Express Newspapers Ltd. vs. Union Of India (Uoi)

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Reserved on: 27 May, 2024.
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Date of decision: 30 August, 2024
+ CS(OS) 2480/1987 & I.As. 9332/1987, 106/1988, 1252/1988,
2161/1988, 20139/2014
UNION OF INDIA ..... Plaintiffs
Through: Mr Kirtiman Singh, CGSC with Mr
Aryan Agrawal, Adv.
Mr. A. Subba Rao ( since deceased )
A.T. Rao & Ms. Meera Bhatia, Advs
versus
EXPRESS NEWSPAPERS LTD. AND ORS. ..... Defendants
Through: Dr. Salman Khurshid, Senior
Advocate, Mr. Sandeep Sethi, Senior
Advocate with Mr. Amit Agarwal,
Advocate. Ms Bhawani Gupta, Adv.
AND
+ CS(OS) 52/1988
EXPRESS NEWSPAPERS LTD. AND ORS. ..... Plaintiffs
Through: Dr. Salman Khurshid, Senior
Advocate, Mr. Sandeep Sethi, Senior
Advocate with Mr. Amit Agarwal,
Advocate. Ms Bhawani Gupta, Adv.
Versus
UNION OF INDIA AND ANOTHER ..... Plaintiffs
Through: Mr Kirtiman Singh, CGSC with Mr
Aryan Agrawal, Adv.
Mr. A. Subba Rao ( since deceased ),
Mr. A.T. Rao & Ms. Meera Bhatia,
Advs.







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By:RAHUL
Signing Date:30.08.2024
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CORAM:
JUSTICE PRATHIBA M. SINGH

JUDGMENT


Prathiba M. Singh, J.

CONTENTS

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By:RAHUL
Signing Date:30.08.2024
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BRIEF FACTS

“A free press is one of the pillars of Democracy”
1
- Nelson Mandela
1. In the judicial history of a nation, the impact of some cases is beyond
their own facts, with larger ramifications for institutions, citizens and their
Rights. The present dispute between a well-known media house and the
Government has spanned over five decades, witnessing critical historical
events such as the Emergency and its aftermath. The dispute erupted as a
result of action taken by the then Government in 1977-79, against a media
house, for its fair and independent role during the Emergency imposed
2
between the years 1975-1977 . Ultimately, the Rights enshrined in the
Constitution of India have emerged more powerful and stronger with the
3
seminal decision rendered early on by the Supreme Court in exercise of its
jurisdiction under Art.32 of the Constitution.
2. The present two suits i.e., CS(OS) 2480/1987 and CS(OS) 52/1988
are related to a premises leased to Express Newspapers Ltd. i.e., Plot Nos. 9-
10, Bahadur Shah Zafar Marg, New Delhi-110002 (hereinafter ‘ suit
property ’) which is a publisher of various Newspapers and magazines
including Indian Express. Broadly, there are only two parties involved in the
present dispute i.e., the media house and the UOI. However, certain tenants


1
Nelson Mandela, Address by Nelson Mandela to the International Press Institute Congress,
Mandela.gov.za,February14, 1994, http://www.mandela.gov.za/mandela_speeches/1994/940214_press.htm
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Emergency period from 25 June, 1975 to 21 March, 1977.
3
Express Newspapers Pvt. Ltd. and Others v. Union of India and Others, 1986 1 SCC 133.
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of the media house as also the promoters were impleaded. For reference
purposes, the parties arrayed are set out below:

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3. The details of the proceedings which have been heard and in which
the present judgment is being pronounced are as follows:
CS(OS) 2480/1987 – UoI v. Express Newspapers Ltd. & Ors.
4. This suit has been filed by the Union of India seeking possession of
the suit property as also other ancillary reliefs including damages and mesne
profits. The prayer also sought interest at the rate of 18% p.a. for the amount
pending, rent, occupation charges, damages and misuser charges etc. , to the
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Land and Development Officer from 9 November, 1987.
CS(OS) 52/1988 -Express Newspapers Ltd. & Ors. v. UoI & Anr.
5. A subsequent suit was filed being ‘M/s. Express Newspapers Ltd. &
Others v. Union of India & Anr.’ seeking relief against notice of re-entry and
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ejection dated 2 November, 1987 issued by Land & Development Officer
to M/s. Express Newspapers Ltd. & Others, declaring them as illegal.
BACKGROUND
6. By way of background, it deserves to be noticed that initially, Express
Newspapers were allotted plot nos. 1 and 2 which were close to the Tilak
Bridge, ITO, New Delhi. These plots were part of the ten plots which were
earmarked for the press/publications and were loosely termed as the Press
Enclave. It is averred that due to a specific request made on behalf of the
then Prime Minister – Pandit Nehru, as per the record, the founder of the
Express Newspapers, Mr. Ram Nath Goenka surrendered plot nos. 1 and 2
and as an alternative, present plot nos. 9 and 10 were allotted, as the said
plot nos. 1 and 2 were to be allotted for the establishment of the Gandhi
Memorial Hall (Pyare Lal Bhawan). The intended lease agreement for Plot
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nos. 9 and 10, was executed on 17 November, 1952 and the agreement for
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lease was entered on 26 May, 1954. During construction, an underground
sewer pipe line was discovered. This resulted in a change in the
construction, which was planned for the building and a revised allotment
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was made. The terms of the revised allotment dated 11 April, 1956 were
that the building line should be 25ft. away from the east side of the Central
line of the sewer and excavation of foundation shall not be less than 20 ft.
away from the central line of the sewer.
7. Consensus was arrived at to undertake construction only east of the
drain until the drain is shifted. The revision was made accordingly and the
allotment took place by which the two plots were divided diagonally. As per
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this revised lease deed dated 11 April, 1956 read with 14 May, 1956 and
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19 May, 1956, the allotment of land to the Indian Express was on the
following basis:

• 2965 sq. yds. to the east of the pipeline was marked for construction
of the building and;
• 2740 sq. yds. to the west of the pipeline was to be maintained as open
space.
8. A perpetual lease deed was then executed, after the construction of the
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building, in terms of the revised allotment on 17 March, 1958 wherein
clauses 2(7) and 2(13) stipulated certain restrictions i.e., the suit premises
will not be used for any other purposes apart from Newspaper press and
certain residential flats. However, by then, permission was sought by
Express Newspapers for using the building and the surplus area for non-
Newspapers purposes i.e., for general commercial purpose. Correspondence
ensued between the parties, in this regard.
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9. Finally, on 15 January, 1960 and 23 February, 1960, permanent
change of purpose was permitted in respect of 1 lakh sq. ft. out of the total
1.50 lakhs, subject to payment of additional premium at Rs.3,75,000/- per
acre. Pursuant to this understanding which was arrived at between the
parties, various commercial lessees/tenants were inducted by Express
Newspapers.
10. According to the L&DO, however, formal permission was still
required from the Ministry, which as per Express Newspapers, was not
required. Various demands were raised by L&DO in the year 1962 which
according to the Defendants stood paid. The supplemental lease deed was
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then executed on 17 November, 1964 which recognized the use of 1 lakh
sq. ft. for a non-newspaper purpose i.e., general commercial purpose.
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11. Express Newspapers on 25 October, 1977 applied to the Ministry for
Works & Housing for shifting of the sewer pipe line to enable the land
located west of the drain to be made usable as they wanted to start a Hindi
Newspaper and inter-connect the proposed building with the existing one.
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Thereafter, vide letter dated 7 December, 1977, it was acknowledged that
DDA has permitted 300% Floor Area Ratio(hereinafter ‘ FAR ’) and so the
new construction should not exceed the same. Thus it was requested that the
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plot should only be treated as a commercial complex vide letter dated 31
December, 1977. Express Newspapers had also approached the Delhi Water
Supply and Sewage Disposal (hereinafter ‘ DWSSB ’) and upon the feasibility
of shifting being confirmed by DWSSB and MCD, Express Newspapers
agreed to reimburse both these authorities the actual cost of reconstruction
of the drainage and the shifting thereof. Subsequently, the DWSSB gave its
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approval to shift the existing trunk barrel vide letter dated 30 December,
1977.
12. Express Newspapers again sought approval for construction of a five
storied building which was the original plan. A three-member committee
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from the Ministry inspected the land and on 9 June, 1978 and the
construction was permitted, subject to the sewer line being diverted. The
Urban Arts Commission also permitted the approval for the additional
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construction. On 11 September, 1978, the Ministry of Works & Housing,
Land & Development Office directed Express Newspapers to pay damages
with respect to unauthorised construction on the suit premises.
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13. The DDA on 4 November, 1978 sanctioned FAR of 360 and the
printing machinery was permitted to be installed in the basement. The
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Ministry of Works and Housing on 24 November, 1978 and 1 December,
1978 wrote to the DDA confirming that FAR 360 would be allowed and the
same would be excluding the basement area. Additional construction was
also permitted and plans for reconstruction were approved by the MCD.
After construction, the area west to the sewer line was to be converted for
commercial purposes and permission to change the user of the said area was
also sought.
14. It is the stand of Express Newspapers that during this entire period,
the L&DO and the Ministry of Works and Housing were kept duly
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informed. The letter dated 25 October, 1977, by which Express
Newspapers had applied to the Ministry of Works and Housing for diversion
of the sewer and change of user was sent to the L&DO. In January, 1980,
however, after the general elections when a new government took over, an
attempt to re-enter the building was made by the then Government vide re-
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entry notices dated 7 March, 1980 and 10 March, 1980 respectively,
which is stated to be in contravention of the clauses 2(14) and 2(5) of the
lease deed. The said notices were challenged before the Supreme Court in a
petition under Article 32 of the Constitution of India, resulting in the
decision which is discussed herein below.

THE BACKDROP OF THE EMERGENCY AND THE DECISION OF
THE SUPREME COURT –
Express Newspapers Pvt. Ltd. and Others v. Union of India and Others,
1986 1 SCC 133

15. It is the case of Express Newspapers that during the dark days of the
Emergency, Express Newspapers and its owner at that time- Mr. Ram Nath
Goenka had stood up to the excesses of the then Government.
16. This had saddled them with the consequences of a notice of re-entry
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dated 10 March, 1980 to the land where Express building is situated in the
Bahadur Shah Zafar Marg, New Delhi. It was alleged in the said Notice that
Express Newspapers did not take approval from the Land and Development
Officer or Ministry of Works and Housing regarding construction on the
open portion of the plot. This re-entry was directed by virtue of a notice
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issued on 10 March, 1980, which was dealt by the Supreme Court in its
historic and seminal judgment titled Express Newspapers Pvt. Ltd. and
Others v. Union of India and Others, 1986 1 SCC 133 . The notices of re-
entry and demolition were held to be impinging upon the Fundamental
Rights guaranteed under Article 19 (1)(a) and (g) of the Constitution of
India. The relevant observations of the Supreme court are set out below:
“73. Here, the very threat is to the existence of a free
and independent press. It is now firmly established by
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a series of decisions of this Court and is a rule written
into the Constitution that freedom of the press is
comprehended within the right to freedom of speech
and expression guaranteed under Article 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 SCC 436
: AIR 1950 SC 124 : 1950 SCR 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 [AIR 1962 SC 305 :
(1962) 3 SCR 842] (sic), the Court reiterated:
“Our Government set-up being elected, limited and
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.”
74.………
75. 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
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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 Article 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 Article
19(2). That must be so because unrestricted freedom of
speech and expression which includes the freedom of
the press and is wholly free from restraints, amounts to
uncontrolled licence which would lead to disorder and
anarchy and it would be hazardous to ignore the vital
importance of our social and national interest in public
order and security of the State.
76. In Bennett Coleman case [(1972) 2 SCC 788 :
AIR 1973 SC 106 : (1973) 2 SCR 757] the Court
indicated that the extent of permissible limitations on
this freedom are indicated by the fundamental law of
the land itself viz. Article 19(2) of the Constitution. It
was laid down that 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 impose restrictions on fundamental rights is
essentially a power to ‘regulate’ the exercise of these
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 Article 19(1)(a). The test laid down by the Court
in Bennett Coleman case [(1972) 2 SCC 788 : AIR
1973 SC 106 : (1973) 2 SCR 757] is whether the direct
and immediate impact of the impugned action is on the
freedom of speech and expression guaranteed under
Article 19(1)(a) which includes the freedom of the
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press. It was observed that the restriction on the
number of pages, a restraint on circulation and a
restraint on advertisements would affect the
fundamental right under Article 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 violate Article 19(1)(a) as it does not directly
and immediately deal with the right mentioned in
Article 19(1)(a), the Court held that the tests 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 Article 19(2) of the Constitution
and therefore were in abridgement of the right of
freedom of speech and expression guaranteed under
Article 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 [R.C.
Cooper v. Union of India, (1970) 1 SCC 248] laid
down two tests. First it is not the object of the authority
making the law impairing the right of the 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
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court to grant relief. The direct operation of the Act
upon the rights forms the real test.
... No law or action would state in words that rights of
freedom of speech and expression are abridged or
taken away. That is why courts have to protect and
guard fundamental rights by considering the scope and
provisions of the Act and its effect upon the
fundamental rights.”
We have only to substitute the word “executive” for
the word “law” and the result is obvious. Here, the
impugned notices of re-entry upon forfeiture of lease
and of the threatened demolition of the Express
Buildings are intended and meant to silence the voice
of the Indian Express. It must logically follow that
the impugned notices constitute a direct and
immediate threat to the freedom of the press and are
thus violative of Article 19(1)(a) read with Article 14
of the Constitution. It must accordingly be held that
these petitions under Article 32 of the Constitution
are maintainable. ”

17. This decision in Express Newspapers Pvt. Ltd. (supra) was rendered
by a three Judge Bench of the Supreme Court. Vide the said decision, the
Supreme Court held that the action taken by the then Government against
Express Newspapers, was mala fide and politically motivated. The
observations of the Court are set out below:
“Whether the impugned Executive action was malafide and
politically motivated?

114. The principal point in controversy between the
parties is whether the notice of re-entry upon forfeiture
of lease issued by the Engineer Officer, Land &
Development Office dated March 10, 1980 purporting
to be on behalf of the lessor i.e. the Union of India,
Ministry of Works & Housing, and that of March 1,
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136. 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.”

18. The Supreme Court in its decision, upheld the role of the Press and
observed that during the emergency period there was misuse of power which
led to press censorship. The Supreme Court then quashed the re-entry notice
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dated 10 March, 1980, as also other actions contemplated by the then
Government. The decision also restrained the Union of India from taking
any steps for termination of lease, for non-payment of conversion charges or
otherwise for the construction of the building till the final determination of
the amount payable by a Civil Court. Three separate judgements were
authored by the three-Hon’ble Judges on the Bench. The operative portions
of each of the said judgments are set out below:
Justice A.P. Sen
“ 194 . We cannot possibly in these proceedings
under Article 32 undertake an adjudication of this kind
but I am quite clear that Respondent 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 1, 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.
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1, 1980 issued by the Zonal Engineer (Buildings), City
Zone, Municipal Corporation, Delhi requiring them to
show cause why the aforesaid buildings should not be
demolished under Sections 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 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.
197. 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.”

