Title not extracted — [1985] Supp. 3 S.C.R. 382

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

A to the Court, Denning, J. reversed the decisions of the Ministry and the Tribunal holding that the Crown was bound by the War Office letter and observe :

"The Crown cannot escape by saying that estoppels do not bind the Crown, for that doctrine has long been II exploded. Nor can the Crown escape by praying in aid the doctrine of executive necessity, that is, the doctrine that the Crown cannot bind itself so as to fetter its future executive action."

It would appear that Denning, J, evoked two doctrines : (1) that assurances intended to be acted upon and in fact acted upori were binding; and (2) that where a Government department wrongfully assumes authority to perform some legal act, the citizen is entitled to assume that it has that authority, ar.d he dismissed the contention that estoppels do not bind the Crown by saying that 'that doctrine has long been exploded' and that the Crown cannot fetter its future executive action. Professor Wade points out that the proposition about wrongful assumption of D authority evoked by Denning,J. was i1111Dediately repudiated by the House of Lords in a later case in which Denning, W. had again put it forward in Bowell v. Falmouth Boat Construction Collpaoy Ltd., L.R. [1951] A.c.· 837, it is beyond the scope of this judgment to enter into a discussion as to how far Denning J's dictum can still be regarded as part of the common law in England. But there appears to be a school of thought in India laying down that the doctrine of promissory estoppel applies to the Government except under certain circumstances.

In Union of India & Ors. v. Indo Afghan Agencies Ltd., F [1968] 2 s.c.R. 366, Shah, J, speaking for the Court stated with approval the following observations of Denning, J. in Robertson's case

"The Crown cannot escape by saying that estoppels do not bind the Crown for that doctrine has long been G exploded. Nor can the Crown escape by praying in aid the doctrine of executive necessity, that is, the doctrine that the Crown cannot bind itself so as to fetter its future executive action."

and the learned Judge held that this doctrine applies in India. H In Century Spinning & Manufacturing Co.Ltd. & Anr. v. The lllhasnagar Municipal Conncfl & Anr., [1970] 3 S.C.R. 854, Shah,

EXPRESS NEWSPAPERS v. u.0.1. [A.P. SEN, J.] 547

A J. in remanding the petition to the High Court which it had dismissed in limine again observed

"In I:ndo-Afgban' 8 case this Court held that the Government is not exempt from the equity arising out of the acts done by· citizens to their prejudice, B relying upon the representations as to its future conduct made by the Government. This Court held that the observations made by Denning, J. in llobertsan'a case applied in India." ' The learned Judge observed that the court was not concerned with ·C the principle which was dis-approved by. Lord siim>nds in Pal-'11 a case and he added

"If our nascent democracy is to thrive different standards of conduct for the people and the public bodies cannot ordinarily be permitted. A public body D is, in our judgment, not exempt from liability to carry out its obligation arising out of representa- tions made by it relying upon which a citizen has altered his position to his prejudice."

In llctilal Psd!IMp"t Sagar Mills Co.(P) Ltd. v. State of Utter E Pradesh & Ors., (1979] 2 S.C.R> 641, Bhagwati, J. spesk1ng for himself and Tulzapurkar, J. laid great stress on the facts that the principles laid down by Denning, J. in Ro~'a case were accepted by the Court in the Indo Afghan' a case but accepted the rejection of Lord Simnds and Lord Normands in Pal-"'a case of the extended principles enunciated by Denning, J. in Bo~'• caae as laying down the ·correct law. But the learned Judge went F down to say that this rejection did not mean thAt there could be no estoppel against the Crown or the public authority.

I 811 not oblivious that there was a discordant note struck by Kailasam, J • speaking for himself and Fazal All., J. in .Jit Ila .Shiv s-r & Ors. v. State of 11aryam & Am., (1980] 3 s.c.R. G 689, holding that the doctrine of promissory estoppel cannot be invoked for preventing the Government from discharging its functions under law. It la also not applicable when the officer and the Government act outside the scope of their authority. The doctrine of ultra vires will in that event come into operation and the gove,;=t "CiiiiiiOt be held bound by the unauthorized acts of his officers. H

