Supreme Court of India
EXPRESS NEWSPAPERS PVT. LTD. & ORS.versusUNION OF INDIA & ORS.
- Citation
- 1985 INSC 238
- Decided
- 5 November 1985
- Disposal
- Disposed off
- Bench
- A P SEN
Holding
The impugned notices were arbitrary, mala fide, and violative of Articles 14 and 19(1)(a) of the Constitution, and the construction of the new Express Building was with the permission of the lessor, hence the notices are quashed.
Summary
The petitioners, Express Newspapers Pvt. Ltd. and others, challenged two notices: one issued by the Engineer Officer, Land & Development Office, for re-entry upon forfeiture of lease, and another by the Zonal Engineer (Building), Municipal Corporation of Delhi, for demolition of the Express Building. The petitioners alleged that the notices were mala fide and politically motivated, issued at the instance of the Lt. Governor of Delhi, who had no authority over the property of the Union. The Supreme Court held that the Lt. Governor had no power over the lease, and the notices were arbitrary, violative of Articles 14 and 19(1)(a) of the Constitution. The court quashed the notices and declared that the construction of the new Express Building with an increased FAR of 360 and a double basement was with the permission of the lessor. The review petition filed by the Lt. Governor was dismissed as lacking bona fides and based on false averments.
Issues considered
- Whether the writ petitions under Article 32 of the Constitution are maintainable for challenging executive action on grounds of violation of Articles 14, 19(1)(a) and 19(1)(g).
- Whether the freedom of the press is comprehended within Article 19(1)(a) and whether the impugned notices directly and immediately threaten that freedom.
- Whether the Lt. Governor of Delhi is the successor of the former Chief Commissioner of Delhi and has power to deal with allotment/lease of lands within the Union Territory of Delhi.
- Whether the construction of the new Express Building with an increased FAR of 360 and a double basement was in compliance with the lease deed, Master Plan, and building bye-laws.
- Whether the impugned notices were mala fide and politically motivated, and whether they were issued without authority and in abuse of power.
- Whether the doctrine of promissory estoppel applies against the government in this case.
- Whether the lessor can enforce the right of re-entry by summary procedure under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
- Whether the show cause notice under sections 343 and 344 of the Delhi Municipal Corporation Act was valid when permission had been granted by the Delhi Development Authority.
Legislation cited
- Authentication (Orders and Other Instruments) Rules, 1958
- Constitution of Indias. 14, s. 19(1)(a), s. 19(1)(g), s. 226, s. 239, s. 298, s. 299, s. 32, s. 53, s. 77
- Delhi Development Act, 1957s. 12(4), s. 14, s. 2(d), s. 41, s. 53(3)(a)
- Delhi Municipal Corporation Act, 1957s. 343, s. 344, s. 481
- General Clauses Act, 1897s. 18
- Government Grants Act, 1895s. 3
- Government of India (Allocation of Business) Rules, 1961
- Public Premises (Eviction of Unauthorised Occupants) Act, 1971s. 2(g), s. 5
Subjects
freedom of pressmala fidepromissory estoppellease forfeitureconstitutional lawadministrative lawArticle 14Article 19(1)(a)Article 32Lt. Governor powersDelhi Development ActMunicipal Corporation
Judgment
382
A EXPRESS NE.l/SPAPERS PVT, LTD. & ORS.
Vo
UNION OF INDIA & ORS,
OCTOBER 7, 1985/NOVEMBER 5, 1985
B [A.P. SEN, E.S. VE.NKATARAMI1111 MD R.B. MISRA, JJ.]
Articles 32 & 226 - Executive action challenged on grounds
of violjitions of Art. 14, 19(l)(a) & (g) by writ petition -
Maintainability of - Issues pertaining to civil rights arising
out of contracts between parties - Whether can be decided on mere
affidavits. lleld: Filing of civil proceedings only remedy - Civil
c Procedure Code, s.9.
Articles 19(1) (a) and (2) - Freedon, guaranteed under -
Whether comprehends freedom of press. - Violation of such freedom
- How to be determined.
Articles 239(1), 53(1), 72,77, 240 & 298 - Lt. Governor of
D Delhi - Whether successor of the former Chief Commissioner of
Delhi - Whether has power to deal with allotment/lease etc. of
lands falling ··1ithin Union Territory of Delhi and which is under
control and adm:f.nistration of I.and & Development Officer and
vests in Govt. of India, ~dnistry of works & Rousing - Govt. of
Part 'C' States Act 1951, sec. 21, Proviso, Authentication
E (Orders & Other Instruements) Rules 1958, Govt. of India (Allo-
cation of Business) Rules 1961 & General Clauses Act 1897, s.18.
Local Authorities -
Delhi Development Act, 1957 ss.53(3)(a), 12(4), 14,41 and
F 2{d) - Construction of a building - Permission obtained from
competent authority under the Act - whether i t will prevail
notwithstanding anything inconsistent therewith in any other law.
Delhi Municipal Corporation Ac~ 1957 ss .343, 344 and 481
read with Delhi Nunicipal Corporation (Buildings) Bye-laws 1959 -
G Bye-laws 25(2) - (IV-B), 21(1), 22(V) and 2(33) - Show cause
notice for taking action u/ss.343 & 344 - Validity of -
Permission already granted by competent authority under Delhi
Development Act 1957 to raise the structure and acted upon -
Whether raising cf structure can be questioned under ss.343, 344
- Applicability of bye-laws - Hei~ht of builoing - Restriction of
H
EXPRESS NEWSPAPERS v. u.o.r. 383
- How to be decided - Construction of press building with
A
increased FAR of 360 with double basement for installation of
printing press - Validity of - Master Plan aad Town Planning -
Whether construction legal and . in compliance with terms and
conditions of lease deed - Notice of re-entry upon forfeiture of
lease - Validity of.
B
Specific Relief Act 1963, ss. S,6 and 9 - Perpetual lease
granted to a private limited company by government for
construction of building - Provisions in lease deed for Govt. 's
right of re-entry in case of breach of lease terms - Whether
lessor can enforce that right by resort to summary procedure -
Recourse to Public Premises (Eviction of Unauthorised Occupants)
Act, 1971 - When arises - ·Public Premises (E••iction of
c
Unauthorised Occupants) Act, 1971, _ss.2(3), and (g) and 5.
Government hrants Act 1895, s.3 - Effect of. 0
Administrative Law - Mala Fides - Allegations of - Misuse
D
of Power in bad faith for collateral purpose - \Jhether amounts to
mala fide Pxercise of power - Burden and nst,.i:e of proof -
Allegations tc be definite, specific and not v_ague - Court to
accept them as true, if not controverted on affidavits.
Doctrine . of ultra vires - Scope of - Fraud on power -
E
Meaning of - Exercise of power in good faith and misuse in bad
faith - Distinction between.
Doctrine of Promissory Estoppel - Applicability of -
Whether applicable against government - Limitations - What are.
The Central Government had i::I. the year 1949 demarcated the
F
press area along the Bahadur Shah Zafar Msrg, New Delhi. It
consisted of plots Nos. l to 10 known as Press Enclave as a
C011111ercial complex. These plots were alloted to various
newspapers like the Indian Express, Times of India, Patriot,
National Herald, etc. Petitioner No.1, Expr""s Newspapers Private
Ltd,, eggaged in the business of printing and publishing a
national newspaper, Indian Express (Delhi Edition), was alloted G
plot nos. 9-10 Bahadur Shih'> Zafar Marg, New Delhi by an indenture
st}led as an "agreement for lease" executed on Msy 26, 1954
between the petitioner and the Secretary (Local self-government)
to the Chief Commissioner of Delhi by the orders and directions
of the President of India for the construction of a four storeyed
building meant to be used for a newspaper.
H
384 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A At the time of construction of buildings in the press area
there were no restrictions as to the Floor Area Ratio (FAR)
permissible along the Bahsdur Shsh Zafar Marg and the only
restriction on cons_truction of building in that area was that the
allottees of the plots should construct buildings up to a height
of 60 feet. The Express Newspapers Pvt. Ltd. was allowed to build
B upon the entire area of plots Nos. 9 and 10 with a ground
coverage of 100%, that is, edge to edge, a structure with a
mln1nnmi of five storeys including the ground floor for the
purpose of installation of a printing press for publication of a
Hindi newspaper. This permission was granted in response to the
plans subnitted by the Express Newspapers Pv.t. Ltd. and approved
in writing by the Chief Comnissioner of Delhi acting for and on
c behalf of the lessor, that is, the Union of India.
During the preliminary work of construction by the Express
Newspapers Pvt. Ltd. an underground sewer line was found to be
running diagonally across plot nos. 9 and 10. It was agreed
between the parties vide lease agreement dated November 19, 1957
that in view of the underground drain running through the plots,
D the Express Buildings would be constructed only to the East of
the drain till the drain was diverted. In effect, an area of 2740
square yards to the West of the drain hsd to be left open as
residual plot of the land out of a total area of 5703 square
yards. The Express Newspapers Pvt. Ltd. constructed the old
Ezpress Building to the East of the sewer line with an FAR of 260
E with reference to the entire plot leased to it i.e. plots Nos. 9
and 10 altho1J8h the building occupied only half of the area. On
March 17, 1958 another perpetual lease was executed by Assistant
Secretary (LSG) to the Chief Comnissioner, Delhi by the order and
direction of the President of India demising on behalf of the
Union· of Indi!' in perpetuity the ~ land described therein in
F consideration of pa)'lllellt of a premium and yearly rent. Likewise,
the earlier agreement dated November 19, 1957 so also the
supplementary agreement of May 26, 1954 were also executed by the
said Officer in the a.,.., lll81Uler. Both the agreements stipulated
that the rules, regulations and bye-laws of the Municipal
Corporation of Delhi relating to buildings which may be in force
G from time to time shal~ be conformed to by the lessee.
On November 6, 1959 all functions relating to administra-
tion of leases of Government lands in Delhi were transferred from
the Chief Comnissioner .of Delhi (LSG) to the Ministry of Works &
Housing.
H
In the year 1977, petitioner No.l, the Express Newspapers
Pvt. Ltd., approached the Municipal Corporation of Delhi for
EXPRESS NEWSPAPERS v. U.O.l. 385
shifting the sewer line outside plots Nos. 9 and 10 and also
moved the lessor; the Union of India, Ministry of Worka and A
Housing for grant of requisite sanction to conatruct the new
Express Building with an FAR of 400. The Chief Engineer, Delhi
Water Supply and Sewage Disposal Undertaking granted approval to
the diversion of the sewer line at the cost of petitioner 11o.1.
Thereafter, petitioner No.l, informed the Ministry of Workll and
Housing about the aforesaid approval granted by the Municipal B
Corporation of Delhi and requested the Miniatry for advice on the
FAR permissible for the said building. The matter wu proceaeed
in the Ministry of Workll and Hou.dog at varioua ·level.II ad
ultimately on October 21, 1978, tbe Vice-Chainllll, Delh1
Development Authority took the foll.owing deciaione1 (a) to
smalgR!!l!!te plots Noa.9 and 10. and taking into account the c
existing built-up area would permit the FAii. of 360 overall; (b)
to allow the reaidual area of plota Noe. 9 and 10 to be built in
line with the Times of India and ShR!!I!! Building; (c) to ucl11de
the buement from the calculationa of the FAii. provided the
basmente are uot uaed for office purposes; (d) to penoit parking
on the service road in the - 11111111er aa it waa for the other D
buildioga in thia line. The Vice-<:hairman further directed that
the aforeaaid order waa to be treated u one under special
appeal. He accordiogly gave inatruction for iaauing 'No
Objection' to petitioner No.l for conatruction on the residual
area and to make a reference to the Government of India asking
for confirmation of the action proposed in view of the order of
the Minister for Works and Housing to clear the cases illllediately
and to obtain his !!. ~ ~ sanction. On November 4, 1978 tbe
Joint Director (Buildings), Delhi Development Authority iasued a
"No Objection Certificate" to the petitioners and the Ministry of
Works and Housing granted its !!. ~ ~ approval on November
24, 1978. Thereafter, petitioner No.l constructed its new Express
Building. F
On February 17, 1980, respondent No.2 Jagmohan assumed
office as the Lt. Governor of Delhi and on the same evening, be
s1111111Dned the Comnissioner of the Municipal Corporation of Delhi
and called for the files relating to the construction of the new
Express Building at Bahadur Shah Zafar Marg, New Delhi. On the G
next day, the necessary files were made available. On February
20, 1980, some important files of the Delhi Development Authority
relating to the Express Buildings were sent to respondent No.2.
On February 29, 1980, respondent No.2 through the Colllllissioner
Municipal Corporation of Delhi caused the loclr.s of the office and
cupboards of the Zonal Engineer (Building) to be brolr.eil open to
H
386 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A take away the files relating to the new Express Building. On
March l, 1980 respondent No.2 convened a press conference in
which he handed over a press release alleging (i) that the new
Express Building put up by the petitioners was in contravention
of law in several respects; (ii) that he had ordered an inquiry
to be made by a conmittee of three of his subordinate officials
B and (iii) that the new Express Building might have to be
demolished. On the same day, although the relevant files had been
removed from his office, the Zonal Engineer (Buildings), City
Zone, Municipal Corporation of Delhi served a notice on
petitioner No.l, to show cause why action should not be taken for
demolition of the Express Buildings under as. 343 and 344 of the
Delhi Municipal Corporation Act, 1957. On March 4, 1980, a second
c press releas~ was issued from the Raj Nivas, to justify th<.!
action of respondent oo.2 in initiating the inquiry. The issue of
show cause notice again figured in a third press release dated
March 8, 1980. The Ministry of Works and Housing also submitted
the files relating to the construction of the New Express
BuUding to respond~t No.2 on March 7, 1980. On March 10, 1980
the Engineer Officer in the Land and Develop11ent Office under the
D Ministry of Works and Housing also issued a notice to the
petitioners to show cause "!thin 30 days as to why the property
should not be re-entered under clause 5 of the perpetual lease on
the grounds: (i) that the construction of the New Expresa
Building waa without permission from the lessor under the terms
of lease; (ii) that the pla.ns were not submitted for the sanction
E under the terms of lease by the lessor; and (iii) that the plans
were in contravention of cl.2(5) and 2(14) of the lease deed. On
March 12, 1980 at a specially convened Press Conference,
respondent No.2 released the report of the Comnittee of his
subordinates which substantiated the view of respondent No.2 and
also found that petitioner No.l was liable to pay Ra.35 la.ca as
conversion charges.
The petitioners .:hallenged the validity of the aforesaid
two notices before the Supreme Court under Art.32 of the
Constitution on the grounds: (i) That the Lt.Governor appointed
by the President under Art. 239(1) of the Constitution is an
G Administrator and he discharges such functions as are entrusted
to him by the President of India and in the absence of a
notification under Art. 239(1), the Lt. Governor cannot usurp the
functions of the Union of India in relation to the properties of
the Union: (ii) that the W.eutenant-Governor is not a successor
of the Chief Coumissioner of Delhi. There was no notification
H
issued by the President under Art. 239(1) of the Constitution for
EXPRESS NEWSPAPERS v. U.O.I. 387
the conferral of any power on tbe Lt. Governor to administer the A
lease in question; (iii) that it is inconceivable that after
October 1, 1959 when the administrative control over the Land &
Development Officer wss transferred from tbe Delhi Administration
to the Minis try of Works & Housing and by virtue of a notifi-
cation issued under Art. 299(1) the Secretary, Ministry of Works
& Housing wss made the competent authority to act for the B
President with regard to any contract, grant or assurance or
property of the Union, tbe Lt.Governor could still arrogate to
himself the powers of the Union of India, Min.i.s try of Works &
Housing in relation to the lease; (iv) that respondent No.2,
Jagmohan, is actusted with personal biaa against the Indian
Express which had published an article in the Indian Express in c
April 1977 with regard to his role during the period of Emergency
in Turkman Gate dem:ilitions. The proposed action of re-entry by
the lessor i.e. the Union of India, Ministry of works & Housing
- at tbe instance of the Lt. Governor of Delhi is an act of politi-
r.al vendetta. The impugned notices have been issued with an evil
eye and an unequsl hand and with a deliberate design to compel D
tbe petitioners to close down the Express Group of Newspapers in
general and the Indian Express in particular. The said notices
are ex-facie illegal and without jurisdiction and are contrary to
factusl and legal provisions. The arbitrary and discriminatory
initiation of executive action under the guise of alleged
infraction of the terms of the lease and/or the Master Plan of E
Delhi and or tbe lllllnicipal building bye-laws is violative of the
petitioners' fundamental rights under Arts.14, 19(l)(a) and
19(l)(g) of the Constitution; (v) that the impugned notice issued
by the Zonal Engineer (Building) City Zone, Municipal Corporation
of Delhi dated March 1, 1980 was illegal and void as be did not
., apply his llind at all to the question at issue but ..,rely
' issued tbe 181111! at the instance of respondent No.2. The F
construction of the said building was not without or contrary to
the sanction referred to in s.336 or in contravention of any of
the provisions of the Act or bye-laws made there.under; (vi) that
the erection of the double basement or a working platform in a
printing press like the Express Newspapers Pvt. Ltd. is a
compoundable deviation from the sanctioned plan and the G
insistence of the Municipal Corporation of Delhi to .demolish the
same suffers from the vice of hostile discrimination. (vii) that
the construction of· the new Express Building with an increased
FAR of 360 wss in conformity with clause 2.(5) of the perpetual
lease dated March 17,1958 inasnuch as it wss with the express
sanction of the lessor i.e. the Union of India. In terms of the
Govern...nt of India (Allocation of Business) Rules, 1961 as well H
388 SUPREME COURT REPORTS [1985] SUPP.3 S.C.R,
A ea Ulldar a notification issued Ullder Art.299(1), the Ministry of
Worka & Housing with the Minister at the head waa and is the
ultimate authority re1ponsible to deal with the property of the
Union 8Dd to enter into all contractual obligations relating
thereto. The Minister had not only full authority, power 8Dd
juri1diction to grant permis1ion to the petitioner• to construct
B the new Ezpress Building with an increued FAR of 360 with a
double basement for the installation of the printing prea1, but
the action taken by the then Government waa in good faith after
tsking into consideration all the circumstance• attendant at all
levela. (viii) tl!llt there could be no objection to the construc-
tion of the new Ezpreas Building with an increaaed FAR of 360 as
it allond the residual area of plota Noe. 9 and 10 to be built
c in line vith other building• along the Bahadur Shah Zafar Marg.
Furthar, the llu ter Plan for Delhi aubaequently approved by the
Central Government in the year 1962 doe• not mention the preas
area on the Bahadur Shah Zafar Marg comprising of the preH
enclave• Although specified u a C011111ercial area, it ia not
liated in the li1t of "already built-up ~rcial areaa" beca111e
.
it relates to the walled city of old Delhi. The Zonal development
D plan for D-II ar,.. within vbich the preH plota are located alao
perlllitted an FAR of 400 for the prees area in the Bahadur Shah
Zafar Marg. Therefore, all that the then Minister for Worka &
llouaing did wea to rutore to the petitioner& the right that
they acquired under the perpetllll leue dated March 17, 1958 i.e.
to he treated a1iM alongwith other plot-bolder• in that area and
E a denial of •uch equal terms would be oppoaed to the principle&
of equality besid~• being violative of Art.14 of the Consti-
tution. (ix) That ~be Ezpreaa Building at 9-10 Babadur Shah Zafar
Marg forms the nerve-centre of the Ezprea• Group of Newspapers as
the ed1 to rials and the leading articles of the Indian Ezpress are
sent out and the e41tor1al policy laid down from Delhi office to
F ten centres all over India· In this factual background, the
impugned notices have a direct impact on the freedOll of the press
and being in excess of governmental authority and colourable
exercise of statut11ry powers, are liable to be struck down as
offending Art.19(l)(a) read with Art.14 of the Constitution. (x)
that the lessor i.e. the Union of India ie estopped by the
G doctrine of promissory estoppel 8Dd cannot therefore go back upon
all assurances given and actions taken by the previous govern-
ment, particularly When the petitioners had acted upon the deci-
sions so reached aDd had constructed the new Ezpreas Building
with a coat of approximately Rs.1.30 crorea by February 1980
which at present would coat more than Rs.3 crorea.
I!
EXPRESS NEWSPAPERS v. U.o.I. 389
It..,.. contended on~ of respondent No.l, the Union of
India; (1) · that the right to occupy the land leased for the
construction of a building for inatallation of a printing press
ia not within Art. 19(l)(a) nor within Art. 19(l)(g) wt llUCb a
right ia derived fran a grant or contract; (2) That the right
arising out of a statute or out of a contract cannot be a fund&- B
lllelltal right itself. Once ·a contract ia entered into or a grant
ia · made, the rights snd · obligationa - of the parties are not
governed by Part III of the Constitution but by the terms of the
docrnnent et.bodying the contract or the grant, snd any cmplaint
about its breach cannot be a matter· for grant of a writ,
direction or order under Art. 226 of tbe Constitution, much less c
under Art.32, snd since the petitioners are seeking to enforce a
contractual right, it cannot be decided on a petition under Art•
32 of the Constitution. (3) That the content of Art. 19(l)(g) of
the Constitution 1'0U1d not include the right '1hich ia. guaranteed·
by other cJsuses of Art.19 (4). That. the argument of the
petitioners thst ·the. 'bodldfng in ·.question is necessary for D
rmming .the press and any statutory or executive action to pull
it d0>1n or forfeit the lease 1'0U1d directly :IJDpinge on the right
of freedan of speech and expression under Art. 19(1)(g) ia loibolly ·
misconceived inasmuch as every activity thst may be necessary for
exercise of freedom of speech · and expression or .thst may
facilitate such exercise or make it meaningful snd effective E
c:amiot be elevated to the status of a furularnental right. (5) That
the right to the land and the right to construct bo11ldfngs
thereon for rmming a printing press are not derived fran Art.
19(1) (a) but spring fr= the terms of the grant of such 1anda by
the Goverm.ent under the provision& of the Goveniment Grants Act,
1895 snd regulated by other k..s governing the subject viz. ·the
Delhi Development Act, 1957, the Master Plan and the Zonal F
Develoµnent Plan framed thereunder, the Delhi Municipal
Corporation Act, 1957 and the Delhi Municipal Corporation
· (Bnfldfng) Bye-Ia..s,. 1959 '1hich regulate construction of
boifldfngs in the Union Territory of Delhi irre6pective o~ the
purpose for '1hich the boifldfng is constructed. (6) That the right
to run a_ press may be a . fimdamental right guaranteed under Art. c
19(1)(a) · or Art. 19(l)(g) lxlt the right to use a particular
"
1:>11Jd1ng for rmming a press ia altogether another thing inasmuch
as no particular building is equally fit for the running of the
press and the person ·desiring to run a . press or already running
the press is at liberty to acquire another suitable bnlldfng for
that purpose. Further, even i f the- lxlildings in question '1ere
necessary for the enjoYlllellt of the rights under Art.19(1)(a) or- -- li
Art. 19(l)(g) 'a right to_ use a particular bo1lldfng does not •
- - --------- -------~---------------'------
390 5UPJ.<EME COURT REPORTS [1985] SUPP.3 S.C.R.
A become an integral part of the right to freedom of speech and
expression' or the 'right to carry on any trade of business in
printing and publishing a newspaper' and clearly therefore the
petitions under Art. 32 are not maintainable. (7) That even on a
question of fact, the direct impact of the impugned notices will
not be on the double basement wherein printing press is installed
B but will be wholly or in part on the two upper storeys which are
not intended to be wred in relation to the press or for publi-
cation of the intended Hindi newspaper but only for the purpose
of letting out the same for profit; the only other possible
effect may be the removal of the upper basement which the
petitioners call a working platform which has been constructed in
violation of the building regulations. (8) That there was no
C :Imminent danger of demolition of the Express Building nor was the
impugned notice dated March 10, 1980 issued by the Engineer
Officer, Land & Development Office, a notice of re-entry upon
forfeiture of lease. It was merely a notice of an exploratory
nature requiring the petitioners to show cause why the lease
should not be forfeited under cl.5 of the lease-deed for alleged
breaches of els. 2.(5) and 2(14) ther~f. The Petitione!:s should
D have therefore entered appearance before tbe Land & Development
Officer and showed cause against the action proposed. It was only
if the Land & Development Officer was not satisfied with their
explanation, that he would put up the papers before the Lt.
Governor for necessary action. It would then be for the lessor
i.e. the Union of India, Ministry of Works & Housing to decide
E whether or not the lease should be forfeited under cl.5 of the
lease-deed. (9) That the impugned notice by the Engineer Officer
purporting to act on behalf of the lessor i.e. the Union of
India, Ministry of Works & Housing was not based either on the
report of the Three-Menber Canmittee obtained by the Lt.Governor
or on the basis of any comnunication from him, (10) That the
F Lt.Governor had no powers in ~elation to the properties of the
Union and, therefore, the Union of India is not bound by the acts
of the Lt. Governor. The Lt. Governor had no power in relation to
the lease and, therefore, he could not usurp to himself the
powers and functions of the Union of India in relation to the
lease deed. However the Lt.Governor as the Administrator had to
G keep himself informed and cannot be said to have acted mala fide
merely because of any possible personal malus animus on his part,
i f the quality of the action was itself in complete accord with
the law. (11) That the Government itself was in possession of
relevant records and applied its mind to them and the impugned
notice issued by the Engineer Officer who was empowered to act on
H behalf of the President under Art.299(1) of the Constitution
EXPRESS NEWSPAPERS v. U.o.I. 391
having been authenticated in the manner required by Art.77(3), it A
lllUSt be deemed to be the deeision of the President on the advice
of the Council of Ministers. as enjoined by Art. 74(2) and the
Court was precluded from making any investigation into tbe
circumstances attendant thereto. (12) That it was the respondent
No.2 to meet the charges of malafides levelled against him.
On behalf of respondent No.2, the Lt.Governor of Delhi, it
was argued: (1) That the Administrator appointed by the President
under Art.239(1), as amended by the Seventh Amendment, could be
called by any designation, that the Chief Coumissioner of Delhi
continued to be the Administrator of the Union Territory of Delhi
under Art.239(1) after November l, 1956 when the Government of C
Part C States Act, 1951 was replaced by s.130 of the States
Reorganisation Act, 1956 and that he functioned as such till
September 6, 1966 since the Delhi Administration Act, .1966
continued to use the nomenclature of Administrator appointed by
the President under Art.239(1). It was for the first time on
September 7, 1966 that the Administrator of the Union Territory D
of Delhi who used to be designated as the Chief Coumissioner was
re-designated as the Lt.Governor. (2) that the Lt.Governor was
successor of the Chief Coumissioner and, therefore, . all the
powers exercisable by the Chief Coaloissioner in relation to the
lease vested in him· (3) That the Lt. Governor was the alter ego
of the President in relation to such territory which he is E
called upon to administer on behalf of the President. One of
the primary functions of the Lt. Governor, as the Administrator,
was to be aware of facts brought to his knowledge and there-
fore respondent No.2 could not have turned a blind eye to the
action of Sikander Bakht, the then Minister for Works & Housing
in making a highly fraudulent, illegal and improper grant of
sanction to petitioner No. l, the Express Newspapers Pvt. Ltd. to F
build the new Express Building with an increased FAR of 360. (4)
That the Lt. Governor as the appointed agent or nominee of the
President was entitled to act on behalf of the lessor i.e. the
Union of India, Ministry of Works & Housing in relation to the
lease and therefore, be was well within his rights (a) in calling
for and making perusal of the respective files from the Ministry G
of Works & Housing, Delhi Development Authority and the Municipal
Corporation of. Delhi pertaining to the construction of the
Express Building with an increased FAR of 360; (b) in constitu-
ting a Three-Melllber Coaloittee to .inquire into the circumstances
H
392 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A relating to the grant of sanction by the then Miniater of Works &
Housing and to take necessary stepa as regards the unauthorised
construction of the new Express Building; and (c) in forwarding
the report of the Tbree-tlember Comittee to the concerned autho-
rity, me•ntng the Minister for Works & Housing for taking neces-
sary steps. (5) that the transfer of administrative control of
B the L & D 0 on October l, 1958 to the Ministry of Works & Housing
did not diVe&t the Chief Commiasioner of hia contractual powers
given under the lease and be alone represented the lessor i.e.
the Union of India and not the Ministry of Works & Housing (6)
That being the Lt. Governor of Delhi, be was responsible for the
admi.n!.stration of the Union Territory of Delhi and, as such, he
was acting within his power to direct all the authorities
c concerned to prevent violation of laws by any person or inatitu-
tion. He further asserted that he, as the Lt. Governor of Delhi,
was fully competent to appoint the Inquiry Conaittee under the
Comnisaioner of Inquiry Act, 1952. (7) that the Union of India or ,_
the Lt. Governor of Delhi never intended to inflict a reprisal on
the petitioners for the independent stand of the nelOSpapers they
publish. (8) that the respondents had no personal animosity
D towards the Express Group of Newspapers and the criminal
complaint for defamati@ was instituted by respondent No.2
because the Indian Express was guilty of fabricating and publish-
ing falae, motivated, s<;andslous stories about respondent No.2
and others. (9) That be bad not ordered the issuance of the
notice in question and that the Lend & Development Officer was an
E authority independent of the administrative control and super-
vision of the Lt. Governor, As regards the impuged show cause
notice issued by the Zonal· Engineer (Building) City Zone,
Municipal Corporation of Delhi, it was asserted that the same bad
been issued by the Municipal Coi:poration of Delhi in exercise of
its statutory powers under ss. 343 and 344 of the Delhi Municipal
F Corporation Act after verification of the allegations. (10) That
the perpetual lease-deed dated March 18, 1958 governs the
relationship effectively between the Union of India and the Lt.
Governor on the one band and the pet:itioners on the other i.e.
the contractual relationa between the parties. (11) That the
sewer, according to the terms of the lease-deed, could not be
G diverted without the consent of the Chief Comnissioner and the
approval of the Minis try of Works & Housing was a nullity being
without juriadiction and legal competence. (12) that for the
c011111ercial user of the residual ares to be kept as 'green' it is
only the Chief Commissioner (Lt. Governor) who could give
H
EXPRESS NEWSPAPERS v. u.o.r. 393
A
sanction to construct for the c0111Dercial user at the residual
ares; the petitioners were liable to pay c011111ercial realization
changes; and (13) that it is for the Chief Comnissioner (Lt.
Governor) to decide if the breaches were remediable or aa to the
nature of the remedies required for the breach. Since the
breaches are not remediable breaches, the impugned notice dated B
March 10, 1980 issued by the Engineer Officer, L & D 0 for
re-entry upon the land on forfeiture of the leaae for breach of
the conditions waa valid and proper.
Counsel for respondent No.4, Municipal Corporation of
Delhi, urged (l) that the Express Newspapers Pvt. Ltd. have no c
right to construct the upper basement particularly when the
Corporation refused to accord sanction to it and that, in any
event, it was not such an unsvoidsble necessity as to break the
law; and (2) that even if some receiving floor may perhaps be
neces8"1')' to receive the printed newspapers from the machine, it
would be achieved by locating the machines on a suitable pedestal 0
or by laying the floor of the basement in such a manner as to
discharge the newspaper on the ground floor; and (3) that under
the Master Plan and the Building Bye-laws, not more than one
basement is permissible and that any basement more than one will
have to be reckoned for the purpose of FAR.
E
Counsel for respondent No.5 Land & Development Officer
contended (l) that under the terms of the leaae deed of 1958,
previous consent of either the President of India or the Chief
Comnissioner (Lt. Governor) or such officer or body as the lessor
(President of India) or the Chiaf Comnissioner of Delhi
authorised was necessary for building activity on the residual
area of the plots (2740 sq. yards). The Ministry of Works & F
Housing did not represent the lessor or the Chief Comnissioner. ;
and (2) that the Land & Development Officer is not a functionary
under the Ministry of Works & Housing. He is the officer
appointed on behalf of the lessor to administer the leaae. At no
11tage the petitioners approaehed the office of Land &Development
for permission to construct on the residual area of 2740 sq.yards G
to the west of the pipe-line and no approval wss obtained from
the office of L & D O for construction of a building in contra-
vention of clauses 2(5), (9) and (14) of the leaae. The so-called
permissions and approvals obtained by the petitioners have no
legal competence or authority under the terms of the lease-deed
H
394 SUPREME COL'RT REPORTS [1985] SUPP.3 S.C.R.
A which governed the relationship between the petitioners and
respondent no.l.
Allowing the writ petitions,
BEW : By the Court (Per A.P. Sen, E.S. Venkatsramiah &
R.B. Misra, J.)
(l) The writ petitions under Art.32 of the Constitution
11118t succeed and are allowed with costs. The notice issued by the
C Engilleer Officer, Land & Development Office dated March 10, 1980
purporting to act on behalf of the Government of India, Ministry
of Works & Housing requiring the Express Newspapers Pvt. Ltd. to
show cause why the lessor i.e. the Union of India, Ministry of
Works & Housing should not re-enter upon and take possession of
plots nos. 9 and 10, Bahadurshah Zafar Marg, New Delhi together
with the Express Buildings built thereon, under cl.5 of the
D indenture of lease dated llar<!h 17, 1958 for alleged breaches of
cls.2(5) and 2(14) thereof, and the earlier notice dated March l,
1980 isaued by the Zonal Engineer (Building), City Zone,
Municipal Corporation, Delhi requiring them to show cause why the
aforeaaid buildings should not be demolished under ss.343 and 344
of the Delhi Municipal Corporation Act, 1957, are quashed. It is
E declared that the construction of the new Express Building on the
residual portion of 2740 square yards on the western side of
plots nos. 9 and 10, Bahadurshah Zafar Marg with an increased FAR
of 360 with a double basement for installation of a pr1nting
press for publics tion of a Hindi daily newspaper was with tile
permission of the lessor i.e. the Union of India, Ministry <>f
F Works & Housing and did oot constitute a breach of clauses 2(5)
and 2(14) of the lease-deed. [554 E-11; 555 A]
(2) The Lt. Governor failed to make a distinction in this
case between the power with respect to the subject 'Property of
the Union and the revenue therefrom' which is in Entry 32 of List
G I of the Seventh Schedule to the Constitution and the general
powers of admin!stration entrusted to him under Article 239 of
the Constitution as the administrator of the Union Territory of
Delhi. The property in question is a part of the estate of the
Central Government. Mere nearness to the seat of the Central
H
EXPRESS NEWSPAPERS v. U.O.I. 395
Government does not clothe the Lt. Governor of Delhi· with my A
power in respect of the property of the Central Government. He
can discharge only those powers which are entrusted to him by the
Constitution and the laws. It is also not correct to claim that
all the powers of the former Chief Commissioner of Delhi have
devolved on the Lt.Gov"rnor and continue to vest in him. [556
B-il) B
l(i) Freedom of the press ill comprehended within the right
to freedom of speech and expression guaranteed under
Art.19(l)(a). The freedom of thought and expression, and the c
freedom of the press are not only valuable freedoms in tbemaelves
but are basic to a democratic foilJ of Government which proceeda
on the theory that problems of the Government can be solved by
the free eitchsnge of thought and by public discuaaion of the
various issues facing the nation. It ia necessary to emphaaize
and one 1111St not forget that the vital importUJ.ce of freedom of D
speech and expression involves the freedom to dissent to a free
democracy like ours. Democracy relies on the freedom of the
press. It is the inalienable right of everyone to c011111ent freely
upon any matter of public importsnce. This right ia one of the
pillars of individusl liberty-freedom of speech, which Supreme
Court haa always unfailingly guarded. Howsoever precious and E
cherished the freedom of speech is under Art.19(l)(a), this
freedom. is not akolute and unlimited at all times and under all
circumstances but is subject to the restrictions contained in
Art.19(2). That 1111St be so because unrestricted freedom of the
preaa and is wholly free from restraints, amounts to uncontrolled
licence which would lead to disorder and anarchy and it would be
hazardous to ignore the vital importsnce of our social .and F
national interest in public order and security of the State.
[474 C-il; 475 0-G)
l(ii) The extent of permissible limitations on this freedom
are indicated by the fundamental law of the land itself viz.
Art.19(2) of the Constitution. But, permissible restrictions on G
any fundamental right guaranteed under Part Ill of the
Constitution have to be imposed by a duly enacted law and 1111St
not be excessive i.e. they llBlSt not go beyond what is necessary
to achieve the object of the law under which they ai:e sought to
be imposed. The power to impose restrictions on fundamental
H
396 SUPREME COURT REPORTS (1985] SUPP.3 s.c.R.
A
rights is essentially s power to 'regulate' the exercise of these
rights. In fact, 'regulation' and not extinction of thst which is
to be regulated is, generally spesking, the extent to which
petmissible restrictions may go in order to satisfy the test of
B ressonsbleness. The test laid down by the Supreme Court is
whether the direct and imnediste impact of the impugned action is
on the freedan of speech aDd expression guaranteed under
Art.19(l)(a) which includes the freedan of the press.
In the instant case, the very threat is to the existence of
c a free and illdependent press. The impugned notices of re-entry
upon forfeiture of lease aDd of the threatened demolition of the
Express Buildings are intended and meant to silence the vioce of
the llldian Express. lt must logically follow that the impugned
notices constitute a direct and imnediate threat to the freedan
of the press and are thus violative of Art.19(l)(a) read with
Art.14 of the Constitution. lt must accordingly be held that
D these petitions under Art.32 of the Constitution are
maintainable. [475 H; 476 A-C; 477 D-E]
Bemiett ColEllan & Co. & Ora. v. Union of lDdia & Ora.
[1973] 2 s.c.R. 757 followed.
E
Jlalll!sh 'l'happar v. State of Madras [1950] s.c.R. 594, Sakal
Papers (P) Ltd. v. Union of lDdia [1962] 3 s.c.R. 842 and Express
Beimpapers (P) Ltd. & Anr. v. Union of lDdia & Ors. [1959] s.c.R.
12 at 120 relied upon.
F The correctness of the landmark decision in Maneka Gandhi's
case and the innovative construction placed on Art .14 in the
three cases of Royapps, Maneka Gandhi and International Airport
Authority (supra), which have evolved new dimensions in judicial
process, is no longer open to question. [472 C-D]
Haneta Gandhi v. Unial1 of India [1978] 2 s.c.R. 621, E.P.
