Judgment sc-s-1985-3-382-564

D any building, or execute any of the works specified in s. 334 except with the previous sanction of the Comnissioner, nor otherwise than in accordance with the provisions of this Chapter (Chapter XVI) and of the bye-laws made under this Act in relation to the erection of buildings or execution of works. S.334(1) - provides that every person who intends to carry on any work of the type indicated e.g. in addition to or alterations in any building or the repairs or alterations of the kind specified shall apply for sanction by giving notice in writing of his intention to the Commissioner in such form and containing such E information as may be prescribed by bye-laws Mde in that behalf. s. 336(1) provides that the Commissioner shall sanction the erection of a building or the execution of a work unless such building or work would contravene any of the provisions of sub-s(2) of that section. Sub-s.(2)(a) provides for one of the grounds on which sanction of building or work may be refused viz. F where such building or work or the use of the site for the building or work would contravene the provisions of any bye-law made in that behalf or of any other law made in such other law. Sub-s. (3) provides that the Commissioner shall colilllUnicate the sanction to the person who has given the notice; and where he refuses sanction on any of the grounds specified in sub-s.(2) or under s. 340 he shall record a brief statement of his reasons for G such refusal and communicate the refusal alongwi th the reasons therefor to the person who has given the notice. s.343(1) provides inter alia that where the erection of any building or ·execution of any work has been comnenced, or is being carried on, or has been completed without or contrary to the sanction l! referred to in s. 336..... The Comnissioner may in addition to

liXPRESS NEWSPAPERS V• U.O.I. [A.P. SEN, J.] 467

A any other section that may be taken under the Act, make an order directing that such erection or work shall be demolished. Proviso thereto enjoins that no such order of demolition shall be made unless a person has been afforded a reasonable opportunity of showing cause by a notice in writing as to why such order shall not be made· Sub-s.(2) provides that the person aggrieved may B prefer an appeal against an order of demolition passed under sub-s.(l) to the District Judge. Sub-s.(3) confers power on the District Judge to order stay of demolition. Sub-s.(5) thereof provides that the order made by the District Judge on appeal and subject only to such order, the order of demolition made by the Connnissioner shall be final and conclusive. Likewise s. 344(1) c provides that where the erection of any building or execution of any work has been commenced or is being carried on but has not been completed, without or contrary to the sanction referred to in s. 336 or in contravention of any conditions subject to which ,• sanction has been accorded or any contravention of any of the provisions of this Act or bye-law made thereunder, the Connnis- D sioner may by order require the person at whose instance the building or work has been commenced or is being carried on to stop the same forthwith. The remaining sub-sections of s•344 are, slmilar to those as contained in s.343. I may now proceed to deal with the questions that have been raised· E Maintainability of the Writ petitions Wider Art. 32 of the Constitution.

The contention that these petitions are not maintainable under Art.32 of the .Constitution leaves me cold. Some of the crucial questions that arise have been formulated hereinbefore. These are: (1) Whether the impugned notice of re-entry upon F forfeiture of lease dated March 10, 1980 issued by the Engineer Officer, Land & Development Office under cl.5 of the lease-deed and that of the Zonal Engineer (Building), City Zone, Municipal Corporation, Delhi dated March 1, 1980 to show cause why the Express Buildings should not be demolished as unauthorized construction un•ler ss. 343 and 344 of the Delhi Municipal G Corporation Act, 1957 were arbitrary and irrational without any factual basis and were therefore violative of Art. 19(l)(a) read with Art. 14 of the Constitution. (2) Whether the Lt. Governor was a successor of the Chief Comnissioner of Delhi in terms of the lease-deed and whether by virtue or the notification issued by the President under Art. 239(1) of the Constitution, he could exercise any power in relation to lease of Government lands in H the Union Territory of Delhi. (3) Whether under the paramount law

468 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.

A i.e. the Delhi Development Act, 1957, the Master Plan for Delhi and the Zonal Development Plan for D-Il area, the permissible FAR prescribed for buildings constructed in the Press Enclave on the Mathura Road Comnercial Complex was 400. And ( 4) Whether the new Express Building constructed with an increased FAR of 360 with a double basement for installation of the printing press for B publication of a Hindi newspaper, with the permission of the lessor, the Union of India, Ministry of Works & Housing, constitutes a breach of the Master Plan or the Zonal Ile'lelopment Plans or clauses 2(5) and 2(14) of the lease-deea. These questions which obviously arise on these petitions under art. 32 of the Constitution and any direction for quashing the impugned notices must necessarily involve determination of these c questions. I regret that my learned brother Venkata1'amiah, J. proposes to express no opinion on the questions on which, in my view, the Writ Petitions turn.

The question at the very threshold is: Whether these petitions under Art. 32 are maintainable. Learned counsel appearing for the Union of India raised a preliminary objection D which he later developed as his main argument in reply. First, there was in the present case no question of infraction of the freedom of the press comprehended within ·the freedom of speech and expression guaranteed under Art. 19(l)(a) but the enforcement of the Master Plan for IJelhi and the Zonal Development Plan framed under the Delhi Development Act, 1957 and the Delhi E Municipal Corporation (Building) Bye-laws, 1959 may at the most amount to a restriction on the fundamental rights of the petitioners to carry on their business guaranteed under Art. 19(1)(g). Secondly, the right to occupy the land leased for the construction of a building for installation of a printing press is not within Art.19(l)(a) nor within Art. 19(l)(gJ. but such a F right is derived from a grant or contract. Such a right is certainly not within the content of Art.19(l)(a) or Art. 19(l)(g). It is argued that the right arising out of a statute or out of a contract cannot be a fundamental right itself. Once a contract is entered into or a grant is made, the rights and obligations of the parties are not governed by Part III of the G Constitution, but by the terms of the document embodying the contract or the grant, and any complaint about the breach of the same, cannot be even a matter for the application for the grant of a writ, direction or order under Art. 226 of the Constitution, much less under Art.32. These contentions plausible though i t may seem at first blush, are, on closer scrutiny, nor H well-founded. They ignore the true object and purpose for which

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 469

A the grant was made, namely, for the construction of a building or installation of a printing press for publication of a newspaper and the direct and immediate effect of the impugned notices for re-entry upon forfeiture of lease and the threatened demolition of the Expre•s Buildings built on the leasehold premises under cl.5 of the lease-deed for alleged breach of els. 2(5) and 2(14) B thereof and wrder ss. 343 and 344 of the Delhi )hinicipal Cor- poration Act, 1957 when the said buildings had been constructed with the permission of the lessor i.e. the Union of India, Ministry of Works & Housing, and in conformity with the Master Plan and the Zonal Development Plan for D-ll area· as well as with the sanction of the Municipal Corporation of Delhi and therefore must amount to a violation of the freedom of speech and expression enshrined in Art. 19(l)(a). I am not impressed at all with the submissions of learned counsel for respondent no .1 that the forfeiture of lease or the threatened demolition of the Express Buildings does not touch upon the right guaranteed under Art. 19(l)(a) as the petitioners can still shift the printing press to an alternative accommodation.

It is argued by learned counsel appearing for the petitioners that the main thrust of the impugned notice of re-entery dated March 10, 1980 by the Engineer Officer, Land & Development Office purporting to act on bahalf of the lessor, the .E Union of India, Ministry of Works & Housing under cl.5 of the indenture of lease dated March 17, 1958 requiring the Express Newspapers Pvt. Ltd. to show cause why the Union of India should not re-enter upon and take possession of plots nos. 9 and 10, Bahadurshah Zafar Marg together with the Express Buildings ,built thereon for alleged breach of els. 2(5) and 2(14) of the lease-deed and that of the earlier notice dated March 1, 1980 F issued by the Zonal Engine-er (Building), City Zone, lilnicipal Corporation, Delhi requiring them to show cause why the aforesaid buildings should not be demolished under ss. 343 and 344 of the Delhi Municipal Corporation Act, 1957 waa a direct threat on the freedom of the press guaranteed under Art.19(l)(a) of the Constitution. He contends that the impµgned notices were intended and meant to bring about a closure of the Indian Express and not so much for the professed enforcement of laws governing building regulations the Delhi Development Act, 1957, the Master Plan for Delhi and the Zonal Development Plan for D!.ll area for the Muthura Road Commercial Complex framed thereunder or the Delhi Municipal Corporation Act, i957 and the Delhi Municipal Corporation (Building) Bye-laws, 1959. He further contends that the respondents cannot be_ permitted to traverse beyond the

470 SUPREME COURT REPORTS [1985] SUPP.3 S.C.R.

A pleadings of the parties as contained in the counter affidavit of respondent no.2 filed on behalf of the respondents and the supplementary affidavit of M.K. Mukherjee, Secretary, Ministry of Works & Housing, or the terms ·of the impugned notices. In an attempt to justify the illegal, arbitrary and irrational governmental and statutory action which was wholly mala fide and B politically motivated, he particularly drew our attentioii'"tO the terms of the impugned notice issued by the Engineer Officer, Land & Development Office dated March 10, 1980 which purport to forfeit the lease under cl. 5 of the lease-deed. On two grounds, namely: ( 1) The additional cons true tion of tile new Express Building by Express Newspapers Pvt. Ltd. on the western portion of plots nos. 9 and 10 i.e. the land to be kept open as 'green', C was without taking permission of the lessor under the terms of the lease-deed. And (2) The building plans were not submitted for sanction of the lessor under the terms of the lease and thus there was contravention of els· 2(5) and 2(14) of the lease-deed. He also pointed out that the impugned notice of the Zonal Engineer (Building), City Zone, Municipal Corporation, Delhi dated March 1, 1980 was on t~e ground that the Express Newspapers 0 Pvt. Ltd. had started unauthorized construction of excess base- ment beyond sanction and construction of upper basement without sanction as shown in red in the sketch plan annexed thereto and that these were therefore unauthorized constructions liable to be demolished u~der ss. 343 and 344 of the Delhi Municipal Corpora- tion Act, 1957. According to the learned counsel, the impugned notices were based on grounds which were factually incorrect.

