# [1985] Supp. 3 S.C.R. 382

- **Citation:** [1985] Supp. 3 S.C.R. 382
- **Court:** Supreme Court of India
- **Decided:** 1985-10-07
- **Case number:** Writ Petition Nos.535-539 of 1980
- **Bench:** A.P. Sen, E.S. Ve.Nkatarami1111 Md R.B. Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1985-supp-3-s-c-r-382-9133
- **Pages:** 183

## Headnote

Articles 32 & 226 - Executive action challenged on grounds
of violjitions of Art. 14, 19(l)(a) & (g) by writ petition -
Maintainability of -
Issues pertaining to civil rights arising
out of contracts between parties - Whether can be decided on mere
affidavits. lleld: Filing of civil proceedings only remedy - Civil
Procedure Code, s.9.
Articles 19(1) (a) and (2) -
Freedon, guaranteed under -
Whether comprehends freedom of press. - Violation of such freedom
- How to be determined.
Articles 239(1), 53(1), 72,77, 240 & 298 - Lt. Governor of
D
Delhi - Whether successor of the former Chief Commissioner of
Delhi - Whether has power to deal with allotment/lease etc. of
lands falling ··1ithin Union Territory of Delhi and which is under
control and adm:f.nistration of I.and & Development Officer and
vests in Govt. of India, ~dnistry of works & Rousing -
Govt. of
Part 'C' States Act 1951, sec. 21, Proviso, Authentication
E
(Orders & Other Instruements) Rules 1958, Govt. of India (Allocation of Business) Rules 1961 & General Clauses Act 1897, s.18.
Local Authorities -
Delhi Development Act, 1957 ss.53(3)(a), 12(4), 14,41 and
F
2{d) -
Construction of a building -
Permission obtained from
competent authority under the Act -
whether it will prevail
notwithstanding anything inconsistent therewith in any other law.
Delhi Municipal Corporation Ac~ 1957 ss .343, 344 and 481
read with Delhi Nunicipal Corporation (Buildings) Bye-laws 1959 -
G
Bye-laws 25(2) -
(IV-B), 21(1), 22(V) and 2(33) -
Show cause
notice for taking action u/ss.343 & 344 -
Validity of -
Permission already granted by competent authority under Delhi
Development Act 1957 to raise the structure and acted upon -
Whether raising cf structure can be questioned under ss.343, 344
- Applicability of bye-laws -
Hei~ht of builoing - Restriction of
H
EXPRESS NEWSPAPERS v. u.o.r.
383
-
How
to be decided -
Construction of press building with
increased FAR of 360 with double basement for installation of
printing press - Validity of - Master Plan aad Town Planning -
Whether construction legal and . in compliance with terms and
conditions of lease deed - Notice of re-entry upon forfeiture of
lease - Validity of.
Specific Relief Act 1963, ss. S,6 and 9 - Perpetual lease
granted
to
a
private
limited
company
by
government
for
construction of building - Provisions in lease deed for Govt. 's
right of re-entry in case of breach of lease terms -
Whether
lessor can enforce that right by resort to summary procedure -
Recourse to Public Premises (Eviction of Unauthorised Occupants)
Act,
1971
-
When
arises -
·Public Premises
(E••iction of
Unauthorised Occupants) Act, 1971, _ss.2(3), and (g) and 5.
Government hrants Act 1895, s.3 - Effect of. 0
Administrative Law - Mala Fides - Allegations of - Misuse
of Power in bad faith for collateral purpose - \Jhether amounts to
mala fide Pxercise of power -
Burden and nst,.i:e of proof -
Allegations tc be definite, specific and not v_ague -
Court to
accept them as true, if not controverted on affidavits.
Doctrine . of ultra vires -
Scope of -
Fraud on power -
Meaning of -
Exercise of power in good faith and misuse in bad
faith - Distinction between.
Doctrine of Promissory Estoppel -
Applicability
of -
Whether applicable against government - Limitations - What are.
The Central Government had i::I. the year 1949 demarcated the
press area along the Bahadur Shah Zafar Msrg, New Delhi. It
consisted of plots Nos. l to 10 known as Press Enclave as a
C011111ercial
complex.
These
plots
were
alloted
to various
newspapers like the Indian Express, Times of India, Patriot,
National Herald, etc. Petitioner No.1, Expr""s Newspapers Private
Ltd,, eggaged in the business of printing and publishing a
national newspaper, Indian Express (Delhi Edition), was alloted
plot nos. 9-10 Bahadur Shih'> Zafar Marg, New Delhi by an indenture
st}led as an "agreement for lease" executed on Msy 26, 1954
between the petitioner and the Secretary (Local self-government)
to the Chief Commissioner of De

## Text

_Characters 0–39,958 of 444,998. This is a partial read: ask again with offset=39958 for what follows._

382
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EXPRESS NE.l/SPAPERS PVT, LTD. & ORS.
Vo
UNION OF INDIA & ORS,
OCTOBER 7, 1985/NOVEMBER 5, 1985
[A.P. SEN, E.S. VE.NKATARAMI1111 MD R.B. MISRA, JJ.]
Articles 32 & 226 - Executive action challenged on grounds
of violjitions of Art. 14, 19(l)(a) & (g) by writ petition -
Maintainability of -
Issues pertaining to civil rights arising
out of contracts between parties - Whether can be decided on mere
affidavits. lleld: Filing of civil proceedings only remedy - Civil
Procedure Code, s.9.
