-law 26 read with t"ne note appended thereto, as amended in 1964, for certain coonercial buildings ground floor coverage of 80% is permitted. He relies upon the relevant portion of bye-law 26 which reads :

"26. Open spaces in ec-rcw and Public B11fld!np :-

No c0111Dercial or public building or ground of such buildings in any bazar, market or conmercial area shall have a ground floor covered area of more than 80 per cent of the area of the plot ••••••••

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 533

Note : This bye-law shall be applicable only to buildings covered by bye-law 25(2) (IV-B)".

He accordingly contends that all buildings in the press area including the new Express Building have a ground coverage of 80% under bye-law 26 and to such buildings bye-law 25(2)(IV-B) which limits the FAR to 300 is applicable. B

The fallacy of the argument of the learned counsel lies in the assumption that all buildings in the press area including the Express Buildings are constructed with a ground coverage of not more than 80% under bye-law i6 and therefore only bye-law 25(2)(IV-B) which ltnrl.ts the FAR l:o 300 is applicable in this c case. The contention overlooks the note appended to bye-law 26 which reads:

"This bye-law shall be applicable only to buildings covered by bye-law 25(2) (IV-B)," D Bye-law 25(2)(IV-B) only applies to 'already built-up commercial areas as indicated in the Master Plan or such other areas as may be declared as commercial areas by the appropriate authority from time to time'. As already stated, the expression 'already built-up commercial area' as defined in the Master Plan at pp.6o-61 refers to the walled city of Delhi like Chandni E Chowk, etc. The list of already built-up commercial areas admittedly does not include the press area on the Mathura Road.

The matter can also to viewed from another angle. At the time of construction of buildings in the press area, there·were no restrictions as to the FAR along the Mathura Road and the only restriction on construction of such buildings was that the allottees of the plots in the press area should construct buildings upto a height of 60 ft. The petitioners constructed the old Express Building to the east of the sewer line with an FAR of 260 with reference to the entire plot leased to them i.e. plots nos. 9 and 10 although the building occupied only half of the area. After construction of the old Express Building to the east of the sewer line in March 1958, the perpetual lease was executed on March 17, 1958. The supplemental lease was also executed in November 1964.· These documents were in conformity with the agreement for lease entered into on May 26, 1954. The said building was to be constructed in accordance with the plans and specifications as had been previously proposed and submitted by the Express Newspapers Pvt. Ltd. and approved of in writing by H

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

A the Chief Conoissioner of Delhi which permitted construction by the petitioners of a buildill.ll on the entire ar~• of plots nos. 9 and 10 with 100% ground coverage as stated above.

After the discovery of the underground sewer pipeline by the ;ietitioners which was a fa~t only within the knowledge of the B Central Government and had not been disclosed to the Express Newspapers Pvt. Ltd. at any time, the parties entered into negotiations for mdification of the agreement. It was agreed between the parties that in view of the drain running through the plots and till the drain was not diverted, the petitioners would construct their building only to the east of the drain and in such a way as to leave 'the drainage system unaffected. The C petitioners .-ere thus disabled from building on a substant18.l part of the land allotted to them until the underground drain was realigned outside che boundary of the leasehold premises. In effect, an area of 2740 square yards to the west of the drain had to be left as a residual piece of land out of the total area of 5703 sq. yards. It is pertinent to observe that all other newspapers like the Times of India, Patriot, National Herald etc. D who had been granted simila: plots on the Mathura Road on same conditions and were allowed to build on the entire area of their respective plots without any restrictions whatever. After further negotiations, the lease agreement was entered into between the parties on November 27, 1957 so as to protect the underground sewer drain and restrict the construction of the building to the E east of the drain. J.N. Ambegaokar, Under Secretary to the. Ministry of Works & Housing by his letter dated April 11, 1956 confirmed that the allotment of land to the Indian Express Newspapers on the Mathura Road had been revised on the terms set out therein. The revised allotment was subject, amng others, to the following conditions : F

1. An area of 2740 sq. yards to the west of the pipeline was allotted on a premium @ Rs. 36, 000 per acre plus 2.5% annual ground rent thereon. The said area was to be maintained as an open space i.e .. lying vacant for parking space. G

2. The remalning area of 2965 sq. yards to the east of the pipeline was settled on a premium @Rs. 1,25,000 per acre plus 2.5% annual ground rent thereon.