Learned counsel further pointed out that the impugned notice of the Engineer Officer nowhere suggests that the construction of the said building with an increased FAR of 360 was in breach of the Master Plan or the Zonal Development Plan for D-II area framed under the Delhi Development Act or of the Building Bye-laws made under the Delhi Municipal Co1·poration Act, 1957. The contention is that the said building with an increased FAR of 360 together with a double basement for installation of a printing press for the publication of a Hindi newspaper was with the expres1 sanction of the lessor i.e. the Union of India, G Ministry of Works & Housing accorded to the ExpreH Newspapers Pvt. Ltd. which had duly submitted the building palns for grant of requisite sanction. In the premises, it ia submitted that each of the a true tures was cons true ted w1 th the express sane ti on of the lessor, and the Delhi Development Authority granted under the Ualhi Development Act, 1957 which was the paramount law on the subject. It i1 urged that the re-entry upon forfeiture of lease

EXPRESS NEWSPAPERS V• u.o.r. [A.F. SEN, J.] 471

or the threatened demolition of the new Express Building with the double basement where the printing press is installed for publication of the Hindi newspaper Jansatta will result in snuffing out the Indian Express as a newspaper altogether although it has the largest. combined net sales among all daily newspapers in India. The learned counsel particularly emphasized the fact that the Express Buildings at 9-10, Bahadurshah Zafar B Marg from the nerve-centre of the Express Group of Newspapers in general and the Indian Express in particular as the teleprinter is installed therein. we are informed that the editorials alld the leading articles of the Indian Express are sent out and the editorial policy laid down from the Delhi office to ten centres all over India. As already stated, the Indian Express as a c newspaper is simultaneously published from Ahmedabad, Bangalore, Bombay, Chandigarh, Cochin, Delhi, Ryderabad, ~iadras, Madurai, Vijaywada and Vizianagaram. In this factual background, the learned counsel contends that the impugned notices have a direct impact on the freedom of the press and being in excess of governmental authority and colourable exercise of statutory powers, are liable to be .struck down as offendit16 Art. 19(1)(a) read with Art. 14 of the Constitution. Re contends that the test laid down by this Court in Bennett Colemau & Co. & Ors. v. Union of lDdia & Ors. [1973] 2 s.c.R. 757, is whether the direct· and immediate impact of the impugned action is ~n the frePdom of speech and expression guaranteed under Art. 19(1)(a) which includes the freedom of the press. According to him, that test. is clearly fulfilled in the facts and circumstances of the present case. In my considered view, the contention of the learned counsel for the petitioners must prevail.

I regret my inability to accept the contention to the contrary advanced by learned counsel appearing for respondent no.l indicated above that the petitioners are seeking to enforce a contractual right and therefore the questions raised cannot be decided on a petition under Art.32 of the Constitution, It is urged that the content of the fw!damental rights guaranteed in Part III of the Constitution demarcate the area within which the jurisdiction of the Court under Art. 32 can operate and thet it is not permissible for the Court to enlarge upon its jurisdiction by a proce&& of judicial interpretation. Placing reliance on certain observations of Ayyangar, J, in All Illdia llllllk Employees' Auociation Vo National hldustr1al Tribunal & Orso [ 1962] 3 s.c.R. 269, and of Chandrachud and Bhagwati, JJ, in Malleka Gandhi v. 1Jll1on of lDdiA [1978] 2 s.c.R. 621, it is urged that the content of Art. 19(1)(a) of the Constitution would not include H

472 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.

the right which is guaranteed by other clauses of Art.19. Accord- ing to the learned counsel it must therefore logically follow that what facilitated the exercise of a fundamental right did not for that reason become a part of the fundamental right itself. lie ti read out different passages from the judgments of Bhagwati, J. in E.P. lloyappa v. State of Tamil lladu & Aor., [1974 J 2 s.c.a. 348, llaneka Gendb1 v. Union of India (supra) and l!alllana nsyaraa Sbetty v. Int.ematiooal Airport Authority of India Ltd. & Ors·, (1979] 3 s.c.l\. 1014, and endeavoured to show, to use his own language, that "inspite of some literal flourish in the language here and there, they did not and could not depart from the ambit of Art. 14 which deals with the principle of equality embodied in the Article". He was particularly critical of the decba of lihagwati, J. in International Airport Authority's case that "arbitrarineas was the anti thesis of Art. 14"' and comnented that this would mean that all govermnental actions which are not supportable by law were ~~violative of Art. 14. I am afraid, it is rather late in the day to question the correctness of the landmark decision in llaneka Gaodhi 's case and the innovative construction placed by l!hagwati, J. on Art. 14 in the three cases of lloyappa, llaneka Gendb1 and Int.ematiooal Airport Authority (supra), which have evolved new dimensions in judicial process.

It is also urged that the argument of learned counsel appearing on behalf of the petitioners that the building in question is neceasary for running the press and any statutory or executive action to pull it down or forfeit the lease would directly impinge on the right of freedom of speech and expression under Art. 19(l)(a) is wholly misconceived inasmuch as every activity that may be necessary for exercise of freedom of speech and expression or that may facilitate such exercise or make it nieaningful and effective cannot be elev11ted to the status of a fundamental right as if it were part of the fundamental right to free speech and expression. It is further urged that the right to the land and the right to construct buildings thereon for running a printing press are not derived from Art. 19(l)(a) but spring from the terma of the grant of such lands by the Government under the provisions of the Government Grants Act, 1895 and regulated by other laws governing the subject viz. the Delhi Development Act, 1957, the Master Plan and the Zor.al Developmen:t Plans framed thereunder, the Delhi Municipal Corporation Act, 1957, and the Delhi Municipal Corporation (Building) Bye-laws, 1959 which regulate construction of buildings in the Union Territory of Delhi irrespective of the purpose for which the building is constructed. It is also urged that even on a question of fact,

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 473

the direct impact of the impugned no.tices will not be on the double basement wherein printing press is installed but will be wholly or in part on the two upper storeys which are not intended to be used in relation to the press or for pui>lication of the intended Hindi Newspaper but only for the purpose of letting out the same for profit; the only other possible effect may be the removal of the upper basement which the petitioners call a working platform which has been constructed in violation of the building regulations.

Learned counsel for respondent no. l, the Union of India accepts that the right to carry on the business of printing and publication of a newspaper and installation of a printing press for that purpose is undoubtedly a fundamental right guaranteed c both under Arts. 19(l)(a) and 19(l)(g) but the right to occupy the land or construct suitable structures thereon for the business of a printing press on .such land is not within Art. l'9(l)(a) nor within Art. 19(l)(g). If it were, the Delhi Municipal Corporation Act or the Delhi Development Act, and the Master Plan or the Zonal Development Plan and the Building D Bye-laws would be totally ineffectual. Such restrictions cannot be placed even though in the interest of ·the general public as they would not fall within Art.19(Z). If, in respect of the building in question, the right to occupy such land is to be considered as comprehended in the right of freedom of speech and expression guaranteed by Art.19(l)(a), then inevitable conse- E quence would be that neither the provisions of the Delhi Develop- ment Act nor the Delhi Municipal Corporation Act nor the Master Plan or the Zonal Development Plans or the Building Bye-laws would be applicable so as to control the building activities of the petitioners. It is said that the irresistible conclusion, therefore, ought to be that the fundamental right of freedom of speech and expression of a person under Art.19(l)(a) cannot extend to the continued occupation of a place where such right is derived from a grant or contract. Such a right is certainly not within the content of Art.l9(l)(a) or Art• 19(l)(g). I t is accordingly argued that the right arising out of a statute or out of a contract cannot be a fundamental right itself. Orice contract is entered into or a grant is made, the rights and obligatioIUl of the parties are not governed by Part III of the Constitution, by the terms of the document embodying the contract or the grant, and any complaint about the breach of the same, cannot be even a matter for application for grant of a writ, direction or order under Art. ZZ6 of the Constitution much less under Art. 3Z. In substance, the su'cmission is that the right to run a press may be a fundamental right guaranteed under Art. l9(l)(a) or Art. II

474 SUPREME COURT REPORTS (1985] SUPP.3 s.c.R.

19(l)(g) but the right to use a particular building for running a A press is altogethP.r another thing inasmuch as no particular building ~s eo.ually fit for the runniu.g cf the press and the person desiring to run a press or already running the press is at liberty to acquire another suitable building for that purpose. Further, even if the buildings in question were necessary for the enjoyment of the rights under Art. 19(l)(a) or Art.19(l)(g), a ll right to use a particular building does not become an ' integral part of the right to freedom of speech and expression' or ·the 'right to carry on any trade or J>usiness in printing and publish- ing a newspaper' and clearly therefore the petitions under Art. 32 were not maintainable. I am afral.d, the contentions are wholly misconceived and cannot be accepted. c Here, the very threat is. to the existence of a free and independent press. It is now firmly established by a series of decisions of this Court anj is a rule written into the Constitution that freedom of the press is comprehended within the right to freedom of speech and expression guaranteed under Art. 19(1)(a) and I do not wish to traverse the familiar ground over again except to touch upon certain landmark decisions. In llomeah )) 'J:bappar v. State of Madras, [1950] s.c.R. 594,· the Court observed that the Founding Fathers realized that freedoms of speech and of the press are at the foundation of all democratic organizations, for without free political discussion no public education, so essential for proper functioning of the processes of popular Government, is possible. In Sakal Papers (P) Ltd. v. Union of E Ind1a1(1962] 3 s.c.R. 842, the Court reiterated :

"That the freedom of speech and expression guaranteed under Art. 19(l)(a) of the Constitution includes the freedom of press i.e. the freedom of propagation of ideas, and that freedom is ensured by the freedom of F circulation. Liberty of circulation is as essential to that freedom as the liberty of publication. Central to the concept of a free press is freedom of political opinion and at the core of that freedom lies the right to criticiae the Government, because it is only through free debate and free exchange of ideas that G Government remains representation to the will of the people and orderly change ia effected. When avenues of political expression are closed, Government by consent of the governed would soon be foreclosed· Such freedom ie the foundation of free Government of a free people. Our Government aet up being elected limited end

EXPRESS NEWSPAPERS v. U,O,J., [A.P. SEN, J.] 475

responsible we need requisite freedom of any A animadversion for our social interest which ordinarily demands free propagation of views. Freedom to think as one likes and to speak as one thinks at·e as a rule indispensable to the diacovery and separate of truth and without free speech, discussion cay be futile." B llomesh Thappar's case was cited with approval in Expreaa llewapapera (P) Ltd. & Anr. v. Union of India & Ora. (1959] .s.c.R. 12@ 120, There is in the Express Newspapers 1 case an elaborate discussion of the freedom of the press at PP• 118-128 of ~he Report. The Express Newspapers' case and also the case of Sakal Papers were cited with approval by the Court in Bennett Coleman. c The principle ie too well-settled to need any more elaboration.