G
Boyappa v. State of Tallil Nadu & Anr. [1974] 2 s.c.R. 348 llaneka
Gandhi v. Union of lDdia (supra) and llmans llayaram Sbetty v.
lnternstioDal Airport Authority of India Ltd. & Ors. [1979] 3
s.c.R. 1014 affirmed.
H All lDdia Bank lllllpl.oyees' Association V• Natioaal
lnduatrial Tribunal & Ors. (1962] 3 s.c.R. 269 referred to.
EXPRESS NEWSPAPERS v. U.O.!. 397
(3) Even in cases involving purely contractual iaaues, the A
settled law is thst where statutory provisions of public law are
involved, writs will issue. [484 A)
(4) (i) Section 2 of the Goverment Granu Act, 1895
excludes the operation of the Transfer of Property Act, 1892 to
Government grants. Section 3 declares tbat all proviaiona, any B
such grant or transfer aa aforesaid ahsll be .valid and shell take
effect according to their tenor, notwithatsnding any rule of law,
statute or enactment of the Legialature to the contrary. A aeries
of judicial decisions hsve determined the overriding effect of
s.3 making it amply clear that a grant of property by tbe
Government partakes of the nature of law since it overrides even c
legal provisions which are contrary to the tenor of the docUMllto
[478 D-E]
(4)(ii) There can be no doubt whatever on a true
construction of the impugned notice dated March 10, 1980 that the
Engineer Officer, Land & Development Office purporting to act on D
behalf of the leasor i.e. the Union of India, Ministry of Works &
Housing served a notice of re-entry upon forfeiture of leaae
under cl.5 of the leue-deed. There was no question of the said
notice being construed to be of an exploratory nature. Since
reapondent No.2 is not the successor of the Chief Commissioner of
Delhi nor haa any function in relation to the lease, there ia no E
warrant for the suggestion thst prior approval of the Lt.
Governor io a condition precedent to the right of the leasor i.e.
the Union of India to exercise its right of re-entry upon
forfeiture of lease under cl.5 of the lease-deed. [480 B-D]
4.(iii) The Express Newapapera Pvt. Ltd. having acted upon
the grant of permission bY the lessor i.e. the Union of India, F
Ministry of Works & Housing to construct the new Express Building
with an increased FAR of 360 together with a double basement was
clearly not an unsuthorized occupant within the meaning of s.2(g)
of the Act. The Express Buildings constructed by Expreaa News-
papers Pvt. Ltd. with the sanction of the lessor i.e. the Union
of India, Ministry of Works & Housing on ploto Noa. 9 and 10 G
Bahadurshah Zafar Marg demised on perpetual lease by registered
lease-deed dated March 17, 1958 can, by no procP.sa of reasoning,
be regarded as public premises belonging to the Central
Government under s.2(g). That being so, there is no question of
the lessor applying for eviction of the Express Newapapers Pvt.
H
398 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
Ltd. under 5.5(1) of the Public Premises (Eviction of unautho-
rized Occupants) Act, 1971 nor has the Estate Officer any
authority or jurisdiction to direct their eviction under
sub-s.(2) thereof by sumnary process. Due process of law in a
case like the present necessarily implies the filing of suit by
B the lessor i.e. the Union of India, Ministty of Works & Housing
for the enforcement of the alleged right of re-entry if any, upon
forfeiture of lease due to breach of the terms of the lease.
However, the Government has the power to take recourse to the
provisions of the Public Premises (Eviction of Unauthorized
Occupants) Act, 1971 where admittedly there is unauthorized
construction by a lessee or by any other person oL Government
c land which is public premises within the meaning of s.2(e) and
such person is in unauthorized occupation thereof. [484 E-F; 485
A-DJ
Biahan Das & Ors. v. State of Punjab & Ors. [1962] 2 s.c.R.
69 aff~rmed.
D Wazir a.and v. State of H.P. [1955] l s.c.R. 408 & II.am
Prasad Narayan Sabi v. State of Bihsr [1953] s.c.R. 1129 relied
upon.
State of Orissa v. II.am <llandra Dev A.l.R. 1964 S.C. 685
criticised.
E
5(i) Under the Constitution of India, Delhi became a Part
'C' State w.e.f. Janusry 26, 1960 and it was provided by Art.
239(1) that a State specified in Part 'C' of the First Schedule
shall be administered by the President acting to such extent as
he thinks fit through a Chief Camnissioner or Lt. Governor to be
F appointed by him. [491 E-FJ
Art. 239(1) of the Constitution differed from the provision
contained in s.94(3) of the Government of India Act, 1935 to the
extent that the appointment of a Chief Commissioner or Lt.
G Governor as an Administrator irrespective of the designation and
entrustment of powers, functions and duties to him by the
President, were not to be in his discretion but had to be
exercised on the advice of the Council of Ministers. Except for
this, s.94(3) of the Government of India Act, 1935 and Art.239(1)
of the Constitution as enacted were identical in respect of the
H provisions for the administration of Delhi as a Chief
EXPRESS NEWSPAPERS v. U.O.I.
Comnissioner's province under the 1935 Act and as a Part 'C' A
State under the Constitution, by the Governor-General under
s.94(3) and under Art. 239(1) by the President acting to such
extent as he thought fit, through the Chief Comnissioner or. the
Lt. Governor as an Administrator irrespective of the deaignation.
[491 H; 492 A-BJ
JI
5(ii) Art. 239(1) of the Constitution was amended by the
Constitution (7th Amendment) Act, 1956 w.e.f. November 1, 1956
and for the words 'through a Chief Comnissioner or a Lt. Governor
to be appointed by him' in Art.239(1) as originally enacted, the
words substituted are 'through an administrator appointed by him c
with such designation as he may specify'. Therefore, the Adminis-
trator appointed by the President under Art. 239(1) whether with
the deaignation of the Chief Comnissioner or of the Lt. Governor
could exercise only such powers, functions and duties as were
entrusted to him by the President i.e. there have to be specific
entrustment of powers by the President under Art.239(1). From D
November 1, 1956 Part 'C' States ceased to exist by virtue of the
Seventh AmendDmt and in their place Union Territories were
substituted in the First Schedule to the Constitution, including
the Union Territory of Delhi i.e. the territorie~ which
iumediately before the COlllllf!Ilcement of the Constitution were
comprised in the Chief Comnissioner's ;;>rovince of Delhi. [493 E
A-B; D-E; 493 F-G]
5(iii) On October 1, 1959 decision was taken by the
Government of India to transfer the administrative control of the
office o:': Land & Development Officer, New Delhi from the Delhi
Administration to Ministry of Works, Housing & Supply w.e.f.
October 1, 1959. This decision was duly cOlllllllnicated to the Chief F
Comnissioner of Delhi and to the Land & Development Officer, New
Delhi. The President of India on February 1, 1966 issued an order
under Art.299(1) of the Constitution which inter alia directed
that in the case of Land & Development Office (1) all contracta
and assurances of property relating to matter falling within the
jurisdiction of Land & Development Officer, (2) all contracta,
deeds and other instrumenta relating to and for the purpose of
enforcement of the terms and conditions of the sale/lease-deed of
the government property in Delhi/New Delhi, etc. made in exercise
of the executive power of the Union may be executed on bis behalf
by the Land & Development Officer. Therefore, neither the Chief
Ii
400 SUPREME COUltT REPORTS [1985] SUPP.3 s.c.R.
Commissioner nor the Lt• Governor had anything to do with the
A Office of the Land & Development or the administration of nazul.
lands 1.n the Union Territory of Delhi after October 1, 1959. They
have not been conferred any authority by the President under Art.
299(1) to enter into any contracts made in the exercise of the
executive power of the Union or to act 'on behalf of' the
President in relation to auch contract or assurance of property
Jl i.e. to act on behalf <>f the President for the enforcement of the
terms and cond!tions thereof, There is also no notification under
Art. 239(1) by the President vesting Chief Commissioner or the
Lt. Governor with any power, functions and duty in relation to
the property of the Union Territory of Delhi. [495 C-il; F~; E;
497 A..JI]
c
5(iv) It would therefore, appear that the territory of
Delhi as a Part •c• State under the First Schedule to the
Constitution was a separate and distinct constitlitional entity as
from that of a Chief CommiHioner Province under the Government
of India Act, 1935, and this ia equally true of the Union
Territory of Delhi. It must logically follow that with the
D transformation of the territory of Delhi from a Chief
Comniaaioner's Province under s.94(3) of the Government of India
Act, 1935 into that of a Part 'C • State under the Constitution
and after the Seventh Amendment into the Union Territory Delhi,
the office of the Chief Commissioner of Delhi disappeared and
that of an Administrator appointed by the President under
E Art.239(1) with such designation as he may specify, came into
existence. The necessary concomitant is that the Administrator of
the Union Territory of Delhi derived only such powers, functions
and duties aa were entrusted to him by the President under
Art.239(1). [501 C-E]
F
5. (v) There was no Order in Council issued by the Governor-
General under s.94(3) of the Government of lod1a Act, 1935 nor
any order issued by the President under Art. 239(1) of the
Constitution investing the Chief Comnissioner of Delhi to deal
with the property of the Union. The matters relating to the
G property of the Union of India are included in the executive
power of the Union under Art.53 of the Constitution read with
Art.298 which expresHly provides that the executive power of the
Union shall extend to the acquisition, holding and disposal of
H
EXPRESS NEWSPAPERS v. u.o.r. 401
• A
property and the making of contracts for any purpose. Such
executive power of the Union is vested in the President under
Art.53(1) and shall be exercised by him either directly· or
through officers subordinate to him in sccordance with the
Constitution. All executive actions of the Government of India
B
shall be expressly taken in the name of the President under
Art.77(1). Under cl.(2) thereof, orders and other instruments
made and executed in the nsme of the President shall be authenti-
cated ·as may be specified in rules to be made by the President
i.e. in the manner specified under the Authentication (Orders and
other Instruments) Rules, 1958 framed under Art. 72(2). In terms
of the Government of India (Allocation of Business) Rules, 1961,
c
all matters relating to the property of the Union, allotment of
Governm£nt lands in Delhi, administration of Government estates
under the control of the Ministry of Works & Housing and the
administration of the Land & Development office, are matters
exclusively vested in the Ministry of Works & Housing vide
D
Entries 1, 6 and 23 ( 1) in the Second Schedule under the bead
'Ministry of Works & Housing'. In the light of the said
directive, as further confirmed by the constitutionally enacted
regulations, the power over the allotment of nszul lands,
administration of leases in Delhi and the control and adminis-
tration of Land & Developlllellt office in particular and the
E
property of the Union in general are subjects vest.ed solely under
the control of the Ministry of Works & Housing. In the premises,
by such transfer of authority, the Chief Commissioner of Delhi
and necessarily his successor, the Lt. Governor, became bereft of
his powers to control and administer the lease and any attempt by
respondent No.2 to set up a claim that the Lt. Governor is the
authority empowered to administer the lease is wholly frivolous
F
and untenable and must be rejected. [502 F; 503 A-C; E-G]
llobd. llaqbool Dallloo v. State of J - & laahldr [1972] 2
s.c.&. 1014 & Edvard Milla eo. Ltd. Beawar & Ora. v. State of
Ajller & A.Dr. [1955] 1 s.c.&. 735 distinguiohed.
G
6(i) The impugned notices dated March 1, 1980 and March 10,
1980 were not issued bona fide in tbe ordinsey course of official
buoiness for implementation of the law or for securing justice
but were actusted with an ulterior and extraneous purpose and
thus were wholly mala fide and politically motivated. [519 CJ
R
6(11) iraud on power voids the order if it is not
exercised bona fide for the end design. There is a distinction
402 SUPRENE COURT REPORTS [1985] SUPP.3 s.c.R.
A between exercise of power in good faith and misuse in bad faith.
'lbe former arises when an authority misuses its power in breach
of law, say, by taking into account bona fide, and with best of
intentions, sane extraneous matters or by ignoring relevant
matters. That would render the impugned act or order ultra vires.
It would be a case of fraud on powers. The misuse in bad faith
B arises when the power is exercised for an improper motive, say,
to satisfy a private or personal grudge or for wreaking vengeance
of a Minister. A power is exercised maliciously if its repository
is motivated by personal animosity towards those who are directly
affected by its exercise. Use of a power for an 'alien' purpose
other than the one for which the power is conferred is mala fide
use of that power. Same is the position when an order is made for
c a purpose other than that which finds place in the order. The
ulterior or alien purpose clearly speaks of the misuse of the
power. [507 F-ti]
6(iii) It is not for the parties to say what is relevant or
not. The matter is one for the Court to decide. Mala fidea on the
part of the Government in power or its functionaries would be
D sufficient to invalidate the impugned notices. [505 F]
6(iv) The petitioners have alleged several facts imputing
improper motives which have not boon specifically denied and
there is only a bare denial with the assertion that the facts are
not relevant, Mere denial of allegations does not debar the
E courts fran inquiring into the allegations. It is quite evident
that no action was contemplated against the Express Newspapers
Pvt. Ltd. by any of the respondents prior to February 17, 1980.
Respondent No.2upon assumption of bis office as the Lt. Governor
of Delhi on that day !mediately set on a course of action
against the Indian Express which culminated in the issue of the
impugned notices. It cannot be doubted that bis initiative to
call for the files from the Municipal Corporation relating to the
construction of the new Express Building was an action of his own
not provoked by anyone, much less at the instance of respondent
No.l, the Union of India, Ministry of. Works & Housing. The
sequence of events set in motion imnediately after his assumption
G of office as the Lt. Governor demonstrate the extent to which and
the keenness with which be pursued the matter. It would appear
that the entire administrative machinery was geared into action
by respondent no.2 and he 'activated' the taking of steps
culminating in the issue of the impugned notices. [509 A-B; 515
A-BJ
H
EXPRESS NEWSPAPJ!RS v. U.O.l. 403
A
6(v) The dominant purpose which actuated respondent no.2 in
initiatillg governmental action was not so much for implementation
of the provisions of the Master Plan or the Zonal Development
Plans framed under the Delhi Development Act or the observ8IICe of
the relevant Municipal Bye-laws under the Delhi Municipal r.orpo-
ration Act, but to use these provisions for an 1alien' purpose B
and in bad faith i.e. for demolition of the Express Bni l dings
with mark of retribution or politiC'll vendetta for the role of
IDdiBn Express during the period of Emergency and thereafter and
thereby to bring about closure of tbe Indian Express. (512 D-E)
6(vi) It was somewhat strange that tbe Land & Development c
Officer who was a minor fllllCtiODarY of the Ministry of Works &
Housillg should have filed a counter supporting the action of
respondent no.2. There is no doubt that the Land & Development
Officer deliberately made an inaccurate statement that be is not
under the sclmfnistrative control of the Ministry. [516 B)
6(vii) The contention that there was no :lmninent danger of
demolition of the Express Buildillg nor was the impugned notice by
the Engineer Officer a notice of re-entry upon forfeiture of
lease, is against the very terms of the impugned notice. There is
a categoric avel'lllent tbat tbe grant of sanction by the then
MiDister for Works & Housillg was illegal, improper and irregular. E
It is therefore futile to contend that tbe impugned notice dated
March 10, 1980 was not a notice of re-entry upon forfeiture of
lease but merely a notice of an exploratory nature · requiring
Express Newspapers Pvt. Ltd. to show cause why the lease should
not be forfeiture under cl.5 of the lease-deed. [518 C-E]
c.s. ~jee & Ora. Vo A.Po State Jload Transport Corporation F
[1964] 4 s.c.R. ·330 relied upon•
S. Pratap Singh v. State of Punjab (1964] 4 S.C.R. 733 &
General •ss"Ehly of Free a.urcb of Scotland Vo Overta1m L.R.
(1904] A.c. 515 relied upon.
G
Short Vo Poole Corporatico L.R. [1926] Cb,D, 66 1 . Lazarus
Estates Ltd. v. Beaaloy [1956] 1 Q.B. 702 at pp.712-13, Dr. Baa
Hpoohar Labia V• State of Bihar & Ors. [1966) l· S,C,R, 708 &
State of Punjab v. llmojilal & Ora. [1971] 2 s.c.R. 550 relied
upon.
J1ar1m <>-rtcals Ltdo & Aur. Vo 7be Canpany 1- ~ R
[1966] Supp. s.c.R. 311 relied upon.
404 SUPREME COURT REPORTo [1985] SUPP.3 s.c.R.
A Judicial Review of Administration Action, 4th Edn.
pp.335-36 and by Prof. De. Smith and H.w.R. Wade's Administrative
Law, 5th Edn. pp.42, 348 and 369 referred to.
7(i) The construction of the new Express Building with an
increased FAR of 360 for starting a Hindi Newspaper and the
.8 installation of the printing press in double basement waa allowed
by the Delhi Development Authority, in accordance with the
provisions of the Master Plan. [520 HJ
7(ii) The Press Enclave on Bahadurshah Zafar Marg otherwise
known as the Mathura Road Comercial Complex is not a
'development area 1 i.1.thin the meaning of s.2(3) of the Delhi
c Development Act, 1957. The Master Plan does not prescribe any FAR
for the press enclave situate on Mathura Road ccmnercial area nor
does such area fall within the 1already built-up ccmnercial
areas' aa def:l!led in the Maater Plan i.e. commercial area falling
within the walled city of Old Delhi. Apparently, the contention
that the FAR of no commercial area in Delhi can exceed 400 is
wholly misconceived inasmuch as the Master Plan in express terms
D
permits FAR of the commercial areas in Minto Road and Ranjit
Singh Road at 400. The Zonal Development Plan for the D-lI uea
approved by the Central Govemment in November 1966 mentions four
ccmnercial areas, namely (1) Asaf Ali Road commercial area (2)
Minto Road ccmnercial area (3) Mathura Road commercial area, and
E (4) Circular Road ccmnercial area (opposite Ramlila Grouwl).
Although in the Zonal Development Plan for D-11 area, Asaf Ali
Road comnercial area is described as fully developed with no room
for expanaion, the FAR of which is admittedly 400, there could be
still a further increase in Fil aubject to payment of premium.
F This could only be uwler the provisions of the Zonal Development
Plan for D-II area and therefore it lllllSt logically follow that
the FAR prescribed in the Zonal Development Plan fo~ Mathura Road
c<>mMrcial area where ·the preaa enclave ie aituate ie 400. 'lbe
presa area 1a not far from Asaf Ali Road c:amiercial area. lt not
only falls in the aame D-lI area but is treated aa part of a
G complex of four commercial areas in the Zonal Development Plan
for D-II area. Thia preas area is not even deacribed aa fully
coamercialized· lf FAR 400 ia prescribed and al.lowd for Aaaf At!
Road ccmnercial area which is fully developed, it could not
poasibly be :lmpemiasible for the press area vbicb although fully
commercialized waa still not fully developed. [520 D; 524 c-E;
526 D-G]
7(iii) The floor area ratio or FAii. ia the restriction on
the llllllber of floors in a building with refere11Ce to the plot
area. Where FAR ie not apecified in the Muter Plan which
EXPRESS N~'WSPAPERS v. l.).O.I. 405
A
admittedly is the case in regard to press area on Bahsdurshah
Zafar Marg, the only bye-law applicable would be bye-laws 21 and
22. Bye-law 21(1) restricts the height of a building to 70 feet.
This height is to be measured from the centre of the adjacent
portion of the 'nearest street'. Admittedly as is clear from the
sanction plan, the height of the new Express Building is about 47
B
feet. The adjacent portion which is the service road is on level
with the plinth of the additional construction. Taking Mathura
Road as the 'nearest street', the level of Mathura Road stretches
from 2 ft. to 5 ft. higher than the plinth level of the addi-
tional construction. In any view of the matter, the additional
construction could therefore be permissible if it did not exceed
a height of 63 feet. This is because of bye-law 21(1) and also
c
because of FAR with which is linked the ground floor cover'l-ge is
not specified in the Master Plan. In order to avoid congestion
the ""'xinnnn height is further restricted under bye-law 22 in
proportion to the width of the abutting street. In the instant
case, Mathura Road which is the abutting street measures in width
D
150 feet. This is apart from the immediately abutting service
road which, even if reckoned as an abutting street, is 63 feet in
width. Therefore, applying bye-law 22(4) read with bye-law 21(1),
it is the service road of the street that governs the height of
the buildings in the press area as well as the number of floors,
the miniuaJm floor height being already specified in bye-law 19.
E
The ~estriction on the height of buildings is therefore governed
by the width of the street subject to the maximum height of 70
feet and this is the measure adopted where FAR for a particular
area. is not specified in the Master Plan. [529 C, E-F; 530 A-{;;
F-11; 531 A)
7(iv) Bye-law 25(2)(IV-ll) only applies to "already built up
F
commercial areas as indicated in the Master Plan such other areas
as may be declared as commercial areas by the appropriate
authority from time to time.• The list of already build-up
commercial areas as defined in the Master Plan admittedly does
not include the press area on th" Mathura Road. At the time of
coustruction of buildings in the press area, there were also no
G
restric.tions as to the FAR along the Mathura Road and the only
restriction on construction of such buildings was that the
allottees of the plots in the press area shodd construct
buildings upto a height of 60 ft. [533 E-F)
7(v) It lllUSt therefore be held that the permissfon granted
by Sikander Bakht, the then Minister for Works & Housing for the H
construction of the new Express Building with an increased FAR of
360 with a double basement ior installation of the printing press
was not in violation of the Master Plan for Delhi or the Zonal
De\relopment Plan for D-II area or the Delhi Municipal Corporation
406 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
(Buildings) Bye-laws, 1959 inasmuch as ex facle by-law 26 read
with 25(2)(IV-B) was not applicable tothe press area on the
Matlura lload. Admittedly, the Master Plan does not prescribe any
FAR for the Press enclave. The Zonal Development Plan for the
first time prescribed FAR for the four c011111ercial areas for
B general business and C0111Dercial areas. All these C0111Dercial areas
fall within D-Il area for which the Zonal Development Plan
prescribes an FAR of 400. (535 E-F]
B(i) The non-obstante clause in section 53(A)(i) of the
Delhi Development Act clearly gives an overriding effect to the
sanction granted by the Delhi Development Authority for the
c construction of the new Express Building with an increased FAR of
360 and a double basement for installation of printing presa or
the working platform. The effect of grant of such permission by
the Authority was to modify the sanctioned plans of the Municipal
Corporation to that extent. That apart the term "development" as
defined in section 2(d) of the Act includes the carrying <>ut of
builclinga •• •• •••• in, on, over or under land in any building etc.
D
and la wide enough to include the structures in question. As the
Authority approved each of these structures for which the
impugned show cause notice under ss. 343 and 344 of the Delhi
Municipal Corporation Act, 1957 had been issued by the Zonal
Engineer (Buildings), City Zone, Municipal Corporation, it is
clear that he had acted beyond his authority and power. (537 A-C)
E
8(11) There is no diapute that all the structures are below
the ground. The main purpose of the upper basement i.e. a working
platform measuring 6000 sq.ft. was meant to work the printing
press. If the upper basement ·or the working platform constructed
by the Expreaa Newspapers Pvt. ,Ltd. is demolished, the installa-
F tion of the printing press itself in the lower basement with the
sanction of the Delhi Development Authority under the appropriate
statutory provision would be nullified and the Ezpreas Newspapers
Pvt. Ltd. would not be in a poaition to operate the printing
presa at all. Without the water storage tank the Express News-
papers Pvt. Ltd. would not get tl.e completion certificate and it
is difficult to understand how the underground tunnel passage, to
G
connect the old and new Express Building would cause traffic
hazard. At ey rate, such minor deviation would not result in a
demolition of the Express Buildings. The manner in which the
impugned notice was got iasued by the Municipal Corporation at
the direction of respondent no.2 shows that it was done with an
H
ulterior purpose, The illegality of the action is writ large and
the manner in which it was done creates a ground for belief that
the action was motivated. [538 C-EJ
EXPRESS NEWSPAPERS v. U.O.I. 407
A
B(iii) It is evident from page 16 of the Printed Master
Plan and the zonal Development Plan for D-11 area at pages 935
and 936 that semi-basement, meaning a second basement is
permissible under the Master-Plan as well as the ZOnsl
Development Plan. The Bye-laws of the Delhi Municipal Corporation
do not prohibit second basement and on the contrary bye-law 54 B
usea the term 'basements', Moreover, double basements have, in
fact, been permitted in the case of many hoteis by the Delhi
Development Authority. [543 B-ll)
B(iv) lt is difficult to conceive how the huge printing
press with a height of 24 ft. could be placed on a pedestal or be c
laid on the floor of the basement in such a manner as to dis-
charge the newspapers on the ground floor. lt is COlllllOn ground
that there is a working platform in all the other printing
presses in the same line of buildings like that of the Times of
lndia, the National Herald, Patriot and the old Indian Express
Building. In all these buildings, the printing presses are D
installed in the lower basement and there is an over-hanging
platform in the printing press in each of the buiidings to
receive the printed material. Therefore, there is no justifica-
tion of the working platform. If the Municipal Bye-laws do not
permit the construction of a double basement then they would be
clearly violative of Art.14, 19(l)(a) and 19(l)(g) of the E
Constitution. [543 F-il; 544 A)
9(i) The basic principle of eatoppel is that a person who
by some statement or representation of fact causes another to act
to his detri..,nt in reliance on the truth of it is not allowed to
deny it late?, even though 1.t is wrong. Justice here prevails
over truth. Estoppel is often described as a rule of evidence, ~·
but more correcUy it is a principle of law. As a principle of
common law it applies onfy to representations about past or
present facts• But there is also an equitable principle of
1
promisSOl:Y estoppel' which can apply to public authorities.
[545 E-F)
G
9(11) In public law, the most obvious limitation on the
doctrine of estoppel is that it cannot be evoked so as to give
an overriding power which it does not in law possess. In other
worda, no estoppel can legitimate action which is ultra vires.
Another limitation is that the principle of estoppel does not
operate at the level of Government policy. Es toppels have however
been allowed to operate against public authority in minor matters
of formality where no question of ultra vires arises. [548 A-C]
In the instant case, the then Minister for Works & Housing
actad within the scope of his authority in granting permission of
408 SUPREME COURT REPORTS (1985] SUP~.3 s.c.R.
A
the lessor i.e. the Onion of Inclis, Ministry of Works & Housing
to the Express Newspapers Pvt. Ltd. to construct new Express
Building with an increased FAR of 360 with a double basement for
installation of a printing press for publication of a Hindi
newspaper under the Rules of Business framed by the President
under Art.77(3). Therefore, the doctrine of ultra vires does not
come into operation. In view of this, respondent no. l the Union
of India is precluded by the doctrine of promissory estoppel from
questioning the authority of the Minister in granting such
pei:miasion. In that view, the successor Government was clearly
bound by the decision taken by the Minister particularly when it
had been acted upon. [548 0-F]
c
Robertson v. Hinl.Jlter of Peuaiona L.R. [1949] I K.B. 227,
1laion of IDdia i Ora v. HI• lndo-Afghan AgeDcies Ltd. [1968] 2
s.c.R. 366 & Century SpimWlg & llanufacturing eo. Ltd. & Anr • .,.
Ullia81>agar llmlicipal eoi-u & Anr. [1970] 3 s.c.R. 854, HI•·
llotilal Padapat Sugar Mills Co. (P) Ltd. v. State of Uttar
Pradeah & Ora. [1979] 2 s.c.R. 641 & Jit Ka Shiv~ & ors. v.
D State of ll8ryana &Anr. (1980] 3 s.c.R. 689 referred to.
Marltiae IU.ec. Co. Y• r.eneraJ Dair1e8 Ltd. [1937] A.c. 610
P.C. & Sout:lreod-ol>-5ea Corporation v. llodgren (V:lckforcl) Ltd.
(1962] 1 Q.B. 416 distinguished.
Judicial Review of Administrative Action 4th Edn. p.103 by
Prof. De Smith & Administrative Law 5th Edn. p.232 by Prof.
H.W.R. Wade, relied.upon.
(10) The Express Newspapers Pvt. Ltd. are liable to pay
conversion charges in terms of cl.2(7) of the lease-deed and it
F is directed that the Union of India, Ministry of Works & Housing
shall enforce its claim for recovery of conversion charges by a
duly constituted suit or by making a law prescribing a forum for
adjudication of its claim. It is also directed that the Municipal
Corporation of Delhi shall colllpOund the construction nf the
double basement of new Expreas Building, the excess basment
G beyond the plinth limit and the underground passage on payment of
the usual CCllllpOsition fee. [555 B-<:]
l(i) The material available is sufficient to hold that the
H impugned noticea suffer from arbitrariness and non-application of
llind. They are violative of Article 14 of the Constitution. Hence
they are liable to be quashed. It is not necessary therefore to
ezpresa any opinion on the contentions based on Article 19(l)(a)
of the Constitution. (556 F]
EXPRESS NEWSPAPERS v. u.o.r. 409
A
l(ii) The said notices were issued by the authorities
concerned muler the Pressure of the second respondent. 'lbe
question whether the notices should be issued o" not doea not
appear to have been coosidered iDdependently by the concerned
administrative authorities before issuing then. [555 F]
B
l(iii) The Lt. Governor failed to make a distinction
between the power with respect to the subject 'Property of the
Union and the revenue therefran' which is in Entry 32 of !J.st I
of the Seventh Schedule to the Coostitution and the general
powers of administration entrusted to him muler Article 239 of
the Constitution as tche Administrator of the Union Territory of c
Delhi. The property in question is a part of the estate of the
Central Government. Mere nearness to the seat of the Central
Government does not clothe the Lt. Governor of Delhi with any
p?Wer in respect· of the property of the Central Government. Be
can discharge only those powers which are entrusted to him by the
Coostitution and the laws. Moreover, all the powers of the former D
Chief Cooloissioner of Delhi have not devolved on the Lt.
Governor and continue to vest in him. [ 556 B-D]
2(i) The question arising out of the lease, auch as,
whether there has been breach of the covenants muler the lease,
whether the lease can be forfeited, whether relief against E
forfeiture can be granted etc. are foreign to the scope of
Article 32 of the Coostitution. lhey cannot be decided just on
affidavits. These are matters which should be tried in a regular
civil proceeding. One should remember that the property belongs
to the Union of India and the rights in its cannot .be bartered
away in accordance with the sweet will of an officer or a
Minister or a Lt. Governor but they should be dealt with in F
accordance with lsw. At the same time a person who has acquired
rights ill such property cannot also be deprived of then except in
accordance with law. The stakes in this case are very high for
both the parties and neither of then can take lsw into his own
hands. [556 H; 557 A-BJ
G
2(ii) No opinion is expressed on the rights of the parties
wider the lease and all other questi.oos argued in this case. They
are left open to be decided in an appropriate proceeding. It io
however, open to both the parties if they are so advised to take
such fresh action as may be open to them in lsw on the basis of
all the relevant facts including those which existed before the
:Impugned notice dated March 10, 1980 was issued by the Engl neer H
Officer of the Land and Development Office to vindicate their
respective rights in accordaw::e with lsw. This order is made
without prejudice to the rights of the Union Government to
410 SUPRfilJE COURT REPORTS [1985] SUPP.3 s.c.R.
A
compound the breaches, if any, comnitted by the lessee and to
regularise the lease by receiving adequate premium therefor from
the lessee, if it is permissible to do so. [557 C-E]
2(iii) It is open to the Delhi Municipal Corporation to
B examine the matter afresh independently and to take such action
that may be open to it in accordance with i.aw. The Delhi
Municipal Corporation· may, if so advised instead of taking any
further action against the petitioners permit the petitioners to
compound the breaches, if any, comnitted by them in accordance
with law. [557 E-F]
c Per Misra, J.
l(i) The impugned notices threatening re-entry and
demolition of the construction are invalid and have no legal
value and must be quashed for reasons detailed in the two
judginents. [557 H]
D l(ii) The other questions involved in the case are based
upon contractual obligations between the parties. These questions
can be satisfactorily and effectively dealt with in a properly
instituted proceeding or suit and not by a writ petition on the
basis of affidavits which are so discrepant and contradictory.
[558 A-BJ
E
2. The right to the land and to construct buildings thereon
for running a business is not derived from Article 19(l)(a) or
19(l)(g) of the Constitution but springs from the terms of
contract between the parties regulated by other laws governing
the subject, viz., the Delhi Development Act, 1957, the Maater
F Plan, the Zonal Development Plan framed under the Delhi Municipal
Bye-laws, 1959 irrespective of the purpose for which the
buj]dings are constructed• 'Whether there has been a breach of the
contract of lease or whether there has been a breach of the
other statutes regulating the construction of buildings are the
questions which can be properly decided by taking detailed'
G evidence involving exmnlnstion and cro•s-examination of
witnesses. [558 B-D]
ORIGINAL JURISDICTION : Writ Petition Nos.535-539 of 1980.
AND
Review Petition No. 670 of 1985
H (Under Article 32 of the Constitution of India)
F.s. Nariman, P.H. Parekh, Arun Jately and Pinski Misra
for the Petitioners.
EXPRESS NEWSPAPERS v. u.o.I. [A.P. SEN, J. J 411
Lal Narayan Sinha, M.M. Abdul Khader, Miss A. Subhaehini, A
c.v. Subba Rao and p,p, Singh for Respondent No.l.
Dr. L.M. Singhvi, Miss A. Subhashini and Roshan Lal Tandon
for Respondent No. 2.
Dr. L.M. Singhvi and Miss A. Subhashini for Respondent B
No. 5.
IJr, L.M. Singhvi, Miss A. Subhashini and Abishek Manu
Singhvi for Respondent No.6.
The following Judgments were delivered by c
SEN, J, These petitions under Art. 32 of the constitution
are by petitioner no.l, the Express Newspapers Pvt. Ltd., which
is a company incorporated under the companies Act, 1956 engaged
in the business of printing and publishing the national newspaper
the Indian Express'(Delhi Edition) from the Express Buildings at D
9-10, Bahadurshah Zafar Marg, New Delhi, held on a perpetual,
lease from the Union of India under a registered indenture of
lease dated March 17, 1958. It is a wholly owned subsidiary of
petitioner no.2, the Indian Express Newspapers (Bombay) Pvt. Ltd.
of which petitioner no.3 Ram Nath Goenka is the Chairman of the
Board of Direc tors • Pe ti tioner no"' Nihal Singh was the then E
Editor-in-chief of the Indian Express and petitioner no.5 Romesh
Thapar was the Editor of the Seminar published from the Express
Buildings.
Respondent no. l is the Union of India, no.2 is Jagmohan,
Lt. Governor of Delhi, no.3 the Municipal Corporation of Delhi,
no.4 the Zonal Engineer (Buildings), n.o.5 the Land & Development F
Officer, etc.
The petitioners challenge the constitutional validity of a
notice of re-entry upon forfeiture of lease issued by the
Engineer Officer, Land & Development Office, New Delhi dated
March 10, 1980 purporting to be on behalf of the lessor i.e. the G
Government of India, Ministry of Works & Housing, New Delhi. The
said notice required petitioner no.l, .the Express Newspapers
Pvt.r.td., New Delhi to show cause why the Union of India should
not re-enter upon and take possession of the demised premises
i.e. plots nos. 9 and 10, Bahadurshah Zafar Marg together with
the Express Buildings built thereon under cl.5 of the aforesaid
indenture of lease dated. March 17, 1958 for the alleged breach of H
els. 2(14) and 2(5) of the lease-deed. They also challenge the
validity of an earlier notice dated March l, 1980 issued by the
Zonal Engineer (Buildings), Municipal Corporation, City Zone,
412 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
Delhi to petitioner no.l, the Express Newspapers Pvt.Ltd., New
Delhi to show cause why the aforesaid buildings being llilautho-
rized should not be demolished under ss. 343 and 344 of the
Delhi Municipal Corporation Act, 1957.
B The petitioners allege thst the impugned notices of
re-entry upon forfeiture of lease and of threatened demolition
of the Express Buildings at Bahsdurshsh Zafar Marg, New Delhi
which constitute the nerve centre of the newspaper the Indian
Express which has the largest combined ~irculation among all the
daily newspapers in India and is published simultaneously from
eleven cities in the country, are wholly mala fide and
c politically motivated. They further allege thst the impugned
notices constitute an act of personal vendetta against the
Express Group of Newspap<1rs in general, and Ram Nath Goenka,
chairman of the Board of Directors in particular, and are
violative of Arts. 14, 19(l)(a) and 19(l){g) of the Constitution.
We are informed thst a teleprinter is installed at the Express
Buildings at Bahsdurshah Zafar Marg from where the Delhi edition
D of the Indian Express is published and the editorials, editorial
policies and leading articles are transmitted to ten cities all
over India from where the other editorials of the Indian Express
are published simultaneously every day, namely, Ahmedabad,
Bangalore, Bombay, Chandigarh, Cochin, Hyderabad, Madras,
Madurai, Vijayawada and Vizianagaram.
E
The issues raised in this case are far-reaching in
significance to the maintenance of our federal structure of ·
Govertllllent. It necessarily involves a claim by the Lt. Governor
of Delhi that he hss the power and authority to administer
properties of the Union of India within the Union Territory of
F Delhi which he is called upon to adlllinis ter • The questions
presented are whether the Lt. Governor of Delhi could usurp the
functions of the Union of India, Ministry of Works& Rousing and
direct an investigation into the affairs of the Union of India
i.e. question the legality and propriety of the action of the
then Minister for Works & ·Housing in the previous Government at
G the Centre in granting permission to the Express Newspapers Pvt.
Ltd. to construct the new Express Building with an increased FAR
of 360 with a double basement for installation of a printing
press for publication of a Hindi Newspaper on the western portion
of the demised premises i.e. plots nos. 9 and 10, Babadutshah
Zafar Marg, New Delhi with the Express Buildings built thereon.
H
The Lt. Governor asserts that he has the power and
authority to adlllinister the properties·of the Union of India in
the Union Territory of Delhi. The further question is whether the
EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 413
A
grant of sanction by the then Minister for Works & Housing and
the consequential sanction of building plans by him of the new
Express Building was contrary to the Master Plan and the Zonal
Development Plans framed under the Delhi Development Act, 1957
and the llllnicipal bye-laws, 1959 made under the Delhi Municipal
Corporation Act, 1957 and therefore the lessor i.e. the Union of B
India hsd the power to issue a notice of re-entry upon forfeiture
of lease under cl. 5 of the indenture of lease dated March 17,
1958 and take possession of the demised premi91'S together with
the Express Buildings built thereon and the Municipal Corporation
had the authority to direct demolition of the said buildings as
unauthorized construction under ss. 343 and 344 of the Delhi c
Municipal Corporation Act, 1957. The ultimate question is whether
the threatened action which the petitioners characterise as
arbitrary, illegal and irrational was violative of Art. 19(l)(a)
read with Art. 14 of the Constitution.