548 SUPRl!HI! COURT REPORTS (1985) SUPP.3 s.c.R.

A It is not necessary for purposes of this judgment to resolve the apparent conflict between the decision of the Bhagwati ,J. in Motilal Padampat Supr Kills' case as to the applicability of the doctrine of estoppel for preventing the Government from discharging its functions under the law. In public law, the most B obvious limitation and doctrine of estoppel is that it cannot be evoked so as to give an overriding power which it does not in law possess. In other words, no estopJ>el can legitimate action which is ultra vires. Another limitation is that the principle of estoppel does not operate at the level of Government policy. Estoppels have however been allowed to operate against public authority in minor matters of formality where no question of c ultra vires arises : Wade, Administrative law, 5th edition, PP• 233-34-.-

The principles laid down in llaritime Elec. Co. v. General Dairies Ltd., [1937] A.C. 610 p;c., and by Lord Parker, CJ. in Southend on Sea-Corporation v. Boclgeson (Wickford) Ltd., [1962) 1 Q.B. 416, relied upon by learned counsel appearing for respondent D no. l the Union of India are clearly not attracted in the facts and circumstances of the present case. In the present case, admittedly, the then Minister for Works & Housing acted within the scope of his authority in granting permisssion of the lessor i.e. the Union of India, Ministry of Works & Housing to the Express Newspapers Pvt. Ltd. to construct new Express Building E with an increased FAR of 360 with a double basement for instal- lation of a printing press for publication of a Hindi newspaper under the Rules of Business framed by the President under Art. 77(3). Therefore, the doctrine of ultra vires does not come into operation. In view of this respondent no.l the Union of India is precluded by the doctrine of promissory estoppel from questioning F the authority of the Minister in granting such permission. In that view, the successor Government was clearly bound by the - decision taken by the Minister particularly when it had been acted upon.

Quantum of conversion charges Extent of Liability G Forum of determination.

During the course of hearing, we wanted the parties to clarify the exact legal position. Shri Arun Jetley appearing for the Express Newspapers . Pvt. Ltd. made a statement that the' Express Newspapers Pvt. Ltd. sought permission to construct the H new Expr~ss Building with an FAR of 360 for the purpose of their press only as they intended to start a Hindi daily newspaper from

EXPRESS NEWSPAPERS v. U.O.I. [A.P. SEN; •·I 549

A Delhi. He·clarified that the sub-letting of portions thereof in the year 1982 to the Reserve Bank of India and the Steel Autho- rity of India with the permission of the Court was subject to the giving of an undertaking by the sub-lessees that they would vacate the premises under the orders of the Court, and this was purely an ad-interim arrangement. He further stated that the B Express Newspapers PVt. Ltd. in these petitions do not claim to enforce any right to sub-let any part of the n..,.' building; and, if and when they seek to sub-let any part thereof, they would apply to the lessor i.e. the Ministry of Works & Housing for permission. for change of user and pay the necessary additional ground rent and conversion charges as applicable to others in the c ptess Enclave situate at Bahadurshah Zafar Marg.

Dr. L.M. Singhvi appearing for respondent no.5, the Land & Development Officer made a statement that the notice issued by the Engineer Officer dated March 10, 1980 in supersession of his earlier notice dated March 7, 1980 was issued on behalf of the D Land & Development Officer not because there was any breach of the terms of the lease by the Express Newspapers Pvt. Ltd. by the construction of a new building with an FAR of 360 together with the existing Indian Express Building, but because of non- submiasion of the sanctioned plan to the Land & Development Officer and construction of the new building without the sanction of the lessor i.e. the Union of India. He clarified that the Land & Development Officer is not an authority competent to question the decision of the Ministry of Works & Housing to permit construction of the Indian Express Building covering an FAR of

360. The whole purpose of the aforesaid notice of the Engineer Officer dated March 10, 1980 sent on behalf of the Land & Development Officer was to realize the amount of Rs. 54,000 which had been refunded on account of the portion kept green being built up and for the purpose of checking the deviations, if any, from the sanctioned plan.