19. Two concurring decisions were rendered by the other two Judges who
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also quashed the impugned show cause notices dated 1 March, 1980 and
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10 March, 1980 on the ground that the notices were arbitrary and violate
Article 14 of the Constitution of India. The operative portion in the decisions
of the other two Judges on the Bench are set out below:
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Per Justice Venkataraman
“201. 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(I)(a) of the
Constitution.
202. The rest of the questions relate truly to the civil
rights of the parties flowing from the lease-deed. Those
questions cannot be effectively disposed of in this
petition under Article 32 of the Constitution. The
questions arising out of the lease, such as, whether
there has been breach of the covenants under the lease,
whether the lease can be forfeited, whether relief
against forfeiture can be granted etc. are foreign to the
scope of Article 32 of the Constitution. They cannot be
decided just on 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 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.
203. 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
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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 to regularize the
lease by receiving adequate premium therefor from the
lessee, if it is permissible to do so.”
xxx xxx xxx

Per Justice R.B. Mishra

“206. 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 the two judgments, which I do not propose
to repeat over again. I am of the view that the other
question involved in the case are based upon
contractual obligations between the parties. These
questions can bel 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 in this case.
207. 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 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 Corporation Act and the Delhi Municipal
Bye-laws, 1959 irrespective of the purpose for which
the buildings are constructed. Whether there has been
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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.
208. I accordingly allow the writ petitions with costs
against the Union Government and the Lt. Governor of
Delhi and quash the impugned notices”

20. As per the decision of the Supreme Court, the UOI could file a civil
suit, which then led to the filing of the present suit by the UOI and thereafter
a counter suit by Express Newspapers.
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Developments post the judgment of the Supreme Court dated 7 October,
1985
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21. A show cause notice was issued on 1 August, 1986 by the Ministry
of Urban Development (L&DO) after the decision of the Supreme Court.
The said notice was based on the premise that Justice Sen’s opinion in the
Supreme Court’s decision was a minority view. Paragraph 12 of the show
cause notice reads as under:
“12. The Writ Petitions were heard by a Bench of 3
Hon'ble Judges of the Supreme Court consisting of
Hon'ble Mr. Justice .P. Sen, Hon'ble Mr.Justice E.S.
Venkataramiah and Hon'ble Mr.Justice R.B. Misra.
Their Lordships Hon'ble Mr. Justice E.S.
Venkataramiah and Hon'ble Mr.Justice. R. P. Misra
held that notices dated 1.3.1930 and 10.3.1980 were
invalid on the ground that the said notices were
arbitrary and for non-application of mind. The learned
Judges did not express any opinion on the rights of the
parties under the lease deed and all the other questions
argued in the case and left them open observing that it
was open to the Lessor and to the Delhi Municipal
Corporation to take appropriate steps in accordance
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 20 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

with the law for the breaches committed by you.
However, his Lordship' Hon'ble Mr. Justice A.P. Sen
expressed his opinion in regard to the contentions
urged on behalf of you, His Lordship Hon'ble Mr.
Justice A.P. Sen observed that the Lessor is entitled to
enforce his claim for recovery of conversion charges
by a duly constituted suit or making a law prescribing
a forum for adjudication of its claims. The judgement
of his Lordships.

Hon'ble Mr. Justice A.P. Sen is a minority
judgement. The majority judgment of the two other
learned Hon'ble Judges constituting the Ranch has
not expressed any opinion in regard to the breaches
and violations of the terms of lease committed by
you .”

st
22. On this premise, the show cause notice dated 1 August, 1986, listed
out various alleged violations by Express Newspapers, which are set out
below:
i) induction of non-Newspapers tenants;
ii) earning of rental income of more than Rs.1 crore per year;
iii) permission to occupy the new building without necessary
completion certificate by the MCD was given by the Supreme
Court at the risk of Express Newspapers;
iv) since the plot was allotted only for the purposes of Newspapers,
so by letting out of for commercial purpose there was unjust
enrichment to the tune of Rs.1 crore per year, on which, the
Ministry is entitled to 18% per annum;
v) construction of more than FAR 360 is in excess of the
sanctioned plan by MCD;
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 21 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

vi) no permission was taken from the L&DO to regularise the
misuse created by using the building for purposes other than a
newspaper. Hence L&DO is entitled to re-enter the property as
th
there were violations of the lease deed dated 17 March, 1958;
vii) sanction plans of the MCD have not been submitted to the
L&DO which is in contravention of the lease deed. Despite the
th st
Ministry’s letters dated 24 November, 1978, 1 December,
th
1978 and 25 December, 1978 which permitted additional
construction with FAR 360, no construction could be done until
th
clauses 2(14) and 3 of the perpetual lease deed dated 17
March, 1958 are varied. A supplemental lease deed was
required and no construction could have been commenced till
the said lease deed was executed. Thus, there is a violation of
perpetual lease permitting the Government to re-enter the
premises;
viii) there is a misuse of 65,139 sq. ft. Thus, the L&DO was entitled
to collect misuse charges, penalty and interest at 18% p.a. till
the day the misuse was stopped, failing which L&DO would re-
enter the property;
ix) drawings and plans which are sanctioned by the MCD should
be submitted and any excess construction ought to be removed
beyond the sanction plans;
x) the basement was sanctioned only for the purposes of storage
by the MCD but the same is being used for the purpose of
Newspapers press office which was contrary to the MCD’s
sanction plan and is also a breach of the terms of the lease;
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 22 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

xi) that there are breaches in the old building of unauthorized
th
construction and misuse for which notices dated 11
th
September, 1978 and 16 April, 1979 have been issued;
xii) the details of the rent payable and the amounts recoverable
were set out in the notice;
xiii) misuse of the basement is to the tune of 28,082 sq. ft. for which
misuse charges are payable;
xiv) damages for unauthorized construction and misuse based on the
land rate works out to Rs.2.08/- per sq. mtrs. Unauthorized
construction’s damages are therefore liable to be paid;
xv) total charges claimed by the Union of India is Rs.2,12,82,473/-
on various counts;
xvi) temporary regularization of misuse has not been sought and
hence the said charges are payable;
xvii) six months were granted to remove the breaches and for
payment of all the damages, failing which, the said amount
would be recoverable;
xviii) the conclusion of notice reads as under:
“32. This is also further to give you notice that if
you fail to comply with this notice and remedy the
breaches committed by you, as more fully set out in
detail hereinabove in this notice, the Land &
Development Officer on behalf of the Lessor will
institute proceedings before appropriate forum to
enforce the terms of the 'lease including the right of
re-entry upon the premises as provided under the
lease deed dated 17.3.1958.”

Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 23 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

th
23. This notice was replied to by Express Newspapers on 30 September,
1986. In its reply, Express Newspapers took the position that the stand of the
L&DO, that Justice Sen’s opinion is the minority opinion, is baseless and a
clarification is liable to be issued as to how such a claim could be enforced
without filing of a suit. Express Newspapers also sought the details of the
rules, regulations and guidelines regarding the norms for determination of
breach of lease provisions, compoundability, computation of charges etc . A
request to inspect the files related to all properties in Press Enclave was also
made.
th
24. In response thereto, on 17 December, 1986, the L&DO informed
Express Newspapers that it would file a suit to enforce rights under the lease
deed. Further correspondence took place between the parties and letters were
addressed by Express Newspapers seeking clarification. Vide letter dated
rd
23 June, 1987, Express Newspapers asked a few queries, pertaining to the
st
show cause notice dated 1 August, 1986 by the L&DO. The questions
raised are as under:
“(a) Is the L & DO a functionary under the Ministry of
Works and Housing or not,
(b) Does the Chief Commissioner of Delhi continue to
be an authority under the Lease Deed between the
President of India and the Company,
(c) Is the Lt Governor of Delhi a successor in office of
the Chief Commissioner of Delhi,
(d) Is the Lt Governor entitled to exercise the powers of
the Chief Commissioner of Delhi under the provisions
of the Lease Deed and in particular can he exercise the
powers of the Chief Commissioner under Clauses 2(9)
and 2(14) of the Lease Deed,
(o) Does the Ministry of Works & Housing represent
the lessor or not
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 24 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

(f) Does the L&DO maintain that the orders of the then
Minister for Works & Housing, Mr. Sikhandar Bakht,
illegal, improper and irregular
(g) Does the L & D 0 maintain that the grants made by
the Ministry of Works &. Housing vide its letter of June
9, 1978, illegal, improper and irregular and if so what
are the reasons,
(h) Does the L& DO maintain that the grant made by
the Ministry of Works & Housing vide letter dated
24.11.78 was illegal, improper and irregular and for
what reasons
(i) Does the L & DO maintain that the grant made by
the Ministry of Works & Housing vide letter dated
1.12.78 is illegal, improper and irregular and for what
reasons,
(j) Does the L&DO maintain that no permission for
shifting of the sewer line was maintained under Clause
2(14) of the Lease Deed,
(k) Does the L &DO maintain that the orders
communicated by the industry of Works & Housing are
illegal because they are not expressly in the name of
the President of India,
(1) Is the L & DO empowered to authenticate
documents under the Authentication of Documents
Rules issued under Art, 77 of the Constitution of India,
(m) Is the Power to sign contracts on behalf of the
Central Government under Art, 299 of the Constitution
of India not available to Secretary, Joint Secretary or
Deputy Secretary to Govt,
(n) Was the permission of the lessor to let granted in
1963 given by the Ministry, of Works & Housing or the
L &DO,
(o) What is the legal effect of the letter of the Ministry
of Works & Housing to L &DO dt 17/18 Feb 1970 on
the policy of liberalisat on in the administration of
nazul land in Delhi
(p) Is the land lessed to the Company a nazul land or
not,
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 25 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

(q) How did the three-member Committee arrive at the
figure of conversion charges at Rs.30 lakhs,
r) What is the basis for the claim of conversion
charges,
(s) What is the formula for claiming conversion
charges,
(t) What is the statutory rule or contractual obligation
in the deed authorising the levy of conversion charges,
(u) Is not the lease deed and every grant made by the
govt, a govt, grant under the Govt, Grantst Act 1895,
(v) What were the reasons for the issue of the show
cause notices dt. 7.3.80 and 10.3.80,
(w) What is the meaning of the terms "conversion
charges" and additional premium and where do we
find them in the grants made by the govt, to the
company.”

25. A press report then appeared in the Times of India, New Delhi, dated
th
15 November, 1987 stating that the Union Government has taken over the
Express building in Bahadur Shah Zafar Marg, after issuing a notice. The
th
said press article from TOI dated 15 November 1987, is extracted below:
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 26 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 27 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

th
26. Upon publication of the above report, vide letter dated 15 November,
1987, Express Newspapers informed the Government that no letter was
served upon it where the takeover of Express building was stated. In
response to all these letters, the Government informed Express Newspapers
th
that vide letter dated 18 November, 1987 it has filed the present suit
bearing no. CS(OS) 2480/1987 titled UoI v. M/s. Express Papers (Pvt.) Ltd.
& Ors . before this Court. The tenants also called upon Express Newspapers
to seek clarifications which then led to the filing of the present two suits.
27. The stand of the Union of India is that it could, after the Supreme
Court decision take steps in accordance with law for terminating the lease
and also for claiming recovery of other charges including misuse charges,
etc.
28. As per Union of India, Express Newspapers have misused the
additional building by sub-letting the building for commercial purposes.
nd
Thus, vide letter dated 2 November, 1987, the Union of India had issued
nd
notice expressing its intent to re-enter the premises. Vide letter dated 2
November, 1987, the L&DO had informed the tenants of Express
Newspapers that it has re-entered the premises in view of the various alleged
th
breaches, with effect from 29 September, 1987 and further asked them to
pay the rent in the Office of the Land & Development Officer.
29. In the suits, the UOI sought to recover misuse charges/damages/ mesne
th th
profits from 28 April, 1982 till 29 September, 1987 with interest of 18%
till date of payment. Express Newspapers, in its suit, on the other hand
nd
sought relief against the said notices dated 2 November 1987, by the Union
of India.

Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 28 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

Proceedings in the Suits:
CS(OS) 2480/1987
30. This is a suit filed by the Union of India on the basis of the stand
st
taken in the Show Cause Notice dated 1 August, 1986. The prayers in the
suit are as under:
“(a) to grant a decree for recovery of possession of
Plot No.9-10, Bahadur Shah Zafar Marg, New Delhi,
admeasuring 1,179 acres or 5700 sq: yards = 4771.4
sq. metres, bounded on the North by Road, bounded on
the South by the Service Road, bounded on the East by
Service Road and bounded on the West by the
approach Road, including all buildings standing
thereon from the first defendant, consequent on
determination of the lease on 29.9.1987 and re-entry
by the plaintiff in exercise of the rights under Clause 5
and 6 of the lease deed;
(b) grant a decree against the first defendant for a sum
of Rs.3,16,54,831/- (Rupees three crores sixteen lakhs
fifty four thousand eight hundred and thirty one only)
towards misuse and other charges/mesne profits from
29.4.1982 till 29.9.1987 with interest upto 8.11.1987;
(c) to grant a decree against the first defendant for a
sum of Rs.54,85,160/- (Rupees fifty four lakhs eighty
five thousand one hundred and sixty only) towards
damages/mesne profits from 30.9.1987 to 8.11.1987
for unauthorized occupation of buildings by defendants
1 to 8 after determination of the lease;
(d) to grant a decree against the first defendant for
payment of Rs.14,40,335/- (Rupees Fourteen lakhs
forty thousand three hundred and thirty five only) per
month payable on 7th of each month from 9.11.1987
onwards for damages/mesne profits towards
unauthorized occupation of the portion of the premises
for Newspaper press;
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 29 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

(e) to grant a decree against Defendants 1 to 8 for
payment of Rs.27,29,794/- (Rupees twenty seven lakhs
twenty nine thousand seven hundred and ninety four
only) per month payable on the 7 of each month for *
damages/mesne profits towards unauthorized
occupation of the portion of the premises for the office
use of Defendants 2 to 8.
(f) to grant interest at the rate of 18% per annum
during the pendency of the suit on the amounts
claimed;
(g) to grant a decree with interest at the rate of 18%
per annum on the amount due pending the disposal of
the suit accrued to the plaintiff during the pendency of
the suit;
(h) to pass orders directing Defendants 2 to 8 to pay
the rent for use and occupation to the Land and
Development Officer from 9.11.1987;
i) to award costs of the suit; and
j) to grant such further relief or reliefs as this Hon'ble
Court deems fit and proper in the circumstances of the
case.”

th
31. The said suit i.e., CS (OS) 2480/1987 was filed on 9 November,
th
1987. Immediately thereafter, on 4 January, 1988, Express Newspapers
filed CS (OS) No.52/1988 titled ‘ Express Newspapers &Ors. v. UoI’ on the
nd
premise that the notice dated 2 November, 1987 issued by the Union of
India are barred and void. The reliefs sought to challenge the re-entry
notices. The reliefs sought are as under:
“1. That the purported termination of the lease
dated 17th March, 1958, by the impugned notice dated
2nd November, 1987 effective from 29th September,
1987, is illegal and invalid.
2. That the notice dated 2nd November, 1987 to
all the sub-tenants in the building calling upon them to
pay the rent and other dues with effect from 29th
September 1987 to the Land and Development Officer
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 30 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

and not to the plaintiff No. 1 is also illegal, invalid and
contrary to law.
3. That the defendants, their officers, servants and
agents be restrained by a permanent injunction from
acting in pursuance of, or in furtherance to, the
impugned notices respectively dated 2nd November,
1987, and from in any manner seeking to disturb the
possession, actual and constructive, of the plaintiffs in
and in respect of the lease terms or any part thereof.
4. That the following orders of the Government of
India viz.:
Order No.
Order No. J 22011/1/75-LII(1) dt. 25.6.79,
Order No. J 22011/3/80-LD(DOI)dt. 21.10.81,
Order No. J 22011/3/80-LD dt. 27.7.83,
Order No. J 22011/2/84-LD dt. 24.10.84,
Order No. J 22012/1/86-LD(DOI) dt.25.4.86,
Order No. J 22011/4/86-LD(DOI) dt. 1.6.87,
prescribing the market rates for the land allotments by
the Government in Delhi from time to time and the
office orders or directions issued in pursuance thereof
by the defendants, are inapplicable to the plaintiffs and
cannot be enforced against them.
5. In the alternative, that said orders, office orders and
directions are illegal, Ultra vires and unconstitutional
under section 14 and 265 of the Constitution of India.
6. That the defendants, their officers and servants and
agents be restrained by a permanent injunction from in
any way enforcing the said impugned orders, office
orders or directions and/or from recovering or seeking
to recover from the Plaintiffs the alleged charges
mentioned therein or any other charges for, by way of,
or in respect of, the composition for the alleged
breaches.
7. Any other order that this Hon'ble Court may deem
and proper in the facts of this case.
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 31 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

8. Cost of the suit.”

32. The suit filed by the Union of India was registered and summons ware
th
issued on 20 November, 1987. In the suit filed by Express Newspapers,
th
summons was issued on 7 January, 1988. The interim application filed by
th
Express Newspapers was considered on 18 December, 1989 and vide a
detailed order, a ld. Single Judge of this Court, observed that the main
question raised is as to whether the judgment of Justice Sen is a minority
judgment or would constitute the ratio of the Supreme Court. The said
question, as per the ld. Single Judge was a serious legal issue which required
to be considered. The Court also observed that most of the grounds in the
impugned notice were repeated after the Supreme Court judgement.
Accordingly, relief was granted in the following terms:
“xxx xxx xxx
Thus, the main question, involved in the present case,
is as to whether the judgment of Mr. Justice A. P. Sen,
is a minority judgment, or it constitutes the ratio of the
Supreme Court. In other words, the question, which
has arisen for decision, is, as to whether, the Union of
India was precluded from issuing the impugned
notices, to terminate the lease and to take constructive
possession of the building, by directing tenants to pay
rent to Union of India, as, according to plaintiffs, there
was an injunction, issued by Mr. Justice A.P. Sen.
This is purely a legal question. No-doubt, at the
time of deciding an application for temporary
injunction, this Court is to take only a prima facie
view. But, the decision on this legal question, is likely
to dispose off the present suit, filed by plaintiffs, as
well as, the suit No.2480 of 1987, filed by Union of
India.
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 32 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