The Central Government reserved to themselves the right to divert the sewer line passing through the leasehold premises.

EXPRESS NEWSPAPERS v. u.o.r. [A.P. SEN, J.] 535

The effect of the revised terms as per Ambegaokar's letter was that the area to the east of the sewer line measuring 2965 sq. yards was treated as buildsble plot and the remaining area of 2740 sq.yards treated as non-buildsble plot. In respect of the buildsble plot there was admittedly 100% coverage with five floors i.e. an assumed FAR of 500 as in those days there were no building bye-laws or restrictions providing for an FAR. But II actually the old Express Building was built with an FAR of 260. Significantly, a separate ground rent and separate premium wss chargeable for the buildsble plot on which · the old Express Building stood @ Rs.1,25,000 per acre and a ground rent of 2.5%. The lessor i.e. the Union of India left with the Express Newspapers Pvt. Ltd. the area to the west of the drain measuring C 2740 sq.yards on a reduced premium @ Rs. 36,000 per acre and a ground rent @ 2.5% thereof. It was evidently not within the contemplation of the parties that the area so kept was to be kept green in perpetuity i.e. an area which could not be built upon under any circumstances because the premium chargeable therefor was @ Rs. 4,840 per acre. D

It !lllst therefore be held that the permission granted by Sikander Bakht, the then Minister for Works & Housing for the construction of the new Express Building with an increased FAR.of 360 with a double basemant for installation of the printing press was not in violation of the Master Plan for Delhi or the Zonal E Development Plan for D-II area or the Delhi Municipal Corporation (Buildings) Bye-laws, 1959 inas!lllch as ex facie bye-law 26 read with 25(2)(IV-B) was. not applicable tothe press area on the Mathura Road. Admittedly, the Master Plan does not prescribe any FAR .for the press enclave. The Zonal Development: Plan for the first time prescribed FAR for the four commercial areas for general business and c0111Dercial areas, namely : (1) Asaf Ali Road F Commercial Area ( 2) Minto Road Conmercial Area ( 3) Mathura Road C0111Dercial Area, and (4) Circular Road Commercial Area (opposite _the Ramlila Ground). All these commercial areas fall within D-II area for which the Zonal Development Plan prescribes an FAR of 400. G Validity of the show cause notice dated March 1, 1980 issued by the Zonal Engineer (Building), City Zone, Municipal Corporation, Delhi under ss. 343 and 344 of the Delhi Municipal Corporation Act, 1957.

At the Press Conference convened by respondent no.2 on March l, 1980, he handed over a press relea~e alleging that the H

536 SUPREMI! COURT REPORTS [1985] SUPP.3 s.c.R.

A additional building put up by petitioner no.l, Express Newspapers Pvt. Ltd., was in contravention of law and inter alis it was stated that the Municipal Corporation had been adViSed to take imnediate action in regard to the unauthorized deviations frO!ll the sanctioned plan. On the same day, the Zonal Engineer B (Building), City Zone, llunicipal Corporation, Delhi served a notice to petitioner no.l, to show cause why action should not be taken for demolition of the structures set out therein under ss. 343 and 344 of the Delhi Municipal Corporation Act, 1957. The objected portions of construction in terms of the impugned show cause notice are as under :

c "(l) Construction of an upper basement without sanction or, in other words, a working platform or installations of the machinery; and

(2) Unauthorized construction of an excess basement beyond sanction."

D The three alleged unauthorized constructions are

(a) A triangular pit dug in front of the building;

(b) A left working platform in the basement; and

E (c) The basement beyond the plinth area of the new buildinii:·

Each of these structures was specifically approved by the Delhi Development Authority as per 'usual norms'.

