TaxTMI 
TaxTMI 
1985 (10) TMI 275
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.... Pvt. Ltd. Of which petitioner no.3 Ram Nath Goenka is the Chairman of the Board of Directors. Petitioner no.4 Nihal Singh was the then 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.1 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), no.5 the Land & Development 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 Government of India, Ministry of Works & Housing, New Delhi. The said notice required petitioner no.1, the Express Newspapers Pvt ., 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 cls. 2(14 and 2(5) of the lease-dee....
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....th 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, Bahadurshah Zafar Marg, New Delhi with the Express Buildings built thereon. The Lt. Governor asserts that he has the power and authority to administer the properties the Union of India in the Union Territory of Delhi. The further question is whether the 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 municipal bye-laws, 1959 made under the Delhi Municipal Corporation Act, 1957 and therefore the lessor i.e. the Union of India had 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 premises 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 Municipal Co....
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.... and connected papers. 4. The Commissioner of the MCD had been separately adviced to take immediate 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 holding of the press conference was broadcast over the All India Radio within an hour and within two hours 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. On the same day i.e. On March 1, 1980, although the relevant files had been removed from his office, the Zonal Engineer (buildings), City Zone, Municipal Corporation served a notice on petitioner no.1 the Express Newspapers Pvt. Ltd. to show cause why action should not be taken for demolition of the Express Buildings under 88. 343 and 344 of the Delhi Municipal Corporation Act, 1957. It reads as under : Number 79/B/ua/cz/80XXIII Dated 1.3.1980. You are hereby informed that on your property situated at Bahadurshah Zafar Marg bearing nu....
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....he files of the Corporation were summoned by respondent no.2 before the press conference on March 1, 1980, the files of the Ministry of Works & Housing were summoned by him in the first week of March 1980. It is admitted by the Ministry of Works & 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 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. (11) 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, 1958 and not under cl. XIX of the agreement for lease of 1954. On March 10,1980, the Engineer Officer in the Land & Development Office issued a notice in supersession of the said notice dated March 7, 1980 in these terms : ....
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.... It is clear that there had been no application of mind by the Engineer Officer in issuing the show cause notice. The recital of these events clearly shows that respondent 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 printing press and the entire administration was geared into action with lightning speed 80 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 Three-Member Committee only three days to examine questions which, if they were properly scrutinized, would require inspection of the records from the year 1949 onwards of at least six agencies viz. Ministry of Works & Housing, Land & Development Office in the Ministry of Works & Housing, New Delhi Municipal Committee, Municipal Corporation of Delhi, Delhi Water supply and Sewage Disposal Undertaking and the Union of India. He not only constituted a committee of subordinates to go into the affairs of the Union of India, ....
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....al 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. 1 to 10 known as the Press Enclave as a commercial complex for allotment to the press viz. to various newspapers like the Indian Express, h Times of India, Patriot, National Herald etc. These other 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.1 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 Government 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: Execution of fresh lease agreement dated November 19,1957. While the preliminary work of construction was started by the Express Newspapers Pvt.....
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.... necessary instructions had been issued to the Chief Commissioner of Delhi in that behalf with a request that the Express Newspapers Pvt. Ltd. should get in touch with the Land & Development Office, New Delhi for taking k 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. 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 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 be....
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....ccommodation of 1,50,000 (one ant a half lac) sq.ft. in the said Express Newspaper Building for general office use commercial or otherwise, excluding commercial ventures like hotel, cinema, restaurant etc. and subject to the other provisions and conditions mentioned in clause 7 of the said lease. Provided further that the lessee shall all along continue to use at least 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. And that : And this indenture further witnesseth that in consideration of the premises, the lessee doth hereby covenant to the that the lessee will pay an additional ground rent of Rs. 5746.88p. per annum as and from the 15th day of January 1960 over and above the ground rent reserved under the said principal lease to be paid by equal half-yearly payments from the 15th day of July each year as provided in the said principal lease-deed. The effect was that the lessor i.e. the Union of India, M of Works & Housing permitted permanent change of user of the existing Express Building by the Express Newspapers Pvt. Ltd. in resp....
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....ilding on the entire area of plots nos. 9 and 10. They continued to recognize the right of the Express Newspapers Pvt. Ltd. to revert to the terms and conditions thereof as soon as the obstacle to further construction thereto that had been discovered, unknown to the parties that there was an underground sewage drain running through plots nos. 9 and 10 diagonally, was removed. In 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 : 1. The Union of India being the lessor left with the Express Newspapers Pvt. Ltd. the area to the west of the drain on a reduced premium because it had to be kept as an open space for protection of the drain. And 2. While nazul plots that are to be left open are valued at Rs. 4840 per acre and ground rent is assessed accordingly, the area to the west of the drain was assessed at Rs. 36,000 per acre implying thereby that it was not an area to be kept vacant in perpetuity. Constitutional Instruments relating to property of the Union in the Union Territory of Delhi. On November 3, 1958 the ....
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....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 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 1, 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. The relevant Entry reads : 7. In the case of Land & Development Office : (i) All contracts and assurances of property relating to matters falling within the jurisdiction of Land & Development Officer; (ii) all contracts, deeds 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; (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 that 'notwithstanding ....
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.... Development Authority under s.7 of the Delhi Development Act. The Master Plan makes specific regulations for commercial areas and especially for already built-up commercial areas i.e. walled city of Old Delhi. But the press area on the Mathura Road Commercial Complex although specified as a commercial area is not listed in the list of already built-up commercial areas which relate to the walled city of Old Delhi. On November 26, 1956 the Central Government approved the Zonal Development Plan for D-II area prepared by the Delhi Development Authority under 8.8 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 Express Building with an incresed FAR of 360 with a double basement was in conformity with cls. 2(5) and 2(14) 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 throughout guided by the officials of the Ministry particularly the Secretary, Ministry of Works & Hou....
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....truct on the open space admeasuring 2740 sq.yards on the western side of plots nos 8. 9 and 10 indicating the permissible built-up area as also the terms on which the additional space could be 80 utilized. A copy of the letter was marked to the Land & Development 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 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 Development while the Land Division deals with matters relating to 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 permissible FAR and the grant of permission to the lessor under the lease and the question of ....
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....ght. A copy of the letter was endorsed to the Minister. On December 30, 1977 the Chief 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 Deputy Secretary, Ministry of Works & Housing that the Municipal Corporation of Delhi i.e. the Delhi Water supply & Sewage Disposal Undertaking had indicated that the underground drain could be shifted 80 that it would run outside the lease hold premises and therefore there should be no objection to the construction of the new Express Building, and requested the 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 Development Authority to examine the question. On Janu....
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....s & 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 upto 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 necessary action in the matter. Copies of this letter were endorsed to the Town & Country Planning Organization and Officer Inchrage, Master Plan in the Delhi Development Authority. The Additional Secretary, (Master Plan), Delhi Development Authority however maintained that the FAR permissible for the press area was only 300 with 80 ground coverage, 70 on the first floor and 50 on the second, third 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 informed him that an order allowing the petitioners to build ....