I, therefore, do not consider proper to express any
opinion, at this stage. As, there are issues of law,
involved in the present suit, as well as, the suit filed by
Union of India, proper issues can be framed and tried,
as preliminary issues, as provided under Order 14
Rule 2 of Civil Procedure Code.
It is thus evident that there are serious questions,
which are to be tried in the suit.
Defendants, have alleged that, subsequent to the
judgment of the Supreme Court in Express Newspapers
Pvt. Ltd. and others (supra), there had been new
grounds, on the basis of which, the impugned
termination had been effected and, therefore, the
grounds for the termination were not subject matter of
dispute, before the Supreme Court. Mr. Nariman has
controverted these allegations.
After going through the show cause notice and the
documents, prima facie, it appears that in substance,
most of the grounds, prior to the judgment, were
repeated in the impugned show cause notice, which
was issued after the judgment of the Supreme Court.
However, this question has to be decided on merits,
after trial .
In addition, plaintiffs have filed various documents
to show that huge expenses are incurred by plaintiffs,
for maintaining the building, payment of property taxes
and other charges. Moreover, plaintiff no.1 has been
the lessee, under the lease-deed and constructed the
building, at its Own expense. Plaintiff No.1 cannot be
denied the benefits, as lessee. Thus, in my view,
plaintiffs have got a good prima facie case.
Plaintiffs are in possession of the premises and have
been enjoying all the benefits as lessees for the last
several years. Thus, the balance of convenience, also
lies in their favour. For this reason, it can be safely
said that in case, plaintiffs are denied the benefits as a
lessee., then, they will suffer an irreparable loss and
injury.
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 33 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

Under the facts and circumstances of the case. and
till the decision of the suit, the operation of the
impugned notice dated November 2,1987, is stayed.
C.A.145 of 1988, stands disposed off.”

th
33. As can be seen from the above order dated 18 December, 1989, the
Court was of the opinion that proper issues would require to be framed and
there are serious questions to be tried. As per the Union of India, the
impugned termination was based on new grounds after the judgment of the
Supreme Court. However, considering the fact that Express Newspapers was
in possession as a lessee and constructed the building at its own expense, the
Court felt that the benefits of a lessee for the last several years cannot be
nd
denied. The Court then stayed the impugned notice dated 2 November,
1987. Thus, presently, the notice terminating the lease and re-entering the
premises, is not in operation.
th
34. On the same date i.e., 18 December, 1989, in a bunch of applications
filed by the sub-tenants, in I.A. 9332/1987 and other similar applications, it
was directed as under:
“For the reasons stated, in my order in I.A.145 of
1988, the present applications, being
I.A.Nos.9332/87,106/88,107/88,261/88,407/88 and
1252/88 stand disposed off, with directions that the
applicants tenants shall continue to pay rent and
other charges to their landlord, namely, Express
Newspapers Private Ltd., defendant NO.1.
C.As.9332/87, 106/88, 107/88, 261/88, 407/88 and
1252/88 stand disposed off.”

35. A perusal of the above order would show that the tenants were
permitted to continue paying the rent to their landlord, namely, Express
Newspapers and the applications were disposed of. Both the orders dated
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 34 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

th
18 December, 1989 were challenged before the ld. Division Bench. The ld.
th
Division Bench considered the entire matter and vide order dated 24
August, 1994, disposed of the appeals. The findings of the ld. Division
Bench were that the ld. Division Bench need not go into the question as to
whether Justice Sen’s view is a minority view. The matter was left to be
decided by the Trial Court even as a preliminary issue. The injunction
granted ought to have had imposed certain conditions in regard to the rents
which were being paid by the sub-tenants. The ld. Single Judge had not
considered the imposition of certain conditions and hence I.A. 148/1988 and
other similar applications were remanded in the following terms:
“xxx xxx xxx
We feel that we need not decide the question whether
the Judgment of A.P. Sen. J is a minority judgment or
whether it is impliedly concurred with by the two other
learned Judges and that therefore the notice dated
2.11.1987 is in the teeth of the said directions. In fact,
learned Single Judge in the order in I.A.145/88 did not
decide the question whether the Judgment of A.P. Sen,
J was a minority Judgment and whether the other two
learned Judges must be deemed to have accepted or
concurred in the injunction. If he had in fact decided
the said issue, it would have been necessary for us to
go into the question as to whether the decision of A.P.
Sen, J was a minority Judgment and whether his view
was accepted impliedly by the other two learned
Judges. We are, however, relieved of this necessity
inasmuch as the learned Single Judge did not decide
this issue at all in the impugned judgment.
xxxx
We leave the said question open, but for that
reason we consider it necessary to remand I.A. 145/88
as well as other I.As to the learned Trial Judge to
enable him to consider whether any further directions
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 35 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

in regard to the rents are necessary so as to safeguard
the interests of the Union of India are necessary and
if so, what should be those conditions.
We allow the appeals only to the limited extent
indicated above. We should not be understood as
having expressed any opinion on either as to the
binding nature of the judgment of A.P. Sen, J in
Express Newspapers Private Ltd and Others vs. Union
of India and Others (supra) or as to whether it is a fit
case in which any conditions are to be imposed in
relation to the rents pending suit. It would be for the
learned Trial Judge to pass orders whether it is a fit
case where condition. are to be imposed and f so, what
should be those conditions. Appeals are disposed of
accordingly.”

th
36. Thereafter, issues were framed in the matter on 5 November, 2001.
rd
The two suits were consolidated on 3 May, 2007 and the issues were recast
in the following terms:
“1. Whether the plaint in Suit No. 2480/1987 has been
signed and verified and the suit is instituted by a duly
authorised person? OPP
2. Whether the defendant has breached any term of the
lease deed dated 17th March, 1958 and supplementary
lease deed dated 17th November, 1964? If so, to what
effect? OPP
3. Whether the termination of the lease dated 17th
March, 1958 by a notice dated 29th September, 1987
or 2nd November, 1987 is in accordance with the terms
of the lease and is not arbitrary, discriminatory,
malafide or in violation of the applicable law? OPP
4. Whether the construction carried out by the
defendant on the area of 2740 sq. yards on the western
side of the plot nos. 9 & 10, Bahadur Shah Zafar Marg
is in accordance with law? If not, to what effect ? OPD
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 36 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

5. Whether the action of the plaintiff in issuing the
notice dated 29th September, 1987 or 2nd November,
1987 is barred by res judicata? OPD
6. Whether the action of the Union of India in
terminating the lease dated 17th March, 1958 and
filing the present suit is barred by estoppel? OPD
7. Whether the notice dated 29th September, 1987 or
2nd November, 1987 have been issued by a duly
authorised and competent authority? OPP
8. Whether the construction raised by the defendant on
the suit property is in terms of a valid and binding
grant by the Union of India? If not to what effect?
OPD
9. Whether the defendant is using the suit property for
a purpose and use permissible under the lease deed
and in terms of a valid and binding grant by the Union
of India? If so, to what OPD effect?
10. Whether the plaint in Suit No. 52/1988 has been
signed and verified and the suit is instituted by a duly
authorised person? OPP
11. Whether the Suit No. 52/1988 is maintainable
without compliance of Section 80 of the Code of Civil
Procedure? OPP
12. Whether the Suit No. 52/1988 has been valued
for the purposes of court fee and jurisdiction? OPP
13. Whether the plaintiff is entitled to recovery
for possession of the suit property i.e. Plot Nos. 9 &
10, Bahadur Shah Zafar Marg? OPP
14. Whether the plaintiff is entitled to a decree for
the recovery of Rs.3,16,54,831/- towards misuse and
mesne profits for the period 29th April, 1982 till 29th
September, 1987? OPP
15. Whether the plaintiff is entitled to a decree for
recovery of Rs.54,85,160/- towards the damages for the
period 30th September, 1987 to 8th November, 1987?
OPP
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 37 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

16. Whether the plaintiff is entitled to mesne
profits at the rate of Rs.14,40,335/- per month with
effect from 9th November, 1987?
17. Whether the plaintiff is entitled to mesne
profits against defendant nos. 2 to 8 at the rate of Rs.
27,29,794/- per month for unauthorised occupation of
the premises for the office use of defendant nos. 2 to 8
from 9th November, 1987? OPP
18. Whether the plaintiff is entitled for interest on
the amounts found due and payable from the
defendants? If so, at what rate, on what amount and
for what period? OPP
19. Whether the plaintiff is entitled to mesne
profits with effect from when the suit was filed on 9th
November, 1987 till the date of vacation by the
defendants? If so, at what rate?
20. Relief”

37. Parties led the evidence of the following witnesses:
PLAINTIFF’S EVIDENCE:

th st
38. The evidence commenced on 18 July, 2007 and concluded on 21
August, 2014 and the matters were listed in the final category.
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 38 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

39. Submissions were made in this matter by Mr. A. Subba Rao, ld.
Counsel (since expired) and thereafter by ld. Senior Counsels- Mr. Sandeep
Sethi and Mr. Salman Khurshid on behalf of Express Newspapers.

SUBMISSIONS ON MERITS:
Submissions on behalf of Express Newspapers
40. Mr. Sethi, ld. Sr. Counsel and Mr. Khurshid, ld. Sr. Counsel on behalf
of Express Newspapers have made the following submissions:
i. Firstly, they recalled the various facts leading to the decision of the
Supreme Court. According to ld. Senior Counsels, Express
Newspapers was targeted by the then Government for its anti-
emergency stance during the years 1977 to 1979;
ii. Once the new Government was elected, actions were taken by the
then Lieutenant Governor and the MCD etc., seeking to demolish and
re-enter the property. This was despite the fact that all the steps
undertaken by Express Newspapers i.e., of the initial construction of
the building on the east side due to the existence of the drain/sewer
line, the shifting of the sewer line, the construction on the west side,
change of user of some portions to general commercial purpose, the
use of the basement for a Hindi newspaper, etc., were all done with
the approval of the concerned authorities;
th
iii. Show Cause notice issued on 10 March, 1980 was, thus, an act of
vendetta. The same was challenged before the Supreme Court, and in
terms of the said judgment the Union of India could enforce its rights
only by way of a civil suit;
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 39 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

iv. Express Newspapers applied for conversion in the year 2007,
however, the same was not accepted. The termination which was
th
issued with effect from 29 September, 1987 was stayed;
v. According to ld. Sr. Counsels, various allegations were raised by the
Union of India, however, the clear direction of the Supreme Court
was that the Union of India could file a suit for recovery of the
conversion charges and the MCD was to compound the construction
which was already made. Ld. Sr. Counsels have relied upon the
following decisions:
i. R. K. Mittal v. State of U.P.& Ors., AIR 2012 SC 389
ii. Munshi Ram v. Union of India 2000 7 SCC 22
iii. Prem Prakash Gupta v. Union of India & Ors., AIR
1977 Allahabad 482 paragraph 10
iv. V. Padmanabha Ravi Varma Raja and Ors. v. The
Deputy Tahsildar Chittur and Ors. AIR 1963 Kerala
155.
v. Mahendra Bahawanji Thakar v. S.P. Pande AIR 1964
Bom 170
vi. State of Tamil Nadu v. State of Kerala and Anr., 2014
12 SCC 696 at 798 paragraph 168- a judgment on the
writ petition is also res judicata.
vi. The questions which have been raised by the L&DO are breach of
clause 2(5) and 2(14) of the lease deed. On each of the issues, it is his
submission that the Supreme Court’s decision has already been
rendered;
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 40 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

vii. According to Mr. Sethi, ld. Sr. Counsel even if there is misuse, only a
recovery suit can be filed by the Union of India and no termination
can be resorted to;
viii. The misuse is also based on non-newspaper use which is already
th
recognized and permitted by the Government. The order dated 29
April, 1982 permitting the sub-letting to tenants, though, subject to
the outcome of the writ petition, tenants could take possession. The
said possession was subject to the final order. There is no mention of
the tenants in the final order;
ix. In view thereof, the Union of India filed a review petition which was
also dismissed. Insofar as the misuse of basement is concerned, the
Supreme Court holds that the construction of double basement is not
illegal. On unauthorized construction, the Supreme Court directed that
the Corporation will compound the deviation;
x. According to Mr. Sethi, ld. Sr. Counsel, the termination of the lease is
in the teeth of the restraint order passed by the Supreme Court. It is
his submission that the impugned notices are nothing but a fraud on
power. He relied on the decision of the Madras High Court in M/s.
Park View Enterprises v. State Government of Tamil Nadu, AIR
1990 Mad 251 to argue that the perpetual lease granted qua the land
and mere letting out cannot lead to termination.
Submissions on behalf of L&DO
41. Mr. Subba Rao, ld. Counsel, on the other hand, submitted that -
i. in paragraph 185 of the Supreme Court judgment, the clear
undertaking was recorded to the effect that Express Newspapers
would approach the Government of India since the said undertaking
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 41 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

was made by the counsels before the Court, Express Newspapers was
bound by the said undertaking;
ii. Express Newspapers ought to have applied to the Union of India for
permission for change of user and for payment of necessary additional
ground rent and conversion charges. This obligation according to Mr.
Rao is of a binding nature, but they did not approach the Union of
India for permission for change of user and for payment of ground
rent and conversion charges;
iii. the only common order in the Supreme Court judgment was the
quashing of the show cause notice. In a subsequent decision of the
Supreme Court, it is not open to a two Judge Bench to decide as to
what the three judges had said in the Express Newspapers’ decision;
iv. there ought to have been some morality on the part of Express
Newspapers to approach the Government to seek regularization and
conversion. For a period of six months, it did not approach. Once the
lease was terminated, the building vests in the Union of India;
v. in this case, there is no issue of freedom of press that is involved. The
land being public land, it is the bounden duty of the lessor to
terminate the lease. The Union of India has merely followed the law;
vi. the Constitutional issues relating to Article 14 would not apply once
the termination takes place. He submitted that, in fact, Express
Newspapers has agreed to reimburse the costs of shifting of the sewer
line. Since the sub-letting was done as per the interim order of the
Supreme Court, if no regularization is sought, the tenants cannot
remain.

Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 42 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

Computation on damages:
th
42. On 15 July, 2019, it was directed that a computation chart be brought
by UoI in respect of the amounts due from Express Newspapers. The
relevant portion of the order is as under:
“Ld. Senior Counsel on behalf of Express Newspapers
Ltd. has partly made his submissions.
Mr. Amit Kataria, (M:9958482545) Land and
Development Officer is present in Court along with
Mr. A. Subba Rao, Id. counsel. On the next the L&D.O,
shall bring charts of computation of the ground rent,
the charges for conversion and the misuse charges and
the existing provisions which form the basis of which
the said charges are computed. The said computation
shall be brought in respect of amounts due on the date
of the suit as also the current date. The same shall be
without prejudice to the stand of the respective parties
on merits.
nd
List for further submissions on 2 August, 2019 at 2:
15 p.m.”

43. The officials from the L&DO had also appeared before the Court
from time to time and the computation was initially filed computing the dues
at a whopping Rs.17,684/- crores! An affidavit was then sought which was
filed by the L&DO. The computations from both sides were finally handed
th
over on 27 May, 2024. The computation on behalf of the UOI has been
brought on record.
44. Mr. Sethi, ld. Senior Counsel has made the following broad points:
i) that in terms of the judgment of the Supreme Court, the Union of
India could have filed a suit seeking conversion charges from Green
Usage to Commercial Usage. This observation of the Supreme Court
in Justice Sen’s opinion is taken as a minority view by the Union of
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 43 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

India, which then chose to terminate the lease and seek
eviction/possession which was impermissible. The question as to
whether Justice Sen’s opinion was merely a minority view has been
clarified by the Supreme Court in the subsequent decision
Kaikhosrou (Chick) Kavasji Framji and Anr. v. Union of India and
Anr., AIR 2019 SC 1692 . Thus, the said opinion of the Justice Sen
cannot be read as a minority decision;
ii) the termination was itself illegal after the judgment of the Supreme
Court on any of the grounds and the only right of the Union of India
was to seek conversion from Green Usage to Commercial Usage.
45. On the other hand, Mr. Kirtiman Singh, ld. CGSC has placed on
record his written submissions along with a chart and affidavit deposed by
Mr. Dinesh Kumar Lakhumna, Deputy L&DO. In the said chart, ld. CGSC
has compared the demand in the year 1987 versus the demand as on 30th
September, 2023 and submits that the Plaintiff is liable to pay for changing
the usage from Green to Commercial, additional premium and additional
ground rent. According to him, the benefits of all the subsequent policies
have also been given to the Plaintiff. Going by these conservative estimates
and if compound interest is calculated on the basis of 18% per annum and
not 18% per annum on monthly rent, the total dues would be Rs.765.60
crores. The Court heard the submissions and how the computations were
calculated, and reserved judgement.