History of the matter D
FACTS OF l'llE CASE
The facts are somewhat involved and present a feature which
is r.ather disturbtng. It would be convenient to set forth the
facts relating to the impugned notices. E
Put very briefly, the essential facts are these. On
February 17, 1980, respondent no.2 Jaguxihsn assumed office as the
Lt. Governor of Delhi. That very evening which was a Sunday, he
summoned the Colllllissioner of the Municipal Corporation of Delhi
and called for the files relating.to the construction of the new
Express Building at Bahadurshah Zafar Marg, New Delhi. On the F
next day i.e. on the 18th mrning, the files relating to the
grant of sanction for the construction of the same were made
available to him. On February 20, 1980, some important files of
the Delhi Development Authority relating to the Express Buildings
were sent to respondent no.2. On February 29, 1980, respondent
no.2 through the Comnissioner, Municipal Corporation of Delhi G
caused the locks of the office and cupboards of the Zonal
Engineer (Building) to be broken open to take away 'the files
relating to the new Express Building. J;mmediately thereafter i.e.
on March l, 1980 respondent no.2 convened a press conference in
which he handed over a press release alleging that the new
Express Building put up by the petitioners was in contravention
of law in several respects. The press release stated inter alia H
that :
414 SUPREME COURT REPORTS (1985) SUPP.3 s.c.R.
A l. The government had been receiving complaints that
additional space was sanctioned to the Indian Express
Buildings in total disregard of tbe provisions of the
Master Plan, zonal. regulations and Municipal
Corporation bye-laws.
2. The Lt. Govemor had ordered an inquiry into the
grant of sanction of the building plans in January
1979 by the Municipal Corporation for the construction
of the new F.xpress Building and had entrusted the
inquiry to a Buildiug and had entrusted the inquiry to
a committee of three of his subordinate officials.
c 3. The committee had been asked to sub:nit its report
within three days and the authorities of the DDA and
the MCD had been separately directed to extend all
co-.iperation to the commi.ttee and made available all
relevant files and connected papers.
4. The Commissioner of the MCD had been separately
D advised to take inmediate action in regard to the
unauthorized deviations made from the sanctioned plan
in the construction of the new Express Building.
The Lt. Governor also held out a threat at the press conference
that the new Express Building might have to be demolished. The
E holding of the press conference was broadcast over ~he All India
Radio within an hour and within two hcurs the Delhi Doordarshan
telecast the same and read out the contents of the press release.
It also exhibited the film both of the press conference as well
as of the new Express Building.
F On the same day i.e. on March l, 1980, although the relevant
files had been removed from his office, the Zonal Engineer
(buildings). City Zone, Municipal Corporation served a IlOtice on
petitioner no.l the Express Newspapers Pvt. Ltd. to show cause
why action should not be taken for demolition of the Express
Buildings undP.r ss. 343 and 344 of the Delhi Municipal
G Corporation Act, 1957. It reads as under
"Number 79/B/ua/cz/80'/;/.III Dated 1.3.1980.
You are hereby informed that on your property situated
at Bahadurshah Zafar Marg bearing nwnbers 9 & 10, you
H have started unauthorized construction of excess
EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 415
basement beyond sanction and construction of upper A
basement without sanction as sJ-.own red in the sketch
below.
Therefore, I, L.S. Pal, Zonal Engineer (Buildin3) as
authorized by the Comnissioner under D.M.c. Act, 1957
vide s. 49 to serve upon you notice and call upon you B
to appear in my office within three days of the
receipt of this notice during office hours with all
relevant records and documents relating to the above
constructi.on to explain as to why· under sub-clause I
of clause 343 as .to issuing for demolitl.on of
unauthorized construction should not be issued. C
Please further note under sub-clause I of clause 344
you are ordered to stop construction work on this land
failing which under sub-clauses 2 and 3 action will be
taken against you and the construction will be
demolished at your risk and cost. D
Sd/-
(L.s. Pal)
Zonal Engineer (Bldg.)
Office Address : City Zone,
Municipal Corporation, E
Delhi.
Served on :
M/s. Indian Express Newspepers (P) Ltd.
9/10, Bahadurshah Zafar Marg,
Delhi ... F
Three days after i.e. on March 4, 1980, a second press release
was issued from the Raj Nivas, the official residence of
respondent no.2. It was sent by a special courier to all
newspaper offices to justify the action of resp.ondent no.2 in
initiating an inquiry and the mode that had been prescribed for G
holding the inquiry. It stated
"In regard to the unauthorized deviations fro:n the
sanctioned plan and construction of about 23,000
sq.ft. in the lower basement and upper basement, the
spokesman indicated that the show cause notice had
been issued by the Corporation authorities. Further ll
action would be taken in the light of the reply
received by the party concerned."
416 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
Again, the issue of the show cause notice figured in the
third press release dated March 8, 1980 wherein under the heading
"Additional Cons true tion in the Indian Express Buildings" the
above extract was repeated verbatim· Respondent no.2 in his
counter had asserted that the show cause notice was issued by the
Coomissioner in accordance with his statutory functions after
Jl
verification of the allegations. However, it is asserted that
respondent no.2 being responsible for administration of the Union
Territory of Delhi was obliged to ask all the authorities
concerned to prevent violation of lease by any person or
institution. Whereaa the files of the Corporation were SU11111>Jned
by respondent no.2 before the press conference on March 1, 1980,
the files of the Ministry of Works &Housing were summoned by him
c in the first week of March 1980. It is admitted by the Ministry
of Wcoks & Housing that the said files were made available to
respondent no.2 on March 7, 1980. On March 7, 1980, the Land &
Development Officer acting as part of the overall plan of
respondent no. 2 issued a notice of re-entry upon forfeiture of
the lease signed by the Engineer Officer in the Land &
Development Officer under the Ministry of Works & Housing
D
purporting to act for and on behalf of the President of. India
under clause XIX of the agreement of lease alleging that there
were breaches in contravention of cl· (ll) of the agreement for
lease dated May 26, 1954. This notice was later withdrawn because
it was realized that forfeiture of the lease had to be with
reference to the registered indenture of lease dated March 17,
E 1958 and not under cl. XIX of the agreement for lease of 1954.
On March 10,1980, the Engir.eer Officer in the Land & Development
Office issued a notice in supersession of the said notice dated
March 7, 1980 in these terma :
F
No. L.II 10(2)/76
Government of India
Mirdstry of Works & Housing
Land & Development Office, Nirman Bhawan,
New Delhi,
dated the 10.3.80.
l
G
To
The Manager,
Express Newspapers Ltd.,
Post Box No. 751,
Express Building,
l! Bahadurshah Zafar Marg,
New Delhi.
EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.) 417
Sub: Premises situated at plot nos. 9 &10 A
,Delhi Mathura Road, New Delhi.
Dear Sir,
I am to inform you that you have started the cons true tion of
additional block on the land to be kept open without taking the B
permission from the lessor under the terms of lease, nor the plans
were submitted by you for the sanction under the terms of lease
by the lessor for the construction of multistoreyed building over
open plot which is in contravention of clause 2(14) and 2(5) of
the lease-deed.
c
You are, therefore, hereby requested to show cause within 30
days from the date of receipt of this letter to why .the property
should not be re-entered under clause 5 of the perpetual lease.
Please take notice that if no satisfactory cause is shown
within the stipulated period as referred to above, action t.o D
re-enter upon the premises will be taken against you without any
further reference to you.
This is in supersession of this office letter of even no.
dated 7.3.1980.
E
Yours faithfully,
Sd/-(R. S •.Sibal)
Engineer Officer
For & on behalf of the President of India.
Tele: 388727."
F
On March 12, l980·at a specially convened press conference
' respondent no.2 released the report of the cODlllittee of his
subordinates. The comnittee in its . report substantiated the
allegations which respondent no.2 had aired at his press
conference on March l, 1980 and through the press release dated
March 4, 1980 and among other findings recorded that the Express
Newspapers Pvt. Ltd. was liable to pay Rs.35 · lakhs as conversion
charges. From the report it appears that the Land & Development
G
Officer hsd been functioning in close coordination with
respondent no.2 as is evident from the following extract from the
report of the Three"*"1nber Comnittee:
· "The representative of· Land & Development Officer who H
was present at the site was directed by the Comnittee
418 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
to take measurement of the new constructions. But the
A measurement could not be completed before the
CollllJlittee left the site. Therefore. the representative
of Land & Development Officer was aSked to complete
the measurement by 10. 3.1980."
It is clear that there had been no application of mind by the
B Engineer Officer in issuing the show cause notice.
The recital of these events clearly shows that reapondent
no.2 displayed great zeal in causing a probe into the manner in
which sanction was granted by the then Minister for Works &
Housing for the construction of the new Express Building with an
increased FAR of 360 with a double basement for installation of a
c printing press and the entire administration was geared into
action with lightning speed so as to ensure that some action or
other was taken against the Express Newspapers Pvt. Ltd. This is
evident from the fact, for instance, that he gave the
Thre~ber CollllJlittee only thtee days to examine questions
which, if they were properly scrutinized, would require
inspection of the records from the year 1949 onwards of at least
D six agencies viz. Ministry of Works & Housing, Land & Development
Office in the Minis try of. Works & Housing, New Delhi Municipal
Comnittee, Municipal Corporation of Delhi, Delhi Water Supply and
Sewage Disposal Undertaking and the Union of India. He not only
constituted a colllllittee of subordinates to go into the affairs of
the Union of India, Ministry of Works & Housing but also procured
E the files of the Central Government. The Ministry of Works ~.
Housing apparently made available to the said Colllllittee all the
relevant files of the Government pertaining to the new Express
Building. There was no confidentiality maintained. Without the
express authorization of the Government of India, respondent no.2
published the minutes of the proceedings of the Government. After
F the suhnission of the report by the Three-Member Colllllit.tee, he on
March 14, 1980 addressed a letter to the then Minister for Works
& Housing to the effect :
<Xl!IFIDENTW.
D.O.No.60/LG/80
G March 14, 1980.
Dear Shti P.C. Sethi,
I am enclosing, for your information, a copy of the Enquiry
Report in respect of the Indian Express Building. Some action msy
H bcessary at the Ministry's end.
EXPRESS NEWSPAPERS v. u.o.I. [A.P. SEN, J.J 419
A
I am seeking legal opinion to ascertain as to what action
can be taken at this stage to salvage the situation created by
irregularities and illegalities committed in this case. I will
write to you further in the matter.
With kind regards, B
Yours sincerely,
Sd/- (Jagmohan)
Shri P.c. Sethi,
Minister for Works & !lousing, c
Nirmlin Bhawan,
New Delhi.
Encl: Enquiry Report"
From the tenor of the letter is difficult to imagine that the Lt. D
Governor could address such a letter to a Union Minister. On the
same day, the Lt. Governor also ruidressed to a letter on similar
terma to the Vice-Chairman, Delhi Development Authority and the
Comnissioner, Municipal Corporation of Delhi.
Execution of agreement for lease dated May 26, 1954: E
Allotment of plots nos. 9 & 10, Bahadurshah Zafar Marg
to Express Newspapers Pvt.Ltd.
By an indenture styled as an 'agreement for lease' executed
on May 26, 1954 between the late Feroze Gandhi, Managing
Director, Express Newspapers Pvt. Ltd. of the one part and the
Secretary (Local Self ,Government) to the Chief Commissioner of F
Delhi 'by the orders anci directions of the President of India'
of the other part, the Express Newspapers Pvt. Ltd. were allotted
plots nos. 9 and 10, Bahadurshah Zafar Marg in terms of the
intended lease entered into between the parties on November 17,
1952, pursuant to the allotment of the said plots to the Express
Newspapers Pvt. Ltd. for construction of a four-storeyed building G
meant to be used for a newspaper, installation of a printing
press therefore on the ground floor with residential
accommodation for the staff on the top. Incidentally, the Central
Government had in the year 1949 demarcated the press area along
the Bahadurshah Zafar Marg consisting of 10 plots nos. l to 10
known as the Press Enclave as a cODDD.ercial complex for allotment
to the press viz. to various newspapers like the Indian Express, H
Times of India, Patriot, National Herald etc. These other
420 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
newspapers like the Times of India, Patriot, National Herald were
also granted similar plots on the same conditions and were
allowed to build on the entire area of their respective plots
without any restrictions whatsoever. The petitioners case is that
the Express Newspapers Pvt. Ltd. was first allotted plots no.l
B and 2 but later at the request of Pandit Jawaharlal Nehru, the
Prime Minister of India, it accepted instead plots nos. 9 and 10
as the Govermnent required plots nos. 1 and 2 for construction of
the Gandhi Memorial Hall known as the Pearey Lal Bhawan.
Preliminary work of construction of the Express
Buildings Discovery of underground sewer line:
c Execution of fresh lease agreement dated November
19,1957.
While the preliminary work of construction was started by
the Express Newspapers Pvt. Ltd. on the basis of the aforesaid
agreement, an underground sewer line was found be running
diagonally across plots nos. 9 and 10. Thereupon, the parties
D
entered into negotiations for modification of the said agreement.
It was agreed between the parties that in view of the underground
drain running through the plots, the Express Buildings would be
constructed only to the east of the drain and in such a way as to
leave the drainage system unaffected i.e. till the drain was I
diverted. The Express Newspapers Pvt. Ltd. was thus disabled from '
building on a substantial part of the land allotted to it until
the underground drain was realigned outside the boundary of the
two plots. In effect, an area of 2740 square yards to the west of
the drain had to be left open as residual plot of the land out of
the total area of 5703 square yards. The agreement was embodied
in a document styled as a lease agreement executed between the
parties on November 19, 1957 so as to protect the underground
sewage drain and restrict the construction of the building to the
ea~t of the drain.
On April 11, 1956, J.N. Ambegaokar, Under Secretary to the
Government of India, Ministry of Works & Housing addressed a
G
letter to the Express Newspapers Pvt. Ltd. to the followi0g
effect:
"I am directed to state that the allotment of land to
the Indian Express Newspapers on the Delhi Ma thura
Road, New Delhi, has been revised on the following
basis: (i) 2965 sq. yards to the east of pipe line @
H
as. 1,25,000 per acre plus 2-1/2% annual ground
EXPRESS t<'EWSPAPERS v. U,Q,I, [A.P. SEN, J.] 421 \
A
rent thereon; (ii) 2740 sq. yards to the west of the
pipe line @Rs. 36,000 per acre plus 2-1/2% per acre
annual ground rent thereon. In addition to the premium
as indicated above, .the following amount should also
be recovered : (a) 50% of the ground rent of Rs. 2424
(@ 2-1/2% of the total premium of Rs.96,955) per B
annum for the period from 17 .11.1952 the date of
original allotment to 14.1.1956 - Rs. 3838, (h) an
advance ground rent for 1-1/2 years @ Rs. 2424 per
annum - Rs. 3636."
The revised allotment was subject, among others, to the c
following conditions :
"The area of the west of the pipe line as mentioned in
para l(ii) of this letter should be maintained as an
open space i.e. as lawns, paths or parking ground. The
lessor shall have the right to construct and maintain D
another sewer line along this land, if necessary."
The letter went on to say that necessary instructions had
been issued to the Chief Commissioner of Delhi in that behalf
with a request that the Exp~ess Newspapers Pvt. Ltd. should get
in touch with the Land & Development Office, New Delhi for taking E
possession of the land. It would appear from the letter that the
Ministry of Works & Housing permitted the Express Newspapers Pvt.
Ltd. to construct on plots nos. 9 and 10 to the east of the sewer
line with a corresponding reduction in the amount of 'premium and
ground rent for the area west of the sewer line as compared to
the amount chargeable to the area east of the sewer line.
F
Execution of the indenture of lease dated March 17,
1958 and the terms thereof.
By a registered indenture of lease dated March 17, 1958
executed between the President of India of the one part and the
Express Newspapers Pvt. Ltd. of the other part, the Chief G
Commissioner of Delhi 'under the instruction of the Government of
India relating to the disposal of building sites in the new
Capital of India' demised on behalf of the Union of India in
perpetuity the nazul land described therein in consideration of
payment of a premium of Rs.96,955 admeasuring 1.179 acres of
thereabout being plots nos; 9, 10, Bahadurshah Zafar Marg on
payment of the yearly rent Rs.1212 stipulated therein for the H
period November 17, 1952 to January 14, 1956 and thereafter @
422 SUPREME COURT REPORTS [1985] SUPP.3 $,C.R.
A
Rs. 2424 per annwn. The lease-deed inter alia provided as per
cl.2(4) that the lessee shall keep tathe---.atisfaction of the
Chief Col!lldssioner the area to the west of the sewer line running
diagonally on plots nos. 9 and 10 from north-west to south-west
admeaauring 2740 sq. yards as green i.e. as open space on which
no building activity was permitted. The petitioner were charge
B premiwn at two different rates of the leasehold premises. The
premiwn charged was at Rs.36,000 per acre for the area west to
the sewer line and for tlie remaining portion, i.e. to the east of
the sewer line on which construction of the building was
permitted, the price of the land was fixed at Rs.l,25,000 per
acre. It may be mentioned that the above perpetual lease was
executed by Assistant Secretary (Local Self Government) to the
c Chief Col!lldssioner, Delhi by the oraer and direction of the
President of India. Likewise, the earlier agreement dated
November 19, 1957, s.o also the supplementary agreement of May 26,
1954 to which we shall presently refer, were executed by the said
officer in the same manner. Both the agreements stipulated (under
clause V of both) that the rules, regulationa and bye-laws of the
Municipal corporation of Delhi rt!lating to bulldings which may be
D
in force from time to time shall be conformed by the lessee.
On November 17, 1964, a supplemental lease was executed
between the President of India and the Express Newspapers
Pvt. Ltd. allowing the permanent change of user in respect of one
lac square feet of the total accommodation of one and a half lac
E
square feet i.e. two-third of the total acc011100dation in the
Express Buildings for general office use, comnercial or
otherwise, i.e. allowing the petitioners to sub-let upto 2/3rd of
the floor area of the Express Buildings in lieu of payment of a
awn of Rs.2,23,875 by them to the Union of India, the lessor,
as an additional premiwn and in conaideration of their covenant
F to pay additional ground rent of Rs.5,746.88p. per annwn for the
land demised over and above the rent reserved by the perpetual
lease. Th~ recital in the deed was to the effect :
"The lessor doth hereby permit the lessee to use
l,00,000 (one lac) sq.feet out of the total
G
accollllllOdation of l,50,000 (one and a half lac) sq.ft.
in the said Express Newspaper Building for general
office use comnercial or otherwise, excluding
coomercial ventures like hotel, cinema, restaurant
etc. and subject to ·the other provisions and
conditions mentioned in clause 7 of the said lease.
H
EXPRESS NEWSPAPERS v. U<O.I. [A.P. SEN, J.] 423
Provided further that the lessee shall all along A
continue to use atleast 50, 000 (fifty thousand)
sq .feet of the accommodation in the said Express
Newspaper Building for the use of press/presses,
office/offices of its newspaper, publications and
other ventures."
B
And that
"And this indenture further witnesseth that in
consideration of the premises, the lessee doth hereby
covenant to the lessor that the lt!ssee will pay an
additional ground rent of Rs. 5746.88p. per annum as C
and from the 15th day of January 1960 over and above
the ground rent reserved under the said principal
lease to be paid by equal half-yearly payments from
the 15th day of July each year as provided in the said
principal lease-deed."
D
The effect was that the lessor i.e. the Union of India, Ministry
of Works & Housing permitted permanent change of user of the
existing Express Building by the Express Newspapers Pvt. Ltd. in
respect of 1,00,000 sq.ft. of total accommodation. and it was
permitted to let out 75,000 sq.ft. of the surplus accommodation
with them to the State Trading Corporation for a period of 3 E
years from February 1, 1960 @Rs.60 per month per 100 sq.ft. with
liberty to the State Trading Corporation to sublet any part of.
the area over and above its own needs.
At the time of cons true tion of buildings in the press area,
there were no restrictiona as to the FAR permissible along with
Bahadurshah Zafar Marg, also known as the Mathura Road Commercia: F
Complex, and the only restriction on conatruction of buildings in
that area was that the allottees of the plots in the press area
should construct buildings upto a height of 60 feet. Under the
agreememt of lease dated May 26, 1954, the Express Newspapers
l'vt· Ltd. was allowed to build upon the entire area of the plots
in question being plots nos. 9 and 10 with a ground coverage of G
100% i.e. edge-to-edge, a structure with a minimum of five
storeys including the ground floor for the purpose of
installation of a printing press for publication of a Hindi
newspaper. This permission was granted il\ response to the plana
submitted by the Express Newspapers Pvt. Ltd. and approved in
writing by the Chief Commissioner of Delhi acting for and on
bahalf of the lessor i.e. the Union of India. Such plana as H
424 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
approved permitted construction by the Express Newspapers
Pvt. Ltd. of a building on the entire area of plots nos. 9 and 10
with 100% ground coverage in conformity with the said agreement.
Pursuant thereto, the Express Newspapers Pvt. Ltd. constructed
the old Express Building to the east of the sewer line with an
B FAR of 260 with reference to the entire plot leased to it i.e.
plots nos. 9 and 10 although the building occupied only half of
the area. After completion of the old Express Building to the
east of the sewer line on March 14, 1958, the perpetual lease was
executed on March 17, 1958, as already stated. The aforesaid
supplemental lease was also executed on November l, 1964
permitting change of user i.e. enabling the Express Newspapers
C Pvt. Ltd. to sublet two-third of the accOUJmOdation available with
it.
At no stage did the Central Government go back upon their
solemn comnibnent embodied in the agreement of lease dated May
26, 1954 under which the Express Newspapers Pvt. Ltd. was
entitled to construct a four storeyed Express Buildil18 on the
D entire area of plots nos. 9 and 10. They continued to recognize
the right of the Express Newspapers Pvt. Ltd. to revert to the
terms and conditions thereof as soon as the obstacle to further
construction thereto that had been discovered, unknown to the
parties that there was an underground sewage drain running
through plots nos. 9 and 10 diagonally, was removed. In
E particular, they continued to recognize the right of the
petitioners to build on the land kept as open space to the west
of the sewer line, once the drain was diverted. This would be
evident from the two facts :
l. The Union of India being the lessor left with the
F Express Newspapers Pvt. Ltd. the area to the west of
the drain on a reduced premium because it had to be
kept as an open space for protection of the drain. And
2. While nazul plots that are to be left open are
valued at Rs • 4840 per acre and ground rent is
G assessed accordingly, the area to the west of the
drain was assessed at Rs. 36,000 per acre implying
thereby that it was not an area to be kept vacant in
perpetuity.
Constitutional Instruments relating to property of
H the Union in the Union Territory of Delhi.
EXPRESS Nll'WSPAPERS v. U.O.I. [A.P. SEN, J.] 425
A
On November 3, 1958 the President of India in exercise of
his powers conferred by cl.2 of Arr.. 77 of the Constitution issued
the Authentication (Orders and Other Instruments) Rules, 1958
relating to, and dealing with, the conduct of business of the
Government of India. In terms of the said Rules all Secretaries
of the Ministries concerned were authorized to authenticate B
documents on bahalf of the government of India. On November 6,
1959 all functions relating to administration of leases of
Government lands in Delhi were. transferred .from the Chief
Conmissioner of Delhi (Local Self Government) to the Ministry of
Works & Housing. On Janwn-y 18, 1961 the President in exercise of
the powers under Az t. 77(3) of the Constitution made the c
Government of India (Allocation of Bµsiness) Rules, 1961. Rule 2
provided that the business of the Government of India shall be
transacted in the Ministries, Departments, Secretaries and
Offices specified in the First Schedule to the Rules. Rule 3 laid
down that the distribution of subjects among the departments
shall be as specified in the Second Schedule. Rule 4 enjoined D
that the President may on the advice of the Prime Minister
allocate the business of the Government of India among Ministers
by assigning one or more departments to the charge of a Minister.
The Minis try of Works, Housing and Supply is specified in the
First Schedule at serial no .19. Under the Second Schedule, the
distribution of subjects in the Ministry of Works, Housing and E
Supply is allocated. Entries 1, 6 and 23 (a) and (1) come under
the Ministry of Works, Housing and Supply and read as under :
"l. Property of the Union (not being railway, naval,
mill tary or air force works or being the property of
the Department of Atomic Energy) except (i) butldings,
the construction of which has been financed otherwise F
than from the civil works budget and (ii) buildings,
the control of which has at the time of construction
or subsequently, been permanently made over by the
Ministry of Works, Housing and Supply to another
Ministry."
G
"6, Allotment of Government lands in Delhi,"
"23. Administration of the Ministry and attached and
subordinate organisations, namely :-
(a) Central Public Works Department;
H
** ** ** ** **
(1) Land & Development Office."
426 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A In terms of the aforesaid Entries 1, 6 and 23 (a) and (1), all
matters relating to the properties of the Union including
allocation of Government lands in Delhi and the administration of
the Land & Development Office were exclusively vested in the
Ministry of Works, Housing and Supply, later the Ministry of
Works & Housing.
B
Under Art. 299(1) of the constitution, the President issued
a notification No. GSR 585 dated February 1, 1966 supersession of
the earlier notification no. 1161 dated December l, 1958. The
Land & Development Officer under Entry XXI, Item 7 was authorized
to execute contracts assurance of property relating to matters
falling within the jurisdiction of the Land &Development Office.
c The relevant Entry reads :
"7. Iu the case of Land &Development Office
(i) All contracts and assurances of property relating
to matters falling within the jurisdiction of Land &
Development Officer;
u
(ii) all contracts, deads and other instruments
relating to or for the purpose of enforcement of the
terms and conditions of the sale/ lease-deeds of the
Government Built Property in Delhi/New Delhi; j
E (iii) auctioneering agreements, bonds of auctioneers
and security bonds for the due performance of works by
the auctioneers."
However, by an overriding provisions contained in Entry XII, it
was laid down thst 'notwithstanding the previous authorizations,
F any contract or assurance of property relating to any matter
whatsoever may be executed by the Secretary, Special Secretary,
Additional Secretary, Joint Secretary or Deputy Secretary to the
Central Government in the appropriate Ministry or Deparbnent'. In
terms .of the allocation of Business Rules of the Government of
India, the Minis try of Works & !lousing was the appropriate
G authority for dealing with matters relating to lease of
Government lands and in terms of the aforesaid notification no.
GSR 585 issued under Art.299(1), the Secretary, Additional
Secretary, Joint Secretary, Deputy Secretary and Under Secretary
in the Ministry of Works & Housing were authorized to execute
such contracts in the name of the President of India. It cannot
H therefore be doubted thst the Ministry of Works & !lousing with
EXPRESS NEWSPAPERS v. u.o.r. [A.P. SEN, J.] 427
the Minister at the head was and is the ultimate authority
A
responaible for the following items of work, viz. "Property of
the Union, Town & Country Planning, Delhi Development Authority,
Master Plan of Delhi, Administration of Delhi Development Act,
1957, the Land & Development Office dealing with administration
of nazul lands in the Union Territory of Delhi".
B
The Ministry of Works & Housing was and also is the
ultimate authority in respect of the powers, functions and duties
of the Delhi Development Authority as well as the Municipal
corporation of Delhi, including that of the Delhi Water Supply
and Sewage Disposal Committee of the Municipal Corporation of
Delhi ••
c
Statutory changes subsequently brought about in Delhi·
It is common ground that the Delhi Development Act, 1957 is the
paramount law on the subject viz. implementation of the Master
Plan, Zonal Development Plan and Building Regulations, and
D
overrides the Delhi Municipal Corporation Act, 1957. The Delhi
Development Act came into force on December 30, 19.57. The
provisions of the Delhi Municipal Corporation Act were brought
into force on different dates. S. 2 which is the definition
clause, Chapter 11 relating the constitution of the Corporation
and some other provisions were brought into force w.e.f. January
E
2, 1958, s. 512 on February 15, 1958 and the remaining provisions
including Chapter XIV relating to building regulations were
brought into force on April 7, 1958 •. On September 10, 1962 the
Central Government approved the Master Plan for Delhi, prepared
by the Delhi Development Authority under s. 7 of the Delhi
Development ACt. The Master Plan makes specific regulations for
comnercial areas and especially for already built-up comnercial
F
areas i.e. walled city of Old Delhi. But the press area on the
Mathura Road Comnercial Complex although specified as a
commercial area is not Us ted in the list of already built-up
comnercial areas which relate to the walled city of Old Delhi.
On November 26, 1956 the Central Government approved the Zonal
Development Plan for D-11 area prepared by the Delhi Development
c;
Authority under s.8 of the Act within which the press plots are
located. It provided for an FAR of 400 for the press area in the
Bahadurshah Zafar Marg.
The material on record discloses that the construction of
the new I>xpress Building with an incresed FAR of 360 with a
H
428 SUPREME COUR:r REPORTS (1985] SUPP.3 s.c.R.
A
double basement was in conformity with els. 2(5) and 2(i4) of the
perpetual lease-deed dated March 17, 1958 inasmuch as it was with
the express sanction of the lessor i.e. the Union of India. It is
also quite clear that Sikander Bakht, the then Minister for Works
& Housing was th1.rughout guided by the officials of the Ministry
II particularly the Secretary, Ministry of Works & !lousing, who was
the competent authority to act for the President with regard to
any contract, grant or assurance of property of the Union
relating to any manner whatsoever in relation thereto by virtue
of the notification issued by the President under Art. 299(1) and
further that the grant of such parmission was after the matter
bad been dealt with at all levels and was in conformity with the
C orders of the then Vice-<:bairman, Delhi Developnent AUthority
dated October 21, 1978 as one under 'special appeal'.
After the formation of th" Janata Government at the Centre
on March 22, 1977 the Express Newspapers Pvt. Ltd. moved for the
reiooval of the legal impedim2Ilt for the construction of the
Express Building to the west of the sewer line first by moving
D the Municipal Corporation of Delhi for shifting of the sewer line
outside plots nos. 9 and 10 and secondly, by moving the lessor
i.e. the Union of India, Ministry of Works &Housing for grant of
r-,quisite sanction to construct the new Express Building with an
FAR of 400. On October 7, 1977 it wrote a letter to the Chief
Engineer, Delhi Water Supply & Sewage Disposal Undertaking, ~
E Municipal Corporation of Delhi to inquire whether it was possible
to realign the underground sewer line so that it would run
outside their premises and were duly informed that the sewer line
could be so shifted. Aecordingly on October 25, 1977 the Express
Newspapers Pvt. Ltd. addressed a letter to the Secretary,
Ministry of Works & Housing saying that additional construction
F on the western portion of plots nos. 9 and 10 leased out was
possible after the sewer line shifted and that they were in need
of a larger amount of because they wanted to start a Hindi news-
paper and were also in need of an additional basement where the
printing press would be located. It was pointed out that because
of the underground sewer line running across these plots, no
G construction could be undertaken above the sewer line as they had
to leave a safety distance of 25ft. parallel to the same and thus
the built-up area available to them was almost reduced to half
i.e. 2963 sq. yards while other presses in the area like the
Times of India, National Herald, Patriot etc. were able to build
over the entire extent of their respective plots. It accordingly
H requested the lessor i.e. the Union of India, Ministry of Works &
Housing for permission to construct on the open space aclmeasuring
EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 429
2740 sq.yards on the western side of plots nos. 9 and 10 indicat- A
ing the permissible built-up area as also the terms on which the
additional space could be so utilized. A copy of the letter was
marked to the Land & De•elopment Office, Ministry of Works ~
Housing. On November 3, 1977 the Secretary instructed the Joint
Secretary to call a representative of the Express Newspapers
Pvt. Ltd. and the Land & Development Officer and evolve a B
solution. The Joint Secretary (Delhi Division) directed the Under
Secretary (Land Division) to do the needful, Incidentally, the
Ministry has two separate divisions, the Delhi Division and the
Land Division, both working under the control of the Joint
Secretary (Delhi Division). Delhi Division deals with matters
pertaining to the Delhi Development Authority and Urban Develop- C
ment while the Land Division deals with matters relating tc>
allotment of government lands and administration of lease. It
follows that the Delhi Division was competent to deal with
matters relating to construction of the new Express Building
including the pennissible FAR and the grant of permission to the
lessor under the lease and the question of payment of additional D
premium etc. had to be dealt with by the Delhi Division.
Accordingly, on November 14, 1977, R.K. Mishra, General
Manager and authorized representative of Express Newspapers Pvt.
Ltd. waited on the Under Secretary, (Land Division), Ministry ·Of
Works & Housing and was verbally informed that the requisite E
permission of the lessor could be sought after the building plans
were approved by the Municipal Corporation of Delhi and it was
then that they should seek the approval of the lessor and at that
time the Ministry would intimate what additional premium, i f any,
was payable. The Under Secretary also recorded a note to that
effect. Thereafter on December 7, 1977 petitioner no.3 Ram Nath
Goenka addressed a letter to Sikandar Bakht, the then Minister F
for Works & Housing drawing his attention to the aforesaid
meeting where the representative of Express Newspapers Pvt. Ltd.
had been intimated that they should first submit their building
plans to the Municipal Corporation of Delhi and thereafter seek
permission of the lessor which would advise them of the amount of
premium payable for the change of user. He requested the Minister G
to issue necessary instructions directing that the plots in the
press area should be treated as commercial complex which entitled
the plot-holders to build over the entire area of the respective
plots subject to the restriction of a height of 60 ft. as
stipulated in 1951 without any restriction as to the area of
various floors. There followed a meeting in the Ministry of Works
& Housing on December 20, 1977 when the General Manager of Indian B
430 SUPREME COURT REPORTS [1985] sUPP.3 s.c.&.
A
Express and an official of the Delhi Development Authority were
present and the extent of FAR permissible was specifically
discussed. This was followed by a letter of the General Manager
dsted December 23, 1977 to the Secretary, Ministry of Works &
Housing iµ which he referred to the meeting where it was felt
that although the press area was not expressly mentioned in the
B
Master Plan, it would still fall under the general description
of 'other comnercial areas' where only an FAR of 300 was
permissible and that it would be so despite the fact that no such
limitation existed when the press complex was established. He
referred to the letter of Ram Nath Goenka dsted December 7, 1977
to the Minister wherein permission to build on the entire area of
the plots in question was sought. A copy of the letter was
endorsed to the Minister. On December 30, 1977 the Chief
c Engineer, Delhi Water Supply & Sewage Disposal Undertaking wrote
a letter to R.K. Mishra, General Manager, Indian Express stating
. that it would cost Rs. 2.5 lakhs to divert the sewer line and
that the completion of work would take about five months after
the deposit was made. This was in reply to the letter sent by
Express Newspapers Pvt. Ltd. on October 12, 1977. Accordingly, the
Express Newspapers Pvt. Ltd. on December 31, 1977 wrote to the
D
Deputy Secretary, Ministry of Worl-.s & Housing that the limicipal
Corporation of Delhi i.e. the Delhi. Water Supply & Sewage
Disposal Undertaking had indicated that the undergro"und drain
could be shifted so that it would run outside the lease hold
premises and therefore there should be no objection to the
cons true tion of the new Express Building, and requested the
E
Ministry for advice on the FAR permissible for the said building.
According to the note recorded by the Minister on the margin
of the letter of petitioner no.3 Ram Nath Goenka dated December
7, 1977, instructions were to be issued to the Delhi Developnent
Authority to examine the question. On January 7, 1977
F
J.B.D'Souza, Secretary, Ministry of Works & Housing recorded a
detailed note and put it up to the Minister. It appears that he
discussed the case with the Minister on the 7th and explained to
him that the Express Newspapers Pvt. Ltd. had already used up an
FAR of 260 with reference to their leasehold premises i.e. plots
nos. 9 and 10 although they had occupied about half of the land
G
with their building. It was recorded in the note that the
assertion that others in the press area had an FAR of 500 was not
factually correct. Maxinrum FAR for all the press plots was 300
and below except in the case of Times of India where it was 304
and the National Herald where it was 306. 3. According to him, the
effect of allowing the petitioners to erect similar building on
H
EXPRESS NEWSPAPERS v. u.o.I. [A.P. SEN, J.] 431
A
the other half would mean a rise of FAR from 300 to 400. Perhaps
an increase from 260 to 360 should be permitted if the need for
starting a newspaper in Hindi was really genuine. The portion to
the west of the sewer line was kept as open and was being used
for parking of cars, and these would have to be parked out on the
road, apart from the extra parking need that the additional B
construction would give rise to. The Minister asked the Secretary
to discuss the matter with Petitioner no.3 Ram Nath Goenka and
arrive at a suitable solution. As a result, the Secretary noted
as below :
"I find it difficult to recommend the FAR requested by C
Shri Goenka, as this will inevitably lead to requests
from"other plot-holders, including the Times of India,
to use up their entire· land area for building upto 60
feet, which will mean in effect a rise of FAR from 300
to 400. The effect on parking and other requirements
may not be acceptable. D
At the same time it is undeniable that Shri Goenka is
unable to retrieve from his tenants a considerable
part of his existing building, and i f his needs of
starting a newspaper are really genuine~ some
considerable concession will be needed. Perhaps an E
increase from 260 to 360 should be permitted; with the
extra .basement area the firm will build this should
r give i t nearly 50,000 extra sq.feet of area."
On January 18, 1978, the Minister for Works & Housing
concurred with the views of the Secretary and ordered as below:
F
"I agree. In the circumstances stated, 'A' above is
the farthest we should accommodate. May process
further accordingly."
The Ministry of Works & Housing by letter dated February 2,
1978 conveyed to the Vice-Chairman, Delhi Development Authority
the decision of the Union of India to permit the petitioners to
build with an FAR of 360 as below
"It has been decided that FAR in this case may be
increased up to 360 so that with the extra basement
area the firm would have an additional built-up area
of nearly 50,000 sq.feet. You are requested to take H
necessary actio~ in the matter."
432 SUPREME COURT REPORTS [1985] SUPP.3 S.C.R.
A Copies of this letter were endorsed to the Town & Country
Planning Organisation and Officer Inchrage, Master Plan in the
Delhi Development Authority. The Additional Secretary, (Master
Plan), Delhi Development Authority however maintained that the
FAK permissible for the press area was only 300 with 80% ground
coverage, 70~ on the first floor and 50 % on the second, third
B and fourth floors.
