Express Newspapers Pvt. Ltd.
& Ors Vs. Union of India & Ors [1985] INSC 223 (7 October 1985)
SEN, A.P. (J) SEN, A.P. (J) VENKATARAMIAH,
E.S. (J) MISRA, R.B. (J)
CITATION: 1986 AIR 872 1985 SCR Supl. (3) 382
1986 SCC (1) 259 1985 SCALE (2)973
CITATOR INFO:
D 1988 SC 350 (13) R 1989 SC 997 (14) E&D
1991 SC 855 (32) D 1992 SC 604 (112)
ACT:
Articles 32 & 226 - Executive action
challenged on grounds of violations of Art. 14, l9(1)(a) & (g) by writ
petition Maintainability of - Issues pertaining to civil rights arising out of
contracts between parties - Whether can be decided on mere affidavits. Held:
Filing of civil proceedings only remedy - Civil Procedure Code, 8.9.
Articles 19(1) (a) and (2) - Freedom
guaranteed under Whether comprehends freedom of press - Violation of such
freedom - How to be determined.
Articles 239(1), 53(1), 72,77, 240 & 298
- Lt. Governor of Delhi - Whether successor of the former Chief Commissioner of
Delhi - Whether has power to deal with allotment/lease etc. Of lands falling within
Union Territory of Delhi and which is under control and administration of Land
& Development Officer and vests in Govt. Of India, Ministry of Works &
Housing - Govt. of Part 'C' States Act 1951, sec. 21, Proviso, Authentication
(Orders & Other Instruments) Rules 1958, Govt. Of India (Allocation of
Business) Rules 1961 & General Clauses Act 1897, s.l8.
Local Authorities Delhi Development Act, 1957
ss.53(3)(a), 12(4), 14,41 and 2(d) - Construction of a building - Permission
obtained from competent authority under the Act - Whether it will prevail
notwithstanding anything inconsistent therewith in any other law.
Delhi Municipal Corporation Act 1957 ss.343,
344 and 481 read with Delhi Municipal Corporation (Buildings) Bye- laws 1959
Bye-laws 25(2) - (IV-B), 21(1), 22(V) and 2(33) - Show cause notice for taking
action u/ss.343 & 344 - Validity of Permission already granted by competent
authority under Delhi Development Act 1957 to raise the structure and acted
upon Whether raising cf structure can be questioned under ss.343 344 -
Applicability of bye-laws - Height of building - Restriction of 383 How to be
decided - Construction of press building with increased FAR of 360 with double
basement for installation of A printing press - Validity of - Master Plan and
Town Planning Whether construction legal and in compliance with terms and
conditions of lease deed - Notice of re-entry upon forfeiture of lease -
Validity of.
Specific Relief Act 1963, SS. 5,6 and 9 - Perpetual lease
granted to a private limited company by government for construction of building
- Provisions in lease deed for Govt. 's right of re-entry in case of breach of
lease terms - Whether lessor can enforce that right by resort to summary
procedure Recourse to Public Premises (Eviction of Unauthorised Occupants) Act,
1971 - When arises - 'Public Premises
(Eviction of Unauthorised Occupants) Act, 1971, ss.2(3), and (g) and 5.
Government Grants Act 1895, s.3 - Effect of.
Administrative Law - Mala Fides - Allegations
of - Misuse of Power in bad faith for collateral purpose - Whether amounts to
mala fide exercise of power - Burden and nab re of proof Allegations tc be
definite, specific and not vague - Court to accept them as true, if not
controverted on affidavits.
Doctrine of ultra vires - Scope of - Fraud on
power Meaning of - Exercise of power in good faith and misuse in bad faith -
Distinction between.
Doctrine of Promissory Estoppel -
Applicability of Whether applicable against government - Limitations - What
are.
HEADNOTE:
The Central Government had in the year 1949
demarcated the press area along the Bahadur Shah Zafar Marg, New Delhi.
It consisted of plots Nos.. 1 to 10 known as
Press Enclave as a commercial complex. These plots were alloted to various
newspapers like the Indian Express, Times of India, Patriot, National Herald
etc. Petitioner No.1, Express Newspapers Private Ltd., engaged in the business
of printing and publishing a national newspaper, Indian Express (Delhi
Edition), was alloted plot nos 9-10 Bahadur Shah Zafar Marg, New Delhi by an
indenture styled as an "agreement for lease executed on May 26, 1954
between the petitioner and the Secretary (Local self-government) to the Chief
Commissioner of Delhi by the orders and directions of the President of India
for the construction of a four storeyed building meant to be used for a
newspaper.
384 At the time of construction of buildings
in the press area there were no restrictions as to the Floor Area Ratio (FAR)
permissible along the Bahadur Shah Zafar Marg and the only restriction on construction
of building in that area was that the allottees of the plots should construct
buildings up to a height of 60 feet. The Express Newspapers Pvt. Ltd. was
allowed to build upon the entire area of plots Nos. 9 and 10 with a ground
coverage of 100%, that is, edge to edge, a structure with a minimum of five
storeys including the ground floor for the purpose of installation of a
printing press for publication of a Hindi newspaper.
This permission was granted in response to
the plans submitted by the Express Newspapers Pvt. Ltd. and approved in writing
by the Chief Commissioner of Delhi acting for and on behalf of the lessor, that
18, the Union of India.
During the preliminary work of construction
by the Express Newspapers Pvt. Ltd. an underground sewer line was found to be
running diagonally across plot nos. 9 and 10. It was agreed between the parties
vide lease agreement dated November 19 1957 that in view of the underground
drain running through the plots the Express Buildings would be constructed only
to the East of the drain till the drain was diverted. In effect, an area of
2740 square yards to the West of the drain had to be left open as residual plot
of the land out of a total area of 5703 square yards. The Express Newspapers
Pvt. Ltd.
constructed the old Express Building to the
East of the sewer line with an FAR of 260 with reference to the entire plot
leased to lt i.e.. plots Nos. 9 ant 10 although the building occupied only half
of the area. On March 17, 1958 another perpetual lease was executed by
Assistant Secretary (LSG) to the Chief Commissioner, Delhi by the order and
direction of the President of India demising on behalf of the Union of India in
perpetuity the Nazul land described therein in consideration of payment of a
premium and yearly rent. Likewise, the earlier agreement dated November 19,
1957 80 also the supplementary agreement of May 26, 1954 were also executed by
the salt Officer in the same manner.
Both the agreements stipulated that the
rules, regulations ant laws of the Municipal Corporation of Delhi relating to
buildings which may be in force from time to time shall be confirmed to by the
lessee.
On November 6, 1959 all functions relating to
administration of leases of Government lands in Delhi were transferred from the
Chief Commissioner of Delhi (LSG) to the Ministry of Works 6 Housing.
In the year 1977, petitioner No.l, the
Express Newspapers Pvt. Ltd., approached the Municipal Corporation of Delhi for
385 shifting the sewer line outside plots 08. 9 and 10 and also moved the lessor,
the Union of India, Ministry of Works and housing for grant of requisite
sanction to construct the new Express Building with an FAR of 40. The Chief
Engineer, Delhi Water Supply ant Sewage Disposal Undertaking granted approval
to the diversion of the sewer line at the cost of petitioner No-l. Thereafter,
petitioner No.1, informed the Ministry of Works and Housing about the aforesaid
approval granted by the Municipal l Corporation of Delhi and requested the
Ministry for advice on the FAR permissible for the said building. The matter
was processed in the Ministry of Works and Housing at various leveling
ultimately on October 21, 1978, the Vice-Chairman , Delhi Development authority
took the following decision (a) to amalgamate plots Nos.9 and 10.and taking
into account the existing built-up area would permit the FAR of 360 overall;
(b) to allow the residual area of plots Nos.9 and 10 to be built in line with
the Times of India and Shama Building; (c) to exclude the basement from the
calculation of the FAR provided the basements are for office purposes; (d) to
per lt permit on the service road in the same manner as it was for the other
building in this line. The Vice-Chairman further directed that the aforesaid
order was to be treated as one under special appeal. He accordingly gave
instruction for issuing 'No Objection' to petitioner No-l for construction on
the residual area and to make a reference- to the Government of India asking
for confirmation of the action proposed in view of the order of the Minister
for Works and Housing to clear the cases immediately and to obtain his ex post
facto sanction. On November 4, 1978 the Joint Director (Buildings) Delhi
Development Authority issued a "No Objection Certificate to the
petitioners and the Ministry of Works ant Housing granted it ex post facto
approval on November 24, 1978. Thereafter, petitioner KNOB constructed its new
Express Building.
On February 17, 1980, respondent No.2
Jagmohan assumed office at the Lt. Governor of Delhi and on the same evening,
he summoned the Commissioner of the Municipal Corporation of Delhi and called
for the files relating to the construction of the new Express Building at
Bahadur Shah Zafar Marg, New Delhi. On the next day, the necessary files were
made available. On February 20, 1980, some important files of the Delhi
Development Authority relating to the Express Buildings were sent to respondent
No.2. On February 29, 1980, respondent No.2 through the Commissioner MUNICIPAL
Corporation of Delhi caused the locks of the office and cupboards of the Zonal
Engineer (Building) to be broken open to 386 take away the file relating to the
new Express Building. On March 1, 1980 respondent No.2 convened a press
conference in which he handed over a press release alleging (1) that the new Express
Building put up by the petitioner FAS in contravention of law in several
respects; (11) that he had ordered an inquiry to be made by a committee of
three of his subordinate officials and (111) that the new Express Building
might have to be demolished. On the same day, although the relevant files had
been removed from his office, the Zonal Engineer (Buildings), City Zone,
Municipal Corporation of Delhi served a notice on petitioner No.1, 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. On March 4,
1980, a second press release was issued from the Raj Nivas, to justify the
action of respondent No.2 in initiating the inquiry. The issue of show cause notice
again figured in a third press release dated March 8, 1980. The Ministry of
Works and Housing also submitted the files relating to the construction of the
New Express Building to respondent No.2 on March 7, 1980. On March 1, 1980 the
Engineer Officer in the Land and Development Office under the Ministry of Works
and Housing also issued a notice to the petitioners to show cause within 30
days as to why the property should not be re-entered under clause 5 of the
perpetual lease on the grounds: (1) that the construction of the New Express
Building was without permission from the lessor under the terms of lease; (ii)
that the plans were not submitted for the sanction under the terms of lease by
the lessor; and (iii) that the plans were in contravention of cl.2(5) and 2(14)
of the lease deed. On March 12, 1980 at a specially convened Press Conference,
respondent No.2 released the report of the Committee of his subordinates which
substantiated the view of respondent No.2 and also found that petitioner No.1
was liable to pay Rs. 35 lacs as conversion charges.
The petitioners challenged the validity of
the aforesaid two notices before the Supreme Court under Art.32 of the
Constitution on the grounds: (i) That the Lt.Governor appointed by the
President under Art. 239(1) of the Constitution 18 an Administrator and he
discharges such functions as are entrusted to him by the President of India and
in the absence of a notification under Art. 239(1), the Lt. Governor cannot
usurp the functions of the Union of India in relation to the properties of the
Union: (11) that the Lieutenant-Governor 1 not a successor of the Chief
Commissioner of Delhi. There was notification issued by the President under
Art. 239(1) of the Constitution for 387 the conferral of any power on the Lt.
Governor to administer the lease in question; (ill) that lt 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 tc act for the President with regard to any contract, grant or as
assurance or property of the Union, the Lt.Governor could still arrogate to
himself the powers of the Union of India, Ministry of Works Housing in relation
to the lease; (lv) that respondent No.2, Jagmohan, is actuated with personal
bias against the Indian Express which had published an article in the Indian
Express in April 1977 with regard to his role during the period of Emergency in
Turkman Gate demolitions. The proposed action of re-entry by the lessor i.e.
the Union of India Ministry of works & Housing at the instance of the Lt.
Governor of Delhi is an act of political vendetta. The impugned notices have
been issued with an evil eye and an unequal hand and with a deliberate design
to compel the petitioners to close down the Express Group of Newspapers in
general and the Indian Express in particular. The said notice are ex-facie
illegal and without prediction and are contrary to facts and legal provision .
The arbitrary and discriminatory initiation of executive action under the guise
of alleged infraction of the terms of the lease auditor the Master Plan of
Delhi and or the Municipal building bye-law is violative of the petitioners'
fundamental rights under Arts.14,19(1) (a) and 19(1)(g) of the Constitution;
(v) that the impugned notice issued by the Zonal Engineer (Building) City Zone,
Municipal Corporation of Delhi Dated March 1,1980 was illegal and void as he
did not apply his mind at all to the question at issue but merely issued the
same at the instance of respondent No.2. The construction of the said building
was not without or contrary to the sanction referred to in s.336 or in
contravention of any of the provisions of the Act or bye- laws mate thereunder;
(vi) that the erection of the double basement or a working platform in a
printing press like the Express Newspapers Pvt. Ltd. is a compoundable
deviation from the sanctioned plan and the insistence of the Municipal
Corporation of Delhi to demolish the same suffers from the vice of hostile
discrimination. (vii) that the construction of the new express Building its an
increased FAR of 360 was in conformity with clause 2(5) of the perpetual lease
dated March 17,1958 inasmuch as it was with the express sanction of the lessor
i.e. the Union of India. In terms of the Government of India (Allocation of
Business Rule, 1961 as well 388 as under a notification issued under
Art.299(1), the Ministry of Works & Housing with the Minister at the head
was and is the ultimate authority responsible to deal with the property of the
Union and to enter into all contractual obligations relating thereto. The
Minister had not only full authority, power and jurisdiction to grant
permission to the petitioners to construct the new Express building with an
increased FAR of 360 with a double basement for the installation of the
printing press, but the action taken by the then Government was in good faith
after taking into consideration all the circumstances attendant at all levels.
(viii) that there could be no objection to the construction of the new Express
Building with an increased FAR of 360 as it allowed the residual area of plots
Nos. 9 and 10 to be built in line with other building along the Bahadur Shah
Zafar Marg.
Further, the Master Plan for Delhi
subsequently approved by the Central Government in the year 1962 does not
mention the pre area on the Bahadur Shah Zafar are comprising of the press
enclave. although specified as a commercial area, it is not listed in the list
of already built-up commercial areas because it is relates to the walled city
of old Delhi.
The Zonal development plan for D-II area
within which the pre- plots are located also permitted an FAR of 400 for the
press area in the Bahadur Shah Zafar marg. Therefore , 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 alongwith 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. (ix) That the Express Building at 9-10
Bahadur Shah Zafar Marg forms the nerve-centre of the Express Group of
Newspapers as the editorials and the leading articles of the Indian press are
sent out and the editorial policy laid down from Delhi office to ten centres
all over India. In this factual background, the impugned notices have a direct
impact on the freedom of the press and being in excess of governmental
authority and colourable exercise of statutory powers, are liable to be struck
down is offending Art.l9(1)(a) red with Art.14 of the Constitution. (X) that
the lessor i.e. the Union of India is estoppel by the doctrine of promissory
estoppel and cannot therefore go back upon all assurances given and actions
taken by the previous government, particularly when the petitioners had acted
upon the decisions so reached and had constructed the new Express Building with
a cost of approximately Rs. 1.30 crores by February 1980 which at present would
cost more than Rs 3 crores.
389 It was contended on behalf of respondent
No.1, the Union of India; (1) that the right to occupy the land leased for the
construction of a building for installation of a printing press is not within
Art. 19(1)(a) nor within Art.
19(1)(g) but such a right is derived from a
grant or contract; (2) That the right arising out of a statute or out of a
contract cannot be a fundamental right itself. Once a contract is entered into
or a grant is mate, the rights and obligations of the parties are not
government by Part III of the Constitution but by the term of the document
embodying the contract or the grant, and any complaint about its breach cannot
be a matter for grant of a writ, direction or order under Art. 226 of the
Constitution, such less and.
Art.32, ant since the petitioners are seeking
to enforce a contractual right, lt cannot be decided on a petition under Art.
32 of the Constitution. (3) That the content of Art.
19(1)(g) of the constitution would not
include the right which 1 guarantee by other clauses of Art.19 (4). That the
argument of the petitioners that the building in question is necessary for
running the press and any statutory or executive action to pull it down or
forfeit the lease would directly impinge on the right of freedom of speech ant
expression under Art. 19(1)(g) 18 wholly misconceived inasmuch as every activity
that may be necessary for exercise of freedom of speech and expression or that
may facilitate such exercise or make lt meaningful ant effective cannot be
elevated to the status of a fundamental right. (5) That the right to the land
and the right to construct buildings thereon for running a printing press are
not derived from Art. 19(1) (a) but spring from the terms of the grant of such
lands by the Government under the provisions of the Government grants Act, 1895
and regulated by other laws governing the subject viz. the Delhi Development
Act, 1957 the Master Plan ant the Zonal Development Plan framed thereunder, the
Delhi Municipal Corporation Act, 1957 and the Delhi Municipal Corporation
(Building) Bye-laws, 1959 which regulate construction of buildings in the Union
Territory of Delhi irrespective of the purpose for which the building 18
constructed. (6) That the right to run a press may be a fundamental right
guaranteed under . Art. 19(1)(a) or Art. 19(1)(g) but the right to use a
particular building for running a press is altogether another thing inasmuch as
no particular building is equally fit for the running of the press and the
person desiring to run a press or already running the press is at liberty to
acquire another suitable building for that purpose. Further, even if the
buildings in question were necessary for the enjoyment of the rights under
Art-19(1)(a) or Art. 19(1)(R) 'a right to use a particular building does not
390 become an integral part of the right to freedom of speech and expression'
or the 'right to carry on any trade of business in printing and publishing a
newspaper' and clearly therefore the petitions under Art. 32 are not
maintainable.
(7) That even on a question of fact, the
direct impact of the impugned notices will not be on the double basement
wherein printing press is installed but will be wholly or in part on the two
upper storeys which are not intended to be used in relation to the press or for
publication of the intended Hindi newspaper but only for the purpose of letting
out the same for profit; the only other possible effect any be the removal of
the upper basement which the petitioners call a working platform which has been
constructed in violation of the building regulations. (8) That there was no
imminent danger of demolition of the Express Building nor was the impugned
notice dated March 10, 1980 issued by the Engineer Officer, Land &
Development Office, a notice of re- entry upon forfeiture of lease. It was
merely a notice of an exploratory nature requiring the petitioners to show
cause why the lease should not be forfeited under cl.5 of the lease-deed for
alleged breaches of cls.- 2(5) and 2(14) thereof. The Petitioners should have
therefore entered appearance before the Land & development Officer and
showed cause against the action proposed. It was only if the Land &
Development Officer was not satisfied with their explanation, that he would put
up the papers before the Lt.
Governor for necessary action. It would then
be for the lessor i.e. the Union of India, Ministry of Works & Housing to
decide whether or not the lease should be forfeited under cl.5 of the
lease-deed. (9) That the impugned notice by the Engineer Officer purporting to
act on behalf of the lessor i.e. the Union of India, Ministry of Works &
Housing was not based either on the report of the Three-Member Committee
obtained by the Lt.Governor or on the basis of any communication from him, (10)
That the Lt.Governor had no powers in relation to the properties of the Union
and, therefore, the Union of India 1 not bound by the acts of the Lt. Governor.
The Lt. Governor had no power in relation to the lease and, therefore, he could
not usurp to himself the powers and functions of the Union of India in relation
to the lease deed. However the Lt.Governor as the Administrator had to keep
himself informed and cannot be said to have acted malafide merely because of
any possible personal malus animus on his part, if the quality of the action
was itself in complete accord with the law. (11) That the Government itself was
in possession of relevant records and applied its mind to them and the impugned
notice issued by the Engineer Officer who was empowered to act on behalf of the
President under Act.299(1) of the Constitution 391 having been authenticated in
the manner required by Art.77(3), it must be deemed to be the decision of the
President on the advice of the Council of Ministers as enjoined by Art.74(2)
and the Court was precluded from making any investigation into the
circumstances thereto.
(12) That it was the respondent No.2 to meet
the charges of malafides levelled against him.
On behalf of respondent No.2, the Lt.Governor
of Delhi, it was argued: (1) That the Administrator appointed by the President
under Art.239(1), as amended by the Seventh Amendment, could be called by any
designation, that the Chief Commissioner of Delhi continued to be the
Administrator of the Union Territory of Delhi under Art.239(1) after November
1, 1956 when the Government of Part States Act, 1951 was replaced by 8.130 of
the States Reorganisation
Act, 1956 and that he functioned as such till September 6, 1966 since the Delhi
Administration Act, 1966 continued to use the
nomenclature of Administrator appointed by the President under Art.239(1). It
was for the first time on September 7, 966 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. (2) that the Lt.Governor was successor of the
Chief Commissioner and, therefore, all the powers exercisable by the Chief
Commissioner in relation to the lease vested in him. (3) That the Lt. Governor
was the alter ego of the President in relation to such territory which he is
called upon to administer on behalf of the President. One of the primary
functions of the Lt. Governor, as the Administrator, was to be aware of facts
brought to his knowledge and 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 petitioner
No.1, the Express Newspapers Pvt. Ltd. to build the new Express Building with
an increased FAR of 360. (4) That the Lt. Governor as the appointed agent or
nominee of the President was entitled to act on behalf of the lessor i.e. the
Union of India, Ministry of Works & Housing in relation to the lease and
therefore, he was well within his rights (a) in calling for and making perusal
of the respective files from the Ministry of Works & Housing Delhi
Development Authority and the Municipal Corporation of Delhi pertaining to the
construction of the Express Building with an increased FAR of 360; (b) in
constituting a Three-Member Committee to inquire into the circumstances 392
relating to the grant of sanction by the then Minister of Work & Housing and
to take necessary steps as regards the unauthorised construction of the new
Express Building; and (c) in forwarding the report of the Three-Member
Committee to the concerned authority, meaning the Minister for Works &
Housing for taking necessary steps. (5) that the transfer of administrative
control of the L & O on October 1, 1958 to the Ministry of Works &
Housing did not divest the Chief Commissioner of his contractual powers given
under the lease and he alone represented the lessor i.e. the Union of India and
not the Ministry of Works & Housing (6) 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 power 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 Inquiry Committee under the Commissioner of Inquiry Act, 1952. (7)
that the Union of India or the Lt. Governor of Delhi never intended to inflict
a reprisal on the petitioners for the independent stand of the newspapers they
publish. (8) that the respondents had no personal animosity towards the Express
Group of Newspapers and the criminal complaint for defamation was instituted by
respondent No.2 because the Indian Express was guilty of fabricating and
publishing false, motivated, scandalous stories about respondent No.2 and
others. (9) That he had not ordered the issuance of the notice in question and
that the Land & Development Officer was an authority independent of the
administrative control and supervision of the Lt. Governor.
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 88. 343 and 344
of the Delhi Municipal Corporation Act after verification of the allegations.
(10) That the perpetual lease-deed dated March 18, 1958 governs the
relationship effectively between the Union of India and the Lt. Governor on the
one hand and the petitioners on the other i.e... the contractual relations
between the parties. (11) That the sewer, according to the terms of the
lease-deed, could not be diverted without the consent of the Chief Commissioner
and the approval of the Ministry of Works & Housing was a nullity being
without jurisdiction and legal competence. (12) that for the commercial user of
the residual area to be kept as 'green' it is only the Chief Commissioner (Lt.
Governor) who could give 393 sanction to construct for the commercial user at
the residual area; the petitioners were liable to pay commercial realization
changes; and (13) that lt is for the Chief Commissioner (Lt. Governor) to
decide if the breaches were remediable or as to the nature of the remedies
required for the breach. Since the breaches are not remediable breaches, the
impugned notice dated March 10, 1980 issued by the Engineer Officer, L & O
for re-entry upon the land on forfeiture of the lease for breach of the
conditions was valid and proper.
Counsel for respondent No.4, Municipal
Corporation of Delhi, urged (1) that the Express Newspapers Pvt. Ltd. have no
right to construct the upper basement particularly when the Corporation refused
to accord sanction to it and that, in any event, it was not such an unavoidable
necessity as to break the Law; and (2) that even if some receiving floor may
perhaps be necessary to receive the printed newspapers from the machine, it
would be achieved by locating the machines on a suitable pedestal or by laying
the floor of the basement in such a manner as to discharge the newspaper on the
ground floor; and (3) that under the Master Plan and the Building Bye-laws, not
more than one basement is permissible and that any basement more than one will
have to be reckoned for the purpose of FAR.
Counsel for respondent No.5 Land &
Development Officer contended (1) 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 and (2) that the Land 6
Development Officer is not a functionary under the Ministry of Works &
Housing. He is the officer appointed on behalf of the lessor to administer the
lease. At no stage the petitioners approached the office of Land &
Development for permission to construct on the residual area of 2740 sq.yards
to the west of the pipe-line and no approval was obtained from the office of L
& O for construction of a building in contravention of clauses 2(5), (9)
and (14) of the lease. The so-called permissions and approvals obtained by the
petitioner- have no legal competence or authority under the terms of the
lease-deed 394 which governed the relationship between the petitioners and
respondent no.1.
Allowing the writ petitions, ^
HELD : By the Court (Per A.P. Sen, E.S.
Vankataramiah & R.B. Misra, J.) (1) The writ 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 Buildings built thereon, under cl.5 of the indenture
of lease dated Mar h 17, 1958 for alleged breaches of cls.2(5) and 2(14)
thereof, and 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 88.343
and 344 of the Delhi Municipal Corporation Act, 1957, are quashed. It is
declared that the construction of the new Express Building on the residual
portion of 2740 square yards on the western side of plots no 8. 9 and 10,
Bahadurshah Zafar Marg with an increased FAR of 360 with a double basement for
installation of a printing press for publication of a Hindi daily newspaper was
with toe permission of the lessor i.e.. the Union of India Ministry of Works
& Housing and did not constitute a breach of clauses 2(5) and 2(14) of the
lease-deed. 554 E-; 555 Al (2) The Lt. Governor failed to make a distinction in
this case between the power with respect to the subject 'Property of the Union
and the revenue therefrom' which is in Entry 32 of List I of the Seventh
Schedule to the Constitution and the general powers of administration entrusted
to him under Article 239 of the Constitution as the administrator of the Union
Territory of Delhi. The property in question 18 a part of the estate of the
Central Government. Mere nearness to the seat of the Central 395 Government
does not clothe the Lt. Governor of Delhi with any power in respect of the
property of the Central Government. He can discharge only those powers which
are entrusted to him by the Constitution ant the Laws. It is also not correct
to claim that all the powers of the former Chief Commissioner of Delhi have
devolved on the Lt.Governor and continue to vest in him. [556 B-D] Per A.P.Sen,
J. 1(i) Freedom of the press is comprehended within the right to freedom of
speech and expression guaranteed under Art.19(1)(a). The freedom of thought and
expression, and the freedom of the press are not only valuable freedoms in
themselves but are basic to a democratic from of Government which proceeds on
the theory that problems of the Government can be solved by the free exchange
of thought and by public discussion of the various issues facing the nation. It
is necessary to emphasize and one must not forget that the vital importance of
freedom of speech and expression involves the freedom to dissent to a free
democracy Like ours. Democracy relies on the freedom of the press. It is the
inalienable right of everyone to comment freely upon any matter of public
importance. This right is on of the pillars of individual Liberty-freedom of
speech, which Supreme Court has always unfailingly guarded. Howsoever precious
and cherished the freedom of speech is under Art.19(1)(a), this freedom is not
absolute and unlimited at all times and under all circumstances but is subject
to the restrictions contained in Art.19(2). That must be 80 because
unrestricted freedom of the press and is wholly free from restraints, amounts
to uncontrolled licence which would lead to disorder and anarchy and lt would
be hazardous to ignore the vital importance of our social and national interest
in public order and security of the State. 474 C-D; 475 D-G 1(ii) The extent of
permissible limitations on this freedom are indicated by the fundamental law of
the land itself viz. Art.19(2) of the Constitution. But, permissible
restrictions on any fundamental right guaranteed under Part III of the
Constitution have to be imposed 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 imposed restrictions on
fundamental 396 right is essentially a power to 'regulate' the exercise of
these rights. In fact, 'regulation' and not extinction of that which 18 to be
regulated 18, generally speaking, the extent to which permissible restrictions
any go LPN order to satisfy the test of reasonableness. The t. t laid down by
the Supreme Court 18 whether the direct and immediate impact of the impugned
action 18 on the freedom of speech and expression guaranteed under Art.l9(1)(a)
which includes the freedom of the press.
In the instant case, the very threat 18 to
the existence of a free and independent press. The impugned notices of re-entry
upon forfeiture of lease ant of the threatened demolition of the Express
Buildings are intended and meant to silence the voice of the Indian Express. It
must logically follow that the impugned notices constitute a direct ant
immediate threat to the freedom of the press ant are thus violative of
Art.l9(1)(a) read with Art.14 of the Constitution. It must accordingly be held
that these petitions under Art.32 of the Constitution are maintainable.
[475 H; 476 A-C; 477 D-E] Benett Coleman Co.
Ors. v. Union of India Ors. [1973] 2 S.C.R. 757 followed.
Romesh Thappar V. State of Madras [1950]
S.C.R. 594, SAKAl Papers (P) Ltd. & Anr. v. Union of India [1962] 3 S.C.R.
842 and Express Newspapers (P) Ltd. & Anr. v. Union of India & Ors.
[1959] S.C.R. 12 at 120 relied upon.
The correctness of the landmark decision in
Meneka Gandhi's case and the innovative constriction placed on Art.14 In the
three cases of Royal, Maneka Gandhi and International Airport Authority
(supra), which have evolved new dimensions in judicial process, is no longer
open to question. [472 C-D] Meneka Gandhi v. Union of India [1978] 2 S.C.R.
621, E.P. Boyappa v. State of Tamil Nadu & Anr. [1974] 2 S.C.R.
348 Meneka Gandhi v. Union of India (supra)
and Ramana Dayaram Shetty v. International import Authority of India Ltd. &
Ors. [1979] 3 S.C.R. 1014 affirmed.
All India Bank Employees' Associating v.
National Industrial Tribunal & Ors. [1962] 3 S.C.R. 269 referred to.
397 (3) Even in cases involving purely
contractual issues, the settled law 18 that where statutory provisions of
public law are involved, writs will issue. [484 A] (4) (1) Section 2 of the Government Grants
Act, 1895 excludes the operation of the Transfer of
Property Act, 1892 to Government grants. Section 3 declare that all provisions,
any such grant or transfer as aforesaid shall be valid NT shall take effect
according to their tenor, notwithstanding any rule of law, statute or enactment
of the Legislature to the contrary. A series of judicial decisions pave
determined the overriding effect of s.3 making lt amply clear that a grant of
property by the Government partakes of the nature of law since lt overrides
even legal provisions which are contrary to the tenor of the document. [478
D-E] (4)(ii) There can be no doubt whatever on a true construction of the
impugned notice dated March 10, 1980 that the Engineer Officer, Land &
Development Office purporting to act on behalf of the lessor i.e.. the Union of
India, Ministry of Works Housing served a notice of re-entry upon forfeiture of
lease under cl.5 of the lease-deed. There was no question of the said motley
being construed to be of an exploratory nature. Since respondent No.2 is not
the successor of the Chief Commissioner of Delhi nor has any function in
relation to the lease, there is no warrant for the suggestion that prior
approval of the Lt. Governor is a condition precedent to the right of the
lessor i.e. the Union of India to exercise its right of re-entry upon
forfeiture of lease under cl.5 of the lease-deed. [480 B-D] 4.(iii) The Express
Newspapers Pvt. Ltd. having acted upon the grant of permission by the lessor
i.e. the Union of India, Ministry of Works & Housing to construct the new
Express Building with an increased FAR of 360 together with a double basement
was clearly not an unauthorized occupant within the meaning of s.2(g) of the
Act. The Express Buildings constricted by Express- Newspapers Pvt. Ltd. with
the sanction of the lessor i.e. the Union of India, Ministry of Works &
Housing on plots No-. 9 ant 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
ouster s.2(g). That being so, there is no question of the lessor applying for
eviction of the Express- Newspapers Pvt.
398 Ltd. under 6.5(1) of the Public Premises
(Eviction of unauthorized Occupants) Act, 1971 nor has the Estate Officer any
authority or jurisdiction to direct their eviction under sub-s.(2) thereof by
summary process. Due process of law in a case like the present necessarily
implies the filing of suit by the lessor i.e. the Union of India, Ministry of
Works & Housing for the enforcement of the alleged right of re-entry if
any, upon forfeiture of lease due to breach of the terms of the lease. However,
the Government has the power to take recourse to the provisions of the Public
Premises (Eviction of Unauthorized Occupants) Act, 1971 where admittedly there
is Unauthorized construction by a lessee or by any other person on Government
land which is public premises within the meaning of s.2(e) and such person is
in unauthorized occupation thereof. [484 E-F; 485 A-D] Bishan Das & Ors. v.
State of Punjab & Ors. [1962] 2 S.C.R. 69 affirmed.
Wazir Chaud v. State of H.P. [1955] 1 S.C.R.