ANALYSIS OF EVIDENCE
th
46. Evidence commenced between the parties on 18 July, 2007, and
st
were concluded on 21 August, 2014. On behalf of the Union of India, there
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 44 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

were two witnesses viz ., Mr. H. K. Beniwal, Deputy Land and Development
Officer and Mr. Biri Singh, PW-2, Surveyor, Land and Development Office.
On behalf of Express Newspapers, Mr. S. N. Bajpai, CEO of Express
Newspapers gave evidence.
Evidence on behalf of Union of India
Evidence of PW-1
47. PW-1-Mr. H.K. Beniwal has exhibited most of the documents filed on
record. Broadly, his stand is as under:
i. that Mr. R.P.S. Pawar was the authorized representative on behalf of the
st
Union of India, as he was appointed by way of a notification dated 1
February, 1996, issued by the Government for the purposes of
executing contracts and assurance of property relating matter. In
4 5 6 7
support of the said statement Exhibits. P-14 , 15 , 16 & 17 were relied
upon;
ii. that the permissible FAR for the said property is 300 as per Bye Laws
25 (2) (IV-B) which provides FAR in commercial and retail zones as
300. Reliance is placed upon Zonal Development Plan for Zone-D,
Press Enclave situated at Mathura Road which was declared as a
commercial area, to show the applicable FAR;
iii. Express Newspapers has not submitted its sanctioned plan for the
building and thus the construction is unauthorized;
iv. for the purposes of construction, Express Newspapers approached the
local authorities for shifting of sewer lines and for sanction of plans,

4 st
Exhibit. P-14 titled Notification dated 1 February, 1966, issued by the Ministry of Law.
5 th
Exhibit. P-15 titled Notification dated 27 January, 1968 issued by the Ministry of Law with respect to
execution of contracts.
6 th
Exhibit. P-16 titled Notification dated 26 October, 1968, issued by the Ministry of Law.
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 45 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

however, after the plans were sanctioned, no permission was taken from
the L&DO. As per him, the Supreme Court judgment permitted
issuance of a fresh notice and action in accordance with the lease deed;
v. the permissible FAR at the relevant point in time was 300 and he,
thereafter, explained the manner in which the same was changed to 360;
vi. he also tries to interpret the decision of the Supreme Court. According
to him non-obtaining of permission for construction, even though the
MCD may have sanctioned the plans, was in violation of clause 2(4) of
the lease deed. Sub-letting of the premises as also use for commercial
purpose is contrary to the lease deed;
st
vii. in view of the violations of the lease deed, notice dated 1 August, 1986
was issued but the breaches were not remedied. As per the lease deed if
there is any violations of the terms and conditions, the penalty provided
is for forfeiture or termination of the lease. Post the termination of the
lease, the ex-lessee and all tenants become unauthorized occupants and
misuse charges and damages are liable to be paid. The total claim which
is deposed by the witness is to the tune of Rs.3,16,54,831/- on the basis
of misuse, damages for unauthorized construction and arrears;
viii. alternatively, the witness claims that the Union of India is entitled to
profits based on actual rentals recovered for the months, rent plus 18%
interest p.a. from the date due and payable which according to him
works out to Rs. 8.7 crores. The formula for calculation of misuse
charges is also relied upon which comes to approximately Rs.26.18
crores;

7 st
Exhibit. P-17 titled Notification dated 1 March, 1971, issued by the Ministry of Law.
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 46 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

ix. according to the witness, damages/ mesne profits at Rs.5 crores p.a. for
unauthorized occupation after re-entry is also liable to be paid. Further,
an amount of Rs. 54,85,160/- is claimed as damages for the period from
th th
30 September, 1987 to 8 November, 1987. In his cross-examination,
PW-1 was unable to show any authorization in favour of Mr. RPS
Pawar who has signed the plaint but according to the witness as per
st
notification dated 1 February, 1966, Mr. Rajinder Prasad Singh Pawar
8
having been appointed as the L&DO Officer, while Exhibit. P-66 was
duly authorized to sign the suit and the appointment of Mr. Pawar was
th
from 20 July, 1987;
x. PW-1, further, states in his cross-examination as under:
• that the FAR of the buildings in question is 300, as per MCD building
Bye laws 1959 as revised in 1964 - Bye-law no. 25(2)(iv)(B);
• that the press enclave situated at Mathura Road has been declared as
fully commercial area. He denied the suggestion that the maximum
permissible FAR is 400 and reiterated that the same is 300;
• that the lessor i.e., the Union of India is empowered to take action
against unauthorized construction;
• that the plans sanctioned by the MCD ought to be submitted to the
L&DO;
• the witness was unable to point out any document issued by the MCD
showing that there is any unauthorized construction;
• the witness could not answer as to how construction was permitted in
the Western wing up to 360 FAR, if there is any unauthorized

8 rd
Exhibit. P-66 titled Notification dated 23 July, 1987 issued by Ministry of Urban Development.
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 47 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

construction, earlier to which the witness responded that this was a
recommendation of the Government to the DDA;
• the DDA acted upon the recommendation given by the Government;
• there are no documents pertaining to the transfer of control of the
office of the L&DO to the Ministry of Works and Housing;
th
• that as per the original allotment letter dated 24 September, 1952, the
Defendant could not construct on the entire plot, however, due to the
th
discovery of the sewer line, a revised allotment was issued dated 11
April;
• that Express Newspapers was only permitted to construct a four-
storey building for the purpose of newspaper and printing press on the
ground floor and staff quarters on the remaining floors as per the
original allotment letter. The issues of FAR are governed by other
building norms;

• the original and the revised allotment letter together in pith and
substance mean that a four-storey building could be constructed on
East of the sewer line and the land, West of the sewer line was to be
kept vacant;
• that notice for unauthorized construction even qua the old building
constructed on the East of the sewer line has been issued and one such
9
notice is Exhibit. P-37 ;
• if the sewer line was not discovered even the area left to the sewer
line could have been constructed. But in view of the discovery of
sewer line, the premium was also changed for the land West to the

9 st
Exhibit. P-37 titled Show Cause Notice dated 1 August, 1986.
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 48 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

sewer line and reduced to Rs.36,000/- per acre instead of Rs.1.25
lakhs per acre;
• that the President had allowed the building to be used for commercial
purpose at Rs.3.75 lakhs per acre in respect of one lakh sq. feet out of
the total accommodation of 1.5 lakhs sq. feet;
• the supplemental lease deed was executed to enable Express
Newspapers to put the building to commercial use;
10 11 12
• by Exhibit s. P-26 , 28 and 30 , DDA has given no objection in
allowing the overall FAR 360. But this according to the witness is not
permissible as per the master plan 1977 which only permitted FAR
300 but Ministry had allowed 360 FAR;
• that the matter when discussed with DDA, Ministry of Works and
Housing and Express Newspapers, recommendation for FAR 360 was
given. The building to the West side of the sewer line was constructed
after obtaining permission from the Supreme Court;
• that since the construction at the West side of the sewer line happened
after orders of the Supreme Court, the question whether L&DO
permission was required for the same is a matter of judicial record;
• renting out of new building, West side of the sewer line was done as
per the permission granted by the Supreme Court which was a
conditional permission.




10 th
Exhibit P. 26 titled ‘Permitting sanction of FAR 360 for plot nos. 9 and 10’ dated 4 November, 1978.
11
Exhibit P. 28 titled ‘Express Newspapers allowed to construct on residual plot on basis of FAR’ dated
th
25 November, 1978.
12
Exhibit P. 30 titled
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 49 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

Evidence of PW-2
48. Mr. Biri Singh, Surveyor with the L&DO, in his affidavit by way of
evidence states -
i. that he had inspected Indian Express building at plot Nos. 9 to 10 at
Bahadur Shah Zafar Marg, New Delhi. According to him, he had
found certain breaches under the terms of lease including construction
of new building on the Western side of the land.
th
ii. that an inspection report dated 13 June, 1986 elaborating the
breaches including misuse and unauthorized construction. As per the
report, basement and ground floor was rented to M/s. Greeves Cotton
Ltd. whereas first floor was rented out to M/s. Shri Ram Fibres Ltd.
nd rd
and the 2 , 3 floor was rented out to Steel Authority of India and
National Bank for Agricultural Rural Development respectively.
iii. that as per PW-2 his report was then forwarded to the competent
authority at L&DO and his inspection report resulted in issuance of
st
notice dated 1 August, 1986. The cross-examination of PW-2 was
very short and the same has been extracted below:
i. “The breaches mentioned in para no.2 of my
affidavit are already mentioned in the records.
It is correct that as per Ex. P24, the then
Ministry of Works and Housing had granted
permission to construct the defendant on the
vacant plot. I do not know if in Ex. P28, an
extended FAR of 360 was allowed. I do not
know if the notices dated 01-3-1980 and 10-3-
1980 were quashed by the Supreme Court.”



Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 50 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

Evidence of Express Newspapers
49. Sh. S.N. Bajpai – DW1, CEO of Express Newspapers gave the entire
background in his affidavit by way of evidence and exhibited various
documents -
i. He identified the signatures of Mr. Ramnath Goenka on various
letters. The entire case of Express Newspapers as per the plaint has
been reiterated by this witness. According to him, sub-letting took
st
place on 1 February, 1960 but the supplemental lease deed was
th
only executed on 17 November, 1964 for the purposes of
collecting premium and not for the purpose of granting any
permission;
ii. As per him a supplemental agreement is not a condition precedent
or an event anterior to the actual letting out. Since the only reason
was that the area West of the sewer line could not be constructed
upon, after the deviations of the said line, construction was not
prohibited, Express Newspapers could not be blamed;
th
iii. Permission for changing of the use of the area was sought on 25
October, 1977. Express Newspapers had agreed to reimburse the
cost of the reconstruction of the new drainage outside its plot;
th
iv. In fact, pursuant to a letter dated 6 March, 1978 where permission
was sought for building five storey building, the Ministry of
st
Works and Housing, inspected the premises on 31 March, 1978
th
and on 9 June, 1978. This letter written by the Deputy Secretary
was conveyed to the L&DO. All requisite approvals were
th
obtained. It was the DDA which sanctioned the FAR of 360 on 4
November, 1978;
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 51 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

v. He also stated that the L&DO was fully informed from 1977
onwards of all the approvals which were being received by it
relating to diversion of sewer line change of user West of the
sewer line and the construction, sanction of building plans. He
further averred that no misrepresentation was committed to obtain
the additional area moreover there was no intention to let out the
portions for commercial purposes;
vi. However, surprisingly, in January,1980 an attempt was made to re-
enter the building, despite Express Newspapers having made
efforts to keep the L&DO informed at every stage;
vii. Allegations were made by the said witness against the Lieutenant
Governor at that time. Allegation was that a demand of Rs. 35
lakhs for converting into a commercial building was also raised on
the basis of the report of a three-member committee. As per the
Committee, the basement area which is to be used for press
purposes is already permitted for commercial use as per the Master
Plan. The Committee report further noted that there is
unauthorized construction to the extent of 18000 sq. ft. in the
basement area. Therefore, the unauthorized construction for a
space of 73448 sq. ft. leads to annual rental income of more than
13
Rs. 61 Lakhs.- Exhibit. B -54
viii. Express Newspapers then filed a writ petition under Article 32 of
st th
the Constitution of India on 1 April, 1980 and on 7 April, 1980 a
th
stay was granted which was confirmed on 9 May, 1980;

13
Exhibit B-54 titled ‘Appointment of three member enquiry committee’.
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 52 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

ix. Various issues were raised before the Supreme Court which led to
the quashing of the Show Cause Notice. The Supreme Court
decision was exhibited as DW-1/57 ;
st
x. Thereafter, the notice dated 1 August, 1986 was received raising
various contentions on behalf of the L&DO;
st
xi. A show cause notice was issued on 1 August, 1986 wherein it
was threatened that proceedings for re-entry would be taken. All
the correspondence thereafter is also summarized by the witness;
xii. Finally, the witness exhibited the news report in the TOI, re-entry
nd
notice and the recovery notice dated 2 November, 1987 as DW-
1/63, DW-1/64 and DW-1/65 respectively. According to the
witness the impugned notices were misconceived as there was no
misuse and permission was granted for additional construction;
xiii. Sub-letting was not prohibited and commercial use was also not
prohibited. The use of the basement for newspaper purposes were
also permitted;
xiv. Reliance is placed upon the decision of the Supreme Court and
various other grounds on which the notices for re-entry are
challenged. The witness deposed that the said notices are void and
are unenforceable;
xv. That the letters of the Government giving permission for additional
construction were on record. Union of India was stopped from
st
going back on the said permissions. Even in the letter dated 1
August, 1986, the Union of India stated that it would institute
proceedings to enforce the terms of the lease including the right of
nd
re-entry but vide notice dated 2 November, 1987 it has exercised
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 53 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

the right of re-entry without recourse to any civil proceedings.
This was contrary to the representations made by the L&DO in its
th th
own letters dated 30 September, 1986 and 17 September, 1986;
xvi. According to the witness in other plots of the press enclave, sub-
letting has been permitted in 1964, 1970 and 1971 and examples of
the same have been set out in the affidavit. The impugned notices
terminating lease are in contempt of the specific directions of the
Supreme Court. That the only pending issue was the payment of
conversion charges;
xvii. Even in the past sub-letting has taken place prior to the execution
of the supplemental lease deed. Hence the execution of a
supplemental lease deed is merely a procedural requirement and
not a condition precedent. That all the requisite permissions were
obtained from the concerned Ministry;
xviii. The witness specifically agrees that if any conversion charges are
payable on fair and reasonable basis as to mode of computation the
same would be paid in terms of the decision in Sunil Vasudeva v.
DDA . No additional premium was payable in view of the official
th
instructions in letter dated 18/19 February, 1970. Only additional
ground rent is recoverable. This particular communication dated
th
18/19 February, 1970 from the Under Secretary of the Ministry to
the L&DO which according to the L&DO did not apply to Express
Newspapers but the case of the witness was that the same was fully
applicable;
xix. Further, the grant contained in the letters issued by the Ministry on
th th th
9 June, 1978, 12 November, 1978 and 24 November, 1978 did
Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 54 of 118