Another letter dated March 6, 1978 was addressed by
petitioner no.3, Ram Nath Goenka, to the Minister in which he
reiterated the earlier request made by him for allowing the
•petitioners to build on 100% of the plinth area, only with the
height restriction of 60 feet. It stated that the Minister had
c informed him that an order allowing the petitioners to build upto
an FAR of 360 had already been passed and further construction
beyond it would be sanctioned later.
lnmediately thereafter the Ministry of Works & Housing took
a decision adverse to the Express Newspapers Pvt. Ltd. On April
15, 1978, P.B. Rai, TCP.:.II put up a note objecting to the
D Government decision to increase the FAR to 360 on the ground that
it was in total contravention of the Master Plan and would have
serious implications. It is a long note, relevant part of which
may be extracted :
"As per Master Plan, FAR 300 in commercial areas does
E not exist for any area in Delhi whatsoever."
He further stated that such a decision to permit construction
upto an. FAR of 360 would not be implemented by the Municipal
Corporation of Delhi as their existing bye-laws and rules
permitted construction upto 300 only and added that the rules and
bye-laws should not be modified for one particular case or
building or for one particular commercial area.
Upon the receipt of the TCP-II 's note, the Joint Secretary
(Delhi Division) on May 6, 1978 directed the Deputy Secretary to
put up a clear note for obtaining the orders of the Secretary
G Ministry of Works & Housing and the Minister because the
petitioners wanted to build the 100% coverage, while the TCP-II's
note showed that the permissible FAR was 300. Accordingly, the
Under Secretary put up a detailed note on May 8, 1978 explaining
the various view points, bye-laws etc. and recommended reduction
of FAR to 300. On the same day, the Deputy Secretary marked the
H file to the Joint Secretary. On May 18, 1978, the Joint
EXPRESS NEWSPAPE).{S v. U.o.I. [A.P. SEN, J.] 433
A
Secretary, (Delhi Division) pointed out that the petitioners were
not happy with FAR 360 against their original demand of 500 and
they now wanted FAR 430.67 while the maximum FAR permissible was
300 as pointed out by the Secretary (Master Plan), Delhi
Development Authority. He therefore recommended restriction of
the FAR to 300 as per the bye-laws of the Municipal Corporation
B
of Delhi and the Secretary endorsed the said recommendation.
Therefore, the Minister approved of the restriction of the FAR to
300.
On May 19, 1978, M.N. Buch, Vice-Chairman,' Delhi Development
Authority wrote to the Joint Secretary, Ministry of Works &
Housing stating that the Government's decision of FAR 360 was
c
"totally unacceptable and added that 'making of exceptions of this
nature was precisely the stick with which the Delhi Development
Authority was beaten' for its own office building i.e. Vikas
Minar which far exceeded FAR 400 and was in breach of all
buHding bye-laws. He accordingly suggested that FAR 300 might be
D
permitted with the condition that necessary parking facilities
would have to be provided. On May 24, 1978, the Deputy Secretary
recorded a note directing that further action to implement the
said decision of the Minister to restrict the FAR to 300 may be
taken by the Land & Development Officer. On June 9, 1978, the
Deputy Secretary, Delhi Development Authority informed the
E
Vice-Ghairman of the decision of the government restricting the
FAR to 300.
It appears that the case was revived on July 14, 1978 when
Sikandar llakht, Minister for Worka & Housing wanted to know after
some representative of Express Newspapers Pvt. Ltd. had visited
his office, if the press ares and the FAR therefor were mentioned
F
in the Master Plan and whether or not the FAR achieved for the
Express Buildings was 500, it would not operate for fresh
construction in the press area for which the FAR was not to
exceed 300. A meeting was fixed to discuss the matter in the room
of the Minister on August 18, 1978 and the following note was
recorded by D'Souza, Secretary in the Ministry of Works & Housing
G
regarding the discussions :
"The JS(D), the Vice-Chairman, DOA and I met the
Minister today and explained the undesirability of
allowing the Indian Express Higher FAR than already
proposed in this case, particularly the
repercussions it would have on the othe.r occupants of
plots on this roacl. The Vice-Chairman suggested
434 SUPREMI:: COURT REPORTS [1985] SUPP.3 s.c.R.
A another possibility, namely, allotting to the Indian
Express some other land where it could put up a
building. The Vice-Chairman said he would get in touch
with Shri Goeiika and put this proposition to him."
The Minister agreed with the Vice-Chairman's, suggestions."
B
On October 21, 1978, M.N. Buch, Vice-Chairman, Delhi
Development Authority took the following decisions :
"(a) to amalgamate plots nos. 9 and 10 and taking into
account the existing built-up area would permit on FAr
of 360 overall;
c
(b) to allow the residual area of plots nos. 9 and 10
to be built. in line with the Times of India and Shama
building;
(c) to exclude the basement from the calculations of
the FAR provided the basements are not used for office
D purposes;
(d) to permit parking on the service road in the same
manner as it was for the other buildings in this line,
adequate parking facilities would also have to be
provided in the set back of approximately half portion
of the line which has been suggested by the Express
Newspapers Pvt. Ltd. in the drawings."
He further directed that the aforesaid order was to be
treated as one under special appeal. He accordingly gave instruc-
tions for issuing 'no objection' to the Express authorities for
F construction on the residual area and to make a reference to the
Government of India asking for confirmation of the action
propo"sed. The Vice-Chairman in his order mentioned that the
Minister for Works & Housing had ordered that the cases should be
cleared immediately and his ex post facto sanction obtained by
the Delhi Development Authority. - - - -
On November 4, 1978, R.D. Gohar, Joint Director (Buildings),
Uelhi Development Authority addressed a letter to the petitioners
to the effect :
"The plans submitted by you have been examined. I am
ti directed to inform you that there is no objection to
<:Xl'KESS NEWSPAPE!{l) v. u.o.r. [A.P. SEN, .J.j 435
amalgamation of plots nos. 9 and 10 and allowing an
overall FAR of 3.6 taking into account the existing A
FAR. In that case the existing building line of the
adjoining plots shall have to be maintained. The
basemen< has been excluded from the calculation of the
FAR and the installation of Press Machinery like any
other service machinery is permitted. The parking on
the service road is permitted in the same manner as it 'B
is for other buildings in this lirte. However, adequate
parking facility shall have to be provided in the open
area which may be so planned to make usable for
parking purposes."
On the detailed examination of the lay-out plan, he observed C
that as per FAR of 360 construction was permitted on 1,84,886.07
sq.feet as against the existing FAR covering an area of 1,29,028
sq.feet i.e. the overall ground coverage now permitted was 13.81%
i.e. 37904.92 sq. feet. The petitioners were directed to submit
the plans to the concerned authorities for approval. A set of
plans as submitted by the petitioners and examined 'as per norms' D
was enclosed. On November 17, 1978, the Vice-Chairman, Delhi
. Development Authority addressed a letter to the Ministry of Works
& Housing reconnnending extension of FAR from 300 to 360.
On November 24, 1978 the Government of India, Ministry of
Works & Housirig addressed the following letter to the E
Vice-Chairman, Delhi Development Authority
"No .K-12016/Z/78-DDA
Government of India.
Ministry of Works & Housing
(Nirman Aur k."BB Mantralya)
r'
New Delhi, the 24th November, 1978.
To
The Vice-chairman.
Delhi Development Authority, G
Vikas·Minar,
New Delhi.
Sub: Plots nos. 9 and 10, llahadurshah Zafar Marg,
New Delhi.- Request for additional Coverage.
436 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
Sir,
With reference to your D.O. Letter No. PA/VC/78/874 dated
17.11.78 and in supersession of this Ministry's letter of even
number dated 9.6.1978, I am directed to say th;lt, as proposed by
you, the Express Newspapers Pvt. Ltd. may be allowed to construct
ll
on the residual plot on the basis of an FAR 360 for the whole
plots.
Yours faithfully,
sd/- (V.S. Katara)
Joint Secretary to the
c Government of India.
Copies of the letter were endorsed to the Coumissioner,
Municipal Corporation of Delhi, Land & Development Office, Town &
Country Planning Organisation and Express Newspapers Pvt. Ltd.
This was followed by a clarificatory letter from the Ministry of
Works & Housing to the Vice-Chairman dated December 1, 1978 that
D
the FAR 360 allowed excludes the entire area of basement as per
the provisions of the Master Plan.
The permission granted by the lessor i.e. the Union of
India, Ministry of Works & Housing for the construction of new
Express Building with an increased FAR of 360 as accorded by
Sikandar Bakht, the then Minister for Works & Housing was acted
upon by the petitioners by cons true ting the four-s toreyed new
Express Building by the end of February, 1980. As already stated,
this was done with the sanction of the Delhi Development
Authority and the Municipal Corporation of Delhi.
Pleadings of the Parties
r. Petitioners' Case
In the facts and circumstances hereinbefore adumbrated, the
petitioners pleaded inter alia that :
G
1. The proposed action of re-entry by the lessor i.e.
the Union of India, Ministry of Works & Housing at the
instance of the Lieutenant Governor of Delhi is meant
to be a.n act of political vendetta. The impugned
notices have been issued with an evil eye and an
H
unequal hand and with a deliberate design to compel
EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 437
A
the petitioners to close down the Express Group of
Newspapers in general and the Indian Express in
particular. The said notices are ex facie illegal and
without jurisdiction and are contrary to the factual
and legal provisions. The arbitrary and discriminatory
initiation of executive action under the guise of B
alleged infraction of the terms of the lease and/or
the Master Plan of Delhi and/or the municipal building
bye-laws is violative of the petitioners' fundamental
rights under Arts. 14, 19(1)(a) and 19(1)(g) of the
Constitution.
c
2. The construction of the new Express Building with
an increased FAR of 360 was in conformity with clause
2(5) of the perpetual lease dated March 17, 1958
inasmuch as it was with the express sanction of the
lessor i.e. the Union of India. The grant of
permission by Sikandar Bakht, the then Minister for D
Works & !lousing to sanction the construction of the
new Express Building with an increased FAR of 360 was
in accordance with the Master Plan, after M.N. Buch,
Vice-Chairman, Delhi Development Authority by his
order dated October 21, 1978 as "one under special
appeal" under the Master Plan, Chapter 11, Part A, E
Zoning Regulations, Item 13, Use Zone - C-2, at p.50
directed that plots nos. 9 and 10 at Bahadurshah Zafar
Marg leased to the Express Newspapers Pvt. Ltd. should
be 'amalgamated together into one plot and taking into
account the existing buHt-up area occupied by the old
Express Building built on the eastern portion of the
underground sewage drain with an FAR of 260, the F
construction of the new Express ·Building on the
western portion thereof after removal of the sewer
line with an overall FAR of 360 was permissible'.
2. The then Minister for Works & Housing was
throughout guided by the officials of the Ministry, G
particularly the Secretary, Ministry of Works &
!lousing, who was the compet~nt authority to act for
the President with regard to any contract, grant or
assurance of property of the Union relating to any
matter whatsoever in relation thereto by virtue of the
notification issued by the President under Art.
299(1). In terms of the Government of India H
(Allocation of Business) Rules, 1961 as well as und~r
438 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A the aforesaid notification under Art.299(1), the
Ministry of Works & Housing with the Minister at the
head was and is the ultimate authority responsible to
deal with the property of the Union and to enter into
all contractual obligations in relation thereto. The
Minister had not only full authority, power and
B jurisdiction to grant permission to the petitioners to
construct the new Express Building with an increased
FAR of 360 with a double basement for the installation
of the printing press, but the action taken by the
then government was in good faith. after taking into
consideration all the circumstances attendant at all
levels.
c
3. After the shifting of the underground sewer line
outside the leasehold premises at the cost of the
petitioners to the tune of Rs. 6 lakhs and on payment
of the supervision charges to the Municipal
Corporation amounting to Rs. 25,000, there could be no
objection to the construction of the new Express
D lluilding with an increased FAR of 360 as it allowed
the residual area of plots nos. 9 and 10 to be built
in line with the Times of India, National Herald,
Patriot and other buildings along the Bahadurshah
Zafar Marg. At the time of the grant of plots nos. 9
and 10 to the Express Newspapers Pvt. Ltd., there were
no restrictions as to the FAR in the construction of
buildings along the Bahadurshsh Zafar Marg. Further,
that the Master Plan for Delhi subsequently approved
by the Central Government in the year 1962 does not
mention the press area on the Bahadurshah Zafar Marg
comprising of the press enclave. Although specified as
F a coumercial area, it is not listed in the list of
"already built-up commercial areas" because it relates
to the walled city of Old Delhi. The zonal development
plan for D-II area within which the press plots are
located permitted an FAR of 400 Jor the press area in
the Bahadurshah Zafar Marg. In short, the submission
G is .that all that the then Minister for Works & Housing
did was to restore to the petitioners the right that
they acquired under the perpetual lease dated March
17, 1958 i.e. to be treated alike all other
plot holders in that area and a denial of such equal
terms would be opposed to the principles of equality
H besides being violative of Art. 14 of the
Constitution.
EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 439
4. The lessor i.e. the Union of India is estopped by A
the doctrine of promissory estoppel. and cannot
therefore go back upon all assurances given and
actions taken by the previous government, particularly
when the petitioners had acted upon the decisions so
reached and had constructed the new Express Building
with a cost of approximately Rs.1.30 crore by February B
1980 which at present would cost more than Rs. 3
crores. In substance, the petitioners contend that
where permission of the lessor i.e. the Union of India
has been granted in relation to any property of the
Union under a lease by the authority competent i.e.
the Ministry of Works & Housing, it is not competent
for the successor government to treat such permission
c
as being non est and to proceed as if no such
permission or-sanction had been granted.
5. The impugned notice issued by the Zonal Engineer
(Building), City Zone, Municipal Corporation of Delhi
D
dated March 1, 1980 upon the Express Newspapers
Pvt. Ltd. to show cause why the Express Buildings
should not be demolished under as. 343 and 344 of the
Delhi Municipal Corporation Act, 1957 was illegal and
ineffective inasmuch as the construction of the sald
building was not without or contrary to the sanction
referred to in s. 336 or in contravention of any of
the provisions of the Act or bye-laws made thereunder.
The threat to demolish the second basement especially
when similar double basement/platform exists in other
newspaper buildings in the press area such aq the
Times of India, National Herald, Patriot etc. along
the Bahadurshah Zafar Marg was violative of Arts. 14
and 19(1)(a) of the Constitution. The denial of the
respondents to allow such a double basement to be
constructed by the Express Newspapers Pvt. Ltd. in the
new Express Building clearly infringes the
petitioners' right to free speech and expression
guaranteed under krt. 19(1)(a) which includes the
G
freedom of the press as otherwise the printing
apparatus installed in the lower basement would be
rendered incapable of operation and is. therefore a
~qua ~ for the printing and publication of the
Indian Express.
6. The erection of the double basement or a working
H
platform in a printing press like the Express
440 SUPl®IE COURT REPORTS [1985] SUPP.3 s.c.R.
A Newspapers Pvt. Ltd. is s compoundable deviation from
the sanctioned plan and the insistence of the
Municipal Corporation of Delhi to demolish the same
suffers from the vice of hostile discrimination. Even
assuming that the llllilicipal bye-laws do not permit the
construction of a double basement in the press area
B along the Bahadurshah Zafar Marg, such bye-laws would
8IJl)unt to an unreasonable restriction on the right to
carry on the business of printing and publishing the
newspaper and thus offends Art. 19(l)(g) of the
Constitut;l.on.
7. Respondent No.2 Jagioohsn, Lieutenant-Governor of
c Delhi, cannot usurp the functions of the Union of
India in relation to the property of the Union in the
Union Territory of Delhi, and that the Lieutenant
Governor ia not a successor of the Chief Comnissioner
of Delhi. There wss no notification issued by the.
President under Art. 239(1) of the Constitution for
the conferral of any power on the Lieutenant-Governor
I) to adioinister the lease in question. No doubt, by
virtue of the notification issued by the President on
September 7, 1966 under Art. 239(1), the Lieutenant-
Governor has, subject to the like control by the
President, the same powers and functions as well as
exercisable by the Chief cOIIlllissioner with power to
E administer the property of the union. There is,
admittedly, no such notification issued by the
President under Art. 239(1) vesting either the Chief
Comnissioner of Delhi or the Lieutenant-Governor with
sny such power.•
F 8. In sny event, i t is inconceivable that after
October 1, 1959 when the administrative control over
the Land & Development Officer was transferred from
the llelhJ. Administration to the Ministry of Works &
Housing and by virtue of a notification issued under
Art. 299(1), the Secretary, Ministry of Works &
Housing was made the competent autl\ority to act for
the President with regard to any contract, grant or
assurance of property of the Union, the Lieutenant-
Governor could still arrogate to himself the powers of
the Union of India, Minis try of Works & Housing in
re la tion to the lease.
H
EXPRESS NEWSPAPERS v. u.o.I. [A.P. SEN, J.] 441
9. It is alleged that respondent no. 2 Jagmohau is A
actuated with personal bias against the Indian Express
and had filed a criminal complaint against the Chief
Editor of the Indian Express and some of the officers
of the Express Group of Newspapers for having
published an article in the Indian Express in April
1977 with regard to his role during the period of B
Fmergency in Turkman Gate demolitions. The Express
Group of Newspapers, particularly the Indian Express,
had during the period of Fmergency and imnedia tely
thereafter openly criticized the high handed actions
of respondent no.2 Jagmohan who was the then Vice-
Chairman of the Delhi Development Authority for which c
he was later indicated by the Shah Comnission of
Inquiry.
10. The Express Newspapers Pvt. Ltd. contend that they
having approached the Central Government for exercise
of its powers under s.41 of the Delhi Development Act, u
1954 for the issue of necessary directions as regards
the permission to build the new Express Building with
an increased FAR of 360 with a double basement for the
installation of the printing press which became
necessary due to want of any provision in that behalf
in the Master Plan and the Zonal Development Plan in E
I regard to the press enclave and the Central Government
having issued directions under the relevant provi-
sions, in terms of s. 53(3A) of the Act, the sanction
of the plan by the Delhi Development Authority by its
letter November 4, 1978 pursuant to such directions
and its authentication of the building plans approvii:g
the portions objected to by the Municipal Corporation, F
Delhi, overrides and makes irrelevant any other
sanction granted by the Municipal Corporation subject
to any qualification.
11. The impugned notice issued by the Zonal Engineer
(Building), City Zone, Municipal Corporation of Delhi G
dated March 1, 1980 was illegal and void as he did not
apply his mind at all to the question at issue but
merely issued the same at the instance of respondent
no.2. Further, the impugned notice issued by th~
Engineer Officer, Land & Development Office dated
March 10, 1980 purporting to act on bahalf of the
lessor i.e. the Union of India was factually and H
442 SUPl\EME COURT REPORTS [1985] SUPP.3 s.c.R.
A legally not a notice of re-entry upon forfeiture of
the lease as contemplated by els. 5 and 6 of the
lease-deed, based as it was on non-existent ground.
Although the lease-deed permits remedy of any breach
of any of the terms thereof, the opportunity to effect
such a remedy has not been, and as indeed it is clear,
B it is not intended to be, granted to the petitioners
and instead, there is a threat of re-entry upon the
leasehold premises upon forfeiture of the lease.
n. Bespondents Case
l. Respondent No.2·Jagmohan, Lt. Governor of Delhi
c filed a counter on behalf of all the respondents
asserting that the perpetual lease-deed dated March
18, 1958 was executed on behalf of the lessor by the
Assistant Secretary to the Department of Local Self
Government 'under the administrative control of the
Chief Comnissioner/Lt. Governor of Delhi'; that the
demise land is nazul land vested in the President of
lJ India, for the management, control and disposal of
which the Land &Development Officer in the Department
of Local Self Government, was created; and that as a
matter of fiscal policy, the administrative control of
the Land & Development Office, New Delhi was
transferred from the Delhi Administration to the
E Ministry of Works, Housing and Supply w.e.f. October
1, 1959. It was asserted that this transfer was
'purely on fiscal grounds' and did not divest the
Chief Commissioner/Lt. Governor of his contractual
powers, ~iven to him by the parties to the lease-deed,
as the representative of the President of India and
F the Head of the Local Self Government. It was averred
that according to cl.2(14) of the perpetual lease-deed
the land to the west of the sewer line was to be kept
as an "op~n space" i.e. as lawns, paths or parking
grounds to the satisfaction of the Chief comnissioner
and only the lessor or the Chief Commissioner had the
right to interfere with the maintenance of this area
and that too only for the purpose of laying a new
sewer line along the existing one. According to
cl.2(9) thereof, no excavation in the demise premises
should be made without the written consent of the
Chief Commissioner/Lt. Governor of Delhi. Admittedly,
Ii
EXPRESS fil.'WSPAPERS v. u.o.r. [A.P. SEN, J.] 443
A
no permission from the Chief Commissioner/Lt. Governor
pursuant to els. 2(9) and 2(14) was obtained by the
petitioners. It was further asserted that the sewer
line, according to the terms of the lease, could not
be diverted by the Municipal Corporation of Delhi at
the cost of the petitioners without the consent of the B
Chief Commissioner /Lt. Governor. The petitioners had
no right under the lease to change the character of
this land which was to be maintained and by
suppression of material facts obtained permission to
build thereon sanction of building plans from
authorities which they knew, under the terms of the c
lease was not permissible.
2. In refuting the allegations made by the petitioners
that Engineer Officer, Land & Development Office had
at the instigation of the Lt. Governor issued the
impugned notice for forfeiture of the lease, D
respondent no.2 asserted that he had not ordered the
issuance of the notice in question and that the Land &
Development Officer was an authority independent of
the administrative control and supervision of .the Lt.
Governor. It was asserted that the impugned show cause
notices were issued by authorities ·which are E
independent of the authority of Lt. Governor or by
autonomus local bodies. It was asserted The
impugned >how cause notice by respondent no.5, the
Engineer Officer, Land & Development Office was issued
only after he came to know through Press Reports of
certain serious violations of the lease-deed by the
petitioners. The show cause notice by respondent no.; F
was issued in exercise of powers under cl.4 of the
perpetual lease-deed dated March 17, 1958 for
violation of els. 2(5), 2(9) etc. As regards the
impugned show cause notice issued by the Zonal
Engineer (Building), City Zone, Municipal Corporation
of Delhi, it was ·asserted that the same had been G
issued by the Municipal Corporation of Delhi in
exercise of its statutory powers under ss. 343 and 344
of the Delhi Municipal Corporation Act after
verification of the allegations.
3. Respondent no.2 has sought to disown all
responsibility for the issuances of two impugned show I!
cause notices but asserted that being the Lt. Governor
of Delhi, he was responsible for the administration of
444 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
the Union Territory of Delhi and as such he was acting
within his powers to direct all the authorities
concerned to prevent violation of laws by any person
or institution. He further asserted that he, as the
Lt. Governor of Delhi, was fully competent to appoint
B the Enquiry Coom1ttee under the Coom1ssion of Inquiry
Act, 1952. It was denied that the Union of India or
the Lt. Governor of Delhi intended to inflict a
reprisal on the petitioners for the independent state
of the newspapers they publish. It was added :
"The respondents while welcoming, creative and
c constructive criticism of Government policies and
actions only expect a minimum standard of decency and
fairness from the Press."
4. It was alleged that the petitioners indulged in all
sorts of "Distortions and fabrications in criticising
the policies and actions of the Union of India and the
D Lt. Governor" and despite all this, respondent no. 2
had taken an indulgent view of these delinquencies
except when "he had to file a criminal complaint
against Express Newspapers Pvt· Ltd." to uphold his
self-respect and dignity", and some of the
petitioners have been summoned to stand their trial by
E a Court of competent jurisdiction. It is not disputed
that respondent no.2 had filed a criminal complaint in
Criminal Case No. Nil of 1979 in the Court of the
Learned Metropolitan Magistrate, New Delhi against
petitiooer no.4 for having coom1tted alleged offences
punishable under ss. 500, and 501 of the Indian Penal
F code, 1860 for having published a news item regarding
the active role played by him in the demolition of
houses near Turkman Gate in Delhi , which rendo>red
thousands of persons destitutes and hom.,less which
became the subject of an enquiry by the Shah
Coomission during the Emergency. Respondent no.2 makes
a special pleading of the demolition of the Turkman
Gate operation during the Emergency by him as Vice-
Chairman of the Delhi Development Authority which he
styled as a clearance operation undertaken for the
resettlement of the vast multitude of poor people. who
were vie t1ms of exploitation at the hands of vested
H hands and compelled to live in sub-standard human
living conditions of dirt and squalor stating that the
EXPRESS NEWSPAPERS v. u.o.r. [A.P. SEN, J.] 445
clearance operation was undertaken for improving the A
standard of living of the poor and their resettlement.
While admitting that he had filed a criminal complaint
against the Editors, Printers and Publishers of the
Indian Express for defamation, he denies that the
0
respondents had any personal animosity towards the
B
Express Group of Newspapers and asserted that the
criminal complaint for defamation was instituted
because the Indian Express was guilty of fabricating
and publishing false, motivated scandalous stories
about respondent no.2 and others.
5, Respondent no. 2 controverted that the contractual c
relations between the parties were governed by the
lease agreement dated May 26, 1954 which was modified
and superseded by the subsequent lease agreement dated
November 19, 1957, since this had also been
substituted by the registered perpetual lease dated
March 17, 1958 which alone, according to him, governed D
the relationship effectively and legally between the
Union of India and the Lt. Governor of Delhi on the
one hand and the Express Newspapers Pvt. Ltd. on the
other. It was denied that the Deputy Secretary,
Ministry of Works & llousing, Government of India had
E
any jurisdiction or authority to permit diversion of
the sewer line as he was not authorized to represent
the Central Government for the purpose of
administration of the lease and, therefore, any
attempt on the part of the Express Newspapers Pvt. Ltd.
to rely upon the agr~ement of 1954 or on the
subsequent agreement of 1957 to justify the action of
the Municipal Corporation' of Delhi in shifting the F
sewer line beyond the leasehold premises was an
exercise in futility. It was asserted that cl. 2(5) of
the perpetual lease could not be availed of by the
Express Newspapers Pvt. Ltd. in the absence of a
permission granted by representative of the lessor,
G
meaning .the Chief Commissioner/Lt. Governor or the
Land & Development Officer and, therefore, the removal
of the sewer line itself was illegal and did not
create any right in the Express Newspapers Pvt. Ltd.
to raise any construction on the land to the west of
the old sewer line which was to be kept as "green". It
was denied that by virtue of the transfer of functions
relating to administration of leases executed on ll
446 SUPREl'iE COURT REPORTS [1985] SUPP.3 s.c.R.
A
bahalf of the Union of India, the Chief Commissioner/
Lt. Governor was divested of all the powers conferred
on him by the various clauses of the lease-deed. It
was asserted that the transfer of the functions was
only an administrative measure to achieve the
B desired fiscal discipline in the matter of administra-
tion of properties of the Union of India. Even after
the transfer of functions to the Land & Development
Officer, it was said that all lease agreements are
being referred to the Lt. Governor of Delhi for
exercise of powers conferred on him in the lease
agreement. It is then said that
c
"It is also denied that the Ministry of Works &
Housing, as such represents the lessor. It is the Land
& Development Officer, the respondent no.5, who
represents the lessor (President of India) for the
execution of the leases and their administration under
Art.299(1) of the Constitution. Statutory Bodies like
D the llu.'licipal Corporation of Delhi, the Delhi
Development Authority, the Urban Arts Commission etc.
had no power under the perpetual l:oase-deed of 1958 to
vary or waive tre conditions of the lease."
Upon this basis, respondent no.2 asserted that the
E so-called permission obtained by the Express
Newspapers Pvt. Ltd. from the Ministry of works &
Rousing was void, illegal and without jurisdiction
and, therefore, a nullity in law.
In para 79, it is averred
F
"With reference to para 27(b), it is denied that the
Land & Development Officer is merely a functionary
under the Ministry of Works & Reusing. Ile is, in fact,
the officer appointed on bahalf of the lessor
(President of India/The Chief Corunissioner of Delhi)
G under the terms of the lease for the execution of
management of the lease-deeds, it is submitted that
the permission referred to by the petitioners was
neither applied for and obtained nor granted under
clause 2(5) of the lease-deed. The so-called
permission, in any case, was not addressed to be
H petitioners but to respondent no.6.·
EXPRESS Nl:.'WSPAl'ERS v. u.o.I. [A.P. SEN, J.] 447
6. After referring to the grant of permission by the A
Ministry of Works & Housing and the Delhi Development
Authority, respondent no.2 averred in para 89 :
"With reference to para 28(4) and (c) it is denied
that the breach complained of was capable of remedy.
As already stated, the so-called permission obtained B
by the petitioners did not amount to any valid
permission under the terms of the perpetual lease-deed
dated March 18, 1958. It: is submitted that: the
petitioners were bound to apply to the cowpetent
authority and obtain prior approval of the lessor
before coornenclng construction and the petitioners c
knew who the cowpetent: autbority was. The petitioners
did not make any appllcati<>n uoder any of the tetlllll of
the lease-deed before cmmitting the breach of the
lease-deed. -
(Emphasis supplied) D
The aforesaid averments clearly bring out the stand of
respondent no.2 that he alone and not the Ministry of
Works ~ Housing was competent to act on behalf of the
lessor i.e. the Union of India and this is brought out
in the averment which immediately follows: E
"It is further submitted that for any breach of
clauses (3), (9) and (10) of clause 2 of the lease-
deed, it was for the Chief Commissioner of Delhi to
decide i f the breaches are remediable and the nature
of the remedies required for the breach. If the
breaches were net remediable to the satisfaction of
the Chief Commissioner of Delhi, he could order
removal or demolition of the construction complained
of. Modification of the layout plan, conversion of the
land use and violation of the FAR prescribed under the
Master Plan and the Municipal Bye-laws are not remedi-
able breaches." G
7. Respondent no.2 has specifically denied that the
FAR for D-2 area which includes the Press Enclave is
400, and asserted that for built up areas which
include partly built-up areas, the FAR under the
Municipal Building Bye-laws is only 300. It was
H
448 SUPREME COURT REPORTS [1985] SUPP.3 S.C.R.
A then asserted thst the FAR for D-2 area being 300,
according to the Municipal Building Bye-laws and the
Master Plan for Delhi, the question of issue of
direction by the Central Government under s.41 of the
Delhi DevelojXDl!nt Act does not arise. Even then, it
was said thst the Vice-Chairman of the Delhi
II Development Authority (M.N. Buch), in view of this
legal position expressed the view in his note dated
October 21, 1978 that the case of the Express
Newspapers Pvt. Ltd. should be treated as an isolated
case to ·bring it at par and allow the FAR of 360
overall. Acco,:ding to him the reason for this as
indicated in the note was thst the order of Shri
c Sikander Bakht, Minister for Works & Housing "for
imnediate clearance of the case and for obtaining his
ex-post-facto sanction''.. Respondent No.2 denied that
the letters referred to in para 30(h) and (i) of the
petition could be construed as directions of the
Central Government to the Delhi Development Authority
under s. 41 of the Delhi Development Act. Instead of
D being such a direction, the Annexure 21 was a
clarification of letter dated November 25, 1978
stating thst FAR 360 was allowed excluding the
basen.ent. Annexure 22 was said to be a sanction letter
issued by respondent no.l on January 9, 1979 in
respect of building plans submitted by the Express
Newspapers Pvt. Ltd. before respondent no.3. Even
Annexure 20 which is a letter dated November 24, 1978
from the Ministry of Works & Housing, it was said was
not a permissipn under s. 41 of the Delhi Development
Act as it gives the ex-post-facto sane tion of the
proposal of the Delhi Development Authority permitting
F FAR 360 for the Express Ne'wspapers Pvt. Ltd. It was
then added :
"With reference to para 30(j), it is denied that the
actions taken by the Ministry of Works & Housing and
the Delhi Development Authority constituted a
G restoration of the rights of the petitioners under the
lease agreement of 1954, as the agreement of 1954 was
inadmissible being non-existent and inoperative after
its substitution by the agreement of 1957 as per
perpetual lease-deed dated March 18, 1958, it was
asserted that the petitioners could construct on the
H residual area of plots nos. 9 and 10 only in
EXPRESS NEWSPAPERS V• u.o.r. [A.P. SEN, J.] 449
A
accordance with the terms and conditiona of the
lease-deed of 1958 and subject to the provisions of
the Master Plan and the Municipal Bye-laws. It was
asserted that the lease deed of 1958 envisaged
compliance with the Municipal Bye-laws for any future
conatructions/additions in plots nos. 9 and 10."
8. It will be seen that the points sought to' be made
out by respondent no.2 in his counter-affidavit are :
(a) At present the perpetual lease-deed dated March
18, 1958 governs the relationahip effectively between
the Union of India and the Lt. Governor. on the one
c
hand and the petitioners on the other i.e. the
contractual relationa between the parties.
(b) The tranafer of administrative control of the L &
D 0 on October 1, 1959 to the Ministry of Works &
D
Housing did not divest the Chief Commissioner of his
contractual powers given under the lease and he alone
represented the lessor i.e. the Union of India and not
the ~dnistry of Works & Rousing.
( c) The sewer, according to the terma of the
E
lease-deed, could not be diverted without the consent
of the Chief Commissioner (Lt. Governor) and the
approval of the Ministry of Works & Rousing was a
nullity being without jurisdiction and legal
competence.
(d) For the commercial user of the residual area to be
F
kept as 'green', it is only the Chief Commissioner
(Lt. Governor) who could give sanction to construct
for the commercial user at the residual area; the
petitioners were liable to pay commercial realization
charges.
G
( e) The Lt. Governor was a successor of the Chief
Commissioner and, therefore, all the powers exercis-
able by the Chief Commissioner in relation to the
lease vested in him·
(f) It is for the Chief Commissioner (Lt. Governor) to
decide if the breaches were ren.ediable or as to the
Ii
nature of the remedies required for the breach.
450 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
According to him, the breaches are not remediable
breaches and, therefore, the impugned notice dated
March 10, 1980 issued by the Engineer Officer, L & DO
for re-entry upon the land on forfeiture of the lease
for breach of the condiUons was valid and proper.
ll (the leamed Attorney-General has throughout in the
course of his ar8'..ilts on behalf of respondent oo. l,
the Union of India maintained that the Lt· Governor of
Ilelbi has DOthing to do with the lease and that
wherever the - of the Chief ec-tssiooer of Delhi
appears, it should be scored out fl'llll the lesse-deed.)
c (Emphasis supplied)
9. One S. Rangaswami, Additional Land & llevelo1111ent
Officer, Ministry of Works & Housing filed a separate
counter-affidavit supporting the stand of the Lt.
Governor. It was averred in para 3 :
D "The petitioners during the year 1977 applied to the
Ministry of Works & Housing for permission to
construct on the residual area of 2740 square yards in
plots nos. 9 and 10. The petitioners have placed
reliance on the letters dated June 9, 1978 from Shri
L. N. Sukwami and dated 24th November 1978 from Shri
E V. S. Ka tara in the Minis try of Works & Housing and
claimed that these two letters constituted permission
to build on the residual area of plots nos. 9 and 10.
I am advised to state that under the terms of the
lease deed of 1958, previous consent of either the
President of India or the chief Commissioner (Lt.
F Governor) or such officer or body as the lessor
(President of India) or the chief Commissioner of
Delhi authorised was necessary for building activity
on the residual area of the plots (2740 sq. yards).
1'be M1nistry of Works & llousing did oot represent the
lessor or the chief ccwnfsst.ooer. •
G
10. It is somewhat strange that Land & Develo1111ent
Officer, who is the last functionary in the Ministry
of Works & Housing should challenge the very authority
and power of the Minis try of Works & Housing to
administer the lease on behalf of the President of
H India. He has also averred in para 5 :
EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 451
A
"The impugned show cause notice of 10th March 1980 was
issued to the petitioners under cl. 6 of the perpetual
lease for violation of sub-clauses (5) and (14) of
clause 2 of the lease-deed. The Land & llevelop!lent
Officer is oot a flmcticoory nod& th:! Ministry of
llo<lw 6' !lousing. He is i:he officer appointed on behalf
B
of the lessor to administer the lease. At no stage the
petitioners approached the office of Land &
Development for permission to construct on the
residual area of 2740 sq. yards to the west of the
pipe-line and no approval was obtained from the office
of L&DO for construction of a building in c
contravention of clauses 2(5), (9) and (14) of the
lease. The so-celled pamissions and approvals
obta!Ded by the petltimiem have no iegal validity oo
the short gr"""1:! of 1Bck of legal CO'lljl2t:ence or
authority under the tezm6 of the lease-deed whlch
governed the relationship bet:ween the petitiooers and
D
re.spoodent no. l."
(Emphasis supplied)
The case has seen many twi:s ts and turns. The hearing
commenced on April 27 , 1982. and was concluded on September 22,
1983 with intermittent breaks. I regret to say that the E
ambivalent attitude adopted by respondent no.1 the Union of India
and the hostility of respondent no.2 prolonged the hearing which
lasted as many as 43 days. This has resulted in a colossal waste
of public money and valuable time of the court. On April 29, 1982
when Shri Nariman, learned counsel for the petitioners- had
concluded his arguments for the day. Shri Parasaran, the learned
Solicitor General made a statement that he wanted to obtain F
instructions as to whether the impugned notices issued by the
Zonal Engineer (Building), Municipal Corporation of Delhi dated
March 1, 1980 and by the Engineer Officer, Land & Development
Office, dated March 10, 1980 for the forfeiture of the lease of
plots nos. 9 and 10, Bahadurshah Zafar Marg granted by the
Government of India in favour of the Express Newspapers Pvt. Ltd. G
and the threat to re-enter upon the leasehold premises with the
new Express Building built thereon and for removal of the
unauthorized structures should be enforced or not. In the facts
and circumstances of the case, we must say that the request for
adjourmnent by the learned Solicitor General was reaso!lB.ble and
was not opposed by' the learned counsel for the petitioners. We
accordingly adjourned the hearing of the Writ Petitions till H
August 3; 1983 to enable· respondent no.1 the Union of India to
452 SUP!®IE COURT REPORTS [1985] SUPP.3 s.c.R.
A
take a decision in the matter. On August 23, 1982 the matter. was
taken up in Chambers when the learned Solicitor General mad~ a
statement that the Writ Petitions would have to be heard on
merits, meaning thereby that the lessor i.e. the Union of India
were not prepared to reconsider the matter. The learned Solicitor
General Later ~1.thdrew from the case.