I would only like to stress that the freedom of thought and expression, and the freedom of the press are not only valuable freedoms in themselves but are basic to a democrstic form of Government which proceeds on the theory that problems of the D 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 vitdl 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 E of everyone to comment freely upon any matter of public importance. This right is one of the pillars of individual liberty-freedom of speech, which our Court has always unfailingly guarded. I wish to add that however precious and cherished the freedom of speech is under Art.19(l)(a) 1 this freedom is not absolute and unlimited at all ti'UeS and under all circumstances but is subject to the restrictions contained in Art. 19(2), That F 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. G

In Bennett Co1-'a case the Court indicated that the extent of permissible limitations on this freedom are indicated by the fundamental law of tha land itself viz. Art. 19(2) of the Constitution. It was laid down that permiseible restrictions on

476 &llPREME COURT REPORTS [1985] SUPP.3 s.c.R.

A any fundamental right guaranteed under Part III of the Constitu- tion have to be imposed by a duly enacted law and must not be excessive i.e. they must not go beyond whar. is necessary to achieve the object of the la~ under which they are sought to be impoaed. "The power to impose restrictions on fundamentai rights is essentially a power to 'regulate' the exercise of those B 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 oraer to satisfy the test of reasonableness." The Court also dealt with the extent of permissible limitations on the freedom of speech and exprP.ssion guara."lteed under Art.19(l)(a). The test laid down by the Court in lleunett coleman's case is whether the direct and inmediate impact c vf the impugned action is on the freedom of speech and expression guaranteed under Art. 19(l)(a) which includes the freedom of the press. It was observed that the restriction on the number of pages, a restraint on circulation and a restraint on advertize- ments would affect the fundamental right under Art.19(1 )(a) on the aspects of propagatl.on, publication and circulation of a n•'WSpaper. In repelling the contention of the learned Additional D Sollcitor~neral that the newsprint policy did not violated Art. 19(l)(a) as it does not direct and immediately deal with the right mentioned in Art. 19(l)(a), the Court held that the test of pith and substance of the subject-matter and of direct and inci- dental effect of legislation are relevant to questions of legis- lative competence but they are irrelevant to the question of E infringement of fundamental rights. The true test, according to the Court, is whethP.r 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 catter and the restriction sought to be imposed by the impugned newsprint policy was, in substance, a F newspaper control i.e. to control the number of pages or circu- lation of dailies or newspapers and such restrictions were clearly outside the ambit of Art. 19(2) of the Constitution and therefore were in abridgement of the right of freedom of speech and expression guaranteed under Art. 19(l)(a), and it added : G "The ·Newsprint Control Policy is found to be newspaper control order in the guise of framing an Import Control Policy for newsprint.

This Court in the Bank Nationalisation case (supra) laid down two tests. First it is not the object of the H authority making the law impairing the right of the

EXPRESS NEWSPAPERS v. u.o.r. [A.P. SEN, J.] 477

A citizen nor the form of action that determines the invasion of the right. Secondly, it i• the effect of the lsw and the action upon the right which attracts the jurisdiction of the court to grant relief. The direct operation of the Act upon the rights forms the real test. B

••• No lsw or action would state in words that rights o): 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." c

We have only to substitute the word 'executive' for the word 'lsw' 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 D silence the voice of the Indian Express. It must logically follow that the impugned notices constitute a direct and imnediate threat to the freedom of the press and are thus violstive of Art. 19(l)(a) read with Art.14 of the Constitution. It must accordingly be held that these petitions under Art. 32 of the Constitution are maintainable. r The Government Grants Act, 1895 : Section 3: Purport & E

Effect of: Whether the notice of re-entry upon forfeiture of lease was valid and enforceable due to non-compliance of clsuse 6 thereof.

It is coonnon ground that the perpetual lease was a I! Government grant governed by the Crown Grants Act, 1895, now known as the Government Grants Act. The Act is an explsnatory or declsratory Act; Doubts having arisen as to the extent and operation of the Transfer of Property Act, 1882 and as to the power of the Government to impose limitations and restrictions upon grants and other transfers of land made by it or under its G authority, the Act was passed to remove such doubts as is clear from the long title and the preamble. The Act contains two sections and provides by s.2 for the exclusion of the Transfer of Property Act, 1882 and, by s.3 for the exclusion of, any rule of lsw, statute or enactment of the l.egislsture to the contrary. Ss.2 and 3 read as follows : H "2. Transfer of Property Act, 1882. no: to apply to Government grants-

478 SUPREME COURT REPORTS [1985] SUPP.3 s.c.a.

A Nothing in the Transfer of Prope1·ty Act, 1882, contained shall apply or be deemed over to have applied to any grant or other transfer of land or of any intereot therein heretofore made or hereafter to be made by or on behalf of the government to, or in favour of, any person whomsoever; but every such grant B and transfer shall be cons trued and take effect as if the said Act had not been passed."

"3. Goverment grants to take effect accordiDg to their tenor-

All provisions, restrictions, conditions and limitations over contained in any such grant or c transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enacbnent of the Legislature to the contrary notwithstanding."

It is plain upon the terms that s.2 excludes the operation of the Transfer of Property Act, 1882 to Government grants. While D s. 3 declares that all provisions, restrictions, conditions and limitations contained over any such grant or transfer as aforesaid shall be valid and shall take effect according to their tenor, notwithstanding any rule of law, statute or enactment of the Legislature to the contrary. A series of judicial decisions have determined the overriding effect of s.3 making it amply E clear that a grant of property by the Government partakes of the nature of law since it overrides even legal provisions which are contrary to the tenor of the document.

Learned counsel appearing for res~ondent no. l, the Union of India, fairly conceded that the impugned notice of re-entry upon forfeiture of lease dated March 10, 1980 issued by the Engineer Officer, L&DO purporting to be on behalf of the lessor i.e. the Uriion of India under cl. 5 of the indenture of lease dated March 17, 1958 was invalid and had no le;;al effect since there was non-compliance of the mandatory requirements of cl.6 thereof. But as a very astute counsel he sought to evolve an argument contrary G to the stand taken in the counter-affidavit filed by respondent no.2 on behalf of all the respondents and the supplementary affidavit of M.K. Mukherjee, Secretary, Ministry of Works & Houaing that the 'breach was irremediable' and therefore the lessor i.e. the Union of India acting through the Land & Development Officer (L&OO) was entitled to serve a notice under H

EXPRESS NEwSPAPERS v. u.o.r. [A.P. SEN, J.] 479

cl.5 for re-entry upon forfeiture of lease. He contended that the impugned notice was, in reality, not a notice of forfeiture under cl.5 of the lease-deed but it was merely of an exploratory nature to afford petitioner no.l Express Newspapers Pvt. Ltd. to have its say before the L&DO as to whether the construction of the new Express Building with an increased FAR of 360 was in violation of the Master Plan or the Zonal Development Plans or. the building bye-laws i.e. contrary to the terms of the lease, and that it was for the L&IJO to be satisfied as to whether there wa" a breach of the terms of els. 2(14) and 2(5) of the lease and that in the e-vent of his reaching that conclusion, to proceed to serve the lessee with a notice of re-entry uppn forfeitu~e of lease under cl.5 learned counsel appearing for respondent no.5 L&DO has c placed before us a detailed note explaining the prevailing practice followed by the L&DO in such case. The meaning and significance of the note !s that the show cause notice under cl.5 served by the L&IJO is merely a preliminary step affording the lessee an opportunity to settle tile terms and conditions with the wncurrence of the Ministry of works & Housing, offered by the· D lessor for condonation of such breacn. In the "event the lessee fails to comply with such terms, the L&DO withdraws the terms offered and then calls upon the lessee to remove or remedy the misuse or breach within 30 days. If there is failure on the part of the lessee to remedy such breach within the tim.e allowed, the L&OO processes the case for exercie,:e by the lessor i.e.. the Union E of Ind~a of its rights to re-enter upon forfeiture of lease under cl. 5 of the lease-deed. It ie said that according to the prevailing practice in respect of such leases i.e. pre 1959 leases of the kind held by petitioner no. l Express Newspapers Pvt. Ltd., the approval of th~ Lt. Governor is considered a condition precedent to a final order of re-entry which is served on the lessee after such approval is accorded by the Lt. F Governor. In terms of the order of re-entry the lessee is requested to hand over possession peacefully to the L&DO within a reasonable tin..e. However, if the lessee does not hand over possession voluntarily in pursuance of L&OO' s letter, the L&DO files an application under s. 5(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. Under s.8 of the Act the Estate Officer has the same powers that are vested in the Civil Court under the Code of Civil Procedure, 1908, in trying a suit in respect of matters mentioned therein. The Estate Officer has to form an opinion that the lessee was in unauthorized occupation of any public premises and that he should be evicted whereupon the Estate Officer issues a notice under s.4 by calling upon all persons concerned to show cause why an order of evictlon H

480 SUPREME COu'llT REPORTS [1985] SUPP.3 s.c.R.

A should not be passed. Under s.9 of the Act the person aggrieved has the remedy of an appeal to the District Judge and thereafter he may move the High Court under Art. 226 of the Constitution.