Section 53(3)(a) of the Delhi Development Act provides, inter alia, that :

"53(3). 1'1otwithstanding anything contained in such other law -

(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 carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has not been obtained."

li The words 'such other law' within their amplitude include a law like the Delhi Municipal Corporation Act and the Delhi Municipal Corporation (Buildings) Bye-laws, 1959 framed thereunder. The

EXPRESS NEWSPAPERS v. u.o.r. [A.P. SEN. J.) 537

non- obstante clause in s. 53(A)(i) clearly gives an overriding effect to the sanction granted by the Delhi Development Authority for the construction of the new Express Building with an increased FAR of 360 and a double basement for installation of printing press or the working platform. The effect of grant of such permission by the Authority was to modify the sanctioned plans of the Municipal Corp0ration to that extent. That apart, the terms 'development' as defined in s.2(d) of the Act includes the carrying out of buildings ••••• in, on, over or under land •••• in any building etc. and is wide enough to include the structures in question. As the Authority approved each of these structures for which the impugned show cause notice had been issued by the Zoual Engineer (Building), City Zone, Municipal Corporation, it c is clear that he had acted beyond his authority and power.

The impugned notice alleges that a basement was under construction in the triangular portion of the plot. In fact, the alleged construction was not a basement at all. The circumstances under which the triangular pit came into existence has been D explained by the petitioners. It appears that while the under-ground sewage drain was being diverted, it burst and water from the drain flooded the entire pit that had been dug for the foundation of the building and they allege that water had reached 14 ft. in height and it endangered the foundation of the original Express Building. The service road parallel to Bahadurshah Zafar E Marg was also in imninent danger of caving in. Petitioner no. l had therefore to build supporting walls which became a storage tank. The construction of walls in the triangular area was meant to strengthen and re-enforce the foundation of the original building as well as to prevent the road from caving in. What alleged in the show cause notice as a proposed basement under construction was merely for fortuitous construction necessitated by the drain flooding the pit and now it is merely meant to house a water static tank needed for fire fighting purposes. Such fire fighting arrangement is necessary to prevent fire hazard which inflicted huge losses in various uulti-storeyed buildings like Kanchunjunga and the Hindustan Times buildings. The Express Newspapers Pvt. Ltd. further allege that they were advised by the fire-brigade authorities to construct a static tank.

It would, therefore, appear that 'excess basement' is in two parts

"(l)So uuch of the excess basement as was the result of subsidence of 8000 sq. ft. of land caused by bursting of a part of the sewer line while it was

538 SUPRE.'1E COURT REPORTS [1985] SUPP.3 s.c.R.

A being shifted. The petitioner no. 1 built supporting walls which became a storage tank and it covers an area of 4,500 sq. ft.

(2)Underground tunnel, meant for use as a passage for labour and movement of news-print from the old to the II new Express Building and it measures 450 sq. ft."

The Municipal Corporation is treating this storage tank as an unauthorized construction. It was got deleted from the sanctioned plan because in the original plan there was a provision for a smaller water tank. Ultimately, the objection is to a bigger storage tank. c There is no dispute that all the structures are below the ground. The main purpose of the upper basement i.e. a working platform measuring 6000 sq. ft. was meant to work the printing press. Without the water storage tank the Express Newspapers Pvt. Ltd. would not get the completion certificate and it is difficult to understand how the underground tunnel passage, to connect the old and new Express Building would cause traffic hazard. At any. rate, such minor deviation would not result in a demolition of the Express Buildings. The manner in which the impugned notice was got issued by the Municipal Corporation at the direction of respondent No. 2 shows that it was done with an ulterior purpose. The illegality of the action is writ large and the manner in which it was done creates a ground for belief that the action was motivated.