B
The strange phenomenon when the hearing was resumed on
November 4, 1982 of the Union of India speaking through the voice
of learned counsel for respondent no.2 was irore than we could
permit. We sent for Shri L.N. Sinha, the learned Attorney General
and he rightly objected to anyone speaking on bahalf of the Union
of India. We directed the learned Attorney General to appear and
c assist the C.ourt.
During the pendency of the proceedings, Shri Sinha demitted
his office and Shri Parasaran was appointed to be the Attorney
General. The Union of India engaged Shri Sinha as its counsel and
he continued to represent respondent no.1. We are grateful to
learned counsel for the parties who dealt with all aspects of the
D various constitutional issues and other questions of great public
importance with their usual industry and have supplemented their
arguments by filing written subnissions. Learned counsel for
respondent no. l has throughout been emphatic in contending that
respondent no.2 was a complete stranger to the lease and he did
not represent the lessor, the Union of India. Strangely enough,
Dr. Singhvi continued to appear not only for respondent no.2 the
Lt. Governor but also for respondent. no.5 the land & Development
Officer who is a minor official in the Mini~try of Works &
Housing. When we repeatedly enquired from lMrned counsel for
respondent no.l as to the right of respondent no.5 to be
represented by another counsel when he was appearing for the
Union of India, he asserted that Dr. Singhvi had no right to
represent respondent no.5 Land & Develo~nt Officer as he was
appearing for reepondent no. l and he wss not bound by his
submissions. Again, there was a rather distrubing feature.
Submissions at the bar by learned counsel for the respondents
were not in consonance with the stand taken in the original
G affidavit filed by respondent no.2 on behalf of all the
respondents. Further, the respondents have been filing different
affidavits from time to time to suit their purposes as the
hearing progressed and it was difficult to reconcile the
conflicting averments made in these subsequent affidavits. It is
somewhat unfortunate that the Government should have embarked
II upon this course of action.
EXPRESS NEWSPAPERS V• U.O.I. [A.P. SEN, J.J 453
At the resumed hearing on November 4, 1982, we took on A
record the further affidavits filed by respondent no.2 dated July
29, 1982 with certain deletions. In trying to meet the
allegations made against him, respondent no.2 cast aspersions on
Sikandar Bakht, the then Minister for Works & Housing. It was
averred :
B
"llut if Ram l<ath Goenka approached the then Minister
of Worlw & Housing, Shri Sikandar Bakht and the latter
misusing his authority aru! exercising blatant
favouritism pressurised the officers of the Delhi
Development Authority, Delhi Municipal Corporation and
of his own Ministry to do totally illegal acts, there- c
by giving huge financial benefits to his political
assocl.ate aru! friend Ram Nath Goenka, there are no
mala fides. If the statutory provisions unalterable
thrOugh an executive action, of the Delhi Mas.ter Plan,
Zoning Regulations and Municipal Bye-laws are ruth-
lessly violated, there are no mala fides. If expert D
advice of the Town & Country Planning Organisation is
deliberately attacked, which, in fact, makes it quite
clear that E'AR 300 does not exist in any area in Delhi
and that FAR and coverage are prescribed for the
locality as a whole and. not fot individual building,
there are no ma1a fides. And if senior officers are E
sent to an l.nfluentWli\iSinessman to mollify him end
in the event of not being mollified, the illegal and
irregular concessions asked for are granted ·without
even taking the trouble of amending the law of the
statutory provisions, there are no mala_ fides,
according to the writ petitioners."
On the same day i.e. on ~ovem.ber 4, 1982, ~e sent for Shri
L.N, Sinha, the then Attorney-General and drew his attention to
the averments made by respondent no. 2 1n the fresh affidavit
alleging that the orders passed by the then l'd.nister for Works &
Housing were illegal, improper and irregular. We felt that it was
highly improper for respondent no.2 to have made suCh extreme G
allegations against the then Minister for Works & Housing and
against the previous Government in power~ Accordirigly, we called
upon respondent no. l Union of India to clarify its stand with
regard to the following aspects
1. The authority of respondent nc.2 to wake
allegatlons of fraud, misuse of pwers aud H
misdemeanours against the functionaries of the Union
cf India including the Minister, Works & Housing.
454 SUPREME COURT REPORTS (1985] SUPP.3 s.c.a.
A
2. The stand of respondent no.l, Union of India, to
the case of the petitioners without adopting the
counter affidavit of respondent no.2.
3. The specific reply, if any, of the Union of lndia,
ll to the allegations of mala fides made by the
petitioners against the Government of India in paras
9(b), 11 and 12 of the Writ Petition.
4. What is the reaction of the Union of India to the
averments in the counter-affidavits of respondent no.2
and the affidavit of respondent no. 5 that the
c Minis try of Works & Housing Joes not represent the
lessor and that respondent no.5, the Land &
Development Officer alone represents the lessor. And
5. Whether a successor government was not bound by the
acts of the duly constituted previous government ?
D Instead of cou.'j>lying with the directions, respondent no.l
through the affidavit of M.K. Mukherjee, Secretary, Ministry of
Works & Housing dated November 16, 1982 purported to raise
certain additional issue :
1. I am advised to say that the orders passed by Shri
E Sikandar Bakht, the then Minister for Works & Housing
were clearly illegal, improper and irregular.
2. The powers and functions assigned to the Chief
Commissioner of Delhi under the lease-deed were
exercisable by the Lt. Governor by virtue of the
F notification issued by the President dated September
7, 1966 under Art. 239(1) of the Constitution.
3. The Land & Development Officer as well as the Chief
Engineer in the office of the Land & Development
Officer were both empowered to take action of the
G lease-deed and therefore the Engineer Officer was
authorized by the lessor i.e. the Union of India to
issue the impugned show cause notice as he was
competent to do so under cl. 5 of the lease-deed
having been empowered to act on behalf of the
President under Art. 299(1). The said show cause
H notice was issued on the basis of which a press report
&S per the orders recorded on the file of the Land &
Development Officer and not at the instance of the Lt.
Governor.
EXi'RESS NEWSPAPERS v. U.O.I. [A.P. SEN, J .. ] 455
A
4. The order of M.N; Buch, the then Vice-Chancellor of
the ODA dated October 21, 1978 was without any legal
authority or sanction and the said order was passed by
him in clear violation of the procedure laid down in
s. 11A(2) of the Delhi Development Act, inasmuch as no
relaxation of the permission for FAR for the D-II area B
could be made which was tantamount to a modification
of the Master Plan~ The said decision cannot be
implemented by the MCD because it would require
modification of their existing bye-laws, which cannot
be done for a particular case or building or for oae
particular commercial area. c
It is then averred 1
"I say that the counter-affidavit filed by respondent
no. 2 be read as part and parcel of this
D
counter-affidayit.
I am advised to categorically deny any allegation of
mala fides, design or animosity on the part of
respondent no.las alleged."
The respondents have also placed on record two affidavits of E
M.N. Buch and H.R. Ailawadi, both of whom became Vice-Chairmen,
Delhi Development Authority. Ailawadi in his affidavit avers that
the demised land is a nazul land which vested in the President of
India. For management, control and disposal of such lands, Land &
Development Office in the Department of Local Self Government was
created. As a matter of fiscal policy, the administrative
control of the Land & Development Office, Delhi was transferred F
from the Delhi Administration to the Ministry of Works, Housing &
Supply w.e.f. ·October 1, 1959. He asserts that this transfer wao
on administration and fiscal grounds and did not divest the Chief
Commissioner of the powers given to him by the parties under the
lease as the representative of the President of India. He further
avers that the sewer line, according to the terms of the lease, G
could not be diverted without the consent of the Chief
Commissioner (Lt.Governor). As regards the sanction, he asserts
that M.N. Buch in fact had no authority to sanction the building
plans in the instant case and that the Additional Secretary,
Master Plan, had raised certain objections to the building plans
and no decision on these objections was taken and then adds :
H
"Shri Buch contrary to all the views expressed by
himself, the Ministry of Works & Housing, Office of
L&DO and TCPO passed the following orders."
456 SUPIU;ME COURT REPORTS [1985] SUPP.3 s.c.R.
A
This is followed by the terms of the order J.n question passed by
M,N, Buch. He then avers :
"Under clause 2(5) of the perpetual lease-deed only
the lessor or the Chief Conmissioner of Delhi could
B permit construction on the residual area of plots nos.
9 and 10. The Vice-Chairman, DDA had no authority
under the terms of the lease •to permit an additional
construction on these plots. No objection certificate,
therefore, issued to the funicipal Corporation of
Delhi and to M/s Express Newspapers Ltd. by the DOA on
4.11.1979 was without jurisdiction and a nullity. The
c Ministry of Works & Housing could not have also
permitted any construction at the residual area. Only
the Chief Commissioner of Delhi or the Officers
authorized by the President of India under Art. 299 of
the Constitution were cq_mpetent to grant such
permission. The Vice-chairman, DOA or the Joint
Secretary in the Ministry of Works & Housing were not
D authorized by the President in exercise of powers
under Art. 299 to administer the lease-deed.
The direction of Shri Buch to treat his order as one
under special appeal was without jurisdiction and,
therefore, a nullity. The procedure prescribed for
special appeal waa totally disregarded. No resolution
E
of the DOA was adopted in this regard and as a matter
of practice and rule, special appeal cases are decided
only by means of resolution of the author.tty. The
decision of Shri Buch waa in violation of the
provisions of the Delhi Development Act, Master Plan
F and funicipal Bye-laws."
He then questioned the validity of the sanction to the
building plan granted by the funicipal Corporation of Delhi and
asserts : I
G
"Sanction of the building plans by the MCD violated
the following statutory provisions :
(a) FAil. : According to the funicipal Bye-laws, FAR for
a built area could not exceed 300. The Press area
being a built up area, permission to build up to FAR
H
to 360 was violative of the funicipal Building
Bye-laws.
EXPRESS NEWSPAPERS V• U.Q.I. [A.P. SEN, J.) 457
A
(b)Coverage According to the Master Plan and
building bye-laws, which were in force prior to
24.12. 76, coverage for different floors of a five
storey building was as under
Ground floor 80%
First .. 70%
B
Second 50%
Third 50%
Fourth
.. 50%
He then refers to the amended rule dated 24.12. 76 which·
prescribed for all conmercially developed areas, including
c
offices, coverage of 25% · and asserts that the press area i~
covered by the amendment. He also asserts that even the earlier
rule was violated by allowing 75.43% on the first floor and 77.5%
coverage on the second and third floors.
D
Further he states that for comnercial areas, parking has to
be done within the plots and within the covered area. In the
present case, no proyision was made for parking of the vehicle
within the plot and then adds :
"In the Municipal Bye-laws, there is no provision for
E
waiving, relaxing and modifying the rules referred to
abbve. The sanction was, therefore, accorded illegally
and under undue pressure from vested interests ...
~n his counter-affidavit, M.N. Buch avers in para 3 that he
had not authorized respondent no. 2 or anyone else to swear an
affidavit on his behalf and, therefore, he was not bound by the
F
same. According to him, the area in question was not a
"develo!'ll"nt area" within the meaning of sub-s.(3) of s. 12 of
the Delhi Development Act and as such, question of according any
permission/approval by the Delhi Development Authority or by any
of its officers did not arise. As regards the communication dated
November 4, 1978 issued under the signature of R.D. Gohar, the
G
then Joint Director (Building) of the Delhi Develo!'ll"nt
Authority, i t could not, in his opinion, be treated to be a
permission/sanction accorded under any statutory rule or
regulation or Bye-law. According to him, i t was as a matter of
fact a formal correspondence in response to a reference made in
that behalf by the Ministry of Works & Housing and its gist and
essence W<tS that the petitioners could submit plans to the
H
concerned authorities for approval, if they so chose and that was
458 SUPREME COURT REPORTS (1985] SUPP.3 s.c.R.
A why, the set of plans as submitted by them, was returned and no
plans were ever approved. On the contrary, the plans were
returned for submission to the appropriate authority for
approval. AB regards a number of communications from the Mini"try
of Works & Housing to him, as the then Vice-Chairman, M.N. Buch
contended that he had no ac:cess to the records of the Delhi
B Developnent Authority and due to non-availability of the records,
it was difficult for him to say anything specifically about the
same.
In substance, the contentio'l of Buch is that the area in
question was not a duly notified "develoµnent area" and aF such,
question of granting any permission either by the Delhi
c lJevelopnent Authority or by him as the Vice-Chairman did not
arise and that no sanction or approval of the building plans, as
alleged or otherwise, was accorded by him as such. The point of
FAR raised in the petition was, according to him, not at all
relevant fo< a just and proper decision of the case. He further
stated that a perusal of the records would reveal that nowhere in
any of the communications had he stated that any building plan
j)
had been sanctioned or approved. On the contrary, he had made it
clear that
"It is for the Municipal Corporation of Delhi to
examine the building plans in the light of the
Building Bye-laws already sanctioned by the Municipal
Corporation of Delhi. In other words, neither the
Delhi Developnent Authority nor he as the
Vic!!-Chairman had anything to rlo with the
sanction/approval of the building plans in the instant
case."
F It is rather pertinent to observe that in his
counter-affidavit Buch does not explain the implications of his
specific order as the Vice-Chairman dated October 21, 1978 for
amalgamation of plots nos.9 and 10 and permitting construction of
the new Express Building with an increased FAR of 360 with a
double basement for installation of the printing press, directing
G that it was not merely a conmunication from the Vice-chairman,
Delhi Developnent Authority to the Ministry of Works & Housing
but per se it was an order passed by M.N. Buch as Vice-chairman,
Delhi Developnent Authority and he concludes by observing :
"The Minister, Works & Housing had discussed the case
H with me and ordered that the case should be cleared
EXPRESS NEWSPAPERS v. u.o.r. [A.P. SEN, J.] 459
A
immediately and his ex-post-facto sanLtion obtained.
On this basis, we may issue cleaiancP. to the Express
Authorities and also make a reference to the
Government of India asking for confirmation of the
action taken. 'The orrier should be treated as an order
under Special Appeal',"
A perusal of the counter-affidavit of M.~. Buch bears out
that the maker of an inotrument is not always its best inter-
preter. Nothing really turns on the aforesaid two affidavits of
M.N. Buch and H.R. Ailawadi, the then Vice-Chairman of the Delhi
Development Authority which was just a belated attempt of the
respondents to support the action of respondent nv.2 in initiat-
c
ing the proceedings which culminated in the issue of the impugned
notices. The respondents have been shifting their rtand from
stage to stage.
Upon these pleadings, the point£ for det<>rmination that
L
arise may be formulated :
1. Whether the impugned notice of re-entry upon
forfeiture of lease by the Engineer Officer, Land &
Development Office, Ministry of WorkE & Housing dated
~iarch 10, 1980 requiring Express Newspapers Pvt. l,td.
E
to show cause why the lessor i.e. the Union of India
should not re-enter upon and taken possession of plots
nos. 9 and 10, Bahadurshah Zafar Marg together with
the Express Buildings built thereon and the impugned
notice of the Zonal Engineer (Buildings), Municipal
Corporation, City Zone, Delhi to show cause why the
new Express building, particularly the double
basement, where the Express Newspaper• Pvt. Ltd. have
installed the printing press with the working platform
which was a necessa:&:')' appurtenance to the installation
of the printing press expressly sanctioned by the then
Minister for works & Housing as well as by M.N. Buch,
the then Vice-Chairman, DDA in conformity with Delhi
G
Development Act, 1957, the Master Plan and under ss.
343 and 344 of the Delhi Municipal Corporation Act,
1957, were violative of the petitioners' right to
freedom of press guaranteed by Art. 19(l)(a) read with
Art. 14 of the Constitution and therefore a petition
under Art. 32 was maintainable.
H
2. Whether the construction of the new Express
Building on the residual area of 2740 square yards to
460 SUPREME COURT REPORTS (1985] SUPP.3 S.C.R.
A
the west of sewer-line after its removal on plots nos.
9 and lO without the permission of the Lt. Governor or
of the Land & Development Officer by the petitioners
with an increased FAR 360 con.stituted s bruch of
clauses 2(5) and 2 (14) which entitled the Engineer
B Officer, Land & Development Office. Ministry of Works
& Housing to issue the iuq>llgned show" cause notke
dated March 10, 1980 of re-entry upon forfeiture of
lease and the Union of India to re-ent..r upon and take
possession of plots 9 and 10, llahadurshah Zafar Marg,
together with the Express Buildings thereon.
c 3, (a) Whetber under the Master Plao, development of
the Mathura Road commercial area was totally
prohibited on FAR uceeding 300 i.e. whether such area
does fall within the expression 'already buil~
commarcial area' or whether ..he Huter Plao doea not
refer to the Matbura Road commercial atea nor doea
such area fall within the expression 'already built-up
D cOlll!lercial area' i.e. the area falling within the
walled city of Delhi.
(b) Whei:her the pet'llitced uaes in the use-Zone C-II
viz. the zone in which the press area falls do not
exclude 'newspaper and printing press' except only if
E such user is allowed by a competent authority after
special appeal that newspaper and printing presses are
permitted to be installed.
4. Whether the Ministry of Works & Housina with the
Minister at the head was and is the ultimate authority
F responsible for the following items of work.a 'Property
of the Union, Town and Country Plaoning, ' Delhi
Development Authority, Master Plan of Delhi, Adminia-
tration of the Delhi Development Act, 1957, the Land '
Development Office dealing with the administration of
nazul i..nds in the Union Territory of Delhi. If that
G be so, whether the orders passed by Sikaudar llakht,
the then Minieter for Works & Housing granting
permission to che petitioners to construct the new
Express Building with an increased FAR 360 on an area
of 2740 square yards to the west of plots nos. 9 and
10 was illegal, in.proper and irregular.
H
S. Whether the decision taken by the then Minister for
Works & Housing for perlllitt1ng construction of the new
EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 461
Express Building with an increased FAR of 360 with a
A
double. basement for the installation of the printing
press wae in coofol"llli ty with the recomoenda ti on of
M.N. lluch, the then Vice-<:hainnan, Delhi Developinent
Authority and had been r~.ached after the matter had
been de.alt with at all levels in the Minis try of Works
& Housing was binding upon the successor Government
B
i.e. the Union of India as also the Ministry of Works
& Housing and the petitioners having acted in the
faith of such assur.ance and constructed the new
Express Building thereon at a cost of nearly Rs.2
crores, the respondents particularly respondent no. l,
the Union of India, was precluded bY the doctrine of
promissory estoppel from chal:lenging the validity of
c
the permission granted by the then Minister for Works
& Housing. If that be so, whether the present
govermnent is bound to honour all assurances given by
or on bahalf of the Union of India, Minis try of Works
& Housing by the then Minister. D
6. Whether the Lt. Governor of Delhi has any function
in relation to the lease being a successor of the
Chief Commissioner of Delhi. If that be so, whether
the Lt. Governor of Delhi could have set up a three-
man Committe~ to inquire into and report on the
E
alleged breaches coami tted by the petitioners in the
cons true tion of the new Express Building with an
increased FAR of 360 or the double basement for
installation of the printing press, contrary to the
sanction plan .and the building bye-laws of the
Municipal Corporation of Delhi. If that be so, whether
the Engineer Officer, Land & llevelopnent Office could
F
have acted on the press report of the news cooference
held by the Lt. Governor and on its basis issue the
impugned show cause notice dated March 10, 1980.
7. Whether the respondents are right in contending
that the alleged breach comitted by the petitioners
G
in not obtaining t.he previous permission of the Lt.
Governor as required by els. 2(5) and 2(14) was not
remedial and therefore the lessor i.e. the Union of
India, Ministry of Works & Housing could direct
removal or demolition of the cons true tion complained
of.
H
462 SUPREME COURT REPORTS (1985] SUPP.3 s.c.R.
A 8. Whether the notice of re-entry upon forfeiture of
lease issued by the Engineer Officer, Land &
Development Office, New Delhi dated March 10, 1980
purporting to be on behalf of the lessor i.e. the
Union of lndia, Ministry of Works & Housing, and that
of March 1, 1980 issued by the Zor.e.l Engineer
ll (Building), Municipal Corporation, City Zone, Delhi,
were wholly mala fiJ~ and politically motivated.
For a proper appreciation of the points involved, it is
necessary to set out the material clauses of the indenture of
lease-deed dated March 17, 1958. Clause& 2(5), 2(14), 4, 5 and 6,
insofar as material, run as follows :
c
"2(5). The lessee will not without the previous
consent in writing of the Chief Commiesl.oner of Delhi
or of such officer or body as the lessor or the Chief
Commissioner of Delhi may authorize in this behalf
make any alterations in or additions to the building
erected on the said demised premises so as to affect
D any of the architectural or structural features
thereof or suffer to be erected on any part of the
said demised premises or any building other than and
except the building erected thereon at the date of
these presents."
"2.(14). The lessee shall keep to the entire
satisfaction of the said Chief Comdssioner the area
i
co the west of the pipeline adr.ieasuring 2740 sq.yards
(which area for clarity's sake is delienated on the ~
plan hereto annexed and thereon shown in yellow) as an
open space, that is, as lawns, paths or parking
F grounds."
"4. If there shall at any time have been in the opini-
on of the Lessor or the Chief Comdssioner of Delhi
whose decision shall be final, any breach by leo1ee or
by any person claiming through or under him of any of
c; the covenants or conditions contained in sub-els.
(5) ...... of cl.2 and if the said intended lessee
shall neglect or fail to remedy any such breach to
the satisfaction of the Chief Comdssioner of Delhi
within seven days from the receipt of a notice signed
by the Chief Conmissioner of Delhi requiring him to
H remedy such breach it shall be lawful for the officers
EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 463
A
of the C:U.ef Comnissioner of Delhi to enter upon the
premises hereby demised and (a) to remove or demolish
any alterations on or additions to the buildings
erected on the said premises without the previous
consent in writing of the Chief Commissioner of Delhi
or duly authorized officer as aforesaid ••••••• and it B
is hereby expressly declared that the liberty
hereinbefore given is not to prejudice in any way the
power given to the President of India by els. 4 and 5
hereof.
5. '" ••••••• (I)f there shall have been in the opinion of c
the Lessor or the Chief Comnissioner of Delhi whose
decision shall be finsl, any breach by the Lessee or
by any person claiming through or under him of any of
the covenants or conditiorts hereinbefore contained and
on his part to be observed or performed then and in
any such case it shall be lawful for the lessor or any D
person or persons duly authorized by him notwithstand-
ing the waiver of any previous cause or right of
re-entry upon any part of the premises whereby demised
or of the buildings thereon in the name of the whole
to re-enter and thereupon this demise and everything
herein contained shall cease and determine and the E
Lessee shall not be entitled to any compensation what-
soever, nor, to the return of any premium paid by
him ••
6. "No forfeiture of re-entry shall be effected except
as herein provided, without the -permission of the
Chief Comnissioner of Delhi, and the Chief F
Comnissioner shall not permit such forfeiture or
re-entry until the Lessor has served on the lessee a
notice in writing :
(a) specifying the particular breach complained of
G
(b) if the breach is capable of remedy, requiring the
Lessee to remedy the breach
and the Lessee fails within a resonsble time from the
date of se!:Vice of the notice to remedy the breach, if
it is capable of remedy, and in the event of
forfeiture or re-entry the Chief Commissioner may in H
his discretion relieve against forfeiture on such
terms and conditions as he thinks proper.
464 SUPREME 60URT REPORTS !1985] SUPP.3 s.c.R.
A 'Die Acta
We may then refer to the relevant provisions of the Delhi
Development Act, 1957 which is parmoount law on the subject and
overrides the provisions of the Delhi Municipal Corporation Act,
1957. The word 'Building' is defined in section 2(b) as including
B any structure or erection or part of a structure or erection
which is intended to be used for residential, industrial,
COlllllercial or other purposes, whether in actual use or not; And
the term 'building operations as defined in section 2(c) includes
rebuilding operations, structural alterations of or additions to
buildings and other operations normally undertaken in connection
with the construction of buildings. In section 2(d) the term
c 'development' is defined with all its grammatical variations to
mean the carrying out of building, engineering, mining or other
operations in, on, over or under land or the making of any
material change in building or land and includes redevelopment.
The expression 'development area' is defined in section 2(e) to
mean any area declared to be the development area under s\lb-s.(l)
of s.12.
D
Under the scheme of the Act, the predominant object and
purpose for which the Delhi Development Authority is constituted
under s.3(1) is to secure the planned development of Delhi. This
hes to be achieved by the preparation of Master Plan under s.7(1)
and Zonal Development Plans under s.8(1). Under s.3(3)(a) the
E Administrator of the Union Territory of Delhi shall be the
Chairman ex-t>fficio of the Delhi Development Authority. Under s.
6 the Authority is charged with the duty to promote and secure
the development of Delhi according to plan. The l'iaster Plan as
enjoJ.ned under s. 7(2)(a) defines the various zones into which
Delhi may be divided for the purpose of development and indicates
F the manner in which tne land in each zone is proposed to be used
(whether by the carrying out thereon on development or otherwise)
and the stages by which any such development shell be carried
out; and by cl. (b) thereof serves as a basic pattern of frame-
work within which the zonal development plans of the various
zones may te prepared. s. 12(1) provides that as soon as may be
G after the COlllilencement of this Act, the Central Government may,
by notification in the Official Gazette, declare any area in
Delhi to be a development area for the purposes of this Act.
After the commencement of the Act, s. 12(3) enjoins that no
development of land shall be undertaken or carried out in any
area by any person or body (ineluding a department of government)
H unless, -
EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.J 465
(i) " where that area is a development area permission A
for such development has been obtained in writing from
the Authority in 'accordance with the provisions of
this Act, i.e. according to the Master Plan and the
Zonal Development Plans;
(ii) where that area is an area other than a B
development area, approval of, or sanction for, such
development has been obtained in writing from the
local authority concerned or any officer or authority
thereof empowered or authorized in this behalf, in
accordance with the provisions made by or under the
law governing such authority or until such provisions c
have been made in accordance with the provisions of
the regulations relating to the grant of permission
for development made under the Delhi (Control of
Building Operations) Act, 1955, and in force
illlllediately before the conmencement of this Act:"
D
It is cOlllIOOn ground that the Press Enclave on the Mathura
Road ColllOOrcial Complex has. not !Y.en declared under s. 12(1) to
be a development area for pµrposes of the Act. S.14 provides that
after the coming into operJtion of any of the plans in a zone no
person shall use or permit to be used any land or building in
that zone otherwise than in conformity with s4ch plan. S.29(1) E
makes it a penal offence to undertake or carry out development of
any land in contravention of the Master Plan or Zonal Development
Plans or without the permission, approval or sanction referred to
in s. 12 or in contravention of any condition subject to which
such permission, approval or sanction has been granted. S.53(3)
is important for our purpose and it reads :
F
53(3): "Notwithsµmding anything contained in any such
other law - I
(a) when permission for development in respect of any
land has been obtained under this Act such development
shall not be deemed to be unlawfully undertaken or G
carried out by reason only of the fact that
perod,ssion, approval or sanction required under such
other law for such development' has not been obtained;
(b) when permission for which development has not been
obtained under this Act, such development shall not be
deemed to be lawfully undertaken or carried out by H
-•
466 SUP.REME COURT REPORTS [1985] SUPP.3 s.c.R.
A
reason only or the fact that permission, approval or
sanction required under such other law for such
develo(lllent has been obtained."
The words 'such other law' in s. 53(3) obviously refer to
the non-obstante clause in sub-s. (2) which reads :
B
53(2):" ... The provisions of this Act and the rules and
regulations made thereunder shall have effect
notwithstanding anything inconsistent therewith
contained in any other law." i.e. the provisions of
the Act have a overriding effect over the Delhi
Municipal Corporation Act, 1957.
c
The Delhi Municipal Corporation Act, 1957 provides inter
alia by s. 332 that no person shall erect or comnence to erect
D
any building, or execute any of the works specified in s. 334
except with the previous sanction of the Comnissioner, nor
otherwise than in accordance with the provisions of this Chapter
(Chapter XVI) and of the bye-laws made under this Act in relation
to the erection of buildings or execution of works. S.334(1)
-
provides that every person who intends to carry on any work of
the type indicated e.g. in addition to or alterations in any
building or the repairs or alterations of the kind specified
shall apply for sanction by giving notice in writing of his
intention to the Commissioner in such form and containing such
E information as may be prescribed by bye-laws Mde in that behalf.
s. 336(1) provides that the Commissioner shall sanction the
erection of a building or the execution of a work unless such
building or work would contravene any of the provisions of
sub-s(2) of that section. Sub-s.(2)(a) provides for one of the
grounds on which sanction of building or work may be refused viz.
F where such building or work or the use of the site for the
building or work would contravene the provisions of any bye-law
made in that behalf or of any other law made in such other law.
Sub-s. (3) provides that the Commissioner shall colilllUnicate the
sanction to the person who has given the notice; and where he
refuses sanction on any of the grounds specified in sub-s.(2) or
under s. 340 he shall record a brief statement of his reasons for
G
such refusal and communicate the refusal alongwi th the reasons
therefor to the person who has given the notice. s.343(1)
provides inter alia that where the erection of any building or
·execution of any work has been comnenced, or is being carried on,
or has been completed without or contrary to the sanction
l! referred to in s. 336..... The Comnissioner may in addition to
liXPRESS NEWSPAPERS V• U.O.I. [A.P. SEN, J.] 467
A
any other section that may be taken under the Act, make an order
directing that such erection or work shall be demolished. Proviso
thereto enjoins that no such order of demolition shall be made
unless a person has been afforded a reasonable opportunity of
showing cause by a notice in writing as to why such order shall
not be made· Sub-s.(2) provides that the person aggrieved may B
prefer an appeal against an order of demolition passed under
sub-s.(l) to the District Judge. Sub-s.(3) confers power on the
District Judge to order stay of demolition. Sub-s.(5) thereof
provides that the order made by the District Judge on appeal and
subject only to such order, the order of demolition made by the
Connnissioner shall be final and conclusive. Likewise s. 344(1) c
provides that where the erection of any building or execution of
any work has been commenced or is being carried on but has not
been completed, without or contrary to the sanction referred to
in s. 336 or in contravention of any conditions subject to which
,• sanction has been accorded or any contravention of any of the
provisions of this Act or bye-law made thereunder, the Connnis- D
sioner may by order require the person at whose instance the
building or work has been commenced or is being carried on to
stop the same forthwith. The remaining sub-sections of s•344 are,
slmilar to those as contained in s.343. I may now proceed to deal
with the questions that have been raised·
E
Maintainability of the Writ petitions
Wider Art. 32 of the Constitution.
The contention that these petitions are not maintainable
under Art.32 of the .Constitution leaves me cold. Some of the
crucial questions that arise have been formulated hereinbefore.
These are: (1) Whether the impugned notice of re-entry upon F
forfeiture of lease dated March 10, 1980 issued by the Engineer
Officer, Land & Development Office under cl.5 of the lease-deed
and that of the Zonal Engineer (Building), City Zone, Municipal
Corporation, Delhi dated March 1, 1980 to show cause why the
Express Buildings should not be demolished as unauthorized
construction un•ler ss. 343 and 344 of the Delhi Municipal G
Corporation Act, 1957 were arbitrary and irrational without any
factual basis and were therefore violative of Art. 19(l)(a) read
with Art. 14 of the Constitution. (2) Whether the Lt. Governor
was a successor of the Chief Comnissioner of Delhi in terms of
the lease-deed and whether by virtue or the notification issued
by the President under Art. 239(1) of the Constitution, he could
exercise any power in relation to lease of Government lands in H
the Union Territory of Delhi. (3) Whether under the paramount law
468 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A i.e. the Delhi Development Act, 1957, the Master Plan for Delhi
and the Zonal Development Plan for D-Il area, the permissible FAR
prescribed for buildings constructed in the Press Enclave on the
Mathura Road Comnercial Complex was 400. And ( 4) Whether the new
Express Building constructed with an increased FAR of 360 with a
double basement for installation of the printing press for
B publication of a Hindi newspaper, with the permission of the
lessor, the Union of India, Ministry of Works & Housing,
constitutes a breach of the Master Plan or the Zonal Ile'lelopment
Plans or clauses 2(5) and 2(14) of the lease-deea. These
questions which obviously arise on these petitions under art. 32
of the Constitution and any direction for quashing the impugned
notices must necessarily involve determination of these
c questions. I regret that my learned brother Venkata1'amiah, J.
proposes to express no opinion on the questions on which, in my
view, the Writ Petitions turn.
The question at the very threshold is: Whether these
petitions under Art. 32 are maintainable. Learned counsel
appearing for the Union of India raised a preliminary objection
D which he later developed as his main argument in reply. First,
there was in the present case no question of infraction of the
freedom of the press comprehended within ·the freedom of speech
and expression guaranteed under Art. 19(l)(a) but the enforcement
of the Master Plan for IJelhi and the Zonal Development Plan
framed under the Delhi Development Act, 1957 and the Delhi
E Municipal Corporation (Building) Bye-laws, 1959 may at the most
amount to a restriction on the fundamental rights of the
petitioners to carry on their business guaranteed under Art.
19(1)(g). Secondly, the right to occupy the land leased for the
construction of a building for installation of a printing press
is not within Art.19(l)(a) nor within Art. 19(l)(gJ. but such a
F right is derived from a grant or contract. Such a right is
certainly not within the content of Art.19(l)(a) or Art.
19(l)(g). It is argued that the right arising out of a statute or
out of a contract cannot be a fundamental right itself. Once a
contract is entered into or a grant is made, the rights and
obligations of the parties are not governed by Part III of the
G Constitution, but by the terms of the document embodying the
contract or the grant, and any complaint about the breach of the
same, cannot be even a matter for the application for the grant
of a writ, direction or order under Art. 226 of the Constitution,
much less under Art.32. These contentions plausible though i t
may seem at first blush, are, on closer scrutiny, nor
H well-founded. They ignore the true object and purpose for which
EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 469
A
the grant was made, namely, for the construction of a building or
installation of a printing press for publication of a newspaper
and the direct and immediate effect of the impugned notices for
re-entry upon forfeiture of lease and the threatened demolition
of the Expre•s Buildings built on the leasehold premises under
cl.5 of the lease-deed for alleged breach of els. 2(5) and 2(14) B
thereof and wrder ss. 343 and 344 of the Delhi )hinicipal Cor-
poration Act, 1957 when the said buildings had been constructed
with the permission of the lessor i.e. the Union of India,
Ministry of Works & Housing, and in conformity with the Master
Plan and the Zonal Development Plan for D-ll area· as well as with
the sanction of the Municipal Corporation of Delhi and therefore C
must amount to a violation of the freedom of speech and
expression enshrined in Art. 19(l)(a). I am not impressed at all
with the submissions of learned counsel for respondent no .1 that
the forfeiture of lease or the threatened demolition of the
Express Buildings does not touch upon the right guaranteed under
Art. 19(l)(a) as the petitioners can still shift the printing D
press to an alternative accommodation.
It is argued by learned counsel appearing for the
petitioners that the main thrust of the impugned notice of
re-entery dated March 10, 1980 by the Engineer Officer, Land &
Development Office purporting to act on bahalf of the lessor, the .E
Union of India, Ministry of Works & Housing under cl.5 of the
indenture of lease dated March 17, 1958 requiring the Express
Newspapers Pvt. Ltd. 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 for alleged breach of els. 2(5) and 2(14) of the
lease-deed and that of the earlier notice dated March 1, 1980 F
issued by the Zonal Engine-er (Building), City Zone, lilnicipal
Corporation, Delhi requiring them to show cause why the aforesaid
buildings should not be demolished under ss. 343 and 344 of the
Delhi Municipal Corporation Act, 1957 waa a direct threat on the
freedom of the press guaranteed under Art.19(l)(a) of the
Constitution. He contends that the impµgned notices were intended G
and meant to bring about a closure of the Indian Express and not
so much for the professed enforcement of laws governing building
regulations the Delhi Development Act, 1957, the Master Plan for
Delhi and the Zonal Development Plan for D!.ll area for the
Muthura Road Commercial Complex framed thereunder or the Delhi
Municipal Corporation Act, i957 and the Delhi Municipal
Corporation (Building) Bye-laws, 1959. He further contends that H
the respondents cannot be_ permitted to traverse beyond the
470 SUPREME COURT REPORTS [1985] SUPP.3 S.C.R.
A pleadings of the parties as contained in the counter affidavit of
respondent no.2 filed on behalf of the respondents and the
supplementary affidavit of M.K. Mukherjee, Secretary, Ministry of
Works & Housing, or the terms ·of the impugned notices. In an
attempt to justify the illegal, arbitrary and irrational
governmental and statutory action which was wholly mala fide and
B politically motivated, he particularly drew our attentioii'"tO the
terms of the impugned notice issued by the Engineer Officer, Land
& Development Office dated March 10, 1980 which purport to
forfeit the lease under cl. 5 of the lease-deed. On two grounds,
namely: ( 1) The additional cons true tion of tile new Express
Building by Express Newspapers Pvt. Ltd. on the western portion
of plots nos. 9 and 10 i.e. the land to be kept open as 'green',
C was without taking permission of the lessor under the terms of
the lease-deed. And (2) The building plans were not submitted for
sanction of the lessor under the terms of the lease and thus
there was contravention of els· 2(5) and 2(14) of the lease-deed.
He also pointed out that the impugned notice of the Zonal
Engineer (Building), City Zone, Municipal Corporation, Delhi
dated March 1, 1980 was on t~e ground that the Express Newspapers
0 Pvt. Ltd. had started unauthorized construction of excess base-
ment beyond sanction and construction of upper basement without
sanction as shown in red in the sketch plan annexed thereto and
that these were therefore unauthorized constructions liable to be
demolished u~der ss. 343 and 344 of the Delhi Municipal Corpora-
tion Act, 1957. According to the learned counsel, the impugned
E notices were based on grounds which were factually incorrect.
Learned counsel further pointed out that the impugned notice
of the Engineer Officer nowhere suggests that the construction of
the said building with an increased FAR of 360 was in breach of
the Master Plan or the Zonal Development Plan for D-II area
F framed under the Delhi Development Act or of the Building
Bye-laws made under the Delhi Municipal Co1·poration Act, 1957.