Digitally Signed
By:RAHUL
Signing Date:30.08.2024
19:49

not put any conditions except the diversion of the sewer line and
permission was given to construct without any stipulation of
payment;
xx. According to the witness under Clause 2(13), only transfer is not
permitted. Sub-letting was not barred and so there is no violation
of the condition of the lease;
xxi. In any event, the lessor cannot withhold consent to sub-letting
unreasonably. The change of user and charges for sub-letting are
mere duplication which is not permissible. Change of user had
been obtained in 1957 and was confirmed in 1959. The later
change of user was merely in view of Clause 2(14) and not Clause
2(7);
xxii. In 1957-60, a clear understanding is arrived at with the
Government and, therefore, the charges for change of user were
not tenable. Any charges which are unreasonable or arbitrary
would be contrary to law;
xxiii. The misuse charges of Rs.5 crores are totally unreasonable as the
net rental income after taking into account expenses was less than
Rs. 40 lakhs as against the claim of Rs. 5 crores, thus, the linking
of change of user to value of the land was deposed as being
irrational and arbitrary;
xxiv. Since Express Newspapers was permitted to use the area which
was to the West of the sewer line for commercial purpose only
subject to conversion charges, there cannot be any misuse which is
alleged and no charges for misuse can be collected. Such charges
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also cannot be penal in nature. Any revision on refixing of land
rate in the area and demands made thereupon are contrary to law;
xxv. At the end, the witness set forth the case of Express Newspapers
that due to various independent stories which were published by
Express Newspapers it has been the target from the then highest
functionaries of the Government and has been treated with
extreme hostility;
xxvi. The direction by L&DO to the tenants to pay the rent directly to
L&DO was meant to starve Express Newspapers of its funds.
Various attacks have been made through agencies of the
Government against Express Newspapers including by the DRI,
litigation by the company law department in Madras, non-
clearance of equipment leading to payment of huge demurrage to
the customs, modernization of Express Newspapers which was
delayed, non grant of credit limit to Express Newspapers,
investigations directed by the Company Law Board etc.,. It is thus
argued by the witness that the arbitrary actions of the Union of
India were unconstitutional which led to sub-tenants stopping
payment of rent and even air conditioning charges to the
Defendant. Various grounds have been given for the claim of
damages against the Union of India;
xxvii. In his cross-examination, DW-1 was not sure as to whether after
th
the Supreme Court judgment on 7 October, 1985, Express
Newspapers approached Union of India for remedying of the
breaches which was pointed out by the L&DO;
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xxviii. On the question as to whether there is any concurrence between
the Judges of the Supreme Court, DW-1 stated that it is a matter of
interpretation and not within his competence. He denied the
suggestion that Express Newspapers had deliberately avoided to
address the questions of violations;
xxix. On the question of whether complete coverage edge to edge in the
two plots were permissible and by which document, DW-1 relied
th
upon the agreement for lease dated 26 May, 1954 which allowed
construction over 100% of the ground area of the said two plots;
xxx. As per DW-1, the construction of the new building commenced
around 1978. He denied the suggestion that two basements were
contrary to the municipal by-laws but he still confirmed that the
plans were approved when the construction started. He relied upon
14 th
Exhibit. B-48 which is letter dated 9 January, 1979 by which the
plans were sanctioned;
xxxi. DW-1 stated that he could not trace the sanction plans, though, the
letter of sanction has been filed. The suggestion that there is no
sanction plan was denied. He denied the suggestion that the L&DO
was not approached prior to diverting the sewer line. According to
th
him vide letter dated 25 October, 1977, the L&DO was
approached;
th
xxxii. Vide letter dated 4 November, 1978, the DDA had informed that
there is no objection in the FAR 360 excluding the basement.
Conversion charges in respect of the said construction was not paid

14 th
Exhibit B. 48 titled ‘Delhi Municipal Corporation approved plans for construction’ dated 9 January,
1979.
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as no demand was raised. He, further, confirmed that no
representation was given to the L&DO for the purposes of letting
out the property and directly Express Newspapers had approached
the Supreme Court in respect of the new construction;
xxxiii. However, in respect of the original construction permission was
sought from the L&DO. The suggestion that the intention of
Express Newspapers since inception was to let out portions for
15
commercial purpose was denied. As per Exhibit . B-35 , he
confirmed that for the purposes of newspaper no space is required;
xxxiv. On the question of whether Union of India complied with due
process of law as per paragraph 86 and paragraph 115, the witness
commented “I cannot say”. The witness justified the filing of the
suit by Express Newspapers on the ground that the action of Union
of India was based on breaches which was not committed by the
Defendant. The witness denied any suggestion to the effect that
Express Newspapers had played a fraud on the Government in the
guise of obtaining land for a Hindi Newspaper and, thereafter, for
commercially letting it out;
xxxv. The witness also confirmed that Express Newspapers had not
approached the MCD in view of the observations of the Supreme
Court for the purpose of compounding. According to DW-1, non-
payment of any conversion charges would not be a breach as no
charges for conversion were ever claimed by the L&DO, however,
16
DW-1 did agree that in terms of Exhibit. B-55 i.e., the letter

15
Exhibit. B-35 titled representation by Union of India to Express Newspapers.
16 st
Exhibit. B-55 titled Show Cause Notice dated 1 August, 1986.
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st
dated 1 August, 1986, L&DO had raised a demand for conversion
th
charges. DW-1 stated that as per B-41 i.e., letter dated 9 June,
1978, permission was granted by the Ministry to raise
construction, though, the said letter is addressed to the DDA;
xxxvi. He then relied upon B-43 which was a letter by the DDA giving
permission to construct. He also relied upon B-44 and B-45 as the
letters written to the DDA with copies marked to Express
Newspapers on the basis of FAR 360 excluding the entire of the
basement. DW-1 confirmed that Hindi newspaper ‘ Jansatta’ is
printed from the suit premises and not the Indian Express
Newspaper;
Findings:
50. Before going into the issues that are to be adjudicated in these suits, it
is essential to resolve the issue which has been continuously raised by the
L&DO, as to the nature of the decision of the Supreme Court – whether it
was a unanimous judgement or was it a decision rendered 2:1. After
considering this issue, the Court would proceed with consideration of the
issues framed in the suit.
Whether the decision of Justice Sen in Express Newspapers is the minority
view?
51. Mr. Subbarao, ld. Counsel (who has since deceased) , made his
submissions before the Court that the judgment rendered by Justice Sen is
the minority view and the other two Judges did not agree with the opinion of
Justice Sen, except insofar as the quashing of the Show Cause Notices were
concerned, as they did not express their opinion on the violations of the
terms of lease that were committed, and held that the same needed to be
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decided in appropriate proceedings. It was his stand that the Union of India,
therefore, could terminate the lease and take action in accordance with law.
52. On the other hand, the stand on behalf of Express Newspapers was
that the decision of the Supreme Court is a three Judge Bench decision and
that there is no majority or minority view as all the three Judges agree with
each other and there is no dissenting opinion in this judgment. Justice Sen’s
judgment was the lead judgment and thus no action for terminating the lease
could have been taken by the then Government. It was further averred that
under Article 141 of the Constitution of India, the judgment of the Supreme
Court would be binding on all the Courts as also on the parties. It was
further argued that the Supreme Court’s decision is clear and categorical as
to what the Union of India could do after its judgment was rendered.
53. The decision of the Supreme Court in Kaikhosrou (Chick) Kavasji
Framji and Another v. Union of India & Anr., AIR 2019 Supreme Court
1692 throws light on this aspect. In the said case, while dealing with an issue
relating to public land, the same question as to the nature of the decision in
Express Newspapers had arisen. In the said context, the Supreme Court in
2019 observed as under:
“ Keeping in view the reasoning of Lord Esher M.R.,
when we examine- the statement of law laid down in
Express Newspaper decision (supra) we are of the
considered view that the reasoning of A.P. Sen J.
contained in Para 86-87 is the law laid down on behalf
of all the three Judges. It is a law by majority and is
thus a law laid down by the Court under Article 141 of
the Constitution.
45. It is for the reason that first, though the lead
judgment was authored by A.P. Sen, J., the other two
Judges concurred with the view and the reasoning of
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A.P. Sen, J. Second, both the concurring Judges also
expressed their individual views on the question on
the same lines on which A.P. Sen, J. expressed his
view and the third, there is no dissent inter se their
Lordships on any issue much less on the issue with
which we are concerned in this appeal.
46. It is for these reasons, we are of the considered
view that law laid down in the lead judgment
in Express Newspapers [Express Newspapers (P)
Ltd. v. Union of India, (1986) 1 SCC 133] is the law by
three Hon'ble Judges who constituted the Bench and
thus binds all the courts in the country under Article
141 of the Constitution. It satisfies the test laid down
by Lord Esher M.R. in The Guardians [Guardians of
Poor of West Derby Union v. Guardians of Poor of
Atcham Union, (1889) LR 24 QBD 117 (CA)] .
47. The question involved in Express Newspapers
case [Express Newspapers (P) Ltd. v. Union of India,
(1986) 1 SCC 133] in relation to remedy of the State
qua person in possession of the land was again
considered by a Bench consisting of three Judges
in State of Rajasthan v. Padmavati Devi [State of
Rajasthan v. Padmavati Devi, 1995 Supp (2) SCC
290]. In that case also, the question arose as to
whether the State Government can take recourse to a
summary remedy of eviction of a person under the
State Revenue laws from the land when such person
raises a bona fide dispute about his right to remain in
occupation over such land. Their Lordship held that in
such a situation, the summary remedy to evict such
person under the Act could not be resorted to.

54. Even otherwise, it is the settled legal position that High Courts are not
to go into the question as to the majority or minority view, as both views
would be binding, under certain circumstances. In Prem Prakash Gupta v.
Union of India and Another, AIR 1977 Allahabad 482 , it is clearly held
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that if the majority of the Judges of the Supreme Court do not examine a
particular issue and decide a case on certain grounds, then on that issue, if
the minority expresses an opinion, the same would have a binding force on
Courts in India. The relevant portion from the said decision is extracted
herein below:
“The majority opinion did not express any opinion on
this issue but the minority opinion, as expressed by
Mahajan J., did examine this issue and answered it in
the negative. In my view, in a situation where the
majority of the Judges of the Supreme Court
expressly chose not to examine a particular issue and
decided the suit on certain other grounds, then the
expression by the minority on such an issue can be
said to have a binding force on the courts in India . In
this view of the matter, I think the observations made
by Mahajan J., are binding on me. That learned judge
laid down as follows:-
"Section 80 does not define the rights of parties or
confer any rights on the parties. It only provides a
mode of procedure for getting the relief in respect of a
cause of action. It is a part of the machinery for
obtaining legal rights, i.e, machinery as distinguished
from its products. Vide Poyser v. Minors."

55. Similar was the view taken by the Kerala High Court in V.
Padmanabha Ravi Varma Raja and Ors. v. The Deputy Tahsildar, Chittur
and Ors., 1963 KER LT 15 where the Court held that on a particular issue
when the dissenting judgment had referred to an aspect, the same would be
binding. The relevant portion of the said decision is extracted herein below:
“168. I may also state that there was a contention
raised on behalf of the petitioners that the Act, though
it purports to levy a tax on land, is really a law relating
to forests in the possession of the petitioners and would
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not come within the purview of Entry 18 read by itself
or in conjunction with Entry 45 of list Il; and that it is
really a law relating to Forests under Entry 19.
169. No doubt, this contention has been noted by his
Lordship the Chief Justice of the Supreme Court in the
earlier decision, but the majority have not expresses
any view on this aspect and they have assumed that
the State Legislature had the necessary competence to
enact the Land Tax Act, 1955.
170. But Mr. Justice Sarkar, in his dissenting
judgment, has refered to this aspect and has
ultimately held that under Entry 49 taxation of land
on which a forest stands is permissible and legal.
Inasmuch as there has been no adjudication by the
majority on this aspect, I am bound by the decision of
Mr. Justice Sarkar on this aspect and I have to hold
that the contention of the petitioners regarding the
competency of the legislature to enact the measure in
question, if the Act is otherwise valid, has to be
rejected.”

56. In Mahendra Bhawaniji Thakar v. S.P. Pande and Anr., AIR 1964
Bombay 170 the Bombay High Court held that the law declared by the
Supreme Court under Article 141 could be both in the majority judgment or
even in dissenting judgment. The observations of the Court are extracted
herein below:
“23. We do not think that we can accede to the
contention of Mr. Natu having regard to the provisions
of Article 145(5) read with Article 141 of the
Constitution. Article 141 says that "The law declared
by the Supreme Court shall be binding on all courts
within the territory of-India." It is the law declared by
the Supreme Court that binds this Court and not the
judgments. This is made clearer when we consider
Article 145(5). In Article 145(5) the words used are,
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"No judgment and no such opinion shall be delivered
by the Supreme Court save with the concurrence of a
majority of the Judges present at the hearing of the
case, but nothing in this clause shall be deemed to
prevent a judge who does not concur from delivering a
dissenting judgment or opinion."
It is clear from Article 145(5) that a judgment
delivered by the Supreme Court is the one delivered
by a majority of the Judges where there is a
difference of opinion, but in that case the Judge who
does not concur also delivers a judgment albeit a
dissenting judgment. Article 145(5) therefore uses the
word 'judgment' both with regard to the final
pronouncement of the Court itself as well as for the
dissenting pronouncement of an individual judge who
does not concur. There does not appear to be any
warrant for reading the provision of Article 145(5) into
the provisions of Article 141, and we do not think that
the "law declared" can be approximated to the
judgment delivered by the Supreme Court. On the
other hand, having regard to the provisions of Article
145(5) that a Judge who does not concur may also
deliver a judgment, it is clear that the law declared
may as well be in a dissenting judgment as in a
majority judgment . The argument, therefore, that the
three judges whose decision resulted in the allowing of
the appeal in Purshottam's case did not form a
majority of those holding that Article 14 applied to the
second proviso to S. 34(3) does not make that the law
declared. On the other hand, as we have already
shown three Judges out of the five who decided Civil
Appeal No. 705 of 57 : (AIR 1963 SC 1356) had clearly
agreed that Article 14 applied and the proviso was
ultra vires and we think that for the purposes of this
Court that was "the law declared by the Supreme
Court". We hold that "the law declared" referred to in
Article 141 is the law to be gathered from any
judgment in a case decided by the Supreme Court,
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whether it is the judgment of a judge forming the
majority or of a Judge in a minority and dissenting.
The contention must, therefore, be negatived. In that
view, therefore, it is clear that the Department cannot
rely upon the provisions of the second proviso to
Section 34(3) as that proviso has been by law declared
void as infringing Article 14 of the Constitution.”

57. Further, in Sudha Tiwari v. Union of India and Ors., 2011 SCC
OnLine All 253 , the Court observed that the Supreme Court being the
highest Court of the country, it’s decisions are binding on all Courts. On
the point of minority view, the Court held that even if the majority did not
express their view, the decision of the minority and the reasons given will
be binding on all the High Courts under Article 141 of the Constitution of
India. Moreover, a bare reading of Article 141 shows that all Courts in
India are bound to follow the decision of the Supreme Court. The relevant
observations are as under:
“23. The Supreme Court under Constitution of India
is the highest court of the country, and the final court
of appeal. The opinion of the Supreme Court is the
law of the land, and its decisions are binding on all
courts . The Supreme Court is the ultimate arbiter and
the adjudicator of the laws. The interpretations given
by the Supreme Court to the constitutional and other
statutory provisions, if they are clear and
unambiguous, have to be truthfully followed by the
High Courts. The decisions of the Supreme Court
cannot be ignored and bypassed even on the ground of
equity or on the ground that any review or clarificatory
application is pending.
24. A ruling is generally considered to be binding on
lower courts and the courts having smaller bench
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structure. The doctrine of binding precedent helps in
promoting certainty and consistency in judicial
decisions and accepts an organic development of the
law besides providing assurance to the individual and
certainty in the transactions vide M.A. Murthy v. State
of Karnataka, (2003) 7 SCC 517 and also State of
Punjab v. Devans Modern Brewans Limited, (2004) 11
SCC 26.
25. When the Court is divided, the judgment of
majority constitutes the law declared and not the view
or observance of the Judges in the minority vide John
Martin v. State of West Bengal, (1975) 3 SCC 836.
Where the majority has not expressed any opinion,
the decision of the minority in strength, even if by a
single Judge amongst five, has the effect, if the
reasons are given of the judgment of the Supreme
Court to be binding upon the High Court under
Article 141 of the Constitution of India. The principle
underlying the decision is binding on the High Courts.
In Ashoka Kumar Thakur's case, the question answered
by Hon'ble Justice Dalveer Bhandari, namely whether
the Ninety Third Amendment violates the basic
structure of the Constitution by imposing reservation
on unaided institutions, did arise in the case, and was
apparently argued by the counsels appearing for the
parties. The Hon'ble Judge posed the question and
answered it by elaborate reasoning citing the entire
case law on the subject on the touchstone of I.R.
Coelho's case. He has not only answered the question
but has also, in adopting the principles of severability
of the offending party, consciously, declared the
Ninety-Third Amendment as it refers only to the
unaided institutions, as ultra vires the basic structure
of the Constitution of India. The ratio of the decision is
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a binding precedent, and thus once the Constitution
(Ninety-Third Amendment) Act 2005, to the extent that
it refers to unaided institutions, has been held to be
ultra vires, the High Courts are bound with the ratio,
as to under Article 141 of the Constitution has to
follow it and on the same analogy on which Article
15(5) as has been declared to be violative of the basic
feature of the Constitution of India, of the right to
occupation and its abridgment, the provisions of
Section 4 of the UP Act No. 23 of 2006 cannot be
saved, to that extent.”