I am not at all impressed by any of these submissions advanced on behalf of the respondents. There can be no doubt whatever on a true construction of the impugned notice dated March 10, 1980 that the Engineer Officer, Land & Development Office purporting to act on bahalf of the lessor i.e. the Union of India, Ministry of Works &Rousing served a notice of re-entry upon forfeiture of lease under cl.5 of the lease-deed. There was no question of the said notice being construed to be of an exploratory nature. The note prepared by the L&DO is nothing but an afterthought. In the view that I take that respondent no.2 is not the successor of the Chief Conmissioner of Delhi nor has any function in relation to the lease. There is no warrant for thE:: suggestion that prior approval of the Lt. Governor is a condition precedent to the right of the lessor i.e. the Union of India to exercise its right to re-entry upon forfeiture of lease under cl.S of the lease-deed. D There are two decisions of this Court which appear to be contradictory. In Bisban Das & Ors. v. State of Punjab & Ors. [1962] 2 S.C.R. 69, a Constitution Bench of this Court speaking through S.R. Das, J. in somewhat simil"r circumstances allowed the petition under Art.32 of the Constitution directing restoration of possession to the lessee who had been dispossessed from land granted by the Government by display of f0rce. What had happened was this. One Ramjidas built a dharamsala, a temple and shops appurtenant thereto with the joint family funds on Government land with the permission of the Government. After his death the other members of the family who were in management and possession of those properties were dispossessed by the State Government of Punjab at the instigation of ,a member of the ruling Congress party. The petitioners applied to the Punjab.High Court for issue of appropriate writs under Art.226 of the Constitution but the petition was dismissed in limine on the preliminary ground that the matter involved disputed questions of fact. An G appeal under cl.10 of the Letters Patent was also dismissed on the same ground. The petitioners then moved this Court under Art.32. The State Government sought to justify the action on the ground that the petitioners were merely trespassers as the land on which the dharamsala stood belonged to the State, and the respondents were entitled to use the minimum of force to eject the trespassers. It was also contended that there was a serious

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J. J 481

dispute on questions of fact between the parties and also whether the petitioners had any right or title to the subject matter in dispute and therefore proceedings by way of a writ were not appropriate in the case inasmuch as the decision of the Court would amount to a decree declaring a party's. title and ordering restoration of possession. The Court repelled both the contentions as unsound and held that the petitioners had made out B a clear case of violation of their fundamental rights. As to the contention that the petitioners were mere trespassers, tl)e Court held that the admitted· position was that the land belonged to the State; with the permission of the State, Ramjidas on behalf of the joint family firm of Faquir Chand Bhagwan Das built the dharamsala, temple and shops and managed the same during his c lifetime. After his death the petitioners, other members of the joint family continued in possession and management. On this aJmitted position, it was held that the petitioners could not be held to be mere trespassers in respect of thP. dharamsala, temple and shops; nor could it be held that the dharamsala, temple and shops belonged to the State irrespective of the question whether the trust created was of a public or private nature, and it was observed :

"It is, therefore, impossible to hold that in respect of the dharamsala, temples and shops, the State has acquired any rights whatsoever merely by reason of their being on the land belonging to the State. If the State thought that.the constructions should be removed or that the condition as to resumption of the land should be invoked, it was open to the State to take appropriate legal action for the purpose."

As to the second contention, the Court observed : F

"It was enough to say that they are bona fide in possession of the constructions in question and could not be removed except under authority of law. The respondents clearly violated their fundamental rights by depriving them of possession of the dharamsala by G executive orders."

The Court accordingly quashed the orders and issued a writ of mandamus directing restoration of the property. The Court felt its duty to pass strictures against the Government :

''We feel it our duty to say that the executive action Ii .taken in this case by the State and its officers is destructive of the basic principle of the rule of law.

482 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.

A The facto and the position in law thus clearly are (1) that the buildings constructed on this piece of Government land did not belong to Government, (2) that the petitioners were in possession and occupation of the buildings and (3) that by the virtue of enactments binding on the Government, the petitioners could be dispossessed, if at all, only in pursuance of a decree of a Civil Court, obtained in proceedings properly initiated. In these circumstances the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal require- c ments of the rule of. law apart from what might legiti- mately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion of the executive of peaceful possession of property."

D The Court also adverted to the earlier decision in Wa.zir Chand v. State of H.P., [1955] l s.c.R. 408, where it was held that the State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts, and to Baa Prasad Narayan Sabi V• State of Bi.bar, [1953] s.c.R. 1129, where the Court said that nothing is more likely to drain the vitality from the rule of law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability which is not imposed upon the others, and concluded :

"We have here a highly discriminatory aod autocratic act which deprives a person of the possession of property without reference to any law or legal authority. Even if the property was trust property it is difficult to see how the Municipal Comnittee, Barna.la, can step in as trustee on an executive determination only. The reasons given for this extraordinary action are, to quote what we said in Sabi 's case (supra), remarkable for their disturbing implications•"

In the later case of State of Orissa V• Baa Chandra Dev, A.I.R. 1964 s.c. 685, Gajendragadkar, J. delivering the judgment of the Constitution Bench observed :

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J. J 483

"Oridinarily, where property has been granted by the A State on condition which make the grant resumable, after res1DDption it is the grantee who moves the Court for appropriate relief, and that proceeds on the basis that the grantor State which has reserved to itself the right to res...e may, after exercising its right, seek to recover possession of the property without B filing a suit."

All that the Couri. laid down was that the existence of a eight is the foundation for a petition under Art. 226 of the Constitution. In that case, certain ex-zamindars of Ganjam district were holding Govermnent Lands appurtenant to their office as Muthadars and were· dispossessed therefrom upon c resumption of their Muthas. The Court held that the lands were held by the ex-zamindars as service tenures which.were resumable at the will of ·the Govermnent. The parties were at issue on the question about the character of the grant under which the predecessors of the ex-zamindars were originally granted the lands in question. The Orissa High Court held that it was not possible for it to decide the important question of title involved in proceedings under Art. 226 but that such a kind of title could only be decided in a properly conatituted suit but nevertheless were inclined to the view that the right to recover possession vesting in a person who had been in possession prior to such dispossession which was implicit in s.9 of the Specific Relief Act, 1963 would be enforced by a petition under Art. 226. The view of the High Court was obviously not sustainable. At the hearing, counsel for the respondents sought an adjournment on the ground that the respondents had in the meanwhile filed a suit against the State Govermnent and further that the parties were negotiating for a settlement. It appears "that the <;ourt rejected the prayer for adjournment saying that no useful purpose would be served by granting any further time and thereafter entered upon I the pierits. lt held that merely because a suit under s. 9 of the Specific Relief Act would have been competent, no right can be claimed by the respondents merely on the ground of their possession under Art. 226 unless "their right to remain in possession was established against the State Govermnent. There is no reference to the earlier decision of the Constitution Bench in Bisban Das' case nor does the judgment lay down any contrary principle. It seems to me that the observations of Gajendra- gadkar, J. were merely in the nature of obiter in . _ Cllaadra Dev's case and nothing really turns on the observations made by him. The decision in RRW'bandra Dev's case appears to be in per Ii incuriam..

484 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.

Even in cases involving purely contractual issues, the A settled law is that where statutory provisions of public law are involved, writs will issue: lid. Bani£ v. State of Assaa,[1970] 2 s.c.a. 197.

For the sake of completeness, I wish to clear the ground of a possible misconception. Learned counsel appearing for ll respondent no .1 the Union of India while contending that the impugned notice dated March 10, 1980 was of an exploratory nature, fairly conceded that the lessor i.e. the Union of India lllllSt enforce its right of re-entry upon forfeiture of lease under cl. 5 of the lease-deed by recourse to due process of law and wanted to assure us that there was no question of marching the army or making use of the demolition squad of the Delhi c Development Authority or the Municipal Corporation of Delhi in demolishing the Express Buildings. As we felt that there was •ome ambiguity in the expression 'due process of law', we wanted a categorical answer whether by this he meant by a properly constituted suit. Without meaning any disrespect, the learned counsel adopted an ambivalent attitude saying that the due - process may not only consist in the filing of a suit by the D lessor or re-entry upon forfeiture of the lease but that in the case of lease of Govermnent lands, the authorities may also take recourse to the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. I have no doubt in my mind that the learned counsel is not right in suggestion that the lessor i.e. the Union of India, Minis try of Works & Housing can in the facts and circumstances of the case, take recourse to the summary procedure under that Act. The Express Newspapers Pvt. Ltd. having acted upon the grant of permission by the lessor i.e. the Union of India, Ministry of Works & Housing to construct the new Express Building with an increased FAR of 360 together with a double basement was clearly not an unanthorized occupant within the meaning of s.2(g) of the Act which runs as under

"2(g) "unauthorized occupation", in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant of any other llklde of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever." H

EXPRESS NEWSPAPERS v. u.o.I. [A.P. SEN, J.] 485

The Express Buildings constructed by Express Newspapers Pvt. A Ltd. with the sanction of the lessor i.e. the Union of India, Ministry of Works & Housing on plots nos. 9 and 10, Bahadurshah Zafar Marg demised on perpetual lease by registered lease-deed dated March 17, 1958 can, by no process of reasoning, be regarded as public premises belonging to the Central Govermnent under s. 2(e). That being so, there is no question of the lessor applying B for eviction of the Express Newspapers Pvt. Ltd. under s.2(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 nor has the Estate Officer any authority or jurisdiction to direct their eviction under sub-s.(2) thereof by summary process. Due process of law in a case like the present necessarily implies the filing of suit by the lessor Le. the Union of India, c Ministry of Works & Housing for the enforcement of the alleged right of re-entry, if any upon forfeiture of lease due to breach of the terms of the lease.