Articles 19(1) (a) and (2) -
Freedon, guaranteed under -
Whether comprehends freedom of press. - Violation of such freedom
- How to be determined.
Articles 239(1), 53(1), 72,77, 240 & 298 - Lt. Governor of
D
Delhi - Whether successor of the former Chief Commissioner of
Delhi - Whether has power to deal with allotment/lease etc. of
lands falling ··1ithin Union Territory of Delhi and which is under
control and adm:f.nistration of I.and & Development Officer and
vests in Govt. of India, ~dnistry of works & Rousing -
Govt. of
Part 'C' States Act 1951, sec. 21, Proviso, Authentication
E
(Orders & Other Instruements) Rules 1958, Govt. of India (Allocation of Business) Rules 1961 & General Clauses Act 1897, s.18.
Local Authorities -
Delhi Development Act, 1957 ss.53(3)(a), 12(4), 14,41 and
F
2{d) -
Construction of a building -
Permission obtained from
competent authority under the Act -
whether it will prevail
notwithstanding anything inconsistent therewith in any other law.
Delhi Municipal Corporation Ac~ 1957 ss .343, 344 and 481
read with Delhi Nunicipal Corporation (Buildings) Bye-laws 1959 -
G
Bye-laws 25(2) -
(IV-B), 21(1), 22(V) and 2(33) -
Show cause
notice for taking action u/ss.343 & 344 -
Validity of -
Permission already granted by competent authority under Delhi
Development Act 1957 to raise the structure and acted upon -
Whether raising cf structure can be questioned under ss.343, 344
- Applicability of bye-laws -
Hei~ht of builoing - Restriction of
H
EXPRESS NEWSPAPERS v. u.o.r.
383
-
How
to be decided -
Construction of press building with
increased FAR of 360 with double basement for installation of
printing press - Validity of - Master Plan aad Town Planning -
Whether construction legal and . in compliance with terms and
conditions of lease deed - Notice of re-entry upon forfeiture of
lease - Validity of.
Specific Relief Act 1963, ss. S,6 and 9 - Perpetual lease
granted
to
a
private
limited
company
by
government
for
construction of building - Provisions in lease deed for Govt. 's
right of re-entry in case of breach of lease terms -
Whether
lessor can enforce that right by resort to summary procedure -
Recourse to Public Premises (Eviction of Unauthorised Occupants)
Act,
1971
-
When
arises -
·Public Premises
(E••iction of
Unauthorised Occupants) Act, 1971, _ss.2(3), and (g) and 5.
Government hrants Act 1895, s.3 - Effect of. 0
Administrative Law - Mala Fides - Allegations of - Misuse
of Power in bad faith for collateral purpose - \Jhether amounts to
mala fide Pxercise of power -
Burden and nst,.i:e of proof -
Allegations tc be definite, specific and not v_ague -
Court to
accept them as true, if not controverted on affidavits.
Doctrine . of ultra vires -
Scope of -
Fraud on power -
Meaning of -
Exercise of power in good faith and misuse in bad
faith - Distinction between.
Doctrine of Promissory Estoppel -
Applicability
of -
Whether applicable against government - Limitations - What are.
The Central Government had i::I. the year 1949 demarcated the
press area along the Bahadur Shah Zafar Msrg, New Delhi. It
consisted of plots Nos. l to 10 known as Press Enclave as a
C011111ercial
complex.
These
plots
were
alloted
to various
newspapers like the Indian Express, Times of India, Patriot,
National Herald, etc. Petitioner No.1, Expr""s Newspapers Private
Ltd,, eggaged in the business of printing and publishing a
national newspaper, Indian Express (Delhi Edition), was alloted
plot nos. 9-10 Bahadur Shih'> Zafar Marg, New Delhi by an indenture
st}led as an "agreement for lease" executed on Msy 26, 1954
between the petitioner and the Secretary (Local self-government)
to the Chief Commissioner of Delhi by the orders and directions
of the President of India for the construction of a four storeyed
building meant to be used for a newspaper.
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SUPREME COURT REPORTS
[1985] SUPP.3 s.c.R.
At the time of construction of buildings in the press area
there were no restrictions as to the Floor Area Ratio (FAR)
permissible along the Bahsdur Shsh Zafar Marg and the only
restriction on cons_truction of building in that area was that the
allottees of the plots should construct buildings up to a height
of 60 feet. The Express Newspapers Pvt. Ltd. was allowed to build
upon the entire area of plots Nos. 9 and 10 with a ground
coverage of 100%, that is, edge to edge, a structure with a
mln1nnmi of five storeys including the ground floor for the
purpose of installation of a printing press for publication of a
Hindi newspaper. This permission was granted in response to the
plans subnitted by the Express Newspapers Pv.t. Ltd. and approved
in writing by the Chief Comnissioner of Delhi acting for and on
behalf of the lessor, that is, the Union of India.