Undoubtedty, the Express Newspapers PVt. Ltd. are liable to pay conversion charges in terms of cl.2(7) of the lease-deed but c the question is : haw 1111ch is the amount and what should be the basis. On this vexed question, the submissions advanced furnish no easy solution for us to adjudicate becauae it involves technical expertise. According to Shri Nariman, learned counsel for the petitioners no conversion charges are payable in respect of the new Express Building with an increased FAR of 360 built on the residual area of 2740 sq. yards as per the circular of the H Govemment of India, Ministry of Works & Housing dated February

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

A 19, 1970 apart from Rs. 54,000 towards additional premium for change of use of the leased land, which was non-buildable becoming buildable with the reiooval of the underground sewer-line, and additional ground rent at 2-2/1% of the additional premium. According to him, the distinction now sought to be drawn by respondent no.5, Land & Development Officer ll between conversion of green area to 'newspaper' and thereafter to commerc1al. is nowhere borne out from any notification, order or even practice of the Land &Development Office. The only two sets of. rates prescribed are for 'residential' and for 'connnercial' use for newspapers. Newspaper press is, in fact, not a connnercial use under the Master Plan. Even taking the commercialization rate of Rs.750 per sq.yard for the residual area of 2740 sq.yards at c the date of permission for the residual area, the amount works out to 2740 x 1/2 • 11.02 lacs. Upon that basis, out of this, a sum of Rs. 6.9 lacs was admittedly spent by the Express Newspapers Pirt. Ltd. for diverting the sewer to make the land buildable. The rate of commercialization charges was admittedly Rs.750 per sq.yards in the press area in the Mathura Road connnercial complex for the period from April 14, 1976 to March IJ 31, 1979 when there was an upward revision of the said rates. Our attention was drawn to the notification of the Government of India dated May 15, 1974 laying down rates for the period from April 14, 1976 (item 67 relates to the press area) and the notification dated June 25, 1979 revising the above rates w.e.f. April 9, 1979 (Group 3, item 5 relates to the press area).

It ~s further submitted that the fot'llllla furnished by Dr.Singhvi, learned counsel appearing for respondent no.2, the Lt. Governor and respondent no.5 the Land & Development Officer for computation of conversion charges for change of user is wholly inaccurate. It overlooks the fact that the connnercial charges would be only 50% of the difference between the market value on the date of conversion and the premium already paid. That this is the correct fornnla is disclosed by the Government to Parliament. According to the fot'llllla, only 50% of the difference between the current market value on the date of conversion and the premium paid previously is payable as additional premium to the Government and not 100% of the said difference, as asserted. The learned counsel submits that in view of the stand taken by the Land & Development Officer who evidently has mis-stated vital facts and tried to mislead the Court the petitioners cannot hope any kind of justice at his hands. H

EXPRESS NEWSPAPERS v. U.O.I. [A,p, SEN, J.] 551

Shri Nariman further contends that although by reason of the circular of the Government of India dated February 19, 1970 whereunder the Express Newspapers PVt. Ltd. were not bound to pay any premium for additional construction in respect of the lease granted (even where the actual lease-deeds are no executed), nevertheless, they are prepared to pay whatever amount that this Court may deem fit as and by way of c0111Dercial charges in order to avoid another round of litigation. Alternatively, they were prepared as they have always been and what was stated at the very opening day of the hearing of thie case, to have this questi<>n of quantum of conversion charges determined by an impartial and independent person .like a retired Judge of the Supreme Court named by this Court, to which the r3sporulents were not agreeable. c Since there is no administrative or statutory remedy provided, he prayed that the Court may direct payment of such amount, if any as may be deemed ,just and proper particularly having regard to the fact that even if the open land of 2740 sq.yards were allotted for the first time in 1978 to a particular person for cO!llllercial purpose, the only charge that can be levied would be D market rate of Rs. 750 per sq.yards i.e. aggregate of Rs.2i.05 lacs. Of this olily 50%, namely, Rs.ll.02 lacs is recoverable by the lessor i.e. the Union of India, Ministry of Works &Rousing as per norms • • The Land & Development Officer had filed a note that the E Express Newspapers Pvt. Ltd. did not end have not come to him with sanctioned plan of the Municipal Corporation of Delhi and were now seeking to avoid a 100netary liability arising from their real intention of turning the new Express Building into a real estate venture by grossing nearly a cro~e of rupees of rental per 100nth by means of this writ petition. It is stated that the liability of the Express Newspapers PVt. Ltd. now is enormus F because of C0111Dercial sub-letting instead of newspaper use. They have not yet applied to the lessor and as and when they do, they would be liable to pay conversion charges at the prevailing rates. That would obviously come to a amount uuch larger than Rs. 50,425 tendered by the Express Newspapers Pvt. Ltd. bY cheque dated September 21, 1982 because of adm1tted cO!llllercial sult-lett- G ing. Be stated that the Express Newspapers Pvt. Ltd. would have to pay a large amount of 100ney as sub-letting charges as permis- sion for FAR of 360 though illegally given, was accorded only for newspaper use. The Express Newspapers PVt. Ltd. therefore stand to gain crores of rupees in rental income at the rate of Rs. 16 per oq.ft. per 100nth from the huge additional construction. If and when permission is granted under the lease they wou',d have to H