408 & Ram Prasad Narayan Sahi v. State of Bihar [1953] S.C.R. 1129 relied
upon.
State of Orissa v. Ram Chandra Dev A.I.R.
1964 S.C. 685 criticised.
5(i) Under the Constitution of India, Delhi
became a Part 'C' State w.e.f. January 26, 1960 and it was provided by Art.
239(1) that a State specified in Part 'C' of the First Schedule shall be
administered by the President acting to such extent as he thinks fit through a
Chief Commissioner or Lt. Governor to be appointed by him. [491 E-F] Art. 239(1)
of the Constitution differed from the provision contained in s.94(3) of the
Government of India Act. 1935 to the extent that the appointment of a Chief
Commissioner or Lt. Governor as an Administrator irrespective of the
designation and entrustment of powers, functions and duties to him by the
President, were not to be in his discretion but had to be exercised on the
advice of the Council of Ministers. Except for this, 8.94(3) of the Government
of India Act, 1935 and Art.239(1) of the Constitution as enacted were identical
in respect of the provisions for the administration of Delhi as a Chief 399
Commissioner's province under the 1935 Act and as a Part 'C' State under the
Constitution, by the Governor-General under 28.94(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 491 H; 492 A-B] 5(ii) Art. 239(1) of the Constitution was amended
by the Constitution (7th Amendment) Act, 1956 w.e.f. November 1, 1956 and for
the words 'through a Chief Commissioner or a Lt. Governor to be appointed by
him' in Art.239(1) as originally enacted, the words substituted are 'through
a-n administrator appointed by him with such designation as he may specify'.
Therefore, the Administrator appointed by the President under Art. 239(1)
whether with the designation of the Chief Commissioner or of the Lt. Governor
could exercise only such powers, functions and duties as were entrusted to him
by the President i.e. there have to be specific entrustment of powers by the
President under Art.239(1).
From November l, 1956 Part 'C' States ceased
to exist by virtue of the Seventh Amendment and in their place Union
Territories were substituted in the First Schedule to the Constitution,
including the Union Territory of Delhi i.e.
the territories which immediately before the
commencement of the Constitution were comprised in the Chief Commissioner's
province of Delhi. [493 A-B; D-E; 493 F-G] 5(iii) On October 1, 1959 decision
was taken by the Government of India to transfer. the administrative control of
the office Of Land & Development Officer, New Delhi from the Delhi
Administration to Ministry of Works, Housing & Supply w.e.f. October l,
1959. This decision was duly communicated to the Chief Commissioner of Delhi
and to the Land & Development Officer, New Delhi. The President of India on
February 1, 1966 issued an order under Art.299(1) of the Constitution which
inter alia directed that in the case of Land L Development Office (1) all
contracts and assurances of property relating to batter falling within the
jurisdiction of Land L Development Officer, (2) all contracts, deeds and other
instruments relating to ant for the purpose of enforcement of the terms and
conditions of the sale/lease-deed of the government property in Delhi/New
Delhi, etc. made in exercise of the executive power of the Union may be
executed on his behalf by the Land & Development Officer. Therefore,
neither the Chief 400 Commissioner nor the Lt. Governor hat anything to do with
the Office of the Land & Development or the administration of nazul lands
in the Union Territory of Delhi after October 1, 1959. They have not been
conferred any authority by the President under Art. 299(1) to enter into any
contracts 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. There is also no notification under Art.
239(1) by the President vesting Chief
Commissioner or the Lt. Governor with any power, functions and duty in relation
to the property of the Union Territory of Delhi. [495 C-D;
F-G; E; 497 A-B] 5(iv) It would therefore,
appear that the territory of Delhi as a Part 'C' State under the First Schedule
to the Constitution was a separate and distinct constitutional entity as from
that of a Chief Commissioner Province under the Government of India Act, 1935,
and this is equally true of the Union Territory of Delhi. It must logically
follow that with the transformation of the territory of Delhi from a Chief
Commissioner's Province under s.94(3) of the Government of India Act, 1935 into
that of a Part 'C' State under the Constitution and after the seventh Amendment
into the Union Territory Delhi, the office of the Chief Commissioner of Delhi
disappeared and that of an Administrator appointed by the President under
Art.239(1) with such designation as he may specify, came into existence. The
necessary concomitant is that the Administrator of the Union Territory of Delhi
derived only such powers, functions ant duties as were entrusted to him by the
President under Art.239(1). [501 C-E] 5-(v) There was no Order in Council
issued by the Governor General under 8.94(3) of the Government of India Act,
1935 nor any Order issued by the President under Art.
239(1) of the Constitution investing the
Chief Commissioner of Delhi to deal with the property of the Union. The matters
relating to the property of the Union of India are included in the seductive
power of the Union under Art.53 of the Constitution read with Art.298 which
expressly provides that the seductive power of the Union shall extent to the
acquisition, holding ant disposal of 401 property and the making of contracts
for any purpose. Such executive power of the Union is vested in the President
under Art.53(1) and shall be exercised by him either directly or through
officers subordinate to him in 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). 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 under
the head `Ministry of Works & Housing'. In the light of the said directive,
as further confirmed by the constitutionally enacted regulations, the power
over the allotment of nazul lands, administration of leases in Delhi and the
control and administration of Land & Development office in particular and
the property of the Union in general are subjects vested solely under the
control of the Ministry of Works & Housing. In the premises, by such
transfer of authority, the Chief Commissioner of Delhi and necessarily his
successor, the Lt. Governor, became bereft of his powers to control and
administer the lease and any attempt by respondent No.2 to set up a claim that
the Lt. Governor is the authority empowered to administer the lease is wholly
frivolous and untenable and must be rejected. [502 F; 503 A-C; E-G] Mohd.
Maqbool Damnoo v. State of Jammu & Kashmir [1972] 2 S.C.R. 1014 &
Edward Mills Co. Ltd. Beawar Ors. v. State of Ajmer & Anr. [1955] 1 S.C.R.
735 distinguished.
6(i)The impugned notices dated March 1, 1980
and March 10, 1980 were not issued bona fide in the ordinary course of official
business for implementation of the law or for securing justice but were actuated
with an ulterior and extraneous purpose ant thus were wholly mala fide and
politically motivated. [519 C] 6(ii)Fraud on power voids the order if it is not
exercised bona fide for the end design. There is a distinction 402 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.
A power is exercised maliciously if its
repository is motivated by personal animosity towards those who are directly
affected by its exercise. Use of a power for an `alien' purpose other than the
one for which the power is conferred is mala fide use of that power. Some 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 power. [507 F-H] 6(iii) It is not for the parties to say what is
relevant or not. The matter is one for the Court to decide.
Mala fides on the part of the Government in
power or its functionaries would be sufficient to invalidate the impugned
notices. [505 F] 6(iv) The petitioners have alleged several facts imputing
improper motives which have not 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. It
is quite evident that no action was contemplated against the Express Newspapers
Pvt. Ltd. by any of the respondents prior to February 17, 1980. Respondent No.2
upon assumption of his office as the Lt. Governor of Delhi on that day
immediately set on a course of action against the Indian Express which
culminated in the issue of the impugned notices. It cannot be doubted that is
initiative to call for the files from the Municipal Corporation relating to the
construction of the new Express Building was an action of his own not provoked
by anyone, much less at the instance of respondent No.1, the Union of India,
Ministry of Works & Housing. The sequence of events set in motion
immediately after his assumption of office as the Lt. Governor demonstrate the
extent to which and the keenness with which he pursued the matter. It would
appear that the entire administrative machinery was geared into action by
respondent no.2 and he `activated' the taking of steps culminating in the issue
of the impugned notices. [509 A-B; 515 A-B] 403 6(v) The dominant purpose which
actuated respondent no.2 in initiating governmental action was not so much for
implementation of the provisions of the Master Plan or the Zonal Development
Plans framed under the Delhi Development Act or the observance of the relevant
Municipal Bye-laws under the Delhi Municipal Corporation Act, but to use these
provisions for an `alien' purpose and in bad faith i.e. for demolition of the
Express Buildings with mark of retribution or political vendetta for the role
of Indian Express during the period of Emergency and thereafter and thereby to
bring about closure of the Indian Express. [512 D-E] 6(vi) It was Somewhat
strange that the Land & Development Officer who was a minor functionary of
the Ministry of Works & Housing should have filed a counter supporting the
action of respondent no.2. There is no doubt that the Land & Development
Officer deliberately made an inaccurate statement that he is not under the
administrative control of the Ministry. [518 B] 6(vii) The contention that
there was imminent danger of demolition of the Express. Building nor was the
impugned notice by the Engineer Officer a notice of re-entry upon forfeiture of
lease, is against the very terms of the impugned notice. There is a categoric
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
forfeiture under cl.5 of the lease-deed. [518 C-E] C.S. Rowjee & Ors. v.
A.P. State Road Transport Corporation [1964] 4 S.C.R. 330 relied upon.
S. Pratap Singh v. State of Punjab [1964] 4
S.C.R. 733
L.R. [1904] A.C. 515 relied upon.
Short v. Poole Corporation L.R. [1926] Ch.D.
66, Lazarus Estates Ltd. v. Beasloy [1956] 1 Q.B. 702 at pp.712- 13, Dr. Ram
Manohar Lohia v. State of Bihar & Ors. [1966] 1 S.C.R. 708 & State of
Punjab v. Ramjilal & Ors. [1971] 2 S.C.R. 550 relied upon.
Barium Chemicals Ltd. & Anr. v. The
Company Law Board [1966] Supp. S.C.R. 311 relied upon.
404 Judicial Review of Administration Action,
4th Edn. pp.335-36 and by Prof De. Smith and H.W.R. Wade's Administrative Law,
5th Edn. pp.42, 348 and 369 referred to.
7(i) The construction of the new Express
Building with an increased FAR of 360 for starting a Hindi Newspaper and the
installation of the printing press in double basement was allowed by the Delhi
Development Authority, in accordance with the provisions of the Master Plan.
[520 H] 7(ii) The Press Enclave on Bahadurshah Zafar Marg otherwise known as
the Mathura Road Commercial Complex is not a `development area' within the
meaning of s.2(3) of the Delhi Development Act, 1957. The Master Plan does not
prescribe any FAR for the press enclave situate on Mathura Road commercial area
nor does such area fall within the `already built-up commercial are `as defined
in the Master Plan i.e. commercial area falling within the walled city of Old
Delhi. Apparently, the contention that the FAR of no commercial area in Delhi
can exceed 400 is wholly misconceived inasmuch as the Master Plan in express
terms permits FAR of the commercial areas in Minto Road and Ranjit Singh Road
at 400. The Zonal Development Plan for the D-II area approved by the Central
Government in November 1966 mentions four 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 Ramlila Ground). Although
in the Zonal Development Plan for D-II area, Asaf Ali Road commercial area is
described as fully developed with no room for expansion, the FAR of which is
admittedly 400, there could be still a further increase in FAR subject to
payment of premium. This could only be under the provisions of the Zonal
Development Plan for D-II area and therefore it must logically follow that the
FAR prescribed in the Zonal Development Plan for Mathura Road commercial area
where the press enclave is situate is 400. The press area is not far from Asaf
Ali Road commercial area. It not only falls in the same D-II area but is
treated as part of a complex of four commercial areas in the Zonal Development
Plan for D-II area. This press area is not even described as fully
commercialized. If FAR 400 is prescribed and allowed for asaf Ali Road
commercial area which is fully developed, it could not possibly be
impermissible for the press area which although fully commercialized was still
not fully developed. [520 D; 524 C- E; 526 D-G] 7(iii) The floor area ratio or
FAR is the restriction on the number of floors in a building with reference to
the plot area. Where FAR is not specified in the Master Plan which 405
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) restricts
the height of a building to 70 feet. This height is to be measured from the
centre of the adjacent portion of the `nearest street'.
Admittedly as is clear from the sanction
plan, the height of the new Express Building is about 47 feet. The adjacent
portion which is the service road is on level with the plinth of the additional
construction. Taking Mathura Road as the 'nearest street' the level of Mathura
Road stretches from 2 ft. to 5 ft. higher than the plinth level of the
additional construction. In any view of the matter, the additional construction
could therefore be permissible if it did not exceed a height of 63 feet. This
is because of bye- law 21(1) and also because of FAR with which is linked the
ground floor coverage is not specified in the Master Plan.
In order to avoid congestion the maximum
height is further restricted under bye-law 22 in proportion to the width of the
abutting street. In the instant case, Mathura Road which is the abutting street
measure in width 150 feet. This is apart from the immediately abutting service
road which, even if reckoned as an abutting street, is 63 feet in width.
Therefore, applying bye-law 22(4) read with
bye-law 21(1), it is the service road of the street that governs the height of
the buildings in the press area as well as the number of floors, the 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. [529 C, E-F; 530 A-C; F-H;
531 A] 7(iv) Bye-law 25(2)(IV-B) only applies to "already built up
commercial areas as indicated in the Master Plan such other areas as may be
declared as commercial areas by the appropriate authority from time to time.
The list of already build-up commercial area as defined in the Master Plan
admittedly does not include the press area on the Mathura Road. At the time of
construction of buildings in the press area, there were also no restrictions as
to the FAR along the Mathura Road and the only restriction on construction of
such buildings was that the allottees of the plots in the press area should
construct buildings upto a height of 60 ft. [533 E-F] 7(v) It must therefore be
held that the permission granted by Sikander Bakht, the then Minister for Works
& Housing for the construction of the w Express Building with an increased
FAR of 360 with a double basement for Installation of the printing press was
not in violation of the Master Plan for Delhi or the Zonal Development Plan for
D-II area or the Delhi Municipal Corporation 406 (Buildings) Bye-laws, 1959
inasmuch as ex facie by-law 26 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. All these commercial areas fall within D-II area for which
the Zonal Development Plan prescribes an FAR of 400.
[535 E-F] 8(i) The non-obstante clause in
section 53(A)(l) of the Delhi Development Act clearly gives an overriding
effect to the sanction granted by the Delhi Development Authority for the
construction of the new Express Building with an increased FAR of 360 and a
double basement for Installation of printing press or the working platform. The
effect of grant of such permission by the Authority was to modify the
sanctioned plans of the Municipal Corporation to that .
tent. That apart the term development as
defined in section 2(t) of the Act includes . the carrying out of
buildings........ in, on, over or under land in any building etc. and is wide
enough to include the structures. in question. As the Authority approved each
of these structures for which the impugned show cause notice under ss. 343 and
344 of the Delhi Municipal Corporation Act, 1957 had been Issued by the Zonal
Engineer (Buildings), City Zone, Municipal Corporation, it is clear that he had
acted beyond his authority and power. [537 A-C] 8(ii) There is no dispute that all
the structures are below the ground. The main purpose of the upper basement
i.e. a working platform measuring 6000 sq.ft. was meant to work the printing
press. If the upper basement or 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. Without the water storage tank the Express
Newspapers Pvt. Ltd. would not get the completion certificate and it is
difficult to understand how the underground tunnel passage, to connect the old
and new Express Building would cause traffic hazard. At any rate, such minor
deviation would not result in a demolition of the Express Building. The manner
in which the impugned notice was got issued by the Municipal Corporation at the
direction of respondent no.2 shows that it was done with an ulterior purpose.
The illegality of the action is writ large and the manner in which it was done
creates a ground for belief that the action was motivated. [538 C-E] 407 8(iii)
It 18 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 use the term `basements'. Moreover,
double basements have, in fact, been permitted in the case of many hotels by
the Delhi Development Authority. [543 B-D] 8(iv) It is difficult to conceive
how the huge printing press with a height of 24 ft. could be placed on a
pedestal or be laid on the floor of the basement in such a manner as to
discharge the newspapers on the ground floor. It is common ground that there is
a working platform in all the other printing presses in the same line of
buildings like that of the Times of India, the National Herald, Patriot and the
old Indian Express Building . In all these buildings, the printing presses are
Installed in the lower basement and there is an over-hanging platform in the printing
press in each of the buildings to receive the printed material.
Therefore, there is no Justification of the
working platform. If the Municipal Bye-laws do not permit the construction of a
double basement then they would be clearly violative of Art.14, 19(1)(a) and
19(1)(g) of the Constitution. [543 F-H; 544 A] 9(i) The basic principle of
estoppel is that a person who by some statement or representation of fact
causes another to act to his detriment in reliance on the truth of it is not
allowed to deny it later, even though it is wrong.
Justice here prevails over truth. Estoppel is
often described as a rule of evidence, but more correctly it is a principle of
law. As a principle of common law it applies only to representation about past
or present facts. But there is also an equitable principle of `promissory
estoppel' which can apply to public authorities. [545 E-F] 9(ii) In public law,
the most obvious limitation on the doctrine of estoppel is that lt cannot be
evoked 80 as to give an overriding u power which lt does not in law possess.
In other words, no sextuple can legitimate
action which 18 ultra vires. Another limitation is that the principle of
estoppel does not operate at the level of Government policy.
Estoppels have however been allowed to operate
against public authority in minor matters of formality where no question of
ultra vires arises. [548 A-C] In the instant case, the then Minister for Works
& Housing acted within the scope of his authority in granting permission of
408 the lessor i.e. the Union of India, Ministry of Works & Housing to the
Express Newspapers Pvt. Ltd. to construct new Express Building with an
increased FAR of 360 with a double basement for inst installation of a printing
press for publication of a Hindi newspaper under the Rules of Business framed
by the President under Art.77(3). Therefore, the doctrine of ultra vires does
not come into operation. In view of this, respondent no.1 the Union of India is
precluded by the doctrine of promissory estoppel from questioning the authority
of the Minister in granting such permission. In that view, the successor
Government was clearly bound by the decision taken by the Minister particularly
when it had been acted upon- [548 D-Fl Robertson v. Minister of Pensions L.R.
[1949] I K.B. 227, Union of India & Ors v. M/s Indo-Afghan Agencies Ltd.
[1968] 2 S.C.R. 366 & Century Spinning
& Manufacturing Co.
Ltd. & Anr. v. Ulhasnagar Municipal
Council & Anr. [1970] 3 S.C.R. 854 M/s.Motgilal Padampat Sugar Mills co,
(P) Ltd. v. State of Uttar Pradesh & Ors. [1980] 3 S.C.R. 689 referred to.
Maritime Elec. Co. v. General Dairies Ltd.
[1937] A.C.
610 P.C. & Southend-on-Sea Corporation v.
Hodgrem (Wickford) Ltd. [1962] 1 Q.B. 416 distinguished.
Judicial Review of Administrative Action 4th
Edn. p.103 by Prof. De Smith & Administrative Law 5th Edn. p.232 by Prof.
H.W.R. Wade, relied upon.
(10) The Express Newspapers Pvt. Ltd. are
liable to pay conversion charges in terms of cl(7) of the lease-deed and it is
directed that the Union of India, Ministry of Works & Housing shall enforce
its claim for recovery of conversion charges by a duly constituted suit or by
making a law prescribing a forum for adjudication of its claim. It is also
directed that the Municipal Corporation of Delhi shall compound the
construction of the double basement of w Express Building, the excess basement
beyond the plinth limit and the underground passage on payment of the usual
composition fee. [555 B-C Per Venkataramish J.
1(i) The material available is sufficient to
hold that the impugned notices suffer from arbitrariness and non- application
of mind. They are violative of Article 14 of the Constitution. Hence they are
liable to be quashed. It is not necessary therefore to express any opinion on
the contentions based on Article 19(1)(a) of the Constitution.
[556 F] 409 1(ii) The said notices were
issued by the authorities concerned under the Pressure of the second
respondent. The question whether the notices should be issued or not does not
appear to have been considered independently by the concerned administrative
authorities before issuing them.
[555 F] 1(iii) The Lt. Governor failed to
make a distinction between the power with respect to the subject 'Property of
the Union and the revenue therefrom' which is in Entry 32 of List I of the
Seventh Schedule to the Constitution and the general powers of administration
entrusted to him under Article 239 of the Constitution as the Administrator of
the Union Territory of Delhi. The property in question is a part of the estate of
the Central Government. Mere nearness to the seat of the Central Government
does not clothe the Lt.
Governor of Delhi with any power` in respect
of the property of the Central Government. He can discharge only those powers
which are entrusted to him by the Constitution and the laws. Moreover, all the
powers of the former Chief Commissioner of Delhi have not devolved on the Lt.
Governor and continue to vest in him. [556 B-D] 2(i) The question arising out
of the lease, such as, whether there has been breach of the covenants under the
lease, whether the lease can be forfeited, whether relief against forfeiture
can be granted etc. are foreign to the scope of Article 32 of the Constitution.
They cannot be decided just on affidavits. These are matters which should be
tried in a regular civil proceeding. One should remember that the property
belongs to the Union of India and the rights in its cannot be bartered away in
accordance with the sweet will of an officer or a Minister or a Lt. Governor
but they should be dealt with in accordance with 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.
[1556 H; 557 A-B] 2(ii) No opinion is
expressed 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 rights of the Union Government to 410 compound
the breaches, if any, committed by the lessee and to regularise the lease by
receiving adequate premium therefor from the 1. see, if lt 18 permissible to do
80.
[557 C-E] 2(iii) It 18 open to the Delhi
Municipal Corporation to examine the matter afresh. independently and to take
such action that may be open to it in accordance with law. The Delhi Municipal
Corporation may, if so advised instead of taking any further action against the
petitioners permit the petitioners to compound the breaches, if any, committed
by them in accordance with law. [557 E-F] Per Misra. J.
1(i) The impugned notices threatening
re-entry and demolition of the construction are invalid and have no legal value
and must be quashed for reasons detailed in the two judgments. [557 H] 1(ii)
The other questions involved in the case are based upon contractual obligations
between the parties.
These questions can be satisfactorily and
effectively dealt with in a properly instituted proceeding or suit and not by a
writ petition on the basis of affidavits which are so discrepant and
contradictory. [558 A-B]
2. The right to the land and to construct
buildings thereon for running a business si not derived from Article 19(1)(a)
or 19(1)(g) of the Constitution but springs from the terms of contract between
the parties regulated by other laws governing the subject, viz., the Delhi Development
Act, 1957, the Master Plan, the Zonal Development Plan framed under the Delhi
municipal Bye-laws, 1959 irrespective of the purpose for which the buildings
are constructed. Whether there has been a breach of the contract of lease or
whether there has been a breach of the other statutes regulating the
constriction of buildings are the questions which can be properly decided by
taking detailed evidence involving examination and cross-examination of
witnesses. [558 B-D] & ORIGINAL JURISDICTION: Writ Petition Nos.535-539 of
1980.
AND Review Petition No. 670 of 1985 (Under
Article 32 of the Constitution of India) F.S. Nariman, P.H. Parekh, Arun Jately
and Pinaki Misra for the Petitioners.
411 Lal Narayan Sinha, M.M. Abdul Khader,
Miss A. Subhashini, C.V. Subba Rao and P.P. Singh for Respondent No.1.
Dr. L.M. Singhvi, Miss A. Subhashini and
Roshan Lal Tandon for Respondent No. 2.
Dr. L.M. Singhvi and Miss A. Subhashini for
Respondent No. 5.
Dr. L.M. Singhvi, Miss A. Subhashini and
Abishek Manu Singhvi for Respondent No.6.
The following Judgments were delivered by :
SEN, J. These petitions under Art. 32 of the
constitution are by petitioner no.1, the Express Newspapers Pvt. Ltd., which is
a company incorporated under the companies Act, 1956 engaged in the business of
printing and publishing the national newspaper the Indian Express (Delhi
Edition) from the Express Buildings at 9-10, Bahadurshah Zafar Marg, New Delhi,
held on a perpetual lease from the Union of India under a registered indenture
of lease dated March 17, 1958. It is a wholly owned subsidiary of petitioner
no.2, the Indian Express Newspapers (Bombay) Pvt.
Ltd. Of which petitioner no.3 Ram Nath Goenka
is the Chairman of the Board of 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-deed. They also
challenge the validity of an earlier notice dated March 1, 1980 issued by the
Zonal Engineer (Buildings), Municipal Corporation, City Zone, 412 Delhi to
petitioner no.1, the Express Newspapers Pvt.Ltd., New Delhi to show cause why
the aforesaid buildings being unauthorized should not be demolished under ss.
343 and 344 of the Delhi Municipal Corporation Act, 1957.
The petitioners allege that the impugned
notices of re- entry upon forfeiture of lease and of threatened demolition of
the Express Buildings at Bahadurshah Zafar Marg, New Delhi which constitute the
nerve center of the newspaper the Indian Express which has the largest combined
circulation among all the daily newspapers in India and is published simultaneously
from eleven cities in the country, are wholly mala fide and politically
motivated. They further allege that the impugned notices constitute an act of
personal vendetta against the Express Group of Newspapers in general, and Ram
Nath Goenka, chairman of the Board of Directors in particular, and are
violative of Arts. 14, 19(1)(a) and 19(1)(g) of the Constitution. We are
informed that a teleprinter is installed at the Express Buildings at
Bahadurshah Zafar Marg from where the Delhi edition of the Indian Express is
published and the editorials, editorial policies and leading articles are
transmitted to ten cities all over India from where the other editorials of the
Indian Express are published simultaneously every day, namely, Ahmedabad,
Bangalore, Bombay, Chandigarh, Cochin, Hyderabad, Madras, Madurai, Vijayawada
and Vizianagaram.
The issues raised in this case are
far-reaching in significance to the maintenance of our federal structure of
Government. It necessarily involves a claim by the Lt.
Governor of Delhi that he has the power and
authority to administer properties of the Union of India within the Union
Territory of Delhi which he is called upon to administer.
The questions presented are whether the Lt.
Governor of Delhi could usurp the functions of the Union of India, Ministry of
Works & Housing and direct an investigation into the affairs of the Union
of India i.e. question the legality and propriety of the action of the then
Minister for Works & Housing in the previous Government at the Centre in
granting permission to the Express Newspapers Pvt. Ltd. to construct the new
Express Building with an increased FAR of 360 with a double basement for
installation of a printing press for publication of a Hindi Newspaper on the
western portion of the demised premises i.e. plots nos. 9 and 10, 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 413 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 Corporation Act, 1957. The ultimate question is whether the
threatened action which the petitioners characterise as arbitrary, illegal and
irrational was violative of Art. 19(1)(a) read with Art. 14 of the
Constitution.
History of the matter :
FACTS OF THE CASE
The facts are somewhat involved and present a
feature which is rather disturbing. It would be convenient to set forth the
facts relating to the impugned notices- Put very briefly, the essential facts
are these. On February 17, 1980, respondent no.2 Jagmohan assumed office as the
Lt. Governor of Delhi. That very evening which was a Sunday, he summoned the
Commissioner of the Municipal Corporation of Delhi and called for the files
relating to the construction of the new Express Building at Bahadurshah Zafar
Marg, New Delhi. On the next day i.e. On the 18th morning, the files relating
to the grant of sanction for the construction of the same were made available
to him. On February 20, 1980, some important files of the Delhi Development
Authority relating to the Express Buildings were sent to respondent no .2. On
February 29, 1980, respondent no.2 through the Commissioner, Municipal
Corporation of Delhi caused the locks of the office and cupboards of the Zonal
Engineer (Building) to be broken open to take away the files relating to the
new Express Building. Immediately thereafter i.e. On March 1, 1980 respondent
no.2 convened a press conference in which he handed over a press release
alleging that the new Express Building put up by the petitioners was in
contravention of law in several respects.
The press release stated inter alia that :
414
1. The government had been receiving
complaints that additional space was sanctioned to the Indian Express Buildings
in total disregard of the provisions of the Master Plan, zonal regulations and
Municipal Corporation bye-laws.
2. The Lt. Governor had ordered an inquiry
into the grant of sanction of the building plans in January 1979 by the
Municipal Corporation for the construction of the new Express Building and had
entrusted the inquiry to a Building and had entrusted the inquiry to a
committee of three of his subordinate officials.
3. The committee had been asked to submit its
report within three days and the authorities of the DDA and the MCD had been
separately directed to extend all co-operation to the committee and made
available all relevant files 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 numbers 9 & 10, you have started
unauthorized construction of excess 415 basement beyond sanction and
construction of upper basement without sanction as shown red in the sketch
below.
Therefore, I, L.S. Pal, Zonal Engineer
(Building) as authorized by the Commissioner under D.M.C. Act, 1957 vide 8. 49
to serve upon you notice and call upon you to appear in my office within three
days of the receipt of this notice during office hours with all relevant records
and documents relating to the above construction to explain as to why under sub
I of clause 343 as to issuing for demolition of unauthorized construction
should not be issued.
Please further note under sub-clause I of
clause 344 you are ordered to stop construction work on this land failing which
under sub-clauses 2 and 3 action will be taken against you and the construction
will be demolished at your risk and cost.
Sd/ (L.S. Pal) Zonal Engineer (Bldg.) Office
Address : City Zone, Municipal Corporation, Delhi.
Served on M/s. Indian Express Newspapers (P)
Ltd. 9/10, Bahadurshah Zafar Marg, Delhi.
Three days after i.e. On March 4, 1980, a
second press release was issued from the Raj Nivas, the official residence of
respondent no.2. It was sent by a special courier to all newspaper offices to
justify the action of respondent no.2 in initiating an inquiry and the mode
that had been prescribed for holding the inquiry. It stated :
In regard to the unauthorized deviations from
the sanctioned plan and construction of about 23,000 sq.ft. in the lower
basement and upper basement, the spokesman indicated that the show cause notice
had been issued by the Corporation authorities.
Further action would be taken in the light of
the reply received by the party concerned.
416 Again, the issue of the show cause notice
figured in the third press release dated March 8, 1980 wherein under the
heading Additional Construction in the Indian Express Buildings the above
extract was repeated verbatim.
Respondent no.2 in his counter had asserted
that the show cause notice was issued by the Commissioner in accordance with
his STATUTORY functions after verification of the allegations. However, it is
asserted that respondent no.2 being responsible for administration of the Union
Territory of Delhi was obliged to ask all the authorities concerned to prevent
violation of lease by any person or institution.
Whereas the 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 :
Regd.A.D.
No. L.II 10(2)/76 Government of India
Ministry of Works & Housing Land & Development Office, Nirman Bhawan,
New Delhi, dated the 10.3.80.
To The Manager, Express Newspapers Ltd., Post
Box No. 751, Express Building, Bahadurshah Zafar Marg, New Delhi.
417 Sub: Premises situated at plot nos. 9
& 10 Delhi Mathura Road, New Delhi.
Dear Sir, I am to inform you that you have
started the construction of additional block on the land to be kept open
without taking the permission from the lessor under the terms of lease nor the
plans were submitted by you for the sanction under the terms of lease by the
lessor for the construction of multistoreyed building over open plot which is
in contravention of clause 2(14) and 2(5) of the lease- deed.
You are, therefore, hereby requested to show
cause within 30 days from the date of receipt of this letter to why the
property should not be re-entered under clause 5 of the perpetual lease.
Please take notice that if satisfactory cause
is shown within the stipulated period as referred to above, action to re-enter
upon the premises will be taken against you without any further reference to
YOU.
This is in supersession of this office letter
of even no. dated 7.3.1980.
Yours faithfully, Sd/-(R.S. Sibal) Engineer
Officer For & on behalf of the President of India.
Tele: 388727.
On March 12, 1980 at a specially convened
press conference respondent no.2 released the report of the committee of his
subordinates. The committee in its report substantiated the allegations which
respondent no.2 had aired at his press conference on March 1, 1980 and through
the press release dated March 4, 1980 and among other findings recorded that
the Express Newspapers Pvt. Ltd. was liable to pay Rs.35 lakhs as conversion
charges. From the report it appears that the Land Development Officer had been
functioning in close coordination with respondent no.2 as is evident from the
following extract from the report of the Three-Member Committee:
"The representative of Land &
Development Officer who was present at the site was directed by the Committee
418 to take measurement of the new constructions. But the A measurement could
not be completed before the Committee left the site. Therefore. the representative
of Land & Development Officer was asked to complete the measurement by
10.3.1980.
It is clear that there had been no
application of mind by the 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, Ministry of Works
& Housing but also procured the files of the Central Government. The
Ministry of Works & Housing apparently made available to the said Committee
all the relevant files of the Government pertaining to the new Express Building.
There was no confidentiality maintained. Without the express authorization of
the Government of India, respondent no.2 published the minutes of the
proceedings of the Government.
After the submission of the report by the
Three-Member Committee, he on March 14, 1980 addressed a letter to the then
Minister for Works & Housing to the effect :
CONFIDENTIAL D.O.No.60/LG/80 March 14, 1980.
Dear Shri P.C. Sethi, I am enclosing, for
your information, a copy of the Enquiry Report in respect of the Indian Express
Building.
Some action may necessary at the Ministry's
end.
419 I am seeking legal opinion to ascertain
as to what action can be taken at this stage to salvage the situation created
by irregularities and illegalities committed in this case. I will write to you
further in the matter.
With kind regards, Yours sincerely, Sd/-
(Jagmohan) Shri P.C. Sethi, Minister for Works & housing, Nirman Bhawan,
New Delhi.