Decision in Express Newspapers (supra) is binding
58. In the opinion of this Court, the decision delivered by the three Judge
Bench of the Supreme Court in Express Newspapers (supra) is a binding
decision under Article 141 of the Constitution of India. The said decision is
not only binding on this Court but also on all the other governmental
authorities. The Supreme Court spoke in one voice and quashed the Show
Cause Notices threatening re-entry. There was no dissenting view in the said
decision. As per the leading judgment of Justice Sen, the then Government
had contemplated a legislation to provide a forum for adjudication of such
disputes, which did not materialise. Thus, the Supreme Court relegated the
parties to a civil suit for adjudication of the disputes in respect of conversion
charges and occupation charges etc.
59. The Court further suggested arbitration for resolving the disputes
between the parties, which was also contemplated for determining the
quantum of conversion charges payable, which was not acceptable to the
Government. Failing all of these options for providing a forum or resorting
to arbitration, the Government had the option to file a duly constituted suit
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to realize the conversion charges and additional ground rent whatever may
be recoverable. No other liberty was given to the Union of India. In fact, a
mandatory injunction was passed restraining the Union of India from taking
any steps with respect to termination of lease for non-payment of conversion
charges or otherwise for construction of Express building till the amount
recoverable is decided by a Civil Court.
60. In addition, the Supreme Court quashed the Show Cause Notice dated
th
10 March, 1980 and declared that the construction of Express Building on
the portion of 2740 sq. yds. on the west side with an increased FAR 360
with double basement was with permission of the Union of India and there
was no breach of the lease deed [clause 2(5) and 2(14)].
61. The Supreme Court also directed the Union of India, Delhi
Development Authority (DDA) and Municipal Corporation of Delhi (MCD),
forbearance and from issuing any threats in any manner whatsoever. Union
of India was only permitted to enforce its claim for recovery of conversion
charges and additional ground rent, if any, by a duly constituted suit. The
MCD was directed to compound the construction of double basement, the
excess basement beyond the plinth limit and the underground passage on
payment of usual composition fee.
62. Apart from Justice Sen, the other two Judges had read the leading
judgment of Justice Sen and had directed the quashing of the impugned
notices and permitted fresh action as may be available in law. The Union of
India was also permitted to compound the breaches as also regularize lease
by receiving adequate premium. Any questions arising out of contractual
obligations could be agitated in a suit.
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63. This Court is of the view that the stand of the Union of India that the
decision of Justice Sen is merely a minority view, is not tenable. This is
because of the following two reasons:
i) that the decision was of a three Judges Bench which had three
concurring opinions. Justice Sen wrote the leading judgment. The
other two Judges did not state that they had any difference of
opinion with Justice Sen and neither their opinions were dissenting
opinions. The decision in Express Newspapers is a binding
decision of the Supreme Court rendered by a three Judge Bench.
The concurring opinions which permitted the Union of India to
proceed in accordance with law can only mean that the Government
could have proceeded in terms of the directions issued in the lead
judgment and nothing more. There was a clear embargo upon
taking steps for termination of lease and claiming any other
amounts except conversion charges and additional ground rent.
Compounding was also permitted. The MCD was given a direction
to compound the construction of the double basement and other
constructions.
ii) the later decision of the Supreme Court in Kaikhosrou (supra) has
also categorically held, following the opinions of Lord Esher MR in
the Guardian of Poor judgment where the Judges do not give
differing opinions explicitly, it must be taken that each of them
agrees with the judgment of the other. In Kaikhosrou (supra) , the
Supreme Court has clearly held that the reasoning of Justice Sen is
the law laid down on behalf of all three Judges and on behalf of the
Court. Since there is no dissenting opinion, the directions given in
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paragraphs 194 to 197 is binding on both the parties and would
operate as res judicata. A reading of all the above judgements also
establishes that even if Justice Sen’s judgment is a minority opinion
it has a binding force on all the High Courts as per Article 141 of
the Constitution of India. Thus, no notice of termination of lease
and re-entry could have been issued by the Union of India. Even
the amount recoverable by the Union of India was only in terms of
paragraph 194 of the judgment delivered by the Supreme Court,
where only conversion charges and additional ground rent would be
liable to be recovered and the same may be carried out by a duly
constituted suit. The basis of the L&D.O’s impugned action that
Justice Sen’s judgment is of a minority view is thus completely
untenable.

Issue-wise Findings

Issue No. 1: Whether the plaint in suit no. 2480/1987 has been filed
and verified and the suit is instituted by duly authorized
person.
64. The suit of the Union of India, has been filed by Sh. R.P.S. Pawar. He
was the Land and Development Officer at the concerned time and to support
st
this position, PW-1 has relied upon the notification dated 1 February, 1966.
17
PW-1 also relies upon the appointment letter exhibited as Exhibit . P-66 . In
his cross-examination, PW-1 states as under:
“ Ques: Please show the authorization in favour of Mr.
R P S Pawar by UOI on the judicial file record to
institute the present suit.

17 rd
Exhibit. P-66 titled Appointment letter of Rajinder Singh Pawar as L&DO dated 23 July, 1987.
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Ans : (witness has been shown the judicial file record).
Govt. of India, Ministry of Law, vide its notification
dated 1.2.1966 as amended from time to time,
empowered Land and Development Officer, Deputy
Land and Development Officer, Assistant Settlement
Commissioner, Asst. Legal Advisor, and Engineer
Officer to execute all contracts and assurances of
property relating to matters falling within the
jurisdiction of Land and Development officers, and to
execute all contracts, deeds or other instruments
relating to or for the purpose of enforcement of the
terms and conditions of the sale/ lease deeds of the
govt. property in Delhi/ New Delhi and documents in
this regard are Ex P- 14, 15, 16 & 17 on the judicial
file record. Sh. R P S Pawar was appointed as Land
and Development officer vide Ex P-66.

Ques ; By this answer you mean that there is no specific
authorization in favour of Mr. R P S Power to file end
institute the present suit.
Ans : I do not mean this.
By way of notifications, cited in reply to question
above, end notification issued by the Govt. of India
appointing Sh. R P S Power, as Land and Development
Officer, he is fully authorized to institute the plaint.

Quest : Is there any specific empowerment in document
Ex.P- 14 in favour of Mr. R. P. S. Power or Lend end
Development officer to institute and file suits?
Ans . The answer given above in this respect fully
answers the query. This issue being of legal nature can
be replied to during arguments.

Q . Please show me any document from the court
record
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which mentions the name of Mr. R. P. S. Pawar and
also authorizes him to file a suit against Express
Newspapers Pvt. Ltd.?
Ans . There is not such document on record.

Q . Please show me any document from the court
record which mentions the name of Mr. B. L. Nimesh
and also authorizes him to file replication in the
present suit against Express Newspapers Pvt. Ltd.?
Ans . This question cannot be answered. However,
there is not such document on the file.”- need to
confirm if the extraction correct or not

st
65. A perusal of Exhibit P-14 would show that it is a notification dated 1
February, 1966 issued by the Ministry of Law, Department of Legal Affairs
wherein, the manner in which contracts can be executed on behalf of the
President of India has been specified. Clause 7 of the said notification
clearly specifies that all contracts in respect of sale and lease deeds are to be
executed by the Land and Development Officer, Deputy Land and
Development Officer and Assistant Settlement Commissioner. Ex.P-66 is a
rd
notification dated 23 July, 1987 appointing Mr. R.P.S. Pawar, IAS as the
Land and Development Officer. A conjoint reading of the said notifications
clearly shows that Sh. R.P.S. Pawar, who filed the suit was duly authorized
and competent person to file the plaint on behalf of the Union of India.
ISSUE NO.1 IS ACCORDINGLY ANSWERED IN FAVOUR OF THE
UNION OF INDIA.



Issue No 2: Whether the defendant has breached any term of the
lease deed dated 17th March, 1958 and supplementary
lease deed dated 17th November, 1964? If so, to what
effect? OPP

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Issue No. 3: Whether the termination of the lease dated 17th March,
1958 by a notice dated 29th September, 1987 or 2nd
November, 1987 is in accordance with the terms of the
lease and is not arbitrary, discriminatory, mala fide or
in violation of the applicable law? OPP

Issue No. 4: Whether the construction carried out by the defendant
on the area of 2740 sq. yards on the western side of the
plot nos. 9 & 10, Bahadur Shah Zafar Marg is in
accordance with law? If not, to what effect ? OPD

Issue No. 7: Whether the notice dated 29th September, 1987 or 2nd
November, 1987 have been issued by a duly authorised
and competent authority? OPP

Issue No. 8: Whether the construction raised by the defendant on
the suit property is in terms of a valid and binding grant
by the Union of India? If not to what effect? OPD

Issue No. 9: Whether the defendant is using the suit property for a
purpose and use permissible under the lease deed and
in terms of a valid and binding grant by the Union of
India? If so, to what OPD effect?

66. Issue Nos. 2, 3, 4, 7, 8 and 9 relate to the question as to whether there
th
has been any breach of the perpetual lease deed dated 17 March, 1958 and
th
supplementary lease deed dated 17 November, 1964 by Express
Newspapers. In addition, the question that arises in these issues is whether
the notices issued by the Union of India are valid in law. Both these aspects
would have to be dealt with on the basis of an analysis of the events leading
up to the show cause notices in 1980, various approvals obtained and the
th
decision rendered by the Supreme Court which was rendered on 7 October,
1985.
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67. Broadly, the allegations raised by the UOI as being violations by
Express Newspapers, are categorized and dealt with below:
i) Misuse of a portion of the basement in the old building for
Newspapers use instead of the permitted use as storage.

th
On this issue, it is relevant to point out that vide letter dated 25 October,
1977, Express Newspapers had sought permission for additional
construction in the open space which was initially permitted due to the
sewer line. The additional basement space was needed for the purpose of
starting a Hindi Newspaper. Express Newspapers had sought permission for
additional construction after the sewer line was shifted by the Municipal
Corporation and permission was given to inter-connect the new and the old
building. The Delhi Municipal Corporation (Water Sewage and Disposal
Board) confirmed the possibility of diverting the sewer line. The same was
th
also permitted by the DDA on 4 November, 1978 wherein, it is stated that
installation of press machinery and other service machinery in the basement
is permitted. The relevant extract of the said letter of the DDA to Express
Newspapers reads as under:
“The plans submitted by you have been examined. I am
directed to inform you that there is no objection to
amalgamation of Plot No,9 and 10 and allowing an
overall FAR of 3.6 taking into account the existing
FAR in that case the existing building line of the
adjoining plot 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
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area which may be so planned to make use-able for
parking purposes.
2. On the detailed examination of the layout plan, the
following observations have also been made :-
3. You may submit the plans to the concerned
authorities for favour of approval. A set of plans as
submitted by you and examined as per norms
mentioned above is enclosed.”

68. The fact that the basement is excluded from the sanctioned FAR of
th st
360 was also confirmed by two letters dated 24 November, 1978 and 1
December, 1978 both addressed by the Ministry of Works and Housing to
the DDA with copies marked to Express Newspapers. The relevant text from
the said letter is set out below:
th
Letter dated 24 November, 1978 – Exhibit No. 44:
“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
Limited may be allowed to construct on the residual
plot on the basis of an FAR of 360 for the whole
plot .”

st
Letter dated 1 December, 1978 – Exhibit No 45:
“In continuation of this Ministry’s letter of even
number dated 25.11.78, I am directed to clarify that
the FAR of 360 allowed ex-cludes the entire area of
basement as per the provisions of the Master Plan .”

69. These two letters were put to DW-1 in cross-examination that they
were marked only to the DDA and not to Express Newspapers, which was
duly refuted by DW-1, that copies of these letters were issued to Express
Newspapers. The said letters are not adverted to by PW-1 at all which
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clearly proves the mala fides of the L&D.O. In the opinion of this Court,
these communications are sufficient to hold that the construction and use of
the basement for Newspaper and machinery use, was fully permissible.
ii) Unauthorized construction in excess of the area approved by the MCD
– allegation that Clause 2(4) of the lease has been violated.

Clause 2(4) of the perpetual lease reads as under:

“2 (4) The Lessee will in all respects comply with and
be bound by the building drainage and other bye-laws
for the time being in force in the New Capital of
Delhi.”

70. On the question of unauthorized construction, it is relevant to note
that the entire construction was carried out after obtaining the requisite
th
permissions. Vide letter dated 7 December, 1977, written by Mr. Ram Nath
Goenka to the then Minister of Works and Housing, it has been clearly
stated in the said letter that a rough plan was submitted by Express
Newspapers to the MCD, and it was informed that FAR of 300% is
permissible by the DDA in the area after taking into account the existing
building. The background of the allotment in the press area and the manner
in which Express Newspapers was initially allotted plot nos. 1 and 2 which
was thereafter changed to plot nos. 9 and 10 is set out in the said
communication. In the said letter, a request is made that the plots in the
press area ought to be treated as commercial complexes, so that buildings
may be constructed over the entire area of the plot subject only to the height
stipulation. This letter was thereafter followed up with another letter dated
nd
22 December, 1977 wherein again the stand was taken that the press area
was in fact was not covered by the DDA’s Master Plans, and no specific
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nd
rules for construction existed. Vide letters dated 2 February, 1978,
18
exhibited as Exhibit. P-30 , the Ministry clarified that the FAR of 360
would exclude the basement. The said clarification is set out below:
“In continuation of this Ministry’s letter of even
number dated 25.11.78, I am directed to clarify that
the FAR of 360 allowed excludes the entire area of
basement as per the provisions of the Master Plan .”

th 19
71. Further, vide letter dated 9 June, 1978 exhibited as Exhibit.B-41 , it
was clarified that FAR beyond 300 would not be permissible but once the
sewer line is diverted, Express Newspapers would get an additional area of
54,000 sq. ft. in the basement, ground, first, second and third floor on the
th
new plot. The DDA, finally, vide letter dated 4 November, 1978, Exhibit.B-
20
43 allowed an overall FAR of 360 and called for the sanction plan. This
th st
was also confirmed by the Ministry on 24 November, 1978 and 1
December, 1978. These documents would clearly show that so long as the
plans were sanctioned, FAR beyond 300 was permissible in the area. FAR
360 was confirmed by both the DDA and the Ministry. The allegation that
no construction could take place in the western side of the plot, is thus
completely not tenable.

iii. Construction of additional building in the area which was to be kept
vacant.

72. The documents on record clearly show that the requisite approvals for
construction were obtained from the MCD. The stand of the L&DO was that

18 nd
Exhibit. P-30 titled letter dated 2 December, 1978 addressed by Ministry of Works and Housing to
DDA.
19 th
Exhibit B-41 titled Request for additional coverage dated 9 June, 1978.
20 th
Exhibit B-43 titled building plans on Plot Nos. 9 and 10 dated 14 November, 1978.
Signature Not Verified
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the plans which were sanctioned by the MCD were not submitted to
L&DO/Ministry and the construction was carried out without payment of
additional premium and additional ground rent. Thus, there is violation of
clauses 2(5), 2(14) and 3 of the Perpetual lease deed. The same are extracted
below for read reference:
“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 authorise in this behalf
“make any alterations in or additions to the buildings"
erected on the said demised premises so as to affect
any of the architectural or structural features thereof
or erect or suffer to be erected on any part of the said
demised premises any buildings other than and except
the buildings 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. yds. as
an open space, that is as lawns, paths or parking
grounds.
Provided also that the Lessor shall be entitled to claim
and recover a portion of the unearned increase (i.e.,
the difference between the premium already paid and
current market value) in the value of land at the time of
transfer (whether such transfer is an entire site or only
a part thereof), the amount to be covered being 50
percent of the unearned increase.
The Lessor shall have a pre-emptive right to purchase
the property after deducting 50percent of the unearned
increase as aforesaid.
3. 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 the Lessee or by
any person claiming- through or under him of any of
Signature Not Verified
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the covenants or conditions contained in sub-
clauses(5),(9) and (10) of Clause 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
lawfull for the officers and workmen. acting, under the
authority and direction of the Chief Commissioner of
Delhi to enter upon the premises hereby demised and
(a) to remove or demolish any alterations in or
additions to the buildings erected on the said premises
(b) to remove or demolish any buildings erected on the
said premises without the previous consent in writing
of the Chief Commissioner of Delhi or duly authorised
officer as aforesaid (c) to fill any excavation or carry
out any repairs that may be necessary and all such
moneys, and expenses as may be laid out and incurred
by the Chief Commissioner of Delhi or by his order
shall be paid by the said lessee; 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 clauses 4 and 5 hereof."