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

A mak.e at least one lumpswn payment to the lessor who owns the land in addition to further additional ground rent. It is accordingly stated that the Court should extend no assistance to the Express Newspapers Pvt. Ltd. from avoiding the norms and procedure for obtaining the sanction of the lessor i.e. by applying to Land & Development Officer and from evading payment B of charges uniformly levied. Further if the original declared 'raal and genuine intention' of using the space for its newspaper vu adhered to by the Express Newspapers PVt. Ltd. their monetary liability would be very small.

The Lsnd & Development Officer furthe~ asserts that the petitioners apprehended. that if their real intention of c coa1111rcial sub-letting were to be disclosed, they would have had to make payment and comply with the terms which they wanted to evade and avoid. That is why instead of complying with the noticP. of the Engineer Officer dated March 10, 1980, the petitioners moved this Court through the present writ petitions on April l, 1980 alleging breach of their fund""""'tal rights under Art.19(1) (a), Art. 14 and Art. 19(l)(g) of the Constitution and obtained D ad-interim ex-parte stay on April 7, 1980. It was clear from the writ petitions that by the end of February, 1980 the entire structure of the new Express Building except the small pcirtion were completed at a cost of approximately Rs. 1.30 crores.

While accepting that the conversion charges for the new E Express Building build on the residual area of 2740 sq. yards utilized for newspapers use would amount to Rs.54,000, the Land & Development Officer hes also "without prejudice" to the rights and contentions of the respondents tentatively worked out the conversation charges as indicated in the following chart : F l. Conversion charges for changing use of 2740 sq. yards of open area from green to buildable area for Newspaper Press, the purpose for"Which plot nos.9 and 10 were allotted as per or:lg1na1 allollm!nl: and Perpetual Lease. G Total area to be kept vacant 2740 sq. yards, as per perpetual lease cl.2(14) = 0.566 acres

Conversion charges now to be recovered for construction of additional building on the open H area for starting a Newspaper =

EXPRESS NEWSPAPERS v. u.o.r. [A.P. SEN, J~] 553

A Area of vacant land now permitted to be built up x (concessional rate for newspaper press - Rate for lsnd · to be kept open already charged) B The concessional rate applicable for newspaper use for all . press plots in Mathura Road i.e. Rs.1.25 lacs per acre and the vacant land in plots 9 and 10 was charged at Rs.36,000 per acre.

2. Additional ground rate (AGR) payable per annum on this c account ~ Conversion charges ) ) x 2-1/2% for green space )

Arrears of A.G.R. from 1978 to 1983 (five years) plus interest. D Dr. Singhvi appearing for respondent no.5, Land & Develop- ment Officer submits that unless the Express Newspapers Pvt. Ltd. furnished the Municipal Corporation of Delhi the sanctioned plans asked for in the impugned notice, it is not possible towork out the conversion charges and other ch:rrges and submi't the same for approval to the Ministry of Works & Housing snd after receipt of their approval to intimate the smre to the lessee i.e. the Express Newspapers Pvt. Ltd. According to the learned counsel a rough estimate of the charges payable by the Express Newspapers Pvt. Ltd. on the basis of the date available with the Municipal Corporation of Delhi was arrived at as given in the chart given above, if commercial sub-letting. were to he permitted. On the basis of the calculations therein the estimated conversion charges come to approximately Rs.3.30 crores. The learned ~ounsel also stated that on the admitted position the only rental@ 16.5 per sq.ft. per month collected by the Express Newspapers Pvt.Ltd. would be Rs. one crore per year approximately.