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....tick 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 building bye-laws. He accordingly suggested that FAR 300 might be 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 Vice- Chairman of the decision of the government restricting the FAR to 300- It appears that the case was revived on July 14, 1978 when Sikandar Bakht, Minister for Works & Housing wanted to know after some representative of Express Newspapers Pvt. Ltd. had visited his office, if the press area and the FAR therefor were mentioned 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....
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....AR. In that case the existing building line of the adjoining plots shall have to be maintained. The basement 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 is for other buildings in this line. However, adequate parking facility shall have to be provided in the open area which may be so planned to make usable for parking purposes. On the detailed examination of the lay-out plan, he observed that as per FAR of 360 construction was permitted on 1,84,886.07 sq.feet as against the existing FAR covering an area of 1,29,028 sq.feet i.e. the overall ground coverage now permitted was 13.81% i.e. 379 4.92 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' was enclosed. On November 17, 1978, the Vice-Chairman, Delhi Development Authority addressed a letter to the Ministry of Works Housing recommending extension of FAR from 300 to 360. On November 24, 1978 the Government of India, Ministry of Works....
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....al 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 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. 2. The construction of the new Express Building with an increased FAR of 36 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 Works & Housing 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 II, Part A, 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 b....
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....sted 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 for the press area in the Bahadurshah Zafar Marg. In short, the submission is that all that the then Minister for Works & Housing did was to restore to the petitioners the right that they acquired under the perpetual lease dated March 17, 1958 i.e.. to be treated alike all other plot holders in that area and a denial of such equal terms would be opposed to the principles of equality besides being violative of Art. 14 of the Constitution. 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 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 i....
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....itory of Delhi, and that the Lieutenant Governor is not a successor of the Chief Commissioner of Delhi. There was no notification issued by the President under Art. 239(1) of the Constitution for the conferral of any power on the Lieutenant-Governor to administer 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 Commissioner with power to administer the property of the union. There 18, admittedly, no such notification issued by the President under Art. 239(1) vesting either the Chief Commissioner of Delhi or the Lieutenant- Governor with any such power. 8. In any event, it is inconceivable that after October 1, 1959 when the administrative control over the Land & Development Officer was transferred from the Delhi 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 authority to act for the President with regard to any contract, grant or assurance....
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....forfeiture of the lease as contemplated by cl. 5 and 6 of the lease-deed, based as it was on non-existent ground. Although the lease-deed permits remedy of any breach of any of the terms thereof, the opportunity to effect such a remedy has not been, and as indeed it is clear, it is not intended to be, granted to the petitioners and instead, there is a threat of re-entry upon the leasehold premises upon forfeiture of the lease. II.Respondents Case 1. Respondent No.2 Jagmohan, Lt. Governor of Delhi 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 Commissioner/Lt. Governor of Delhi'; that the demise land is nazul land vested in the President of India, for the management, control and disposal of which the Land 6 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 Ministry of Works,....
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.... the petitioners. The show cause notice by respondent no.5 was issued in exercise of powers under cl.4 of the perpetual lease-deed dated March 17, 1958 for violation of cl. 2(5), 2(9) etc. As regards the impugned show cause notice issued by the Zonal Engineer (Building), City Zone, Municipal Corporation of Delhi, lt was asserted that the same had been 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 cause notices but asserted that being the Lt. Governor of Delhi, he was responsible for the administration of 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 the Enquiry Committee under the Commission 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 in....
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....d by the lease agreement dated May 26, 1954 which was modified and superseded by the subsequent lease agreement dated November 19, 1957, since this had also been substituted by the registered perpetual lease dated March 17, 1958 which alone, according to him, governed the relationship effectively and legally between the Union of India and the Lt. Governor of Delhi on the one hand and the Express Newspaper Pvt. Ltd. on the other. It was denied that the Deputy Secretary, Ministry of Works & housing Government of India had any jurisdiction or authority to permit diversion of the sewer line as he was not authorized to represent the Central Government for the purpose of administration of the lease and, therefore, any attempt on the part of the Express Newspapers Pvt. Ltd. to rely upon the agreement of 1954 or on the subsequent agreement of 1957 to justify the action of the municipal Corporation of Delhi in shifting the sewer line beyond the leasehold permises was an exercise in futility. It was asserted that cl. 2(5) of the perpetual lease could not be availed of by the Express Newspapers Pvt. Ltd. in the absence of a permission granted by representative of the lessor, meaning the Chief....
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....grant of permission by the 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 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 competent authority and obtain prior approval of the lessor before commencing construction and the petitioners knew who the competent authority was The petitioners did not make any application under any of the terms of the lease-deed before co missing the breach of the lease-deed.' (Emphasis supplied) 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: "It is further submitted that for any breach of clauses (3),(9) and (10) of clause 2 of the lease deed, it was for t`he Chief Commissioner of Delhi to ....
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....o para 30(j), it is denied that the actions taken by the Ministry of Works & Housing and the Delhi Development Authority constituted a 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 residual area of plots nos. 9 and 10 only in accordance with the terms and conditions 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 constructions/additions in plots nos. 9 and 10." 8. It will be seen that the points ought to be made out by respondents no.2 in his counter- affidavit are : (a) At present the perpetual lease-deed dated March 18, 1958 governs the relationship effectively between the Union of India and the Lt. Governor on the one hand and the petitioners on the other i.e. the relations between the parties. (b) The transfer of administrative control of the L....
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....te that under the terms of the lease deed of 1958, previous consent of either the President of India or the chief Commissioner (Lt. 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) the Ministry of Works & Housing did not represent the lessor or the chief commissioner. 10. It is somewhat strange that Land & Development Officer, who is the last functionary in the Ministry of Works & Housing should challenge the very authority and power of the Ministry of Works & Housing to administer the lease on behalf of the President of India. He has also averred in para 5 : "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 & Development Officer is not a functionary under the Ministry of Works & Housing . He officer appointed on behalf 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 27....
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....er 4, 1982 of the Union of India speaking through the voice of learned counsel for respondent no.2 was more than we could permit. We sent for Shri L.N. Sinha, the learned Attorney General and he rightly objected to anyone speaking on behalf of the Union of India. We directed the learned Attorney General to appear and assist the Court. 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 various constitutional issues and other questions of great public importance with their usual industry and have supplemented their arguments by filing written submissions. Learned counsel for respondent no .1 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 offici....
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....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 November 4, 1982, we sent for Shri L.N. Sinha, the then Attorney-general and drew his attention to the averments made by respondents no. 7 in the fresh affidavit alleging that the orders passed by the then Minister for Works & Housing were illegal, improper & irregular. We felt that it was highly improper for respondent no.2 to have made such extreme allegations against the then Minister for Works & Housing and against the previous Government in power. Accordingly, we called upon respondent no.1 Union of India to clarify its stand with regard to the following aspects: 1. The authority of respondent no.2 to make allegations of fraud , misuse of powers and misdemeanors against the functionaries of the Union of India including the Minister, Works & Housing. 2. The stand of respondent no.1, 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 India to the allegations of mala fides made by the petitioners against the Government of In....