The Express Newspapers Pvt. Ltd. were asked to show cause within three days from the date of issue of the notice as to why an order of demolition should not be passed under sub-s. (1) of F s.343 failing which action was to be taken for demolition under sub-ss. (2) and (3) of s. 344. It is evident from the list of dates furnished by the learned counsel for the Municipal Corporation that during the period from February 18, 1980 to the date of issue of the impugned notice; the officials of the Municill81 Corporation had been waiting upon respondent no. 2, G holding inspection of the premises and directly reporting to him in respect of the alleged deviations. It is alleged that the second basement was not in the sane tioned plan which measured 8914 sq, ft. (according to petitioners it measured only about 6000 sq. ft.) and the excess basement over the sanctioned base- ment works out to 5450 sq. ft. and of which the water storage li tank measures 4095 sq. ft. and the under-ground tunnel measures about 500 sq. ft. and, therefore, ss. 343 and 344 of the Act were attracted.

EXPRESS NE:ISPAPERS v. U,Q,I, [A.i'. SEN, J.] 539

The contention of learned counsel appearing for the A Municipal Corporation is that the Express Newspapers Pvt. I.td. have been guilty of suppressio veri as they have not mentioned the fact that on the objection of the Municipal Authoritias, they deleted all the aforementioned three portions set out iu the notice. It was urged that the construction of tllese structures was admittedly carried on in violation of the sanctioned plan. It B was pointed out that the tank as recommended by the Chief Fire Officer by his letter dated Jar.uary 5, 1979 was for the cons.truction of an underground water storage tank over the area of 550 sq. ft, for the requirement of fire fighting and Fire protection measures. It was, hwever, asserted that the recommendation of the Chief Fire Officer was not aco.ording to C building bye-laws and, therefore, not binding on the Municipal Corporation. The proposal for the construction of a water storage tank in a corner of the building covering 550 sq. ft. was accordingly got deleted. It was also pointed out that t.he water storage tank as constructed measuring 4095 sq. ft. WSE eight times bigger than the one recommended by the Chief Fire Officer. D I am afraid, I am unable to appreciate this line of reasoning. If a water tank of this magnitude was .permitted to be constructed, the water stored in it would be sufficient for the entire Press Enclave at Bahadurshah Zafar Marg. I fail to see any rational basis for the objection raised. The Express Newspaper& Pvt. Ltd. have at a considerable cost, constructed a large enough water storage tank to serve the entire Press Encla·'e and if . it ls sufficient to serve all the buildings on Bahadurshah Zafar Marg, the Municipal Corporation should, indeed, thank the Express Newspapers Pvt. Ltd. for making provision for the protection of all the buildings. In the rec~nt past, the devastating fire which engulfed many Dlllti-storeye,d buildings like Hiw!ustan Times, Kanchunjunga, Gopala Tower etc. showed that the authorities could not bring under control such fires for want of sufficient water , facilities . •

s. 14 of the Delhi Development Act which applies to all areas in Delhi irrespective of whether such area is a development or non-development area or a slum area, lays down that .the use of the land shall be in accordance with the plan, i.e., in conformity with the Master Plan and Zonal Development Plan. The Press Area falls within the 'Use Zone' C-II which l.s dealt with at page 50 of the Printing Master Plan. It is evident from the uses as specified for the said zone that installation of printing machinery for production of newspaper has to be specially permitted by the Delhi Development Authority 'under Special H

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

A Appeal' provision laid down in the Master-Plan read with s. 14 of the Act. It is in pursu&1C£ of these statutory provisions that the letter dated November 4, 1978 of the Joint Director (Buil~.ing), Delhi Development .Authority was addressed to the Express Newspaper• Pvt. Ltd., inter alia permitting the Express Newspapers Pvt. Ltd. to instal in the basement printing press B machinery like ao.y other service machiney. It is apparent from the building plan that the Delhi Development .Authority approved of the same with the second basement 'as per norms of ground coverage and F.A.R.' and the permitted second basement of 14,440 sq. ft. However, it appears that the Munidpal Corporation while granting sanction to the building plan on January 9, 1979, got deleted the basement beyond plinth line as well as the second c basement with the observations that 'it in no manner overpowers the authority of the Delhi Development Authority or any other person or body'. In view of the difficulty created, the Express Newspapers Pvt. Ltd. did not construct the second basement of 14,440 sq. ft. but limited the construction to a working platform of about 60GJ sq. ft.