During the preliminary work of construction by the Express
Newspapers Pvt. Ltd. an underground sewer line was found to be
running diagonally across plot nos. 9 and
10. It was agreed
between the parties vide lease agreement dated November 19, 1957
that in view of the underground drain running through the plots,
the Express Buildings would be constructed only to the East of
the drain till the drain was diverted. In effect, an area of 2740
square yards to the West of the drain hsd to be left open as
residual plot of the land out of a total area of 5703 square
yards. The Express Newspapers Pvt. Ltd. constructed the old
Ezpress Building to the East of the sewer line with an FAR of 260
with reference to the entire plot leased to it i.e. plots Nos. 9
and 10 altho1J8h the building occupied only half of the area. On
March 17, 1958 another perpetual lease was executed by Assistant
Secretary (LSG) to the Chief Comnissioner, Delhi by the order and
direction of the President of India demising on behalf of the
Union· of Indi!' in perpetuity the ~
land described therein in
consideration of pa)'lllellt of a premium and yearly rent. Likewise,
the earlier agreement dated November 19, 1957 so also the
supplementary agreement of May 26, 1954 were also executed by the
said Officer in the a.,.., lll81Uler. Both the agreements stipulated
that the rules, regulations and bye-laws of the Municipal
Corporation of Delhi relating to buildings which may be in force
from time to time shal~ be conformed 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 Comnissioner .of Delhi (LSG) to the Ministry of Works &
Housing.
In the year 1977, petitioner No.l, the Express Newspapers
Pvt. Ltd., approached the Municipal Corporation of Delhi for
EXPRESS NEWSPAPERS v. U.O.l.
385
shifting the sewer line outside plots Nos.
9 and 10 and also
moved the lessor; the Union of India, Ministry of Worka and
Housing for grant of requisite sanction to conatruct the new
Express Building with an FAR of 400. The Chief Engineer, Delhi
Water Supply and Sewage Disposal Undertaking granted approval to
the diversion of the sewer line at the cost of petitioner 11o.1.
Thereafter, petitioner No.l, informed the Ministry of Workll and
Housing about the aforesaid approval granted by the Municipal
Corporation of Delhi and requested the Miniatry for advice on the
FAR permissible for the said building. The matter wu proceaeed
in the Ministry of Workll and Hou.dog at varioua ·level.II ad
ultimately
on
October
21,
1978,
tbe Vice-Chainllll,
Delh1
Development Authority took the foll.owing deciaione1
(a) to
smalgR!!l!!te plots
Noa.9 and 10. and taking into account the
existing built-up area would permit the FAii. of 360 overall; (b)
to allow the reaidual area of plota Noe. 9 and 10 to be built in
line with the Times of India and ShR!!I!! Building; (c) to ucl11de
the buement from the calculationa of the FAii. provided the
basmente are uot uaed for office purposes; (d) to penoit parking
on the service road in the -
11111111er aa it waa for the other
buildioga in thia line. The Vice-<:hairman further directed that
the aforeaaid order waa to be treated u
one under special
appeal.
He
accordiogly
gave
inatruction for
iaauing
'No
Objection' to petitioner No.l for conatruction on the residual
area and to make a reference to the Government of India asking
for confirmation of the action proposed in view of the order of
the Minister for Works and Housing to clear the cases illllediately
and to obtain his !!. ~
~
sanction. On November 4, 1978 tbe
Joint Director (Buildings), Delhi Development Authority iasued a
"No Objection Certificate" to the petitioners and the Ministry of
Works and Housing granted its !!. ~
~
approval on November
24, 1978. Thereafter, petitioner No.l constructed its new Express
Building.
On February 17, 1980, respondent No.2 Jagmohan assumed
office as the Lt. Governor of Delhi and on the same evening, be
s1111111Dned the Comnissioner of the Municipal Corporation of Delhi
and called for the files relating to the construction of the new
Express Building at Bahadur Shah Zafar Marg, New Delhi. On the
next day, the necessary files were made available. On February
20, 1980, some important files of the Delhi Development Authority
relating to the Express Buildings were sent to respondent No.2.
On February 29, 1980, respondent No.2 through the Colllllissioner
Municipal Corporation of Delhi caused the loclr.s of the office and
cupboards of the Zonal Engineer (Building) to be brolr.eil open to
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SUPREME COURT REPORTS
[1985] SUPP.3 s.c.R.
take away the files relating to the new Express Building. On
March l, 1980 respondent No.2 convened a press conference in
which he handed over a press release alleging (i) that the new
Express Building put up by the petitioners was in contravention
of law in several respects; (ii) that he had ordered an inquiry
to be made by a conmittee of three of his subordinate officials
and (iii) that the new Express Building might have to be
demolished. On the same day, although the relevant files had been
removed from his office, the Zonal Engineer (Buildings), City
Zone,
Municipal
Corporation of Delhi
served a
notice on
petitioner No.l, to show cause why action should not be taken for
demolition of the Express Buildings under as. 343 and 344 of the
Delhi Municipal Corporation Act, 1957. On March 4, 1980, a second
press
releas~ was issued from the Raj Nivas, to justify th<.!
action of respondent oo.2 in initiating the inquiry. The issue of
show cause notice again figured in a third press release dated
March 8, 1980. The Ministry of Works and Housing also submitted
the files relating to the construction of the New Express
BuUding to respond~t No.2 on March 7, 1980. On March 10, 1980
the Engineer Officer in the Land and Develop11ent Office under the
Ministry of Works and Housing also issued a notice to the
petitioners to show cause "!thin 30 days as to why the property
should not be re-entered under clause 5 of the perpetual lease on
the grounds: (i) that the construction of the New Expresa
Building waa without permission from the lessor under the terms
of lease; (ii) that the pla.ns were not submitted for the sanction
under the terms of lease by the lessor; and (iii) that the plans
were in contravention of cl.2(5) and 2(14) of the lease deed. On
March
12,
1980 at a specially convened Press Conference,
respondent No.2 released the report of the Comnittee of his
subordinates which substantiated the view of respondent No.2 and
also found that petitioner No.l was liable to pay Ra.35 la.ca as
conversion charges.