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.... no.2 be read as part and parcel of this counter-affidavit. I am advised to categorically deny any allegation of mala fides, design or animosity on the part of respondent no.1 as alleged. The respondents have also placed on record two affidavits of M.N. Buch and H.R. Ailawadi, both of whom became Vice-Chairmen, Delhi Development Authority. Ailawadi in his affidavit avers that the demised land is a nazul land which vested in the President of India. For management, control and disposal of such lands, Land & Development Office in the Department of Local Self Government was created. As a matter of fiscal policy, the administrative control of the Land & Development Office, Delhi was transferred from the Delhi Administration to the Ministry of Works, Housing & Supply w.e.f. October 1, 1959. He asserts that this transfer was on administration and fiscal grounds and did not divest the Chief Commissioner of the powers given to him by the parties under the lease as the representative of the President of India. He further avers that the sewer line, according to the terms of the lease, could not be diverted without the consent of the Chief Commissioner (Lt.Governor). As regards the sanct....
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.... to the Master Plan and A 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% Second " 50% Third " 50% Fourth " 50% He then refers to the amended rule dated 24.12.76 which prescribed for all commercially developed areas, including offices, coverage of 25% and asserts that the press area is 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. Further he states that for commercial areas, parking has to be done within the plots and within the covered area. In the present case,....
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....at nowhere in any of the communications had he stated that any building plan 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 Development Authority nor he as the Vice-Chairman had anything to do with the sanction/approval of the building plans in the instant case . It is rather pertinent to observe that in his counter affidavit Buch does not explain the implications of his specific order as the Vice-Chairman dated October 21, 1978 for amalgamation of plots nos.9 and 10 and permitting construction of the new Express Building with an increased FAR of 360 with a double basement for installation of the printing press, directing that it was not merely a communication from the Vice-Chairman, Delhi Development Authority to the Ministry of Works & Housing but per se it was an order passed by M.N. Buch as Vice-Chairman, Delhi Development Authority and he concludes by observing : "The Minister, Works & Housing had discussed the case with me and ordered ....
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....ease FAR increase continued breach of clauses 2(5) and 2 (14) which entitled the Engineers Officer, Land & Development Office. Ministry of Works & Housing to issue the impugned show cause notice dated March 10, 1980 of re-entry upon forfeiture of lease and the Union of India to re-enter upon and take possession of plots 9 and 10, Bahadurshah Zafar Marg, together with the Express buildings thereon. 3. (a) Whether under the Master Plan, development of the Mathura Road commercial area was totally prohibited on FAR exceeding 300 i.e. whether such area does fall within the expression 'already built-up commercial area' or whether The Master Plan does not refer to the Mathura Road commercial area nor does such area fall within the expression 'already built-up commercial area' i.e. the area falling within the walled city of Delhi. (b) Whether the permitted users in the Use-Zone C- II viz. the zone in which the present area falls do not exclude 'newspaper and printing press' except only if such user is allowed by a competent authority after special appeal that newspaper and printing presses are permitted to be installed. 4. Whether the Ministry of Works & Ho....
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....e press report of the news conference 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 committed by the petitioners in not obtaining the previous permission of the Lt. Governor as required by cls. 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 construction complained of. 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 India, Ministry of Works & Housing, and that of March 1, 1980 issued by the Zonal Engineer (Building), Municipal Corporation, City Zone, Delhi, were wholly mala fide 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. Clauses 2(5), 2(14), 4, 5 and 6, insofar as material, run as follows : "2(5). The lessee will not without the previous consent in wr....
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....uildings thereon in the name of the whole to re-enter and thereupon this demise and everything herein contained shall cease and determine and the Lessee shall not be entitled to any compensation whatsoever, 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 Commissioner of Delhi, and the Chief Commissioner 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 (b) if the breach is capable of remedy, requiring the Lessee to remedy the breach and the Lessee fails within a resonable time from the date of service of the notice to remedy the breach, if it is capable of remedy, and in the event of forfeiture of re-entry the Chief Commissioner may in his discretion relieve against forfeiture on such terms and conditions as he thinks proper." The Acts We may then refer to the relevant provisions of the Delhi Development Act, 1957 which is paramount law on the subject and overrides the provisions of the Delhi Municipal Corporation Act, 1957. The word 'Building' ....
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....ssion 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 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 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 immediately before the commencement of this Act:" It is common ground that the Press Enclave on the Mathura Road Commercial Complex has not been declared under s. 12(1) to be a development area for purposes of the Act. S.14 provides that after the coming into operation 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 such plan. S.29(1) makes it a penal off....
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....e 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.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 communicate 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 such refusal and communicate the refusal alongwith 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 commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in s.336....... The Commissioner may in addition to 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....
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....aramount law i.e. the Delhi Development Act, 1957, the Master Plan for Delhi and the Zonal Development Plan for D-II area, the permissible FAR prescribed for buildings constructed in the Press Enclave on the Mathura Road Commercial 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 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 Development Plans or clauses 2(5) and 2(14) of the lease-deed. 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 questions. I regret that my learned brother Venkataramiah, 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 which he later developed as his main argumen....
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....ubmissions 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(1)(a) as the petitioners can still shift the printing 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 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 cls. 2(5) and 2(14) of the lease-deed and that of the earlier notice dated March 1, 1980 issued by the Zonal Engineer (Building), City Zone, Municipal 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 was a direct ....
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....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 framed under the Delhi Development Act or of the Building Bye-laws made under the Delhi Municipal Corporation 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 express sanction of the lessor i.e. the Union of India, Ministry of Works & Housing accorded to the Express Newspapers Pvt. Ltd. which had duly submitted the building palns for grant of requisite sanction. In the premises, it is submitted that each of the structures was constructed with the express sanction of the lessor, and the Delhi Development Authority granted under the Delhi Development Act, 1957 which was the paramount law on the subject. It is urged that the re-entry upon forfeiture of lease or the threatened demolition of the new Express Building with the double basement where the printing press is installed for publication of the Hindi newspaper Jansatta will result in s....
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....of Chandrachud and Bhagwati, JJ. in Maneka Gandhi v. Union of India [1978] 2 S.C.R. 621, it is urged that the content of Art. 19(1)(a) of the Constitution would not include the right which is guaranteed by other clauses of Art.19. According 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. He read out different passages from the judgments of Bhagwati, J. in E.P. Royappa v. State of Tamil Nadu & Anr., [1974] 2 S.C.R. 348, Maneka Gandhi v. Union of India (supra) and Ramana Dayaram Shetty v. International Airport Authority of India Ltd. & Ors., [1979] 3 S.C.R. 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 of Art. 14 which deals with the principle of equality embodied in the Article". He was particularly critical of the dectum of Bhagwati, J. in International Airport Authority's case that "arbitrariness was the anti thesis of Art. 14" and commented that this would mean that all governmental actions which are not support....