The contention is that the said building with an increased FAR of
360 together with a double basement for installation of a
printing press for the publication of a Hindi newspaper was with
the expres1 sanction of the lessor i.e. the Union of India,
G Ministry of Works & Housing accorded to the ExpreH Newspapers
Pvt. Ltd. which had duly submitted the building palns for grant
of requisite sanction. In the premises, it ia submitted that each
of the a true tures was cons true ted w1 th the express sane ti on of
the lessor, and the Delhi Development Authority granted under the
Ualhi Development Act, 1957 which was the paramount law on the
H subject. It i1 urged that the re-entry upon forfeiture of lease
EXPRESS NEWSPAPERS V• u.o.r. [A.F. SEN, J.] 471
or the threatened demolition of the new Express Building with the A
double basement where the printing press is installed for
publication of the Hindi newspaper Jansatta will result in
snuffing out the Indian Express as a newspaper altogether
although it has the largest. combined net sales among all daily
newspapers in India. The learned counsel particularly emphasized
the fact that the Express Buildings at 9-10, Bahadurshah Zafar B
Marg from the nerve-centre of the Express Group of Newspapers in
general and the Indian Express in particular as the teleprinter
is installed therein. we are informed that the editorials alld the
leading articles of the Indian Express are sent out and the
editorial policy laid down from the Delhi office to ten centres
all over India. As already stated, the Indian Express as a c
newspaper is simultaneously published from Ahmedabad, Bangalore,
Bombay, Chandigarh, Cochin, Delhi, Ryderabad, ~iadras, Madurai,
Vijaywada and Vizianagaram. In this factual background, the
learned counsel contends that the impugned notices have a direct
impact on the freedom of the press and being in excess of
governmental authority and colourable exercise of statutory D
powers, are liable to be .struck down as offendit16 Art. 19(1)(a)
read with Art. 14 of the Constitution. Re contends that the test
laid down by this Court in Bennett Colemau & Co. & Ors. v. Union
of lDdia & Ors. [1973] 2 s.c.R. 757, is whether the direct· and
immediate impact of the impugned action is ~n the frePdom of
speech and expression guaranteed under Art. 19(1)(a) which E
includes the freedom of the press. According to him, that test. is
clearly fulfilled in the facts and circumstances of the present
case. In my considered view, the contention of the learned
counsel for the petitioners must prevail.
I regret my inability to accept the contention to the
contrary advanced by learned counsel appearing for respondent F
no.l indicated above that the petitioners are seeking to enforce
a contractual right and therefore the questions raised cannot be
decided on a petition under Art.32 of the Constitution, It is
urged that the content of the fw!damental rights guaranteed in
Part III of the Constitution demarcate the area within which the
jurisdiction of the Court under Art. 32 can operate and thet it G
is not permissible for the Court to enlarge upon its jurisdiction
by a proce&& of judicial interpretation. Placing reliance on
certain observations of Ayyangar, J, in All Illdia llllllk Employees'
Auociation Vo National hldustr1al Tribunal & Orso [ 1962] 3
s.c.R. 269, and of Chandrachud and Bhagwati, JJ, in Malleka Gandhi
v. 1Jll1on of lDdiA [1978] 2 s.c.R. 621, it is urged that the
content of Art. 19(1)(a) of the Constitution would not include H
472 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
the right which is guaranteed by other clauses of Art.19. Accord-
ing to the learned counsel it must therefore logically follow
that what facilitated the exercise of a fundamental right did not
for that reason become a part of the fundamental right itself. lie
ti read out different passages from the judgments of Bhagwati, J.
in E.P. lloyappa v. State of Tamil lladu & Aor., [1974 J 2 s.c.a.
348, llaneka Gendb1 v. Union of India (supra) and l!alllana nsyaraa
Sbetty v. Int.ematiooal Airport Authority of India Ltd. & Ors·,
(1979] 3 s.c.l\. 1014, and endeavoured to show, to use his own
language, that "inspite of some literal flourish in the language
here and there, they did not and could not depart from the ambit
C of Art. 14 which deals with the principle of equality embodied in
the Article". He was particularly critical of the decba of
lihagwati, J. in International Airport Authority's case that
"arbitrarineas was the anti thesis of Art. 14"' and comnented that
this would mean that all govermnental actions which are not
supportable by law were ~~violative of Art. 14. I am afraid,
it is rather late in the day to question the correctness of the
D landmark decision in llaneka Gaodhi 's case and the innovative
construction placed by l!hagwati, J. on Art. 14 in the three cases
of lloyappa, llaneka Gendb1 and Int.ematiooal Airport Authority
(supra), which have evolved new dimensions in judicial process.
It is also urged that the argument of learned counsel
E appearing on behalf of the petitioners that the building in
question is neceasary for running the press and any statutory or
executive action to pull it down or forfeit the lease would
directly impinge on the right of freedom of speech and expression
under Art. 19(l)(a) is wholly misconceived inasmuch as every
activity that may be necessary for exercise of freedom of speech
F and expression or that may facilitate such exercise or make it
nieaningful and effective cannot be elev11ted to the status of a
fundamental right as if it were part of the fundamental right to
free speech and expression. It is further urged that the right to
the land and the right to construct buildings thereon for running
a printing press are not derived from Art. 19(l)(a) but spring
G from the terma of the grant of such lands by the Government under
the provisions of the Government Grants Act, 1895 and regulated
by other laws governing the subject viz. the Delhi Development
Act, 1957, the Master Plan and the Zor.al Developmen:t Plans framed
thereunder, the Delhi Municipal Corporation Act, 1957, and the
Delhi Municipal Corporation (Building) Bye-laws, 1959 which
H regulate construction of buildings in the Union Territory of
Delhi irrespective of the purpose for which the building is
constructed. It is also urged that even on a question of fact,
EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 473
the direct impact of the impugned no.tices will not be on the
A
double basement wherein printing press is installed but will be
wholly or in part on the two upper storeys which are not intended
to be used in relation to the press or for pui>lication of the
intended Hindi Newspaper but only for the purpose of letting out
the same for profit; the only other possible effect may be the
removal of the upper basement which the petitioners call a
working platform which has been constructed in violation of the B
building regulations.
Learned counsel for respondent no. l, the Union of India
accepts that the right to carry on the business of printing and
publication of a newspaper and installation of a printing press
for that purpose is undoubtedly a fundamental right guaranteed c
both under Arts. 19(l)(a) and 19(l)(g) but the right to occupy
the land or construct suitable structures thereon for the
business of a printing press on .such land is not within Art.
l'9(l)(a) nor within Art. 19(l)(g). If it were, the Delhi
Municipal Corporation Act or the Delhi Development Act, and the
Master Plan or the Zonal Development Plan and the Building D
Bye-laws would be totally ineffectual. Such restrictions cannot
be placed even though in the interest of ·the general public as
they would not fall within Art.19(Z). If, in respect of the
building in question, the right to occupy such land is to be
considered as comprehended in the right of freedom of speech and
expression guaranteed by Art.19(l)(a), then inevitable conse- E
quence would be that neither the provisions of the Delhi Develop-
ment Act nor the Delhi Municipal Corporation Act nor the Master
Plan or the Zonal Development Plans or the Building Bye-laws
would be applicable so as to control the building activities of
the petitioners. It is said that the irresistible conclusion,
therefore, ought to be that the fundamental right of freedom of
speech and expression of a person under Art.19(l)(a) cannot F
extend to the continued occupation of a place where such right is
derived from a grant or contract. Such a right is certainly not
within the content of Art.l9(l)(a) or Art• 19(l)(g). I t is
accordingly argued that the right arising out of a statute or out
of a contract cannot be a fundamental right itself. Orice contract
is entered into or a grant is made, the rights and obligatioIUl of G
the parties are not governed by Part III of the Constitution, by
the terms of the document embodying the contract or the grant,
and any complaint about the breach of the same, cannot be even a
matter for application for grant of a writ, direction or order
under Art. ZZ6 of the Constitution much less under Art. 3Z. In
substance, the su'cmission is that the right to run a press may be
a fundamental right guaranteed under Art. l9(l)(a) or Art. II
474 SUPREME COURT REPORTS (1985] SUPP.3 s.c.R.
19(l)(g) but the right to use a particular building for running a
A
press is altogethP.r another thing inasmuch as no particular
building ~s eo.ually fit for the runniu.g cf the press and the
person desiring to run a press or already running the press is at
liberty to acquire another suitable building for that purpose.
Further, even if the buildings in question were necessary for the
enjoyment of the rights under Art. 19(l)(a) or Art.19(l)(g), a
ll
right to use a particular building does not become an ' integral
part of the right to freedom of speech and expression' or ·the
'right to carry on any trade or J>usiness in printing and publish-
ing a newspaper' and clearly therefore the petitions under Art.
32 were not maintainable. I am afral.d, the contentions are wholly
misconceived and cannot be accepted.
c Here, the very threat is. to the existence of a free and
independent press. It is now firmly established by a series of
decisions of this Court anj is a rule written into the
Constitution that freedom of the press is comprehended within the
right to freedom of speech and expression guaranteed under Art.
19(1)(a) and I do not wish to traverse the familiar ground over
again except to touch upon certain landmark decisions. In llomeah
))
'J:bappar v. State of Madras, [1950] s.c.R. 594,· the Court observed
that the Founding Fathers realized that freedoms of speech and of
the press are at the foundation of all democratic organizations,
for without free political discussion no public education, so
essential for proper functioning of the processes of popular
Government, is possible. In Sakal Papers (P) Ltd. v. Union of
E Ind1a1(1962] 3 s.c.R. 842, the Court reiterated :
"That the freedom of speech and expression guaranteed
under Art. 19(l)(a) of the Constitution includes the
freedom of press i.e. the freedom of propagation of
ideas, and that freedom is ensured by the freedom of
F circulation. Liberty of circulation is as essential to
that freedom as the liberty of publication. Central to
the concept of a free press is freedom of political
opinion and at the core of that freedom lies the right
to criticiae the Government, because it is only
through free debate and free exchange of ideas that
G Government remains representation to the will of the
people and orderly change ia effected. When avenues of
political expression are closed, Government by consent
of the governed would soon be foreclosed· Such freedom
ie the foundation of free Government of a free people.
Our Government aet up being elected limited end
EXPRESS NEWSPAPERS v. U,O,J., [A.P. SEN, J.] 475
responsible we need requisite freedom of any A
animadversion for our social interest which ordinarily
demands free propagation of views. Freedom to think as
one likes and to speak as one thinks at·e as a rule
indispensable to the diacovery and separate of truth
and without free speech, discussion cay be futile."
B
llomesh Thappar's case was cited with approval in Expreaa
llewapapera (P) Ltd. & Anr. v. Union of India & Ora. (1959] .s.c.R.
12@ 120, There is in the Express Newspapers 1 case an elaborate
discussion of the freedom of the press at PP• 118-128 of ~he
Report. The Express Newspapers' case and also the case of Sakal
Papers were cited with approval by the Court in Bennett Coleman. c
The principle ie too well-settled to need any more elaboration.
I would only like to stress that the freedom of thought and
expression, and the freedom of the press are not only valuable
freedoms in themselves but are basic to a democrstic form of
Government which proceeds on the theory that problems of the D
Government can be solved by the free exchange of thought and by
public discussion of the various issues facing the nation. It is
necessary to emphasize and one must not forget that the vitdl
importance of freedom of speech and expression involves the
freedom to dissent to a free democracy like ours. Democracy
relies on the freedom of the press, It is the inalienable right E
of everyone to comment freely upon any matter of public
importance. This right is one of the pillars of individual
liberty-freedom of speech, which our Court has always unfailingly
guarded. I wish to add that however precious and cherished the
freedom of speech is under Art.19(l)(a) 1 this freedom is not
absolute and unlimited at all ti'UeS and under all circumstances
but is subject to the restrictions contained in Art. 19(2), That F
must be so because unrestricted freedom of speech and expression
which includes the freedom of the press and is wholly free from
restraints, amounts to uncontrolled licence which would lead to
disorder and anarchy and it would be hazardous· to ignore the
vital importance of our social and national interest in public
order and security of the State. G
In Bennett Co1-'a case the Court indicated that the
extent of permissible limitations on this freedom are indicated
by the fundamental law of tha land itself viz. Art. 19(2) of the
Constitution. It was laid down that permiseible restrictions on
H
476 &llPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
any fundamental right guaranteed under Part III of the Constitu-
tion have to be imposed by a duly enacted law and must not be
excessive i.e. they must not go beyond whar. is necessary to
achieve the object of the la~ under which they are sought to be
impoaed. "The power to impose restrictions on fundamentai rights
is essentially a power to 'regulate' the exercise of those
B rights. In fact, 'regulation' and not extinction of that which
is to be regulated is, generally speaking, the extent to which
permissible restrictions may go in oraer to satisfy the test of
reasonableness." The Court also dealt with the extent of
permissible limitations on the freedom of speech and exprP.ssion
guara."lteed under Art.19(l)(a). The test laid down by the Court in
lleunett coleman's case is whether the direct and inmediate impact
c vf the impugned action is on the freedom of speech and expression
guaranteed under Art. 19(l)(a) which includes the freedom of the
press. It was observed that the restriction on the number of
pages, a restraint on circulation and a restraint on advertize-
ments would affect the fundamental right under Art.19(1 )(a) on
the aspects of propagatl.on, publication and circulation of a
n•'WSpaper. In repelling the contention of the learned Additional
D
Sollcitor~neral that the newsprint policy did not violated Art.
19(l)(a) as it does not direct and immediately deal with the
right mentioned in Art. 19(l)(a), the Court held that the test of
pith and substance of the subject-matter and of direct and inci-
dental effect of legislation are relevant to questions of legis-
lative competence but they are irrelevant to the question of
E infringement of fundamental rights. The true test, according to
the Court, is whethP.r the effect of the impugned action is to
take away or abridge fundamental rights. It was stated that the
word 'direct' would go to the quality or character of the effect
and not the subject catter and the restriction sought to be
imposed by the impugned newsprint policy was, in substance, a
F newspaper control i.e. to control the number of pages or circu-
lation of dailies or newspapers and such restrictions were
clearly outside the ambit of Art. 19(2) of the Constitution and
therefore were in abridgement of the right of freedom of speech
and expression guaranteed under Art. 19(l)(a), and it added :
G "The ·Newsprint Control Policy is found to be newspaper
control order in the guise of framing an Import
Control Policy for newsprint.
This Court in the Bank Nationalisation case (supra)
laid down two tests. First it is not the object of the
H authority making the law impairing the right of the
EXPRESS NEWSPAPERS v. u.o.r. [A.P. SEN, J.] 477
A
citizen nor the form of action that determines the
invasion of the right. Secondly, it i• the effect of
the lsw and the action upon the right which attracts
the jurisdiction of the court to grant relief. The
direct operation of the Act upon the rights forms the
real test.
B
••• No lsw or action would state in words that rights
o): freedom of speech and expression are abridged or
taken away. That is why Courts have to protect and
guard fundamental rights by considering the scope and
provisions of the Act and its effect upon the
fundamental rights."
c
We have only to substitute the word 'executive' for the word
'lsw' and the result is obvious. Here, the impugned notices of
re-entry upon forfeiture of lease and of the threatened
demolition of the Express Buildings are intended- and meant to
D
silence the voice of the Indian Express. It must logically follow
that the impugned notices constitute a direct and imnediate
threat to the freedom of the press and are thus violstive of Art.
19(l)(a) read with Art.14 of the Constitution. It must
accordingly be held that these petitions under Art. 32 of
the Constitution are maintainable.
r The Government Grants Act, 1895 : Section 3: Purport &
E
Effect of: Whether the notice of re-entry upon
forfeiture of lease was valid and enforceable due to
non-compliance of clsuse 6 thereof.
It is coonnon ground that the perpetual lease was a
I!
Government grant governed by the Crown Grants Act, 1895, now
known as the Government Grants Act. The Act is an explsnatory or
declsratory Act; Doubts having arisen as to the extent and
operation of the Transfer of Property Act, 1882 and as to the
power of the Government to impose limitations and restrictions
upon grants and other transfers of land made by it or under its
G
authority, the Act was passed to remove such doubts as is clear
from the long title and the preamble. The Act contains two
sections and provides by s.2 for the exclusion of the Transfer of
Property Act, 1882 and, by s.3 for the exclusion of, any rule of
lsw, statute or enactment of the l.egislsture to the contrary.
Ss.2 and 3 read as follows :
H
"2. Transfer of Property Act, 1882. no: to apply to
Government grants-
478 SUPREME COURT REPORTS [1985] SUPP.3 s.c.a.
A
Nothing in the Transfer of Prope1·ty Act, 1882,
contained shall apply or be deemed over to have
applied to any grant or other transfer of land or of
any intereot therein heretofore made or hereafter to
be made by or on behalf of the government to, or in
favour of, any person whomsoever; but every such grant
B and transfer shall be cons trued and take effect as if
the said Act had not been passed."
"3. Goverment grants to take effect accordiDg to
their tenor-
All provisions, restrictions, conditions and
limitations over contained in any such grant or
c transfer as aforesaid shall be valid and take effect
according to their tenor, any rule of law, statute or
enacbnent of the Legislature to the contrary
notwithstanding."
It is plain upon the terms that s.2 excludes the operation
of the Transfer of Property Act, 1882 to Government grants. While
D
s. 3 declares that all provisions, restrictions, conditions and
limitations contained over any such grant or transfer as
aforesaid shall be valid and shall take effect according to their
tenor, notwithstanding any rule of law, statute or enactment of
the Legislature to the contrary. A series of judicial decisions
have determined the overriding effect of s.3 making it amply
E
clear that a grant of property by the Government partakes of the
nature of law since it overrides even legal provisions which are
contrary to the tenor of the document.
Learned counsel appearing for res~ondent no. l, the Union of
India, fairly conceded that the impugned notice of re-entry upon
forfeiture of lease dated March 10, 1980 issued by the Engineer
Officer, L&DO purporting to be on behalf of the lessor i.e. the
Uriion of India under cl. 5 of the indenture of lease dated March
17, 1958 was invalid and had no le;;al effect since there was
non-compliance of the mandatory requirements of cl.6 thereof. But
as a very astute counsel he sought to evolve an argument contrary
G
to the stand taken in the counter-affidavit filed by respondent
no.2 on behalf of all the respondents and the supplementary
affidavit of M.K. Mukherjee, Secretary, Ministry of Works &
Houaing that the 'breach was irremediable' and therefore the
lessor i.e. the Union of India acting through the Land &
Development Officer (L&OO) was entitled to serve a notice under
H
EXPRESS NEwSPAPERS v. u.o.r. [A.P. SEN, J.] 479
cl.5 for re-entry upon forfeiture of lease. He contended that the A
impugned notice was, in reality, not a notice of forfeiture under
cl.5 of the lease-deed but it was merely of an exploratory nature
to afford petitioner no.l Express Newspapers Pvt. Ltd. to have
its say before the L&DO as to whether the construction of the new
Express Building with an increased FAR of 360 was in violation of
the Master Plan or the Zonal Development Plans or. the building B
bye-laws i.e. contrary to the terms of the lease, and that it was
for the L&IJO to be satisfied as to whether there wa" a breach of
the terms of els. 2(14) and 2(5) of the lease and that in the
e-vent of his reaching that conclusion, to proceed to serve the
lessee with a notice of re-entry uppn forfeitu~e of lease under
cl.5 learned counsel appearing for respondent no.5 L&DO has c
placed before us a detailed note explaining the prevailing
practice followed by the L&DO in such case. The meaning and
significance of the note !s that the show cause notice under cl.5
served by the L&IJO is merely a preliminary step affording the
lessee an opportunity to settle tile terms and conditions with the
wncurrence of the Ministry of works & Housing, offered by the· D
lessor for condonation of such breacn. In the "event the lessee
fails to comply with such terms, the L&DO withdraws the terms
offered and then calls upon the lessee to remove or remedy the
misuse or breach within 30 days. If there is failure on the part
of the lessee to remedy such breach within the tim.e allowed, the
L&OO processes the case for exercie,:e by the lessor i.e.. the Union E
of Ind~a of its rights to re-enter upon forfeiture of lease under
cl. 5 of the lease-deed. It ie said that according to the
prevailing practice in respect of such leases i.e. pre 1959
leases of the kind held by petitioner no. l Express Newspapers
Pvt. Ltd., the approval of th~ Lt. Governor is considered a
condition precedent to a final order of re-entry which is served
on the lessee after such approval is accorded by the Lt. F
Governor. In terms of the order of re-entry the lessee is
requested to hand over possession peacefully to the L&DO within a
reasonable tin..e. However, if the lessee does not hand over
possession voluntarily in pursuance of L&OO' s letter, the L&DO
files an application under s. 5(1) of the Public Premises
(Eviction of Unauthorized Occupants) Act, 1971. Under s.8 of the
Act the Estate Officer has the same powers that are vested in the
Civil Court under the Code of Civil Procedure, 1908, in trying a
suit in respect of matters mentioned therein. The Estate Officer
has to form an opinion that the lessee was in unauthorized
occupation of any public premises and that he should be evicted
whereupon the Estate Officer issues a notice under s.4 by calling
upon all persons concerned to show cause why an order of evictlon H
480 SUPREME COu'llT REPORTS [1985] SUPP.3 s.c.R.
A should not be passed. Under s.9 of the Act the person aggrieved
has the remedy of an appeal to the District Judge and thereafter
he may move the High Court under Art. 226 of the Constitution.
I am not at all impressed by any of these submissions
advanced on behalf of the respondents. There can be no doubt
B whatever on a true construction of the impugned notice dated
March 10, 1980 that the Engineer Officer, Land & Development
Office purporting to act on bahalf of the lessor i.e. the Union
of India, Ministry of Works &Rousing served a notice of re-entry
upon forfeiture of lease under cl.5 of the lease-deed. There was
no question of the said notice being construed to be of an
exploratory nature. The note prepared by the L&DO is nothing but
C an afterthought. In the view that I take that respondent no.2 is
not the successor of the Chief Conmissioner of Delhi nor has any
function in relation to the lease. There is no warrant for thE::
suggestion that prior approval of the Lt. Governor is a condition
precedent to the right of the lessor i.e. the Union of India to
exercise its right to re-entry upon forfeiture of lease under
cl.S of the lease-deed.
D
There are two decisions of this Court which appear to be
contradictory. In Bisban Das & Ors. v. State of Punjab & Ors.
[1962] 2 S.C.R. 69, a Constitution Bench of this Court speaking
through S.R. Das, J. in somewhat simil"r circumstances allowed
the petition under Art.32 of the Constitution directing
E restoration of possession to the lessee who had been dispossessed
from land granted by the Government by display of f0rce. What had
happened was this. One Ramjidas built a dharamsala, a temple and
shops appurtenant thereto with the joint family funds on
Government land with the permission of the Government. After his
death the other members of the family who were in management and
F possession of those properties were dispossessed by the State
Government of Punjab at the instigation of ,a member of the ruling
Congress party. The petitioners applied to the Punjab.High Court
for issue of appropriate writs under Art.226 of the Constitution
but the petition was dismissed in limine on the preliminary
ground that the matter involved disputed questions of fact. An
G appeal under cl.10 of the Letters Patent was also dismissed on
the same ground. The petitioners then moved this Court under
Art.32. The State Government sought to justify the action on the
ground that the petitioners were merely trespassers as the land
on which the dharamsala stood belonged to the State, and the
respondents were entitled to use the minimum of force to eject
H the trespassers. It was also contended that there was a serious
EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J. J 481
dispute on questions of fact between the parties and also whether A
the petitioners had any right or title to the subject matter in
dispute and therefore proceedings by way of a writ were not
appropriate in the case inasmuch as the decision of the Court
would amount to a decree declaring a party's. title and ordering
restoration of possession. The Court repelled both the
contentions as unsound and held that the petitioners had made out B
a clear case of violation of their fundamental rights. As to the
contention that the petitioners were mere trespassers, tl)e Court
held that the admitted· position was that the land belonged to the
State; with the permission of the State, Ramjidas on behalf of
the joint family firm of Faquir Chand Bhagwan Das built the
dharamsala, temple and shops and managed the same during his c
lifetime. After his death the petitioners, other members of the
joint family continued in possession and management. On this
aJmitted position, it was held that the petitioners could not be
held to be mere trespassers in respect of thP. dharamsala, temple
and shops; nor could it be held that the dharamsala, temple and
shops belonged to the State irrespective of the question whether D
the trust created was of a public or private nature, and it was
observed :
"It is, therefore, impossible to hold that in respect
of the dharamsala, temples and shops, the State has
acquired any rights whatsoever merely by reason of E
their being on the land belonging to the State. If the
State thought that.the constructions should be removed
or that the condition as to resumption of the land
should be invoked, it was open to the State to take
appropriate legal action for the purpose."
As to the second contention, the Court observed : F
"It was enough to say that they are bona fide in
possession of the constructions in question and could
not be removed except under authority of law. The
respondents clearly violated their fundamental rights
by depriving them of possession of the dharamsala by G
executive orders."
The Court accordingly quashed the orders and issued a writ of
mandamus directing restoration of the property. The Court felt
its duty to pass strictures against the Government :
''We feel it our duty to say that the executive action Ii
.taken in this case by the State and its officers is
destructive of the basic principle of the rule of law.
482 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
The facto and the position in law thus clearly are (1)
that the buildings constructed on this piece of
Government land did not belong to Government, (2) that
the petitioners were in possession and occupation of
the buildings and (3) that by the virtue of enactments
binding on the Government, the petitioners could be
dispossessed, if at all, only in pursuance of a decree
of a Civil Court, obtained in proceedings properly
initiated. In these circumstances the action of the
Government in taking the law into their hands and
dispossessing the petitioners by the display of force,
exhibits a callous disregard of the normal require-
c ments of the rule of. law apart from what might legiti-
mately and reasonably be expected from a Government
functioning in a society governed by a Constitution
which guarantees to its citizens against arbitrary
invasion of the executive of peaceful possession of
property."
D The Court also adverted to the earlier decision in Wa.zir Chand v.
State of H.P., [1955] l s.c.R. 408, where it was held that the
State or its executive officers cannot interfere with the rights
of others unless they can point to some specific rule of law
which authorises their acts, and to Baa Prasad Narayan Sabi V•
State of Bi.bar, [1953] s.c.R. 1129, where the Court said that
E nothing is more likely to drain the vitality from the rule of law
than legislation which singles out a particular individual from
his fellow subjects and visits him with a disability which is not
imposed upon the others, and concluded :
"We have here a highly discriminatory aod autocratic
F act which deprives a person of the possession of
property without reference to any law or legal
authority. Even if the property was trust property it
is difficult to see how the Municipal Comnittee,
Barna.la, can step in as trustee on an executive
determination only. The reasons given for this
G extraordinary action are, to quote what we said in
Sabi 's case (supra), remarkable for their disturbing
implications•"
In the later case of State of Orissa V• Baa Chandra Dev,
A.I.R. 1964 s.c. 685, Gajendragadkar, J. delivering the judgment
H of the Constitution Bench observed :
EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J. J 483
"Oridinarily, where property has been granted by the
A
State on condition which make the grant resumable,
after res1DDption it is the grantee who moves the Court
for appropriate relief, and that proceeds on the basis
that the grantor State which has reserved to itself
the right to res...e may, after exercising its right,
seek to recover possession of the property without
B
filing a suit."
All that the Couri. laid down was that the existence of a
eight is the foundation for a petition under Art. 226 of the
Constitution. In that case, certain ex-zamindars of Ganjam
district were holding Govermnent Lands appurtenant to their
office as Muthadars and were· dispossessed therefrom upon
c
resumption of their Muthas. The Court held that the lands were
held by the ex-zamindars as service tenures which.were resumable
at the will of ·the Govermnent. The parties were at issue on the
question about the character of the grant under which the
predecessors of the ex-zamindars were originally granted the
D
lands in question. The Orissa High Court held that it was not
possible for it to decide the important question of title
involved in proceedings under Art. 226 but that such a kind of
title could only be decided in a properly conatituted suit but
nevertheless were inclined to the view that the right to recover
possession vesting in a person who had been in possession prior
E
to such dispossession which was implicit in s.9 of the Specific
Relief Act, 1963 would be enforced by a petition under Art. 226.
The view of the High Court was obviously not sustainable. At the
hearing, counsel for the respondents sought an adjournment on the
ground that the respondents had in the meanwhile filed a suit
against the State Govermnent and further that the parties were
negotiating for a settlement. It appears "that the <;ourt rejected
F
the prayer for adjournment saying that no useful purpose would be
served by granting any further time and thereafter entered upon
I
the pierits. lt held that merely because a suit under s. 9 of the
Specific Relief Act would have been competent, no right can be
claimed by the respondents merely on the ground of their
possession under Art. 226 unless "their right to remain in
G
possession was established against the State Govermnent. There is
no reference to the earlier decision of the Constitution Bench in
Bisban Das' case nor does the judgment lay down any contrary
principle. It seems to me that the observations of Gajendra-
gadkar, J. were merely in the nature of obiter in . _ Cllaadra
Dev's case and nothing really turns on the observations made by
him. The decision in RRW'bandra Dev's case appears to be in per
Ii
incuriam..
484 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
Even in cases involving purely contractual issues, the
A settled law is that where statutory provisions of public law are
involved, writs will issue: lid. Bani£ v. State of Assaa,[1970] 2
s.c.a. 197.
For the sake of completeness, I wish to clear the ground of
a possible misconception. Learned counsel appearing for
ll respondent no .1 the Union of India while contending that the
impugned notice dated March 10, 1980 was of an exploratory
nature, fairly conceded that the lessor i.e. the Union of India
lllllSt enforce its right of re-entry upon forfeiture of lease under
cl. 5 of the lease-deed by recourse to due process of law and
wanted to assure us that there was no question of marching the
army or making use of the demolition squad of the Delhi
c Development Authority or the Municipal Corporation of Delhi in
demolishing the Express Buildings. As we felt that there was •ome
ambiguity in the expression 'due process of law', we wanted a
categorical answer whether by this he meant by a properly
constituted suit. Without meaning any disrespect, the learned
counsel adopted an ambivalent attitude saying that the due
-
process may not only consist in the filing of a suit by the
D lessor or re-entry upon forfeiture of the lease but that in the
case of lease of Govermnent lands, the authorities may also take
recourse to the Public Premises (Eviction of Unauthorized
Occupants) Act, 1971. I have no doubt in my mind that the learned
counsel is not right in suggestion that the lessor i.e. the Union
of India, Minis try of Works & Housing can in the facts and
circumstances of the case, take recourse to the summary procedure
under that Act. The Express Newspapers Pvt. Ltd. having acted
upon the grant of permission by the lessor i.e. the Union of
India, Ministry of Works & Housing to construct the new Express
Building with an increased FAR of 360 together with a double
basement was clearly not an unanthorized occupant within the
F meaning of s.2(g) of the Act which runs as under
"2(g) "unauthorized occupation", in relation to any
public premises, means the occupation by any person of
the public premises without authority for such
occupation, and includes the continuance in occupation
G by any person of the public premises after the
authority (whether by way of grant of any other llklde
of transfer) under which he was allowed to occupy the
premises has expired or has been determined for any
reason whatsoever."
H
EXPRESS NEWSPAPERS v. u.o.I. [A.P. SEN, J.] 485
The Express Buildings constructed by Express Newspapers Pvt.
A
Ltd. with the sanction of the lessor i.e. the Union of India,
Ministry of Works & Housing on plots nos. 9 and 10, Bahadurshah
Zafar Marg demised on perpetual lease by registered lease-deed
dated March 17, 1958 can, by no process of reasoning, be regarded
as public premises belonging to the Central Govermnent under s.
2(e). That being so, there is no question of the lessor applying B
for eviction of the Express Newspapers Pvt. Ltd. under s.2(1) of
the Public Premises (Eviction of Unauthorized Occupants) Act,
1971 nor has the Estate Officer any authority or jurisdiction to
direct their eviction under sub-s.(2) thereof by summary process.
Due process of law in a case like the present necessarily implies
the filing of suit by the lessor Le. the Union of India, c
Ministry of Works & Housing for the enforcement of the alleged
right of re-entry, if any upon forfeiture of lease due to breach
of the terms of the lease.
Nothing stated here should be construed to mean that the
Govermnent has not the power to take recourse to the provisions D
of the Public Premises (Eviction of Unauthorized Occupants) Act,
1971 where admittedly there is unauthorized construction by a
lessee or by any other person on Govermnent land which is public
premises within the meaning of s. 2 ( e) and such person is in
unauthorized occupation thereof.
E
The constitutional position of the Lieutenant Governor
: Whether the Lieutenant-Governor is the successor of
the Chief Commissioner of Delhi·
One of the most crucial issues on which long and erudite
arguments were advanced by learned counsel for the parties,
turned on the question as to whether the Lt. Governor was a F
successor of the Chief Commissioner of Delhi. Learned counsel
appearing for the petitioners contended that the Lt. Governor
cannot usurp the functions of the lessor i.e. the Union of India
or the Chief Commissioner of Delhi in relation to the lease in
question. It is urged that the Union Territory of Delhi which
first became a Part 'C' State under the Constitution, was an G
entirely new constitutional entity and therefore the office of
the Chief Commissioner of Delhi ceased to exist. It is further
urged that the Lt. Governor appointed by the President under Art.
239(1) of the Constitution is an Administrator and he discharges
such functions as are entrusted to him by the President of India
and in the absence of a notification under Art· 239(1), the Lt.
Governor cannot usurp the functions of the Union of India in H
486 SUPRE!'lE COURT REPORTS [1985] SUPP.3 $.C.R.
A relation to the properties of the Union. It is pointed out that
there was no notification issued by the President of India in
terms of Art.239(1) of the Constitution empowering the Lt.
Governor to administer the properties of the Union in the Union
Territory of Delhi.
B Learned counsel appearing for the Union of India
substantially advanced the same argument. According to him, the
Lt. Governor had no powers in relation to the properties of the
Union and therefore the Union of India is not bound by the acts
of thP. Lt. Governor. The Lt. Governor had no power in relation to
the lease and therefore he could not usurp to himself the powers
and functions of the Union of India in relation to the
C lease-deed. The learned counsel went to the extent of saying that
wherever the expression 'Chief Comnissioner of Delhi' appears in
the lease-deed, it had to be struck out altogether as no such
office exists in view of the Constitutional changes since brought
about. That is to say, the question involved must be determined
on the footi0g as if the parties never contemplated the Chief
Commissioner of JJelhi to exercise any of the functions of the
D lessor under the lease-deed.
In reply, learned counsel appearing for respondent no.,2, the
Lt. Governor, advanced a two fold subnission; firstly, the Lt.
Governor is the alter ego of the President of India and not a
mere formal or titular head of the Union ·Territory of Delhi, and
E in the connection he referred to the constitutional history of
the Union Territory of Delhi· In support of his content.ion that
the designation of the Administrator as the Chief Conmissioner of
Delhi under both the Government of India Acts of 1919 and 1935 or
as the Lt. Governor under the Constitution was a mere matter of
nomenclature, the learned counsel referred to the provisions
F relating to the powers, functions and duties of the Chief Commis-
sioner or the Lt. Governor, as the case may be, whic.h remained
the same. In his words, the Lt. Governor is the 'eyes and ears'
of the President in relation to such territory which he is called
upon to administer on behalf of the President. One of the primary
functions of the Lt. Governor, as the Administrator, is to be
G aware of facts brought to his notice and therefore respondent
no.2 could not have turned a blind eye to the action of Sikandar
Bakht, the then Minioter for Works & Housing in making a highly
fraudulent, illegal and improper grant of permission to the
Express Newspapers Pvt. Ltd. to build the new Express Building
with an increased FAR Of 360 with a direction to the ~cipal
H Corporation of, Delhi to accord sanction to the building plan
EXPRESS NEWSPAPERS v. U,0,1, [A.P. SEN, J,] 487
A
submitted to them, as it had become the talk of the town. As
already stated, learned counsel for respondent no. l while
contending that the Lt. Governor, as an Administrator, had no
function as the lessor or its delegate, supported him only to the
extent that as an Administrator lie had to keep himself informed
of any violations of law in the Union Terricory qf Delhi with the B
administration of which he was concerned. It was, therefore,
legitimate for the Lt. Governor to have kept the authorities
informed, and though he had no independent power of his own, he
could place the material gathered by him with the lessor i.e.
Union of India, Ministry of Works & Housing, with a view to
initiate necessary action. c
Secondly, the contention of learned counsel for respondent
no. 2 was that the express exclusion of certain specific powers
under the proviso to s.21 of the Government of Part 'C' States
Act, 1951 relates to the legislative powers of the Legislative
Assembly or the Delhi Metropolitan Council and not to the execu- D
tive functions of the Chief Commissioner or the Lt. Governor.
It was submitted that this constitutional pattern was designed
on the basis of the 'transferred powers' in respect of which the
Legislative Assembly of Delhi or the Delhi Metropolitan Council
1
were given certain defined role but the reserved powers' were
exercisably by the Administrator as the Chief Commissioner or the E
Lt. Governor i.e. the executive functions of the Pres;1ent of
India under Art.53 of the Constitution. It was accordingly urged
that the Legislative Assembly of Delhi did not have the powers to
make any law with respect to 'land and building vested or in
possession of the Union of India' relatable to Entry 32 of List l
of the Seventh .Schedule, and the powers and functions of the
Council of Ministers in the Union Territory of Delhi as a Par.t F
'C' State extended only to' the legislative powers conferred under
s.21 of the Act. '!he 'reserved powers' which were excluded from
the purview of the Legislative Assembly or the Delhi Metropolitan
Council were, however,· exercisable by the Chief Commissioner and
necessarily by the Lt. Governor as the appointed agent or the
nominee of the President. It was submjtted that the Lt. Governor G
continues. to have certain defined functions, apart from his
function as the executive head of the Delhi Administration. As an
incumbent of an important public office of the Lt, Governor, he
is intended to discharge diverse functions on behalf of the
President of India as his agent in relation to the Union
Territory of Delhi. ·rn support of his contention, reliance was
placed on the interpt·etation of s.2(3) and s.36 of the Act. It H
was urged that the office of the Land & Development Officer was
488 SUPREME COURT REPORTS (1985] SUPP.3 S.C.R.
under the direct administrative control of the Chief Commissioner
A as the Administrator until 1959. The Land & Developnent Officer
administered ~ lands at that time as he does now. Altoougli
this was a subject excluded from the compet~nce of the
Legislative Assembly of Delhi under the proviso to s.21 of the
Act, the authority of the Chief Commissioner as the Administrator
over the Land & Developnent Officer and over the administration
B of ~ lands as a 'reserved subject 1 was kept under the
administrative conti:ol of the Chief Commissioner. It WELS
accordingly asserted that under several.leases, including the one
in the instant case, the Lt. Governor as the appointed agent or
the nominee of the President is entitled to act on behalf of the
lessor i.e. the Union of India, Ministry of Works & Housing and
necessarily must have administrative control over the Land &.