The petitioners .:hallenged the validity of the aforesaid
two notices before the Supreme Court under Art.32 of the
Constitution on the grounds: (i) That the Lt.Governor appointed
by the President under Art. 239(1) of the Constitution is an
Administrator and he discharges such functions as are entrusted
to him by the President of India and in the absence of a
notification under Art. 239(1), the Lt. Governor cannot usurp the
functions of the Union of India in relation to the properties of
the Union: (ii) that the W.eutenant-Governor is not a successor
of the Chief Coumissioner of Delhi. There was
no notification
issued by the President under Art. 239(1) of the Constitution for
-
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EXPRESS NEWSPAPERS v. U.O.I.
387
the conferral of any power on tbe Lt. Governor to administer the
lease in question; (iii) that it is inconceivable that after
October 1, 1959 when the administrative control over the Land &
Development Officer wss transferred from tbe Delhi Administration
to the Minis try of Works & Housing and by virtue of a notifi -
cation issued under Art. 299(1) the Secretary, Ministry of Works
& Housing wss made the competent authority to act for the
President with regard to any contract, grant or assurance or
property of the Union, tbe Lt.Governor could still arrogate to
himself the powers of the Union of India, Min.i.s try of Works &
Housing in relation to the lease; (iv) that respondent No.2,
Jagmohan, is actusted with personal biaa against the Indian
Express which had published an article in the Indian Express in
April 1977 with regard to his role during the period of Emergency
in Turkman Gate dem:ilitions. The proposed action of re-entry by
the lessor i.e. the Union of India, Ministry of works & Housing
at tbe instance of the Lt. Governor of Delhi is an act of politir.al vendetta. The impugned notices have been issued with an evil
eye and an unequsl hand and with a deliberate design to compel
tbe petitioners to close down the Express Group of Newspapers in
general and the Indian Express in particular. The said notices
are ex-facie illegal and without jurisdiction and are contrary to
factusl and legal provisions. The arbitrary and discriminatory
initiation of executive action under the guise of alleged
infraction of the terms of the lease and/or the Master Plan of
Delhi and or tbe lllllnicipal building bye-laws is violative of the
petitioners'
fundamental
rights
under
Arts.14, 19(l)(a)
and
19(l)(g) of the Constitution; (v) that the impugned notice issued
by the Zonal Engineer (Building) City Zone, Municipal Corporation
of Delhi dated March 1, 1980 was illegal and void as be did not
apply his llind at all to the question at issue but ..,rely
issued
tbe
181111! at the instance of respondent No.2.
The
construction of the said building was not without or contrary to
the sanction referred to in s.336 or in contravention of any of
the provisions of the Act or bye-laws made there.under; (vi) that
the erection of the double basement or a working platform in a
printing press like the Express
Newspapers Pvt.
Ltd.
is a
compoundable
deviation
from
the
sanctioned
plan
and
the
insistence of the Municipal Corporation of Delhi to .demolish the
same suffers from the vice of hostile discrimination. (vii) that
the construction of· the new Express Building with an increased
FAR of 360 wss in conformity with clause 2.(5) of the perpetual
lease dated March 17,1958 inasnuch as it wss with the express
sanction of the lessor i.e. the Union of India. In terms of the
Govern...nt of India (Allocation of Business) Rules, 1961 as well
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SUPREME COURT REPORTS
[1985] SUPP.3 S.C.R,
ea Ulldar a notification issued Ullder Art.299(1), the Ministry of
Worka & Housing with the Minister at the head waa and is the
ultimate authority re1ponsible to deal with the property of the
Union 8Dd to enter into all contractual obligations
relating
thereto.
The Minister had not only full authority,
power 8Dd
juri1diction to grant permis1ion to the petitioner• to construct
the new
Ezpress Building with an increued FAR of 360 with a
double basement for the installation of the printing prea1, but
the action taken by the then Government waa in good faith after
tsking into consideration all the circumstance• attendant at all
levela. (viii) tl!llt there could be no objection to the construction of the new Ezpreas Building with an increaaed FAR of 360 as
it allond the residual area of plota Noe. 9 and 10 to be built
in line vith other building• along the Bahadur Shah Zafar Marg.