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....f printing and publication of a newspaper and installation of a printing press for that purpose is undoubtedly a fundamental right guaranteed both under Arts. 19(1)(a) and 19(1)(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. 19(1)(a) nor within Art. 19(1)(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 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(2). 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(1)(a), then inevitable consequence would be that neither the provisions of the Delhi Development 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, therefor....
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.... 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 India,[1962] 3 S.C.R. 842, the Court reiterated : "That the freedom of speech and expression guaranteed under Art. 19(1)(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 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 criticise the Government, because it is only through free debate and free exchange of ideas that Government remains representation to the will of the people and orderly change is effected. When avenues of political expression are closed, Government by consent of the governed would soon be foreclosed. Such freedom is the foundation of free Government of a free people. Our Government set up being elected limited and responsible we need requisite freedom of any animadversion for our social interest which ordinarily demands free pr....
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.... by a duly enacted law and must not be excessive i.e. they must not go beyond what is necessary to achieve the object of the law under which they are sought to be imposed. The power to impose restrictions on fundamental rights is essentially a power to 'regulate' the exercise of those 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 order to satisfy the test of reasonableness." The Court also dealt with the extent of permissible limitations on the freedom of speech and expression guaranteed under Art.19(1)(a). The test laid down by the Court in Bennett coleman's case is whether the direct and immediate impact of the impugned action is on the freedom of speech and expression guaranteed under Art. 19(1)(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 advertizements would affect the fundamental right under Art.19(1)(a) on the aspects of propagation, publication and circulation of a newspaper. In repelling the contention of the learned Additional Solicito....
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....onstitution. It must accordingly be held that these petitions under Art. 32 of the Constitution are maintainable. The Government Grants Act, 1895 : Section 3: Purport & Effect of: Whether the notice of re- entry upon forfeiture of lease was valid and enforceable due to non-compliance of clause 6 thereof. It is common ground that the perpetual lease was a Government grant governed by the Crown Grants Act, 1895, now known as the Government Grants Act. The Act is an explanatory or declaratory 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 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 law, statute or enactment of the Legislature to the contrary. Ss.2 and 3 read as follows : "2. Transfer of Property Act, 1882, not to apply to Government grants- Nothing in the Transfer of Property Act, ....
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.... but it was merely of an exploratory nature to afford petitioner no.1 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 bye-laws i.e. contrary to the terms of the lease, and that it was for the L&DO to be satisfied as to whether there was a breach of the terms of cls. 2(14) and 2(5) of the lease and that in the event of his reaching that conclusion, to proceed to serve the lessee with a notice of re-entry upon forfeiture of lease under c1.5 learned counsel appearing for respondent no.5 L&DO has 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 is that the show cause notice under c1.5 served by the L&DO is merely a preliminary step affording the lessee an opportunity to settle the terms and conditions with the concurrence of the Ministry of Works & Housing, offered by the lessor for condonation of such breach. In the event the lessee fails to comply with such terms the L&DO withdraws the terms offered and then c....
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....e 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 c1.5 of the lease-deed. There are two decisions of this Court which appear to be contradictory. In Bishan Das & Ors. v. State of Punjab & Ors. [1962] 2 S.C.R. 69, a Constitution Bench of this Court speaking through S.K. DAs, J. in somewhat similar circumstances allowed the petition under Art.32 of the Constitution directing restoration of possession to the lessee who had been dispossessed from land granted by the Government by display of force. 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 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....
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....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 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 taken in this case by the State and its officers is destructive of the basic principle of the rule of law. The facts 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 forced exhibits a callous disregard of the normal requirements of the rule of law....
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....racter of the grant under which the predecessors of the ex-zamindars were originally granted the 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 constituted suit but nevertheless were inclined to the view that the right to recover possession vesting in a person who had been in possession prior to such dispossession which was implicit in 8.9 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 Government and further that the parties were negotiating for a settlement. It appears that the court rejected the prayer for adjournment saying that useful purpose would be served by granting any further time and thereafter entered upon the merits. lt held that merely because a suit under 8. 9 of the Specific Relief Act would have been competent, no right can be claimed by the responden....
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....R of 360 together with a double basement was clearly not an unauthorized occupant within the 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 by any person of the public premises after the authority (whether by way of grant of any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. The Express Buildings constructed by Express Newspapers Pvt. Ltd. with the sanction of the lessor i.e. the Union of India, Ministry of Works & Housing on plots 8. 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 Government under 8. 2(e). That being so, there is no question of the lessor applying 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....
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....n 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. The learned counsel went to the extent of saying that wherever the expression 'Chief Commissioner 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 footing as if the parties never contemplated the Chief commissioner of Delhi to exercise any of the functions of the lessor under the lease-deed. In reply, learned counsel appearing for respondent no.2, the Lt. Governor, advanced a two fold submission; 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 in the connection he referred to the constitutional history of the Union Territory of Delhi. In support of his contention that the designation of the Administrator as the Chief Commissioner of Delhi under both the Government of India Acts o....
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.... or the Lt. Governor i.e. the executive functions of the President of India under Art.53 of the Constitution. It was accordingly urged that the Legislative Assembly of Delhi did not nave 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 1 of the Seventh Schedule, and the powers and functions of the Council of Ministers in the Union Territory of Delhi as a Part 'C' State extended only to the legislative powers conferred under s.21 of the Act. The '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 submitted that the Lt. Governor 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. In suppor....
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....n and 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 formerly included within the Province of Punjab, and to provide for the administration thereof by a Chief Commissioner as a separate Province to be known as the Province of Delhi: And whereas it is expedient to provide for the 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 8.58 of the Government of India Act, 1919, Delhi remained and was administered as a Chief Commissioner's Province. The office of Land & Development Officer came into being as a separate organisation under the administrative control of the Chief Commissioner of Delhi. Under 8.94 of the Government of India Act, 1935, it was provided that Delhi would continue to be a Chief Commissioner's Province. A Chief Commissioner's Province was to be administered by the Governor-General acting to such extent as he thought fit through a Chief Commissioner to be appointed by him in his discretion. S. 94 of the Government of India Act, 1935 provi....
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....te. 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. Section 290A of the Government of India Act, 1935, reads as follows : "290A. Administration of certain Acceding States as a Chief Commissioner's Province or as part of a Governor's or Chief Commissioner's Province:- 1. Where full and exclusive authority, jurisdiction and powers for and in relation to the governance of any Indian State or of any group of such States are for the time being exercisable by the Dominion Government, the Governor-General may by order direct:- (a) that the State or the group of States shall be administered n all respects as if the State or the group of states were a Chief Commissioner's Province: (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. Provided that if any Order made under clause (b) of A this sub-s....