C Development Office and the administration of nazul lands.
To appreciate the rival contentions, it is necessary to view ,;-
the question from a historical perspective since the Union
Territory of Delhi, as it now exists , has undergone many
constitutional changes. Prior to September 17, 1912, the
Territory of Delhi was known as the 'Imperial Delhi Estate' and
lJ was included within the then Province of Punjab. After the
decision to form the capital at Delhi was reached, proceedings
for acquisition of land therefore were taken by the Collector of
Delhi District pursuant to the notification no.775 dated December
21, 1911 issued by the Lt. Governor of Punjab. When the Capital
was shifted from Calcutta to Delhi, the Governo~neral-
E in-COuncil by his proclamation dated September 17, 1912 took
under his immediate authority and management the territory of
Delhi with the sanction and approbation of the Secretary of State
for India. The Delhi Laws Act, 1912 came into force w.e ,f.
September 18, 1912 and provided for the administration of the
territory of Delhi by a Chief Commissioner as a separate Province
F to be known as the Province of Delhi. The Pr~ble to the Act
resds as follows :
"Whereas by Proclamation published in Notification
No.911 dated the Seventeenth day of September, 1912
the Governo~neral-in-Council, with the sanction and
G approbation of the Secretary of State for India has
been pleased to take under his immediate authority and
management the territory mentioned in Schedule A,
which was former 1Y included within the Province of
Punjab, and to provide for the administration thereof
by a Chief Commissioner as a separate Province to be
H known as the Province of Delhi:
EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 489
And whereas it is expedient to provide for tt.e A
application of the Law in force in the said territory,
and for the extension of other enactments thereto: I~
is hereby enacted as follows : "
Under s.58 of the Government of India Act, 1919, Delhi remained
and was administered as a Chief Commissioner's Province. Tl:e B
office of Land & Development Officer came ir.to being as a
separate organisation under the administrative control of the
Chief Conmissioner of Delhi· Under s.94 of the Government of
India Act, 1935, it was provided that Delhi wo"uld continue to be
a Chief Commissioner's Province. A Chief Commissioner's Province
was to be administered by the Governor-General acting to such c
extent as he thought fit through a Chief Conmissioner to be
appointed by him in his discretion. S. 94 of the Government of
India Act, 1935 provided as follows :
"94: Qdef o-tsaiooers' Provinces
D
l. The following shall be the Chief Commissioners•
Provinces, that is to say, the heretofore existi.ng
Chief Commissioners' Provinces of British Baluchistan,
Delhi, Ajmer-Merwara, Coorg and the Andaman and
Nicobar Islands, the area known as Panth Piploda, and
such other Chief Commissioners' Provinces as may be t:
created under this Act.
2. Aden shall cease to be part of India •
. 3. A Chief Commissioner's Province shall be adminis-
tered by the Governor-General acting, to such extent
as he thinks fit, through a Chief Commissioner, to be F
appointed by him in his discretion."
Under s.100(4) of the Government of India Act, 1935, the Federal
Legislature was empowered to legislate in relation to Chief
Commissioners' Provinces and without limitation as to subjects.
G
With the attainment of Dominion status on August 15, 1947
under the Indian Independence Act, l 94 7, the powers of the
legislature of the Dominion were exercisable by the Constituent
Assembly under sub-s.(l) of s.8. The constituent Assembly was not
to be subject to any limitations whatsoever in exercising its
constituent powers. Thus, the Indian Independence Act, 1947
established the sovereign character of the Constituent Assembly H
490 SUPRllME COURT REPORTS [1985] SUPP.3 s.c.R.
which became free from all limitations. Sub-s. (2) of s.8 of the
A Act provided that except insofar as other provision was made by
or in accordance with a law made by a constituent Assembly under
sub-s.(l), the governance of the Dominion was to be carried out
in accordance with the Government of India Act, 1935 and the
provisions of that Act, and all the orders in Council, rules and
other instruments made thereunder. On January 5, 1950, the
I! Constituent Assembly enacted the Goverrunent of India (Amendment)
Act, 1949 by which s.290A was inserted in the Government of India
Act, 1935 providing that the Governor-General may by order direct
that ai1 acceding State or a group of such States shall be
administered as a Chief Comnissioner 1s Province or as past of
Governor's or Chief Commissioner's Province. These acceding
States were thus converted into Centrally administered areas and
c included in Part 'C' of the First Schedule of the Government of
India Act, 1935. The remaining States in Part 'C' were Ajmer,
Coorg and Delhi. Under the Constitution, Delhi became a Part 'C'
State. As already stated the States specified in Part •c• of the
first Schedule were to be administered by the President under
Art.239(1) acting, to such extent as he thought fit, through a
Chief Commissioner or a Lt. Governor to be appointed by him.
D
Section 290A of the Government of India Act, 1935, reads as
follows :
"290A.. AdmjnfRtration of certain Acceding States d8 a
Chief Comniasioaer 's Province or as part of a
E Governor's or Chief C-Orwnfssiou.er's Province:-
1. Where full and exclusive authority, jurisdiction
and powers for and in re la tion to the governance of
any Indian State or of any group of such States are
for the time being exercisable by the Dominion
F Government, the Governor-General may by order direct:-
(a) that the State or the group of States shall be
administered in all respects as if the State or the
group of states were a Chief Comnissioner's Province:
or
G
(b) that the State or the group of States shall be
administered in all respects as if the State or the
group of States formed a part of a Governor's or a
Chief Commissioner's Province specified in the Order.
H
EXPRESl) NEWSPAPERS V• U.O.I. [A.P. SEN, J. J 491
Provided that if any Order made wider clause (b) of A
this sub-section affects a governor's Province, the
Governor-General shall before making such urder
ascertain the views of the Government of that Province
both with respect to the proposal to make the Order
and with respect .to the provisions to be inserted
therein. a
(2) Upon the issue of an order under clause (a) of
sub-section (1) of this section, all the provisions of
this . Act applicable to the Chief Commissioner's
Province of Delhi shall apply to the State or the
group of States in respect of which the Order is made. c
(3) The Governor-General may in making an order under
sub-sec ti on ( 1) of this section give such supple-
mental, incidential anci consequential . directions
(including directions as to representation in the
Legislature) as he may deem necessary. D
(4) In this section, reference to •a State shall
include reference to a· part of a State."
As a result of this, the then Province of Delhi oec""1e a Part 'C'
S~. E
Under the Constitution of India, Delhi became a Part 'C'
State w.e.f. January 26, 1950 and it was provided by A<t.239 (l)
that a State specified in Part 'C' of the First Schedule shall be
administered by the President acting to such extent as he thinkR
fit through a Chief Commissioner or Lt. Governor to be appointed
by him. Art.239(1) of the Constitution as it then stood, insofar F
as material, provided:
"239(1). Subject to the other prollisions of this Part,
a State specified in Part C of the First Schedule
shall be administered by the President acting, to such
extent as he thinks fit, through a Chief Commissioner G
or a Lieutenant-Governor to be appointed by him or
through the Government of a neighbouring State:"
It would appear that Art.239(1) of the Constitution differed
from the provision contained in s.94(3) of the Government of
India Act, 1935 to the extent that the appqintment of a Chief
Commissioner or Lt. Governor as an Administrator irrespective of H
492 SUFREME COURT BEPORTS [1965] SUPP.3 s.c.R.
A
the designation and entrustment of powers, functions and duties
to him by the President, were not to be in his discretion but had
to be exercised on the advice of the Council of Ministers. Except
for this, s.94(3) of the Government of India Act, 1935 and Art.
239(1) of the Constitution as enacted were identical in respect
B of the provisions for the administration of Delhi as a Chief
Colllllissioner's province under the 1935 Act and as a Part C State
under the Constitution, by the G~vernor-General under s.94(3) and
under Art.239(1) by the President acting to such extent as he
thought fit, through the Chief Comnissioner or the Lt. Governor
as an Admlnistrator irrespective of the designation.
c On April 16, 1950 the Part C States Laws Act, 1950 was
brought into force. By s.2, the Central Govennnent was empowered
by notification in the official gazette to extend to the State.of
Delhi or to any part of such territory with such restrictions
and modifications as it thought fit any enacbnent which was in
force in any State at the date of the notification. S.4 of the
Act repealed s. 7 of the Delhi I,aws Act, 1912. The Goveroment of
D Part C States Act, 1951 enacted by Parliament was brought into
force on September 6, 1951. s. 21 of the Act, insofar as
material, read as follows :
"21. El<tent of Legislative ~ -
E (1) Subject to the provisions of this Act, the
Legislative Assembly of a State may make laws for the
whole or any part of the State with respect to any of
the 11Stters emnnerated in the State List or in the
Concurrent List :
F Provided that the Legislative Assembly of the State of
Delhi shall not have power to make laws with respect
to any of the following matters, namely :-
(a) ***********
(b) ***********
(c) ***********
(d) lands and buildings vested in or in the possession
of the Union which are situated in Delhi or in New
Delhi including all rights in or over such lands and
buildings, the collection of rents, therefrom and the
transfer and alienation thereof j
H
(2) Nothing in sub-s.(l) shall derogate from the power
conferred on Parliament by the Constitution to make
EXPRESS NEWSPAPERS ·1. u.0.1. [A.P. SEN, J,) 493
A
laws with respect to any matter for a State or UJ:1
part thereof • "
Art. 239(1) of the Constitution was amended by the
Constitution (7th Amendment) Act, 1956 w.e.f. November 1, 1956
awl it now reads B
"239. Mmfniatration of lln1on Territories -
(l) Save as otherwise provided by Parliament by law,
every Union :rerritory shall be administered by the
President acting, to such extent as he thinks fit, C
through an administrator to be appointed by him with
such designation as he may specify."
It would be seen that for the words 'through a Chief Colllllissioner
or a Lt. Governor to be appointed by him' in Art. 239 ( l) as
originally enacted, the words substituted are 'through an D
administrator appointed by him with such. designation as he may
specify'. One thing is clear that the Administrator appointed by
the President under Art.239(1) whether with the designation of
the Chief Commissioner or of the Lt. Governor could exercise only
such powers, functions and duties as were entrusted to him by the
President i.e. there have to be specific entrustment of powers by E
the President under Art. 239(1). Under Art. 246(4) of the
Constitution which corresponds to s.100(4) of the Government of
India Act, 1935, Parliament was given power to make laws with
respect to any part of the territory of India not included in
Part A or Part B of the First Schedule, notwithstanding that such
matter was a matter enumerated in the State List.
F
As from the appointed day i.e. from November l, 1956 Part C
States cease-i to exist by virtue of the Seventh Amendment and in
their place Union Territories were substituted in the First
Schedule to the Constitution, including the Union Territory of
Delhi i.e. the territories which immediately before the
cOlllill!ncement of the Constitution were comprised in the Chief G
Commissioner's Province of Delhi. 'By the Seventh Amendment, Art.
246(4) was also amended. Art. 246(4), as amended, now reads :
"246( 4) - Parliament has power to make laws with
respect to any matter for any part of the territory of
India not included in a State notwithstanding that
such matter is a matter enumerated in the State List." H
494 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
In pursuance of Art.239 as amended by the Seventh Amendment, the
A President of India isaued the following notification on Novembt:r
l, 1956 :
lll!GIS'IEllED IK).D. 221
THE GAZETTE OF INDIA
EXTRAORDINARY
l! PART 11 - Section 3
PUBLISHED BY AUTHORITY
No. 332 NEW DELHI, THURSDAY, NOVEMBER 1, 1956
MINISTRY OF HOME AFFAIRS
NOTIFICATION
c New Delhi-2, the 1st November, 1956.
s.R.O. 2536 - In pursuance of clause (1) of Article
239 of the Constitution as amended by the C.onstitution
(Seventh Amendment) Act, 1956 and ail other powers
enabling him in this behalf, the President hereby
directs as follows :-
D
Where, by virtue of any order made in pursuance of
Article 239 or as the case may be, Article 243 of the
Constitution as in force immediately before the 1st
day of November, 1956 or any other power under the
Constitution, any powers and functions were
E inmediately before that day, the powers and functions
of -
(a) the Lieutenant Governor of the State of Himachal
Pradesh,
F (b) the Chief Comnissioner of the State of Delhi,
Manipur or Tripura and
(c) the Chief Conmi,ssioner of the Andaman and Nicobar
Islands,
G such powers and functions shall, on and after the said
day, be exercised and discharged respectively by-
(i) the Lieutenant Governor of the Union Territory of
Himachal Pradesh,
H (ii) the Chief Coilllllissioner of the Union Territory of
Delhi, Manipur or Tripura, and
EXPRESS NF.'WSPAPERS v. U.O.I. [A.P. SEN, J.] 495
(iii) the Chief Conmissioner of the Andaman and
A
Nicobar Island,
subject to the like control by the President, as were
exercisable by him before the said day over the
Lieutenant Governor or aa the case may be, the Chief
Conmissioner referred to in clause (a),(b) or (c).
Jl
(No.F.19/22/56-SRI)
llARI SHARMA, JT. Secy."
On the same day, by Section 130 of the States Reorganization
Act, 1956, the Government of Part C States Act, 1951 stood
repealed. On October l, 1959 decision was taken by the Government c
of India to transfer the administrative control of the office of
Land & Development Officer, New Delhi from the Delhi
Administration to Ministry of Works, Housing & Supply w.e.f.
October l, 1959. This decision was duly communicated to the Chief
Conmissioner of Delhi and to the Land & Development Officer, New
Delhi. In the further affidavit of M.K. Mukherjee, Secretary, D
Ministry of Works & Housing, it is averred in paragraph 6 that
the 'office of the Land & Development Officer was transferred to
the control of the Ministry of Works, Housing & Supply w.e.f.
October l, 1959 and since then i t has been functioning as a
subordinate office of the Ministry of works & Housing'. It would
therefore, be manifest that after October l, 1959 neither the E
Chief Conmissioner nor the Lt. Governor had anything to do with
the office of the Land & Development Officer or the
administration of nazul lands in the Union Territory of Delhi.
The President of India on February l, 1966 issued an order
under Art.299(1) of the Constitution which inter alia directed
that in the CBEe of Land & Development Office (1) all contracts F
and aasuranzes of property relating to matters falling within the
jurisdiction of Land & Development Officer, (2) all contracts,
deeds and other instrwnents relating to and for the purpose of
enforcement of the terms and conditions of the sale/lease-deed of
the government property in Delhi/New Delhi, etc. made in exercise
of the executive power of the Union may be executed on his behalf G
by the Land & Development Officer. Under Clause XI.I i t was
specifically provided :
"Notwithstanding anything hereinbefore contained any
contract or assurance of property relating to any
matter whatsoever may be executed by the Secretary or
H
496 SUP!@IE COURT REFORTS [1985] SUPP.3 s.c.R.
A the Special Secretary or the Additional Secretary or
the Joint Secretary or the Direct~r, or when there is
no Additional Secretary, Joint Secretary to the
Government in the appropriate Ministry or Department."
It is pertinent to observe that neither the Chief Commissioner of
B Delhi nor the Lt. Governor has been conferred any authority by
the President under Art.299(1) to enter into any contract made in
the exercise of the executive power of the Union or to act 'on
behalf of' the President in relation to such contract or
assurance of property i.e. to act on behalf of the President for
the enforcement of the terms and conditions thereof.
C On September 7, 1966 the Administrator appointed by the
President in relation to the Union Territory of Delhi who
hithertofore had been designated as the Chief Commissioner was
re-designated as the Lt. Governor of Delhi. Accordingly, the
President on Sept...ber 7, 1966 issued another order in terms of
Art. 239(1) of the Constitution which provides as follows :
D MINISTRY OF H(}fE AFFAIRS
NOTIFICATION
New Delhi, the 7th Sept., 1966.
s.o. 2709 - In pursuance of clauae (1) of article 239
of the Constitution and all other powers enabling him
E in this behalf, the President hereby directs as
follows -
Where by virtue of ·any order made in pursuance of
article 239 any powers and functions were, immediately
before the 7th Sept...ber, 1966 the powers and
F functions of the Chief Commissioner of the Union
Territory of Delhi, such powers and functions shall,
on and after the said day, be exercised and discharged
by the Lt. Governor of the Union Territory of Delhi,
subject to the like control by the President, as was
exercisable by him before the said day over the Chief
G Commissioner.
(No.41/2/66-llelhi.)
HARI SHARMA, SECRETARY"
H The crux of the matter is whether the Lt. Governor was
by virtue of the aforesaid not if !cation dated September 7 , 1966
issued by the President, conferred any power, function and duty
EXPRESS NEWSPAPERS V• U.O.I. [A.P. SEN, J.] 497
A
in relation to the property of the Union in the Union Territory
of Delhi. Much stress is laid by ·learned counsel appearing for
respondent no.2 on the said. notification insofar as it provides
that the Lt. Governor shall have the same powers and functions as
were exercisable by the Chief Collllllissioner. That would be so
proYided there was a notification by the President of India under
B
Art. 239(1) of the Constitution vesting the Chief Comnissioner
with power to administer the property of the Union of India.
There is admittedly no such I¥>tification under Art. 239(1) by the
President vesting Chief Collllllissioner or the Lt. Governor with any
such power.
It is sought to be impressed upon us that the designation of c
the Administrator of a Union Territory was per .!!!. of no
particular legal or functional significance. It is argued by
learned counsel appearing for respondent no.2 that the
Administrator appointed by the President under Art. 239(1), as
am.ended by the Seventh Amendment, could be called by any
designation, that the Chief Comnissioner of Delhi continued to be D
the Administrator of the Union Territory of Delhi under Art.
239(1) after November l, 1956 when the Government of Part C
States Act, 1951 was repealed by S· 130 of the States
Reorganization Act, 1956 and that he functioned as such till
September 6, 1966 since the Delhi Administration Act, 1966
continued to use the nomenclature of Administrator appointed by E
the President under Art. 239(1). It was for the first time on
September 7, 1966 that the Administrator of the Union Territory
of Delhi who used to be designated as the Chief Collllllissioner was
re-designated as the Lt. Governnr. The learned· counsel relied
upon s. 18 of the General Clauses Act, 1897 which runs as under :
"18. s..cceesora. F
l. In any Central Act or Regulation made after the
COlllllencement of this Act, it shall be sufficient for
the purpose of indicating the relation of a law to the
successors of any functionaries or of corporations
having perpetual succession to expr.ess its relation to G
the functionaries or corporations.
2. This section applies also to all Central Acts made
after · the third day of January, 1868, and to all
Regulations made on or after the fourteenth day of
January, 1887."
H
498 SUPREME COURT REPORTS [1985) SUPP.3 s.c.R.
A
Our attention was drawn b;' the learned counsel to the
decision of llobd. Maqhool llewmoo v. State of .Ja11m11 & l'.aabmir •
[1972) 2 s.c.R. 1014, where a Constitutional Bench held that
under s. 26(2) of the Janmu & Kashmir Constitution, as amended,
even though the Governor of Janmu & Kashmir was not elected as
B the Sadar-i-Riyasat but the mode of appointment would not make a
Governor anytheless a successor to the Sadar-i-Riyasat because
both were the head of the State and therefore the executive power
of the State vested in them both. In that connection, the Court
referred to s.18 of the General Clauses Act and held that the
Governor being a successor of the office of the Sadar-i-Riyasat
was entitled to exercise all the powers and functions of the
C Sadar-i-Riyasat. We do not see the relevance of the decision in
Mohd. Maqbool's case to the question before us since the Lt.
Governor of Delhi is neither the successor of the Chief Connnis-
sioner nor can s .18 of the General Clauses Act override the
constitutional requirements of Art.239(1) laying down that the
Lt. Governor shall exercise only such powers as are entrusted to
him by the President.
D
The question still remains whether the Lt. Governor was the
successor of the Chief Connnissioner of Delhi; and if so, had by
reason of the notification dated September 7, 1966 under Article
239 of the Constitution the same powers and functions that were
exercisable by the Chief Connnissioner in relation to the lease.
E That would be so provided there was a notification issued by the
President under Art.239(1) vesting the Chief Commissioner with
powers to administer the property of the Union or lease of nazul
properties in the Union Territory of Delhi. It is also necessary
to consider whether under the proviso to s.21 of the Part C
States Act, 1951, the so-called 'reserved powers' were exerci-
F sable by the Lt. Governor in relation to the executive functions
of the President under Art.53 of the Constitution as an agent or
the nominee of the President and therefore he was entitled to act
on behalf of the lessor i.e. the Union of India, hlnistry of
Works & Housing.
G Learned counsel appearing for respondent no.2 argues that
the Lt. Governor had ample powers and functions under the
aforesaid notification dated September 7, 1966 and therefore it
was incumbent upon him to take necessary steps in due discharge
of his official duties. The Lt. Governor was not a 'stranger',
'interloper', 'intruder' or 'usurper' acting without any warrant
H or semblance of power or any author! ty as alleged and argued
EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 499
A
strenuously by the petitioners He says that there is a vast
variety of notifications whicn vest the office of the Lt.
Governor with powers and functions of various descriptions under
various statutes, many of which are to be exercised by him in his
discretion. He contends that such powers are of a wide ranging
nature which inhere in the office of the Lt. Governor. He refers B
to several notifications in which the Administrator of Union
Territory had been variously described viz. as Chief
Commissioner, Administrator or Lt. Governor and contends that
even while delegating the powers under Art. 239(1) of the
Constitution, a cooti.nuun between the office of the Chief
Commissioner and that of the Lt. Governor was preserved and~ the c
terms used interchangeably. All these powers and functions were
essentially functional. Moreover, powers and functions which
vested in that off ice and which had a clear continuity of its own
also implied powers which were incidental and ancillary thereto.
Such powers also necessarily included powers and functions which
were a necessary concomitant of the office. D
Learned counsel contends that the office of the
Administrator under Art.239(1) ii< the office of an agent and
representative of the President. It is the office of the Head of
the Administration in relation to the Union Territory. lie is not
merely a formal or titular head but an effective and executive E
head. The office is both formal and functional, and the Union
Territory is administered by the Union Executive through the
Lt. Governor. In the ultimate analysis, the Lt. Governor has to
be the 'eyes and ears' as well as the 'limbs' of the President in
the Union Territory which he is called upon to administer on
behalf of the President. He is also to keep in touch with every
situation and to take into account the representations and E
complaints in exercising the powers and discharging the functions
of his office. In these circumstances, the Lt.Governor was
entitled to see whether there was any definite matter of public
importance which might eventually call for a detailed adminis-
trative or statutory inquiry, either in respect of the conduct of
!
the officers of the Delhi Development Authority or those of the G
~hmicipal Corporation, and to satisfy himself with regard to
various matters and particularly whether there were any
violations of town planning norms or sanction granted, whether
the lease conditions were breached, whether similar concessions
should be granted to others similarly situate and whether any
remedial measures were called for. lie urges that the complaints
and representations with regard to Express Buildings were quite li
specific and the pace of construction was particularly
500 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
accelerated. The Lt. Governor had the powers and the auty to
inform himself of the fact and to be properly advised with regard
to these matters. Instead of acting in a surreptitious,
clandestine or hurried manner, he appointed a committee of three
senior officials to ascertain the facts. In appointi~ such a
B committee he acted will within his powers and in a wholly bona
fide manner; indeed, he could also, if so satisfied, set up a
commission of inquiry under the Commissioru! of Inquiry Act, 1952.
The argument of learned counsel appearing for respondent
no.2 based on the proviso to s.21 of the Government of Part C
States Act, 1951 that the 'reserved powers' were still with the
c Administrator as the Chief Commissioner or the Lt. Governor and
therefore the Lt. Governor as the appointed agentor nominee of
the President was entitled to exercise the executive functions of
the President under Art. 53 of the constitution and consequently
was authorized to act on behalf of the lessor i.e. the Union of
India, Ministry of Works & Housing, is totally unwarranted. The
contention overlooks the constitutional changes brought about, as
D a result of which the territory of Delhi ceased to be
administered as a Chief Conmissioner 's Province by the
Governor-General acting to such extent as he thought fit through
the Chief Conmissioner appointed by him in his discretion under
s.94(3) of the Government of India Act, 1935 and become a Part C
state on the inauguration of the Constitution and had to be
E administered by the President under Art.239(1) acting to such
extent as he thought fit through a Chief Commissioner or a Lt.
Governor to be appointed by him or through the Governor of a
neighbouring State. After the Seventh Amendment which reorganized
the States, Part C State of Delhi was transformed into a Union
Territory and has to be administered by the President under the
F amended Art. 239(1). acting to such exter.t as he thinks fit,
through an Administrator to be appointed by him with such
designation as he msy specify. In September, 1951 an Act known as
the Government of Part C States Act, 1951 was passed by
Parliament. It was a law enacted by Parliament under Art.24011)
to provide for the creation of Legislative Assemblies, Council uf
G Ministers and Councils of Advisors for Part C States. Sub-s.(3)
of s.2 provided that any reference in the Act to the Chief
Commissioner shall, in relation to a State for the time being
administered by the President through a Lt. Governor be construed
as a reference to the Lt.Governor. Cl.(2) of Art.240 provided
that such law shall not be deemed to be an amendment of the
H Constitution for the purposes of Art. 368 notwithstanding that it
contained any provision which amended or had the effect of amend-
ing the Constitution. s.21 of the Act invested the Legislative
EXPRESS NEWSPAPERS v. U.O.I. [A.P.SEN, J.] 501
A
Assemblies of such Part C states with powers of legislation with
respect to any of the matters enumerated in the State List or in
the Concurrent List with the reservation contained in the proviso
thereto that the Legislative Assembly of the State of Delhi shall
not have power to make laws ·with respect to the matters
enumerated therein, with the overriding provision contained in B
sub-s.(2) that nothing in sub-s.(l) shall be in derogation of the
power conferred on Parliament by the constitution to make laws
with respect to any matter for a Part C State or any part
thereof.
It would therefore appear that the territory of Delhi as a c
Part C State under the First Schedule to the Constitution was a
separate and distinct constitutional entity as from that of a
Chief Commissioner's Province under the Government of India Act,
1935, and this is eq~lly true of the Union Territory of Delhi.
It 1DUSt logically follow that with the transformation of the
territory of Delhi from a Chief Commissioner's Province under D
s.94(3) of the Government of India Act, 1935 into that of a Part
C State under thE' Constitution' and after the Seventh Amendment
into the Union Territory of Delhi, .the office of the Chief
Canmissioner of Delhi disappeared and that of an Administrator
appointed by the President under Art.239(1) with such designation
as he may specify, came into existence. The necessary concomitant E
is that the Administrator of the Union Territory of Delhi derived
only such powers, fullctions and duties as were entrusted to him
by the President under Art. 239(1).
I would also refer to the case of Edward Mil.ls Co. Ltd.
ne-r, ' era. "· St:ate of Ajllet: ' Anr., [1955] l s.c.R. 735,
which was rightly not relied .upon by learned counsel for the F
respondents as the decision turned on its own facts. In that case
i~ was held by the Constitution Bench that an order made by the
Governor-General under s. 94(3) of the Government of India Act,
19~5 investing the Chief Commissioner with the authority to
administer a Chief Commissioner's Province as then existing, IDUSt
be regarded aa a legislative act and as such treated as a 'law in G
force' falling within the purview of Art. 372 of the Constitution
and therefore such an order made under s.94(3) of the Government
of India Act, 1935 IDUSt be construed as an order made under Art.
239(1). The Constitution Bench speaking, through Mukherjee, J.
after adverting to s. 94(3) of the Government of India Act, 1935,
observed :
H
"An order made by the Governor-General under s.94(3)
investing the Chief Commissioner with the authority to
administer a province is really in the nature of a
502 SUPl©JE COURT REPORTS [1985] SUPP.3 s.c.R.
A
legislative provision which defines the rights and
powers of the Chief Collllllissioner in respect of that
province. In our opinion, such order comes within the
purview of Article 372 of the Constitution and being
'a law in force' immediately before the conmencement
B of the Constitution would continue to be in force
under clause {l) of the Article. Agreeably to this
view it must also be held that such order is capable
of adaptation to bring provisions under cl. (2) of
Article 372 and this is precisely what has been done
by the Adaptation of Laws Order, 1950. Paragraph 26 of
the Order runs as follows :
c
'\.Jhere any rule., order or other instrument was in
force under any provision of the Governruent of India
Act, 1935, or under any Act amending or supplementing
that Act, immediately before the appointed day, and
such proxision is re-enacted with or without modifi-
cations in the Constitution, the said rule, order or
D instrument shall, so far as applicable, remain in
force with the necessary modifications as from the
appointed day as if it were a rule, order or instru-
ment of the appropriate kind duly made by the
appropriate authority under the said provision of the
Constitution, and may be varied or revoked
E accordingly.
Thus the order made under s. 94(3) of the Government
of India Act should be reckoned now as an order made
under Article 239 of the Constitution •••••• "
F There was no Order in Council issued by the Governor-<;eneral
under s. 94(3) of the Government of India Act, 1935 nor any order
issued by the President under Art. 239(1) of the Constitution
investing the Chief Collllllissioner of Delhi to deal with the
property of the Union. On October 1, 1959, decision was taken by
the Government of India to transfer the administrative control of
G the Land & Development Office from the Chief Commissioner of
Delhi to the Ministry of Works & Housing. This decision was duly
communicated to the Chief Collllllissioner of Delhi and to the Land &
Development Officer. It i~ admitted in the further affidavit of
M.K. Mukherjee, Secretary, Ministry of Works & housing dated
November 16, 1982 that the office of the Land & Development
H Officer was transferred to the control of the Ministry of Works &
Housing w.e.f. October 1, 1959 and since then it has been
functioning as a subordinate office of the Ministry of Works &
EXPBESS NEWSPAPERS v. U.Q.I. [A.P. SEN, J.) 503
A
Housing. Undoubtedly, the matters relating to the property of the
Union of India are included in the executive power of the Union
under Art. 53 of the Constitution read with Art. 298 which
expressly provides that the executive power of the Union shall
extend to the acquisition, holding that disposal of property snd
the making of contracts for any purpose. Such executive power of B
the Union is vested in the President under Art. 53(1) snd shall
be exercised by him either directly or through officers
subordinate to him in accordance with the Constitution. All
executive aetions of the Government of India shall be expressly
taken in the name of the President under Art. 77(1). Under cl.(2)
thereof, orders and other instruments made and executed in the c
name of the President shall be authenticated as may be specified
in rules to be n.ade by the President i.e. in the manner specified
under the Authentication (Orders snd other Instruments) Rules,
1958 framed under Art. 72(2). On January 18, 1961, the President
made the Government of India (Allocation of Business) Rules, 1961
under Art. 77(3) for the more convenient transaction of business D
of the Government of India, snd for the allocation among
Ministers of the said business.
In terms of the Government of India (Allocation of Business)
Rules, 1961, all matters relating to the property of the Union, E
allotment of Government lands in Delhi, administration of
Government estates under the control of the Ministry of Works &
Housing and the administration of the Land & Development Office,
are matters exclusively vested in the Ministry of works &Housing
vide Entries 1, 6 and 23(1) in the Second Schedule under the head
'Ministry of Works & Housing'. In the light of the said
directive, as further confirmed by the constitutionally enacted F
regulations, the power over the allotment of nazul lsnds,
administration of leases in Delhi and the control snd
administration of Land & Development Office in particular and the
property of the Union in general are subjects vested solely under
the control of the Ministry of Works & Housing. In the premises,
by such transfer of authority, the Chief Commissioner of Delhi G
and necessarily his successor, the Lt. Governor, became bereft of
his powers to control and administer the lease and any attempt by
respondent no .2 set up a claim that the Lt. Governor is the
authority empowered to administer the lease is wholly frivolous
and untenable snd il\USt be rejected.
Whether the :impugDed ExeMJtive action H
was mala fide and politically motivated.
504 SUPREME COURT REPORTS [1985] SUPP.3 S.C.R.
A
The principal point in controversy between the parties is
whether the notice of re-entry upon forfeiture of lease issued by
the Engineer Officer, Land & Development Office dated March 10,
1980 purporting to be on behalf of the lessor i.e. the Union of
India, Ministry of Works & Housing, and that of March l, 1980
B issued by the Zonal Engineer (Building), City Zone, Municipal
Corporation, Delhi were wholly mala fide and politically
motivated. It is a sad reflection on the state of affairs brought
about during the period of Emergency which brought into existence
a totalitarian trend in administration and I do not wish to
aggravate any of its features by unnecessary allusions. In the
process, the country witnessed misuse of mass media totally
C inconceivable and unheard of in a democratic form of Government
by ruthless suppression of the press by exercise of
pr~-censorship powers, enactment of a set of draconian laws which
reduced freedom of the press to a naught.
The petitioners have pleaded the facts with sufficient
degree of particularity tending to show that the impugned notices
D were wholly mala fide and politically motivated; mala fide,
because the impugned notice of re-entry upon forfeiture of lease
dated March 10, 1980 issued by the Engineer Officer, Land &
Development Office under cl.5 of the indenture of lease dated
March 17, 1958 for alleged breach of els. 2(14) and. 2(5) which in
fact were never committed and the notice dated March l, 1980 by
E the Zonal Engineer (Building), City Zone, 1'lunicipal Corporation
for demolition of new Express Building where the printing press
is installed under ss. 34~ and 344 of the Delhi Municipal
Corporation Act were really intended and meant to bring about the
stoppage of the publication ·Of the Indian Express which has
throughout been critical of the Government in power whenever it
F went wrong on a matter of policy or in principle. Also, mala fide
because they constitute misuse of powers in bad faith. Use of
power for a purpose other than the one for which the power is
conferred is mala fide use of power. Same is the positiofi when an
order is made for ~rpose other than that which finds place in
the order.
G
It 1s somewhat strange that although definite allegation of
mala fide on the part of the respondents particularly the
Government for the day at the Centre were made with sufficient
particulars and though the respondents had ample time ·to file
H their affidavits in reply, none of the respondents except
respondent no.2, the Lt. Governor of Delhi and respondent no.5,
Land &Development Officer have chosen to deny the allegations.
EXi'RESS NEWSPAPERS v.· U.O.I. [A.P. SEN, J•] 505
A
'fhe counter-affidavit of respondent no.2 purporting to be on
behalf of all the respondents is that the allegations made by the
petitioners in paragraphs 11, 12 and 13 are not 'relevant' to the
matter in issue. In c.s. Rawjee & Ors. v. A.P. St:l\te Hoad
Transport Corporation, [1964] 4 s.c.R. 330, the Court in a matter
arising out of the Motor Vehicles Act, 1939 where certain
allegations against the Minister went uncontroverted, had
occasiou to administer a word of caution. Where mala fide are ·
alleged, it is necessary that the person against whom such
allegations are made should come forward with an answer refuting
or denying such allegations. For otherwise such allegations
remain unrebutted and the Court would in surh a case be cons- c
trained to accept the allegations so remainl.ng unrebutted and
unanswered on the test of probability. That precisely is the
position in the present case, 1n the absence of any counter-
affidavit by any of the respondents. One should have thought that
the Minister for Works & Housing should have sworn an affidavit
accepting or denying the allegations made by the petitioners. At D
our instance, M.K. Mukherjee, Secretary, Ministry of Works &
Housing has filed a supplementary affidavit. He avers that the
impugned notice dated March 10, 1980 of re-entry upon forfeiture
of lease issued by the Engineer Officer, Land & Development
Office was on the basis of press reports i.e. reports of the
press conference held by the. Lt. Governor. Again, there is no E
attempt on the part of the Union of India, Ministry of Works &
Housing to deny the allegations of ma1a f ides on the part of the
Government and its functionaries in issuing the impugned orders.
On the contrary, he avers that respondent no .1 ·'adopts the-
counter-affidavit filed by respondent no.2'. It is not for the
parties to say what is relevant or not. The matter is one for the
Court to decide. Th~re is nothing before us from which we can say F
that the allegations in paragraphs 11, 12 and 13 of the petition
made by the petitioners are not well-founded. Mala fides on the
part of the Government in power or its functionaries would be
sufficient to invalidate tbe impugned notices. Fraud on power
vitiates the impugned orders if they were ?Ot exercised bona tide
for the purpose for which the power was conferred. G
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
D 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
E 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
F 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
B 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
C 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
F 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
G 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
H 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 D
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 E
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
D 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
E 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 A
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 B
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
D 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
E 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
F 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
G 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 D
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 E
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 F
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
D
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
E
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
F 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
A
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
B
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
D
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
E
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 A
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 B
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 C
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 F
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 G
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
E 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
F 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
G 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 E
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 F
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 G
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
D
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
E
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
F
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
G
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 E
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 F
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 G
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 A
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 B
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
B 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
C 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 A
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 B
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 D
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 E
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 G
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 H
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
A
time to time.
(a) <'.oftrage :
The maxilllllll permissible coverage shall be subject to
the provisions of bye-laws 26 & 27 and the requirement
B
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
1 2
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
G
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
H
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 A
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 F
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 G
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
H 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 A
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,
F inter alia, that :
"53(3). 1'1otwithstanding anything contained in such
other law -
(a) when permission for development in respect of any
G 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 A
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, B
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 F
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 G
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 H
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
D 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
E 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 E
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 F
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 G
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
E 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
F 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
G 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
H 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 E
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 F
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, G
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
F
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
G
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~
A
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 E
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 F
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 G
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
546 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
to the Court, Denning, J. reversed the decisions of the Ministry
and the Tribunal holding that the Crown was bound by the War
Office letter and observe :
"The Crown cannot escape by saying that estoppels do
not bind the Crown, for that doctrine has long been
II
exploded. Nor can the Crown escape by praying in aid
the doctrine of executive necessity, that is, the
doctrine that the Crown cannot bind itself so as to
fetter its future executive action."