Encl: Enquiry Report From the tenor of the
letter is difficult to imagine that the Lt. L Governor could address such a
letter to a Union Minister. On the same day, the Lt. Governor also addressed to
a letter on similar terms to the Vice-Chairman, Delhi Development Authority and
the Commissioner, Municipal Corporation of Delhi.
Execution of agreement for lease dated May
26, 1954: Allotment of plots nos. 9 & 10, Bahadurshah Zafar Marg to Express
Newspapers Pvt.Ltd.
By an indenture styled as an 'agreement for
lease' executed on May 26, 1954 between the late Feroze Gandhi, Managing
Director, Express Newspapers Pvt. Ltd. Of the one part and the Secretary (Local
Self Government to the Chief Commissioner of Delhi 'by the orders and
directions of the President of India' of the other part, the Express Newspapers
Pvt. Ltd. were allotted plots nos. 9 and 10, Bahadurshah Zafar Marg in terms of
the intended lease entered into between the parties on November 17, 1952,
pursuant to the allotment of the said plots to the Express Newspapers Pvt. Ltd.
for construction of a four-storeyed building meant to be used for a newspaper,
installation of a printing press therefore on the ground floor with residential
accommodation for the staff on the top.
Incidentally, the Central Government had in
the year 1949 demarcated the press area along the Bahadurshah Zafar Marg
consisting of 10 plots nos. 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 420
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. Ltd. On the basis of the aforesaid
agreement, an underground sewer line was found be running diagonally across
plots nos. 9 and 10. Thereupon, the parties entered into negotiations for
modification of the said agreement. It was agreed between the parties that in
view of the underground drain running through the plots, the Express Buildings
would be constructed only to the of the drain and in such a way as to leave the
drainage system unaffected i.e. till the drain was diverted. The Express
Newspapers Pvt. Ltd. was thus disabled from building on a substantial part of
the land allotted to it until the underground drain was realigned outside the
boundary of the two plots. In effect, an area of 2740 square yards to the west
of the drain had to be left open as residual plot of the land out of the total
area of 5703 square yards. The agreement was embodied in a document styled as a
lease agreement executed between the parties on November 19, 1957 80 as to
protect the underground sewage drain and restrict the construction of the
building to the east of the drain.
On April 11, 1956, J.N. Ambegaokar, Under
Secretary to the Government of India, Ministry of Works & Housing addressed
a letter to the Express Newspapers Pvt. Ltd. to the following effect:
"I am directed to state that the
allotment of land to the Indian Express Newspapers on the Delhi Mathura Road,
New Delhi, has been revised on the following d basis: (i) 2965 sq. yards to the
east of pipe line @ Rs. 1,25,000 per acre plus 2-1/2% annual ground 421 rent
thereon; (ii) 2740 sq. yards to the west of the pipe line @ Rs. 36,000 per acre
plus 2-1/2% per acre annual ground rent thereon. In addition to the premium as
indicated above, the following amount should also be recovered : (a) 50% of the
ground rent of Rs. 2424 (@ 2-1/2% of the total premium of Rs.96,955) per annum
for the period from 17.11.1952 the date of original allotment to 14.1.1956 -
Rs. 3838, (b) an advance ground rent for 1-1/2 years @ Rs. 2424 per annum - Rs.
3636." The revised allotment was subject, among others, to the following
conditions:
The area of the west of the pipe line as
mentioned in para 1(ii) of this letter should be maintained as an open space
i.e. as lawns, paths or parking ground. The lessor shall have the right to
construct and maintain another sewer line along this land, if necessary."
The letter went on to say that necessary instructions had been issued to the
Chief Commissioner of Delhi in that behalf with a request that the 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
being plots nos. 9, 10, Bahadurshah Zafar Marg on payment of the yearly rent
Rs.1212 stipulated therein for the h period November 17, 1952 to January 14,
1956 and thereafter @ 422 Rs.2424 per annum. The lease-deed inter alia provided
as per cl.2(4) that the lessee shall keep to the satisfaction of the Chief
Commissioner the area to the west of the sewer line running diagonally on plots
nos. 9 and 10 from north- west to south-west admeasuring 2740 sq. yards as
green i.e.
as open space on which on building activity
was permitted.
The petitioner were charge premium at two
different rates of the leasehold premises. The premium charged was at Rs.36,000
per acre for the area west to the sewer line and for the remaining portion,
i.e. to the east of the sewer line on which construction of the building was
permitted, the price of the land was fixed at Rs.1,25,000 per acre. It may be
mentioned that the above perpetual lease was executed by Assistant Secretary
(Local Self Government) to the Chief Commissioner, Delhi by the order and
direction of the President of India. Likewise, the earlier agreement dated
November 19, 1957, 80 also the supplementary agreement of May 26, 1954 to which
we shall presently refer, were executed by the said officer in the same manner.
Both the agreements stipulated (under clause V of both) that the rules,
REGULATIONS and bye-laws of the Municipal corporation of Delhi relating to
buildings which may be in force from time to time shall be conformed by the
lessee.
On November 17, 1964, a supplemental lease
was executed between the President of India and the Express Newspapers Pvt.
Ltd. allowing the permanent change of user in respect of one lac square feet of
the total accommodation of one and a half lac square feet i.e. two-third of the
total accommodation in the Express Buildings for general office use, commercial
or otherwise, i.e. allowing the petitioners to sub-let upto 2/3rd of the floor
area of the Express Buildings in lieu of payment of a sum of Rs 2,23,875 by
them to the Union of India, the lessor, as an additional premium and in
consideration of their covenant to pay additional ground rent of Rs.5,746.88p.
per annum for the land demised over and above the rent reserved by the
perpetual lease. The recital in the deed was to the effect :
The lessor doth hereby permit the lessee to
use 1,00,000 (one lac) sq.feet out of the total accommodation 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.
423 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 respect of 1,00,000 sq.ft. Of total
accommodation- and it was permitted to let out 75,000 sq.ft. Of the surplus
accommodation with them to the State Trading Corporation for a period of 3
years from February 1, 1960 @ Rs.60 per month per 100 sq.ft. with liberty to
the State Trading Corporation to sublet any part of the area over and above its
own needs.
At the time of construction of buildings in
the press area, there were no restrictions as to the FAR permissible along with
Bahadurshah Zafar Marg, also known as the Mathura Road Commercial Complex, and
the only restriction on construction of buildings in that area was that the
allotters of the plots in the press area should construct buildings upto a
height of 60 feet. Under the agreement of lease dated May 26, 1954, the Express
Newspapers Pvt. Ltd.
was allowed to build upon the entire area of
the plots in question being plots nos. 9 and 10 with a ground coverage of 100%
i.e. edge-to-edge, a structure with a minimum of five storeys including the ground
floor for the purpose of installation of a printing press for publication of a
Hindi newspaper. This permission was granted in response to the plans submitted
by the Express Newspapers Pvt. Ltd. and approved in writing by the Chief
Commissioner of Delhi acting for and on behalf of the lessor i.e. the Union of
India. Such plans as 424 approved permitted construction by the Express
Newspapers Pvt. Ltd. Of a building on the entire area of plots nos. 9 and 10
with 100% ground coverage in conformity with the said agreement. Pursuant
thereto, the Express Newspapers Pvt. Ltd. constructed the old Express Building
to the east of the sewer line with an FAR of 260 with reference to the entire
plot leased to it i.e. plots nos. 9 and 10 although the building occupied only
half of the area. After completion of the old Express Building to the east of
the sewer line on March 14, 1958, the perpetual lease was executed on March 17,
1958, as already stated. The aforesaid supplemental lease was also executed on
November 1, 1964 permitting change of user i.e. enabling the Express Newspapers
Pvt.
Ltd. to sublet two-third of the accommodation
available with it. At no stage did the Central Government go back upon their
solemn commitment embodied in the agreement of lease dated May 26, 1954 under
which the Express Newspapers Pvt.
Ltd. was entitled to construct a four
storeyed Express Building 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.
425 On November 3, 1958 the President of
India in exercise of his powers conferred by cl.2 of Art of the Constitution
issued the Authentication (Orders and Other Instruments) Rules, 1958 relating
to, and dealing with, the conduct of business of the Government of India. In
terms of the said Rules all Secretaries of the Ministries concerned were
authorized to authenticate documents on bahalf of the government of India. On
November 6, 1959 all functions relating to administration of leases of
Government lands in Delhi were transferred from the Chief Commissioner of Delhi
(Local Self Government) to the Ministry of Works & Housing On January 18,
1961 the President in exercise of the powers under Art. 77(3) of the
Constitution made the Government of India (Allocation of business Rules, 1961.
Rule 2 provided that the business of the Government of India shall be
transacted in the Ministries, Departments, Secretaries and Offices specified in
the First Schedule to the Rules. Rule 3 laid down that the distribution of
subjects among the departments shall be as specified in the Second Schedule.
Rule 4 enjoined that the President may on the
advice of the Prime Minister allocate the business of the Government of India
among Ministers by assigning one or more departments to the charge of a
Minister. The Ministry of Works, Housing and Supply is specified in the First
Schedule at serial no.19. Under the Second Schedule, the distribution of
subjects in the Ministry of Works, Housing and Supply is allocated. Entries 1,
6 and 23 (a) and (1) come under the Ministry of Works, Housing and Supply and
read as under :
1. Property of the Union (not being railway,
naval, military or air force works or being the property of the Department of
Atomic Energy) except (i) buildings, the construction of which has been
financed otherwise than from the civil works budget and (ii) buildings, the
control of which has at the time of construction or subsequently, been
permanently made over by the Ministry of Works, Housing and Supply to another
Ministry- 6.Allotment of Government lands in Delhi.
23.Administration of the Ministry and
attached and subordinate organizations, namely :
(a) Central Public Works Department;
** ** ** ** ** (1) Land & Development
Office.
426 In terms of the aforesaid Entries 1, 6
and 23 (a) and (1), all matters relating to the properties of the Union
including allocation of Government lands in Delhi and the administration of the
Land & Development Office were exclusively vested in the Ministry of Works,
Housing and Supply, later the Ministry of Works & Housing 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 the previous authorizations, any contract
or assurance of property relating to any matter whatsoever may be executed by
the Secretary, Special Secretary, Additional Secretary, Joint Secretary or
Deputy Secretary to the Central Government in the appropriate Ministry or
Department'. In terms of the allocation of Business Rules of the Government of
India, the Ministry of Works & Housing was the appropriate authority for
dealing with matters relating to lease of Government lands and in terms of the
aforesaid notification no. GSR 585 issued under Art.299(1), the Secretary,
Additional Secretary, Joint Secretary, Deputy Secretary and Under Secretary in
the Ministry of Works & Housing were authorized to execute such contracts
in the name of the President of India. It cannot therefore be doubted that the
Ministry of Works & Housing with 427 the Minister at the head was and is
the ultimate authority responsible for the following items of work, viz.
Property of the Union, Town & Country Plaining, Delhi Development
Authority, Master Plan of Delhi, Administration of Delhi Development Act, 1957,
the Land & Development Office dealing with administration of nazul lands in
the Union Territory of Delhi .
The Ministry of Works & Housing was and
also is the ultimate authority in respect of the powers, functions and duties
of the Delhi Development Authority as well as the Municipal corporation of
Delhi, including that of the Delhi Water Supply and Sewage Disposal Committee
of the Municipal Corporation of Delhi.
Statutory changes subsequently brought about
in Delhi.
It is common ground that the Delhi
Development Act, 1957 is the paramount law on the subject viz. implementation
of the Master Plan, Zonal Development n an and Building Regulations, and overrides
the Delhi Municipal Corporation Act, 1957. The Delhi Development Act came into
force on December 30, 1957. The provisions of the Delhi Municipal Corporation
Act were brought into force on different dates.
S.2 which is the definition clause, Chapter II
relating the constitution of the Corporation and some other provisions were
brought into force w.e.f. January 2, 1958, 8. 512 on February 15, 1958 and the
remaining provisions including Chapter XIV relating to building regulations
were brought into force on April 7, 1958. On September 10, 1962 the Central
Government approved the Master Plan for Delhi, prepared by the Delhi
Development Authority under s.7 of the Delhi Development Act. The Master Plan
makes specific regulations for 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 428
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 &
Housing, who was the competent authority to act for the President with regard
to any contract, grant or assurance of property of the Union relating to any
manner whatsoever in relation thereto by virtue of the notification issued by
the President under Art. 299(1) and further that the grant of such permission
was after the matter had been dealt with at all levels an-d was in conformity
with the orders of the then Vice-Chairman, Delhi Development Authority dated
October 21, 1978 as one under 'special appeal'.
After the formation of the Janata Government
at the Centre on March 22, 1977 the Express Newspapers Pvt. Ltd.
moved for the removal of the legal impediment
for the construction of the Express Building to the west of the sewer line
first by moving the Municipal Corporation of Delhi for shifting of the sewer
line outside plots nos. 9 and 10 and secondly, by moving the lessor i.e. the
Union of India, Ministry of Works & housing for grant of requisite sanction
to construct the new Express Building with an FAR of 400. On October 7, 1977 it
wrote a letter to the Chief Engineer, Delhi Water Supply & Sewage Disposal
Undertaking, Municipal Corporation of Delhi to inquire whether it was possible
to realign the underground sewer line 80 that it would run outside their
premises and were duly informed that the sewer line could be 80 shifted.
Accordingly on October 25, 1977 the Express Newspapers Pvt. Ltd. addressed a
letter to the Secretary, Ministry of Works & Housing saying that additional
construction on the western portion of plots nos. 9 and 10 leased out was
possible after the sewer line shifted and that they were in need of a larger
amount of because they wanted to start a Hindi newspaper and were also in need
of an additional basement where the printing press would be located. It was
pointed out that because of the underground sewer line running across these
plots, no construction could be undertaken above the sewer line as they had to
leave a safety distance of 25ft. parallel to the same and thus the built-up
area available to them was almost reduced to half i.e. 2963 sq. yards while
other presses in the area like the Times of India, National Herald, Patriot
etc. were able to build over the entire extent of their respective plots. It
accordingly requested the lessor i.e.
the Union of India, Ministry of Works &
Housing for permission to construct on the open space admeasuring 429 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 payment of additional premium etc. had to be dealt with by the Delhi
Division.
Accordingly, on November 14, 1977, R.K.
Mishra, General Manager and authorized representative of Express Newspapers
Pvt. Ltd. waited on the Under Secretary, (Land Division), Ministry of Works
& Housing and was verbally informed that the requisite permission of the
lessor could be sought after the building plans were approved by the Municipal
Corporation of Delhi and it was then that they should seek the approval of the
lessor and at that time the Ministry would intimate what additional premium, if
any, was payable.
The Under Secretary also recorded a note to
that effect.
Thereafter on December 7, 1977 petitioner
no.3 Ram Nath Goenka addressed a letter to Sikandar Bakht, the then Minister
for Works & Housing drawing his attention to the aforesaid meeting where
the representative of Express Newspapers Pvt. Ltd. had been intimated that they
should first submit their building plans to the Municipal Corporation of Delhi
and thereafter seek permission of the lessor which would advise them of the
amount of premium payable for the change of user. He requested the Minister to
issue necessary instructions directing that the plots in the press area should
be treated as commercial complex which entitled the plot-holders to build over
the entire area of the respective plots subject to the restriction of a height
of 60 ft. as stipulated in 1951 without any restriction as to the area of
various floors. There followed a meeting in the Ministry of Works & Housing
on December 20, 1977 when the General Manager of Indian 430 Express and an
official of the Delhi Development Authority were present and the extent of FAR
permissible was specifically discussed. This was followed by a letter of the
General Manager dated December 23, 1977 to the Secretary, Ministry of Works
& Housing in which he referred to the meeting where it was felt that
although the press area was not expressly mentioned in the Master Plan, it
would still fall under the general description of 'other commercial areas'
where only an PAR of 300 was permissible and that it would be 80 despite the
fact that no such limitation existed when the press complex was established. He
referred to the letter of Ram Nath Goenka dated December 7, 1977 to the
Minister wherein permission to build on the entire area of the plots in
question was sought. A copy of the letter was endorsed to the Minister. On
December 30, 1977 the Chief 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 January 7, 1977 J.B.D'Souza, Secretary,
Ministry of Works & housing recorded a detailed note and put it up to The
Minister. It appears that he discussed the case with the Minister on the 7th
and explained to him that the Express Newspapers Pvt. Ltd. had already used up
an FAR of 260 with reference to their leasehold premises i.e. plot nos. 9 and
10 although they had occupied about half of the land with their building. It
was recorded in the note that the assertion that others in the press area had
an FAR of 500 was not factually correct. Maxi = FAR for all the press plots was
300 and below except in the case of Times of India where it was 304 and the
National Herald where it was 306.3.
According to him, the effect of allowing the
petitioners to erect similar building on 431 the other half would mean a rise
of FAR from 300 to 400.
Perhaps an increase from 260 to 360 should be
permitted if the need for starting a newspaper in Hindi was really genuine. The
portion to the west of the sewer line was kept as open and was being used for
parking of cars, and these would have to be parked out on the road, apart from
the extra parking need that the additional construction would give rise to. The
Minister asked the Secretary to discuss the matter with Petitioner no.3 Ram
Nath Goenka and arrive at a suitable solution. As a result, the Secretary noted
as below :
I find it difficult to recommend the FAR
requested by Shri Goenka, as this will inevitably lead to requests from other
plot-holders, including the Times of India, to use up their entire land area
for building upto 60 feet, which will mean in effect a rise of FAR from 300 to
400. The effect on parking and other requirements may not be acceptable.
At the same time it is undeniable that Shri
Goenka is unable to retrieve from his tenants a considerable part of his
existing building, and if his needs of starting a newspaper are really genuine
some considerable concession will be needed. Perhaps an increase from 260 to 60
should be permitted; with the extra basement area the firm will build this
should give it nearly 50,000 extra sq.feet of area.
On January 18, 1978, the Minister for Works
& Housing concurred with the views of the Secretary and ordered as below:
I agree. In the circumstances stated, 'A'
above is the farthest we should accommodate. May process further accordingly.
The Ministry of Works & Housing by letter
dated February 2, 1978 conveyed to the Vice-Chairman, Delhi Development
Authority the decision of the Union of India to permit the petitioners to build
with an FAR of 360 as below :
It has been decided that FAR in this case may
be increased 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.
432 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 upto an FAR of 360 had already been passed and further
construction beyond it would be sanctioned later.
Immediately thereafter the Ministry of Works
& Housing took a decision adverse to the Express Newspapers Pvt. Ltd.
On April 15, 1978, P.B. Rai, TCP-II put up a
note objecting to the Government decision to increase the FAR to 360 on the
ground that it was in total contravention of the Master Plan and would have
serious implications. It is a long note, relevant part of which may be
extracted :
As per Master Plan, FAR 300 in commercial
areas does not exist for any area in Delhi whatsoever.
He further stated that such a decision to
permit construction upto an FAR of 360 would not be implemented by the
Municipal Corporation of Delhi as their existing bye- laws and rules permitted
construction upto 300 only and added that the rules and bye-laws should not be
modified for one particular case or building or for one particular commercial
area.
Upon the receipt of the TCP-II's note, the
Joint Secretary (Delhi Division) on May 6, 1978 directed the Deputy Secretary
to put up a clear note for obtaining the orders of the Secretary Ministry of
Works & Housing and the Minister because the petitioners wanted to build
the 100 coverage, while the TCP-II's note showed that the permissible FAR was
300. Accordingly, the Under Secretary put up a detailed note on May 8, 1978
explaining the various view points, bye-laws etc. and recommended reduction of
FAR to 300. On the same day, the Deputy Secretary marked the file to the Joint
Secretary. On May 18, 1978, the Joint 433 Secretary, (Delhi Division) pointed
out that the petitioners were A not happy with E`AR 360 against their original
demand of 500 and they now wanted FAR 430.67 while the maximum FAR permissible
was 300 as pointed out by the Secretary (Master Plan, Delhi Development
Authority. He therefore recommended restriction of the FAR to 30 as per the
bye-laws of the municipal Corporation of Delhi and the Secretary endorsed the
said recommendation. Therefore, the Minister approved of the restriction of the
FAR to 300.
On May 19, 1978, N.E.. Botch, Vice-Chairman,
Delhi Development Authority wrote to the Joint Secretary, Ministry of Works
& Housing stating that the Government's decision of FAR 360 was totally
unacceptable and added that 'making of exceptions of this nature was precisely
the stick with which the Delhi Development Authority was beaten' for its own
office building i.e. Vikas Minar which far exceeded FAR 400 and Was in breach
of all 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 on August
18, 1978 and the following note was recorded by D'Souza, Secretary in the
Ministry of Works & Housing regarding the discussions :
The JS(D), the Vice-Chairman, DDA and I met
the Minister today and explained the undesirability of allowing the Indian
Express Higher FAR than already proposed in this case, particularly the
repercussions it would have on the other occupants of plots on this road. The
Vice-Chairman suggested 434 another possibility, namely, allotting to the
Indian Express some other land where it could put up a building. The
Vice-Chairman said he would get in touch with Shri Goenka and put this
proposition to him.
The Minister agreed with the Vice-Chairman's,
suggestions.
On October 21, 1978, M.N. Buch,
Vice-Chairman, Delhi Development Authority took the following decisions :
"(a) to amalgamate plots nos. 9 and 10
and taking into account the existing built-up area would permit on FAR of 360
overall;
(b) to allow the residual area of plots nos.
9 and 10 to be built in line with the Times of India and Shama building;
(c) to exclude the basement from the
calculations of the FAR provided the basements are not used for office
purposes;
(d) to permit parking on the service road in
the same manner as it was for the other buildings in this line, adequate
parking facilities would also have to be provided in the set back of
approximately half portion of the line which has been suggested by the Express
Newspapers Pvt.
Ltd. in the drawings.
He further directed that the aforesaid order
was to be treated as one under special appeal. He accordingly gave instructions
for issuing 'no objection' to the Express authorities for construction on the
residual area and to make a reference to the Government of India asking for
confirmation of the action proposed. The Vice-Chairman in his order mentioned
that the Minister for Works & Housing had ordered that the cases should be
cleared immediately and his ex post facto sanction obtained by the Delhi
Development Authority.
On November 4, 1978, R.D. Gohar, Joint
Director (Buildings), Delhi Development Authority addressed a letter to the
petitioners to the effect :
The plans submitted by you have been
examined. I am directed to inform you that there is no objection to 435 amalgamation
of plots nos. 9 and 10 and allowing an overall FAR of 3.6 taking into account
the existing A FAR. In that case the existing building line of the adjoining
plots shall have to be maintained. The 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 & Housing addressed the following letter to the
Vice-Chairman, Delhi Development Authority :
"No.K-12016/2/78-DDA Government of India
Ministry of Works & Housing (Nirman Aur Awas Mantralya) New Delhi, the 24th
November, 1978.
To The Vice-Chairman.
Delhi Development Authority, Vikas Minar, New
Delhi.
Sub: Plots nos. 9 and 10, Bahadurshah Zafar
Marg, New Delhi - Request for additional Coverage.
436 Sir, With reference to your D.O. Letter
No. PA/VC/78/874 dated 17.11.78 and in supersession of this Ministry's letter
of even number dated 9.6.1978, I am directed to say that, as proposed by you,
the Express Newspapers Pvt. Ltd. may be allowed to construct on the residual
plot on the basis of an FAR 360 for the whole plots.
Yours faithfully, sd/- (V.S. Katara) Joint
Secretary to the Government of India.
Copies of the letter were endorsed to the
Commissioner, Municipal Corporation of Delhi, Land & Development Office,
Town & Country Planning Organisation and Express Newspapers Pvt. Ltd. This
was followed by a clarificatory letter from the Ministry of Works & Housing
to the Vice-Chairman dated December 1, 1978 that the FAR 360 allowed excludes
the entire area of basement as per the provisions of the Master Plan.
The permission granted by the lessor i.e. the
Union of India, Ministry of Works & Housing for the construction of new
Express Building with an increased FAR of 360 as accorded by Sikandar Bakht,
the then Minister for Works & Housing was acted upon by the petitioners by
constructing the four-storeyed new Express Building by the end of February,
1980. As already stated, this was done with the sanction of the Delhi
Development Authority and the Municipal Corporation of Delhi.
Pleadings of the Parties I. Petitioners' Case
In the facts and circumstances hereinbefore adumbrated, the petitioners pleaded
inter alia that :
1. The proposed action of re-entry by the
lessor i.e. the Union of India, Ministry of Works & Housing at the instance
of the Lieutenant Governor of Delhi is meant to be an act of political
vendetta. The impugned notices have been issued with an evil eye and an unequal
hand and with a deliberate design to compel 437 the petitioners to close down
the Express Group of Newspapers in general and the Indian Express in
particular. The said notices are ex facie illegal and without jurisdiction and
are contrary to the factual and legal provisions. The arbitrary and
discriminatory initiation of executive action under the guise of 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 built-up area occupied by the old Express
Building built on the eastern portion of the underground sewage drain with an
FAR of 260, the construction of the new Express Building on the western portion
thereof after removal of the sewer line with an overall FAR of 360 was
permissible'.
2. The then Minister for Works & Housing
was throughout guided by the officials of the Ministry, particularly the
Secretary, Ministry of Works & Housing, who was the competent authority to
act for the President with regard to any contract, grant or assurance of
property of the Union relating to any matter whatsoever in relation thereto by
virtue of the notification issued by the President under Art. 299(1). In terms
of the Government of India (Allocation of Business) Rules, 1961 as well as
under 438 The aforesaid notification under Art.299(1), the Ministry of Works
& Housing with the Minister at the head was and is the ultimate authority
responsible to deal with the property of the Union and to enter into all
contractual obligations in relation thereto. The Minister had not only full
authority, power and jurisdiction to grant permission to the petitioners to
construct the new Express Building with an increased FAR of 360 with a double
basement for the installation of the printing press, but the action taken by
the then government was in good faith after taking into consideration all the
circumstances attendant at all levels.
3. After the shifting of the underground
Sewer line outside the leasehold premises at the cost of the petitioners to the
tune of Rs.6 lakhs and on payment of the supervision charges to the Municipal
Corporation amounting to Rs. 25,000, there could be no objection to the
construction of the new Express building with an increased FAR of 360 as lt
allowed the residual area of plots nos.
9 ant 10 to be built in line with the Times
of India, National Herald, Patriot and other buildings along the Bahadurshah
Zafar Marg. At the time of the grant of plots nos. 9 and 10 to the Express
Newspapers Pvt. Ltd., there were no restrictions as to the FAR in the
construction of buildings along the Bahadurshah Zafar Marg.
Further, that the Master Plan for Delhi
subsequently approved by the Central Government in the year 1962 does not
mention the press area on the Bahadurshah Zafar Marg comprising of the press
enclave. Although specified as a commercial area, it is not listed in the list
of "already built-up commercial areas because it relates to the walled
city of Old Delhi. The zonal development plan for D-II area within which the
press plots are located permitted an FAR of 400 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.
439
4. The lessor i.e.. the Union of India is
estopped by A the doctrine of promissory estoppel and cannot therefore go back
upon all assurances given and actions taken by the previous government,
particularly when the petitioners had acted upon the decisions so reached and
had constructed the new Express Building with a cost of approximately RS. 1.30
crore by February 1980 which at present would cost more than Rs.. 3 crores. In
substance, the petitioners contend that where permission of the lessor i.e. the
Union of India has been granted in relation to any property of the Union under
a lease by the authority competent i.e. the Ministry of Works & Housing, it
is not competent for the successor government to treat such permission as being
non est and to proceed as if no such permission or sanction had been granted.
5. The impugned notice issued by the Zonal
Engineer (Building), City Zone, Municipal Corporation of Delhi dated March 1,
1980 upon the Express Newspapers Pvt. Ltd. to show cause why the Express
Buildings should not be demolished under ss. 343 and 344 of the Delhi Municipal
Corporation Act, 1957 was illegal and ineffective inasmuch as the construction
of the said building was not without or contrary to the sanction referred to in
s. 336 or in contravention of any of the provisions of the Act or bye-laws made
thereunder.
The threat to demolish the second basement
especially when similar double basement/platform exists in other newspaper
buildings. in the press area such as the Times of India, National Herald
Patriot etc. along the Bahadurshah Zafar Marg was violative of Arts. 14 F and
19(1)(a) of the Constitution. The denial of the respondents to allow such a
double basement to be constructed by the Express Newspapers Pvt. Ltd. in the
new Express Building clearly infringes the petitioners' right to free speech
and expression guaranteed under Art. 19(1)(a) which includes the freedom of the
press as otherwise the printing apparatus installed in the lower basement would
be rendered incapable of operation and is therefore a sine qua non for the
printing and publication of the Indian Express.
6. The erection of the double basement or a
working platform in a printing press like the Express 440 Newspapers Pvt. Ltd.
is a compoundable deviation from the sanctioned plan and the insistence of the
Municipal Corporation of Delhi to demolish the same suffers from the vice of
hostile discrimination. Even assuming that the municipal bye-laws do not permit
the construction of a double basement in the press area along the Bahadurshah
Zafar Marg, such bye-laws would amount to an unreasonable restriction on the
right to carry on the business of printing and publishing the newspaper and
thus offends Art. 19(1)(g) of the Constitution.
7. Respondent No.2 Jagmohan,
Lieutenant-Governor of Delhi, cannot usurp the functions of the Union of India
in relation to the property of the Union in the Union Territory of Delhi, and
that the Lieutenant Governor 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 of property of the Union, the Lieutenant Governor could still
arrogate to himself the powers of the Union of India, Ministry of Works &
Housing in relation to the lease.
441
9. It is alleged that respondent no. 2
Jagmohan is A actuated with personal bias against the Indian Express and had
filed a criminal complaint against the Chief Editor of the Indian Express and
some of the officers of the Express Group of Newspapers for having published an
article in the Indian Express in April 1977 with regard to his role during the
period of Emergency in Turkman Gate demolitions. The Express Group of
Newspapers, particularly the Indian Express, had during the period of Emergency
and immediately thereafter openly criticized the high handed actions of
respondent no.2 Jagmohan who was the then Vice Chairman of the Delhi
Development Authority for which he was later indicated by the Shah Commission
of Inquiry.
10. The Express Newspapers Pvt. Ltd. contend
that they having approached the Central Government for exercise of its powers
under s.41 of the Delhi Development Act, 1954 for the issue of necessary
directions as regards the permission to build the new Express Building with an
increased FAR of 360 with a double basement for the installation of the printing
press which became necessary due to want of any provision in that behalf in the
Master Plan and the Zonal Development Plan in regard to the press enclave and
the Central Government having issued directions under the relevant provisions,
in terms of 8. 53(3A) of the Act, the sanction of the plan by the Delhi
Development Authority by its letter November 4,' 1978 pursuant to such
direction and its authentication of the building plans approving the portions
objected to by the Municipal Corporation, Delhi, overrides and makes irrelevant
any other sanction granted by the Municipal Corporation subject to any
qualification.
11. The impugned notice issued by the Zonal
Engineer (Building), City Zone, Municipal Corporation of Delhi dated March 1,
1980 was illegal and void as he did not apply his mind at all to the question
at issue but merely issued the same at the instance of respondent no.2.
Further, the impugned notice issued by the Engineer Officer, Land &
Development Office dated March 10, 1980 purporting to act on behalf of the
lessor i.e. the Union of India was factually and 442 legally not a notice of
re-entry upon 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, Housing and
Supply w.e.f. October 1, 1959. It was asserted that this transfer was 'purely
on fiscal grounds' and did not divest the Chief Commissioner/Lt.
Governor of his contractual powers, given to
him by the parties to the lease-deed, as the representative of the President of
India and the Head of the Local Self Government. It was averred that according
to cl.2(14) of the perpetual lease- deed the land to the west of the sewer line
was to be kept as an "open space" i.e. as lawns, paths or parking
grounds to the satisfaction of the Chief commissioner and only the lessor or
the Chief Commissioner hat the right to interfere with the maintenance of this
area and that too only for the purpose of laying a new sewer line along the existing
one. According to cl.2(9) thereof, no excavation in the demise premises should
be made without the written consent of the Chief Commissioner/Lt. Governor of
Delhi. Admittedly, 443 no permission from the Chief Commissioner/Lt.
Governor pursuant to cl. 2(9) and 2(14) was
obtained by the petitioners. It was further asserted that the sewer line,
according to the terms of the lease, could not be diverted by the Municipal
Corporation of Delhi at the cost of the petitioners without the consent of the
Chief Commissioner/Lt. Governor. The petitioners had no right under the lease
to change the character of this land which was to be maintained and by
suppression of material facts obtained permission to build thereon sanction of
building plans from authorities which they knew, under the terms of the lease
was not permissible.
2. In refuting the allegations made by the
petitioners that Engineer Officer, Land 6 Development Office had at the
instigation of the Lt. Governor issued the impugned notice for forfeiture of
the lease, respondent no.2 asserted that he had not ordered the issuance of the
notice in question and that the Land & Development Officer was an authority
independent of the administrative control and supervision of the Lt.