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....itution, 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 Commissioner or the Lt. Governor as an Administrator irrespective of the designation. On April 16, 1950 the Part States Laws Act, 1950 was brought into force. By s.2, the Central Government 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 enactment which was in force in any State at the date of the notification. S.4 of the Act repealed s.7 of the Delhi Laws Act, 1912. The Government of Part 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. Extent of Legislative Power (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 matters enumerated in the State List or in the Concurrent List.: Provided that the Legislative Assembly of the State of Delhi shall not have power to make laws with respect to any of the f....
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....rliament 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. In pursuance of Art.239 as amended by the Seventh Amendment, the A President of India issued the following notification on November 1, 1956 : THE GAZETTE OF INDIA EXTRAORDINARY PART 11 Section 3 PUBLISHED BY AUTHORITY No. 332 NEW DELHI, THURSDAY, NOVEMBER 1, 1956 MINISTRY OF HOME AFFAIRS NOTIFICATION 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 Constitution (Seventh Amendment) Act, 1956 and all other powers enabling him in this behalf, the President hereby directs as follows :- 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 immediately before that day, the powers and functions (a) the Lieutenant Governor of the State of Himachal (b)the Chief Commissioner of the State of Delhi, Manipur or Tri....
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....er Clause XLI it 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 the Special Secretary or the Additional Secretary or the Joint Secretary or the Director, 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 Delhi nor the Lt. Governor has been conferred any authority by the President under Art.299(1) to enter into any contract mate 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 ant conditions thereof. 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 September 7, 1966 issued another order in terms of Art. 239(1) of the Constitution which....
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....nted by 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 Commissioner was re-designated as the Lt. Governor. The learned counsel relied upon s. 18 of the General Clauses Act, 1897 which runs as under : 18. Successors. 1. In any Central Act or Regulation made after the commencement 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 express its relation to 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. Our attention was drawn by the learned counsel to the decision of Mohd. Maqbool Damanoo v. State of Jammu & kashmir, [1972] 2 S.C.R. 1014, where a Constitutional Bench held that under 8. 26(2) of the Jammu & Kashmir Constitution, as amended, even though the Governor of Jammu & Kashmir was not elected as the Sadar-i-Riyasat but the mode of appointment would not make a Govern....
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....nder 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 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 continuum between the office of the Chief Commissioner and that of the Lt. Governor was preserved and the terms used interchangeably. All these powers and functions were essentially functional. Moreover, powers and functions which vested in that office 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. Learned counsel contends that the office of the Administrator under Art.239(1) is 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. He is not merely a formal or titular head but an....
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....totally unwarranted. The contention overlooks the constitutional changes brought about, as a result of which the territory of Delhi ceased to be administered as a Chief Commissioner's Province by the Governor-General acting to such extent as he thought fit through the Chief Commissioner appointed by him in his discretion under 8.94(3) of the Government of India Act, 1935 and become a Part state on the inauguration of the Constitution and had 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 or through the Governor of a neighbouring State. After the Seventh Amendment which reorganized the States, Part State of Delhi was transformed into a Union Territory and has to be administered by the President under the amended Art. 239(1), acting to such extent as he thinks fit, through an Administrator to be appointed by him with such designation as he may specify. In September, 1951 an Act known as the Government of Part States Act, 1951 was passed by Parliament. It was a law enacted by Parliament under Art.240(1) to provide for the creation of Legislative Assemblies, Council o....
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....Constitution Bench that an order made by the Governor-General under 6. 94(3) of the Government of India Act, 1935 investing the Chief Commissioner with the authority to administer a Chief Commissioner's Province as then existing, must be regarded as a legislative act and as such treated as a 'law in force' falling within the purview N of Art. 372 of the Constitution and therefore such an order made under 8.94(3) of the Government of India Act, 1935 must be construed as an order made under Art. 239(1). The Constitution Bench speaking through Mukherjee, J. after adverting to 6. 94(3) of the Government of India Act, 1935, observed : "An order made by the Governor-General under 6.94(3) investing the Chief Commissioner with the authority to administer a province is really in the nature of a legislative provision which defines the rights and powers of the Chief Commissioner 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 commencement of the Constitution would continue to be in force under clause (1) of the Article. Agreeably to this view it must als....
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....him either directly or through officers subordinate to him in accordance with the Constitution. All executive actions 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 name of the President shall be authenticated 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). On January 18, 1961, the President made the Government of India (Allocation of Business) Rules, 1961 under Art. 77(3) for the convenient transaction of business of the Government of India, and for the allocation among Minister 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, 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 un....
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....Municipal Corporation for demolition of new Express Building where the printing press is installed under 86. 343 and 344 of the Delhi Municipal Corporationration 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 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 position when an order is made for a purpose other than that which finds place in the order. It is 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 their affidavits in reply, none of the respondents except respondent no.5,, the Lt. Governor of Delhi and respondent no.5,, Land Development Officer have chosen to deny the allegations. The counter-affidavit of respondent no.2 purporting to be on behalf of all the respondents is....
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....ad faith eludes precise definition, but in relation to the exercise of statutory powers it h may be said to comprise dishonesty (or fraud) and 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 exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. 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 remain areas of administration where the subject matter of the power and the evident width of the discretion reposed in the decisionmaker render its exercise almost wholly beyond the reach of judicial review. In these cases the courts have still asserted jurisdiction to determine whether the authority has endeavoured to act in good faith in accordance with the prescribed purpose. In most instances the reservation for the case of bad faith is hardly more than a formality. But when it can be established, ....
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....hings would cause its purported decision to be a nullity. Fraud on power voids the order if 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 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. 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 alien purpose clearly speaks of the misuse of the....
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....which have not been specifically denied and there is only a bare denial with the assertion that the facts are not relevant. Mere denial of allegations does not debar the Courts from inquiring into the allegations. In answer to the rule nisi, the respondents here and in particular respondent no.1, the Union of India, Ministry 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 motivated i.e. that there was malice in fact as well as malice in law 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 issue of the impugned notices and insteadtried to justify all his action throughout the affair as the Lt. Governor. As the hearing progressed, on being putwise on the legal issues, respondent no.2 filed an additional affidavit trying to refute the allegations of personal bias and animosity on....
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....grant of sanction for the construction of the new Express Building were made available to him. On February 20, 1980 admittedly the important files of the Delhi Development Authority i.e. relating to the Express Buildings were sent to respondent no.2. On February 29, 1980 he, through the Commissioner, Municipal Corporation of Delhi caused the lacks of the office and cupboards of the Zonal Engineer (Building) broken open to take away the files relating to the new Express Building. Immediately thereafter on March 1, 1980, respondent no.2 convened a press conference in which he handed over a press release (set out in the earlier part of the judgment) alleging that the new Express Building put up by the petitioners was in contravention of law in several respects. On March 1, 1980 he purported to appointed what he termed in the counter-affidavit as a commission of inquiry under s.3 of the Commissions of Inquiry Act, 1952 consisting of three members, the Chief Secretary and two other officers of the Delhi Administration to make an investigation into the circumstances under which the sanction was granted by the then Minister for Works & Housing and the alleged breaches committed by the ....