Furthar, the llu ter Plan for Delhi aubaequently approved
by the
Central Government in the year 1962 doe• not mention the preas
area on the Bahadur Shah Zafar Marg comprising of the preH
enclave• Although specified u
a C011111ercial area, it ia not
liated in the li1t of "already built-up ~rcial areaa" beca111e
it relates to the walled city of old Delhi. The Zonal development
plan for D-II ar,.. within vbich the preH plota are located alao
perlllitted an FAR of 400 for the prees area in the Bahadur Shah
Zafar Marg. Therefore, all that the then Minister for Worka &
llouaing did wea to rutore to
the
petitioner& the right that
they acquired under the perpetllll leue dated March 17, 1958 i.e.
to he treated a1iM alongwith other plot-bolder• in that area and
a denial of •uch equal terms would be oppoaed to the principle&
of equality besid~• being violative of Art.14 of the Constitution. (ix) That ~be Ezpreaa Building at 9-10 Babadur Shah Zafar
Marg forms the nerve-centre of the Ezprea• Group of Newspapers as
the ed1 to rials and the leading articles of the Indian Ezpress are
sent out and the e41tor1al policy laid down from Delhi office to
ten centres all over India· In this factual background,
the
impugned notices have a direct impact on the freedOll of the press
and being in excess of governmental authority and colourable
exercise of statut11ry powers, are liable to be struck down as
offending Art.19(l)(a) read with Art.14 of the Constitution. (x)
that the lessor i.e. the Union of India ie estopped by the
doctrine of promissory estoppel 8Dd 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 aDd had constructed the new Ezpreas Building
with a coat of approximately Rs.1.30 crorea by February 1980
which at present would coat more than Rs.3 crorea.
..
EXPRESS NEWSPAPERS v. U.o.I.
389
It..,.. contended on~
of respondent No.l, the Union of
India; (1) · that the right to occupy the land leased for the
construction of a building for inatallation of a printing press
ia not within Art. 19(l)(a) nor within Art. 19(l)(g) wt llUCb a
right ia derived fran a grant or contract; (2) That the right
arising out of a statute or out of a contract cannot be a fund&-
B
lllelltal right itself. Once ·a contract ia entered into or a grant
ia · made, the rights snd · obligationa - of the parties are not
governed by Part III of the Constitution but by the terms of the
docrnnent et.bodying the contract or the grant, snd any cmplaint
about its breach cannot be a matter· for grant of a writ,
direction or order under Art. 226 of tbe Constitution, much less
c
under Art.32, snd since the petitioners are seeking to enforce a
contractual right, it cannot be decided on a petition under Art•
32 of the Constitution. (3) That the content of Art. 19(l)(g) of
the Constitution 1'0U1d not include the right '1hich ia. guaranteed·
by other cJsuses of Art.19 (4).
That. the argument of the
petitioners thst ·the. 'bodldfng in ·.question is necessary for
D
rmming .the press and any statutory or executive action to pull
it d0>1n or forfeit the lease 1'0U1d directly :IJDpinge on the right
of freedan of speech and expression under Art. 19(1)(g) ia loibolly ·
misconceived inasmuch as every activity thst may be necessary for
exercise of freedom of speech · and expression or .thst may
facilitate such exercise or make it meaningful snd effective
E
c:amiot be elevated to the status of a furularnental right. (5) That
the right to the land and the right to construct bo11ldfngs
thereon for rmming a printing press are not derived fran Art.
19(1) (a) but spring fr= the terms of the grant of such 1anda by
the Goverm.ent under the provision& of the Goveniment Grants Act,
1895 snd regulated by other k..s governing the subject viz. ·the
Delhi Development Act, 1957, the Master Plan and the Zonal
F
Develoμnent
Plan
framed
thereunder,
the
Delhi
Municipal
Corporation Act, 1957 and the Delhi Municipal
Corporation
· (Bnfldfng)
Bye-Ia..s,. 1959
'1hich
regulate
construction
of
boifldfngs in the Union Territory of Delhi irre6pective o~ the
purpose for '1hich the boifldfng is constructed. (6) That the right
to run a_ press may be a . fimdamental right guaranteed under Art.
c
19(1)(a) · or Art. 19(l)(g) lxlt the right to use a particular
"
1:>11Jd1ng for rmming a press ia altogether another thing inasmuch
as no particular building is equally fit for the running of the
press and the person ·desiring to run a . press or already running
the press is at liberty to acquire another suitable bnlldfng for
that purpose. Further, even if the- lxlildings in question '1ere
necessary for the enjoYlllellt of the rights under Art.19(1)(a) or-
-- li
Art. 19(l)(g) 'a right to_ use a particular bo1lldfng does not
•
--------- -------~---------------'------
390
5UPJ.<EME COURT REPORTS
[1985] SUPP.3 S.C.R.
A
become an integral part of the right to freedom of speech and
expression' or the 'right to carry on any trade of business in
printing and publishing a newspaper' and clearly therefore the
petitions under Art. 32 are not maintainable. (7) That even on a
question of fact, the direct impact of the impugned notices will
not be on the double basement wherein printing press is installed
B
but will be wholly or in part on the two upper storeys which are
not intended to be wred in relation to the press or for publi -
cation of the intended Hindi newspaper but only for the purpose
of letting out the same for profit; the only other possible
effect may be the removal of the upper basement which the
petitioners call a working platform which has been constructed in
violation of the building regulations. (8) That there was no
C
:Imminent danger of demolition of the Express Building nor was the
impugned notice dated March 10, 1980 issued by the Engineer
Officer, Land & Development Office, a notice of re-entry upon
forfeiture of lease. It was merely a notice of an exploratory
nature requiring the petitioners to show cause why the lease
should not be forfeited under cl.5 of the lease-deed for alleged
breaches of els. 2.(5) and 2(14) ther~f. The Petitione!:s should
D
have therefore entered appearance before tbe Land & Development
Officer and showed cause against the action proposed. It was only
if the Land & Development Officer was not satisfied with their
explanation, that he would put up
the papers before the Lt.