73. In this regard, the record reveals that right from 1977, Express
Newspapers has been in touch with the Government/Ministry for
construction of the entire area of plot nos. 9 and 10 ad measuring 1.179
acres. In fact, initially, the lease contemplated such construction and it was
only upon the sewer line being discovered that the original proposal had to
be changed and construction was permitted only on the east portion and not
on the west portion. After the old building on the east portion was
constructed, Express Newspapers sought permission and in fact volunteered
to contribute the cost of the diversion of the sewer line and it was only
thereafter that the sanction was given. The allegation that though the plans
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were sanctioned by the MCD since the plans were not submitted to L&DO,
the same is contrary to the lease deed, is now examined.
74. As per PW-1, Express Newspapers did not approach the L&DO after
the sanction of the plans which renders the entire construction unauthorized.
This is not a tenable stand as the fact that the construction was taking place
was well within the knowledge of the L&DO, which never raised any
objection. Clause 2(14) stipulated that the western side of the pipe line was
to be maintained as a green area. This Clause did not require permission for
construction in terms of sanction plans of the MCD. The maintenance of
green area was due to the sewer line and nothing more. The stand of the
th
L&DO that after MCD had sanctioned the plan on 9 January, 1979, the
same had to be submitted to the L&DO again for approval is bereft of any
merit as the authority for sanctioning of plans was MCD. The sanctioning of
plans and FAR was known to the Ministry as the concerned agencies had
informed the Ministry. Moreover, since the Ministry and L&DO were fully
within the knowledge of the construction and thus if any charges were to be
paid, a demand could have been raised contemporaneously. According to
Express Newspapers, even the conversion charges of Rs.50,425/- was
deposited. Insofar as the notice by the MCD for demolition is concerned, a
perusal of the said notice would reveal that the only ground raised therein is
that there is excess construction in the basement beyond the sanction
including the construction of an upper basement. No other ground was
raised by the MCD.
75. Thus, it cannot be said that the construction on the vacant space was
unauthorized and was in violation of the perpetual lease deed.
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st
76. A perusal of the notice and the challenge dated 1 August, 1986
followed by the termination of lease shows that the grounds alleged therein
are as under:
a) Use of the premises for commercial purpose other than newspaper.
b) Unauthorized construction on the western side of the drain without
seeking permission of L&DO.
c) MCD’s notice of demolition of unauthorized construction.
d) Sub-letting of the premises.
e) Construction of more than FAR 360 and hence non-issuance of the
complete certificate by the MCD.
f) Non execution of supplemental lease deed and construction prior
to such execution.
g) Misuse of the basement apart from storage purposes.
77. The above alleged breaches are in fact not made out from the record.
The documents discussed hereinabove would show that the use of the
basement for putting of printing machinery was permitted by the DDA. The
FAR of 360 was duly sanctioned by the Ministry which was communicated
to the DDA as also to Express Newspapers. The construction in the
additional space was carried out after the diversion in the sewer line. The
construction was also carried out after obtaining sanction from the MCD,
which was well within the knowledge of L&DO and the Ministry. The use
of the said premises for commercial purpose was duly authorized as were
other buildings in the vicinity. The same was permitted subject to payment
of conversion charges.
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th
78. Vide the supplemental lease dated 17 November, 1964, the
prohibition was from carrying out any manufacturing trade which would in
the opinion of the Chief Commissioner of Delhi be considered as noisy,
noxious or offensive. The surplus accommodation was permitted to be let
out for general office use, commercial or otherwise excluding commercial
ventures like hotel, cinemas, restaurant, etc . Thus, it cannot be argued that
there was any misuse and that the premises could only be used for
newspaper purpose. Clearly, the stand of the Ministry and the L&DO in the
impugned notices of termination preceding the termination and the
termination letter is in the face of the admitted documents and the
documentary evidence.
79. Moreover, a very disturbing feature in these suits, is also that all the
issues which were considered and decided in the judgment of the Supreme
th
Court dated 7 October, 1985 in Express Newspapers are again being
reiterated and raised in the impugned notices. A perusal of the Show Cause
th
Notice dated 10 March, 1980 which was quashed would show that the said
notice was also based upon similar grounds raised by the Union of India.
th th th
Press release dated 4 March, 1980, letters dated 7 and 10 March, 1980 of
the L&DO, all of which led to the appointment of the three-member
Committee by the then Lieutenant Governor, was frowned upon by the
Supreme Court. The Supreme Court judgment has dealt with each of the
alleged violations in the impugned notices. A perusal of paragraph 187, 190
and 194 of the judgment of the Supreme Court shows that it is exactly these
very issues which are discussed by the Supreme Court and the final
directions were issued to the Union of India, only to realize conversion
charges and additional ground rent and nothing more.
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80. To re-agitate already adjudicated issues in the manner as is sought to
be done by issuing fresh notices of termination would in the opinion of this
Court be in total disregard of the painstaking judgment of the Supreme
Court which had already gone into all these issues. Post the decision of the
Supreme Court, there were only two courses of action for the Union of India
i.e., to raise a demand for the conversion charges and for the additional
ground rent along with any reasonable interest and upon failure to pay the
same, to file a suit. In fact from a reading of the order of the Supreme Court
only the latter could have been resorted to i.e., filing of the suit by the Union
of India. According to Express Newspapers, it had deposited some
conversion charges in 1982 and if anything, more is to be paid a demand
could have been raised. In paragraph 196, the Supreme Court clearly holds
that there are no breaches under clause 2, 5 and 14 of the lease deed and that
the construction on the Western side of plots 9 and 10 with an increased
FAR of 360 with a double basement was with the permission of the Union
of India.
81. The two issues whether the construction in the suit property by
Express Newspapers is valid and binding and whether it was used for a
permissible purpose, are decided by the Supreme Court in paragraph 85 of
the judgment as under:
“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 Section
2(g) of the Act”

Signature Not Verified
CS(OS) 2480/1987 and CS(OS) 52/1988 Page 83 of 118

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82. The use from green space to commercial space was also permitted as
nd
per Exhibit . B-71 dated 2 April, 1983 which is an affidavit filed by the
Union of India by Shri H.R. Goel, Dy. Secretary in the Ministry of Works
and Housing which granted permission for additional construction with
respect to commercial use and there is no prohibition against sub-letting for
commercial purposes.
83. In the light of such categorical findings, raising these very issues in a
fresh notice and thereafter issuing notices of termination and seeking to re-
enter is clearly in the face of the judgment of the Supreme Court. The MCD
was clearly given a mandatory direction by the Supreme Court to compound
the construction of the double basement beyond the plinth limited and the
underground passage. Thus, the allegation that there is unauthorized
construction contrary to the building plans of MCD is also not liable to be
th
entertained. The notices dated 29 September, 1987 followed by the letters
nd
dated 2 November, 1987 are, therefore, lacking any basis on facts as also
st
in law. In fact, the Supreme Court concludes that the notices dated 1
th
March, 1980 and 10 March, 1980 was not issued bona fide . The relevant
observations of the Supreme Court reads as under:
“In the facts and circumstances, I am constrained to
held 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 purposed and thus
were wholly mala fide and politically motivated.”

84. The above observations of the Supreme Court would squarely be
nd th
applicable even to the notice dated 2 November, 1987, which is w.e.f 29
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September, 1987. The issuance of notices to tenants with a direction to them
to deposit the rent with the L&DO is a completely malicious act on behalf of
the then Government. It was only meant to muzzle Express Newspapers and
also dry up its sources of income and nothing more. Thus, the said notices
nd
are held to be arbitrary and mala fide . In fact, the notice dated 2
November, 1987 by which the lease was terminated was never been served
upon Express Newspapers and a copy was procured, thereafter. Express
Newspapers came to know of the same from the news item in Times of India
th
dated 15 November, 1987. Such conduct of the Government of the day is
nothing but motivated to say the least.
ISSUE NOS. 2, 3, 4, 7, 8 AND 9 ARE ACCORDINGLY DECIDED IN
FAVOUR OF EXPRESS NEWSPAPERS.



Issue no. 5: Whether the action of the plaintiff in issuing the notice
dated 29th September, 1987 or 2nd November, 1987 is
barred by res judicata? OPD

85. As discussed earlier, the notices issued in March, 1980 had raised
similar allegations against Express Newspapers in respect of which the
judgment of the Supreme Court has already been rendered. The mere fact
that permission was granted by the Supreme Court to the Union of India for
filing of a civil suit for the purpose of conversion charges and additional
ground rent cannot mean that the Union of India was permitted to raise all
the issues once again by way of a civil suit. The entire evidence consisting
of letters, the perpetual lease deeds, the letters, approvals, etc ., have all been
discussed in detail in the decisions of the Supreme Court. The decision in
Daryao and Others v. State of U.P., 1961 SCC OnLine SC 21 holds that
decisions in writ petitions would also bind the parties as res judicata though
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evidence may not have been led. The relevant extracts of the said decision
are set out below:
“19. This Court had occasion to consider the
application of the rule of res judicata to a petition filed
under Article 32 in M.S.M. Sharma v. Dr Shree
Krishna Sinha [AIR 1960 SC 1186] . In that case the
petitioner had moved this Court under Article 32 and
claimed an appropriate writ against the Chairman and
the Members of the Committee of Privileges of the
State Legislative Assembly. The said petition was
dismissed. Subsequently he filed another petition
substantially for the same relief and substantially on
the same allegations. One of the points which then
arose for the decision of this Court was whether the
second petition was competent, and this Court held
that it was not because of the rule of res judicata. It is
true that the earlier decision on which res judicata was
pleaded was a decision of this Court in a petition filed
under Article 32 and in that sense the background of
the dispute was different, because the judgment on
which the plea was based was a judgment of this Court
and not of any High Court. Even so, this decision
affords assistance in determining the point before us.
In upholding the plea of res judicata this Court
observed that the question determined by the previous
decision of this Court cannot be reopened in the
present case and must govern the rights and
obligations of the parties which are substantially the
same. In support of this decision Sinha, C.J., who
spoke for the Court, referred to the earlier decision of
this Court in Raj Lakshmi Dasi v. Banamali
Sen [(1952) 2 SCC 219 : (1953) SCR 154] and
observed that the principle underlying res judicata is
applicable in respect of a question which has been
raised and decided after full contest, even though the
first Tribunal which decided the matter may have no
jurisdiction to try the subsequent suit and even though
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the subject-matter of the dispute was not exactly the
same in the two proceedings. We may add incidentally
that the Court which tried the earlier proceedings in
the case of Raj Lakshmi Dasi [(1952) 2 SCC 219 :
(1953) SCR 154] was a court of exclusive jurisdiction.
Thus this decision establishes the principle that the
rule of res judicata can be invoked even against a
petition filed under Article 32.
xxxxx
26. We must now proceed to state our conclusion on
the preliminary objection raised by the respondents.
We hold that if a writ petition filed by a party under
Article 226 is considered on the merits as a contested
matter and is dismissed the decision thus pronounced
would continue to bind the parties unless it is
otherwise modified or reversed by appeal or other
appropriate proceedings permissible under the
Constitution. It would not be open to a party to ignore
the said judgment and move this Court under Article
32 by an original petition made on the same facts and
for obtaining the same or similar orders or writs. If the
petition filed in the High Court under Article 226 is
dismissed not on the merits but because of the laches of
the party applying for the writ or because it is held that
the party had an alternative remedy available to it,
then the dismissal of the writ petition would not
constitute a bar to a subsequent petition under Article
32 except in cases where and if the facts thus found by
the High Court may themselves be relevant even under
Article 32. If a writ petition is dismissed in limine and
an order is pronounced in that behalf, whether or not
the dismissal would constitute a bar would depend
upon the nature of the order. If the order is on the
merits it would be a bar; if the order shows that the
dismissal was for the reason that the petitioner was
guilty of laches or that he had an alternative remedy it
would not be a bar, except in cases which we have
already indicated. If the petition is dismissed in limine
Signature Not Verified
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Signing Date:30.08.2024
19:49

Signature Not Verified
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the House of Lords (in the opinion of Sir William de
Grey) has observed:
“From the variety of cases relative to judgments being
given in evidence in civil suits, these two deductions
seem to follow as generally true : first, that the
judgment of a court of concurrent jurisdiction, directly
upon the point, is as a plea, a bar, or as evidence,
conclusive, between the same parties, upon the same
matter, directly in question in another court; secondly,
that the judgment of a court of exclusive jurisdiction,
directly upon the point, is, in like manner, conclusive
upon the same matter, between the same parties,
coming incidentally in question in another court, for a
different purpose.”
163. Corpus Juris explains that res judicata is a rule of
universal law pervading every well-regulated system of
jurisprudence, and is put upon two grounds, embodied
in various maxims of the common law; the one, public
policy and necessity, which makes it to the interest of
the State that there should be an end to litigation; and
the other, the hardship on the individual that he should
be vexed twice for the same cause.
164. In Sheoparsan Singh [Sheoparsan
Singh v. Ramnandan Singh, (1915-16) 43 IA 91 :
(1916) 3 LW 544 : AIR 1916 PC 78] , Sir Lawrence
Jenkins noted the statement of law declared by Lord
Coke, interest reipublicae ut sit finis litium, otherwise
great oppression might be done under colour and
pretence of law. (6 Coke, 9a.)
165. In Daryao [Daryao v. State of U.P., AIR 1961 SC
1457] , P.B. Gajendragadkar, J. while explaining the
rule of res judicata stated that on general
considerations of public policy there seems to be no
reason why rule of res judicata should be treated as
inadmissible or irrelevant while dealing with the
petitions filed under Article 32 of the Constitution. P.B.
Gajendragadkar, J. referred to earlier decision of this
Court in M.S.M. Sharma [M.S.M. Sharma v. Shree
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Krishna Sinha, AIR 1960 SC 1186] wherein the
application of the rule of res judicata to a petition filed
under Article 32 was considered and it was observed
that the question determined by the previous decision
of this Court cannot be reopened and must govern the
rights and obligations of the parties which are
subsequently the same.
166. In Gulabchand Chhotalal Parikh [Gulabchand
Chhotalal Parikh v. State of Gujarat, AIR 1965 SC
1153 : (1965) 2 SCR 547] , this Court stated that a
decision in a writ petition is res judicata in a
subsequent suit.
167. In Nanak Singh [Union of India v. Nanak Singh,
AIR 1968 SC 1370 : (1968) 2 SCR 887] the question
whether the decision in a writ petition operates as res
judicata in a subsequent suit filed on the same cause of
action has been settled. In Nanak Singh [Union of
India v. Nanak Singh, AIR 1968 SC 1370 : (1968) 2
SCR 887] , this Court observed that there is no good
reason to preclude decisions on matters in controversy
in writ proceedings under Article 226 or Article 32 of
the Constitution from operating as res judicata in
subsequent regular suits on the same matters in
controversy between the same parties and, thus, to give
limited effect to the principle of finality of decision
after full contest.
168. Nanak Singh [Union of India v. Nanak Singh, AIR
1968 SC 1370 : (1968) 2 SCR 887] has been followed
by a three-Judge Bench of this Court in Bua Das
Kaushal [State of Punjab v. Bua Das Kaushal, (1970)
3 SCC 656] . In our view, the rule of res judicata
which is founded on public policy prevents not only a
new decision in the subsequent suit but also prevents
new investigation. It prevents the defendant from
setting up a plea in a subsequent suit which was
decided between the parties in the previous
proceedings. The legal position with regard to rule of
res judicata is fairly well settled that the decision on a
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matter in controversy in writ proceeding (Article 226
or Article 32 of the Constitution) operates as res
judicata in subsequent suit on the same matters in
controversy between the same parties. For the
applicability of rule of res judicata it is not necessary
that the decision in the previous suit must be the
decision in the suit so as to operate as res judicata in a
subsequent suit. A decision in previous proceeding, like
under Article 32 or Article 226 of the Constitution,
which is not a suit, will be binding on the parties in the
subsequent suit on the principle of res judicata.

169. For the applicability of rule of res judicata, the
important thing that must be seen is that the matter
was directly and substantially in issue in the previous
proceeding and a decision has been given by the Court
on that issue. A decision on issue of fact in the previous
proceeding — such proceeding may not be in the
nature of suit — constitutes res judicata in the
subsequent suit.”

87. In view of the above settled legal position, the UOI cannot be
permitted to re-agitate issues already raised and decided by the Supreme
Court in its 1985 decision. The said issues which were decided by a conjoint
reading of the orders of all three judges are:
i. Construction of the new building was with permission;
ii. FAR 360 of the new building was with permission and no
violation of the lease-deed;
iii. Construction of double basement compounded;
iv. Excess basement beyond plinth limit and underground passage
compounded;
v. Regularisation of lease by receiving premium was permitted.
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ON THE ABOVE ISSUES THEREFORE THE DECISION IN EXPRESS
NEWSPAPERS & ORS. V. UOI IS FINAL, IRRESPECTIVE OF WHICH OF
THE THREE JUDGES RENDERED THE FINDINGS.