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....mber Committee which substantiated the allegations he had aired at his press conference on March 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 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. The expression 'Government' in the context 18 the functionary of the Central Government i.e. the Minister for Works Housing who is vested with executive power in the relevant field. The executive power of the Union vested in the President under Art. 53(1) connotes the residual or governmental functions that remain after the legislative and judicial functions are taken away. m e executive power with respect to the great departments of the Government are exercisable by the ....
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....s against the Government at the Center, the allegations in the Writ Petitions can conveniently be classified into three groups.The first set of circumstances relates to the period prior to the Parliamentary elections in 1971, and the second to the period subsequent thereto till tho declaration of Internal Emergency by the President on June 25, 1975 and the third relates to the period during the Emergency and thereafter. The petitioners allegations may be thus summarized. The Express Group of Newspapers in general and the Indian Express in particular have always taken in independent stand and have been critical of the Government and the authorities and of any authoritarian trend and had therefore been Considerably harassed in various way. 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 Express severly criticised those who had backed out from supporting the official Congress candidate. As a result, various administrative agencies began roving and fishing inquiries into the affairs of the Express Group of Companies. On more occasions then one, matters relati....
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....offences committed 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 taxes - 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 embarrassment to the Government which stopped some of the harassment but continued the financial persecution. The newspaper was about to collapse when the new elections of 1977 gave it a new life. White Paper on Misuse of Mass Media at paragraphs 38 to 44; Shah Commission's Report at pp. 34-35, Indian Politics and the Role of the Press by Shared Karkhanis at pp. 139-140. As against respondent no.2,, it was suggested during the course of hearing by learned counsel for the petitioners that obviously one of the tasks entrusted to respondent no.2 as the Lt. Governor of Delhi was to 'discipline the press' by demolition of the Express Buildings.....
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....rnor for necessary action. It would then be for the lessor i.e. the Union of India, Ministry of Works & Housing to decide whether or not the lease should be forfeited under cl. 5 of the lease-deed. (2) He drew our attention to the Supplementary affidavit of M.K. Mukherjee, Secretary, Ministry of Works & Housing where it was denied that the impagned 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 & Development 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 Officer asked for putting up tho case with a detailed note immediately. The decision to send the notice 9 taken without the reference to the Lt. Governor. A note on the file pointed out that the rate at which the plot was initially given to the Express Newspapers Pvt. Ltd. was concessional @ Rs. 36,000 per acre as against the prevailing rate of Rs. 1.25 000 per acre for construction of building. The note was put up by Rangaswami to the Land ....
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.... the Chief Commissioner of- Delhi ant 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 Land & Development Officer was under his administrative control, learned counsel for respondent no.2 refuted the charge of personal bias. He reiterated that the Lt. Governor was the alter ego of the President in relation to such territory which he is called upon to administer on behalf of the President. One of the primary functions of the Lt. Governor, as the Administrator, was to be aware of facts brought to his knowledge and therefore 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 the 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 relation to the lease. Further, the contention was that respondent no.2 as the L....
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....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 then Minister for Works & Housing was illegal, improper and irregular. It is therefore futile to contend that the impugned notice dated March 10, 1980 was not a notice of re- entry upon forfeiture of lease but merely a notice of an exploratory nature requiring Express Newspapers Pvt. Ltd. to show cause why the lease should not be forfeited under cl. 5 of the lease-deed. Further, the contention that the decision to send the notice was taken without reference to the Lt. Governor does not appear to be substantiated by the facts on record. m e so-called note of Rangaswami, Additional Land & Development 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 Officer directing a forfeiture of the lease. The facts speak for themselves.....
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....ia should not re-enter upon and take possession of plots nos. 9 and 10, Bahadurshah Zafar Marg together with the Express Buildings built thereon under cl.5 of the indenture of lease dated March 17, 1958. It is not disputed that the Ministry of Works & Housing with the Minister at the head was responsible for the following items of work viz. the Property of the Union, Town and Country Planning, Delhi Development Authority, Master Plan for Delhi and Administration of the Delhi Development Act, 1957 and Allotment of Government lands in Delhi, and was also responsible for all attached and subordinate offices or organizations concerned with any of the subjects specified aforesaid including the subordinate office of the Land & Development Officer, New Delhi, dealing with 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 Ministries Departments of the Government of India, issued by the Department of Personnel & Administrative Reforms, Cabinet Secretariat, Government of India. Hence, the Minister for Works & Housing was and is the ultimate authority ....
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....for, and was given, by the competent authority i.e. the Delhi Development Authority after 'special appeal' in accordance with the provisions of the Master Plan. Where permission for development in respect of such land had been applied for and obtained under the Act, the construction of the Express 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 given an overriding 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 there with contained in any other law. That is to say, merely because the Municipal Corporation of Delhi while granting sanction to the building plan on January 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 wi....
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....h Road - The size of plot will naturally depend on the layout of the commercial area but any further sub-division of plots in the Connaught Place and its proposed extension area is not desirable. FAR 400 Maximum ground floor coverage 50% Covered garages for cars & cycles 5% First floor coverage 50% Coverage for second floor and above 35% There is a limit to the number of floors but this is subject to light and air planes. 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 commercial areas and a list of 19 localities is set out and they all relate to the walled city of Delhi like Chandni Chowk etc. To this was added as the 20th item Jhandewalan Scheme on December 24, 1976. 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 Road Commercial Complex. This is factually wrong. The Master Plan admittedly does not refer to the press enclave situat....
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....saf Ali Road commercial area (2) Minto Road commercial area (3) Mathura Road commercial area, and (4) Circular Road Commercial area (opposite Ramlila Ground). It is provided that the general regulations for development 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 where in Delhi is there an FAR of more than 300 for any commercial area as stated in the Report of the Town & Country Planning Organisation dated April 14, 1978 relied upon by the respondents. In the Zonal Development Plan for a D-II area, it is mentioned that Asaf Ali Road commercial area is fully developed and there is no room for its expansion , but the same is not said about Mathura Road commercial area which is described as fully commercialized with press and other allied trading buildings. The statement relating to Mathura Road commercial area is set out below "Similarly Mathura Road commercial area is also fully commercialized with press and other allied trade buildings according to building bye-laws to built-up areas. It would be seen the statement is prefaced by the word 'similarly' and thereafte....
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....ercial area which was not fully developed, they would not be subject to the restriction FAR of 300 and a fortiori the Mathura Road commercial area so long as they were not brought within the purview of paragraph 4(b) of the 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 recent advertisement dated March 8, 1982 issued by the Delhi Development Authority as published in the Indian Express announcing public auction of certain plots of land in the Asaf Ali Road commercial area. It is mentioned in the advertisement that the auction purchaser would be entitled to construct a building with the following specifications : "Apart from basement of 86.11% of ground floor coverage of 100%, a mezzanine floor of 25% of the ground 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 18 therefore evident that although in the Zonal Develo....