Governor. It was asserted that the impugned
show cause notices were issued by authorities which are independent of the
authority of Lt. Governor or by autonomous local bodies. It was asserted : The
impugned show cause notice by respondent no.5, the Engineer Officer, Land &
Development Office was issued only after he came to know through Press Reports
of certain serious violations of the lease-deed by the petitioners. The show
cause notice by respondent no.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 444 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 independent state of the newspapers they publish. It was added :
"The respondents while welcoming,
creative and constructive criticism of Government policies and actions only
expect a minimum standard of decency and fairness from the Press.
4. It was alleged that the petitioners
indulged in all sorts of Distortions and fabrications in criticizing the
policies and actions of the Union of India and the Lt. Governor" and
despite all this, respondent no.2 had taken an indulgent view of these
delinquencies except when he had to file a criminal complaint against Express
Newspapers Pvt. Ltd. to uphold his self-respect and dignity , - and some of the
petitioners have been summoned to stand their trial by a Court of competent
jurisdiction. It is not disputed that respondent no.2 had filed a criminal
complaint in Criminal Case No. Nil of 1979 in the Court of the Learned
Metropolitan Magistrate, New Delhi against petitioner no. 4 for having
committed alleged offences punishable under ss. 500 and 501 of the Indian Penal
code, 1860 for having published a news item regarding the active role played by
him in the demolition of houses near Turkman Gate in Delhi, which rendered
thousands of persons destitutes and homeless which became the subject of an
enquiry by the Shah Commission during the Emergency. Respondent no.2 makes a
special pleading of the demolition of the Turkman Gate operation during the
Emergency by him as Vice Chairman of the Delhi Development Authority which he
styled as a clearance operation undertaken for the resettlement of the vast
multitude of poor people who were victims of exploitation at the hands of
vested hands and compelled to live in sub-standard human living conditions of
dirt and squalor stating that the 445 clearance operation was undertaken for
improving the A standard of living of the poor and their resettlement. While
admitting that he had filed a criminal complaint against the Editors, Printers
and Publisher of the Indian Express for defamation, he denies that the
respondents had any personal animosity towards the Express Group of Newspapers
and asserted that the criminal complaint for defamation was instituted because
the Indian Express was guilty of fabricating and publishing false, motivated
scandalous stories about respondent no.2 and others.
5. Respondent no. 2 controverted that the
contractual relations between the parties were governed by the lease agreement
dated May 26, 1954 which was modified and superseded by the subsequent lease
agreement dated November 19, 1957, since this had also been substituted by the
registered perpetual lease dated March 17, 1958 which alone, according to him,
governed the relationship effectively and legally between the Union of India
and the Lt. Governor of Delhi on the one hand and the Express 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
Commissioner/Lt. Governor or the Land & Development Officer and, therefore,
the removal of the sewer line itself was illegal and did not create any right
in the Express Newspapers Pvt.
Ltd. to raise any construction on the land to
the west of the old sewer line which was to be kept as "green". It
was denied that by virtue of the transfer of functions relating to
administration of leases executed on 446 bahalf of the Union of India, the
Chief Commissioner/ Lt. Governor was divested of all the powers conferred on
him by the various clauses of the lease-deed. It was asserted that the transfer
of the functions was only "an administrative measure to achieve the
desired fiscal discipline in the matter of administration of properties of the
Union of India. Even after the transfer of functions to the Land &
Development Officer, it was said that all lease agreements are being referred
to the Lt. Governor of Delhi for exercise of powers conferred on him in the
lease agreement.
It is then said that :
"It is also denied that the Ministry of
Works & Housing, as such represents the lessor. It is the Land &
Development Officers the respondent no.5, who represents the lessor (President
of India) for the execution of the leases and their administration under
Art.299(1) of the Constitution. Statutory Bodies like the Municipal Corporation
of Delhi, the Delhi Development Authority, the Urban Arts Commission etc. had
no power under the perpetual lease-deed of 1958 to vary or waive the conditions
of the lease." Upon this basis, respondents no.2 asserted that the
so-called permission obtained by the Express Newspapers Pvt. Ltd. from the
Ministry of Works & Housing was void, illegal and without jurisdiction and,
therefore, a nullity in law.
In para 79, it is averred :
"With reference to para 27(b), lt is
denied that the Land & Development Officer is merely a functionary under
the Ministry of Works & Housing.
He is, in fact, the officer appointed on
behalf of the lessor (President of India/The Chief Commissioner of Delhi) under
the terms of the lease for the execution of management of the lease-deed, it is
submitted that the permission referred to by the petitioners was neither
applied for and obtained nor granted under clause 2(5) of the lease-deed. The
so-called permission, in any case, was not addressed to be petitioner but to
respondent no.6." 447
6. After referring to the 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 decide if the breaches are remediable and
the nature of the remedies required for the breach. If the breaches were not
remediable to the satisfaction of the Chief Commissioner of Delhi, he could
order removal or demolition of the construction complained of. Modification of
the layout plan, conversion of the land use and violation of the FAR prescribed
under the Master Plan and the Municipal Bye-laws are not remediable breaches.
7. Respondent no.2 has specifically denied
that the FAR for D-2 area which includes the Press Enclave is 400, and asserted
that for built up areas which include partly built-up areas, the FAR under the
Municipal Building Bye-laws is only 300.
It was 448 then asserted that the FAR for D-2
area being 300, according to the Municipal Building Bye-laws and the Master
Plan for Delhi, the question of issue of direction by the Central Government
under s.41 of the Delhi Development Act does not arise. Even then, it was said
that the Vice-Chairman of the Delhi Development Authority (M.N. Buch), in view
of this legal position expressed the view in his note dated October 21, 1978
that the case of the Express Newspapers Pvt. Ltd. should be treated as an
isolated case to bring it at par and allow the FAR of 360 overall. According to
him the reason for this as indicated in the note was that the order of Shri
Sikander Bakht, Minister for Works & Housing for immediate clearance of the
case and for obtaining his ex-post-facto sanction".
Respondent No.2 denied that the letters
referred to in para 30(h) and (i) of the petition could be construed as
directions of the Central Government to the Delhi Development Authority under
8. 41 of the Delhi Development Act. Instead of being such a direction, the
Annexure 21 was a clarification of letter dated November 25, 1978 stating that
FAR 360 was allowed excluding the basement. Annexure 22 was said to be a
sanction letter issued by respondent no.1 on January 9, 1979 in respect of
building plans submitted by the Express Newspapers Pvt. Ltd. before respondent
no.3. Even Annexure 20 which is a letter dated November 24, 1978 from the
Ministry of Works & Housing, it was said was not a permission under s. 41
of the Delhi Development Act as it gives the ex-post-facto sanction of the
proposal of the Delhi Development Authority permitting FAR 360 for the Express
newspapers Pvt.
Ltd. It was then added :
"With reference to para 30(j), it is
denied that the actions taken by the Ministry of Works & Housing and the
Delhi Development Authority constituted a 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 449 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 & O on October 1, 1959 to the Ministry of Works & Housing did not
divest the Chief Commissioner of hi contractual powers given under the lease
and he alone represented the lessor i.e. the union of India and not the
Ministry of Works & housing (c) The sewer, according to the terms of the
lease-deed, could not be diverted without the consent of the Chief Commissioner
(Lt. Governor) and the approval of the Ministry of Works & Housing was a
nullity being without jurisdiction and legal competence.
(d) For the commercial user of the residual
area to be kept a 'green', it is only the Chief Commissioner (Lt. Governor) who
could give sanction to construct for the commercial user at the residual area;
the petitioners were liable to pay commercial realization charges.
(e) The Lt. Governor was a successor of the
Chief Commissioner and therefore, the powers exercisable by the Chief
Commissioner in relation to the lease vested in him.
(f) It is for the Chief commissioner (Lt.
Governor) to decide if the breaches were
remediable or as to the nature of the remedies required for the breach.
450 According to him, the breaches are not
remediable breaches and, therefore, the impugned notice dated March 10, 1980
issued by the Engineers Officer, L & DO for re-entry upon the land on
forfeiture of the lease for breach of the conditions was valid and proper. (The
learned Attorney-General has throughout in the course of his arguments on behalf
of respondent no.1, the Union of India maintained that the Lt. Governer of
Delhi had nothing to do with the lease and that wherever the name of the Chief
Commissioner of Delhi appears, it should be scored out from the lease-deed.)
(Emphasis supplied)
9. One S. Rangaswami, Additional Land &
Development Officer, Ministry of Works & Housing filed a separate
counter-affidavit supporting the stand of the Lt. Governor. It was averred in
para 3 :
"The petitioners during the year 1977
applied to the Ministry of Works & Housing for permission to construct on
the residual area of 2740 square yards in plots nos. 9 and 10. The petitioners
have placed reliance on the letters dated June 9, 1978 from Shri L. N. Sukwami
and dated 24th November 1978 from Shri V.S. Katara in the Ministry of Works
& Housing and claimed that these two letters constituted permission to
build on the residual area of plots nos. 9 and 10. I am advised , to state that
under the terms of the lease deed of 1958, previous consent of either the President
of India or the chief Commissioner (Lt. 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 :
451 "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 2740 sq. yards
to the west of the pipe-line and no approval was obtained from the office of
L&DO for construction of a building in contravention of clauses 2(5), (9) and
(14) of the lease. The so-called permissions and approvals obtained by the
petitioners have no legal validity on the short ground of lack of legal
competence or authority under the terms of the lease-deed which governed the
relationship between the petitioners and respondent no. 1." (Emphasis
supplied) The case has seen many twists aud turns. The hearing commenced on
April 27, 1982 and was concluded on September 22, 1983 with intermittence
breaks. I regret to say that the ambivalent attitude adopted by respondent no.1
the Union of India and the hostility of respondent no.2 prolonged the hearing
which lasted as many as 43 days. This has resulted in a colossal waste of
public money and valuable time of the court. On April 29, 1982 when Shri
Nariman, learned counsel for the petitioners had concluded his arguments for
the day.
Shri Parasaran, the learned Solicitor General
made a statement that he wanted to obtain instructions as to whether the
impugned notices issued by the Zonal Engineer (Building), Municipal Corporation
of Delhi dated March 1, 1980 and by the Engineer Officer, Land &
Development Office, dated March 10, 1980 for the forfeiture of the lease of
plots nos. 9 and 10, Bahadurshah Zafar Marg granted by the Government of India
in favour of the Express Newspapers Pvt.
Ltd. and the threat to re-enter upon the
leasehold premises with the new Express Building built thereon and for removal
of the unauthorized structures should be enforced or not. In the facts and
circumstances of the case, we must say that the request for adjournment by the
learned Solicitor General was reasonable and was not opposed by the learned
counsel for the petitioners. We accordingly adjourned the hearing of the Writ
Petitions till August 3, 1983 to enable respondent no.1 the Union of India to
452 take a decision in the matter. On August 23, 1982 the matter was taken up
in Chambers when the learned Solicitor General made a statement that the Writ
Petitions would have to be heart on merits, meaning thereby that the lessor
i.e. the Union of India were not prepared to reconsider the matter.
The learned Solicitor & General later
withdrew from the case.
The strange phenomenon when the hearing was
resumed on November 4, 1982 of the Union of India speaking through the voice of
learned counsel for respondent no.2 was 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 official in the Ministry of Works &
Housing. When we repeatedly enquired from learned counsel for respondent no.1
as to the right of respondent no.5 to be represented by another counsel when he
was appearing for the Union of India, he asserted that Dr.
Singhvi had no right to represent respondent
no.5 Land & Development Officer as he was appearing for respondent no.1 and
he was not bound by his submissions. Again, there was a rather disturbing
feature. Submissions at the bar by learned counsel for the respondents were not
in consonance with the stand taken in the original affidavit filed by
respondent no.2 on behalf of all the respondents. Further, the respondents have
been fillings different affidavits from time tc time to suit their purposes as
the hearing progressed and it was difficult to reconcile the conflicting
averments made in these subsequent Affidavits. It is somewhat unfortunate that
the Government should have embarked upon this course of action.
453 At the resumed hearing on November 4,
1982, we took on A record the further affidavits filed by respondent no.2 dated
July 29, 1982 with certain deletions. In trying to meet the allegations made
against him, respondents no.2 cast aspersions on Sikandar Bakht, the then
Minister for Works & Housing. It was averred :
"But if Ram Nath Goenka approached the
then Minister of Works & Housing, Shri Sikandar Bakht and the latter
misusing his authority and exercising blatant favouritism pressurised the
officers of the Delhi Development Authority, Delhi Municipal Corporation and of
his own Ministry to do totally illegal acts, thereby giving huge financial
benefits to his political associate and friend Ram Nath Goenka, there are no
mala fides.
If the statutory provisions unalterable
through an executive action, of the Delhi Master Plan, Zoning Regulations and
Municipal Bye-laws are ruthlessly violated, there are no mala fides. If expert
advice of the Town & Country Planning Organisation is deliberately
attacked, which, in fact, makes it quite clear that FAR 300 does not exist in
any area in Delhi and that FAR and coverage are prescribed for the locality as
a whole and not for individual building, there are no mala fides. And if senior
officers are sent to an influential businessman to mollify him and in the event
of not being mollified, the illegal and irregular concessions asked for are
granted without even taking the trouble of amending the law of the statutory
provisions, there are no mala fides, according to the writ petitioners-"
On the same day i.e. On 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.
454
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 India in paras 9(b). 11 and 12 of the Writ Petition.
4. What is the reaction of the Union of India
to the averments in the counter-affidavits of respondent no.2 and the affidavit
of respondent no. 5 that the Ministry of Works & Housing does not represent
the lessor and that respondent no.5, the Land & Development Officer alone
represents the lessor. And
5. Whether a successor government was not
bound by the acts of the duly constituted previous government ? Instead of
complying with the directions, respondent no.1 through the affidavit of M.K.
Mukherjee, Secretary, Ministry of Works & Housing dated November 16, 1982
purported to raise certain additional issue :
1 I am advised to say that the orders passed
by Shri Sikandar Bakht, the then Minister for Works & Housing were clearly
illegal, improper and irregular.
2. The powers and functions assigned to the
Chief Commissioner of Delhi under the lease-deed were exercisable by the Lt.
Governor by virtue of the notification issued by the President dated September
7, 1966 under Art. 239(1) of the Constitution.
3. The Land & Development Officer as well
as the Chief Engineer in the office of the Land & Development Officer were
both empowered to take action of the lease-deed and therefore the Engineer
Officer was authorized by the lessor i.e.
the Union of India to issue the impugned show
cause notice as he was competent to do so under cl. 5 of the lease-deed having
been empowered to act on behalf of the President under Art. 299(1).
The said show cause notice was issued on the
basis of which a press report as per the orders recorded on the file of the
Land & Development Officer and not at the instance of the Lt. Governor.
455
4. The order of M.N. Buch, the then Vice-
Chancellor of the DDA dated October 21, 1978 was without any legal authority or
sanction and the said order was passed by him in clear violation of the
procedure laid down in s. 11A(2) of the Delhi Development Act, inasmuch as no
relaxation of the permission for FAR for the D-II area could be made which was
tantamount to a modification of the Master Plan. The said decision cannot be
implemented by the MCD because it would require modification of their existing
bye-laws, which cannot be done for a particular case or building or for one
particular commercial area.
It is then averred :
"I say that the counter-affidavit filed
by respondent 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 sanction, he asserts that M.N. Buch
in fact had no authority to sanction the building plans in the instant case and
that the Additional Secretary, Master Plan, had raised certain objections to
the building plans and no decision on these objections was taken and then adds
:
"Shri Buch contrary to all the views
expressed by himself, the Ministry of Works & Housing, Office of L&DO
and TCPO passed the following orders.
456 This is followed by the terms of the
order in question passed by M.N. Buch. He then avers:
"Under clause 2(5) of the perpetual
lease-deed only the lessor or the Chief Commissioner of Delhi could permit
construction on the residual area of plots no. 9 and 10. The Vice-Chairman, DDA
had no authority under the terms of the lease to permit an additional
construction on these plots. No objection certificate, therefore, issued to the
Municipal Corporation of Delhi and to M/s Express Newspapers Ltd. by the DDA on
4.11.1979 was without jurisdiction and a nullity. The Ministry of Works &
Housing could not have also permitted any construction at the residual area.
Only the Chief Commissioner of Delhi or the Officers authorized by the President
of India under Art.
299 of the Constitution were competent to
grant such permission. The Vice-Chairman, DDA or the Joint Secretary in the
Ministry of Works & Housing were not authorized by the President in
exercise of powers under Art. 299 to administer the lease- deed.
The direction of Shri Buch to treat his order
as one under special appeal was without jurisdiction and, therefore, a nullity.
The procedure prescribed for special appeal was totally disregarded. No
resolution of the DDA was adopted in this regard and as a matter of practice
and rule, special appeal cases are decided only by means of resolution of the
authority. The decision of Shri Buch was in violation of the provisions of the
Delhi Development Act, Master Plan and Municipal Bye-laws.
He then questioned the validity of the
sanction to the building plan granted by the Municipal Corporation of Delhi and
asserts :
"Sanction of the building plans by the
MCD violated the following statutory provisions :
(a) FAR : According to the Municipal Bye-laws,
FAR for a built area could not exceed 300. The Press area being a built up
area, permission to build up to FAR to 360 was violative of the Municipal
Building Bye-laws.
457 (b)Coverage : According 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, no provision was made
for parking of the vehicle within the plot and then adds :
"In the Municipal Bye-laws, there is no
provision for waiving, relaxing and modifying the rules referred to above. The
sanction was, therefore, accorded illegally and under undue pressure from
vested interests.
In his counter-affidavit, M.N Buch avers in
para 3 that he had not authorized respondent no.2 or anyone else to swear an
affidavit on his behalf and, therefore, he was not bound by the same. According
to him, the area in question was not a development area within the meaning of
sub-s.(3) of s. 12 of the Delhi Development Act and as such, question of
according any permisson/approval by the Delhi Development Authority or by any
of its officers did not arise. As regards the communication dated November 4,
1978 issued under the signature of R.D. Gohar, the then Joint Director (Building)
of the Delhi Development Authority, it could not, in his opinion, be treated to
be a permission/sanction accorded under any statutory rule or regulation or
Bye-law.
According to him it was as a matter of fact a
formal correspondence in response to a reference made in that behalf by the
Ministry of Works & Housing and its gist and essence was that the
petitioners could submit plans to the concerned authorities for approval, if
they so chose and that was 458 why, the set of plans as submitted by them, was
returned and no plans were ever approved. On the contrary, the plans were
returned for submission to the appropriate authority for approval. As regards a
number of communications from the Ministry of Works & Housing to him, as
the then Vice- Chairman, M.N. Buch contended that he had no access to the
records of the Delhi Development Authority and due to non- availability of the
records, it was difficult for him to say anything specifically about the same.
In substance, the contention of Buch is that
the area in question was not a duly notified development area" and as
such, question of granting any permission either by the Delhi Development
Authority or by him as the Vice-Chairman did not arise and that no sanction or
approval of the building plans, as alleged or otherwise, was accorded by him as
such. The point of FAR raised in the petition was, according to him, not at all
relevant for a just and proper decision of the case. He further stated that a
perusal of the records would reveal that nowhere in any of the communications
had he stated that any building plan 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 that the case should be cleared 459
immediately and his ex-post-facto sanction obtained. On this basis, we may
issue clearance to the Express Authorities and also make a reference to the
Government of India asking for confirmation of the action taken. 'The order
should be treated as an order under Special Appeal'.
A perusal of the counter-affidavit of M.N. Buch
bears out that the maker or an instrument is not always its best interpreter.
Nothing really turns on the aforesaid two affidavits of M.N. Buch and H.R.
Ailawadi, the then Vice- Chairman OF the Delhi Development Authority which was
just a belated attempt of the respondents to support the action of respondent
no.2 in initiating the proceedings which culminated in the issue of the
impugned notices. The respondents have been shifting their stand from stage to
stage.
Upon these pleadings, the point for determination
that arise may be formulated :
1. Whether the impugned notice of re-entry
upon forfeiture of lease by the Engineer Officer, Land & Development
Office, Ministry of Works & Housing dated March 10, 1980 requiring Express
Newspapers Pvt. Ltd. to show cause why the lessor i.e. the Union of India
should not re-enter upon and taken possession of plots nos. 9 and 10,
Bahadurshah Zafar Marg together with the Express Buildings built thereon and
the impugned notice of the Zonal Engineer (Buildings), Municipal Corporation,
City Zone, Delhi to show cause why the new Express building particularly the
double basement, where the Express Newspapers Pvt. Ltd. have installed the
printing press with the working platform which was a necessary appurtenance to
the installation of the printing press expressly sanctioned by the then
Minister for Works & Housing as well as by M.N. Buch, the then
Vice-Chairman, DDA in conformity with Delhi Development Act, 1957, the Master
Plan and under ss. 343 and 344 of the Delhi Municipal Corporation Act, 1957,
were violative of the petitioners' right to freedom of press guaranteed by Art.
19(1)(a) read with Art. 14 of the Constitution and therefore a petition under
Art. 32 was maintainable.
2. Whether the construction of the new
Express BUILDING on the residual area of 2740 square yards to 460 the west of
sewer-line after its removal on plots nos. 9 and 10 without the permission of
the Lt.
Governor or of the Land & Development
Officer by the petitioners with an increase 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 &
Housing with the Minister at the head was and is the ultimate authority
responsible for the following items of works 'Property of the Union, Town and
Country Planning, Delhi Development Authority, Master Plan of Delhi,
Administration of the Delhi Development Act, 1957, the Land Development Office
dealing with the administration of Nazi Lands in the Union Territory of Delhi.
If that be so whether the orders passed by Sikandar Bakht, the then Minister
for Works & housing granting permission to the petitioners to construct the
new Express Building with an increased FAR 360 on an area of 2740 square yard
to the west of plots no8. 9 And 10 was illegal, improper and irregular.
5. Whether the decision taken by the then
Minister for Works & Housing for permitting construction of the new 461
Express Building with an increased FAR of 360 with a double basement for the
installation of the printing press was in conformity with the recommendation of
M.N. Buch, the then Vice- Chairman, Delhi Development Authority and had been
reached after the matter had been dealt with at all levels in the Ministry of
Works & Housing was binding upon the successor Government i.e. the Union of
India as also the Ministry of Works & Housing and the petitioners having
acted in the faith of such assurance and constructed the new Express Building
thereon at a cost of nearly Rs.2 crores, the respondents particularly respondent
no.1, the Union of India, was precluded by the doctrine of promissory estoppel
from challenging the validity of the permission granted by the then Minister
for Works & Housing. If that be so, whether the present government is bound
to honour all assurances given by or on bahalf of the Union of India, Ministry
of Works & Housing by the then Minister.
6. Whether the Lt. Governor of Delhi has any
function in relation to the lease being a successor of the Chief Commissioner
of Delhi. If that be so, whether the Lt. Governor of Delhi could have set up a
threeman Committee to inquire into and report on the alleged breaches committed
by the petitioners in the construction of the new Express Building with an
increased FAR of 360 or the double basement for installation of the printing
press, contrary to the sanction plan and the building bye-laws of the Municipal
Corporation of Delhi. If that be so, whether the Engineer Officer, Land &
Development Office could have acted on the 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.
462
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 writing of the Chief Commissioner of Delhi or of such
officer or body as the lessor or the Chief Commissioner of Delhi may authorize
in this behalf make any alterations in or additions to the building erected on
the said demised premises so as to affect any of the architectural or
structural features thereof or suffer to be erected on any part of the said
demised premises or any building other than and except the building erected
thereon at the date of these presents." "2.(14). The lessee shall
keep to the entire satisfaction of the said Chief Commissioner the area to the
west of the pipeline admeasuring 2740 sq.yards (which area for clarity's sake
is delienated on the plan hereto annexed and thereon shown in yellow) as an
open space, that is, as lawns, paths or parking grounds." "4. If
there shall at any time have been in the opinion of the Lessor or the Chief
Commissioner of Delhi whose decision shall be final, any breach by lessee or by
any person claiming through or under him of any of the covenants or conditions
contained in sub-cls. (5)....... of cl.2 and if the said intended lessee shall
neglect or fail to remedy any such breach to the satisfaction of the Chief
Commissioner of Delhi within seven days from the receipt of a notice signed by
the Chief Commissioner of Delhi requiring him to remedy such breach it shall be
lawful for the officers 463 of the Chief Commissioner of Delhi to enter upon
the premises hereby demised and (a) to remove or demolish any alterations on or
additions to the buildings erected on the said premises without the previous
consent in writing of the Chief Commissioner of Delhi or duly authorized officer
as aforesaid........ and it is hereby expressly declared that the liberty
hereinbefore given is not to prejudice in any way the power given to the
President of India by cls. 4 and 5 hereof.
5."........(I)f there shall have been in
the opinion of the Lessor or the Chief Commissioner of Delhi whose decision
shall be final, any breach by the Lessee or by any person claiming through or
under him of any of the covenants or conditions hereinbefore contained and on
his part to be observed or performed then and in any such case it shall be
lawful for the lessor or any person or persons duly authorized by him
notwithstanding the waiver of any previous cause or right of re-entry upon any
part of the premises whereby demised or of the buildings thereon in the name of
the whole to re-enter and thereupon this demise and everything herein contained
shall cease and determine and the 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." 464 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' is defined in section 2(b) as including any structure or erection or
part of a structure or erection which is intended to be used for residential,
industrial, commercial or other purposes, whether in actual use or not; And the
term 'building operations as defined in section 2(c) includes rebuilding
operations, structural alterations of or additions to buildings and other operations
normally undertaken in connection with the construction of buildings. In
section 2(d) the term 'development' is defined with all its grammatical
variations to mean the carrying out of building, engineering, mining or other
operations in, on, over or under land or the making of any material change in
building or land and includes redevelopment. The expression 'development area'
is defined in section 2(e) to mean any area declared to be the development area
under sub-s.(1) of s.12.
Under the scheme of the Act, the predominant
object and purpose for which the Delhi Development Authority is constituted
under s.3(1) is to secure the planned development of Delhi. This has to be
achieved by the preparation of Master Plan under s.7(1) and Zonal Development
Plans under s.8(1). Under s.3(3)(a) the Administrator of the Union Territory of
Delhi shall be the Chairman ex-officio of the Delhi Development Authority.
Under s. 6 the Authority is charged with the
duty to promote and secure the development of Delhi according to plan. The
Master Plan as enjoined under s. 7(2)(a) defines the various zones into which
Delhi may be divided for the purpose of development and indicates the manner in
which the land in each zone is proposed to be used (whether by the carrying out
thereon on development or otherwise) and the stages by which any such
development shall be carried out; and by cl.(b) thereof serves as a basic
pattern of frame-work within which the zonal development plans of the various
zones may be prepared. S. 12(1) provides that as soon as may be after the
commencement of this Act, the Central Government may, by notification in the
Official Gazette, declare any area in Delhi to be a development area for the
purposes of this Act. After the commencement of the Act, s. 12(3) enjoins that
no development of land shall be undertaken or carried out in any area by any
person or body (including a department of government) unless,- 465 (i)
"where that area is a development area permission 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 offence to undertake or carry out development of
any land in contravention of the Master Plan or Zonal Development Plans or
without the permission, approval or sanction referred to in s. 12 or in
contravention of any condition subject to which such permission, approval or
sanction has been granted. S.53(3) is important for our purpose and it reads :
53(3):"Notwithstanding anything contained
in any such other law- (a) when permission for development in respect of any
land has been obtained under this Act such development shall not be deemed to
be unlawfully undertaken or carried out by reason only of the fact that
permission, approval or sanction required under such other law for such
development has not been obtained;
(b) when permission for which development has
not been obtained under this Act, such development shall not be deemed to be
lawfully undertaken or carried out by 466 reason only or the fact that
permission, approval or sanction required under such other law for such
development has been obtained." The words 'such other law' in s. 53(3)
obviously refer to the non-obstante clause in sub-s. (2) which reads :
53(2):"... The provisions of this Act
and the rules and regulations made thereunder shall have effect notwithstanding
anything inconsistent therewith contained in any other law. " i.e. the
provisions of the Act have a overriding effect over the Delhi Municipal
Corporation Act, 1957.
The Delhi Municipal Corporation Act, 1957
provides inter alia by s. 332 that no person shall erect or commence to erect
any building, or execute any of the works specified in s. 334 except with the
previous sanction of the Commissioner, nor otherwise than in accordance with
the provisions of this Chapter (Chapter XVI) and of the bye-laws made under
this Act in relation to the erection of buildings or execution of works.
S.334(1) provides that every person who intends to carry on any work of the type
indicated e.g.
in addition to or alterations in any building
or the repairs or alterations of the kind specified shall apply for sanction by
giving notice in writing of his intention to the Commissioner in such form and
containing such information as may be prescribed by bye-laws made in that
behalf. S. 336(1) provides that the Commissioner shall sanction the erection of
a building or the execution of a work unless such building or work would
contravene any of the provisions of sub-s(2) of that section. Sub-s.(2)(a)
provides for one of the grounds on which sanction of building or work may be
refused viz.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 467 any other section that may be taken under the Act, make an order
directing that such erection or work shall be demolished. Proviso thereto
enjoins that no such order of demolition shall be made unless a person has been
afforded a reasonable opportunity of showing cause by a notice in writing as to
why such order shall not be made. Sub-s.(2) provides that the person aggrieved
may prefer an appeal against an order of demolition passed under sub-s.(1) to
the District Judge. Sub-s.(3) confers power on the District Judge to order stay
of demolition. Sub-s.(5) thereof provides that the order made by the District
Judge on appeal and subject only to such order, the order of demolition made by
the Commissioner shall be final and conclusive. Likewise s. 344(1) provides
that where the erection of any building or execution of any work has been
commenced or is being carried on but has not been completed, without or
contrary to the sanction referred to in s. 336 or in contravention of any
conditions subject to which sanction has been accorded or any contravention of
any of the provisions of this Act or bye-law made thereunder, the Commissioner
may by order require the person at whose instance the building or work has been
commenced or is being carried on to stop the same forthwith. The remaining
sub-sections of s.344 are, similar to those as contained in s.343. I may now proceed
to deal with the questions that have been raised.
Maintainability of the Writ petitions under
Art. 32 of the Constitution.
The contention that these petitions are not
maintainable under Art.32 of the Constitution leaves me cold. Some of the crucial
questions that arise have been formulated hereinbefore. These are: (1) Whether
the impugned notice of re-entry upon forfeiture of lease dated March 10, 1980
issued by the Engineer Officer, Land & Development Office under cl.5 of the
lease-deed and that of the Zonal Engineer (Building), City Zone, Municipal
Corporation, Delhi dated March 1, 1980 to show cause why the Express Buildings
should not be demolished as unauthorized construction under ss. 343 and 344 of
the Delhi Municipal Corporation Act, 1957 were arbitrary and irrational without
any factual basis and were therefore violative of Art. 19(1)(a) read with Art.
14 of the Constitution. (2) Whether the Lt. Governor was a successor of the
Chief Commissioner of Delhi in terms of the lease-deed and whether by virtue or
the notification issued by the President under Art. 239(1) of the Constitution,
he could exercise any power in relation to lease of Government lands in the
Union Territory of Delhi. (3) Whether under the paramount law 468 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 argument in reply. First, there was in the present case
no question of infraction of the freedom of the press comprehended within the
freedom of speech and expression guaranteed under Art.
19(1)(a) but the enforcement of the Master
Plan for Delhi and the Zonal Development Plan framed under the Delhi
Development Act, 1957 and the Delhi Municipal Corporation (Building) Bye-laws,
1959 may at the most amount to a restriction on the fundamental rights of the
petitioners to carry an their business guaranteed under Art. 19(1)(g).
Secondly, the right to occupy the land leased
for the construction of a building for installation of a printing press is not
within Art.19(1)(a) nor within Art. 19(1)(g) but such a right is derived from a
grant or contract. Such a right is certainly not within the content of
Art.19(1)(a) or Art. 19(1)(g). It is argued that the right arising out of a statute
or out of a contract cannot be a fundamental right itself. Once a contract is
entered into or a grant is made, the rights and obligations of the parties are
not governed by Part III of the Constitution, but by the terms of the document
embodying the contract or the grant, and any complaint about the breach of the
same, cannot be even a matter for the application for the grant of a writ,
direction or order under Art. 226 of the Constitution, much less under Art.32.
These contentions plausible though it may
seem at first blush, are, on closer scrutiny, nor well-founded. mey ignore the
true object and purpose for which 469 the grant was made, namely, for the
construction of a building or installation of a printing press for publication
of a newspaper and the direct and immediate effect of the impugned notices for
re-entry upon forfeiture of lease and the threatened demolition of the Express
Buildings built on the leasehold premises under c1.5 of the lease-deed for
alleged breach of cls. 2(5) and 2(14) thereof and under ss.