Nothing stated here should be construed to mean that the Govermnent has not the power to take recourse to the provisions D of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 where admittedly there is unauthorized construction by a lessee or by any other person on Govermnent land which is public premises within the meaning of s. 2 ( e) and such person is in unauthorized occupation thereof. E The constitutional position of the Lieutenant Governor : Whether the Lieutenant-Governor is the successor of the Chief Commissioner of Delhi·

One of the most crucial issues on which long and erudite arguments were advanced by learned counsel for the parties, turned on the question as to whether the Lt. Governor was a F successor of the Chief Commissioner of Delhi. Learned counsel appearing for the petitioners contended that the Lt. Governor cannot usurp the functions of the lessor i.e. the Union of India or the Chief Commissioner of Delhi in relation to the lease in question. It is urged that the Union Territory of Delhi which first became a Part 'C' State under the Constitution, was an G entirely new constitutional entity and therefore the office of the Chief Commissioner of Delhi ceased to exist. It is further urged that the Lt. Governor appointed by the President under Art. 239(1) of the Constitution is an Administrator and he discharges such functions as are entrusted to him by the President of India and in the absence of a notification under Art· 239(1), the Lt. Governor cannot usurp the functions of the Union of India in H

486 SUPRE!'lE COURT REPORTS [1985] SUPP.3 $.C.R.

A relation to the properties of the Union. It is pointed out that there was no notification issued by the President of India in terms of Art.239(1) of the Constitution empowering the Lt. Governor to administer the properties of the Union in the Union Territory of Delhi.

B Learned counsel appearing for the Union of India substantially advanced the same argument. According to him, the Lt. Governor had no powers in relation to the properties of the Union and therefore the Union of India is not bound by the acts of thP. Lt. Governor. The Lt. Governor had no power in relation to the lease and therefore he could not usurp to himself the powers and functions of the Union of India in relation to the lease-deed. The learned counsel went to the extent of saying that wherever the expression 'Chief Comnissioner of Delhi' appears in the lease-deed, it had to be struck out altogether as no such office exists in view of the Constitutional changes since brought about. That is to say, the question involved must be determined on the footi0g as if the parties never contemplated the Chief Commissioner of JJelhi to exercise any of the functions of the lessor under the lease-deed.

In reply, learned counsel appearing for respondent no.,2, the Lt. Governor, advanced a two fold subnission; firstly, the Lt. Governor is the alter ego of the President of India and not a mere formal or titular head of the Union ·Territory of Delhi, and in the connection he referred to the constitutional history of the Union Territory of Delhi· In support of his content.ion that the designation of the Administrator as the Chief Conmissioner of Delhi under both the Government of India Acts of 1919 and 1935 or as the Lt. Governor under the Constitution was a mere matter of nomenclature, the learned counsel referred to the provisions relating to the powers, functions and duties of the Chief Commis- sioner or the Lt. Governor, as the case may be, whic.h remained the same. In his words, the Lt. Governor is the 'eyes and ears' of the President in relation to such territory which he is called upon to administer on behalf of the President. One of the primary functions of the Lt. Governor, as the Administrator, is to be aware of facts brought to his notice and therefore respondent no.2 could not have turned a blind eye to the action of Sikandar Bakht, the then Minioter for Works & Housing in making a highly fraudulent, illegal and improper grant of permission to the Express Newspapers Pvt. Ltd. to build the new Express Building with an increased FAR Of 360 with a direction to the ~cipal H Corporation of, Delhi to accord sanction to the building plan

EXPRESS NEWSPAPERS v. U,0,1, [A.P. SEN, J,] 487

A submitted to them, as it had become the talk of the town. As already stated, learned counsel for respondent no. l while contending that the Lt. Governor, as an Administrator, had no function as the lessor or its delegate, supported him only to the extent that as an Administrator lie had to keep himself informed of any violations of law in the Union Terricory qf Delhi with the B administration of which he was concerned. It was, therefore, legitimate for the Lt. Governor to have kept the authorities informed, and though he had no independent power of his own, he could place the material gathered by him with the lessor i.e. Union of India, Ministry of Works & Housing, with a view to initiate necessary action. c Secondly, the contention of learned counsel for respondent no. 2 was that the express exclusion of certain specific powers under the proviso to s.21 of the Government of Part 'C' States Act, 1951 relates to the legislative powers of the Legislative Assembly or the Delhi Metropolitan Council and not to the execu- D tive functions of the Chief Commissioner or the Lt. Governor. It was submitted that this constitutional pattern was designed on the basis of the 'transferred powers' in respect of which the Legislative Assembly of Delhi or the Delhi Metropolitan Council 1 were given certain defined role but the reserved powers' were exercisably by the Administrator as the Chief Commissioner or the E Lt. Governor i.e. the executive functions of the Pres;1ent of India under Art.53 of the Constitution. It was accordingly urged that the Legislative Assembly of Delhi did not have the powers to make any law with respect to 'land and building vested or in possession of the Union of India' relatable to Entry 32 of List l of the Seventh .Schedule, and the powers and functions of the Council of Ministers in the Union Territory of Delhi as a Par.t F 'C' State extended only to' the legislative powers conferred under s.21 of the Act. '!he 'reserved powers' which were excluded from the purview of the Legislative Assembly or the Delhi Metropolitan Council were, however,· exercisable by the Chief Commissioner and necessarily by the Lt. Governor as the appointed agent or the nominee of the President. It was submjtted that the Lt. Governor G continues. to have certain defined functions, apart from his function as the executive head of the Delhi Administration. As an incumbent of an important public office of the Lt, Governor, he is intended to discharge diverse functions on behalf of the President of India as his agent in relation to the Union Territory of Delhi. ·rn support of his contention, reliance was placed on the interpt·etation of s.2(3) and s.36 of the Act. It H was urged that the office of the Land & Development Officer was

488 SUPREME COURT REPORTS (1985] SUPP.3 S.C.R.

under the direct administrative control of the Chief Commissioner A as the Administrator until 1959. The Land & Developnent Officer administered ~ lands at that time as he does now. Altoougli this was a subject excluded from the compet~nce of the Legislative Assembly of Delhi under the proviso to s.21 of the Act, the authority of the Chief Commissioner as the Administrator over the Land & Developnent Officer and over the administration B of ~ lands as a 'reserved subject 1 was kept under the administrative conti:ol of the Chief Commissioner. It WELS accordingly asserted that under several.leases, including the one in the instant case, the Lt. Governor as the appointed agent or the nominee of the President is entitled to act on behalf of the lessor i.e. the Union of India, Ministry of Works & Housing and necessarily must have administrative control over the Land &. C Development Office and the administration of nazul lands.

To appreciate the rival contentions, it is necessary to view ,;- the question from a historical perspective since the Union Territory of Delhi, as it now exists , has undergone many constitutional changes. Prior to September 17, 1912, the Territory of Delhi was known as the 'Imperial Delhi Estate' and lJ was included within the then Province of Punjab. After the decision to form the capital at Delhi was reached, proceedings for acquisition of land therefore were taken by the Collector of Delhi District pursuant to the notification no.775 dated December 21, 1911 issued by the Lt. Governor of Punjab. When the Capital was shifted from Calcutta to Delhi, the Governo~neral- E in-COuncil by his proclamation dated September 17, 1912 took under his immediate authority and management the territory of Delhi with the sanction and approbation of the Secretary of State for India. The Delhi Laws Act, 1912 came into force w.e ,f. September 18, 1912 and provided for the administration of the territory of Delhi by a Chief Commissioner as a separate Province F to be known as the Province of Delhi. The Pr~ble to the Act resds as follows :

"Whereas by Proclamation published in Notification No.911 dated the Seventeenth day of September, 1912 the Governo~neral-in-Council, with the sanction and approbation of the Secretary of State for India has been pleased to take under his immediate authority and management the territory mentioned in Schedule A, which was former 1Y included within the Province of Punjab, and to provide for the administration thereof by a Chief Commissioner as a separate Province to be known as the Province of Delhi:

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 489

And whereas it is expedient to provide for tt.e A application of the Law in force in the said territory, and for the extension of other enactments thereto: I~ is hereby enacted as follows : "

Under s.58 of the Government of India Act, 1919, Delhi remained and was administered as a Chief Commissioner's Province. Tl:e B office of Land & Development Officer came ir.to being as a separate organisation under the administrative control of the Chief Conmissioner of Delhi· Under s.94 of the Government of India Act, 1935, it was provided that Delhi wo"uld continue to be a Chief Commissioner's Province. A Chief Commissioner's Province was to be administered by the Governor-General acting to such c extent as he thought fit through a Chief Conmissioner to be appointed by him in his discretion. S. 94 of the Government of India Act, 1935 provided as follows :

"94: Qdef o-tsaiooers' Provinces D l. The following shall be the Chief Commissioners• Provinces, that is to say, the heretofore existi.ng Chief Commissioners' Provinces of British Baluchistan, Delhi, Ajmer-Merwara, Coorg and the Andaman and Nicobar Islands, the area known as Panth Piploda, and such other Chief Commissioners' Provinces as may be t: created under this Act.

2. Aden shall cease to be part of India •

. 3. A Chief Commissioner's Province shall be adminis- tered by the Governor-General acting, to such extent as he thinks fit, through a Chief Commissioner, to be F appointed by him in his discretion."

Under s.100(4) of the Government of India Act, 1935, the Federal Legislature was empowered to legislate in relation to Chief Commissioners' Provinces and without limitation as to subjects. G With the attainment of Dominion status on August 15, 1947 under the Indian Independence Act, l 94 7, the powers of the legislature of the Dominion were exercisable by the Constituent Assembly under sub-s.(l) of s.8. The constituent Assembly was not to be subject to any limitations whatsoever in exercising its constituent powers. Thus, the Indian Independence Act, 1947 established the sovereign character of the Constituent Assembly H

490 SUPRllME COURT REPORTS [1985] SUPP.3 s.c.R.

which became free from all limitations. Sub-s. (2) of s.8 of the A Act provided that except insofar as other provision was made by or in accordance with a law made by a constituent Assembly under sub-s.(l), the governance of the Dominion was to be carried out in accordance with the Government of India Act, 1935 and the provisions of that Act, and all the orders in Council, rules and other instruments made thereunder. On January 5, 1950, the I! Constituent Assembly enacted the Goverrunent of India (Amendment) Act, 1949 by which s.290A was inserted in the Government of India Act, 1935 providing that the Governor-General may by order direct that ai1 acceding State or a group of such States shall be administered as a Chief Comnissioner 1s Province or as past of Governor's or Chief Commissioner's Province. These acceding States were thus converted into Centrally administered areas and c included in Part 'C' of the First Schedule of the Government of India Act, 1935. The remaining States in Part 'C' were Ajmer, Coorg and Delhi. Under the Constitution, Delhi became a Part 'C' State. As already stated the States specified in Part •c• of the first Schedule were to be administered by the President under Art.239(1) acting, to such extent as he thought fit, through a Chief Commissioner or a Lt. Governor to be appointed by him. D Section 290A of the Government of India Act, 1935, reads as follows :

"290A.. AdmjnfRtration of certain Acceding States d8 a Chief Comniasioaer 's Province or as part of a E Governor's or Chief C-Orwnfssiou.er's Province:-

1. Where full and exclusive authority, jurisdiction and powers for and in re la tion to the governance of any Indian State or of any group of such States are for the time being exercisable by the Dominion F Government, the Governor-General may by order direct:-

(a) that the State or the group of States shall be administered in all respects as if the State or the group of states were a Chief Comnissioner's Province: or G (b) that the State or the group of States shall be administered in all respects as if the State or the group of States formed a part of a Governor's or a Chief Commissioner's Province specified in the Order.