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....ble 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 : Applicability of Bye-law 25(2) (IV-B). It is significant that the allegation of the alleged breach of FAR regulation is made for the first time in the affidavits and which forms the many plank of the arguments asserting the right of the lessor i.e. the Union of India, the re-entry upon forfeiture of lease is not foreshadowed in either of the impugned notices dated March 1, 1980 or March 10, 1980 issued by the Engineer Officer, Land & Development Office. But, since the point has been argued at great length and since the argument is that the permission accorded by Sikander Bakht, the then Minister for Works & Housing was non-est if the FAR exceeded the legal limit of FAR 300, this question has to be dealt with on merits. According to the Union of India, both in the arguments as well as in the affidavits, it is asserted that in processing the application for additional construction i.e. Of the new Express Building proceeded on the basis that the FAR in the Press Area was 300. The assertion that every officer referred to only ....
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....h 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 can not obviously apply to the press area. During his address he put the question : How could be 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 number of floors in a building with reference to the plot area. The expression 'FAR' is defined in bye-law 2(33) of the Delhi Municipal Corporation (Buildings) Bye-laws, 1959 in the following terms : "2. Definitions- In these bye-laws, unless the context otherwise requires : (33) floor Area Ratio or FAR means the quotient obtained by dividing the multiple 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 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 : "21. Maximum height of bu....
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....eet, 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 minimum floor height being already specified in bye-law 19. The restriction 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. 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 buildings have been constructed according to building bye- laws applying to 'built up areas'. According to him these bye-laws according to which the buildings have been erected were to apply to 'built up areas' so that the net result is that the Mathura Road commercial area was fully commercialized and has been built up according to the relevant bye-laws which controlled the construction of commercially built- C up area. He contends that the description contain a declaration that the whole area was a commerc....
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....light planes and the provisions that the FAR does not exceed 300". The contention put forward by learned counsel for respondent NO. 1 is that there are two important factors governing construction of buildings viz. the ground floor coverage and the FAR. Normally, for all commercial buildings, the ground floor coverage is 25%. However, under bye-law 26 read with the note appended thereto, as amended in 1964, for certain commercial buildings ground floor coverage of 80% is permitted. He relies upon the relevant portion of bye-law 26 which reads ; "26. Open specs in Commercial and Public Buildings- No commercial or public building or ground of such buildings in any bazar, market or commercial area shall have a ground floor covered area of that 80 per cent of the area of the plot........ Note : This bye-law shall be applicable only to buildings covered by bye-law 25(2) (IV-B) . He accordingly contends that all buildings in the press area including the new Express Building have a ground coverage of 80% under bye-law 26 and to such buildings bye-law 25(2)(IV- B) which limits the FAR to 300 is applicable- The fallacy of the argument of the learned counsel lies in the assumptio....
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....o negotiations for modification 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 petitioners were thus disabled from building on a substantial part of the land allotted to them until the underground drain was realigned outside the 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. who had been granted similar: 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 80 as to protect the underground sewer drain and restrict the construction of the building to the east of the drain. J.N. Ambegaokar, Under Secretary to t....
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....read with 25(2)(IV-B) was not applicable to the 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 commercial areas, namely : (1) Asaf Ali Road Commercial Area (2) Minto Road Commercial Area (3) Mathura Road Commercial 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. Validity of the show cause notice dated March 1, 1980 issued by the Zonal Engineer (Building), City Zone, Municipal Corporation, Delhi under as. 343 and 344 of the Delhi Municipal Corporation Act, 1957. At the Press Conference convened by respondent no.2 on March 1, 1980, he handed over a press release alleging that the additional building put up by petitioner no.1, Express Newspapers Pvt. Ltd., was in contravention of law and inter alia it was stated that the Municipal Corporation had been advised to take immediate action in regard to the unauthorized deviations from the sanctioned plan. On the same day. the....
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...., it 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 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 Marg was also in imminent danger of caving in. Petitioner no.1 had therefore to build supporting walls which became a storage tank. The construction of walls in the triangular area was meant to strengthen and re-enforce the foundation of the original building as well as to prevent the road from caving in. What alleged in the show cause notice as a proposed basement under construction was merely for fortuitous construction necessitated by the drain flooding the pit and now it is merely meant to house a....
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.... period from February 18, 1980 to the date of issue of the impugned notice, the officials of the Municipal Corporation had been waiting upon respondent no. 2, 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 sanctioned plan which measured 8914 sq. ft. (according to petitioners it measured only about 6000 sq. ft.) and the excess basement over the sanctioned basement works out to 5450 sq. ft. and of which the water storage 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. The contention of learned counsel appearing for the Municipal Corporation is that the Express Newspapers Pvt. ltd. have been guilty of suppressio veri as they have not mentioned the fact that on the objection of the Municipal Authorities, they deleted all the aforementioned three portions set out in the notice. It was urged that the construction of these structures was admittedly carried on in violation of the sanctioned plan. It was pointed out that the tank as recommended by the Chief Fire Officer by his letter date....
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....ment Authority was addressed to the Express Newspapers Pvt. Ltd., inter alia permitting the Express Newspapers Pvt. Ltd. to instal in the basement printing press machinery like any 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 Municipal Corporation while granting sanction to the building plan on January 9, 1979, got deleted the basement beyond plinth line as well as the second 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 6000 sq. ft. The Express Newspaper Pvt. Ltd. have specifically averred in sub-paras (a) to (k) or para 33 that the machines they have planned to instal and which have been specifically permitted to instal in the basement by the Delhi Development Aut....
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....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 preferred to build it in R.C.C. A working platform made of wood would have been a serious fire hazard. Beneath it, at given time almost the entire basement would be stacked with news-print reels which are highly combustible. The ink a large stock of which has also to be stored in the basement is also highly combustible. Moreover, the number of electric wires and connections is 80 large that it could not run the risk of a wooden platform. Finally, if wooden platform was constructed, considering the heavy loads it would have to bear, would have required frequent and extensive maintenance. A working platform of steel would have presented similar problems; it is a conductor of electricity and hence a hazard to the workmen and it would have been extremely noisy which would have required frequent and extensive maintenance. Thus, from all points of view, those of safety, G economy and efficiency, the petitioners cast a R.C.C. slab as being mo....
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....cessary for the printing press. If the upper basement of the working platform constructed by the Express Newspapers Pvt. Ltd. is demolished, the installation of the printing press itself in the lower basement with the sanction of the Delhi Development Authority under the appropriate statutory provision would be nullified and the Express Newspapers Pvt. Ltd. would not be in a position to operate the printing press at all. 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 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 Zonal Development Plan for D-II area at pages 935 and 936 that semi-basement, meaning a second basement is permissible under the Master-Plan as well as the Zonal Development Plan. The Bye-laws of the Delhi Municipal Corporation do not prohibit second basement and on the contrary bye-law 54 uses the term 'basements'. In respect of commercial zone in Minto Road in Ranjit Singh Road, bye-law 25 (2) (IV) spe....