Issue no. 6: Whether the action of the Union of India in terminating
the lease dated 17th March, 1958 and filing the present
suit is barred by estoppel? OPD

88. The action of termination of the lease on the ground that there was
unauthorized construction or misuse was clearly barred in view of the
various permissions which were given by the Ministry and subsequently by
the DDA. The mere fact that a supplementary lease deed was not entered
into cannot mean that the Union of India is not bound by its decisions. DW1
has deposed that on several occasions the construction is carried out and,
thereafter, the supplementary lease deed is executed. This is a fact of which
judicial notice can also be taken by this Court. The relevant extract of DW-
1’s testimony is set out below:
“Is there any document evidencing the fact that the
defendant was allowed to construct the structure from
edge to edge of the two plots as has been claimed in the
said Para/portion- of your affidavit?
Ans. It was on the basis of the lease agreement dated
26.05.1954 that the defendant no. 1 was allowed to
raise the constructions over 100% of the ground area
of the said two plots.
It is correct that the said document was merely an
agreement for lease.
It is correct that subsequently on 17.03.1958 a
perpetual lease was executed by the plaintiff in favour
of the defendant. It is also correct that as per the
stipulations therein, the defendant was to be governed
by the municipal bye laws and other laws prevailing at
that relevant time.
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It is correct that the construction of the new building
was initiated some time in the year 1978. It is also
correct that the municipal bye laws continues to be
applicable. It is incorrect to suggest that the two
basements constructed in the new building complex are
in the violation of the municipal bye laws. It is
incorrect to suggest that as per bye law 54 of the
Building Bye laws of MCD in the year 1959 and
amended from time to time till 1964, no basement
could have been constructed for any purpose other
than those specified in the bye laws itself. It is correct
that the sanctioned plan has not been placed by the
defendant on the record of this case. (Vol. the plans of
construction were duly approved by the municipal
body. Again said, while the construction had started).”

nd
89. A perusal of the affidavit filed by the Union of India dated 2 April,
1983 in the Supreme Court would show that the stand of the Union of India
therein was as under:
“9. With reference to para 5, it is denied that any
fundamental right of the Petitioners is affected in any
manner whatsoever. It is, however, admitted that plot
Nos. 9 & 10 in the Prese Enclave, were allotted to the
Petitioners and a building was constructed on a plot
measuring 2965 sq.yds. to the east of a sewer line and
the area measuring 2740 sq.yds. to the west of the
sewer line was to be maintained as a ‘green’ area
(lawns, paths and parking). It is denied that necessary
permission/approval under the lease deed had been
obtained by the Petitioners before undertaking the
construction on the residual portion of plot Nos,9 &
10. It is also denied that the Ministry of Works and
Housing, Government of India, had addressed any
communication in this behalf to the Petitioners. Only
copies of letters dt. 24.11.1978 and 1.12.1978,
addressed to the Vice-Chairman, Delhi Development
Authority, were endorsed to Shri RM. Mishra Express
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Building, New Delhi, with reference to his letter dated
21.11.1978 and 1.12.78, respectively. Both these
Letters were issued under the Orders of the
Government and signed by Joint Secretary to the
Government of India . It is submitted that the intention
in forwarding copies of these letters to the party as
well as informing the Land and Development Officer
was that other procedural requirements like those
under the lease deed etc. be processed further. As
stated elsewhere the work relating to administration of
lease deeds is primarily looked after in the Office of the
Land and Development Officer. The Petitioners did not
obtain any approval/sanction from the Office of the
Land and Development Officer in terms of the lease
deed. It is denied that Respondent No. 1 sanctioned the
plan of the New Building.
Under clause 2(14) of the Lease Deed, it is to the
entire satisfaction of the Chief Commissioner that the
Lessee is required to keep the area to the west of the
pipeline admeasuring 2740 sq.yds. as open space i.e.,
as lawn, paths or parking grounds .”

90. A perusal of the above extracted affidavit would show that the
th st
L&D.O. admits having issued letters dated 24 November, 1978 and 1
December, 1978. Subsequently, the above stand was sought to be withdrawn
th
by another affidavit. Be that as it may the contemporaneous letters dated 9
th th st
June, 1978, 4 November, 1978, 24 November, 1978 and 1 December,
1978 would show that the permission was given by the Union of India.
Whenever permission is accorded by the Government, irrespective of
whoever is in power, the same would bind even subsequent Governments.
The plea that the formal Supplementary lease deed was not executed is a
specious plea.
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91. The doctrine of promissory estoppel also known as equitable estoppel
would also be applicable in such cases, where Government of India makes a
promise to any person/organization and such a promise is not contrary to
public interest or in violation of any law, then they cannot refuse to abide by
its promise. This was categorically held by the Supreme Court in Kasinka
Trading v. Union of India, (1995) 1 SCC 274 wherein it observed that the
doctrine will be applicable even against the Government where there is a
need to prevent fraud or injustice. The relevant portion of the judgement has
been extracted below:
“12. It has been settled by this Court that the doctrine
of promissory estoppel is applicable against the
Government also particularly where it is necessary to
prevent fraud or manifest injustice. The doctrine,
however, cannot be pressed into aid to compel the
Government or the public authority “to carry out a
representation or promise which is contrary to law or
which was outside the authority or power of the
officer of the Government or of the public authority
to make”. There is preponderance of judicial opinion
that to invoke the doctrine of promissory estoppel
clear, sound and positive foundation must be laid in
the petition itself by the party invoking the doctrine and
that bald expressions, without any supporting material,
to the effect that the doctrine is attracted because the
party invoking the doctrine has altered its position
relying on the assurance of the Government would not
be sufficient to press into aid the doctrine. In our
opinion, the doctrine of promissory estoppel cannot be
invoked in the abstract and the courts are bound to
consider all aspects including the results sought to be
achieved and the public good at large, because while
considering the applicability of the doctrine, the courts
have to do equity and the fundamental principles of
equity must for ever be present to the mind of the court,
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obligation arising from a solemn promise made by it to
the respondent.
11. Jit Ram Shiv Kumar v. State of Haryana [(1981) 1
SCC 11 : AIR 1980 SC 1285 : (1980) 3 SCR 689]
which slightly differs from the view taken by this court
in the aforementioned decision at any rate would not
help the appellant because it only lays down that the
principle of promissory estoppel cannot be invoked for
preventing the Government from discharging its
functions under the law. Even then, it was held that
when the officer authorised under a scheme enters into
an agreement and makes a representation and a person
acting on that representation puts himself in a
disadvantageous position, the court is entitled to
regulate the officer to act according to the scheme and
the agreement or the representation. The officer cannot
arbitrarily on his mere whim ignore his promise on
some undefined and undisclosed grounds of necessity
or changed the conditions to the prejudice of a person
which had acted upon such representation and put
himself in a disadvantageous position. On this point,
both the decisions concur and the ratio would govern
the decision in this appeal. The respondent acting upon
the solemn promise made by the appellant incurred
huge expenditure and if the appellant is not held to its
promise, the respondent would be put in a very
disadvantageous position and therefore also the
principle of promissory estoppel can be invoked in this
case.
12. Viewing the matter from a slightly different angle
altogether, it would appear that the appellant is acting
in a very unreasonable manner. It is not in dispute that
the appellant is an instrumentality of the Government
and would be “other authority” under Article 12 of the
Constitution. If it be so, as held by this court in R.D.
Shetty v. International Airport Authority of
India [(1979) 3 SCC 489, 511 : AIR 1979 SC 1628 :
(1979) 3 SCR 1014, 1041] the rule inhibiting arbitrary
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after reorganisation of the State of Bihar) to contend
that those decisions do not bind them.”

95. Further, the mere fact that the letters were issued by DDA and copies
were marked to Express Newspapers would not make the said documents
less binding on the Government. Merely because the L&DO may not have
executed the supplementary lease deed also does not render said
construction illegal or unauthorized.
THIS ISSUE IS, ACCORDINGLY, DECIDED IN FAVOUR OF EXPRESS
NEWSPAPERS AGAINST THE GOVERNMENT.



Issue no. 10: Whether the plaint in Suit No. 52/1988 has been signed
and verified and the suit is instituted by a duly
authorized person? OPP

96. No oral submissions have been addressed on this issue. A board
resolution in favour of Mr. P.C. Jain has already been placed on record.
Thus, the suit is held to have been signed by a duly authorized person.

THIS ISSUE IS ANSWERED IN FAVOUR OF THE PLAINTIFF-
EXPRESS NEWSPAPERS

Issue no.11: Whether the Suit No. 52/1988 is maintainable without
compliance of Section 80 of the Code of Civil
Procedure? OPP

th
97. Vide order dated 7 January, 1988, the leave to institute a suit has
been granted by the court and, thus, no further compliance of section 80 is
required.

Issue no. 12: Whether the Suit No. 52/1988 has been valued for the
purposes of court fee and jurisdiction? OPP
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98. The valuation paragraph in suit no. 52 of 1988 is as under:
“That the valuation of the suit for the relief of
Declaration in prayers (1) and (2) is valued at Rupees
Five Lakhs each and for Relief in prayers (3), (4), (5)
and (6) are valued at Rs.200/- each-. The value for
Jurisdiction is Rs.10,00,800/- on which the court fee
due has been paid.”

99. From the above valuation, the prayers for declaration are valued at Rs.
5 lakhs and the remaining reliefs for injunction are valued at Rs. 200/- each.
Prayer 1 and 2 for declaration are primarily in the nature of seeking setting
nd
aside of the two notices of the termination and the notices dated 2
November, 1987 issued to the Express Newspapers and its sub-tenants are
illegal and invalid. Declaratory reliefs, especially when the possession is
with Express Newspapers, has been rightly valued under Section 17(1)(3) of
the Court Fee Act. Thus, no additional court fee would be liable to be paid.
Under Section 17(3) Express Newspapers has only sought a declaratory
decree and since it is already in possession of the plots, no consequential
relief has been sought. Thus, fixed fee would be liable to be paid.
THIS ISSUE IS DECIDED IN FAVOUR OF EXPRESS NEWSPAPERS.

Issue no. 13: Whether the plaintiff is entitled to recovery for
possession of the suit property i.e. Plot Nos. 9 & 10,
Bahadur Shah Zafar Marg? OPP

100. In view of the fact that the Court has held that the notices by which
the lease are terminated are contrary to law as also contrary to the decision
of the Supreme Court, the Union of India is not entitled to possession of the
plot nos. 9 and 10.
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Signing Date:30.08.2024
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THIS ISSUE IS DECIDED IN FAVOUR OF EXPRESS NESWPAPERS.

Issue no. 14: Whether the plaintiff is entitled to a decree for the
recovery of Rs.3,16,54,831/- towards misuse and mesne
profits for the period 29th April, 1982 till 29th
September, 1987? OPP

Issue no.15: Whether the plaintiff is entitled to a decree for recovery
of Rs.54,85,160/- towards the damages for the period
30th September, 1987 to 8th November, 1987? OPP

Issue no.16: Whether the plaintiff is entitled to mesne profits at the
rate of Rs.14,40,335/- per month with effect from 9th
November, 1987?

Issue no.17: Whether the plaintiff is entitled to mesne profits against
defendant nos. 2 to 8 at the rate of Rs.27,29,794/- per
month for unauthorised occupation of the premises for,
the office use of defendant nos. 2 to 8 from 9th
November, 1987? OPP

101. These issues relate to the amounts claimed by the Union of India
under various heads.

COMPUTATION
102. As per the plaint of UOI, the following charges are recoverable from
Express Newspapers:
i. Towards misuse and other charges/mesne profits;
ii. Towards damages/mesne profits for unauthorized occupation
by the tenants i.e., Defendant Nos. 2 to 8, after determination of
the lease;
iii. Towards damages/mesne profits towards unauthorized
occupation of the premises for newspaper press;
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iv. Towards damages/mesne profits towards unauthorized
occupation of the premises for the office use of tenants i.e.,
Defendant Nos. 2 to 8;
103. However, after a reading of the judgement of the Supreme Court, it is
clear that the only amounts payable by Express Newspapers would be
Conversion and Additional Ground Rent. The relevant portion of the
th
Supreme Court Judgment dated 7 October, 1980 in ‘ Express Newspapers
Pvt. Ltd. and Others v. Union of India and Others, 1986 1 SCC 133’ has
been extracted below:
“ 194 . We cannot possibly in these proceedings
under Article 32 undertake an adjudication of this kind
but I am quite clear that Respondent 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 1, the
Union of India that the Central Government were
contemplating to undertake a legislation and to
provide for a forum for adjudication of such disputes.
As stated earlier, we had suggested that the dispute as
to the quantum of conversion charges payable be
referred to the arbitration of an impartial person like a
retired Judge of the Supreme Court of India, but this
was not acceptable to the respondents. The Union of
India may in the contemplated legislation provide for
the setting up of a tribunal with a right of appeal, may
be to the District Judge or the High Court, to the
aggrieved party. If such a course is not feasible, the
only other alternative for the lessor i.e. the Union of
India, Ministry of Works & Housing would be to
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the Ground Rent for occupying the premises since the last several years.
105. Ld. Counsels were repeatedly given an opportunity to file their
respective computations of amounts payable. Initially, UoI submitted a
calculation that it is liable to recover Rs. 17,504 crores ! On the other hand
Express Newspapers submitted a computation claiming that it is liable to
pay a sum of Rs. 14,23,201/- .
106. In the opinion of the Court the computation filed by the UOI is
far-fetched, unreasonable and aggravated to say the least. Despite repeated
opportunities given, the amounts claimed are Rs. 1,75,04,71,31,664/- i.e.,
approx., Rs.17,504 crores. After repeatedly being queried and after change
of various counsels, the amount has been reduced to Rs. 765 crores.
107. In the opinion of this Court, proper computation as per the claim
made in the Plaint and the evidence is not forthcoming from the UOI, this
Court is of the opinion that the various monetary amounts payable would
have to be computed broadly on the basis of the claims made in the Plaint of
the Union of India itself.

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A. Conversion Charges
108. As per schedule B of the plaint, the amount demanded by the Union
of India as conversion charges is as under:

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109. This amount is being charged as conversion charges for the change of
use of 2740 sq. feet open area from open/green area to buildable area for
newspaper use. The Court has already held that proper permissions were
obtained by Express Newspapers for re-locating the drain and for
construction in the said green area. The discussion in paragraphs 9-11 and
74 above would show that initially the building was to be located in the said
green area itself. It was only due to location of the drain that the area was
th
shown as green area in the supplemental lease deed dated 17 November,
1964. The said area is not notified green area and was agreed to be kept as
green due to compelling circumstances only. Accordingly, the conversion
charge as demanded by the Union of India for the said area is allowed but
with simple interest @ 18% per annum for a period of approximately 46
years. The amounts payable under this head is, therefore, determined as
under:

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Signing Date:30.08.2024
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B. Additional Ground Rent
110. Additional Ground Rent (hereinafter ‘ AGR ’) initially in the plaint for
the construction on the green space is sought in terms of Schedule B of the
Plaint filed by Union of India @ Rs.1260 p.a. as under:

“2. Additional ground rent/AGR payable per annum on this
amount
= conversion charges for green space x 2 ½%
= Rs.50,385/- x 2 ½% = Rs.1259.6 p. or Rs.1260/-
P.A.”

th
111. The above stated amount is payable from 9 January, 1979. In
addition, the Court has today held that the construction of the basements was
authorized and there was no misuse. However, Additional Ground Rent
would be liable to be paid for the said space. No demand was raised by the
time the suit was filed. In view thereof, the Court relies upon the chart which
has been handed over by the L&DO wherein Additional Ground Rent is
sought for the second basement/mezzanine in the new building @Rs. 2993/-
th th
p.a. for 10426 sq. ft. from 29 April, 1982 to 14 January, 2024.
112. Further, Additional Ground Rent would also be payable for the
basement area in the new building as claimed by the Union of India @
th th
Rs.2080/- p.a. for14,440 sq. ft. from 29 April, 1982 to 14 January, 2024.
Thus, Additional Ground Rent would be liable to be paid for the following
three components:
th
i. for the green space @ Rs.1260/- p.a. from 9 January, 1979 ;
th
ii. for the second mezzanine/basement @ Rs.2993/- p.a. from 29 April,
1982 along with,
iii. the basement of the new building @ Rs.2080/- p. a. with effect from
th
29 April, 1982.
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113. The amount payable is determined as under:
B1. AGR for Green Space