D The Express Newspapers Pvt. Ltd. hsve specifically averred in sub-paras (a) to (k) or para 33 that the machines they have planned to instal and which hsve been specifically permitted to instal in the basement by the Delhi Development .Authority, are of 24 sq. ft. in height from the foundation. This is the reason why on account of which, the height of the basement hss been sanctioned at 26 ft. The newsreels are fed at the bottom of those machines and the printed matter is collected at the top i.e. on the second basement for delivery to vans and trucks at the street level. The Express Newspapers Pvt. Ltd. have produced photographs which show the two levels of the machines that are to be installed in the basement. One has, therefore, to approach the machines at the bottom to feed the news-print in and at shoulder level to receive the printed papers as well as to service the machines. All modern printing presses require a slab or a working platform where the printill!; paper is received and from which the machine can be served. The working platform is a necessary appurtenance which is incidental to and necessary for, the machines to be installed by them. They further allege that in the Indraprastha Estate itself, buildings of the National Herald, the Institute of Chartered Accountants, the Times of India and Milap, amongst others, have were than one floor beneath the ground floor. The construction of these structures hss been specifically sanctioned by the Municipal Corporation. They have placed on record, the sanctioned plans of the Times of India and the

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, .J.] 541

A National Herald alloWing them to construct such a working plitform. The photographs relating to the Times of India building which is only 300 yards away from the Express Buildings show thst such a platform hsd been constructed and is in regular use in the Times of India building. The working platform in the Times of India building is a concrete platform B measuring about 6000 sq.ft. The petitioner• contend thst allowing their competitors to construct such a working platform and disallowing construction of the platform in the case of the Express Newspapers Pvt. Ltd. is clearly violative of the petitioners' fundamental ri8ht to equality before the law guaranteed by Art. 14 of the Constitution. Further, in case the c Express Newspapers Pvt. Ltd. are denied the facility of such a platform, the machinery would be rendered ineffective and this would be a serious infringement of their fundamental right to freedom of speech and expression and the right to carry on any trade or business guaranteed under Arts. 19(l)(a) and (g) of the Constitutfon. D

The petitioners' case is that the working platform which the respondents wrongly described as a double basement is incidental to and absolutely essential for the machines. The choice before them was to construct it with wood, tin or R.c.c. slab. They prP.ferred to build it in R.c.c. A working platform made of wood would have been a serious fire hazard. Beneath it, at given time almost the entire basement would be stacked with news-print reels which are highly combustible. The ink a large stock of which hsa also to be stored in the basement is als0 highly combustible. Moreover, the number of electric wires and connections is so large that it could not run the risk of a wooden platform. Finslly, i f wooden platform was constructed, considering the heavy loads it would have to bear, would have required frequent and extensive maintenance. A working platform of steel would have presented similar problems; it is a conductor of electricity and hence a hazard to the workmen and it would have been extremely noisy which would have required frequent and extensive maintenance. Thus, from all points of view, those of safety, economy and efficiency, the petitioners cast a R.c.c. slab as being more appropriate for the needs of the Press. From the photographs on record, it is quite apparent that the printing press is a heavy machinery which is installed on the lower basement with a height of 24 ft.

The petitioners have alleged that in the lndraprastha Est~te B itself, buildings of the National Herald, Institute of Chartered Accountants, the Times of India ond Milap, amongst others, have

542 SUPREME cour:r REPORTS [1935] SUPP.3 S.C.R.

A more than one floor beneath the ground ~loor. The construction of these structures has been specifically sanctioned by the Municipal Corporation.