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....ilding, City Zone, Municipal Corporation, Delhi is fair 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 platform 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 justice and the needs of the petitioners 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 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 that the Municipal Corporation will compound the deviation which is minimum 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. Appli....
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....o representations about past or present facts. But there is also an equitable principle of 'promissory estoppel' which can apply to public authorities. The fact in Robertson's case were these. The War Office wrote to Robertson, an Army Officer, who had claimed a disablement pension on account of the War injury, that his disability had been accepted as attributable to military service. But for this injury the responsible department was the Ministry of Pensions which the War Officer had not consulted. The Ministry 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 which might have strengthened his case for such disability pension against the Ministry. On appeal 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 exploded. Nor can the Crown escape by praying in aid the doctrine of execu....
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....hat the court was not concerned with the principle which was dis-approved by Lord simonds in Falmouth's 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 is, in our judgment, not exempt from . liability to carry out its obligation arising out of representations made by it relying upon which a citizen has altered his position to his prejudice." In MotiLaL Padampat Sugar Mills Co.(P) Ltd. y. State of Uttar Pradesh & Ors., [1979] 2 S.C.R- 641, Bhagwati, J. speaking for himself and Tulzapurkar, J. laid great stress on the facts that the principles laid down by Denning, J. in Robertson's case were accepted by the Court in the Indo Afghan's case but accepted the rejection of Lord Simonds and Lord Normands in Falmouth's case of the extended principles enunciated by Denning, J. in Robertson's case as Laying down the-correct law. But the learned Judge went down to say that this rejection did not mean that there could be no estoppel against the Crown or the public authority. I am not oblivious that there was a discordant note struck by Kailas....
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....ting 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 : 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 new Express Building with an FAR of 360 for the purpose of their press only as they intended to start a Hindi daily newspaper from Delhi. He clarified that the sub-letting of portions thereof in the year 1982 to the Reserve Bank of India and the Steel Authority 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 Express Newspapers Pvt. Ltd. in these petitions do not claim to enforce any right to sub-let any part of the new building; and, if and when they seek to sub-let any part thereof, they would apply to the les....
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....ndent no.5 , Land & Development Officer between conversion of green area to 'newspaper' and thereafter to commercial 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 'commercial' use for newspapers. Newspaper press is, in fact, not a commercial 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 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 Pvt. 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 commercial complex for the period from April 14, 1976 to March 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 ....
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...., namely, Rs. 11.02 lacs is recoverable by the lessor i.e. the Union of India, Ministry of Works & Housing as per norms. The Land & Development Officer hat filed a note that the Express Newspapers Pvt. Ltd. did not and have not come to him with sanctioned plan of the Municipal Corporation of Delhi ant were now seeking to avoid a monetary liability arising from their real intention of turning the new Express Building into a real estate venture by grossing nearly a crore of rupees of rental per month by means of this writ petition. It is stated that the liability of the Express Newspapers Pvt. Ltd. now is enormous because of commercial sub-letting instead of newspaper use. They have not yet applied to the lessor and as and when they to, they would be liable to pay conversion charges at the prevailing rates. That would obviously come to a amount much larger than Rs. 50,425 tendered by the Express Newspapers Pvt. Ltd. by cheque dated September 21, 1982 because of admitted commercial sub-letting. He stated that the Express Newspapers Pvt. Ltd. would have to pay a large amount of money as subletting charges as permission for FAR of 360 though illegally given, was accorded only for new....
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....nstruction of additional building on the open area for starting a Newspaper = Area of vacant land now permitted to be built up x (concessional rate for newspapers - Rate for land to be kept open already charged) 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 account = Conversion charges ) )x 2-1/2 for green space ) Arrears of A.G.R. from 1978 to 1983 (five years) plus interest. Dr. Singhvi appearing for respondent no.5 , Land & Development Officer submits that unless the Express Newspap....
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....uld restrain the Union of India, 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.1, Express Newspapers Pvt. Ltd. for non-payment of conversion charges or otherwise for the construction of the 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. The result therefore is that these petitions under Art. 32 of the Constitution must 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. 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 Building built thereon, under cl.5 of the indenture of lease dated March 17, 1958 for alleged breaches of cls. 2(5) and 2(14) th....
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....r 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 against the lessees. He has further submitted that the land leased under the lease deed being nazul land is exclusively owned by the Union Government ant the powers delegated to the former Chief Commissioner of Delhi under the lease deed were no longer exercisable 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 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 subjec....
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....dealt with in accordance with law. At the same time a person who has acquired rights in such property cannot also be deprived of them except in accordance with law. The 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 direct the respondents not to take any further action against the 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 existed before the impugned notice 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 without prejudice to the right of the Union Government to compound the breaches, if any, committed by the lessee and the regularise the lease by receiving adequate premium there- fore from the lessee, if it is permissi....
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....papers. The application is supported by an affidavit by the petitioner Jagmohan, former Lieutenant- Governor of Delhi who 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 attributed to Shri L.N. Sinha, learned counsel appearing for respondent no.1, the Union 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 dated October 12, 1985 addressed by Shri P.P.Singh who was assisting Shri L.N.Sinha asserting that the learned counsel had never advanced the arguments attributed to him the judgment and a letter of Shri M.C. Bhandare, dated October 13, 1985 addressed to Shri B.P. Maheshwari, Advocate-on-Record of respondent no.3 ,....
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....icipal Corporation of Delhi and Zonal Engineer (Building), City Zone, Municipal Corporation, Delhi is fair 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 platform 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 justice and the needs of the petitioners 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 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 that the Municipal Corporation will compound the deviation which is minimum on payment of such composition fee as is payable under the bye-laws. Learned counsel states that this ....
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....they belong. We feel grieved and not a little perturbed at all this. Every word written in the judgement formulating the arguments advanced by Shri L.N. Sinha, learned counsel for respondent no. 1, Union of India 18 taken from our minute-books in which we noted the arguments of counsel almost verbatim during the course of hearing particularly 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 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. 1., 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. As regards the allegation made by Shri M.C. Bhandare in his letter dated October 13, 1985 addressed to Shri B.E. Maheshwari it is enough to mention that we recorded three statements made by counsel during the course of hearing. We dist....
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....ration of Delhi to compound the deviations as they were minimal on payment of the usual composition fee. We are constrained to observed that the review application is lacking in bonafides, 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 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. In the joint counter filed by him on behalf of the respondents he made several statements which were far from accurate but we refrained from taking any action. This 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 by suggesting in paragraph 10 that the delay in the pronouncement of the judgment was responsible for 'facts stated and submissions ma....