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PETITIONER: EXPRESS NEWSPAPERS PVT. LTD. & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT07/10/1985

BENCH: SEN, A.P. (J) BENCH: 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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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 JUDGMENT: 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]

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    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

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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

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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

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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

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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]

&

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    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

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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

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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.

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              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

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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.

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It is  clear that  there had  been no application of mind by the Engineer Officer in issuing the show cause notice.      The  recital   of  these   events  clearly  shows  that respondent no.2 displayed great zeal in causing a probe into the manner  in  which  sanction  was  granted  by  the  then Minister for Works & Housing for the construction of the new Express building  with an increased FAR of 360 with a double basement for installation of a printing press and the entire administration was  geared into  action with lightning speed 80 as  to ensure that some action or other was taken against the Express  Newspapers Pvt.  Ltd. This  is evident from the fact, for  instance, that he gave the Three-Member Committee only three  days to  examine questions  which, if  they were properly  scrutinized,   would  require  inspection  of  the records from  the year 1949 onwards of at least six agencies viz. Ministry  of Works & Housing, Land & Development Office in the  Ministry of  Works &  Housing, New  Delhi  Municipal Committee,  Municipal  Corporation  of  Delhi,  Delhi  Water supply and  Sewage Disposal  Undertaking and  the  Union  of India. He  not only  constituted a committee of subordinates to go  into the  affairs of  the Union of India, 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

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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

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         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

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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

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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.

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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

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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.

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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

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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

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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.

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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

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         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

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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

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         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,

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         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

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         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

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         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

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         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

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         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

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         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."

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         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

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         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

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         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

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         & 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

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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,

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         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

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         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

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         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

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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

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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

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         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,

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         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

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         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

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         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

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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

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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

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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

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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

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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

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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

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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

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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.

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         ...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

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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

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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;

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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 :

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         "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

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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

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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

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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

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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’

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         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

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         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

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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

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         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

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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

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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

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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

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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

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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,

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         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

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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

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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

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         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.

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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

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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

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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

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    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

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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

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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

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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

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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

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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

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         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

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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%

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         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

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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

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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

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    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

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         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

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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

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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

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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

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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

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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

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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.

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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,

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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

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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

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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

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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

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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

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         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

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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

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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

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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

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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

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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

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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

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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,

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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

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         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

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         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

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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

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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. M.L.A.                 Petitions allowed and Review Petition 565