EXPRESl) NEWSPAPERS V• U.O.I. [A.P. SEN, J. J 491

Provided that if any Order made wider clause (b) of A this sub-section affects a governor's Province, the Governor-General shall before making such urder ascertain the views of the Government of that Province both with respect to the proposal to make the Order and with respect .to the provisions to be inserted therein. a (2) Upon the issue of an order under clause (a) of sub-section (1) of this section, all the provisions of this . Act applicable to the Chief Commissioner's Province of Delhi shall apply to the State or the group of States in respect of which the Order is made. c (3) The Governor-General may in making an order under sub-sec ti on ( 1) of this section give such supple- mental, incidential anci consequential . directions (including directions as to representation in the Legislature) as he may deem necessary. D

(4) In this section, reference to •a State shall include reference to a· part of a State."

As a result of this, the then Province of Delhi oec""1e a Part 'C' S~. E

Under the Constitution of India, Delhi became a Part 'C' State w.e.f. January 26, 1950 and it was provided by A<t.239 (l) that a State specified in Part 'C' of the First Schedule shall be administered by the President acting to such extent as he thinkR fit through a Chief Commissioner or Lt. Governor to be appointed by him. Art.239(1) of the Constitution as it then stood, insofar F as material, provided:

"239(1). Subject to the other prollisions of this Part, a State specified in Part C of the First Schedule shall be administered by the President acting, to such extent as he thinks fit, through a Chief Commissioner G or a Lieutenant-Governor to be appointed by him or through the Government of a neighbouring State:"

It would appear that Art.239(1) of the Constitution differed from the provision contained in s.94(3) of the Government of India Act, 1935 to the extent that the appqintment of a Chief Commissioner or Lt. Governor as an Administrator irrespective of H

492 SUFREME COURT BEPORTS [1965] SUPP.3 s.c.R. A the designation and entrustment of powers, functions and duties to him by the President, were not to be in his discretion but had to be exercised on the advice of the Council of Ministers. Except for this, s.94(3) of the Government of India Act, 1935 and Art. 239(1) of the Constitution as enacted were identical in respect of the provisions for the administration of Delhi as a Chief Colllllissioner's province under the 1935 Act and as a Part C State under the Constitution, by the G~vernor-General under s.94(3) and under Art.239(1) by the President acting to such extent as he thought fit, through the Chief Comnissioner or the Lt. Governor as an Admlnistrator irrespective of the designation.

c On April 16, 1950 the Part C States Laws Act, 1950 was brought into force. By s.2, the Central Govennnent was empowered by notification in the official gazette to extend to the State.of Delhi or to any part of such territory with such restrictions and modifications as it thought fit any enacbnent which was in force in any State at the date of the notification. S.4 of the Act repealed s. 7 of the Delhi I,aws Act, 1912. The Goveroment of D Part C States Act, 1951 enacted by Parliament was brought into force on September 6, 1951. s. 21 of the Act, insofar as material, read as follows :

"21. El<tent of Legislative ~ -

E (1) Subject to the provisions of this Act, the Legislative Assembly of a State may make laws for the whole or any part of the State with respect to any of the 11Stters emnnerated in the State List or in the Concurrent List :

F Provided that the Legislative Assembly of the State of Delhi shall not have power to make laws with respect to any of the following matters, namely :-

(a) *********** (b) *********** (c) *********** (d) lands and buildings vested in or in the possession of the Union which are situated in Delhi or in New Delhi including all rights in or over such lands and buildings, the collection of rents, therefrom and the transfer and alienation thereof j H (2) Nothing in sub-s.(l) shall derogate from the power conferred on Parliament by the Constitution to make

EXPRESS NEWSPAPERS ·1. u.0.1. [A.P. SEN, J,) 493

A laws with respect to any matter for a State or UJ:1 part thereof • "

Art. 239(1) of the Constitution was amended by the Constitution (7th Amendment) Act, 1956 w.e.f. November 1, 1956 awl it now reads B

"239. Mmfniatration of lln1on Territories -

(l) Save as otherwise provided by Parliament by law, every Union :rerritory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify."

It would be seen that for the words 'through a Chief Colllllissioner or a Lt. Governor to be appointed by him' in Art. 239 ( l) as originally enacted, the words substituted are 'through an administrator appointed by him with such. designation as he may specify'. One thing is clear that the Administrator appointed by the President under Art.239(1) whether with the designation of the Chief Commissioner or of the Lt. Governor could exercise only such powers, functions and duties as were entrusted to him by the President i.e. there have to be specific entrustment of powers by the President under Art. 239(1). Under Art. 246(4) of the Constitution which corresponds to s.100(4) of the Government of India Act, 1935, Parliament was given power to make laws with respect to any part of the territory of India not included in Part A or Part B of the First Schedule, notwithstanding that such matter was a matter enumerated in the State List. F As from the appointed day i.e. from November l, 1956 Part C States cease-i to exist by virtue of the Seventh Amendment and in their place Union Territories were substituted in the First Schedule to the Constitution, including the Union Territory of Delhi i.e. the territories which immediately before the cOlllill!ncement of the Constitution were comprised in the Chief G Commissioner's Province of Delhi. 'By the Seventh Amendment, Art. 246(4) was also amended. Art. 246(4), as amended, now reads :

"246( 4) - Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List." H

494 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.

In pursuance of Art.239 as amended by the Seventh Amendment, the A President of India isaued the following notification on Novembt:r l, 1956 :

lll!GIS'IEllED IK).D. 221 THE GAZETTE OF INDIA EXTRAORDINARY l! PART 11 - Section 3 PUBLISHED BY AUTHORITY

No. 332 NEW DELHI, THURSDAY, NOVEMBER 1, 1956

MINISTRY OF HOME AFFAIRS NOTIFICATION c New Delhi-2, the 1st November, 1956.

s.R.O. 2536 - In pursuance of clause (1) of Article 239 of the Constitution as amended by the C.onstitution (Seventh Amendment) Act, 1956 and ail other powers enabling him in this behalf, the President hereby directs as follows :- D Where, by virtue of any order made in pursuance of Article 239 or as the case may be, Article 243 of the Constitution as in force immediately before the 1st day of November, 1956 or any other power under the Constitution, any powers and functions were inmediately before that day, the powers and functions of -

(a) the Lieutenant Governor of the State of Himachal Pradesh,

F (b) the Chief Comnissioner of the State of Delhi, Manipur or Tripura and

(c) the Chief Conmi,ssioner of the Andaman and Nicobar Islands,

G such powers and functions shall, on and after the said day, be exercised and discharged respectively by-

(i) the Lieutenant Governor of the Union Territory of Himachal Pradesh,

H (ii) the Chief Coilllllissioner of the Union Territory of Delhi, Manipur or Tripura, and

EXPRESS NF.'WSPAPERS v. U.O.I. [A.P. SEN, J.] 495

(iii) the Chief Conmissioner of the Andaman and A Nicobar Island,

subject to the like control by the President, as were exercisable by him before the said day over the Lieutenant Governor or aa the case may be, the Chief Conmissioner referred to in clause (a),(b) or (c). Jl (No.F.19/22/56-SRI) llARI SHARMA, JT. Secy."

On the same day, by Section 130 of the States Reorganization Act, 1956, the Government of Part C States Act, 1951 stood repealed. On October l, 1959 decision was taken by the Government c of India to transfer the administrative control of the office of Land & Development Officer, New Delhi from the Delhi Administration to Ministry of Works, Housing & Supply w.e.f. October l, 1959. This decision was duly communicated to the Chief Conmissioner of Delhi and to the Land & Development Officer, New Delhi. In the further affidavit of M.K. Mukherjee, Secretary, D Ministry of Works & Housing, it is averred in paragraph 6 that the 'office of the Land & Development Officer was transferred to the control of the Ministry of Works, Housing & Supply w.e.f. October l, 1959 and since then i t has been functioning as a subordinate office of the Ministry of works & Housing'. It would therefore, be manifest that after October l, 1959 neither the E Chief Conmissioner nor the Lt. Governor had anything to do with the office of the Land & Development Officer or the administration of nazul lands in the Union Territory of Delhi.

The President of India on February l, 1966 issued an order under Art.299(1) of the Constitution which inter alia directed that in the CBEe of Land & Development Office (1) all contracts and aasuranzes of property relating to matters falling within the jurisdiction of Land & Development Officer, (2) all contracts, deeds and other instrwnents relating to and for the purpose of enforcement of the terms and conditions of the sale/lease-deed of the government property in Delhi/New Delhi, etc. made in exercise of the executive power of the Union may be executed on his behalf by the Land & Development Officer. Under Clause XI.I i t was specifically provided :

"Notwithstanding anything hereinbefore contained any contract or assurance of property relating to any matter whatsoever may be executed by the Secretary or H

496 SUP!@IE COURT REFORTS [1985] SUPP.3 s.c.R.

A the Special Secretary or the Additional Secretary or the Joint Secretary or the Direct~r, or when there is no Additional Secretary, Joint Secretary to the Government in the appropriate Ministry or Department."