343 and 344 of the Delhi Municipal
Corporation Act, 1957 when the said buildings had been constructed with the
permission of the lessor i.e. the Union of India, Ministry of Works &
Housing, and in conformity with the Master Plan and the Zonal Development Plan
for D-II area as well as with the sanction of the Municipal Corporation of
Delhi and therefore must amount to a violation of the freedom of speech and
expression enshrined in Art. 19(1)(a). I am not impressed at all with the
submissions of learned counsel for respondent no.1 that the forfeiture of lease
or the threatened demolition of the Express Buildings does not touch upon the
right guaranteed under Art. 19(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 threat on the freedom of the press
guaranteed under Art.19(1)(a) of the Constitution. He contends that the
impugned notices were intended and meant to bring about a closure of the Indian
Express and not so much for the professed enforcement of laws governing
building regulations the Delhi Development Act, 1957, the Master Plan for Delhi
and the Zonal Development Plan for D-II area for the Muthura Road Commercial
Complex framed thereunder or the Delhi Municipal Corporation Act, 1957 and the
Delhi Municipal Corporation (Building) Bye-laws, 1959. He further contends that
the respondents cannot be permitted to traverse beyond the 470 pleadings of the
parties as contained in the counter affidavit of respondent no.2 filed on
behalf of the respondents and the supplementary affidavit of M.K.
Mukherjee, Secretary, Ministry of Works &
Housing, or the terms of the impugned notices. In an attempt to justify the
illegal, arbitrary and irrational governmental and statutory action which was
wholly mala fide and politically motivated, he particularly drew our attention
to the terms of the impugned notice issued by the Engineer Officer, Land &
Development Office dated March 10, 1980 which purport to forfeit the lease
under cl.5 of the lease-deed. On two grounds, namely: (1) The additional
construction of the new Express Building by Express Newspapers Pvt. Ltd. on the
western portion of plots nos. 9 and 10 i.e. the land to be kept open as
'green', was without taking permission of the lessor under the terms of the
lease-deed. And (2) The building plans were not submitted for sanction of the
lessor under the terms of the lease and thus there was contravention of cls.
2(5) and 2(14) of the lease-deed. He also pointed out that the impugned notice
of the Zonal Engineer (Building), City Zone, Municipal Corporation, Delhi dated
March 1, 1980 was on the ground that the Express Newspapers Pvt. Ltd. had
started unauthorized construction of excess basement beyond sanction and
construction of upper basement without sanction as shown in red in the sketch
plan annexed thereto and that these were therefore unauthorized constructions liable
to be demolished under ss. 343 and 344 of the Delhi Municipal Corporation Act,
1957. According to the learned counsel, the impugned notices were based on
grounds which were factually incorrect.
Learned counsel further pointed out that the
impugned notice of the Engineer Officer nowhere suggests that the construction
of the said building with an increased FAR of 360 was in breach of the Master
Plan or the Zonal Development Plan for D-II area 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 471 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
snuffing out the Indian Express as a newspaper altogether although it has the
largest combined net sales among all daily newspapers in India. The learned
counsel particularly emphasized the fact that the Express Buildings at 9-10,
Bahadurshah Zafar Marg from the nerve- centre of the Express Group of
Newspapers in general and the Indian Express in particular as the teleprinter
is installed therein. We are informed that the editorials and the leading
articles of the Indian Express are sent out and the editorial policy laid down
from the Delhi office to ten centres all over India. As already stated, the
Indian Express as a newspaper is simultaneously published from Ahmedabad,
Bangalore, Bombay, Chandigarh, Cochin, Delhi, Hyderabad, Madras, Madurai,
Vijaywada and Vizianagaram. In this factual background, the learned counsel
contends that the impugned notices have a direct impact on the freedom of the
press and being in excess of governmental authority and colourable exercise of
statutory powers, are liable to be struck down as offending Art. 19(1)(a) read
with Art. 14 of the Constitution. He contends that the test laid down by this
Court in Bannett Coleman & Co. & Ors. v. Union of India & Ors.
[1973] 2 S.C.R. 757, 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. According to him, that test
is clearly fulfilled in the facts and circumstances of the present case. In my
considered view, the contention of the learned counsel for the petitioners must
prevail.
I regret my inability to accept the
contention to the contrary advanced by learned counsel appearing for respondent
no.1 indicated above that the petitioners are seeking to enforce a contractual
right and therefore the questions raised cannot be decided on a petition under
Art.32 of the Constitution. It is urged that the content of the fundamental
rights guaranteed in Part III of the Constitution demarcate the area within
which the jurisdiction of the Court under Art. 32 can operate and that it is
not permissible for the Court to enlarge upon its jurisdiction by a process of
judicial interpretation.
Placing reliance on certain observations of
Ayyangar, J. in All India Bank Employees' Association v. National Industrial
Tribunal & Ors. [1962] 3 S.C.R. 269, and 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 472 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
supportable by law were per se violative of Art. 14. I am afraid, it is rather
late in the day to question the correctness of the landmark decision in Maneka
Gandhi's case and the innovative construction placed by Bhagwati, J. on Art. 14
in the three cases of Royappa, Maneka Gandhi and International Airport
Authority (supra), which have evolved new dimensions in judicial process.
It is also urged that the argument of learned
counsel appearing on behalf of the petitioners that the building in question is
necessary for running the press and any statutory or executive action to pull
it down or forfeit the lease would directly impinge on the right of freedom of
speech and expression under Art. 19(1)(a) is wholly misconceived inasmuch as
every activity that may be necessary for exercise of freedom of speech and
expression or that may facilitate such exercise or make it meaningful and
effective cannot be elevated to the status of a fundamental right as if it were
part of the fundamental right to free speech and expression. It is further
urged that the right to the land and the right to construct buildings thereon
for running a printing press are not derived from Art. 19(1)(a) but spring from
the terms of the grant of such lands by the Government under the provisions of
the Government
Grants Act, 1895 and regulated by other laws
governing the subject viz. the Delhi Development Act, 1957, the Master Plan and
the Zonal Development Plans framed thereunder, the Delhi Municipal Corporation
Act, 1957, and the Delhi Municipal Corporation (Building) Bye-laws, 1959 which
regulate construction of buildings in the Union Territory of Delhi irrespective
of the purpose for which the building is constructed. It is also urged that
even on a question of fact, 473 the direct impact of the impugned notices will
not be on the double basement wherein printing press is installed but will be
wholly or in part on the two upper storeys which are not intended to be used in
relation to the press or for publication of the intended Hindi Newspaper but
only for the purpose of letting out the same for profit; the only other
possible effect may be the removal of the upper basement which the petitioners
call a working platform which has been constructed in violation of the building
regulations.
Learned counsel for respondent no.1, the
Union of India accepts that the right to carry on the business of printing and
publication of a newspaper and installation of a printing press for that
purpose is undoubtedly a fundamental right guaranteed 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, therefore, ought to be that the fundamental right of freedom of
speech and expression of a person under Art.19(1)(a) cannot extend to the
continued occupation of a place where such right is derived from a grant or
contract. Such a right is certainly not within the content of Art.19(1)(a) or
Art. 19(1)(g). It is accordingly argued that the right arising out of a statute
or out of a contract cannot be a fundamental right itself. Once contract is
entered into or a grant is made, the rights and obligations of the parties are
not governed by Part III of the Constitution, by the terms of the document
embodying the contract or the grant, and any complaint about the breach of the
same, cannot be even a matter for application for grant of a writ, direction or
order under Art. 226 of the Constitution much less under Art. 32. In substance,
the submission is that the right to run a press may be a fundamental right
guaranteed under Art. 19(1)(a) or Art.
474 19(1)(g) but the right to use a
particular building for running a press is altogether another thing inasmuch as
no particular building is equally fit for the running of the press and the
person desiring to run a press or already running the press is at liberty to
acquire another suitable building for that purpose. Further, even if the
buildings in question were necessary for the enjoyment of the rights under Art.
19(1)(a) or Art.19(1)(g), a right to use a particular building does not become
an ' integral part of the right to freedom of speech and expression' or the
'right to carry on any trade or business in printing and publishing a
newspaper' and clearly therefore the petitions under Art.
32 were not maintainable. I am afraid, the
contentions are wholly misconceived and cannot be accepted.
Here, the very threat is to the existence of
a free and independent press. It is now firmly established by a series of
decisions of this Court and is a rule written into the Constitution that
freedom of the press is comprehended within the right to freedom of speech and
expression guaranteed under Art. 19(1)(a) and I do not wish to traverse the
familiar ground over again except to touch upon certain landmark decisions. In
Romesh Thappar v. State of Madras,[1950] S.C.R. 594, the Court observed that
the Founding Fathers realized that freedoms of speech and of the press are at
the foundation of all democratic organizations, for without free political
discussion no public education, so essential for proper functioning of the
processes of popular Government, is possible. In Sakal Papers (P) Ltd. v.
Union of 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 475 responsible we need requisite
freedom of any animadversion for our social interest which ordinarily demands
free propagation of views.
Freedom to think as one likes and to speak as
one thinks are as a rule indispensable to the discovery and separate of truth
and without free speech, discussion may be futile." Romesh Thappar's case
was cited with approval in Express Newspapers (P) Ltd. & Anr. v. Union of
India & Ors.
[1959] S.C.R. 12@ 120. There is in the
Express Newspapers' case an elaborate discussion of the freedom of the press at
pp. 118-128 of the Report. The Express Newspapers' case and also the case of
Sakal Papers were cited with approval by the Court in Bennett Coleman. The
principle is too well- settled to need any more elaboration.
I would only like to stress that the freedom
of thought and expression, and the freedom of the press are not only valuable
freedoms in themselves but are basic to a democratic form of Government which
proceeds on the theory that problems of the Government can be solved by the
free exchange of thought and by public discussion of the various issues facing
the nation. It is necessary to emphasize and one must not forget that the vital
importance of freedom of speech and expression involves the freedom to dissent
to a free democracy like ours. Democracy relies on the freedom of the press. It
is the inalienable right of everyone to comment freely upon any matter of
public importance. This right is one of the pillars of individual
liberty-freedom of speech, which our Court has always unfailingly guarded. I
wish to add that however precious and cherished the freedom of speech is under
Art.19(1)(a), this freedom is not absolute and unlimited at all times and under
all circumstances but is subject to the restrictions contained in Art. 19(2).
That must be so because unrestricted freedom of speech and expression which
includes the freedom of the press and is wholly free from restraints, amounts
to uncontrolled licence which would lead to disorder and anarchy and it would
be hazardous to ignore the vital importance of our social and national interest
in public order and security of the State.
In Bennett Coleman's case the Court indicated
that the extent of permissible limitations on this freedom are indicated by the
fundamental law of the land itself viz.
Art. 19(2) of the Constitution. It was laid
down that permissible restrictions on 476 any fundamental right guaranteed
under Part III of the Constitution have to be imposed 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 Solicitor-General that the
newsprint policy did not violated Art. 19(1)(a) as it does not direct and
immediately deal with the right mentioned in Art. 19(1)(a), the Court held that
the test of pith and substance of the subject-matter and of direct and
incidental effect of legislation are relevant to questions of legislative
competence but they are irrelevant to the question of infringement of
fundamental rights. The true test, according to the Court, is whether the
effect of the impugned action is to take away or abridge fundamental rights. It
was stated that the word 'direct' would go to the quality or character of the
effect and not the subject matter and the restriction sought to be imposed by
the impugned newsprint policy was, in substance, a newspaper control i.e. to control
the number of pages or circulation of dailies or newspapers and such
restrictions were clearly outside the ambit of Art. 19(2) of the Constitution
and therefore were in abridgement of the right of freedom of speech and
expression guaranteed under Art. 19(1)(a), and it added :
"The Newsprint Control Policy is found
to be newspaper control order in the guise of framing an Import Control Policy
for newsprint.
This Court in the Bank Nationalisation case
(supra) laid down two tests. First it is not the object of the authority making
the law impairing the right of the 477 citizen nor the form of action that
determines the invasion of the right. Secondly, it is the effect of the law and
the action upon the right which attracts the jurisdiction of the court to grant
relief. The direct operation of the Act upon the rights forms the real test.
...No law or action would state in words that
rights of freedom of speech and expression are abridged or taken away. That is
why Courts have to protect and guard fundamental rights by considering the
scope and provisions of the Act and its effect upon the fundamental
rights." We have only to substitute the word 'executive' for the word
'law' and the result is obvious. Here, the impugned notices of re-entry upon
forfeiture of lease and of the threatened demolition of the Express Buildings
are intended and meant to silence the voice of the Indian Express. It must
logically follow that the impugned notices constitute a direct and immediate
threat to the freedom of the press and are thus violative of Art. 19(1)(a) read
with Art.14 of the Constitution. 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- 478 Nothing in the Transfer of Property Act, 1882, contained shall apply or be deemed over to have applied to
any grant or other transfer of land or of any interest therein heretofore made
or hereafter to be made by or on behalf of the government to, or in favour of,
any person whomsoever; but every such grant and transfer shall be construed and
take effect as if the said Act had not been passed." "3. Government
grants to take effect according to their tenor- All provisions, restrictions,
conditions and limitations over contained in any such grant or transfer as
aforesaid shall be valid and take effect according to their tenor, any rule of
law, statute or enactment of the Legislature to the contrary notwithstanding.
It is plain upon the terms that s.2 excludes
the operation of the Transfer
of Property Act, 1882 to Government grants. While s.3
declares that all provisions, restrictions, conditions and limitations
contained over any such grant or transfer as aforesaid shall be valid and shall
take effect according to their tenor, notwithstanding any rule of law, statute
or enactment of the Legislature to the contrary. A series of judicial decisions
have determined the overriding effect of s.3 making it amply clear that a grant
of property by the Government partakes of the nature of law since it overrides
even legal provisions which are contrary to the tenor of the document.
Learned counsel appearing for respondent
no.1, the Union of India, fairly conceded that the impugned notice of re-entry
upon forfeiture of lease dated March 10, 1980 issued by the Engineer Officer,
L&DO purporting to be on behalf of the lessor i.e. the Union of India under
cl.5 of the indenture of lease dated March 17, 1958 was invalid and had no
legal effect since there was non-compliance of the mandatory requirements of
c1.6 thereof. But as a very astute counsel he sought to evolve an argument
contrary to the stand taken in the counter-affidavit filed by respondent no.2
on behalf of all the respondents and the supplementary affidavit of M.K.
Mukherjee, Secretary, Ministry of Works & Housing that the 'breach was
irremediable' and therefore the lessor i.e. the Union of India acting through
the Land & Development Officer (L&DO) was entitled to serve a notice
under 479 c1.5 for re-entry upon forfeiture of lease. He contended that the
impugned notice was, in reality, not a notice of forfeiture under c1.5 of the
lease-deed 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 calls
upon the lessee to remove or remedy the misuse or breach within 30 days. If
there is failure on the part of the lessee to remedy such breach within the
time allowed, the L&DO processes the case for exercise by the lessor i.e.
the Union of India of its rights to re-enter upon forfeiture of lease under c1.
5 of the lease-deed. It is said that according to the prevailing practice in
respect of such leases i.e. pre 1959 leases of the kind held by petitioner no.1
Express Newspapers Pvt. Ltd., the approval of the Lt. Governor is considered a
condition precedent to a final order of re-entry which is served on the lessee
after such approval is accorded by the Lt. Governor. In terms of the order of
re-entry the lessee is requested to hand over possession peacefully to the
L&DO within a reasonable time.
However, if the lessee does not hand over
possession voluntarily in pursuance of L&DO's letter, the L&DO files an
application under s. 5(1) of the Public Premises (Eviction of Unauthorized
Occupants) Act, 1971. Under s.8 of the Act the Estate Officer has the same
powers that are vested in the Civil Court under the Code of Civil Procedure,
1908, in trying a suit in respect of matters mentioned therein. The Estate
Officer has to form an opinion that the lessee was in unauthorized occupation
of any public premises and that he should be evicted whereupon the Estate
Officer issues a notice under s.4 by calling upon all persons concerned to show
cause why an order of eviction 480 should not be passed. Under s.9 of the Act
the person aggrieved has the remedy of an appeal to the District Judge and
thereafter he may move the High Court under Art. 226 of the Constitution.
I am not at all impressed by any of these
submissions advanced on behalf of the respondents. There can be no doubt
whatever on a true construction of the impugned notice dated March 10, 1980
that the Engineer Officer, Land & Development Office purporting to act on
behalf of the lessor i.e. the Union of India, Ministry of Works & Housing
served a notice of re-entry upon forfeiture of lease under c1.5 of the
lease-deed. There was no question of the said notice being construed to be of
an exploratory nature. The note prepared by the L&DO is nothing but an
afterthought. In the view that I take that respondent no.2 is not the successor
of the Chief Commissioner of Delhi nor has any function in relation to the
lease. There is no warrant for the suggestion that prior approval of the Lt.
Governor is a condition precedent to the right of the lessor i.e. the Union of
India to exercise its right to re-entry upon forfeiture of lease under 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 but the
petition was dismissed in limine on the preliminary ground that the matter
involved disputed questions of fact. An appeal under c1.10 of the Letters
Patent was also dismissed on the same ground. The petitioners then moved this
Court under Art.32. The State Government sought to justify the action on the
ground that the petitioners were merely trespassers as the land on which the
dharamsala stood belonged to the State, and the respondents were entitled to
use the minimum of force to eject the trespassers. It was also contended that
there was a serious 481 dispute on questions of fact between the parties and
also whether the petitioners had any right or title to the subject matter in
dispute and therefore proceedings by way of a writ were not appropriate in the
case inasmuch as the decision of the court would amount to a decree declaring a
party's title and ordering restoration of possession. The Court repelled both
the contentions as unsound and held that the petitioners had made out a clear
case of violation of their fundamental rights. As to the contention that the
petitioners were mere trespassers, the Court held that the admitted position
was that the land belonged to the State;
with the permission of the State, Ramjidas on
behalf of the joint family firm of Faquir Chand Bhagwan Das built the
dharamsala, temple and shops and managed the same during his lifetime. After
his death the petitioners, other members of the joint family continued in
possession and management. On this admitted position, it was held that the
petitioners could not be held to be mere trespassers in respect of the
dharamsala, temple and shops; nor could it be held that the dharamsala, temple
and shops belonged to the State irrespective of the question whether V the
trust created was of a public or private nature, and it was observed :
"It is, therefore, impossible to hold
that in respect of the dharamsala, temples and shops, the State has acquired
any rights whatsoever merely by reason of their being on the land belonging to
the State. If the State thought that the constructions should be removed or
that the condition as to resumption of the land should be invoked, it was open
to the State to take appropriate legal action for the purpose." As to the
second contention, the Court observed :
"It was enough to say that they are bona
fide in possession of the constructions in question and could not be removed
except under authority of law. The respondents clearly violated their
fundamental rights by depriving them of possession of the dharamsala by
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.
482 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
apart from what might legitimately and reasonably be expected from a Government
functioning in a society governed by a Constitution which guarantees to its
citizens against arbitrary invasion of the executive of peaceful possession of
property.
The Court also adverted to the earlier
decision in Wazir Chand v. State of H.P., [1955] 1 S.C.R. 408, where it was
held that the State or its executive officers cannot interfere with the rights
of others unless they can point to some specific rule of law which authorises
their acts, and to Ram Prasad Narayan Sahi v. State of Bihar, [1953] S.C.R.
1129, where the Court said that nothing is
more likely to drain the vitality from the rule of law than legislation which
singles out a particular individual from his fellow subjects and visits him
with a disability which is not imposed upon the others, and concluded :
"We have here a highly discriminatory
and autocratic act which deprives a person of the possession of property
without reference to any law or legal authority. Even if the property was trust
property it is difficult to see how the Municipal Committee, Barnala, can step
in as trustee on an executive determination only. The reasons given for this
extraordinary action are, to quote what we said in Sahi's case (supra),
remarkable for their disturbing implications.
In the later case of State of Orissa v. Ram
Chandra Dev, A.I.R. 1964 S.C. 685, Gajendragadkar, J. delivering the judgment
of the Constitution Bench observed :
483 "Oridinarily, where property has
been granted by the State on condition which make the grant resumable, after
resumption it is the grantee who moves the Court for appropriate relief, and
that proceeds on the basis that the grantor State which has reserved to itself
the right to resume may, after exercising its right, seek to recover possession
of the property without filing a suit." All that the Court laid down was that
the existence of a right is the foundation for a petition under Art. 226 of the
Constitution. In that case, certain ex-zamindars of Ganjam district were
holding Government Lands appurtenant to their office as Muthadars and were
dispossessed therefrom upon resumption of their Muthas. The Court held that the
lands were held by the ex-zamindars as service tenures which were resumable at
the will of the Government. The parties were at issue on the question about the
character of the grant under which the predecessors of the ex-zamindars were
originally granted the 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 respondents merely on the ground of their possession under Art.
226 unless their right to remain in possession was established against the
State Government.
There is no reference to the earlier decision
of the Constitution Bench in Bishan Das' case nor does the judgment lay down
any contrary principle. It seems to me that the observations of Gajendragadkar,
J. were merely in the nature of obiter in Ramchandra Dev's case and nothing
really turns on the observations made by him. The decision in Ramchandra Dev's
case appears to be in per incuriam.
484 Even in cases involving purely
contractual issues, the settled law is that where statutory provisions of
public law are involved, writs will issue: Md. Hanif v. State of Assam[1970] 2
S.C.R. 197.
For the sake of completeness, I wish to clear
the ground of a possible misconception. Learned counsel appearing for
respondent no.1 the Union of India while contending that the impugned notice
dated March 10, 1980 was of an exploratory nature, fairly conceded that the
lessor i.e. the Union of India must enforce its right of re-entry upon
forfeiture of lease under c1.5 of the lease-deed by recourse to due process of
law and wanted to assure us that there was no question of marching the army or
making use of the demolition squad of the Delhi Development Authority or the
Municipal Corporation of Delhi in demolishing the Express Buildings. As we felt
that there was some ambiguity in the expression 'due process of law', we wanted
a categorical answer whether by this he meant by a properly constituted suit.
Without meaning any disrespect, the learned counsel adopted an ambivalent
attitude saying that the due process may not only consist in the filing of a
suit by the lessor or re-entry upon forfeiture of the lease but that in the
case of lease of Government Lands, the authorities may also take recourse to
the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. I have no
doubt in my mind that the learned counsel is not right in suggestion that the
lessor i.e. the Union of India, Ministry of Works & Housing can in the
facts and circumstances of the case, take recourse to the summary procedure
under that Act.
The Express Newspapers Pvt. Ltd. having acted
upon the grant of permission by the lessor i.e. the Union of India, Ministry of
Works & Housing to construct the new Express Building with an increased FAR
of 360 together with a double basement was clearly not an 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.
485 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 jurisdiction to direct their eviction under
sub-s.(2) thereof by summary process. Due process of Law in a case like the
present necessarily implies the filing of suit by the lessor i.e. the Union of
India, Ministry of Works & Housing for the enforcement of the alleged right
of re- entry, if any upon forfeiture of lease due to breach of the terms of the
lease.
Nothing stated here should be construed to
mean that the Government has not the power to take recourse to the provisions
of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 where
admittedly there 18 unauthorized construction by a lessee or by any other
person on Government Land which is public premises within the meaning of s.2(e)
and such person is in unauthorized occupation thereof.
The constitutional position of the Lieutenant
Governor : Whether the Lieutenant-Governor is the successor of the Chief
Commissioner of Delhi.
One of the most crucial issues on which long
and erudite arguments were advanced by learned counsel for the parties, turned
on the question as to whether the Lt.
Governor was a successor of the Chief
Commissioner of Delhi.
Learned counsel appearing for the petitioners
contended that the Lt. Governor cannot usurp the functions of the lease i.e.
the Union of India or the Chief Commissioner of Delhi in relation to the lease
in question. It is urged that the Union Territory of Delhi which first became a
Part 'C' State under the Constitution, was an entirely new constitutional
entity and therefore the office of the Chief Commissioner of Delhi ceased to
exist. It is further urged that the Lt.
Governor appointed by the President under
Art. 239(1) of the Constitution is an Administrator and he discharges such
functions as are entrusted to him by the President of India and in the absence
of a notification under Art. 239(1), the Lt. Governor cannot usurp the
functions of the Union of India in 486 relation to the properties of the Union.
It is pointed out that there was no notification issued by the President of
India in terms of Art.239(1) of the Constitution empowering the Lt. Governor to
administer the properties of the Union in the Union Territory of Delhi.
Learned counsel appearing for the Union of
India substantially advanced the same argument. According to him, the Lt.
Governor had no powers in relation to the properties of the Union and therefore
the Union of India is not bound by the acts of 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 of 1919 and 1935 or as the Lt.
Governor under the Constitution was a mere
matter of nomenclature, the learned counsel referred to the provisions relating
to the powers, functions and duties of the Chief Commissioner or the Lt.
Governor, as the case may be, which remained the same. In his words, the Lt.
Governor is the 'eyes and ears' of the President in relation to such territory
which he is called upon to Administer on behalf of the President. One of the
primary functions of the Lt.
Governor, as the Administrator, is to be
aware of facts brought to his notice and therefore respondent no.2 could not
have turned a blind eye to the action of Sikandar Bakht, the then Minister for
Works & Housing in making a highly fraudulent, illegal and improper grant
of permission to the Express Newspapers Pvt. Ltd. to build the new Express
Building with an increased FAR of 360 with a direction to the Municipal
Corporation of Delhi to accord sanction to the building plan 487 submitted to
them, as it had become the talk of the town. As already stated, learned counsel
for respondent no.1 while contending that the Lt. Governor, as an
Administrator, had no function as the lessor or its delegate, supported him
only to the extent that as an Administrator he had to keep himself informed of
any violations of law in the Union Territory of Delhi with the administration
of which he was concerned. It was, therefore, legitimate for the Lt.
Governor to have kept the authorities
informed, and though he had no independent power of his own, he could place the
material gathered by him with the lessor i.e. Union of India, Ministry of Works
& Housing, with a view to initiate necessary action.
Secondly, the contention of learned counsel
for respondent no.2 was that the express exclusion of certain specific powers
under the proviso to s.21 of the Government of Part 'C' States Act, 1951
relates to the legislative powers of the Legislative Assembly or the Delhi
Metropolitan Council and not to the executive functions of the Chief
Commissioner or the Lt. Governor. It was submitted that this constitutional
pattern was designed on the basis of the 'transferred powers' in respect of
which the Legislative Assembly of Delhi or the Delhi Metropolitan Council were
given certain defined role but the 'reserved powers' were exercisably by the
Administrator as the Chief Commissioner 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 support of his contention,
reliance was placed on the interpretation of s.2(3) and s.36 of the Act. It was
urged that the office of the Land & Development Officer was 488 under the
direct administrative control of the Chief Commissioner A as the Administrator
until 1959. The Land & Development Officer administered nazul lands at that
time as he does now. Although this was a subject excluded from the competence
of the Legislative Assembly of Delhi under the proviso to s.21 of the Act, the
authority of the Chief Commissioner as the Administrator over the Land &
Development Officer and over the administration of nazul lands as a 'reserved
subject' was kept under the administrative control of the Chief Commissioner.
It was accordingly asserted that under several leases, including the one in the
instant case, the Lt. Governor as the appointed agent or the nominee of the
President is entitled to act on behalf of the lessor i.e. the Union of India,
Ministry of Works & Housing and necessarily must have administrative
control over the Land & Development Office and the administration of nazul
lands.
To appreciate the rival contentions, it is
necessary to view the question from a historical perspective since the Union
Territory of Delhi, as it now exists, has undergone many constitutional
changes. Prior to September 17, 1912, the Territory of Delhi was known as the
'Imperial Delhi Estate' and was included within the then Province of Punjab.
After the decision to form the capital at Delhi was reached, proceedings for
acquisition of land therefore were taken by the Collector of Delhi District
pursuant to the notification no.775 dated December 21, 1911 issued by the Lt.
Governor of Punjab. When the Capital was shifted from Calcutta to Delhi, the
Governor-General in-Council by his proclamation dated September 17, 1912 took
under his immediate authority and management the territory of Delhi with the
sanction and approbation of the Secretary of State for India. The Delhi Laws Act, 1912 came into force w.e.f.
September 18, 1912 and provided for the
administration of the territory of Delhi by a Chief Commissioner as a separate
Province to be known as the Province of Delhi. The Preamble to the Act reads as
follows :
"Whereas by Proclamation published in
Notification No.911 dated the Seventeenth day of September, 1912 the
Governor-General-in-Council, with the sanction 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:
489 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 provided as follows :
"94: Chief Commissioners' Provinces :
1. The following shall be the Chief
Commissioners' Provinces, that is to say, the heretofore existing Chief
Commissioners' Provinces of British Baluchistan, Delhi, Ajmer-Merwara, Coorg
and the Andaman and Microbe Islands, the area known as Panth Piploda, and such
other Chief Commissioners' Provinces as may be created under this Act.
"2. Aden shall cease to be part of
India.
"3. A Chief Commissioner's Province
shall be administered by the Governor-General acting, to such extent as he
thinks fit, through a Chief Commissioner, to be appointed by him in his
discretion.
Under s.100(4) of the Government of India
Act, 1935, the Federal Legislature was empowered to legislate in relation to
Chief Commissioners' Provinces and without limitation as to subjects.
With the attainment of Dominion status on
August 15, 1947 under the Indian Independence Act, 1947, the powers of the
legislature of the Dominion were exercisable by the Constituent Assembly under
sub-s.(l) of s.8. The constituent Assembly was not to be subject to any
limitations whatsoever in exercising its constituent powers. Thus, the Indian
Independence Act, 1947 established the sovereign character of the Constituent
Assembly 490 Which became free from all limitations. Sub-s. (2) of s.8 of the
Act provided that except insofar as other provision law made by or in
accordance with a law made by a constituent Assembly under sub-b.(l), the
governance of the Dominion was to be carried out in accordance with the
Government of India Act, 1935 and the provisions of that Act, and all the
orders in Council, rules and other instruments made thereunder. On January 5,
1950, the Constituent Assembly enacted the Government of India (Amendment) Act,
1949 by which s.290A was inserted in the Government of India Act, 1935
providing that the Governor-General may by order direct that an acceding State
or a group of such States shall be administered as a Chief Commissioner's
Province or as past of Governor's or Chief Commissioner's Province. These
acceding States were thus converted into Centrally administered areas and
included in Part 'C' of the First Schedule of the Government of India Act,
1935. The remaining States in Part 'C' were Ajmer, Coorg and Delhi. Under the
Constitution, Delhi became a Part 'C' State. As already stated the States
specified in Part 'C' of the first Schedule were to be administered by the
President under Art.239(1) acting, to such extent as he thought fit, through a
Chief Commissioner or a Lt. Governor to be appointed by him.
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.
491 Provided that if any Order made under
clause (b) of A this sub-section affects a governor's Province, the
Governor-General shall before making such Order ascertain the views of the
Government of that Province both with respect to the proposal to make the order
and with respect to the provisions to be inserted therein.
(2) Upon the issue of an order under clause
(a) of sub-section (1) of this section, all the provisions of this Act
applicable to the Chief Commissioner's Province of Delhi shall apply to the
State or the group of States in respect of which the Order is made.
(3) The Governor-General may in making an
order under sub-section (1) of this section give such supple mental,
incidential and consequential directions (including directions as to
representation in the Legislature) as he may deem necessary.
(4) In this section, reference to a State
shall include reference to a part of a State.
As a result of this, the then Province of
Delhi became a Part 'C' State.
Under the Constitution of India, Delhi became
a Part 'C' State w.e.f. January 26, 1950 and it was provided by Art.239 (1)
that a State specified in Part 'C' of the First Schedule shall be administered
by the President acting to such extent as he thinks fit through a Chief
commissioner or Lt. Governor to be appointed by him. Art.239(1? of the
Constitution as it then stood, insofar as material, provided:
"239(1). Subject to the other provisions
of this Part, a State specified in Part of the First Schedule shall be
administered by the Pres dent acting, to such extent as he thinks fit, through
a Chief Commissioner or a Lieutenant-Governor to be appointed by him or through
the Government of a neighbouring State: It would appear that Art.239(1) of the
Constitution differed from the provision contained in s.94(3) of the Government
of India Act, 1935 to the extent that the appointment of a Chief Commissioner
or Lt.
Governor as an Administrator irrespective of
492 The designation and entrustment of powers, functions and duties to him by
the President, were not to be in his discretion but had to be exercised on the
advice of the Council of Ministers, Except for this, 8.94(3) of the Government
of India Act, 1935 and Art. 239(1) of the Constitution as enacted were
identical in respect of the provisions for the administration of Delhi as a
Chief Commissioner's province under the 1935 Act and as a Part State under the
Constitution, by the Governor-General under s.94(3) and under Art.239(1) by the
President acting to such extent as he thought fit, through the Chief
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
following matters, namely :- (a) ********** (b) ********** (c) *********** (D)
lands and buildings vested in or in the possession of the Union which are
situated in Delhi or in New Delhi including all rights in or over such lands
and buildings, the collection of rents, therefrom and the transfer and
alienation thereof ;
(2) Nothing in sub-s.(1) shall derogate from
the power conferred on Parliament by the Constitution to make 493 laws with
respect to any matter for a State or any part thereof.