Governor for necessary action. It would then be for the lessor
i.e. the Union of India, Ministry of Works & Housing to decide
E
whether or not the lease should be forfeited under cl.5 of the
lease-deed. (9) That the impugned notice by the Engineer Officer
purporting to act on behalf of the lessor i.e. the Union of
India, Ministry of Works & Housing was not based either on the
report of the Three-Menber Canmittee obtained by the Lt.Governor
or on the basis of any comnunication from him, (10) That the
F
Lt.Governor had no powers in ~elation to the properties of the
Union and, therefore, the Union of India is not bound by the acts
of the Lt. Governor. The Lt. Governor had no power in relation to
the lease and, therefore, he could not usurp to himself the
powers and functions of the Union of India in relation to the
lease deed. However the Lt.Governor as the Administrator had to
G
keep himself informed and cannot be said to have acted mala fide
merely because of any possible personal malus animus on his part,
if the quality of the action was itself in complete accord with
the law. (11) That the Government itself was in possession of
relevant records and applied its mind to them and the impugned
notice issued by the Engineer Officer who was empowered to act on
H
behalf of the President under Art.299(1) of the Constitution
EXPRESS NEWSPAPERS v. U.o.I.
391
having been authenticated in the manner required by Art.77(3), it
A
lllUSt be deemed to be the deeision of the President on the advice
of the Council of Ministers. as enjoined by Art. 74(2) and the
Court was precluded from making any investigation into tbe
circumstances attendant thereto. (12) That it was the respondent
No.2 to meet the charges of malafides levelled against him.
On behalf of respondent No.2, the Lt.Governor of Delhi, it
was argued: (1) That the Administrator appointed by the President
under Art.239(1), as amended by the Seventh Amendment, could be
called by any designation, that the Chief Coumissioner of Delhi
continued to be the Administrator of the Union Territory of Delhi
under Art.239(1) after November l, 1956 when the Government of
C
Part C States Act, 1951 was replaced by s.130 of the States
Reorganisation Act, 1956 and that he functioned as
such till
September 6, 1966 since the Delhi Administration Act, .1966
continued to use the nomenclature of Administrator appointed
by
the President under Art.239(1). It was for the first time
on
September 7, 1966 that the Administrator of
the Union Territory
D
of Delhi who used to be designated as the Chief Coumissioner was
re-designated as the Lt.Governor. (2) that the Lt.Governor was
successor of the Chief Coumissioner and, therefore, . all the
powers exercisable by the Chief Coaloissioner in relation to the
lease vested in him· (3) That the Lt. Governor was the alter ego
of the President in relation to such territory which he
is
E
called upon to administer on behalf of
the President.
One of
the primary functions of the Lt. Governor, as the Administrator,
was to be aware of facts brought to his knowledge and 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. l, the Express Newspapers Pvt. Ltd. to
F
build the new Express Building with an increased FAR of 360. (4)
That the Lt. Governor as the appointed agent or nominee of the
President was entitled to act on behalf of the lessor i.e. the
Union of India, Ministry of Works & Housing in relation to the
lease and therefore, be was well within his rights (a) in calling
for and making perusal of the respective files from the Ministry
G
of Works & Housing, Delhi Development Authority and the Municipal
Corporation of. Delhi pertaining to the construction of the
Express Building with an increased FAR of 360; (b) in constituting a Three-Melllber Coaloittee to .inquire into the circumstances
H
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392
SUPREME COURT REPORTS
[1985] SUPP.3 s.c.R.
relating to the grant of sanction by the then Miniater of Works &
Housing and to take necessary stepa as regards the unauthorised
construction of the new Express Building; and (c) in forwarding
the report of the Tbree-tlember Comittee to the concerned authority, me•ntng the Minister for Works & Housing for taking necessary steps. (5) that the transfer of administrative control of
the L & D 0 on October l, 1958 to the Ministry of Works & Housing
did not diVe&t the Chief Commiasioner of hia contractual powers
given under the lease and be alone represented the lessor i.e.
the Union of India and not the Ministry of Works & Housing (6)
That being the Lt. Governor of Delhi, be was responsible for the
admi.n!.stration of the Union Territory of Delhi and, as such, he
was acting within his power to direct all the authorities
concerned to prevent violation of laws by any person or inatitution. He further asserted that he, as the Lt. Governor of Delhi,
was fully competent to appoint the Inquiry Conaittee under the
Comnisaioner of Inquiry Act, 1952. (7) that the Union of India or
the Lt. Governor of Delhi never intended to inflict a reprisal on
the petitioners for the independent stand of the nelOSpapers they
publish. (8) that the respondents had no personal animosity
towards
the Express Group of Newspapers
and
the criminal
complaint for defamati@ was instituted by respondent No.2
because the Indian Express was guilty of fabricating and publishing falae, motivated, s<;andslous stories about respondent No.2
and others. (9) That be bad not ordered the issuance of the
notice in question and that the Lend & Development Officer was an
authority independent of the administrative control and supervision of the Lt. Governor, As regards the impuged show cause
notice issued by
the Zonal· Engineer (Building) City Zone,
Municipal Corporation of Delhi, it was asserted that the same bad
been issued by the Municipal Coi:poration of Delhi in exercise of
its statutory powers under ss. 343 and 344 of the Delhi Municipal
Corporation Act after verification of the allegations. (10) That
the perpetual lease-deed dated March 18,
1958 governs
the
relationship effectively between the Union of India and the Lt.