It would appear that Denning, J, evoked two doctrines : (1)
that assurances intended to be acted upon and in fact acted upori
were binding; and (2) that where a Government department
wrongfully assumes authority to perform some legal act, the
citizen is entitled to assume that it has that authority, ar.d he
dismissed the contention that estoppels do not bind the Crown by
saying that 'that doctrine has long been exploded' and that the
Crown cannot fetter its future executive action. Professor Wade
points out that the proposition about wrongful assumption of
D
authority evoked by Denning,J. was i1111Dediately repudiated by the
House of Lords in a later case in which Denning, W. had again
put it forward in Bowell v. Falmouth Boat Construction Collpaoy
Ltd., L.R. [1951] A.c.· 837, it is beyond the scope of this
judgment to enter into a discussion as to how far Denning J's
dictum can still be regarded as part of the common law in
England. But there appears to be a school of thought in India
laying down that the doctrine of promissory estoppel applies to
the Government except under certain circumstances.
In Union of India & Ors. v. Indo Afghan Agencies Ltd.,
F [1968] 2 s.c.R. 366, Shah, J, speaking for the Court stated with
approval the following observations of Denning, J. in Robertson's
case
"The Crown cannot escape by saying that estoppels do
not bind the Crown for that doctrine has long been
G
exploded. Nor can the Crown escape by praying in aid
the doctrine of executive necessity, that is, the
doctrine that the Crown cannot bind itself so as to
fetter its future executive action."
and the learned Judge held that this doctrine applies in India.
H
In Century Spinning & Manufacturing Co.Ltd. & Anr. v. The
lllhasnagar Municipal Conncfl & Anr., [1970] 3 S.C.R. 854, Shah,
EXPRESS NEWSPAPERS v. u.0.1. [A.P. SEN, J.] 547
A
J. in remanding the petition to the High Court which it had
dismissed in limine again observed
"In I:ndo-Afgban' 8 case this Court held that the
Government is not exempt from the equity arising out
of the acts done by· citizens to their prejudice, B
relying upon the representations as to its future
conduct made by the Government. This Court held that
the observations made by Denning, J. in llobertsan'a
case applied in India."
'
The learned Judge observed that the court was not concerned with ·C
the principle which was dis-approved by. Lord siim>nds in
Pal-'11 a case and he added
"If our nascent democracy is to thrive different
standards of conduct for the people and the public
bodies cannot ordinarily be permitted. A public body D
is, in our judgment, not exempt from liability to
carry out its obligation arising out of representa-
tions made by it relying upon which a citizen has
altered his position to his prejudice."
In llctilal Psd!IMp"t Sagar Mills Co.(P) Ltd. v. State of Utter E
Pradesh & Ors., (1979] 2 S.C.R> 641, Bhagwati, J. spesk1ng for
himself and Tulzapurkar, J. laid great stress on the facts that
the principles laid down by Denning, J. in Ro~'a case were
accepted by the Court in the Indo Afghan' a case but accepted the
rejection of Lord Simnds and Lord Normands in Pal-"'a case of
the extended principles enunciated by Denning, J. in Bo~'•
caae as laying down the ·correct law. But the learned Judge went F
down to say that this rejection did not mean thAt there could be
no estoppel against the Crown or the public authority.
I 811 not oblivious that there was a discordant note struck
by Kailasam, J • speaking for himself and Fazal All., J. in .Jit Ila
.Shiv s-r & Ors. v. State of 11aryam & Am., (1980] 3 s.c.R. G
689, holding that the doctrine of promissory estoppel cannot be
invoked for preventing the Government from discharging its
functions under law. It la also not applicable when the officer
and the Government act outside the scope of their authority. The
doctrine of ultra vires will in that event come into operation
and the gove,;=t "CiiiiiiOt be held bound by the unauthorized acts
of his officers. H
548 SUPRl!HI! COURT REPORTS (1985) SUPP.3 s.c.R.
A
It is not necessary for purposes of this judgment to resolve
the apparent conflict between the decision of the Bhagwati ,J. in
Motilal Padampat Supr Kills' case as to the applicability of the
doctrine of estoppel for preventing the Government from
discharging its functions under the law. In public law, the most
B obvious limitation and doctrine of estoppel is that it cannot be
evoked so as to give an overriding power which it does not in law
possess. In other words, no estopJ>el can legitimate action which
is ultra vires. Another limitation is that the principle of
estoppel does not operate at the level of Government policy.
Estoppels have however been allowed to operate against public
authority in minor matters of formality where no question of
c ultra vires arises : Wade, Administrative law, 5th edition, PP•
233-34-.-
The principles laid down in llaritime Elec. Co. v. General
Dairies Ltd., [1937] A.C. 610 p;c., and by Lord Parker, CJ. in
Southend on Sea-Corporation v. Boclgeson (Wickford) Ltd., [1962) 1
Q.B. 416, relied upon by learned counsel appearing for respondent
D no. l the Union of India are clearly not attracted in the facts
and circumstances of the present case. In the present case,
admittedly, the then Minister for Works & Housing acted within
the scope of his authority in granting permisssion of the lessor
i.e. the Union of India, Ministry of Works & Housing to the
Express Newspapers Pvt. Ltd. to construct new Express Building
E with an increased FAR of 360 with a double basement for instal-
lation of a printing press for publication of a Hindi newspaper
under the Rules of Business framed by the President under Art.
77(3). Therefore, the doctrine of ultra vires does not come into
operation. In view of this respondent no.l the Union of India is
precluded by the doctrine of promissory estoppel from questioning
F the authority of the Minister in granting such permission. In
that view, the successor Government was clearly bound by the
- decision taken by the Minister particularly when it had been
acted upon.
Quantum of conversion charges Extent of Liability
G Forum of determination.
During the course of hearing, we wanted the parties to
clarify the exact legal position. Shri Arun Jetley appearing for
the Express Newspapers . Pvt. Ltd. made a statement that the'
Express Newspapers Pvt. Ltd. sought permission to construct the
H new Expr~ss Building with an FAR of 360 for the purpose of their
press only as they intended to start a Hindi daily newspaper from
EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN; •·I 549
A
Delhi. He·clarified that the sub-letting of portions thereof in
the year 1982 to the Reserve Bank of India and the Steel Autho-
rity of India with the permission of the Court was subject to the
giving of an undertaking by the sub-lessees that they would
vacate the premises under the orders of the Court, and this was
purely an ad-interim arrangement. He further stated that the B
Express Newspapers PVt. Ltd. in these petitions do not claim to
enforce any right to sub-let any part of the n..,.' building; and,
if and when they seek to sub-let any part thereof, they would
apply to the lessor i.e. the Ministry of Works & Housing for
permission. for change of user and pay the necessary additional
ground rent and conversion charges as applicable to others in the c
ptess Enclave situate at Bahadurshah Zafar Marg.
Dr. L.M. Singhvi appearing for respondent no.5, the Land &
Development Officer made a statement that the notice issued by
the Engineer Officer dated March 10, 1980 in supersession of his
earlier notice dated March 7, 1980 was issued on behalf of the D
Land & Development Officer not because there was any breach of
the terms of the lease by the Express Newspapers Pvt. Ltd. by the
construction of a new building with an FAR of 360 together with
the existing Indian Express Building, but because of non-
submiasion of the sanctioned plan to the Land & Development
Officer and construction of the new building without the sanction E
of the lessor i.e. the Union of India. He clarified that the Land
& Development Officer is not an authority competent to question
the decision of the Ministry of Works & Housing to permit
construction of the Indian Express Building covering an FAR of
360. The whole purpose of the aforesaid notice of the Engineer
Officer dated March 10, 1980 sent on behalf of the Land &
Development Officer was to realize the amount of Rs. 54,000 which F
had been refunded on account of the portion kept green being
built up and for the purpose of checking the deviations, if any,
from the sanctioned plan.
Undoubtedty, the Express Newspapers PVt. Ltd. are liable to
pay conversion charges in terms of cl.2(7) of the lease-deed but c
the question is : haw 1111ch is the amount and what should be the
basis. On this vexed question, the submissions advanced furnish
no easy solution for us to adjudicate becauae it involves
technical expertise. According to Shri Nariman, learned counsel
for the petitioners no conversion charges are payable in respect
of the new Express Building with an increased FAR of 360 built on
the residual area of 2740 sq. yards as per the circular of the H
Govemment of India, Ministry of Works & Housing dated February
550 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
19, 1970 apart from Rs. 54,000 towards additional premium for
change of use of the leased land, which was non-buildable
becoming buildable with the reiooval of the underground
sewer-line, and additional ground rent at 2-2/1% of the
additional premium. According to him, the distinction now sought
to be drawn by respondent no.5, Land & Development Officer
ll between conversion of green area to 'newspaper' and thereafter to
commerc1al. is nowhere borne out from any notification, order or
even practice of the Land &Development Office. The only two sets
of. rates prescribed are for 'residential' and for 'connnercial'
use for newspapers. Newspaper press is, in fact, not a connnercial
use under the Master Plan. Even taking the commercialization rate
of Rs.750 per sq.yard for the residual area of 2740 sq.yards at
c the date of permission for the residual area, the amount works
out to 2740 x 1/2 • 11.02 lacs. Upon that basis, out of this, a
sum of Rs. 6.9 lacs was admittedly spent by the Express
Newspapers Pirt. Ltd. for diverting the sewer to make the land
buildable. The rate of commercialization charges was admittedly
Rs.750 per sq.yards in the press area in the Mathura Road
connnercial complex for the period from April 14, 1976 to March
IJ
31, 1979 when there was an upward revision of the said rates. Our
attention was drawn to the notification of the Government of
India dated May 15, 1974 laying down rates for the period from
April 14, 1976 (item 67 relates to the press area) and the
notification dated June 25, 1979 revising the above rates w.e.f.
April 9, 1979 (Group 3, item 5 relates to the press area).
It ~s further submitted that the fot'llllla furnished by
Dr.Singhvi, learned counsel appearing for respondent no.2, the
Lt. Governor and respondent no.5 the Land & Development Officer
for computation of conversion charges for change of user is
wholly inaccurate. It overlooks the fact that the connnercial
F charges would be only 50% of the difference between the market
value on the date of conversion and the premium already paid.
That this is the correct fornnla is disclosed by the Government
to Parliament. According to the fot'llllla, only 50% of the
difference between the current market value on the date of
conversion and the premium paid previously is payable as
G additional premium to the Government and not 100% of the said
difference, as asserted. The learned counsel submits that in view
of the stand taken by the Land & Development Officer who
evidently has mis-stated vital facts and tried to mislead the
Court the petitioners cannot hope any kind of justice at his
hands.
H
EXPRESS NEWSPAPERS v. U.O.I. [A,p, SEN, J.] 551
Shri Nariman further contends that although by reason of the A
circular of the Government of India dated February 19, 1970
whereunder the Express Newspapers PVt. Ltd. were not bound to pay
any premium for additional construction in respect of the lease
granted (even where the actual lease-deeds are no executed),
nevertheless, they are prepared to pay whatever amount that this
Court may deem fit as and by way of c0111Dercial charges in order B
to avoid another round of litigation. Alternatively, they were
prepared as they have always been and what was stated at the very
opening day of the hearing of thie case, to have this questi<>n of
quantum of conversion charges determined by an impartial and
independent person .like a retired Judge of the Supreme Court
named by this Court, to which the r3sporulents were not agreeable. c
Since there is no administrative or statutory remedy provided, he
prayed that the Court may direct payment of such amount, if any
as may be deemed ,just and proper particularly having regard to
the fact that even if the open land of 2740 sq.yards were
allotted for the first time in 1978 to a particular person for
cO!llllercial purpose, the only charge that can be levied would be D
market rate of Rs. 750 per sq.yards i.e. aggregate of Rs.2i.05
lacs. Of this olily 50%, namely, Rs.ll.02 lacs is recoverable by
the lessor i.e. the Union of India, Ministry of Works &Rousing
as per norms •
•
The Land & Development Officer had filed a note that the E
Express Newspapers Pvt. Ltd. did not end have not come to him
with sanctioned plan of the Municipal Corporation of Delhi and
were now seeking to avoid a 100netary liability arising from their
real intention of turning the new Express Building into a real
estate venture by grossing nearly a cro~e of rupees of rental per
100nth by means of this writ petition. It is stated that the
liability of the Express Newspapers PVt. Ltd. now is enormus F
because of C0111Dercial sub-letting instead of newspaper use. They
have not yet applied to the lessor and as and when they do, they
would be liable to pay conversion charges at the prevailing
rates. That would obviously come to a amount uuch larger than Rs.
50,425 tendered by the Express Newspapers Pvt. Ltd. bY cheque
dated September 21, 1982 because of adm1tted cO!llllercial sult-lett- G
ing. Be stated that the Express Newspapers Pvt. Ltd. would have
to pay a large amount of 100ney as sub-letting charges as permis-
sion for FAR of 360 though illegally given, was accorded only for
newspaper use. The Express Newspapers PVt. Ltd. therefore stand
to gain crores of rupees in rental income at the rate of Rs. 16
per oq.ft. per 100nth from the huge additional construction. If
and when permission is granted under the lease they wou',d have to H
552 SUPREME COURT REPORTS (1985] SUPP.3 s.c.R.
A mak.e at least one lumpswn payment to the lessor who owns the
land in addition to further additional ground rent. It is
accordingly stated that the Court should extend no assistance to
the Express Newspapers Pvt. Ltd. from avoiding the norms and
procedure for obtaining the sanction of the lessor i.e. by
applying to Land & Development Officer and from evading payment
B
of charges uniformly levied. Further if the original declared
'raal and genuine intention' of using the space for its newspaper
vu adhered to by the Express Newspapers PVt. Ltd. their monetary
liability would be very small.
The Lsnd & Development Officer furthe~ asserts that the
petitioners apprehended. that if their real intention of
c coa1111rcial sub-letting were to be disclosed, they would have had
to make payment and comply with the terms which they wanted to
evade and avoid. That is why instead of complying with the noticP.
of the Engineer Officer dated March 10, 1980, the petitioners
moved this Court through the present writ petitions on April l,
1980 alleging breach of their fund""""'tal rights under Art.19(1)
(a), Art. 14 and Art. 19(l)(g) of the Constitution and obtained
D
ad-interim ex-parte stay on April 7, 1980. It was clear from the
writ petitions that by the end of February, 1980 the entire
structure of the new Express Building except the small pcirtion
were completed at a cost of approximately Rs. 1.30 crores.
While accepting that the conversion charges for the new
E
Express Building build on the residual area of 2740 sq. yards
utilized for newspapers use would amount to Rs.54,000, the Land &
Development Officer hes also "without prejudice" to the rights
and contentions of the respondents tentatively worked out the
conversation charges as indicated in the following chart :
F
l. Conversion charges for changing use of 2740 sq.
yards of open area from green to buildable area for
Newspaper Press, the purpose for"Which plot nos.9 and
10 were allotted as per or:lg1na1 allollm!nl: and
Perpetual Lease.
G
Total area to be kept vacant 2740 sq. yards,
as per perpetual lease cl.2(14) = 0.566 acres
Conversion charges now to be
recovered for construction of
additional building on the open
H
area for starting a Newspaper =
EXPRESS NEWSPAPERS v. u.o.r. [A.P. SEN, J~] 553
A
Area of vacant land now
permitted to be built up x (concessional rate for
newspaper press - Rate
for lsnd · to be kept
open already charged)
B
The concessional rate applicable for newspaper use for all . press
plots in Mathura Road i.e. Rs.1.25 lacs per acre and the vacant
land in plots 9 and 10 was charged at Rs.36,000 per acre.
2. Additional ground rate (AGR)
payable per annum on this c
account ~ Conversion charges )
) x 2-1/2%
for green space )
Arrears of A.G.R. from 1978 to 1983 (five years) plus interest.
D
Dr. Singhvi appearing for respondent no.5, Land & Develop-
ment Officer submits that unless the Express Newspapers Pvt. Ltd.
furnished the Municipal Corporation of Delhi the sanctioned plans
asked for in the impugned notice, it is not possible towork out
the conversion charges and other ch:rrges and submi't the same for
approval to the Ministry of Works & Housing snd after receipt of E
their approval to intimate the smre to the lessee i.e. the
Express Newspapers Pvt. Ltd. According to the learned counsel a
rough estimate of the charges payable by the Express Newspapers
Pvt. Ltd. on the basis of the date available with the Municipal
Corporation of Delhi was arrived at as given in the chart given
above, if commercial sub-letting. were to he permitted. On the
basis of the calculations therein the estimated conversion F
charges come to approximately Rs.3.30 crores. The learned ~ounsel
also stated that on the admitted position the only rental@ 16.5
per sq.ft. per month collected by the Express Newspapers Pvt.Ltd.
would be Rs. one crore per year approximately.
We cannot possibly in these proceedings under Art.32 under- G
take an adjudication of this kind but I am quite clear that
respondent no.5 the Land & Development Officer having already
indicated his mind that the amount of conversion charges would be
more than Rs. 3.30 crores, it would not subaerve the interests of
justice to leave the adjudication of a question of such magnitude
to the arbitrary decision of the Land & Development Officer who
is a minor functionary of the Ministry of Works & Housing. We H
were infol"!Led by Shri Sinha, learned counsel for respondent no.l,
554 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
the Union of India that the Central Government were contemplating
to undertake a legislation and to provide for a forum for
adjudication of such disputes. As stated earlier, we had
suggested that the dispute as to the quantum of conversion
charges payable be referred to the arbitration of an impartial
II person like a retired Judge of the Supreioo Court of India, but
this was not acceptable to the respondents. The Union of India
may in the contemplated legislation provide for the setting up of
a tribunal with a right of appeal, may be to the District Judge
or the High Court, to the aggrieved party. If such a course is
not feasible, the only other alternative for the lessor i.e. the
Union of India, Ministry of Works &Housing would be to realize
c the conversion charges and additional ground. rent, whatever be
recoverable, by a duly constituted suit. Till then I would
restrain the Union of Ind:La, Ministry of Works & Housing and the
Land & Development Officer or any other officer of the Ministry
from taking any steps for termination of the lease held by
petitioner no.l, Express Newspapers Pvt. Ltd. for non-payment of
conversion charges or otherwise for the construction of the
ll Express Building till the final determination of such amount to
be realized by a statutory tribunal or by a Civil Court.
For these reasons, I would, therefore, for my part, quash
the impugned notices.
E
The result therefore is that these petititons under Art. 32
of the Constitution llllSt succeed and are allowed with costs. The
notice issued by the Engineer Officer, Land & Development Office
dated March 10, 1980 purporting to act on behalf of the
Government of India, Ministry of Works & Housing requiring the
Express Newspapers Pvt. Ltd. to show cause why the lessor i.e.
F the Union of India, Ministry of Works & Housing should not re-
enter upon and take possession of plots nos. 9 and 10,
llahadurshah Zafar Marg, New Delhi together with the Express Buil-
ding built thereon, under cl.5 of the indenture of lease dated
March 17, 1958 for alleged breaches of els. 2(5) and 2(14)
thereof, and the earlier notice dated March 1, 1980 issued by the
G Zonal Engineer (Building), City Zone, Municipal Corporation,
Delhi requiring them to show cause why the aforesaid buildings
should not be demolished under as. 343 and 344 of the Delhi Muni-
cipal Corporation Act, 1957, are quashed. It is declared that the
construction of the new Express Building on the residual portion
of 2740 square yards on the western side of plots nos. 9 and 10,
I! llahadurshah Zafar Marg with an increased FAR of 360 with a double
baseioont for installation of a printing press for publication of
'
EXPRESS NEWSPAPERS v. u.o.r. [VENKATARAMIAH, J.] 555
a Hindi daily newspaper was with the permission of the lessor A
i.e. the Union of India, Ministry of Works &Housing and did not
constitute a breach uf clauses 2(5) and 2(14) of the lease-deed.
It is directed that the respondents, particularly the Union
of India, Ministry of Works & Housing, the ·Delhi Development
Authority, and the Municipal Corporation of Delhi, shall forbear B
from giving effect to the impugned notices in the manner
threatened or in any other manner whatsoever. It is further
directed that the Union of India, Ministry of Worka & Housing
shall enforce its claim for recovery of conversion charges by a
duly constituted suit or by making a law prescribing a forum for
adjudication of its claim. It is also directed that the Municipal c
Corporation of Delhi shall compound the construction of the
double basement of the new Express Building, the excess basement
beyond the plinth limit and the underground passage on payment of
the usual composition fee. ·
The petitioners shall be entitled to recover their costs D
from respondents nos. 1 and 2.
VENKATARAMIAH, J. I have gone through the judgment which my
learned Brother Justice A.P. Sen has just now deliverd. l agree
that Shri Jagmohan, Lt. Governor of Delhi, the second respondent
herein, has taken undue interest in getting the impugned notices E
issued to the Ist petitioner and his action which has come up for
consideration .in this case is not consistent with the normal
standards of administration. l am satisfied that the said notices
were issued by the authorities concerned under the pressure of
the second respondent. The question whether the notices should be
issued or not does not appear to have been conisdered indepen-
dently by the concerend administrative authorities before issuing F
them. Shri Lal Narain Sinha, the learned counael for the Union
Government has submitted that the Lt. Governor was a total
stranger to the lease and had no sort of right or power under the
lease deed to set in motion any action againat the lessees. He
has further sulxnitted that the land leased under the lease deed
being nazul land is exclusively owned by the Union Government and G
the powers delegated to the former Chief Commissioner of Delhi
under the lease deed were no longer exercis'!ble by the present
Lt. Governor of Delhi. Shri Lal Narain Sinha, learned counsel for
the Union of India, specifically stated that on the date on which
action was initiated in this case by the Lt. Governor against the
petitioners, the Lt. Governor had acted without authority or
H
556 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A
power. The clam of the Lt. Governor that he was the agent of the
Union Government in regard to the lease in question and that he
could take the steps he had taken under the lease thus stands
repudiated. It is unfortunate that the Lt. Governor persisted in
justifying his action even after the learned counsel for the
Union of India had disowned all the actions of the Lt. Governor.
The Lt. Governor failed to make a distinction in this case
between the power with respect to the subject 'Property of the
Union and the revenue therefrom' which is in Entry 32 of List I
of the Seventh Schedule to the Constitution and the general
powers of administration entrusted to him under Article 239 of
the Constitution as the Ad!tinistrator of the Union Territory of
Delhi. The property in question is a part of the estate of the
c Central Government. Mere nearness to the seat of the Central
Government does not clothe the Lt. Governor of Delhi with any
power in respect of the property of the Central Government. He
can dishcarge only those powers which are entrusted to him by the
Constitution and the laws.
It is also not correct to claim that all the powers of the
D
former Chief Commissioner of Delhi have devolved on the Lt.
Governor and continue to vest in him. It is surprising that the
Land and Development office which is under the Central
Government, functioned in this case as an office under the Lt.
Governor of the Union Territory of Delhi and even in the conduct
of this case it allowed itself to be controlled and guided by the
Lt. Governor till a very late stage when Shri Lal Narain Sinha,
learned counsel for the Union of India took a definite stand and
submitted that the Lt. Governor had no voice in the matter.
The material available in this case is sufficient to hold
that che imilugned notices suffer from arbitrariness and non-
F
application of mind. They are violative of Article 14 of the
Constitution. Hence they are liable to be quashed. It is not
necessary therefore to express any opinion on the contentions
based on Article 19(l}(a} of the Constitution.
The rest of the questions relate truly to the civil rights
G of the parties flowing from the lease deed. Those questions
cannot be effectively disposed of in this petition under Article
32 of the Constitution. The questions arising out of the lease,
such as, whether there has been breach of the covenants under the
lease, whether the lease can be forfeited, whether relief against
forfeiture can be granted etc. are foreign to the scope of
H
Article 32 of the Constitution. They cannot be decided just on
EXPRESS NEwSPAPrns v. u.o.r. rms&A,-:7.] 557
affidavits. lhese are matters which should be tried in a regular A
civil proceeding. One should remember that the property belongs
to the Union of India and the rights in it cannot be bartered
away in accordance with the sweet will of an Officer or a
Minister or a Lt. Governor but they should be dealt with in
accordance with law. At the same time a person who has acquired
rights in sucq property canot also be deprived ot them except in B
accordance with law. 1be stakes in this case are very high for
both the parties and neither of them can take law into his own
hands.
I, therefore, quash the impugned notices and tlirect the
r.espondents not to take any further action against the C
petitioners pursuant to them. I express no opinion on the rights
of the parties under the lease and all other questions argued in
this case. They are left open to be decided in an appropriate
proceeding. It is, however, open to both the parties if they are
so advised to take such fresh action as may be open to them in
law on the basis of all the relevant facts including those which L
existed before the impugned notke dated March 10, 1980 was
issued by the Engineer Officer of the Land and Development Office
to vindicate their respective rights in accordance with law. This
order is made witout prejudice to the right of the Union Govern-
ment to cOID.pound the breaches, if any, committed by the lessee
and the regularise the lease by receiving adequate premium there- E
fore from the lessee, if it is permissible to do so.
It is open to the Delhi Municipal Corporation to examine
the matter afresh independently and to take such action that may
be open to it in accordance with law. The Delhi Municipal
Corporation may, if so advised, instead of taking any further
action against the petition~rs permit the petitioners to compound F
the breaches, if any, conmitted by them in accordance with law.
I allow the petitions accordingly. The costs of the peti-
tioner No. 1 shall be paid by the Union Government and the Lt.
Governor of Delhi· There shall· be no order as to costs agS.inst
the other respondents. The other petitioners shall bear their G
costs.
MISRA, J. I have perused the judgment prepared by brother
Justice A.P. Sen as also the judgment of brother Justice E.S.
Venkataram'iah. While I agree that the impugned notices threaten-
ing r~-entry and demolition of the construction are invalid and
have no legal value and must be quashed for reasons detailed in R
558 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
the two judgments, which I do not propose to repeat over again, I
A am of the view that the other questions involved in the case are
based upon contractual obligations between the parties. These
questions can be satisfactorily and effectively dealt with in a
property instituted proceeding or suit and not by a writ petition
on the basis of affidavits which are so discrepant and contra-
dictory in this case.
B
The right to the land and to consturct buildings thereon
for running a business is not derived from Article 19(l)(a) or
19(l)(g) of the Constttution but springs from terms of contract
between the parties regulated by other laws governing the
subject, viz., the Delhi Development Act, 1957, the Master Plan,
the Zonal Development Plan framed under the Delhi Municipal
c Corporation Act and the Delhi Municipal Bye-laws, 1959 irrespec-
tive of the purpose for which the buildings are constructed.
Whether there has been a breach of the contract of lease or
whether there has been a breach of the other statutes regulating
the construction of buildings are the questions which can be
properly decided by taking detailed evidence invloving exami-
nation and cross-examination of witnesses.
D
I accordingly allow the writ petitions with costs against
the Unior Government and the Lt. Governor of Delhi and quash the
impugned notices.
REVIEW PETITION NO. 670 OF 1985
E
We have gone through the application for review and the
connected papers. The application is supported by an affidavit by
the petitioner Jagmohan, former Lieutenant-Governor of Delhi who
F was respondent no.2 in Writ Petitions Nos. 535-539 of 1980,
decided on October 7, 1985. He seeks review of the judgment
delivered by this Court principally on the ground that there is
an error apparent on the face of the record as the judgment turns
on certain arguments and statements atlributed to Shri L.N.
Sinha, learned counsel appearing for respondent no.1, the Union
G of India and to Shri M.C. Bhandare, learned counsel appearing for
respondent no.3, Municipal Corporation of Delhi. The petitioner
Jagmohan avers in the affidavit that the contents of Paras 1 to 3
are true to his knowledge and based on information derived from
the counsel appearing in the case which he believes to be true.
Along with the application for review he has annexed a letter
H dated October 12, 1985 addressed by Shri P.P.Singh who was
assisting Shri L.~.Sinha asserting that the learned counsel had
EXPRESS NEWSPAPERS V' u.o.r. [SEN, J.] 559
never advanced.the arguments attributed to him the judgment and a A
letter of Shri M.C. Bhandare, dated October 13," 1985 addressed to
Shri B.P. Maheshwari, Advocate-on-Record of respondent no.3,
Municipal Corporation of Delhi denying that he ever made the
statement attributed to him at pp. 189-190 of the judgment
delivered by one of us (Sen, J). In the first letter, Shri p,p;
Singh writes to say : I!
"There are certain statements in the judgment which
are attributed to Shri Sinha having made in the course
of his arguments which do not seem to be correct as
having been made by him. I have discussed the matter
with Mr. Sinha and he agrees with me that it is not C
correct that he made the following statements during
his course of arguments :
(a) ''He has further submitted that the land leased
under the lease deed being nazul land is exclusively
owned by the Union Government and the powers delegated ll
to the former Chief Comnission of Delhi under the
lease deed were no longer exercisably by the present
Lt. Governor of Delhi."
(b) ............ on the date on which the action.was
initiated in this case by the Lt. Governor against the E
petitioner the Lt. Governor had acted without autho-
rity or power."
(c) That "the Learned Counsel for the Union of India
had di,sowned all the actions of the I,t. Governor."
(d) That the Learned Counsel for Respondent NQ.l i.e. F
the Union of India "contended that Lt. Governor, as an
Administrator had no function as the Lessor or its
delegatee"
(e) That "the Lt. Governor could not usurp the powers
and functions of the Union of India in relation to the G
property of the Union and therefore had no functions
in relation to the lease in question"
(f) That "the Central Government were contemplating to
undertake a legislation and to provide for a Forum for
adjudication of such disputes
H
(Shri Sinha did inform the Court that he had advised
the Central Government to undertake a legislation for
560 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A empowering the Government to condone the violations of
the nature involved in the present case in public
interest)''
••••••• It is i9correct as stated at pages 90-91 of the
Judgment that the Learned Counsel for the Union of
B India conceded that the Impugned Notice was invalid
and had no legal effect."
In the second lelter Shri M.C. Bhandare writes to Shri B.P.
Maheshwari, and states
"Your clients, the Municipal Corporation of Delhi,
c have acquired from you as to how Bis LoDdship Mr.
Justice A.P. Sen, in his judgment has made the
following observations
"Shri M.C. Bhandare, learned counsel appearing for
respondent nos. 3 & 4, Municipal Corporation of Delhi
and Zonal Engineer (Building), City Zone, Municipal
D Corporation, Delhi is fair enough to state that if the
Express Newspapers Pvt. Ltd., were to make an appli-
cation for modification of the sanctioned plan
pertaining to the new building with respect to the
basement and the working platform which according to
the Municipal Corporation constitute double basements
E and the inter-connecting underground passage connect-
ing the existing Indian Express Building, the same
shall be considered having regard to consideration of
ju•tice and the needs of the peti~ioners and also
taking into consideration that the new building has
been constructed for installing a printing press and
F that the press so installed cannot function without
the working platform 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 Express Building. He further states
G that the Nunicipal Corporation will compound the
deviation which is minimum on payment of such composi-
tion fee as is payable under the bye-laws.
Learned counsel states that this shall not be treated
as a precedent for others."
H
(pages 189-190 of the Judgn.ent)"
EXPRESS NEWSPAPERS v. U.O.l. [SEN, J.] 561
After setting out what he mentions were his submissions, h~ says:
A
".•., •••• I never made the statement attributed to me.
However, 1 did say that any cause shown by the
petitioners would be considered in accordance with
law. 1 may categorically state that there was no
statement on my part that the deviation were minillJ.Jlll
or that the Municipal Corporation ' of Delhi would II
compound the deviations on payment of such composition
fee as was payable und.er the bye-laws. Thia ass!Jmea
that the composition is permissible under• the
bye-laws, which was a disputed matter. 1 did not state
that this should not be treated as a precedent for
others. 1 never made an argument whereby 1 contended c
that there would be a diecriminstory treatment either
in favour or against the Indian Express."
He thus categorically asserts that there was no statement on bis
part that the deviations were minimal or that the Municipal
Corporation of Delhi would compound the deviation on payment of D
such composition fee as payable under the !lye-laws. Further, he
denies that he ever stated that composition of the deviations,
according to bis statement, by the Municipal Corporation of Delhi
should not be treated as a precedent for others.
It is unfortunate that the two senior counsel have chosen E
this devious and, indeed, curious method of disowning arguments
advanced by them. !he proper thing for them to do would have been
to file affidavits and either file petitions for review or have
the matters listed, with the permission of the Court, for being
mentioned. Instead, the ~ operandi adopted was to address
letters to the Advocates-on-Record who in turn have, for reasons
best known to them, passea on the letters to the petitioner Jag- F
mohan who was not their client at all. Advance copies of this
petition laying emphasis on the aforesaid two letters of counsel
appearing for other parties which, we do not doubt have the
effect of scandalizing the Court, appear to have been given to
the press for publication. We deprecate the conduct of those
involved in thie unsavoury event. We feel greatly concerned that G
the advocates of this Court who are not mere pleaders for parties
but officers of the Court should stoop to such blameworthy
tactics, unworthy of the high traditions of the noble and learned
profession to which they belong. We feel grieved and not a little
perturbed at all this.
H
Every word written in the judgment for111.11ating the arguments
advanced by Shri L.N. Sinha, learned counsel for respondent no.l,
562 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A Union of India is taken from our minute-books in which we noted
the arg!Dllents of counsel almost verbatim during the course of
'hearing particulary because the matter involved questions of
grave public importance. It is therefore highly improper for
Shri p,p, Singh who was assisting Shri L.N. Sinha to suggest in
his letter dated October 12, 1985 that the argument attributed to
B learned counsel for respondent no .1 in the judgment were never
advanced by him. We cannot possibly act on any correspondence
that passed between the petitioner Jagmohan and Shri p,p, Singh,
Advocate-on-Record of respondent no.l., Union of India or that
between Shri M.C. Bhandare, and Shri B.P, Maheshwari, Advocate-
on-Record for respondent no.3, Municipal Corporation of Delhi.
C As regards the allegation made by Shri M.c. Bh'andare in his
letter dated October 13, 1985 addressed to Shri B.F. Maheshwari
it is enough to mention that we recorded three statements made by
counsel during the course of hearing. We distinctly remember that
on September 14, 19o3 during the course of hearing we required
learned counsel appearing for the parties to clarify the legal
position. Two of the statements were recorded on September 14
D 1983, one by Dr. L.M. Singhvi appearing for respondent No. 2, Lt.
Governor of Delhi and respondent· No. 5, Land & Development
Officer as to the amount of conversion charges payable, and the
other by Shri Arun Jaitley appearing for the petitioners regard-
ing the willingness of the Express Newspapers Fvt. Ltd. to pay
the conversion charges. The third staten.ent by Shri M.C. Bhandare
E learned counsel for respondent No. 3, Municipal Corporation of
Delhi was recorded on September 15, 1983 signifying the willing-
ness of the Municipal Corporation of Delhi to compound the devia-
tions as they were minimal on payment of the usual composition
fee. We have satisfied ourselves by perusing the ~dnutes of the
Court proceedings as recorded by the Court ~iaster on September 14
F and 15, 1983 that the statements of all the three counsel were
recorded in the minutes. We have no doubt that the statements
were shown to all the counsel.
The typescript of the statement made by Shri M.C. Bhandare
as recorded in the Minutes of the Court proceedings by the Court
G Master on September 15, 1983 reads as follows :
""Shri Bhandare appearing for the Municipal Corporation
is fair enough to say that the petitioner would make
an application for modification of the sanctioned
plan with respect to the basement and the working
R platform and the inter-connecting underground passage
EXPRESS NEWSPAPERS v. U,0,1. [SEN, J,] 563
the same shall be considered having regard to the A
considearation of justice and the needs and also
taking into consideration that the building has been
constructed for installing a printing press and that
the press cannot function without the working platform
which is already constructed. The :!.earned counsel
states that this shall not be treated as precedent for B
others. The Municipal Corporation will compound the
deviation which is minimum on payment of whatever"'
composition fee. 11
The statement attributed to Shri M.C. Bhandare learned
counsel for respondent No. 3 at pp.189-190 of the judgment is C
virtually a verbatim reproduction of the correct draft prepared
from the rough draft of the statement actually made by him in
Court subject to certain grammatical variations signifying the
willingness of the Municipal Corporation of Delhi to compound the
deviations as they were minimal on payment of the usual
composition fee. D
We are constrained to observed that the review application
is lacking in bona £ides, based on false averments and
constitutes a flagrant abuse of the process of the Court. The
allegations contained in the aforesaid two letters are wholly
inaccurate and totally false. Such attempts to question the E
sanctity of the Court proceedings unless ruthlessly curbed will
have the tendentious effect of making fearless dispensation of
justice by the Courts in India almost impossible.
We had been extremely indulgent with the petitioner
Jagmohan, who was respondent No. 2 in the aforesaid Writ
Petitions. ln the joint counter filed by him on behalf of the F
respondents he made several statements which were far from
accurate but we refrained from taking any action. 'Th.is crude
attempt on his part by filing this review application on totally
false allegations is an attempt to subvert the course of justice.
His conduct in casting serious aspersions on the Court b)
suggesting in paragraph 10 that the delay in the pronouncement of G
the judgment was responsible for 'facts stated and submissions
made on behalf of the respondent, having a decisive bearing on
the case' escaping ' the attention of their Lordships' virtually
BIOOunts to gross contempt of Court. We cannot also help in
observing that there has in this case been lamentably complete
lack of candour and want of probity on the part of some of the
counsel in making factually incorrect statements and thereby H
casting aspersions on the Court.
564 SUPREME COURT REPORTS [1985] SUPP.3 s.c.a.
A The review application is accordingly dismissed.
Nothing that we have said will affect the separate judgments
delivered by each one of us.
We direct the Registrar of this Court to keep the documents
B enumerated hereinafter in sealed covers under his custody,
..namely:
1. The minute-book of the Court proceedings maintained
by the Court Master, dated September 14 and 15, 1983.
c 2. The original draft typescripts of the aforesaid
statements prepared by the Court Master on September
14 and 15, 1983.
3. The shorthand notebook of the Private Secretary to
D Sen, J. dated September 15, 1983 from which the
correct drafts of the statements actually made by the
counsel on September 14 and 15, 1983 were prepared.
4. The fair drafts prepared by the Private Secretary
of the said statements on September 15, 1983.
The Registrar shall also keep the original records of Writ
PetitiOllll Nos. 535-539 of 1980 in a separate sealed cover under
his custody.
F
M.L.A. Petitions allowed and Review Petition dismissed.
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