Art. 239(1) of the Constitution was amended
by the Constitution (7th Amendment) Act, 1956 w.e.f. November 1, 1956 and it
now reads :
"239. Administration of Union
Territories - "(1) Save as otherwise provided by Parliament by law, every
Union Territory shall be administered by the President acting, to such extent
as he thinks fit, through an administrator to be appointed by him with such
designation as he may specify.
It would be seen that for the words 'through
a Chief Commissioner or a Lt. Governor to be appointed by him' in Art. 239(1)
as originally enacted, the worts substituted are 'through an administrator
appointed by him with such designation as he may specify'. One thing is clear
that the Administrator appointed by the President under Art.239(1) whether with
the designation of the Chief Commissioner or of the Lt. Governor could exercise
only such powers, functions and duties as were entrusted to him by the
President i.e.
there have to be specific entrustment of
powers by the President under Art. 239(1). Under Art. 246(4) of the
Constitution which corresponds to s.100(4) of the Government of India Act,
1935, Parliament was given power to make laws with respect to any part of the
territory of India not included in Part A or Part of the First Schedule,
notwithstanding that such matter was a matter enumerated in the State List.
As from the appointed day i.e. from November
1, 1956 Part States ceased to exist by virtue of the Seventh Amendment and in
their place Union Territories were substituted in the First Schedule to the
Constitution, including the Union Territory of Delhi i.e. the territories which
immediately before the commencement of the Constitution were comprised in the
Chief Commissioner's Province of Delhi. By the Seventh Amendment, Art. 246(4)
was also amended. Art. 246(4), as amended, now reads :
"246(4) - Parliament has power to make
laws with respect to any matter for any part of the territory of India not
included in a State notwithstanding that such matter is a matter enumerated in
the State List.
494 In pursuance of Art.239 as amended by the
Seventh Amendment, the A President of India issued the following notification
on November 1, 1956 :
REGISTERED NO.D. 221 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 Tripura
and (c) the Chief Commissioner of the Andaman and Nicobar Islands, such powers
and functions shall, on and after the said day, be exercised and discharged
respectively by- (i) the Lieutenant Governor of the Union Territory of Himachal
Pradesh, (ii) the Chief Commissioner of the Union Territory of Delhi, Manipur
or Tripura, and 495 (iii) the Chief commissioner of the Andaman and Nicobar
Island, subject to the like control by the President, as were exercisable by
him before the said day over the Lieutenant Governor or as the case may be, the
Chief Commissioner referred to in clause (a),(b) or (c).
(No.F.19/22/56-SRI) HARI SHARMA. JT. Secy.
ON the same day, by Section 130 of the States
Reorganization Act, 1956, the Government of Part States Act, 1951 stood
repealed. On October 1, 1959 decision was taken by the Government of India to
transfer the administrative control of the office of Land & Development
Officer, New Delhi from the Delhi Administration to Ministry of Works, Housing
& Supply w.e.f. October 1, 1959. This decision was duly communicated to the
Chief Commissioner of Delhi and to the Land & Development Officer, New Delhi.
In the further affidavit of M.K. Mukherjee, Secretary, Ministry of Works &
Housing, it is averred in paragraph 6 that the 'office of the Land &
Development Officer was transferred to the control, of the Ministry of Works,
Housing & Supply w.e.f.
October 1, 1959 and since then it has been
functioning as a subordinate office of the Ministry of works, Housing'. It
would therefore, be manifest that after October 1, 1959 neither the Chief
Commissioner nor the Lt. Governor had anything to do with the office of the
Land Development Officer or the administration of nazul lands in The Union
Territory of Delhi.
The President of India on February 1, 1966
issued an order under Art.299(1) of the Constitution which inter alia directed
that in the cafe of Land & Development Office (1) all contracts and
assurances of property relating to matters falling within the jurisdiction of
Land & Development Officer, (2) all contracts, deeds and other instruments
relating to and for the purpose of enforcement of the terms and conditions of
the sale/lease-deed of the government property in Delhi/New Delhi, etc. made in
exercise of the executive power of the Union may be executed on his behalf by
the Land & Development Officer. Under 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 496 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 provides
as follows :
MINISTRY OF HOME AFFAIR NOTIFICATION New
Delhi, the 7th Sept., 1966.
S.O. 2709 - In pursuance of clause (1) of article
239 of the Constitution 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 any powers and functions were, immediately before the
7th September, 1966 the powers and functions of the Chief Commissioner of the
Union Territory of Delhi, such powers and functions shall, on and after the
said day, be exercised and discharged by the Lt. Governor of the Union
Territory of Delhi, subject to the like control by the President, as was
exercisable by him before the said day over the Chief Commissioner-
(No.41/2/66-Delhi.) HARI SHARMA, SECRETARY The crux of the matter is whether
the Lt. Governor was by virtue of the aforesaid notification dated September 7,
1966 issued by the President, conferred any power, function and duty 497 in
relation 'o the property of the Union in the Union Territory of Delhi. Much
stress is laid by learned counsel appearing for respondent No.2 on the said
notification insofar as it provides that the Lt. Governor shall have the same
powers and functions as were exercisable by the Chief Commissioner. That would
be so provided there was a notification by the President of India under Art.
239(1) of the Constitution vesting the Chief Commissioner with power to
administer the property of the Union of India. There is admittedly no such
notification under Art. 239(1) by the President vesting Chief Commissioner or
the Lt. Governor with any such power.
It is sought to be impressed upon us that the
designation of the Administrator of a Union Territory was per se of no
particular legal or functional significance. It is argued by learned counsel
appearing for respondent no.2 that the Administrator appointed by the President
under Art.
239(1), as amended by the Seventh Amendment,
could be called by any designation, that the Chief Commissioner of Delhi
continued to be the Administrator of the Union Territory of Delhi under Art.
239(1) after November 1, 1956 when the Government of Part States Act, 1951 was
repealed by s. 130 of the States Reorganization Act, 1956 and that he
functioned as such till September 6, 1966 since the Delhi Administration
Act, 1966 continued to use the nomenclature of
Administrator appointed by 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.
498 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 Governor anytheless a successor to the
Sadar-i-Riyasat because both were the head of the State and therefore the
executive power of the State vested in them both. In that connection, the Court
referred to 8.18 of the General
Clauses Act and held that the Governor being a
successor of the office of the Sadar-i- Riyasat was entitled to exercise all
the powers and functions of the Sadar-i-Riyasat. We do not see the relevance of
the decision in Mohd. Maqbool's case to the question before us since the Lt.
Governor of Delhi is neither the successor of the Chief Commissioner nor can
s.l8 of the General Clauses Act override the
constitutional requirements of Art.239(1) laying down that the Lt. Governor
shall exercise only such powers as are entrusted to him by the President.
The question still remains whether the Lt.
Governor was the successor of the Chief Commissioner of Delhi; and if so, had
by reason of the notification dated September 7, 1966 under Article 239 of the
Constitution the same powers and unctions that were exercisable by the Chief
Commissioner in relation to the lease. That would be so provided there was a
notification issued by the President under Art.239(1) vesting the Chief
Commissioner with powers to administer the property of the Union or lease of
nazul properties in the Union Territory of Delhi. It is also necessary to
consider whether under the proviso to s.21 of the Part States Act, 1951, the
so-called 'reserved powers' were exercisable by the Lt. Governor in relation to
the executive functions of the President under Art.53 of the Constitution as an
agent or the nominee of the President and therefore he was entitled to act on
behalf of the lessor i.e. the Union of India, Ministry of works & Housing.
Learned counsel appearing for respondent no.2
argues that the Lt. Governor had ample powers and functions under the aforesaid
notification dated September 7, 1966 and therefore it was incumbent upon him to
take necessary steps in due discharge of his official duties. The Lt. Governor
was not a 'stranger', 'interloper', 'intruder' or 'usurper' acting without any
warrant or semblance of power or any authority as alleged and argued 499
strenuously by the petitioners He says that there is a vast variety of
notifications which vest the office of the Lt.
Governor with powers and functions of various
descriptions under various statutes, many of which are to be exercised by him
in his discretion. He contends that such powers are of a wide ranging nature
which inhere in the office of the Lt.
Governor. he refers 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 effective and executive head. The office is both formal and functional, and
the Union Territory is administered by the Union Executive through the Lt.
Governor. In the ultimate analysis, the Lt. Governor has to be the 'eyes and
ears' as well as the 'limbs' of the President in the Union Territory which he
is called upon to administer on behalf of the President. He is also to keep in
touch with every situation and to take into account the representations and
complaints in exercising the powers and discharging the functions of his
office. In these circumstances, the Lt.Governor was entitled to see whether
there was any definite matter of public importance which might eventually call
for a detailed administrative or statutory inquiry, either in respect of the
conduct of the officer of the Delhi Development Authority or those of the
Municipal Corporation, and to satisfy himself with regard to various matters
and particularly whether there were any violations of town planning norms cr
sanction granted, whether the lease conditions were breached, whether similar
concessions should be granted to others similarly situate and whether any
remedial measures were called for. He urges that the complaints and
representations with regard to Express Buildings were quite specific and the
pace of construction was particularly 500 accelerated. The Lt. Governor had the
powers and the duty to inform himself of the fact and to be properly advised
with regard to these matters. Instead of acting in a surreptitious, clandestine
or hurried manner, he appointed a committee of three senior officials to
ascertain the facts.
In appointing such a committee he acted will
within his powers and in a wholly bona fide manner; indeed, he could also, if
80 satisfied, set up a commission of inquiry under the Commissions of
Inquiry Act, 1952.
The argument of learned counsel appearing for
respondent no.2 based on the proviso to 8.21 of the Government of Part States
Act, 1951 that the 'reserved powers' were still with the Administrator as the Chief
Commissioner of the Lt. Governor and therefore the Lt.
Governor as the appointed agentor nominee of
the President was entitled to exercise the executive functions of the President
under Art. 53 of the constitution and consequently was authorized to act on
behalf of the lessor i.e. the Union of India, Ministry of Works & Housing,
is totally unwarranted. The contention overlooks the constitutional changes
brought about, as 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 of Ministers and Councils of Advisors for
Part States. Sub-s.(3) of 8.2 provided that any reference in the Act to the
Chief Commissioner shall, in relation to a State for the time being
administered by the President through a Lt. Governor be construed as a reference
to the Lt.Governor. Cl.(2) of Art.240 provided that such law shall not be
deemed to be an amendment of the Constitution fr the purposes of Art. 368
notwithstanding that it contained any provision which amended or had the effect
of amending the Constitution. S.21 of the Act invested the Legislative 501
Assemblies of such Part States with powers of legislation with respect to any
of the matters enumerated in the State List or in the Concurrent List with the
reservation contained tn the proviso thereto that the Legislative Assembly of
the State of Delhi Shall not have power to make laws with respect to the
matters enumerateded therein, with the overriding provision contained in
sub-6.(2) that nothing in sub-s.(1) shall be in derogation of the power conferred
on Parliament by the constitution to make laws with respect to any matter for a
Part State or any part thereof.
It would therefore appear that the territory
of Delhi as a Part State under the First Schedule to the Constitution was a
separate and distinct constitutional entity as from that of a Chief
Commissioner's Province under the Government of India Act, 1935, and this is
equally true of the Union Territory of Delhi. It must logically follow that
with the transformation of the territory of Delhi from a Chief Commissioner's
Province under 8.94(3) of the Government of India Act, 1935 into that of a Part
State under the Constitution and after the Seventh Amendment into the Union
Territory of Delhi, the office of the Chief Commissioner of Delhi disappeared
and that of an Administrator appointed by the President under Art. 239(1) with
such designation as he may specify, come into existence. The necessary
concomitant is that the Administrator of the Union Territory of Delhi derived
only such powers, functions and duties as were entrusted to him by the
President under Art. 239(1).
I would also refer to the case of Edward
Mills Co. Ltd.
Beawar, & Ors. y. State of Ajmer &
Anr., [1955] 1 S.C.R.
735, which was rightly not relied upon by
learned counsel for the respondents as the decision turned on its own facts.
In that case it was held by the 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 502 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 also be held that such order is capable of
adaptation to bring provisions under cl.(2) of Article 372 and this is
precisely what has been done by the Adaptation of Laws Order, 1950.
Paragraph 26 of the Order runs as follows :
"Where any rule, order or other instrument
was in force under any provision of the Government of India Act, 1935, or under
any Act amending or supplementing that Act, immediately before the appointed
day, and such provision is re-enacted with or without modifications in the
Constitution, the said rule, order or instrument shall, so far as applicable,
remain in force with the necessary modifications as from the appointed day as
if it were a rule, order or instrument of the appropriate kind duly made by the
appropriate authority under the said provision of the Constitution, and may be
varied or revoked accordingly.
Thus the order made under s. 94(3) of the
Government of India Act should be reckoned now as an order made under Article
of the Constitution...... There was no Order in Council issued by the
Governor-General under Art. 94(3) of the Government of India Act, 1935 nor any
order issued by the President under Art. 239(1) of the Constitution investing
the Chief Commissioner of Delhi to deal with the property of the Union. On
October 1, 1959, decision was taken by the Government of India to transfer the
administrative control of the Land & Development Office from the Chief
Commissioner of Delhi to the ministry of Works & Housing. This decision was
duly communicated to the Chief Commissioner of Delhi and to the Land &
Development Officer. It is admitted in the further affidavit of M.K.
Mukherjee, Secretary, Ministry of works &
housing dated November 16, 1982 that the office of the Land & Development
Officer was transferred to the control of the ministry of Works & Housing
w.e.f.
October 1, 1959 and since then it has been
functioning as a subordinate office of the Ministry of Works & 503 Housing.
Undoubtedly, the matters relating to the property of the Union of India are
included in the executive power of the Union under Art. 53 of the Constitution
read with Art.
298 which expressly provides that the
executive power of the Union shall extend to the acquisition, holding that
disposal of property and the making of contracts for any purpose.
Such executive power of the Union is vested
in the President under Art. 53(1) and shall be exercised by him either directly
or through officers subordinate to him in 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 under the head 'Ministry of Works & Housing'. In the
light of the said directive, as further confirmed by the constitutionally
enacted regulations, the power over the allotment of nazul lands,
administration of leases in Delhi and the control and administration of Land
& Development Office in particular and the property of the Union in general
are subjects vested solely under the control of the Ministry of Works &
Housing.
In the premises, by such transfer of
authority, the Chief Commissioner of Delhi and necessarily his successor, the
Lt.
Governor, became bereft of his powers to
control and administer the lease and any attempt by respondent no.2 set up a
claim that the Lt. Governor is the authority empowered to administer the lease
is wholly frivolous and untenable and must be rejected.
Whether the impugned Executive action was
mala fide and politically motivated.
504 The principal point in controversy
between the parties is whether the notice of re-entry upon forfeiture of lease
issued by the Engineer Officer, Land & Development Office dated March 10,
1980 purporting to be on behalf of the lesser i.e. the Union of India, Ministry
of Works & Housing, and that of March 1, 1980 issued by the Zonal Engineer
(Building), City Zone, Municipal Corporation, Delhi were wholly mala fide and
politically motivated. It is a sad reflection on the state of affairs brought
about during the period of Emergency which brought into existence a
totalitarian trend in administration and I do not wish to aggravate any of its
features by unnecessary allusions. In the process, the country witnessed misuse
of mass media totally inconceivable and unheard of in a democratic form of
Government by reduced freedom of the press by exercise of pre-censorship
powers, enactment of a set of draconian laws which reduced freedom of the press
to a naught.
The petitioners have pleaded the facts with
sufficient degree of particularity tending to show that the impugned notices
were wholly mala fide and politically motivated;
mala fide, because the impugned notice of
re-entry upon forfeiture of lease dated March 10, 1980 issued by the Engineer
Officer, Land & Development Office under cl.5 of the indenture of lease
dated March 17, 1558 for alleged breach of cls. 2(14) and 2(5) which in fact
were never committed and the notice dated March 1, 1980 by the Zonal Engineer
(Building), City Zone, 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.
505 The counter-affidavit of respondent no.2
purporting to be on behalf of all the respondents is that the allegations made
by the petitioners in paragraphs 11, 12 and 13 are not 'relevant' to the matter
in issue. In C.I. Rowjee & Ors. v.
A.P. State Road Transport Corporation, [1964]
4 S.C.R. 330, the Court in a matter arising out of the Motor Vehicles Act, 1939 where certain allegations against the Minister went
uncontroverted, had occasion to administer a word of caution. Where mala fide
are alleged, it is necessary that the person against whom such allegations are
made should come forward with an answer refuting or denying such allegations.
For otherwise such allegations remain unrebutted and the Court would in such a
case be constrained to accept the allegations so remaining unrebutted and
unanswered on the test of probability. That precisely is the position in the
present case, m the absence of any counter- affidavit by any of the respondents.
One should have thought that the Minister for Works & Housing should have
sworn an affidavit accepting or denying the allegations made by the
petitioners. At our instance, M.K. Mukherjee, Secretary, Ministry of Works
& Housing has filed a supplementary affidavit. He avers that the impugned
notice dated March 10, 1980 of re-entry upon forfeiture of lease issued by the
Engineer Officer, Land & Development Office was on the basis of press
reports i.e. reports of the press conference held by the It. Governor. Again,
there is no attempt on the part of the Union of India, Ministry of Works &
Housing to deny the allegations of mala fides on the part of the Government and
its functionaries in issuing the impugned orders. On the contrary, he avers
that respondent no.1 'adopts the counter- affidavit filed by respondent no.2'.
It is not for the parties to say what is relevant or not. The matter is one for
the Court to decide. There is nothing before us from which we can say that the
allegations in paragraphs 11, 12 and 13 of the petition made by the petitioners
are not well- founded. Mala fides on the part of the Government in power or its
functionaries would be sufficient to invalidate the impugned notices. Fraud on
power vitiates the impugned orders if they were not exercised bona tide for the
purpose for which the power was conferred.
Professor de Smith in his monumental work the
Judicial Review of Administration Action, 4th edition at pp.335-36 says in his
own terse language :
"The concept of bad faith eludes precise
definition, but in relation to the exercise of statutory powers it h may be
said to comprise dishonesty (or fraud) and 506 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, the courts
will be prepared to set aside a judgment or order procured or made fraudulently
despite the existence of a generally worded formula purporting to exclude
judicial review.
Bad faith is here understood by the learned
author to mean intentional usurpation of, power motivated by considerations
that are incompatible with the discharge of public responsibility. In requiring
statutory powers to be exercised reasonably, in good faith, and on correct
grounds, the Courts are still working within the bounds of the familiar
principle of ultra vires. The Court assumes that Parliament cannot have intended
to authorize unreasonable action which is therefore ultra vires and void. This
is the express basis of the reasoning in many well-known cases, on the subject.
A necessary corollary is that, as usual throughout administrative law, we are
concerned only with acts of legal power i.e. acts which, if valid, themselves
produce legal consequence.
In general, however, the Courts adhere firmly
to the wide meaning of 'jurisdiction' since this is the sheet- anchor of their
power to correct abuses. They appear to be willing to stretch the 507 doctrine
of ultra vires to cover virtually all situations where statutory power is
exercised contrary to some legal principles. There are many cases in which a
public authority is held to have acted for improper motives or irrelevant
considerations, or have failed to take account of relevant considerations, 60
that its action is ultra vires and void :
H.W.R. Wade's Administrative Law, 5th edition
at pp. 42, 348 and 369. The learned author aptly sums up situations in which
error of Jurisdiction may arise, at p.42 :
"Lack of jurisdiction may arise in many
ways.
There may be an absence of those formalities
or things which are conditions precedent to the tribunal having any
jurisdiction to embark on an inquiry. Or the tribunal may at the end made an
order that it has no jurisdiction to make. Or in the intervening stage, while
engaged on a proper inquiry, the tribunal may depart from the rules of natural
justice; or it may ask itself the wrong questions; or it may take into account
matters which it was not directed to take into account.
Thereby it would step outside its
Jurisdiction. It would turn its inquiry into something not directed by
Parliament and fail to make the inquiry which Parliament did direct. Any of
these things 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
power and it 508 was observed as early as in 1904 by Lord Lindley in General
Assembly of Free Church of Scotland v. Overtown, L.R. [1904] A.C. 515, 'that
there is a condition implied in this as well as in other instruments which
create powers, namely, that the powers shall be used bona fide for the purpose
for which they are conferred'. It was said that Warrington, C.J., in Short v.
Poole Corporation, L.R. [1926] Ch. D.66, that :
"No public body can be regarded as
having statutory authority to act in bad faith or from corrupt motives, and any
action purporting to be of that body, but proved to be committed in bad faith
or from corrupt motives, would certainly be held to be inoperative.
In Lazarus Estates Ltd. v. Beasley, [1956] 1
Q.B. 702 at pp.712-13, Lord Denning, LJ. said :
"No judgment of a court, no order of a
Minister, can be allowed to stand if it has been obtained by fraud. Fraud
unravels everything.
See also, in L Lazarus case at p.722 per Lord
Parker, CJ :
"'Fraud' vitiates all transactions known
to the law of however high a degree of solemnity.
All these three English decisions have been
cited with approval by this Court in Partap Singh's case.
In Dr. Ram Manohar Lohia v. State of Bihar
& Ors., [1966] 1 S.C.R. 708, it was laid down that the Courts had always
acted to restrain a misuse of statutory power and more readily when improper
motives underlie it. Exercise of power for collateral purpose has similarly
been held to be a sufficient reason to strike down the action. In State of
Punjab v. Ramjilal & Ors., [1971] 2 S.C.R. 550, it was held that it was not
necessary that any named officer was responsible for the act where the validity
of action taken by a Government was challenged as mala fide as it may not be
known to a private person as to what matters were considered and placed before
the final authority and who had acted on behalf of the Government in passing
the order. This does not mean that vague allegations of mala fide are enough to
dislodge the burden resting on the person who makes the same a though what is
required in this connection is not a proof to the hilt as held in Barium Chemicals
Ltd. & Anr. v. Company Law Board, [1966] Supp. S.C.R. 311, the abuse of
authority must appear to be reasonably probable.
509 In the present case, the petitioners have
alleged several facts imputing improper motives which have not been specifically
denied and there is only a bare denial with the assertion that the facts are
not 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 his part. As
already stated, respondent no.1 put a supplementary affidavit of M.K.
Mukherjee, Secretary, Ministry of Works & Housing which instead of meeting
the specific allegations made by the petitioners, avers that they were wholly
irrelevant and that the Union of India adopts the counter-affidavit filed by
respondent no.2. The submissions advanced at the Bar by learned counsel
appearing for the Union of India were wholly inconsistent with the stand taken
by the respondents in their counter-affidavits.
The learned counsel made no attempt to refute
the charge that the impugned notices were wholly mala fide and politically
motivated.
Learned counsel for the petitioners contended
that during the period of Emergency, the Indian Express had displayed exemplary
courage in exposing the authoritarian trend of the Government of the day. He
further contended that the impugned notices constitute an act of personal
vendetta against the Express Group of Newspapers in general, and Ram Nath
Goenka, Chairman of the Board of Directors in particular. He also contended
that respondent no.2 was actuated with personal bias against the Indian Express
and had file a criminal complaint against the Editor-in-Chief of the Indian
Express and some of the officers of the Express Group of Newspapers for having
published an article in the Indian Express in April 1977 with regard to his
role during the period of Emergency in the Turkman Gate 510 demolitions. The
Express Group of Newspapers, particularly the A Indian Express, had during the
period of Emergency and immediately thereafter openly criticised the highhanded
action of respondent no.2 who was the then Vice-Chairman of the Delhi
Development Authority and close to the powers that be. The submission is that
the proposed act of re-entry by the lessor i.e. the Union Or India, Ministry of
Works & Housing at the instance of respondent no.2 was meant to be an act
of political vendetta. The learned counsel particularly highlighted the
following sequence of events of assumption of office by respondent no.2 as the
Lt. Governor of Delhi on February 17, 1980. It was pointed out that immediately
upon assumption of office on the forenoon of February 17, 1980 which was a
Sunday, the first act of his was to summon the Municipal Comissioner and to
call for the files of the Indian Express Buildings. On the 18th morning the
files relating to the grant of sanction for the 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 petitioners in the construction of the Express Buildings. The learned
counsel contends that the so-called inquiry directed by respondent no.2 into
the affairs of the Union of India, Ministry of Works & Housing was nothing
short of inquisition into the functioning of the previous Government at the
Centre and particularly that of Minister for Works & Housing. On the same
day, the Zonal Engineer (Building), City Zone, Municipal Corporation,
presumably at the behest of respondent no.2 served a notice on petitioner no.1
Express Newspapers Pvt. Ltd. to show 511 cause why action should not be taken
for demolition of the A Express Buildings under ss. 43 and 344 of the Delhi
Municipal Corporation Act, 1957.
Three days after i.e. On March 4, 1980 a
second press release was issued from the Raj Nivas, the official residence of
respondent no.2 and sent by a special courier to all newspaper offices to
justify his action in initiating an inquiry and the mode that had been
prescribed for holding such inquiry Stating a show cause notice had been issued
by the Municipal Corporation for unauthorized deviations from the sanctioned
plan in the construction of a double basement with a floor area of 23,000
square feet in the Municipal Corporation were summoned by 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 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 and presumably at
his instigation issued a show cause notice in terms set out above. Admittedly,
on that day the files of the Ministry of Works & Housing had been handed
over by the Ministry to the Three Member Committee constituted by respondent
no.2.
On March 10, 1980 the Engineer Officer in the
Land & Development Office under the Ministry of Works & Housing issued
a notice of re-entry upon forfeiture of lease in supersession of his earlier
notice dated March 7, 1980 under cl. 5 of the perpetual lease-deed dated March
17, 1958 while alleging several breaches of cl.. 2(14) and 2(53 thereof and
proposing re-entry by the lessor i.e. the Union of India. On March 12, 1980 at
a specially convened pres conference, respondent released the report of the
Three-Member 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.
512 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 Ministers of the
concerned departments by virtue of Rules of Business issued by the President
under Art. 77(3). For purposes of the present controversy, the functionary who
took action and presumably on whose instructions the impugned notices were
issued was no one than the Lt. Governor of Delhi who, according to learned
counsel for respondent no.1., could not usurp the powers and functions of the
Union of India in relation to the property of the Union and therefore had no
functions in relation to the lease in question. It seems that the Minister for
Works & Housing was taking his orders from respondent no.2. The dominant
purpose which actuated respondent no.2 in initiating governmental action was
not 80 much for implementation of the provisions cf the Master Plan or the
Zonal Development Plans framed under the Delhi Development Act or the
observance of the relevant Municipal Bye-laws under the Delhi Municipal
Corporation Act, but to use these provisions for an 'alien' purpose and in bad
faith i.e. for demolition of the express Buildings with a mark of retribution
or political vendetta for the role of the Indian Express during the period of
Emergency and thereafter and thereby to bring about closure of the Indian
Express. If the act was in excess of the power granted to the Lt. Governor or
was an abuse or misuse of power, the matter is capable of interference by the
Court.
The Court in Pratap Singh's case observed
that the Constitution enshrines and guarantees the rule of law and the power of
the High Courts under Art.226 (which is equally true of Art.32) is designed to
ensure that each and every authority in the State, including the Government,
acts bona fide and within the limits of its powers and that when a court is
satisfied that there is an abuse or misuse of power and its jurisdiction is
invoked, it is incumbent on the Court to afford justice to the individual. The
Court further observed that in such an event the fact that the authority
concerned denies the charge of mala fide, or asserts the absence of oblique
motives, or of its having taken into consideration improper or irrelevant
matter, does not preclude the Court from inquiring into the truth of the 513
allegations made against the authority and affording appropriate relief to the
party aggrieved by such illegality or abuse of power in the event of the
allegations being made out.
As 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
relating to petitioner no.3 Ram Nath Goenka and the Express Group of Companies
were discussed in Parliament. After the Congress (R) secured overwhelming
majority in the 1971 Parliamentary elections, the Express Group of Companies
and petitioner no.3 had to wage a constant battle for survival on various
fronts and against various onslaughts. The animosity of the Congress (R)
Government towards the petitioners intensified after the Gujarat and Bihar
Movements gathered strength. Because of the close association of petitioner
no.3 Ram Nath Goenka with the late Shri Jayaprakash Narayan, efforts were made
to secure hie cooperation to persuade the late Shri Jayaprakash Narayan to
withdraw from the Bihar Movement. His refusal to intercede on behalf of the
Government led to further inquiries by which both he and the Express Group of
companies were sought So be pressurized and persecuted.
The White Paper on the Misuse of Mass Media
during the Internal Emergency issued by the Government of India in August, 1977
brigs out certain facts. After the Proclamation of Emergency by the President
On June 5, 175, various acts of repression were perpetrated against the Express
Group o Companies subverting lawful processes, well-established 514 conventions
and administrative procedures and practices and by abuse of authority and
misuse of power. It was evident therefore that a 'high level meeting' where the
Ministers of Law & Justice and Information & Broadcasting were present,
it was decided that 'inquiries into the Express Group of Newspapers and Shri
Ram NathGoenka's industrial empire were to be given immediate attention'. All
that the Express Group of Newspapers, particularly the Indian Express, had to
face during the Emergency is now a matter of history.
There is a considerable body of literature
dealing with the role of the media during the period of Emergency.
Perhaps the two best known papers which
attempted to stand up to the Government's repressive tactics were the Indian
Express and the Statesman. The Indian Express had been cool to Government
pressure to publicize the benefits of Emergency. The Government then arrested
Kuldip Nayar, the Editor-in-Chief, dissolved the Board of Directors and
appointed a new Board under the Chairmanship of K.K. Birla consisting of
persons approved by the Government; printed in other newspapers allegations of
financial offences 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. I
refrain from expressing any opinion on that aspect but it is quite evident that
no action was contemplated against the Express Newspapers Pvt. Ltd. by any of
the respondents prior to February 17, 1980. Respondent no.2 upon assumption of
his office as the Lt. Governor of Delhi on that day immediately set on a course
of action against the Indian Express 515 which culminated in the issue of the
impugned notices. It cannot be doubted that his initiative to call for the
files from the Municipal Corporation relating to the construction of the new
Express Building was an action of his own not provoked by anyone, much less at
the instance of respondent no.1, the Union of India, Ministry of Works &
Housing. The sequence of events set in motion immediately after his assumption
of office as the Lt. Governor have already been set out in detail which
demonstrate the extent to which and the keenness with which he pursued the
matter. It would appear that the entire administrative machinery was geared
into action by respondent no.2 and he 'activated' the taking of steps culminating
in the issue of the impugned notices.
In their effort to salvage the
situation,learned counsel appearing for respondents nos.1 and 2 during the
course of their respective submissions tried to impress upon us that it cannot
be said from the circumstances appearing that the authorities have not acted
bona fide with the object of using their powers for the purposes authorised by
the Legislature but had acted with an ulterior object to achieve any Minister
or collateral purpose. The submissions of learned counsel for respondent no.1
may be summarized thus : (1) There was no imminent danger of demolition of the
Express Building nor was the impugned notice dated March 10, 1980 issued by the
Engineer Officer, Land & Development Office, a notice of re-entry upon
forfeiture of lease. It was merely a notice of an exploratory nature requiring
the Express Newspapers Pvt. Ltd. to show cause why the lease should not be
forfeited under cl.5 of the lease-deed for alleged breaches of cls.2(5) and
2(14) thereof. The Express Newspapers Pvt. Ltd. should have therefore entered
appearance before the Land & Development Officer and showed cause against
the action proposed. It was only if the Land & Development Officer was not
satisfied with their explanation, that he would put up the papers before the
Lt.
Governor for necessary action. It would then
be for the lessor i.e. the Union of India, Ministry of Works & Housing to
decide whether or not the lease should be forfeited under cl. 5 of the
lease-deed. (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 516 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 Development officer and
was also seen by tho Joint Secretary (Delhi Division) and the Secret Ministry
of Work & Housing. In this note, Rangaswami further pointed out that
additional premium and additional ground rent would at all events to recovered
from the lessee together with interest. The learned counsel accordingly
contended that it was on the basis of this that the impugned notice was issued
by the Engineer Officer on March 10, 1980 and said that it was worthwhile
mentioning that till then the report of the Three-Member Committee was not before
the Central Government, nor WAS there any coo communication in that behalf from
the Lt. Governor. The report of the Committee was itself dated March 12, 1980
and a copy thereof was forwarded by the Lt. Governor on March 14, 1980. It was
therefore urged that the impugned notice by the Engineer Officer purporting to
act on behalf of the lessor i.e. the union of India, Ministry of Works Housing
was not based either on the report of the Three-Member Committee obtained by
the Lt. Governor or on the basis of any communication from him. (3) Further, he
urged that the Lt. Governor as the Administrator had to keep himself informed
and cannot be aid to have acted mala fide merely because of any possible
personal malus animus on his part, if the quality of the action WAS itself in
complete accord with the law.
(4) It was said that the Government itself
was in possession of relevant records and applied its mind to them and the
impugned notice issued by the Engineer Officer who was empowered to act on b
half of the President under Art.