It is pertinent to observe that neither the Chief Commissioner of B Delhi nor the Lt. Governor has been conferred any authority by the President under Art.299(1) to enter into any contract made in the exercise of the executive power of the Union or to act 'on behalf of' the President in relation to such contract or assurance of property i.e. to act on behalf of the President for the enforcement of the terms and conditions thereof.

C On September 7, 1966 the Administrator appointed by the President in relation to the Union Territory of Delhi who hithertofore had been designated as the Chief Commissioner was re-designated as the Lt. Governor of Delhi. Accordingly, the President on Sept...ber 7, 1966 issued another order in terms of Art. 239(1) of the Constitution which provides as follows :

D MINISTRY OF H(}fE AFFAIRS NOTIFICATION New Delhi, the 7th Sept., 1966.

s.o. 2709 - In pursuance of clauae (1) of article 239 of the Constitution and all other powers enabling him in this behalf, the President hereby directs as follows -

Where by virtue of ·any order made in pursuance of article 239 any powers and functions were, immediately before the 7th Sept...ber, 1966 the powers and functions of the Chief Commissioner of the Union Territory of Delhi, such powers and functions shall, on and after the said day, be exercised and discharged by the Lt. Governor of the Union Territory of Delhi, subject to the like control by the President, as was exercisable by him before the said day over the Chief G Commissioner.

(No.41/2/66-llelhi.) HARI SHARMA, SECRETARY"

H The crux of the matter is whether the Lt. Governor was by virtue of the aforesaid not if !cation dated September 7 , 1966 issued by the President, conferred any power, function and duty

EXPRESS NEWSPAPERS V• U.O.I. [A.P. SEN, J.] 497

A in relation to the property of the Union in the Union Territory of Delhi. Much stress is laid by ·learned counsel appearing for respondent no.2 on the said. notification insofar as it provides that the Lt. Governor shall have the same powers and functions as were exercisable by the Chief Collllllissioner. That would be so proYided there was a notification by the President of India under B Art. 239(1) of the Constitution vesting the Chief Comnissioner with power to administer the property of the Union of India. There is admittedly no such I¥>tification under Art. 239(1) by the President vesting Chief Collllllissioner or the Lt. Governor with any such power.

It is sought to be impressed upon us that the designation of c the Administrator of a Union Territory was per .!!!. of no particular legal or functional significance. It is argued by learned counsel appearing for respondent no.2 that the Administrator appointed by the President under Art. 239(1), as am.ended by the Seventh Amendment, could be called by any designation, that the Chief Comnissioner of Delhi continued to be the Administrator of the Union Territory of Delhi under Art. 239(1) after November l, 1956 when the Government of Part C States Act, 1951 was repealed by S· 130 of the States Reorganization Act, 1956 and that he functioned as such till September 6, 1966 since the Delhi Administration Act, 1966 continued to use the nomenclature of Administrator appointed by the President under Art. 239(1). It was for the first time on September 7, 1966 that the Administrator of the Union Territory of Delhi who used to be designated as the Chief Collllllissioner was re-designated as the Lt. Governnr. The learned· counsel relied upon s. 18 of the General Clauses Act, 1897 which runs as under :

"18. s..cceesora. F

l. In any Central Act or Regulation made after the COlllllencement of this Act, it shall be sufficient for the purpose of indicating the relation of a law to the successors of any functionaries or of corporations having perpetual succession to expr.ess its relation to G the functionaries or corporations.

2. This section applies also to all Central Acts made after · the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887." H

498 SUPREME COURT REPORTS [1985) SUPP.3 s.c.R.

A Our attention was drawn b;' the learned counsel to the decision of llobd. Maqhool llewmoo v. State of .Ja11m11 & l'.aabmir • [1972) 2 s.c.R. 1014, where a Constitutional Bench held that under s. 26(2) of the Janmu & Kashmir Constitution, as amended, even though the Governor of Janmu & Kashmir was not elected as B the Sadar-i-Riyasat but the mode of appointment would not make a Governor anytheless a successor to the Sadar-i-Riyasat because both were the head of the State and therefore the executive power of the State vested in them both. In that connection, the Court referred to s.18 of the General Clauses Act and held that the Governor being a successor of the office of the Sadar-i-Riyasat was entitled to exercise all the powers and functions of the C Sadar-i-Riyasat. We do not see the relevance of the decision in Mohd. Maqbool's case to the question before us since the Lt. Governor of Delhi is neither the successor of the Chief Connnis- sioner nor can s .18 of the General Clauses Act override the constitutional requirements of Art.239(1) laying down that the Lt. Governor shall exercise only such powers as are entrusted to him by the President. D The question still remains whether the Lt. Governor was the successor of the Chief Connnissioner of Delhi; and if so, had by reason of the notification dated September 7, 1966 under Article 239 of the Constitution the same powers and functions that were exercisable by the Chief Connnissioner in relation to the lease. E That would be so provided there was a notification issued by the President under Art.239(1) vesting the Chief Commissioner with powers to administer the property of the Union or lease of nazul properties in the Union Territory of Delhi. It is also necessary to consider whether under the proviso to s.21 of the Part C States Act, 1951, the so-called 'reserved powers' were exerci- F sable by the Lt. Governor in relation to the executive functions of the President under Art.53 of the Constitution as an agent or the nominee of the President and therefore he was entitled to act on behalf of the lessor i.e. the Union of India, hlnistry of Works & Housing.

G Learned counsel appearing for respondent no.2 argues that the Lt. Governor had ample powers and functions under the aforesaid notification dated September 7, 1966 and therefore it was incumbent upon him to take necessary steps in due discharge of his official duties. The Lt. Governor was not a 'stranger', 'interloper', 'intruder' or 'usurper' acting without any warrant H or semblance of power or any author! ty as alleged and argued

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN, J.] 499

A strenuously by the petitioners He says that there is a vast variety of notifications whicn vest the office of the Lt. Governor with powers and functions of various descriptions under various statutes, many of which are to be exercised by him in his discretion. He contends that such powers are of a wide ranging nature which inhere in the office of the Lt. Governor. He refers B to several notifications in which the Administrator of Union Territory had been variously described viz. as Chief Commissioner, Administrator or Lt. Governor and contends that even while delegating the powers under Art. 239(1) of the Constitution, a cooti.nuun between the office of the Chief Commissioner and that of the Lt. Governor was preserved and~ the c terms used interchangeably. All these powers and functions were essentially functional. Moreover, powers and functions which vested in that off ice and which had a clear continuity of its own also implied powers which were incidental and ancillary thereto. Such powers also necessarily included powers and functions which were a necessary concomitant of the office. D

Learned counsel contends that the office of the Administrator under Art.239(1) ii< the office of an agent and representative of the President. It is the office of the Head of the Administration in relation to the Union Territory. lie is not merely a formal or titular head but an effective and executive E head. The office is both formal and functional, and the Union Territory is administered by the Union Executive through the Lt. Governor. In the ultimate analysis, the Lt. Governor has to be the 'eyes and ears' as well as the 'limbs' of the President in the Union Territory which he is called upon to administer on behalf of the President. He is also to keep in touch with every situation and to take into account the representations and E complaints in exercising the powers and discharging the functions of his office. In these circumstances, the Lt.Governor was entitled to see whether there was any definite matter of public importance which might eventually call for a detailed adminis- trative or statutory inquiry, either in respect of the conduct of ! the officers of the Delhi Development Authority or those of the G ~hmicipal Corporation, and to satisfy himself with regard to various matters and particularly whether there were any violations of town planning norms or sanction granted, whether the lease conditions were breached, whether similar concessions should be granted to others similarly situate and whether any remedial measures were called for. lie urges that the complaints and representations with regard to Express Buildings were quite li specific and the pace of construction was particularly

500 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.

A accelerated. The Lt. Governor had the powers and the auty to inform himself of the fact and to be properly advised with regard to these matters. Instead of acting in a surreptitious, clandestine or hurried manner, he appointed a committee of three senior officials to ascertain the facts. In appointi~ such a B committee he acted will within his powers and in a wholly bona fide manner; indeed, he could also, if so satisfied, set up a commission of inquiry under the Commissioru! of Inquiry Act, 1952.

The argument of learned counsel appearing for respondent no.2 based on the proviso to s.21 of the Government of Part C States Act, 1951 that the 'reserved powers' were still with the c Administrator as the Chief Commissioner or the Lt. Governor and therefore the Lt. Governor as the appointed agentor nominee of the President was entitled to exercise the executive functions of the President under Art. 53 of the constitution and consequently was authorized to act on behalf of the lessor i.e. the Union of India, Ministry of Works & Housing, is totally unwarranted. The contention overlooks the constitutional changes brought about, as D a result of which the territory of Delhi ceased to be administered as a Chief Conmissioner 's Province by the Governor-General acting to such extent as he thought fit through the Chief Conmissioner appointed by him in his discretion under s.94(3) of the Government of India Act, 1935 and become a Part C state on the inauguration of the Constitution and had to be administered by the President under Art.239(1) acting to such extent as he thought fit through a Chief Commissioner or a Lt. Governor to be appointed by him or through the Governor of a neighbouring State. After the Seventh Amendment which reorganized the States, Part C State of Delhi was transformed into a Union Territory and has to be administered by the President under the amended Art. 239(1). acting to such exter.t as he thinks fit, through an Administrator to be appointed by him with such designation as he msy specify. In September, 1951 an Act known as the Government of Part C States Act, 1951 was passed by Parliament. It was a law enacted by Parliament under Art.24011) to provide for the creation of Legislative Assemblies, Council uf G Ministers and Councils of Advisors for Part C States. Sub-s.(3) of s.2 provided that any reference in the Act to the Chief Commissioner shall, in relation to a State for the time being administered by the President through a Lt. Governor be construed as a reference to the Lt.Governor. Cl.(2) of Art.240 provided that such law shall not be deemed to be an amendment of the H Constitution for the purposes of Art. 368 notwithstanding that it contained any provision which amended or had the effect of amend- ing the Constitution. s.21 of the Act invested the Legislative

EXPRESS NEWSPAPERS v. U.O.I. [A.P.SEN, J.] 501

A Assemblies of such Part C states with powers of legislation with respect to any of the matters enumerated in the State List or in the Concurrent List with the reservation contained in the proviso thereto that the Legislative Assembly of the State of Delhi shall not have power to make laws ·with respect to the matters enumerated therein, with the overriding provision contained in B sub-s.(2) that nothing in sub-s.(l) shall be in derogation of the power conferred on Parliament by the constitution to make laws with respect to any matter for a Part C State or any part thereof.