We cannot possibly in these proceedings under Art.32 under- G take an adjudication of this kind but I am quite clear that respondent no.5 the Land & Development Officer having already indicated his mind that the amount of conversion charges would be more than Rs. 3.30 crores, it would not subaerve the interests of justice to leave the adjudication of a question of such magnitude to the arbitrary decision of the Land & Development Officer who is a minor functionary of the Ministry of Works & Housing. We H were infol"!Led by Shri Sinha, learned counsel for respondent no.l,

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

A the Union of India that the Central Government were contemplating to undertake a legislation and to provide for a forum for adjudication of such disputes. As stated earlier, we had suggested that the dispute as to the quantum of conversion charges payable be referred to the arbitration of an impartial II person like a retired Judge of the Supreioo Court of India, but this was not acceptable to the respondents. The Union of India may in the contemplated legislation provide for the setting up of a tribunal with a right of appeal, may be to the District Judge or the High Court, to the aggrieved party. If such a course is not feasible, the only other alternative for the lessor i.e. the Union of India, Ministry of Works &Housing would be to realize c the conversion charges and additional ground. rent, whatever be recoverable, by a duly constituted suit. Till then I would restrain the Union of Ind:La, Ministry of Works & Housing and the Land & Development Officer or any other officer of the Ministry from taking any steps for termination of the lease held by petitioner no.l, Express Newspapers Pvt. Ltd. for non-payment of conversion charges or otherwise for the construction of the ll Express Building till the final determination of such amount to be realized by a statutory tribunal or by a Civil Court.

For these reasons, I would, therefore, for my part, quash the impugned notices.

E The result therefore is that these petititons under Art. 32 of the Constitution llllSt succeed and are allowed with costs. The notice issued by the Engineer Officer, Land & Development Office dated March 10, 1980 purporting to act on behalf of the Government of India, Ministry of Works & Housing requiring the Express Newspapers Pvt. Ltd. to show cause why the lessor i.e. F the Union of India, Ministry of Works & Housing should not re- enter upon and take possession of plots nos. 9 and 10, llahadurshah Zafar Marg, New Delhi together with the Express Buil- ding built thereon, under cl.5 of the indenture of lease dated March 17, 1958 for alleged breaches of els. 2(5) and 2(14) thereof, and the earlier notice dated March 1, 1980 issued by the G Zonal Engineer (Building), City Zone, Municipal Corporation, Delhi requiring them to show cause why the aforesaid buildings should not be demolished under as. 343 and 344 of the Delhi Muni- cipal Corporation Act, 1957, are quashed. It is declared that the construction of the new Express Building on the residual portion of 2740 square yards on the western side of plots nos. 9 and 10, I! llahadurshah Zafar Marg with an increased FAR of 360 with a double baseioont for installation of a printing press for publication of

EXPRESS NEWSPAPERS v. u.o.r. [VENKATARAMIAH, J.] 555

a Hindi daily newspaper was with the permission of the lessor A i.e. the Union of India, Ministry of Works &Housing and did not constitute a breach uf clauses 2(5) and 2(14) of the lease-deed.

It is directed that the respondents, particularly the Union of India, Ministry of Works & Housing, the ·Delhi Development Authority, and the Municipal Corporation of Delhi, shall forbear B from giving effect to the impugned notices in the manner threatened or in any other manner whatsoever. It is further directed that the Union of India, Ministry of Worka & Housing shall enforce its claim for recovery of conversion charges by a duly constituted suit or by making a law prescribing a forum for adjudication of its claim. It is also directed that the Municipal c Corporation of Delhi shall compound the construction of the double basement of the new Express Building, the excess basement beyond the plinth limit and the underground passage on payment of the usual composition fee. ·

The petitioners shall be entitled to recover their costs from respondents nos. 1 and 2.

VENKATARAMIAH, J. I have gone through the judgment which my learned Brother Justice A.P. Sen has just now deliverd. l agree that Shri Jagmohan, Lt. Governor of Delhi, the second respondent herein, has taken undue interest in getting the impugned notices issued to the Ist petitioner and his action which has come up for consideration .in this case is not consistent with the normal standards of administration. l am satisfied that the said notices were issued by the authorities concerned under the pressure of the second respondent. The question whether the notices should be issued or not does not appear to have been conisdered indepen- dently by the concerend administrative authorities before issuing them. Shri Lal Narain Sinha, the learned counael for the Union Government has submitted that the Lt. Governor was a total stranger to the lease and had no sort of right or power under the lease deed to set in motion any action againat the lessees. He has further sulxnitted that the land leased under the lease deed being nazul land is exclusively owned by the Union Government and the powers delegated to the former Chief Commissioner of Delhi under the lease deed were no longer exercis'!ble by the present Lt. Governor of Delhi. Shri Lal Narain Sinha, learned counsel for the Union of India, specifically stated that on the date on which action was initiated in this case by the Lt. Governor against the petitioners, the Lt. Governor had acted without authority or H