299(1) of the Constitution having been
authenticated in the manner required by Art. 77(3), it must be deemed to be the
decision of the President on the advice of the Council of Ministers as enjoined
by Art. 74(2) and the Court was precluded from making any investigation into
the Circumstances attendant (5) Finally, he submitted that it was for
respondent no.2 to meet the charges of mala fides levelled against him.
Whatever be the merit of the charge against the Lt. Governor, his action led
only to the collection of material on the basis of which the impugned notice
was issued, and the action of respondent no.1 was unassailable. I find it
rather difficult to accept this line of argument which is nothing but an
afterthought.
517 While adhering to his stand that the Lt.
Governor was a successor to 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 Lt. Governor was well within his
rights (1) in calling for and making perusal of the respective files from the
Ministry of Works & Housing, Delhi Development Authority and the Municipal
Corporation of Delhi pertaining to the construction of the new Express Building
with an increased FAR of 360, (2) in constituting a Three-Member Committee to
inquire into the circumstances relating to the grant of sanction by the then
Minister for Works & Housing and to take necessary steps as regards the
unauthorised construction of the new Express Building, and (3) in forwarding
the report of the Three-Member Committee to the concerned authority, meaning
the Minister for Works & Housing for taking necessary steps. It was
contended that the petitioners have made wild, reckless and baseless allegations
against respondent no.2 merely because he directed an investigation into the
affairs. In any event, he contended that this was a case of transferred malice
and the question of mala fides could not be decided without impleading the late
Prime Minister. I am afraid, the contention cannot prevail. The petitioners
have impleaded respondent no.1, the Union of India and pleaded the necessary
facts with sufficient particulars. The lightening speed with which respondent
no.2 acted on assumption of his office as the Lt. Governor of Delhi on February
17, 190 creates an impression that he started an 'inquisition into the affairs
of the previous Government at the Centre. One should have thought that
respondent no.2 holding the high position as the Lt.
518 Governor should have acted with greatest
circumspection, than arrogate to himself the powers of the Union of India,
Ministry of Works & Housing in relation to the property of the Union,
including the lease in question. It was somewhat strange that the Land &
Development Officer who was a minor functionary of the Ministry of Works &
Housing should have filed a counter supporting the action of respondent no.2. I
regret to say that the Land & Development Officer deliberately made an
inaccurate statement that he is not under the administrative control of the
Ministry.
I may now deal with the submissions advanced
by learned counsel for respondent no.1. The contention that there was no
imminent danger of demolition of the Express Building nor was the impugned
notice by the Engineer Officer a notice of re-entry upon forfeiture of lease,
is against the very terms of the impugned notice. 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. M.K.. Mukherjee,
Secretary, Ministry of Works & Housing in his supplementary affidavit avers
that the impugned notice dated March 10, 1980 was issued by the Engineer
Officer, Land & Development Office on the basis of press reports i.e.
reports of the press conference called by respondent no.2 on March 4, 1980. The
sudden spurt of activity on the part of Rangaswami Additional Land &
Development Officer calling for a report and the file ant the Engineer Officer
directing that the case be put up with a detailed note immediately on March 5,
1980 is a circumstance which speaks for itself. It followed upon the 519 press
conference called by respondent no.2 on March 4, 1980 after A the Zonal
Engineer (Building), City Zone, Municipal Corporation, Delhi had already issued
a notice on March 1, 1980 requiring Express Newspapers Pvt. Ltd. to show cause
why the double basement of the new Express Building where the printing press
was installed should not be demolished under ss. 343 and 344 of the Delhi
Municipal Corporation Act, 1957. These circumstances clearly show that the
respondents were building up a case against the Express Newspapers Pvt. Ltd.
In the facts and circumstances, I am
constrained to hold that the impugned notices dated March 1, 1980 and March 10,
1980 were not issued bona fide in the ordinary course of official business for
implementation of the law or for securing justice but were actuated with an
ulterior and extraneous purpose and thus were wholly mala fide and politically
motivated.
Whether construction of the new Express
Building with an increased FAR of 360 constitutes a breach of the Master Plan
or the Zonal Development Plan or Clauses 2(5) and 2(14) of the lease-deed.
I. The Delhi Development Act, 1957: Master
Plan for Delhi: Zonal Development Plan for D-II area viz. the Press Enclave in
the Mathura Road Commercial Complex.
Question is as to whether the construction of
the new Express Building on the residual area of 2740 sq.yards on the western
portion of plots nos. 9 and 10, Bahadurshah Zafar Marg with an increased FAR of
360 constitutes a breach of cls. 2(5) and 2(14) which entitled the Engineer
Officer, Land & Development Office, Ministry of Works & Housing to
issue the impugned notice of re-entry dated March 10, 1980 purporting to act on
behalf of the Government of India, Ministry of Works & Housing to show
cause why the Union of India should not re-enter upon and take possession of
plots nos. 9 and 10, Bahadurshah Zafar Marg together with the Express Buildings
built thereon under cl.5 of the indenture of lease dated March 17, 1958. It is
not disputed that the Ministry of Works & Housing with the Minister at the
head was responsible for the following items of work viz. the Property of the
Union, Town and Country Planning, Delhi 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 520 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 responsible for the following items of work viz. the
property of the Union, town and country planning, Delhi Development Authority,
Master Plan of Delhi, Administration of Delhi Development Act, 1957, Land &
Development Office dealing with the administration of nazul landsin the Union
Territory of Delhi.
It is common ground that the Press Enclave on
Bahadurshah Zafar Marg otherwise known as the Mathura Road Commercial Complex
is not a 'development area' within the meaning of s.2(3)(3) of the Delhi
Development Act, 1957.
Admittedly, the Master Plan does not
prescribe any FAR for the Mathura Road Commercial Area. In the Master Plan at
p.50 the permitted uses in the Use Zone C-2, namely, the zone in which the
press area falls are specifically mentioned and it is clear therefrom that the
generally permitted uses do not include 'Newspaper and printing presses. The
business of printing and publishing of newspapers and installation of printing
press is permissible only if such user is allowed by competent authority after
special appeal. S. 14 of the Act prohibits any person from using or permitting
to be used any land or building in any area otherwise than in conformity with
the plans. The Delhi Development Authority by its letter dated November 4, 1978
conveyed to the petitioners that the set of building plans submitted by the
petitioners had been examined as per norms and the Authority had no objection
to the amalgamation of plots nos. 9 and 10 and in allowing an overall FAR of
360 taking into account the existing FAR. It was further stated that the
basement had been excluded from the calculations of the FAR. The installation
of the press machinery like any other service machinery was expressly
permitted. The petitioners were directed to submit the plans to the concerned
authorities as per norms. It would therefore appear that the construction of
the new Express Building with an increased FAR of 360 for starting a Hindi
Newspaper and the installation of the printing press in the double basement was
allowed by the Delhi Development Authority, in accordance with the provisions
of the Master Plan.
521 It is clear from the provisions of
s.12(4) read with 6.
]4 that permission for development of the
residual area i.e. the construction of the new Express Building with an
increased FAR of 360 by the petitioners for use as a printing press had to be
sough, 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 with a
double basement beyond the plinth area for installation of the printing press,
the same must prevail.
Under 6. 41(3) of the Act, the Central
Government through the Ministry of Works & Housing had certainly the
authority to issue a direction to the Delhi Development Authority to examine
the question as to whether the petitioners could be granted permission to
construct the Express Building with an increased FAR of 360 with a double
basement for installation of the Printing press. and to grant Permission
therefore.
The Floor Area Ratio, commonly known as 'FAR'
is the restriction on the number of floors in a building with reference to the
plot area.
Part of Chapter II of the Master Plan
contains the Zoning Regulations which form an integral part of the Master Plan
which indicate the land use permissible in various zones and the density,
coverage, floor area ratio and set- backs for various types of development.
Paragraph 2 has divided the Union Territory of Delhi for purposes of the zoning
regulations into twenty-four use zones. Each use zone has its special
regulations because a single set of regulations cannot be applied to the entire
city, 522 as different use zones vary in their character and functions. The
area in question falls in Use Zone C-2 :
General Business and Commercial, District
Centre, Sub- District Centre etc. Paragraph 4 contains provisions regarding
uses in the various use zones, such as residential, commercial, industrial,
recreational etc. At P- 50, there are provisions relating to Use Zone C-1 :
Retail Shopping. The permitted uses in Use Zone C-2, namely, the zone in which
the press area is located do not include 'Newspapers and printing presses
except where allowed by competent authority after special Appeal- Paragraph 5
contains provisions regarding density, coverage, floor area ratio requirements.
At p.60, these requirements for commercial and retail areas are set out under
Item IV. It would appear that the commercial areas of Connaught Place
Extension, Minto Road and Ranjit Singh Road are in zone D- IT. The FAR for
Connaught Place Extension in zone D-I was reduced on April 27, 1974 to 250 but
the FAR of the other commercial areas, namely, of Minto Road and Ranjit Singh
Road remained at 400. The relevant extract is as below :
"IV. Commercial I and Retail ;
(a) Connaught Place Extension, Minto Road and
Ranjit Singh 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.
523 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 situate on the
Mathura Road commercial area, nor does such area fall within the already
built-up commercial areas i.e. the walled city of Old Delhi, as set out in the
Master Plan at pp.60-61. Since the attempt of the respondents is to bring the
press area within he FAR coverages prescribed for the already built-up
commercial areas in the walled city of Old Delhi, it is of utmost importance
for a proper understanding of the case to set out the relevant portion :
"IV. Commercial and Retail (b) F.A.R,
coverages etc. for already built-up Commercial areas in the Walled City like
Chandni Chowk, etc. (List given below) :
In such cases, coverages permissible would be
as applicable in the existing building bye-laws of the Municipal Corporation of
Delhi, e.g., 80 per cent on the ground floor and 70 per cent on the first floor
and 80 on, with 150 F.A.R. for a two- storey construction, 200 F.A.R. for a
three-storey construction, 250 F.A.R. for a four-storey construction and 80 on,
provided that the F.A.R.
will not exceed 300.
List of already built-up commercial areas.
1. Jama Masjid
2. Chitli Qabar
3. Bazar Sita Ram Ajmere Gate
5. Chandni Chowk
6. Fatehpuri
7. Lajpat Rai Market
8. Kashmere Gate and Mori Gate 9.Malka Ganj
10.Sabzimandi 11.Bara Hindu Rao 12.Sadar Bazar 13.Nabi Karim 14.Qadam Sharif
524 15.Ram Nagar 16.Paharganj 17.Model Busti 18.Manakpura 19.Shahdara Town
20.Jandewala Scheme - Block E.
Eventually, Learned Counsel appearing for
respondent no.1 had to accept that the already built-up commercial areas set
out in the Master Plan at p.61 dealt with areas other than Mathura Road
Commercial Area where the press area in question is situate.
It is quite obvious that the Master Plan does
not prescribe any FAR for the press enclave situate on Mathura Road commercial
area nor does such area fall within the already built-up commercial area as
defines in the Master Plan i.e. commercial area falling within the walled city
of Old Delhi. Apparently, the contention that the FAR of no commercial area in
Delhi can exceed 400 is wholly misconceived inasmuch as the Master Plan in
express terms permits FAR of the commercial areas in Minto- Road and Ranjit
Singh Road at 400. The Zonal Development Plan for the D-II area approved by the
Central Government in November 1966 mentions four 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 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.
525 It would be seen the statement is
prefaced by the word 'similarly' and thereafter the word 'also' appears.
Learned counsel appearing for respondent no.1
the Union of India contends that the use of the word 'similarly' can only mean
that Mathura Road commercial area is also fully developed like Asaf Ali Road
commercial area, and further that the statement that buildings on Mathura Road
have been constructed according to the building bye-laws applying to built-up
areas means that it was fully commercialized and had been built-up according to
the relevant bye-laws which regulates and control the construction of
commercially built-up area and therefore the relevant bye-law applicable would
be bye-law no.25(2) (IV) (B) of the Municipal Bye-laws which puts a ceiling on
FAR at 300. He tries a draw support, for this contention from what next follows
in the Zonal Development Plan where it is stated "Only two areas, namely,
circular Road and Minto Roads commercial areas are to be developed . It is said
that the significance of the word 'only' can mean nothing than that like the
other similar areas, namely, Asaf Ali Road commercial area and Minto Road
commercial area, Mathura Road commercial areas had no room for expansion
because it was also fully developed. According to him, what follows immediately
thereafter in the Master Plan is to provide for general regulations for
development and not to areas which are fully developed and such regulations for
development cannot therefore apply to such areas. I am afraid, on a plain
construction, the contention cannot be accepted.
The word 'similarly', in the context in which
it appears, can only imply that Mathura Road commercial area as having close
resemblance even though obviously distinct in nature i.e. although Asaf Ali
Road commercial area is fully developed, in comparison Mathura Road commercial
area bears a marked likeness or resemblance as it is fully commercialized. But
by no rule of construction it 16 susceptible of the meaning that it is fully
developed. I cannot but take judicial notice of the fact that at the time when
the Zonal Development Plans were Approved by the Central Government in November
1966, the development in the press area was still going on since the Gandhi
Memorial Hall, otherwise known as Pearey Lal Bhawan on Bahadurshah Zafar Marg
was then under construction. Besides, even the so-called fully developed areas,
viz., the Asaf Ali Road commercial 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 526 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 Development Plan for D-II area, Asaf Ali Road commercial area is
described as fully developed with no room for expansion, the FAR of which is
admittedly 400, there could be still a further increase in FAR subject to
payment of premium. This could only be under the provisions of the Zonal
Development Plan for D-II area and therefore it must logically follow that the
FAR prescribed in the Zonal Development Plan for Mathura Road commercial area
where the press enclave is situate is 400. It is of some significance that the
aforesaid advertisement had been issued by none else than P. Chakravarty, one
of the members of the Three- Member Committee. It is regrettable that the
Three-Member Committee should have purposely misled the authorities by
describing the press area on Bahadurshah Zafar Marg as an 'already built-up
area' which relates to the walled city of Old Delhi for which the FAR beyond
300 was not permissible.
The press area is in Mathura Road commercial
area which is not far from Asaf Ali Road commercial area. It not only falls in
the same D-II area but is treated as part of a complex of four commercial areas
in the Zonal Development Plan for D-II area. This press area is not even
described as fully developed as is the Asaf Ali Road commercial area; it is
only describe as fully commercialized. If FAR 400 is prescribed and allowed for
Asaf Ali Road commercial Area which is fully developed, it could not possible
be impermissible for the press area which although fully commercialized was
still not fully developed.
527 There is no factual basis for the
assertion of the respondents that nowhere in Delhi the FAR for any commercial
area can exceed 300. This is directly contrary to plots in Asaf Ali Road
commercial area which have FAR 400 and a ground coverage of more than 90%. As
already stated, the Delhi Development Authority has sold by public auction
plots which permit construction of commercial buildings with FAR of 400,
basement of 86.11% and lOO% ground coverage. In Bhikaji Cama Place, the Delhi
Development Authority has auctioned plots for construction of a five-star hotel
Hyatt Regency with an FAR of more than 500. Even 'Vikas Minar', the main
building which houses the offices of the Delhi Development Authority situate on
I.P. Estate, in close proximity to the Mathura Road Commercial Area, in the
D-II area in Use Zone D-II for which the permissible FAR is 150 has been
built-up with an FAR exceeding 400.
II. The Delhi Municipal Corporation Act, 1957
:
The Delhi Municipal (Building) Bye-laws, 1959
:
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 an FAR 300 for the Press Area is based upon the TCPO's note
dated April 14, 1978 mentioned in Three Member Committee's report in which it
is specifically stated :
"As per Master Plan, FAR 300 in
Commercial area does not exist for any area in Delhi whatsoever." As
stated above, this was factually wrong being contrary to the Master Plan and
the Zonal Development Plan for the D-II area. It 528 is also contrary to the
fact that: (1) In the Asaf Ali Road commercial area, plot. are of FAR 400 and
ground coverage of more than 90%, (2) In Bhikaji Cama Place plots have been
auctioned for the construction of Five Star Hotel with an FAR of mo re than
500; (3) Vikas Minar, the Delhi Development Authority's building is constructed
with an FAR exceeding 400 situate in 'Use Zone : Government and semi-
Government Offices', for which the permissible FAR is only 150. There is no
material on record to substantiate that there is no specific rule or bye-law
laying down FAR ceiling for the Press Area was 300. In fact, The Union of India
in the very first affidavit unequivocally admits this position and avers :
".... It is submitted that under the
Master Plan, Commercial and Retail Zone is divided into the following parts :
(1) Connaught Place Extension, Minto Road and
Ranjit Singh Road.
(ii) Already built up commercial area in the
walled city, like Chandni Chowk, etc.
(iii) District Centres and proposed central
business districts in Shahdara and Karol Bagh.
(iv) Community Centres and retail centres
shown in the Plan.
(v) Neighbouring shopping center.
It is no doubt true that none of these areas
make any specific reference to Press Enclave situated on Bahadurshah Zafar
Marg." (Emphasis supplied) It is therefore admitted that the Master Plan
does not prescribe any FAR for the Press Area in the Mathura Road commercial
area.
Learned counsel appearing for the Union of
India seeks to spell out new argument that none of the officials who were
conversant with the matter ever referred to an FAR of 400 the mentioned in the
ZonaI Development Plan for D-II area (which comprises of the press area) and
contends that since in the Zonal Development Plan the Mathura Road Commercial
Area is described as 529 similar to the Asaf All Road commercial area which 'is
fully developed with no room for expansion' and again as 'fully commercialized
with press and other allied trade buildings built according to bye-laws
applying to the press area'; the FAR of 400 (with ground coverage of 50%) as
specified in the Zonal Development Plan for D-II area 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 buildings :- (1)
Except with the permission in writing of the commissioner, and subject to the
provisions contained in bye-Law 19, no building shall be erected or raised to a
greater height than seventy feet as measured from the level of the centre of
the adjacent portion of the nearest street.
Note : This bye-law shall be applicable only
to those buildings which are not otherwise governed by FAR wherever specified
in the Master Plan." 530 This bye-law restricts the height of a building
to 70 feet.
Now, this height is to be measured from the
centre of the adjacent portion of the 'nearest street'. Admittedly, as is clear
from the sanction plan, the height of the new Express Building is about 47 feet
(see section plan of the sanction plan: 1"= 8 ft.), the adjacent portion
which is the service road is on level with the plinth of the additional
construction. Taking Mathura Road as the 'nearest street', the level of Mathura
Road stretches from 2 ft. to 5 ft.
higher than the plinth level of the
additional construction.
In any view of the matter, the additional
construction could therefore be permissible if it did not exceed a height of 63
feet. This is because of bye-law 21(1) and also because of FAR with which is
linked the ground floor coverage is not specified in the Master Plan. Bye-law
22 further restricts the maximum height of a building permissible under bye-law
21 and it, insofar as material, provides :
"22. Maximum height of buildings with
reference to width of streets:- Subject to the provisions of bye-laws 19 &
31, the maximum height of any building abutting on to any street shall be
regulated by the width of such street as follows :
(iv) when the width of the street is 40 ft.
Or more, the maximum height shall be the width of the street;
Note : This bye-law shall be applicable only
to those buildings which are not otherwise governed by floor area ratios
wherever specified." Even though the maximum height of 70 feet is
specified in bye-law 21, in order to avoid congestion the maximum height is
further restricted under bye-law 22 in proportion to the width of the abutting
street. In the instant case, Mathura Road which is the abutting street measures
in width 150 feet (see the sketch plan of Zonal Development Plan for D-II
area). This is apart from the immediately abutting service road which, even if
reckoned as an abutting street, is 63 feet in width. Therefore, applying bye-law
22(4) read with bye-law 21(1), it is the service road of the street that
governs the height of the buildings in the press area as well as the number of
floors, the 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 531 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
commercial area and that it was fully commercialized and the relevant bye-law
applicable to the Mathura Road commercial area was and is bye-law 25(2)(IV-B)
which puts a ceiling on FAR at 300. It is next contended that since the Mathura
Road commercial area was a fully developed and commercial area built up
according to the relevant bye-laws, it has not been declared to be a
'development area' under s.12(1) of the Act. Sub-s.(2) thereof forbids the
Delhi Development Authority to undertake or carry out development of any land
in an area which is not a development area and therefore the matter falls to be
governed by sub-s.(3) which forbids development of land except with the
approval or sanction of the local authority i.e. the Municipal Building
Bye-laws applicable to 'built up areas' which evidently refers to bye-law
25(2)(IV-B). The relevant provisions of bye-law 25 provide as follows :
"25. Permissible covered area : (1)
Notwithstanding anything contained in these bye- laws no building shall be
erected or allowed to be erected in contravention of the Master Plan or any
Zonal Development Plan.
(2) The following provisions shall apply to
buildings in different use zones IV. Commercial and Retail Zones :
A.Minto Road and Ranjit Singh Road area.
B. Already built-up commercial areas as
indicated in the Master Plan or such other areas as may be declared 532
commercial areas by the appropriate authority from time to time.
(a) Coverage :
The maximum permissible coverage shall be
subject to the provisions of bye-laws 26 & 27 and the requirement of the
FAR as provided in sub-Cl.(b) below.
(b) F.A.R :
The FAR shall not exceed in the case of
building having the storeys mentioned in column 1 below by the figure mentioned
in column 2 below :- 1 2 Two sroreys 150 Three storeys 200 Four storey 250 More
than Four storeys 300 (c) STOREYS :
The number of storeys shall be subject to the
provisions of bye-law 22 relating to the maximum height, of bye-law 31(1) 6 (2)
relating to air and light planes and the provisions that the FAR does not
exceed 300". The contention put forward by learned counsel for respondent
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........
533 Note : This bye-law shall be applicable
only to buildings covered by bye-law 25(2) (IV-B) .
He accordingly contends that all buildings in
the press area including the new Express Building have a ground coverage of 80%
under bye-law 26 and to such buildings bye-law 25(2)(IV- B) which limits the
FAR to 300 is applicable- The fallacy of the argument of the learned counsel
lies in the assumption that all buildings in the press area including the
Express Buildings are constructed with a ground coverage of not more than 80%
under bye-law 26 and therefore only bye-law 25(2)(IV-B) which limits the FAR to
300 is applicable in this case. The contention overlooks the note appended to
bye-law 26 which reads:
"This bye-law shall be applicable only
to buildings covered by bye-law 25(2) (IV-B).
Bye-law 25(2)(IV-B) only applies to :
'already built-up commercial areas as indicated in the Master Plan or such
other areas as may be declared as commercial areas by the appropriate authority
from time to time'. As already stated, the expression 'already built-up
commercial area' as defined in the Master Plan at pp.60-61 refers to the walled
city of Delhi like Chandni Chowk, etc. The list of already built-up commercial
areas admittedly does not include the press area on the Mathura Road.
The matter can also to viewed from another
angle.
At the time of construction of buildings in
the press area, there were no restrictions as to the FAR along the Mathura Road
and the only restriction on construction of such buildings was that the
allottees of the plots in the press area should construct buildings upto a
height of 60 ft. me petitioners constructed the old Express Building to the east
of the sewer line with an FAR of 260 with reference to the entire plot leased
to them i.e. plots nos. 9 and 10 although the building occupied only half of
the area. After construction of the old Express Building to the east of the
sewer line in March 1958, the perpetual lease was executed on March 17, 1958.
me supplemental lease was also executed in November 1964. These documents were
in conformity with the agreement for lease entered into on May 26, 1954. The
said building was to be constructed in accordance with the plans and
specifications as had been previously proposed and submitted by the Express
Newspapers Pvt. Ltd. and approved of in writing by 534 the Chief Commissioner
of Delhi which permitted construction by the petitioners of a building on the entire
area of plots nos. 9 and 10 with 100% ground coverage as stated above.
After the discovery of the underground sewer
pipeline by the petitioners which was a fact only within the knowledge of the
Central Government and had not been disclosed to the Express Newspapers Pvt.
Ltd. at any time, the parties entered into 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 the Ministry
of Works & Housing by his letter dated April 11, 1956 confirmed that the
allotment of land to the Indian Express Newspapers on the Mathura Road had been
revised on the terms set out therein. The revised allotment was subject, among
others, to the following conditions :
1. An area of 2740 sq. yards to the west of
the pipeline was allotted on a premium @ Rs. 36,000 per acre plus 2.5% annual
ground rent thereon. The said area was to be maintained as an open space i.e.
lying vacant for parking space.
2. The remaining area of 2965 sq. yards to
the east of the pipeline was settled on a premium @ Rs. 1,25,000 per acre plus
2.5% annual ground rent thereon.
The Central Government reserved to themselves
the right to divert the sewer line passing through the leasehold premises.
535 The effect of the revised terms as per
Ambegaokar's letter was that the area to the east of the sewer line measuring
2965 sq. yards was treated as buildable plot and the remaining area of 2740
sq.yards treated as non-buildable plot. In respect of the buildable plot there
was admittedly 100% coverage with five floors i.e. an assumed FAR of 500 as in
those days there were no building bye-laws or restrictions providing for an
FAR. But actually the old Express Building was built with an FAR of 260.
Significantly, a separate ground rent and
separate premium was chargeable for the buildable plot on which the old Express
Building stood @ Rs. 1,25,000 per acre and a ground rent of 2.5%. The lessor
i.e. the Union of India left with the Express Newspapers Pvt. Ltd. the area to
the west of the drain measuring 2740 sq.yards on a reduced premium @ Rs.
36,000 per acre and a ground rent @ 2.5%
thereof. It was evidently not within the contemplation of the parties that the
area 80 kept was to be kept green in perpetuity i.e. an area which could not be
built upon under any circumstances because the premium chargeable therefor was
@ Rs. 4,840 per acre.
It must therefore be held that the permission
granted by Sikander Bakht, the then Minister for Works & Housing for the
construction of the new Express Building with an increased FAR of 360 with a
double basement for installation of the printing press was not in violation of
the Master Plan for Delhi or the Zonal Development Plan for D-II area or the
Delhi Municipal Corporation (Buildings) Bye-laws, 1959 inasmuch as ex facie
bye-law 26 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 536 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 Zonal
Engineer (Building), City Zone, Municipal Corporation, Delhi served a notice to
petitioner .1 to show cause why action should not be taken for demolition of
the structures set out therein under as 343 and 344 of the Delhi Municipal
Corporation Act, 1957. The objected portions of construction in terms of the
impugned show cause notice are as under :
" (1) Construction of an upper basement
without sanction or, in other words, a working platform or installations of the
machinery; and (2) Unauthorized construction of an excess basement beyond
sanction.
The three alleged unauthorized constructions
are :
(a) A triangular pit dug in front of the
building;
(b) A left working platform in the basement;
and (c) The basement beyond the plinth area of the new building.
Each of these structures was specifically
approved by the Delhi Development Authority as per 'usual norms'.
Section 53(3)(a) of the Delhi Development Act
provides, inter alia, that :
53(3). Notwithstanding anything contained in
such other law - (a) when permission for development in respect of any Land has
been obtained under this Act such development shall not be deemed to be
unlawfully undertaken or carried out by reason only of the fact that
permission, approval or sanction required under such other law for such
development 'has not been obtained." The words 'such other law' within
their amplitude include a Law like the Delhi Municipal Corporation Act and the
Delhi Municipal Corporation (Buildings) Bye-laws, 1959 framed thereunder. The
537 non- obstante clause in s. 53(A)(i) clearly gives an overriding effect to
the sanction granted by the Delhi Development Authority for the construction of
the new Express Building with an increased FAR of 360 and a double basement for
installation of printing press or the working platform. the effect of grant of
such permission by the Authority was to modify the sanctioned plans of the
Municipal Corporation to that extent. That apart, the terms 'development' as
defined in s.2(d) of the Act includes the carrying out of buildings...... in,
on, over or under land in any building etc. and in wide enough to include the
structures in question. As the Authority approved each of these structures for
which the impugned show cause notice had been issued by the Zonal Engineer
(Building), City Zone, Municipal Corporation, 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 water static tank
needed for fire fighting purposes. Such fire fighting arrangement is necessary
to prevent fire hazard which inflicted huge losses in various multi-storeyed
buildings like Kanchunjunga and the Hindustan Times buildings. The Express
Newspapers Pvt. Ltd. further allege that they were advised by the fire- brigade
authorities to construct a static tank.
It would, therefore, appear that 'excess
basement' is in two parts :
"(1)So much of the excess basement as
was the result of subsidence of 8000 sq. ft. of land caused by bursting of a
part of the sewer line while it was 538 being shifted. The petitioner no. 1
built supporting walls which became a storage tank and it covers an area of
4,500 sq. ft.
(2) Underground tunnel, meant for use as a
passage for labour and movement of news-print from the old to the new Express
Building and it measures 450 sq. ft.
The Municipal Corporation is treating this
storage tank as an unauthorized construction. It was got deleted from the
sanctioned plan because in the original plan there was a provision for a
smaller water tank. Ultimately, the objection is to a bigger storage tank.
There is no dispute that all the structures
are below the ground. The main purpose of the upper basement i.e. a working
platform measuring 6000 sq. ft. was meant to work the printing press. Without
the water storage tank the Express Newspapers Pvt. Ltd. would not get the
completion certificate and it is difficult to understand how the underground
tunnel passage, to connect the old and new Express Building would cause traffic
hazard. At any rate, such minor deviation would not result in a demolition of
the Express Buildings. The manner in which the impugned notice was got issued
by the Municipal Corporation at the direction of respondent No. 2 shows that it
was done with an ulterior purpose. The illegality of the action is writ large
and the manner in which it wag done creates a ground for belief that the action
was motivated.
The Express Newspapers Pvt. Ltd. were asked
to show cause within three days from the date of issue of the notice as to why
an order of demolition should not be passed under sub-s. (1) of s.343 failing
which action was to be taken for demolition under sub-ss. (2) and (3) of s.
344. It is evident from the list of dates furnished by the learned counsel for
the Municipal Corporation that during the period from February 18, 1980 to the
date of issue of the impugned notice, the officials of the 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.
539 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 dated January 5,
1979 was for the construction of an underground water storage tank over the
area of 550 sq. ft.
for the requirement of fire fighting and fire
protection measures. It was, however, asserted that the recommendation of the
Chief Fire Officer was not according to building bye- laws and, therefore, not
binding on the Municipal Corporation. The proposal for the construction of a
water storage tank in a corner of the building covering 550 sq.
ft. was accordingly got deleted. It was also
pointed out that the water storage tank as constructed measuring 4095 sq. ft.
was eight times bigger than the one recommended by the Chief fire Officer. I am
afraid, I am unable to appreciate this line of reasoning. If a water tank of
this magnitude was permitted to be constructed, the water stored in it would be
sufficient for the entire Press Enclave at Bahadurshah Zafar Marg. I fail to
see any rational basis for the objection raised. The Express Newspapers Pvt.
Ltd. have at a considerable cost, constructed a large enough water storage tank
to serve the entire Press Enclave and if it is sufficient to serve all the
buildings on Bahadurshah Zafar Marg, the Municipal Corporation should, indeed,
thank the Express Newspapers Pvt. Ltd. for making provision for the protection
of all the buildings. In the recent past, the devastating fire which engulfed
many multi-storeyed buildings like Hindustan Times, Kanchunjunga, Gopala Tower
etc. showed that the authorities could not bring under control such fires for
want of sufficient water facilities.
S. 14 of the Delhi Development Act which
applies to all areas in Delhi irrespective of whether such area is a
development or non-development area or a slum area, lays down that the use of
the land shall be in accordance with the plan, i.e., in conformity with the Master
Plan and Zonal Development Plan. m e Press Area falls within the 'Use Zone'
C-II which is dealt with at page 50 of the Printing Master Plan. It is evident
from the uses as specified for the said zone that installation of printing
machinery for production of newspaper has to be specially permitted by the
Delhi Development Authority 'under Special 540 Appeal' provision laid down in
the Master-Plan read with s.
14 of the Act. It is in pursuance of these
statutory provisions that the letter dated November 4, 1478 of the Joint
Director (Building), Delhi Development 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 Authority, are of 24 sq. ft. in height
from the foundation.
This is the reason why on account of which,
the height of the basement has been sanctioned at 26 ft. The newsreels are fed
at the bottom of those machines and the printed matter is collected at the top
i.e. On the second basement for delivery to vans and trucks at the street
level. The Express Newspapers Pvt. Ltd. have produced photographs which show
the two levels of the machines that are to be installed in the basement. One
has, therefore, to approach the machines at the bottom to feed the news-print
in and at shoulder level to receive the printed papers as well as to service
the machines. All modern printing presses require a slab or a working platform
where the printing paper is received and from which the machine can be served.
The working platform is a necessary appurtenance which is incidental to and
necessary for, the machines to be installed by them. They further allege that
in the Indraprastha Estate itself, buildings of the National Herald, the
Institute of Chartered Accountants, the Times of India and Milap, amongst
others, have were than one floor beneath the ground floor. The construction of
these structures has been specifically sanctioned by the Municipal Corporation.