It would therefore appear that the territory of Delhi as a c Part C State under the First Schedule to the Constitution was a separate and distinct constitutional entity as from that of a Chief Commissioner's Province under the Government of India Act, 1935, and this is eq~lly true of the Union Territory of Delhi. It 1DUSt logically follow that with the transformation of the territory of Delhi from a Chief Commissioner's Province under D s.94(3) of the Government of India Act, 1935 into that of a Part C State under thE' Constitution' and after the Seventh Amendment into the Union Territory of Delhi, .the office of the Chief Canmissioner of Delhi disappeared and that of an Administrator appointed by the President under Art.239(1) with such designation as he may specify, came into existence. The necessary concomitant is that the Administrator of the Union Territory of Delhi derived only such powers, fullctions and duties as were entrusted to him by the President under Art. 239(1).

I would also refer to the case of Edward Mil.ls Co. Ltd. ne-r, ' era. "· St:ate of Ajllet: ' Anr., [1955] l s.c.R. 735, which was rightly not relied .upon by learned counsel for the respondents as the decision turned on its own facts. In that case i~ was held by the Constitution Bench that an order made by the Governor-General under s. 94(3) of the Government of India Act, 19~5 investing the Chief Commissioner with the authority to administer a Chief Commissioner's Province as then existing, IDUSt be regarded aa a legislative act and as such treated as a 'law in force' falling within the purview of Art. 372 of the Constitution and therefore such an order made under s.94(3) of the Government of India Act, 1935 IDUSt be construed as an order made under Art. 239(1). The Constitution Bench speaking, through Mukherjee, J. after adverting to s. 94(3) of the Government of India Act, 1935, observed : H "An order made by the Governor-General under s.94(3) investing the Chief Commissioner with the authority to administer a province is really in the nature of a

502 SUPl©JE COURT REPORTS [1985] SUPP.3 s.c.R. A legislative provision which defines the rights and powers of the Chief Collllllissioner in respect of that province. In our opinion, such order comes within the purview of Article 372 of the Constitution and being 'a law in force' immediately before the conmencement B of the Constitution would continue to be in force under clause {l) of the Article. Agreeably to this view it must also be held that such order is capable of adaptation to bring provisions under cl. (2) of Article 372 and this is precisely what has been done by the Adaptation of Laws Order, 1950. Paragraph 26 of the Order runs as follows : c '\.Jhere any rule., order or other instrument was in force under any provision of the Governruent of India Act, 1935, or under any Act amending or supplementing that Act, immediately before the appointed day, and such proxision is re-enacted with or without modifi- cations in the Constitution, the said rule, order or instrument shall, so far as applicable, remain in force with the necessary modifications as from the appointed day as if it were a rule, order or instru- ment of the appropriate kind duly made by the appropriate authority under the said provision of the Constitution, and may be varied or revoked accordingly.

Thus the order made under s. 94(3) of the Government of India Act should be reckoned now as an order made under Article 239 of the Constitution •••••• "

F There was no Order in Council issued by the Governor-<;eneral under s. 94(3) of the Government of India Act, 1935 nor any order issued by the President under Art. 239(1) of the Constitution investing the Chief Collllllissioner of Delhi to deal with the property of the Union. On October 1, 1959, decision was taken by the Government of India to transfer the administrative control of G the Land & Development Office from the Chief Commissioner of Delhi to the Ministry of Works & Housing. This decision was duly communicated to the Chief Collllllissioner of Delhi and to the Land & Development Officer. It i~ admitted in the further affidavit of M.K. Mukherjee, Secretary, Ministry of Works & housing dated November 16, 1982 that the office of the Land & Development H Officer was transferred to the control of the Ministry of Works & Housing w.e.f. October 1, 1959 and since then it has been functioning as a subordinate office of the Ministry of Works &

EXPBESS NEWSPAPERS v. U.Q.I. [A.P. SEN, J.) 503 A Housing. Undoubtedly, the matters relating to the property of the Union of India are included in the executive power of the Union under Art. 53 of the Constitution read with Art. 298 which expressly provides that the executive power of the Union shall extend to the acquisition, holding that disposal of property snd the making of contracts for any purpose. Such executive power of B the Union is vested in the President under Art. 53(1) snd shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. All executive aetions of the Government of India shall be expressly taken in the name of the President under Art. 77(1). Under cl.(2) thereof, orders and other instruments made and executed in the c name of the President shall be authenticated as may be specified in rules to be n.ade by the President i.e. in the manner specified under the Authentication (Orders snd other Instruments) Rules, 1958 framed under Art. 72(2). On January 18, 1961, the President made the Government of India (Allocation of Business) Rules, 1961 under Art. 77(3) for the more convenient transaction of business D of the Government of India, snd for the allocation among Ministers of the said business.

In terms of the Government of India (Allocation of Business) Rules, 1961, all matters relating to the property of the Union, E allotment of Government lands in Delhi, administration of Government estates under the control of the Ministry of Works & Housing and the administration of the Land & Development Office, are matters exclusively vested in the Ministry of works &Housing vide Entries 1, 6 and 23(1) in the Second Schedule under the head 'Ministry of Works & Housing'. In the light of the said directive, as further confirmed by the constitutionally enacted F regulations, the power over the allotment of nazul lsnds, administration of leases in Delhi and the control snd administration of Land & Development Office in particular and the property of the Union in general are subjects vested solely under the control of the Ministry of Works & Housing. In the premises, by such transfer of authority, the Chief Commissioner of Delhi G and necessarily his successor, the Lt. Governor, became bereft of his powers to control and administer the lease and any attempt by respondent no .2 set up a claim that the Lt. Governor is the authority empowered to administer the lease is wholly frivolous and untenable snd il\USt be rejected.

Whether the :impugDed ExeMJtive action H was mala fide and politically motivated.

504 SUPREME COURT REPORTS [1985] SUPP.3 S.C.R.

A 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 l, 1980 B issued by the Zonal Engineer (Building), City Zone, Municipal Corporation, Delhi were wholly mala fide and politically motivated. It is a sad reflection on the state of affairs brought about during the period of Emergency which brought into existence a totalitarian trend in administration and I do not wish to aggravate any of its features by unnecessary allusions. In the process, the country witnessed misuse of mass media totally inconceivable and unheard of in a democratic form of Government by ruthless suppression of the press by exercise of pr~-censorship powers, enactment of a set of draconian laws which reduced freedom of the press to a naught.

The petitioners have pleaded the facts with sufficient degree of particularity tending to show that the impugned notices were wholly mala fide and politically motivated; mala fide, because the impugned notice of re-entry upon forfeiture of lease dated March 10, 1980 issued by the Engineer Officer, Land & Development Office under cl.5 of the indenture of lease dated March 17, 1958 for alleged breach of els. 2(14) and. 2(5) which in fact were never committed and the notice dated March l, 1980 by the Zonal Engineer (Building), City Zone, 1'lunicipal Corporation for demolition of new Express Building where the printing press is installed under ss. 34~ and 344 of the Delhi Municipal Corporation Act were really intended and meant to bring about the stoppage of the publication ·Of the Indian Express which has throughout been critical of the Government in power whenever it went wrong on a matter of policy or in principle. Also, mala fide because they constitute misuse of powers in bad faith. Use of power for a purpose other than the one for which the power is conferred is mala fide use of power. Same is the positiofi when an order is made for ~rpose other than that which finds place in the order. G

It 1s somewhat strange that although definite allegation of mala fide on the part of the respondents particularly the Government for the day at the Centre were made with sufficient particulars and though the respondents had ample time ·to file H their affidavits in reply, none of the respondents except respondent no.2, the Lt. Governor of Delhi and respondent no.5, Land &Development Officer have chosen to deny the allegations.

EXi'RESS NEWSPAPERS v.· U.O.I. [A.P. SEN, J•] 505 A 'fhe counter-affidavit of respondent no.2 purporting to be on behalf of all the respondents is that the allegations made by the petitioners in paragraphs 11, 12 and 13 are not 'relevant' to the matter in issue. In c.s. Rawjee & Ors. v. A.P. St:l\te Hoad Transport Corporation, [1964] 4 s.c.R. 330, the Court in a matter arising out of the Motor Vehicles Act, 1939 where certain allegations against the Minister went uncontroverted, had occasiou to administer a word of caution. Where mala fide are · alleged, it is necessary that the person against whom such allegations are made should come forward with an answer refuting or denying such allegations. For otherwise such allegations remain unrebutted and the Court would in surh a case be cons- c trained to accept the allegations so remainl.ng unrebutted and unanswered on the test of probability. That precisely is the position in the present case, 1n the absence of any counter- affidavit by any of the respondents. One should have thought that the Minister for Works & Housing should have sworn an affidavit accepting or denying the allegations made by the petitioners. At D our instance, M.K. Mukherjee, Secretary, Ministry of Works & Housing has filed a supplementary affidavit. He avers that the impugned notice dated March 10, 1980 of re-entry upon forfeiture of lease issued by the Engineer Officer, Land & Development Office was on the basis of press reports i.e. reports of the press conference held by the. Lt. Governor. Again, there is no attempt on the part of the Union of India, Ministry of Works & Housing to deny the allegations of ma1a f ides on the part of the Government and its functionaries in issuing the impugned orders. On the contrary, he avers that respondent no .1 ·'adopts the- counter-affidavit filed by respondent no.2'. It is not for the parties to say what is relevant or not. The matter is one for the Court to decide. Th~re is nothing before us from which we can say that the allegations in paragraphs 11, 12 and 13 of the petition made by the petitioners are not well-founded. Mala fides on the part of the Government in power or its functionaries would be sufficient to invalidate tbe impugned notices. Fraud on power vitiates the impugned orders if they were ?Ot exercised bona tide for the purpose for which the power was conferred. G