Governor on the one band and the pet:itioners on the other i.e.
the contractual relationa between the parties. (11) That the
sewer, according to the terms of the lease-deed, could not be
diverted without the consent of the Chief Comnissioner and the
approval of the Minis try of Works & Housing was a nullity being
without juriadiction and legal competence. (12) that for the
c011111ercial user of the residual ares to be kept as 'green' it is
only the Chief Commissioner (Lt. Governor)
who
could give
,_
EXPRESS NEWSPAPERS v. u.o.r.
393
sanction to construct for the c0111Dercial user at the residual
ares; the petitioners were liable to pay c011111ercial realization
changes; and (13) that it is for the Chief Comnissioner (Lt.
Governor) to decide if the breaches were remediable or aa to the
nature of the remedies required for the breach. Since the
A
breaches are not remediable breaches, the impugned notice dated
B
March 10, 1980 issued by the Engineer Officer, L & D 0 for
re-entry upon the land on forfeiture of the leaae for breach of
the conditions waa valid and proper.
Counsel for respondent No.4, Municipal Corporation of
Delhi, urged (l) that the Express Newspapers Pvt. Ltd. have no
c
right to construct the upper basement particularly when the
Corporation refused to accord sanction to it and that, in any
event, it was not such an unsvoidsble necessity as to break the
law; and (2) that even if some receiving floor may
perhaps be
neces8"1')' to receive the printed newspapers from the machine, it
would be achieved by locating the machines on a suitable pedestal
0
or by laying the floor of the basement in such a manner as to
discharge the newspaper on the ground floor; and (3) that under
the Master Plan and the Building Bye-laws, not more than one
basement is permissible and that any basement more than one will
have to be reckoned for the purpose of FAR.
Counsel for respondent No.5 Land & Development Officer
contended (l) that under the terms of the leaae deed of 1958,
previous consent of either the President of India or the Chief
Comnissioner (Lt. Governor) or such officer or body as the lessor
(President of
India) or the Chiaf
Comnissioner of Delhi
authorised was necessary for building activity on the residual
E
area of the plots (2740 sq. yards). The Ministry of Works &
F
Housing did not represent the lessor or the Chief Comnissioner. ;
and (2) that the Land & Development Officer is not a functionary
under the Ministry of Works
& Housing.
He is the officer
appointed on behalf of the lessor to administer the leaae. At no
11tage the petitioners approaehed the office of Land & Development
for permission to construct on the residual area of 2740 sq.yards
G
to the west of the pipe-line and no approval wss obtained from
the office of L & D O for construction of a building in contravention of clauses 2(5), (9) and (14) of the leaae. The so-called
permissions and approvals obtained by the petitioners have no
legal competence or authority under the terms of the lease-deed
H
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SUPREME COL'RT REPORTS
[1985] SUPP.3 S.C.R.
A
which governed the relationship between the petitioners and
respondent no.l.
Allowing the writ petitions,
BEW : By the Court (Per A.P. Sen, E.S. Venkatsramiah &
R.B. Misra, J.)
(l) The writ petitions under Art.32 of the Constitution
11118t succeed and are allowed with costs. The notice issued by the
C
Engilleer Officer, Land & Development Office dated March 10, 1980
purporting to act on behalf of the Government of India, Ministry
of Works & Housing requiring the Express Newspapers Pvt. Ltd. to
show cause why the lessor i.e. the Union of India, Ministry of
Works & Housing should not re-enter upon and take possession of
plots nos. 9 and 10, Bahadurshah Zafar Marg, New Delhi together
with the Express Buildings built thereon, under cl.5 of the
D
indenture of lease dated llar<!h 17, 1958 for alleged breaches of
cls.2(5) and 2(14) thereof, and the earlier notice dated March l,
1980 isaued by
the Zonal Engineer
(Building),
City Zone,
Municipal Corporation, Delhi requiring them to show cause why the
aforeaaid buildings should not be demolished under ss.343 and 344
of the Delhi Municipal Corporation Act, 1957, are quashed. It is
E
declared that the construction of the new Express Building on the
residual portion of 2740 square yards on the western side of
plots nos. 9 and 10, Bahadurshah Zafar Marg with an increased FAR
of 360 with a double basement for installation of a pr1nting
press for publics ti on of a Hindi daily newspaper was with tile
permission of the lessor i.e. the Union of India, Ministry <>f
F
Works & Housing and did oot constitute a breach of clauses 2(5)
and 2(14) of the lease-deed. [554 E-11; 555 A]
(2) The Lt. Governor failed to make a distinction in this
case between the power with respect to the subject 'Property of
the Union and the revenue therefrom' which is in Entry 32 of List
G
I of the Seventh Schedule to the Constitution and the general
powers of admin!stration entrusted to him under Article 239 of
the Constitution as the administrator of the Union Territory of
Delhi. The property in question is a part of the estate of the
Central Government. Mere nearness to the seat of the Central
H
EXPRESS NEWSPAPERS v. U.O.I.