·The petitioners contend that the slab of the working platform constructed by them does not fall within the meaning of' JI the expression 'covered area' in sub-cl.(22) of cl.2 of the Building Bye-laws, since it is below the plinth level. There is, therefore, no addition to the c0vered ar~a at all. The Delhi Development Authority which granting sanction clearly stated that the area of the basement would not be inc1".de~ in the calculation of F.A.R. The petitioners also contend that the erection of such a platform does not fall within the meaning of the expression 'to c erect a building' which is defined in s. 331 of the Delhi MtJnicipal Corpo.'ation Act to mean to erect or re-erect a building and hence no sanction is . required for the same. The Delhi Development Authority specifically approved construction of double basement as per the plan approved by it. and in terms of s.53{3) of the Delhi Development Act, such approval has an D overriding effect, and, therefore, the Zonal Engineer {Building) acted beyond his authority in issuing the impugned notice under s•• 343 ~nd 344 of the Act.

As already stated, the petitioners have clearly averred that such a working platform exists not only in the old Indian Express 4j

E building but also in the Times of India and the National Herald 1 buildings, amongst others, in the press Enclave and this has not been denied by the Municipal Corporation. In fact, the answer is building plan of the Times of India was sanctioned before the Corporation itself had come into existence i.e. in 1957, when in fact, the building plan of the Times of India was sanctioned in the year 1962. Similarly, the building plan of the National Her!ild was sanctioned in the year 1964. It is difficult to believe that the Municipal Corporation is not aware that such a working platform is absolutely essential and is necessary for the printing press. If the upper basement of the working platform constructed by the Express Newspapers PVt. Ltd. is den>:llished, the installation of the printing press itself in the lower basement with the sanction of the Delhi Development Authority under the appropriate statutory provision would be nullified and the Express Newapapers PVt. Ltd. would not be in a position to operate the printing press at all.

H The contention of the learned counsel appearing for the Municipal Corporation is that under the Master Plan and the Building Bye-laws, not more than one basement is permissible and

EXPRESS NEWSPAPERS v. u.o.I. [A.P. SEN, J.] 54~

that any basement more than one will have to be reckoned for the purpose of FAR appears to be only mis-conceived. It is evident from page 16 of the Printed Master Plan and the Zoru>l Development Plan for D-II ai:ea at pages 935 and 936 that semi-basement, me$ning a second basement is permissible under the Master:-Plan as B well as the Zonal Development Plan. The Bye-laws of the Delhi Municipal Corporation do not pr~hibit second basement and on the contrary bye-law 54 uses the term 'basements'. In respect of cOlllllercial zone in 1"'.into Road in R~njit Singh Road, bye-law 25 (2) (IV) specifically provides for a semi-basement. Our attention was drawn to the statement of the Minister for Works & Houaing c made in·the Parliament on November 5, 1982, showing that iu the Meridian Hotel, a 5-Star hotel, sponsorded by M/s. Pure Drinks not only tuo basements have been permitted but also a semi-basel!l>nt and a service floor without reckoning any one of them for computation of FAR. Further, the advertisement& issued by the Delhi Development Authority for auctioning hotel sites at D Bhika.ji Cama Place and New Friends Colony show that the double basements are permissible and have, in fact, been permitted in the case of these hotels.

It is urged that the Express Newspapers PVt. Ltd. have no right to construct the upper basemen~ particularly when the E Corporation refused to accord sanction to it and that, in any event, it was not such an unavoidable necessity as to break the law. It is said that the se-oond basement, conveniently called, the working platform for the operation of flouncine of the printed newspaper is just an afterthought. He argued that even if •ome receiving floor may perhaps be necesMry to receive the printed newspaper from the machine, it could be achieved by F locating the machines on a suitable pedestal or by laying the floor of the basement in such a manner as to discharge the news- papers on the ground floor. It .1.s difficult to conceive how the huge printing press with a height of 24 ft. could be placed on a pedestal or be laid on the floor of the basement in such a manner as to discharge the newspapers on the ground floor. It is cOllllkln G ground that there is a working platform in all the other printing presses in the same line of buildings like that of the Times of India, the National Herald, Patriot and the old Indian Express Building. In all these buildings, the printing presses are installed in the lower basement and there is an over-hanging platform in the printing press in each of the buildings to receive the printed material. I do not see any justification for H the Municipal Corporation to object to the construction of the working platform. If the Municipal Bye-laws do not permit the

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

A construction of a double basement then they would be clearly violative of Art. 14, 19(1) (a) and 19(l)(g) of the Constitution.