They have placed on record, the sanctioned plans of the Times of India and the
541 National Herald allowing them to construct such a working platform. The
photographs relating to the Times of India building which is only 300 yards
away from the Express Buildings show that such a platform had been constructed
and is in regular use in the Times of India building. The working platform in
the Times of India building is a concrete platform measuring about 6000 sq.ft.
The petitioners contend that allowing their competitors to construct such a
working platform and disallowing construction of the platform in the case of
the Express Newspapers Pvt. Ltd. is clearly violative of the petitioners'
fundamental right to equality before the law guaranteed by Art. 14 of the
Constitution. Further, in case the Express Newspapers Pvt. Ltd. are denied the
facility of such a platform, the machinery would be rendered ineffective and
this would be a serious infringement of their fundamental right to freedom of
speech and expression and the right to carry on any trade or business
guaranteed under Arts. 19(1)(a) and (g) of the Constitution- The petitioners'
case is that the working platform which the respondents wrongly described as a
double basement is incidental to and absolutely essential for the machines.
The choice before them was to construct it
with wood, tin or R.C.C. slab. They 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 more
appropriate for the needs of the Press. From the photographs on record, it is
quite apparent that the printing press is a heavy machinery which is installed
on the lower basement with a height of 24 ft.
The petitioners have alleged that in the
Indraprastha Estate itself, buildings of the National Herald, Institute of
Chartered Accountants, the Times of India and Milap, amongst others, have 542
more than one floor beneath the ground floor. The construction of these
structures has been specifically sanctioned by the Municipal Corporation.
The petitioners contend that the slab of the
working platform constructed by them does not fall within the meaning of the
expression 'covered area' in sub-cl.(22) of cl.2 of the Building Bye-laws,
since it is below the plinth level. There is, therefore, no addition to the
covered area at all. The Delhi Development Authority which granting sanction
clearly stated that the area of the basement would not be included in the
calculation of F.A.R. The petitioners also contend that the erection of such a
platform does not fall within the meaning of the expression 'to erect a
building' which is defined in a. 331 of the Delhi Municipal Corporation Act to
mean to erect or re-erect a building and hence no sanction is required for the
same. The Delhi Development Authority specifically approved construction of
double basement as per the plan approved by it and in terms of s.53(3) of the
Delhi Development Act, such approval has an overriding effect, and, therefore;
the Zonal Engineer (Building) acted beyond his authority in issuing the
impugned notice under ss. 343 and 344 of the Act.
As already stated, the petitioners have
clearly averred that such a working platform exists not only in the old Indian
Express building but also in the Times of India and the National Herald
buildings, amongst others, in the press Enclave and this has not been denied by
the Municipal Corporation. In fact, the answer is building plan of the Times of
India was sanctioned before the Corporation itself had come into existence i.e.
in 1957, when in fact, the building plan of the Times of India was sanctioned
in the year 1962. Similarly, the building plan of the National Herald was
sanctioned in the year 1964. It is difficult to believe that the Municipal
Corporation is not aware that such a working platform is absolutely essential
and is necessary for the printing press. If the upper basement of the working
platform constructed by the Express Newspapers Pvt. Ltd. is 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 543 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) specifically provides for a semi-basement. Our
attention was drawn to the statement of the Minister for Works & Housing
made in the Parliament on November 5, 1982, showing that in the Meridian Hotel,
a 5-Star hotel, sponsored by M/s. Pure Drinks not only two basements have been
permitted but also a semi- basement and a service floor without reckoning any
one of them for computation of FAR. Further, the advertisements issued by the
Delhi Development Authority for auctioning hotel sites at Bhikaji Cama Place
and New Friends Colony show that the double basements are permissible and have,
in fact, been permitted in the case of these hotels.
It is urged that the Express Newspapers Pvt.
Ltd. have no right to construct the upper basement particularly when the
Corporation refused to accord sanction to it and that, in any event, it was not
such an unavoidable necessity as to break the law. It is said that the second
basement, conveniently called, the working platform for the operation of
flouncing of the printed newspaper is just an afterthought. He argued that even
i some receiving floor may perhaps be necessary to receive the printed
newspaper from the machine, it could be achieved by locating the machines on a
suitable pedestal or by laying the floor of the basement in such a manner as to
discharge the newspapers on the ground floor. It is difficult to conceive how
the huge printing press with a height of 24 ft. could be placed on a pedestal
or be laid on the floor of the basement in such a manner as to discharge the
newspapers on the ground floor.
It is common ground that there is a working
platform in all the other printing press in the same line of buildings like
that of the Times of India, the National Herald, Patriot and the old Indian
Express Building. In all these buildings, the printing presses are installed in
the lower basement and there is an over-hanging platform in the printing press
in each of the buildings to receive the printed material. I do not see any
justification for the Municipal Corporation to object to the construction of
the working platform. If the Municipal Bye-laws do not permit the 544
construction of a double basement then they would be clearly violative of Art.
14, 19(1) (a) and 19(1)(g) of the Constitution.
Shri M.C. Bhandare, learned counsel appearing
for respondent nos. 3 and 4, Municipal Corporation of Delhi and Zonal Engineer
(Building, City Zone, 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.
Applicability of the doctrine of promissory
estoppel :
In my considered opinion the Express
Newspapers Pvt. Ltd. having acted upon the grant of permission by Sikandar
Bakht the then Minister for Works & Housing and constructed the new Express
Building with an increased FAR of 360 and a double basement in conformity with
the permission granted by the lessor i.e. the Union of India, Ministry of Works
& Housing with the concurrence of the Vice-Chairman, Delhi Development
Authority on the amalgamation of plots nos. 9 and 10, as ordered by the
Vice-Chairman by his order dated October 21, 1978 as on 'special appeal' as
envisaged in the Master Plan having been directed, the lessor is clearly
precluded from contending that the order of the Minister was illegal, improper
or invalid by application of the doctrine of promissory estoppel.
In 1948, Denning, J. in Robertson v. Minister
of Pensions, L.R., [19491 l K.B. 227, laid the foundation to the applicability
545 of promissory estoppel in public law. As Prof. de Smith in his Judicial
Review of Administrative Action, 4th edition at p.103 observes :
"There is a growing body of authority,
attributable in large part to the efforts of Lord Denning, to the effect that
in some circumstances when public bodies and officers, in their dealing with a
citizen, take it upon themselves to assume authority on a matter concerning
him, the citizen is entitled to rely on their having the authority that they
have asserted if he cannot reasonably be expected to know the limits of that
authority; and he should not be required to suffer for his reliance if they
lack the necessary authority.
The learned author then states :
"But it is extremely difficult to define
with any degree of precision the circumstances in which the courts will be
prepared, in the interest of 'fairness' to the individual to derogate from
orthodox notion of ultra vires.
Professor H.W.R. Wade in Administrative Law,
5th edition, at page 232 observes that the basic principle of estoppel is that
a person who by some statement or representation of fact cause another to act
to his detriment in reliance on the truth of it is not` allowed to deny it
later, even though it is wrong. Justice here prevails over truth. Estoppel is
often described as a rule of evidence, but more correctly it is a principle of
law. As a principle of common law it applies only to representations about past
or present facts. But there is also an equitable principle of 'promissory
estoppel' which can apply to public authorities. The fact in Robertson's case
were these. The War Office wrote to Robertson, an Army Officer, who had claimed
a disablement pension on account of the War injury, that his disability had
been accepted as attributable to military service. But for this injury the
responsible department was the 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 546 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 executive necessity,
that is, the doctrine that the Crown cannot bind itself so as to fetter its
future executive action.
It would appear that Denning, J. evoked two
doctrines :
(1) that assurances intended to be acted upon
and in fact acted upon; were binding; and (2) that where a Government department
wrongfully assumes authority to perform some legal act, the citizen is entitled
to assume that it has that authority, and he dismissed the contention that
estoppels do not bind the Crown by saying that 'that doctrine has long been
exploded' and that the Crown cannot fetter its future executive action.
Professor Wade points out that the proposition about wrongful assumption of
authority evoked by Denning , J. was immediately repudiated by the House of
Lords in a later case in which Denning, LJ.
had again put it forward in Howell v.
Falmouth Boat Construction Company Ltd., L.R. [1951] A.C. 837, it is beyond the
scope of this judgment to enter into a discussion as to how far Denning J's
dictum can still be regarded as part of the common law in England. But there
appears to be a school of thought in India laying down that the doctrine of
promissory estoppel applies to the Government except under certain
circumstances.
In Union of India & Ora. v. Indo Afghan
Agencies Ltd [1968] 2 S.C.R. 366, Shah, J. speaking for the Court stated with
approval the following observations of Denning, J. in Robertson's case :
"The Crown cannot escape by saying that
estoppels do not bind the Crown for that doctrine has long been exploded. Nor
can the Crown escape by praying in aid the doctrine of executive necessity,
that is, the doctrine that the Crown cannot bind itself so as to fetter its
future executive action.
and the learned Judge held that this doctrine
applies in India.
In Century Spinning & Manufacturing Co.
Ltd. & Anr. v. The Ulhasnagar Municipal Council & Anr., [1970] 3 S.C.R.
854, Shah, 547 J. in remanding the petition
to the High Court which it had dismissed in limine again observed :
"In Indo-Afghan's case this Court held
that the Government is not exempt from the equity arising out of the acts done
by citizens to their prejudice, relying upon the representations as to its
future conduct made by the Government. This Court held that the observations
made by Denning, J. in Robertson's case applied in India." The learned
Judge observed that 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 Kailasam, J. speaking for himself and Fazal Ali, J.
in Jit Ram Shiv Kumar & Ors. v. State of Haryana & Anr., [1980] 3
S.C.R. 689, holding that the doctrine of promissory estoppel cannot be invoked
for preventing the Government from discharging its functions under law. It is
also not applicable when the officer and the Government act out-side the scope
of their authority. The doctrine of ultra vise will in that event come into
operation and the government cannot be held bound by the unauthorized acts of
his officers.
548 It is not necessary for purposes of this
judgement to solve the apparent conflict between the decision of the Bhagwati ,
J. in Motilal Padampat Sugar Mills' case as to the applicability of the
doctrine of estoppel for preventing the Government from discharging its
functions under the law.
In public law, the most obvious limitation
and doctrine of estoppel is that it cannot be evoked 80 as to give an
overriding power which it does not in law possess. In other words, no estoppel
can legitimate action which is ultra vires. Another limitation is that the
principle of estoppel does not operate at the level of Government policy.
Estoppels have however been allowed to
operate against public authority in minor matters of formality where no
question of ultra vires arises : Wade, Administrative law, 5th edition, pp.
233-34.
The principles laid down in Maritime Elec.
Co. v. General Dairies Ltd., [1937] A.C. 610 P:C., and by Lord Parker, CJ. in
Southend-on Sea-Corporation v. Hodgeson (Wickford) Ltd., [1962] 1 Q.B. 416,
relied upon by learned counsel appearing for respondent no.1 the Union of India
are clearly not attracted in the facts and circumstances of the present case.
In the present case, admittedly, the then Minister for Works & Housing
acted within the scope of his authority in granting permission of the lessor
i.e. the Union of India, Ministry of Works & Housing to the Express
Newspapers Pvt. Ltd. to construct new Express Building with an increased FAR of
360 with a double basement for installation of a printing press for publication
of a Hindi newspaper under the Rules of Business framed by the President under
Art. 77(3). Therefore, the doctrine of ultra vires does not come into
operation. In view of this respondent no.1 the Union of India is precluded by
the doctrine of promissory estoppel from questioning the authority of the
Minister in granting such permission. In that view, the successor Government
was clearly bound by the decision taken by the Minister particularly when it
had been acted upon.
Quantum of conversion charges : Extent of
Liability : 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 549 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 lessor i.e. the Ministry of
Works & Housing for permission for change of user and pay the necessary
additional ground rent and conversion charges as applicable to others in the
Press Enclave situate at Bahadurshah Zafar Marg.
Dr. L.M. Singhvi appearing for respondent no.
5 , the Land & Development Officer made a statement that the notice issued
by the Engineer Officer dated March 10, 1980 in supersession of his earlier
notice dated March 7, 1980 was issued on behalf bf the Land & Development
Officer not because there was any breach of the terms of the lease by the Express
Newspapers Pvt. Ltd. by the construction of a new building with an FAR of 360
together with the existing Indian Express Building, but because of
nonsubmission of the sanctioned plan to the Land & Development Officer and
construction of the new building without the sanction of the lessor i.e. the
Union of India. He clarified that the Land & Development Officer is not an
authority competent to question the decision of the Ministry of Works &
Housing to permit construction of the Indian Express Building covering an FAR
of 360. The whole purpose of the. aforesaid notice of the Engineer Officer
dated March 10, 1980 sent on behalf of the Land & Development Officer was
to realize the amount of Rs. 54,000 which had been refunded on account of the
portion kept green being built up and for the purpose of checking the
deviations, if any, from the sanctioned plan.
Undoubtedly, the Express Newspapers Pvt. Ltd.
are liable to pay conversion charges in terms of cl. 2(7) of the lease-deed but
c the question is : how much is the amount and what should be the basis. On
this vexed question, the submissions advanced furnish no easy solution for us
to adjudicate because it involves technical expertise.
According to Shri Nariman, learned counsel
for the petitioners no conversion charges are payable in respect of the new
Express Building with an increased FAR of 360 built on the residual area of
2740 sq. yards as per the circular of the Government of India, Ministry of
Works & Housing dated February 550 19, 1970 apart from Rs. 54,000 towards
additional premium for change of use of the leased land, which was non-
buildable becoming buildable with the removal of the underground sewer-line,
and additional ground rent at 2-2/1% of the additional premium. According to
him, the distinction now sought to be drawn by respondent no.5 , Land &
Development Officer 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 notification dated
June 25, 1979 revising the above rates w.e.f. April 9, 1979 (Group 3, item 5
relates to the press area).
It is further submitted that the formula
furnished by Dr.Singhvi, learned counsel appearing for respondent no.2 , the
Lt. Governor and respondent no.5 the Land & Development Officer for
computation of conversion charges for change of user is wholly inaccurate. It
overlooks the fact that the commercial charges would be only 50% of the
difference between the market value on the date of conversion and-the premium
already paid. That this is the correct formula is disclosed by the Government
to Parliament. According to the formula, only 50% of the difference between the
current market value on the date of conversion and the premium paid previously
is payable as additional premium to the Government and not 100% of the said
difference, as asserted.
The learned counsel submits that in view of
the stand taken by the Land & Development Officer who evidently has mis-
stated vital facts and tried to mislead the Court the petitioners cannot hope
any kind of justice at his hands.
551 Shri Nariman further contends that
although by reason of the circular of the Government of India dated February
19, 1970 whereunder the Express Newspapers Pvt. Ltd. were not bound to pay any
premium for additional construction in respect of the lease granted (even where
the actual lease- deeds are no executed), nevertheless, they are prepared to
pay whatever amount that this Court may teem fit as and by way of commercial
charges in order to avoid another round of litigation. Alternatively, they were
prepared as they have always been ant what was stated at the very opening day
of the hearing of this case, to have this question of quantum of conversion
charges terminated by an impartial ant independent person like a retired Judge
of the Supreme Court named by this Court, to which the respondents were not
agreeable. Since there is no administrative or statutory remedy provided, he
prayed that the Court may direct payment of such amount, if any as may be
deemed just and proper particularly having regard to the fact that even if the
open land of 2740 sq.yards were allotted for the first time in 1978 to a
particular person for commercial purpose, the only charge that can be levied
would be market rate of Rs. 750 per sq.yards i.e. aggregate of Rs. 22.05 lacs.
Of this only 50%, 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 newspaper use.
The Express Newspapers Pvt. Ltd. therefore
stand to gain crores of rupees in rental income at the rate of Rs. 16 per
sq.ft. per month from the huge additional constriction. If ant when permission
is granted under the lease they would have to 552 make at least one lumpsum
payment to the lessor who owns the land in addition to further additional
ground rent. It is accordingly stated that the Court should extend no
assistance to the Express Newspapers Pvt. Ltd. from avoiding the norms and
procedure for obtaining the sanction of the lessor i.e. by applying to Land
& Development Officer and from evading payment of charges uniformly levied.
Further if the original declared 'real and genuine intention' of using the
space for its newspaper was adhered to by the Express Newspapers Pvt. Ltd.
their monetary liability would be very small.
The Land & Development Officer further
asserts that the petitioners apprehended. that if their real intention of
commercial sub-letting were to be disclosed, they would have had to make
payment and comply with the terms which they wanted to evade ant avoid. That is
why instead of complying with the notice of the Engineer Officer dated March
10, 1980, the petitioners moved this Court through the present writ petitions
on April 1, 1980 alleging breach of their fundamental rights under Art.19(1)
(a), Art. 14 ant Art.
19(1)(g) of the Constitution ant obtained
at-interim ex- parte stay on April 7, 1980. It was clear from the writ
petitions that by the end of February, 1980 the entire structure of the new
Express Building except the small portion were completed at a cost of
approximately Rs. 1.30 crores.
While accepting that the conversion charges
for the new Express Building build on the residual area of 2740 sq.
yards utilized for newspapers use would
amount to Rs. 54,000, the Land Development Officer has also "without
prejudice" to the rights and contentions of the respondents tentatively
worked out the conversation charges as indicated in the following chart :
1. Conversion charges for changing use of
2740 sq.
yards of open area from green to buildable
area for Newspaper Press, the purpose for`which plot nos.9 and 10 were allotted
as per original allotment and Perpetual Lease.
Total area to be kept vacant 2740 sq. yards,
as per perpetual lease cl.2(14) =0.566 acres Conversion charges now to be
recovered for construction of additional building on the open area for starting
a Newspaper = 553 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 Newspapers Pvt.
Ltd. furnished the Municipal Corporation of Delhi the sanctioned plans asked
for in the impugned notice, it is not possible to work out the conversion
charges and other charges and submit the same for approval to the Ministry of
Works & Housing and after receipt of their approval to intimate the same to
the lessee i.e. the Express Newspapers Pvt. Ltd. According to the learned
counsel a rough estimate of the charges payable by the Express Newspapers Pvt.
Ltd. On the basis of the date available with the Municipal Corporation of Delhi
was arrived at as given in the chart given above, if commercial sub-letting
were to be permitted. On the basis of the calculations therein the estimated
conversion charges come to approximately Rs. 3.30 crores. The learned counsel
also stated that on the admitted position the only rental @ 16 5 per sq.ft. per
month collected by the Express Newspapers Pvt.Ltd. would be Rs. One crore per
year approximately.
We cannot possibly in these proceedings under
Art.32 under- take an adjudication of this kind but I am quite clear that
respondent no.5 the Land & Development Officer having already indicated his
mind that the amount of conversion charges would be more than Rs. 3.30 crores,
it would not subserve the interests of justice to leave the adjudication of a
question of such magnitude to the arbitrary decision of the Land &
Development Officer who is a minor functionary of the Ministry of Works &
Housing. We were informed by Shri Sinha, learned counsel for respondent no.1,
554 the Union of India that the Central Government were contemplating to
undertake a legislation and to provide for a`forum for adjudication of such
disputes. As stated earlier, we had suggested that the dispute as to the
quantum of conversion charges payable be referred to the arbitration of an
impartial person like a retired Judge of the Supreme Court of India, but this
was not acceptable to the respondents. The Union of India may in the
contemplated legislation provide for the setting up of a tribunal with a right
of appeal, may be to the District Judge or the High Court, to the aggrieved
party. If such a course is not feasible, the only other alternative for the
lessor i.e. the Union of India, Ministry of Works & Housing would be to
realize the conversion charges and additional ground rent, whatever be
recoverable, by a duly constituted suit. Till then I would 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) thereof, and 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 88. 343 and 344 of the Delhi Municipal
Corporation Act, 1957, are quashed. It is declared that the construction of the
new Express Building on the residual portion of 2740 square yards on the
western side of plots nos. 9 and 10, Bahadurshah Zafar Marg with an increased
FAR of 360 with a double basement for installation of a printing press for
publication of 555 a Hindi daily newspaper was with the permission of the
lessor i.e. the Union of India, Ministry of Works & Housing and did not
constitute a breach of clauses 2(5) and 2(14) of the lease-deed.
It is directed that the respondents,
particularly the Union of India, Ministry of Works & Housing, the Delhi
Development Authority, and the Municipal Corporation of Delhi, shall forbear
from giving effect to the impugned notices in the manner threatened or in any other
manner whatsoever. It is further directed that the Union of India, Ministry of
Works & Housing shall enforce its claim for recovery of conversion charges
by a duly constituted suit or by making a law prescribing a forum for
adjudication of its claim. It is also directed that the Municipal Corporation
of Delhi shall compound the construction of the double basement of the new
Express Building, the excess basement beyond the plinth limit and the
underground passage on payment of the usual composition fee.
The petitioners shall be entitled to recover
their costs from respondents nos. 1 and 2.
VENKATARAMIAH, J. I have gone through the
judgment which my learned Brother Justice A.P. Sen has just now delivered. I
agree that Shri Jagmohan, Lt. Governor of Delhi, the second respondent herein,
has taken undue interest in getting the impugned notices issued to the Ist
petitioner and his action which has come up for consideration in this case is
not consistent with the normal standards of administration. I am satisfied that
the said notices were issued by the authorities concerned under the pressure of
the second respondent. The question whether the notices should be issued or not
does appear to have been considered independently by the concerned
administrative authorities before issuing them. Shri Lal Narain Sinha, the
learned counsel for the Union Government has submitted that the Lt. Governor
was a total stranger to the lease and had no sort of right or power under the
lease deed to set in motion any action 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 556
power. The clam of the Lt. Governor that he was the agent of the Union
Government in regard to the lease in question and that he could take the steps
he had taken under the lease thus stands repudiated. It is unfortunate that the
Lt.
Governor persisted in justifying his action
even after the learned counsel for the Union of India had disowned all the
actions of the Lt. Governor. The Lt. Governor failed to make a distinction in
this case between the power with respect to the subject 'Property of the Union
and the revenue therefrom' which is in Entry 32 of List I of the Seventh
Schedule to the Constitution and the general powers of administration entrusted
to him under Article 239 of the Constitution as the Administrator of the Union
Territory of Delhi. The property in question is a part of the estate of the
Central Government. Mere nearness to the seat of the Central Government does
not clothe the Lt. Governor of Delhi with any power in respect of the property
of the Central Government. He can discharge only those powers which are
entrusted to him by the Constitution and the laws.
It is also not correct to claim that all the
powers of the former Chief Commissioner of Delhi have devolved on the Lt.
Governor and continue to vest in him. It is surprising that the Land and
Development office which is under the Central Government, functioned in this
case as an office under the Lt. Governor of the Union Territory of Delhi and
even in the conduct of this case it allowed itself to be controlled and guided
by the h Lt. Governor till a very late stage when Shri Lal Narain Sinha,
learned counsel for the Union of India took a definite stand and submitted that
the Lt. Governor had no voice in the matter.
The material available in this case is sufficient
to hold that the impugned notices suffer from arbitrariness and non-application
of mind. They are violative of Article 14 of the Constitution. Hence they are
liable to be quashed. It is not necessary therefore to express any opinion on
the contentions based on Article 19(1)(a) of the Constitution.
The rest of the questions relate truly to the
civil rights of the parties flowing from the lease deed. Those questions cannot
be effectively disposed of in this petition under Article 32 of the Constitution.
The questions arising out of the lease, such as, whether there has been breach
of the covenants under the lease, whether the lease can be forfeited, whether
relief against forfeiture can be granted etc. are foreign to the scope of
Article 32 of the Constitution. They cannot be decided just on 557 affidavits.
These are matters which should be tried in a regular A civil proceeding. One
should remember that the property belongs to the Union of India and the rights
in it cannot be bartered away in accordance with the sweet will of an Officer
or a Minister or a Lt. Governor but they should be dealt with in accordance
with law. At the same time a person who has acquired rights in 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 permissible to do so.
It is open to the Delhi Municipal Corporation
to examine the matter afresh independently and to take such action that may be
open to it in accordance with law. The Delhi Municipal Corporation may, if so
advised, instead of taking any further action against the petitioners permit
the petitioners to compound the breaches, if any, committed by them in
accordance with law.
I allow the petitions accordingly. The costs
of the petitioner No. 1 shall be paid by the Union Government and the Lt. Governor
of Delhi. There shall be no order as to costs against the other respondents.
The other petitioners shall bear their costs.
MISRA, J. I have perused the judgment
prepared by brother Justice A.P. Sen as also the judgment of brother Justice
E.S. Venkataramiah. While I agree that the impugned notices threatening
re-entry and demolition of the construction are invalid and have no legal value
and must be quashed for reasons detailed in 558 the two judgments, which I do
not propose to repeat over again, I am of the view that the other questions
involved in the case are based upon contractual obligations between the
parties. These questions can be satisfactorily and effectively dealt with in a
property instituted proceeding or suit and not by a writ petition on the basis
of affidavits which are 80 discrepant and contradictory in this case.
The right to the land and to construct
buildings thereon for running a business is not derived from Article 19(1)(a)
or 19(1)(g) of the Constitution but springs from terms of contract between the
parties regulated by other laws governing the subject, viz., the Delhi
Development Act, 1957, the Master Plan, the Zonal Development Plan framed under
the Delhi Municipal Corporation Act and the Delhi Municipal Bye-laws, 1959 irrespective
of the purpose for which the buildings are constructed. Whether there has been
a breach of the contract of lease or whether there has been a breach of the
other statutes regulating the construction of buildings are the questions which
can be properly decided by taking detailed evidence involving examination and
cross- examination of Witnesses.
I accordingly allow that writ petitions with
costs against the Union Government and the Lt. Governor of Delhi and quash the
impugned notices.
REVIEW PETITION NO.. 670 OF 1985 ORDER We
have gone through the application for review and the connected papers. The
application is supported by an affidavit by the petitioner Jagmohan, former
Lieutenant- Governor of Delhi who 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 559 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 , Municipal Corporation of Delhi denying
that he ever made the statement attributed to him at pp.
189-190 of the judgment delivered by one of
us (Sen, J). In the first letter, Shri P.P. Singh writes to say :
"There are certain statements in the
judgment which are attributed to Shri Sinha having made in the course of his
arguments which do not seem to be correct as having been made by him. I have
discussed the matter with Mr. Sinha and he agrees with me that it is not
correct that he made the following statements during his course of arguments :
(a) "He has further submitted that the
land leased under the lease deed being nazul land is exclusively owned by the
Union Government and the powers delegated to the former Chief Commission of
Delhi under the lease deed were no longer exercisably by the present Lt.
Governor of Delhi." (b) ".......... On the date on which the action
was initiated in this case by the Lt. Governor against the petitioner the Lt.
Governor had acted without authority or power.
(c) That "the Learned Counsel for the
Union of India had disowned all the actions of the Lt.
Governor." (d) That the Learned Counsel
for Respondent NO.1 i.e. the Union of India "contended that Lt.
Governor, as an Administrator had no function
as the Lessor or its delegatee" (e) That "the Lt. Governor could not
usurp the powers and functions of the Union of India in relation to the
property of the Union and therefore had no functions in relation to the lease
in question" (f) That "the Central Government were contemplating to
undertake a legislation and to provide for a Forum for adjudication of such
disputes (Shri Sinha did inform the Court that he had advised the Central
Government to undertake a legislation for 560 empowering the Government to condone
the violations of the nature involved in the present case in public
interest)" ....... It is incorrect as stated at pages 90-91 of the
judgment that the Learned Counsel for the Union of India conceded that the
Impugned Notice was invalid and had no legal effect." In the second letter
Shri M.C. Bhandare writes to Shri B.P.
Maheshwari, and states :
"Your clients, the Municipal Corporation
of Delhi, have acquired from you as to how His Lordship Mr. Justice A.P. Sen,
in his judgment has made the following observations :
"Shri M.C. Bhandare, learned counsel
appearing for respondent nos. 3 & 4, municipal Corporation of Delhi and
Zonal Engineer (Building), City Zone, Municipal 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 a precedent for others." (pages 189-190 of the Judgment)"
561 After settling out what he mentions were his submissions, he says:
"....... I never made the statement
attributed to me. However, I did say that any cause shown by the petitioners
would be considered in accordance with law. I may categorically state that
there was no statement on my part that the deviation were minimum or that the
Municipal Corporation of Delhi would compound the deviations on payment of such
composition fee as was payable under the bye-laws.
This assumes that the composition is
permissible under the bye-laws, which was a disputed matter. I did not state
that this should not be treated as a precedent for others. I never made an
argument whereby I contended that there would be a discriminatory treatment
either in favour or against the Indian Express.
He thus categorically asserts that there was
no statement on his part that the deviations were minimal or that the Municipal
Corporation of Delhi would compound the deviation on payment of such
composition fee as payable under the Bye- laws. Further, he denies that he ever
stated that composition of the deviations, according to his statement, by the
Municipal Corporation of Delhi should not be treated as a precedent for others.
It is unfortunate that the two senior counsel
have chosen this devious and, indeed, curious method of disowning arguments
advanced by them. The proper thing for them to do would have been to file
affidavits and either file petitions for review or have the matters listed,
with the permission of the Court, for being mentioned. Instead, the modus
operandi adopted was to address letters to the Advocates-on- Record who in turn
have, for reasons best known to them, passed on the letters to the petitioner
Jag Mohan who was not their client at all. Advance copies of this petition
laying emphasis on the aforesaid two letters of counsel appearing for other
parties which, we do not doubt have the effect of scandalizing the Court,
appear to have been given to the press for publication. We deprecate the
conduct of those involved in this unsavory event. We feel greatly concerned
that the advocates of this Court who are not mere pleaders for parties but
officers of the Court should stoop to such blameworthy tactics, unworthy of the
high traditions of the noble and learned profession to which they belong. We
feel grieved and not a little perturbed at all this.
Every word written in the judgement
formulating the arguments advanced by Shri L.N. Sinha, learned counsel for
respondent no. 1, 562 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 distinctly remember that on September 14, 1983
during the course of hearing we required learned counsel appearing for the
parties to clarify the legal position. Two of the statements were recorded on
September 14 1983, one by Dr.
L.M. Singhvi appearing for respondent No. 2,
Lt. Governor of Delhi and respondent No. 5, Land & Development Officer as
to the amount of conversion charges payable, and the other by Shri Arun Jaitley
appearing for the petitioners regarding the willingness of the Express
Newspapers Pvt. Ltd. to pay the conversion charges. The third statement by Shri
M.C. Bhandare learned counsel for respondent No. 3, Municipal Corporation of
Delhi was recorded on September 15, 1983 signifying the willingness of the
Municipal Corporation of Delhi to compound the deviations as they were minimal
on payment of the usual composition fee. We have satisfied ourselves by
perusing the Minutes of the Court proceedings as recorded by the Court Master
on September 14 and 15, 19&3 that the statements of all the three counsel
were recorded in the minutes. We have no doubt that the statements were shown
to all the counsel.
The typescript of the statements made by Shri
M.C. Bhandare as recorded in the Minutes of the Court proceedings by the Court
Master on September 15, 1983 reads as follows :
"Shri Bhandare appearing for the
Municipal Corporation is fair enough to say that the petitioner would make an
application for modification of the sanctioned plan with respect to the
basement and the working h platform and the inter-connecting underground
passage 563 the same shall be considered having regard to the consideration of
justice and the needs and also taking into consideration that the building has
been constructed for installing a printing press and that the press cannot
function without the working platform which is already constructed. The learned
counsel states that this shall not be treated as precedent for others. The
Municipal Corporation will compound the deviation which is minimum on payment
of whatever composition fee." The statement attributed to Shri M.C.
Bhandare learned counsel for respondent No. 3 at pp.189-190 of the judgment is
virtually a verbatim reproduction of t he correct draft prepared from the rough
draft of the statement actually made by him in Court subject to certain
grammatical variations signifying the willingness of the Municipal Corporation
of Delhi to compound the deviations as they were minimal on payment of the
usual composition fee.
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 made on behalf of the respondent, having a decisive
bearing on the case' escaping ' the attention of their Lordships' virtually
amounts to gross contempt of Court. We cannot also help in observing that there
has in this case been lamentably complete lack of candour and want of probity
on the part of some of the counsel in making factually incorrect statements and
thereby casting aspersions on the Court.
564 The review application is accordingly
dismissed.
Nothing that we have said will affect the
separate judgements delivered by each one of US.
We direct the Registrar of this Court to keep
the documents enumerated hereinafter in sealed covers under his custody,
namely:
1. The minute-book of the Court proceedings
maintained by the Court Master, dated September 14 and 15, 1983.
2. The original draft typescripts of the
aforesaid statements prepared by the Court Master on September 14 and 15, 1983.
3. The shorthand notebook of the Private
Secretary to Sen, J. dated September 15, 1983 from which the correct drafts of
the statements actually made by the counsel on September 14 and 15, 1983 were
prepared.
4. The fair drafts prepared by the Private
Secretary of the said statements on September 15, 1983.
The Registrar shall also keep the original
records of Writ Petitions Nos. 535-539 of 1980 in a separate sealed cover under
his custody.
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