395
Government does not clothe the Lt. Governor of Delhi· with my
A
power in respect of the property of the Central Government. He
can discharge only those powers which are entrusted to him by the
Constitution and the laws. It is also not correct to claim that
all the powers of the former Chief Commissioner of Delhi have
devolved on the Lt.Gov"rnor and continue to vest in him. [556
B-il)
B
l(i) Freedom of the press ill comprehended within the right
to
freedom
of
speech
and
expression
guaranteed
under
Art.19(l)(a). The freedom of thought and expression,
and the
c
freedom of the press are not only valuable freedoms in tbemaelves
but are basic to a democratic foilJ of Government which proceeda
on the theory that problems of the Government can be solved by
the free eitchsnge of thought and by public discuaaion of the
various issues facing the nation. It ia necessary to emphaaize
and one 1111St not forget that the vital importUJ.ce of freedom of
D
speech and expression involves the freedom to dissent to a free
democracy like ours. Democracy relies on the freedom of the
press. It is the inalienable right of everyone to c011111ent freely
upon any matter of public importsnce. This right ia one of the
pillars of individusl liberty-freedom of speech, which Supreme
Court haa always unfailingly guarded. Howsoever precious and
E
cherished the freedom of speech is under Art.19(l)(a), this
freedom. is not akolute and unlimited at all times and under all
circumstances but is subject to the restrictions contained in
Art.19(2). That 1111St be so because unrestricted freedom of the
preaa and is wholly free from restraints, amounts to uncontrolled
licence which would lead to disorder and anarchy and it would be
hazardous to ignore the vital importsnce of our social . and
F
national interest in public order and security of the State.
[474 C-il; 475 0-G)
l(ii) The extent of permissible limitations on this freedom
are indicated by the fundamental law of the land itself viz.
Art.19(2) of the Constitution. But, permissible restrictions on
G
any
fundamental
right
guaranteed under
Part Ill of
the
Constitution have to be imposed by a duly enacted law and 1111St
not be excessive i.e. they llBlSt not go beyond what is necessary
to achieve the object of the law under which they ai:e sought to
be imposed. The power to impose restrictions
on
fundamental
H
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396
SUPREME COURT REPORTS
(1985] SUPP.3 s.c.R.
rights is essentially s power to 'regulate' the exercise of these
rights. In fact, 'regulation' and not extinction of thst which is
to be regulated is, generally spesking, the extent to which
petmissible restrictions may go in order to satisfy the test of
ressonsbleness. The test laid down by the Supreme Court is
whether the direct and imnediste impact of the impugned action is
on
the freedan of speech aDd
expression guaranteed under
Art.19(l)(a) which includes the freedan of the press.
In the instant case, the very threat is to the existence of
a free and illdependent press. The impugned notices of re-entry
upon forfeiture of lease aDd of the threatened demolition of the
Express Buildings are intended and meant to silence the vioce of
the llldian Express. lt must logically follow that the impugned
notices constitute a direct and imnediate threat to the freedan
of the press and are thus violative of Art.19(l)(a) read with
Art.14 of the Constitution. lt must accordingly be held that
these
petitions
under
Art.32
of
the
Constitution
are
maintainable. [475 H; 476 A-C; 477 D-E]
Bemiett ColEllan & Co. & Ora. v. Union of lDdia & Ora.
[1973] 2 s.c.R. 757 followed.
Jlalll!sh 'l'happar v. State of Madras [1950] s.c.R. 594, Sakal
Papers (P) Ltd. v. Union of lDdia [1962] 3 s.c.R. 842 and Express
Beimpapers (P) Ltd. & Anr. v. Union of lDdia & Ors. [1959] s.c.R.
12 at 120 relied upon.
The correctness of the landmark decision in Maneka Gandhi's
case and the innovative construction placed on Art .14 in the
three cases of Royapps, Maneka Gandhi
and International Airport
Authority (supra), which have evolved new dimensions in judicial
process, is no longer open to question. [472 C-D]
Haneta Gandhi v. Unial1 of India [1978] 2 s.c.R. 621, E.P.
Boyappa v. State of Tallil Nadu & Anr. [1974] 2 s.c.R. 348 llaneka
Gandhi v. Union of lDdia (supra) and llmans llayaram Sbetty v.
lnternstioDal Airport Authority of India Ltd. & Ors. [1979] 3
s.c.R. 1014 affirmed.
All
lDdia
Bank
lllllpl.oyees'
Association
V•
Natioaal
lnduatrial Tribunal & Ors. (1962] 3 s.c.R. 269 referred to.
EXPRESS NEWSPAPERS v. U.O.!.
397
(3) Even in cases involving purely contractual iaaues, the
settled law is thst where statutory provisions of public law are
involved, writs will issue. [484 A)
(4) (i) Section 2 of the Goverment Granu Act, 1895
excludes the operation of the Transfer of Property Act, 1892 to
Government grants. Section 3 declares tbat all proviaiona, any
such grant or transfer aa aforesaid ahsll be .valid and shell take
effect according to their tenor, notwithatsnding any rule of law,
statute or enactment of the Legialature to the contrary. A aeries
of judicial decisions hsve determined the overriding effect of
s.3 making it amply
clear that a grant of property by tbe
Government partakes of the nature of law since it overrides even
legal provisions which are contrary to the tenor of the docUMllto
[478 D-E]
(4)(ii) There
can be no
doubt whatever on a
true
construction of the impugned notice dated March 10, 1980 that the
Engineer Officer, Land & Development Office purporting to act on
behalf of the leasor i.e.