Shri M.C. Bhandare, learned counsel appearing for respondent nos. 3 and 4, Municipal Corporation of Delhi and Zonal Engineer (Building), City Zone, Municipd Corporation, Delhi is fair B enough to state that if the Express Newspapers Pvt. Ltd. were to make an application for modification of the sanctioned plan pertaining to the new building with respect to the basement and the working platf onn which according to the Municipal Corporation constitute double basements and the inter-connecting underground passage connecting the existing Indian Express Building, the same shall be considered having regard to consideration of c justice and the needs of the petitioner& and also taking into consideration that the new building has been constructed for installing a printing press and that the press so installed cannot function without the working platfonn which the Express Newspapers Pvt. Ltd. have already constructed, as well as the fact that the underground passage has been constructed by them for inter-connecting the new building with the existing Indian D Express Building. He further states that the Municipal Corpora- tion will compound the deviation which is mini1llllll on payment of such composition fee as is payable under the bye-laws.

Learned counsel states that this shall not be treated as precedent for others. E Applicability of the doctrine of promissory eetoppel

In my considered opinion the Express Newspapers Pvt. Ltd. having acted upon the grant of permission by Sikandar Bakht, the then Minister for Works &Housing and constructed the new Express F Building with an increased FAR of 360 and a double basement in conformity with the permission granted by the lessor i.e. the Union of India, Ministry of Works & Housing with the concurrence of the Vice-c!iainnan, Delhi Development Authority on the amalgamation of plots nos. 9 and 10, as ordered by the Vice-c!iainnan by his order dated October 21, 1978 as on 'special G appeal' as envisaged in the Master Plan having been directed, the lessor is clearly precluded from contending tl]at the order of the Minister was illegal, improper or invalid by application of the doctrine of promissory estoppel.

In 1948, Denning, J. in RobertSOll v. Minister of Pensions, H L.R., [1949] 1 K.B. 227, laid the foundation to the applicability

EXllRESS t.'EWSPAFERS v. - u.o.r. [A.P. SEN, J.] 545

of promissory estoppel in public law. As Prof. de Smith in his A Judicial Review of Adnd.nistrative Action, 4th edition at p.103 observes :

"There is a growing body of authority, attributable in large part to the efforts of Lord Denning, to the effect that in some circumstances when public bodies B and officers, in their dealings with a citizen, take it upon themselves to asswne authority on a matter concerning him, the citizen is entitled to rely on their )laving the authority that they have asserted if he cannot reasonably be expected to know the limits of that authority; and he should not be required to c suffer for his reliance if they lack the necessary authority."

The learned author then states

''llut it is extremely difficult to define with any degree of precision the circumstau~es in which the courts will be prepared, in the interest of 'fairness' to the individual to derogate from orthodox notion of ultra vires. •• - --- Professor H.W.R. Wade in Administrative Law, 5th edition, at page 232 observes that the basic principle of estoppel is that a person who by some statement or . representation of fact cause another to act to his detriment in reliance on the truth of it is not allowed to deny it later, even though it is wrong. Justice here prevails over truth. Estoppel is often described as a rule of evidence, but more correctly it is a principle of law. As a principle of common law it applies only to representations about past or present facts. But there is also an equitable principle of 'promissory estoppel' which can apply to public authorities. The fact in Robertson's case were these. The War Office wrote to Robertson, an Army Officer, who had claimed a disablement pension on account of the War injury, that his disability had been accepted as attributable to military service. But for this injury the responsible department was the ~iinistry of Pensions which the War Officer had not consulted. The llinistry later decided that the disability was not attributable and the Pension Appeal Tribunal upheld that decision. In relying on the War Office letter the claimant had refrained from getting a medical opinion and adducing the other evidence whlch might have strengthened his case for such disability pension against the llinistry. On appeal H