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

A power. The clam of the Lt. Governor that he was the agent of the Union Government in regard to the lease in question and that he could take the steps he had taken under the lease thus stands repudiated. It is unfortunate that the Lt. Governor persisted in justifying his action even after the learned counsel for the Union of India had disowned all the actions of the Lt. Governor. The Lt. Governor failed to make a distinction in this case between the power with respect to the subject 'Property of the Union and the revenue therefrom' which is in Entry 32 of List I of the Seventh Schedule to the Constitution and the general powers of administration entrusted to him under Article 239 of the Constitution as the Ad!tinistrator of the Union Territory of Delhi. The property in question is a part of the estate of the c Central Government. Mere nearness to the seat of the Central Government does not clothe the Lt. Governor of Delhi with any power in respect of the property of the Central Government. He can dishcarge only those powers which are entrusted to him by the Constitution and the laws.

It is also not correct to claim that all the powers of the D former Chief Commissioner of Delhi have devolved on the Lt. Governor and continue to vest in him. It is surprising that the Land and Development office which is under the Central Government, functioned in this case as an office under the Lt. Governor of the Union Territory of Delhi and even in the conduct of this case it allowed itself to be controlled and guided by the Lt. Governor till a very late stage when Shri Lal Narain Sinha, learned counsel for the Union of India took a definite stand and submitted that the Lt. Governor had no voice in the matter.

The material available in this case is sufficient to hold that che imilugned notices suffer from arbitrariness and non- F application of mind. They are violative of Article 14 of the Constitution. Hence they are liable to be quashed. It is not necessary therefore to express any opinion on the contentions based on Article 19(l}(a} of the Constitution.

The rest of the questions relate truly to the civil rights G of the parties flowing from the lease deed. Those questions cannot be effectively disposed of in this petition under Article 32 of the Constitution. The questions arising out of the lease, such as, whether there has been breach of the covenants under the lease, whether the lease can be forfeited, whether relief against forfeiture can be granted etc. are foreign to the scope of H Article 32 of the Constitution. They cannot be decided just on

EXPRESS NEwSPAPrns v. u.o.r. rms&A,-:7.] 557

affidavits. lhese are matters which should be tried in a regular civil proceeding. One should remember that the property belongs to the Union of India and the rights in it cannot be bartered away in accordance with the sweet will of an Officer or a Minister or a Lt. Governor but they should be dealt with in accordance with law. At the same time a person who has acquired rights in sucq property canot also be deprived ot them except in accordance with law. 1be stakes in this case are very high for both the parties and neither of them can take law into his own hands.

I, therefore, quash the impugned notices and tlirect the r.espondents not to take any further action against the petitioners pursuant to them. I express no opinion on the rights of the parties under the lease and all other questions argued in this case. They are left open to be decided in an appropriate proceeding. It is, however, open to both the parties if they are so advised to take such fresh action as may be open to them in law on the basis of all the relevant facts including those which L existed before the impugned notke dated March 10, 1980 was issued by the Engineer Officer of the Land and Development Office to vindicate their respective rights in accordance with law. This order is made witout prejudice to the right of the Union Govern- ment to cOID.pound the breaches, if any, committed by the lessee and the regularise the lease by receiving adequate premium there- E fore from the lessee, if it is permissible to do so.

It is open to the Delhi Municipal Corporation to examine the matter afresh independently and to take such action that may be open to it in accordance with law. The Delhi Municipal Corporation may, if so advised, instead of taking any further action against the petition~rs permit the petitioners to compound the breaches, if any, conmitted by them in accordance with law.

I allow the petitions accordingly. The costs of the peti- tioner No. 1 shall be paid by the Union Government and the Lt. Governor of Delhi· There shall· be no order as to costs agS.inst the other respondents. The other petitioners shall bear their costs.

MISRA, J. I have perused the judgment prepared by brother Justice A.P. Sen as also the judgment of brother Justice E.S. Venkataram'iah. While I agree that the impugned notices threaten- ing r~-entry and demolition of the construction are invalid and have no legal value and must be quashed for reasons detailed in R

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

the two judgments, which I do not propose to repeat over again, I A am of the view that the other questions involved in the case are based upon contractual obligations between the parties. These questions can be satisfactorily and effectively dealt with in a property instituted proceeding or suit and not by a writ petition on the basis of affidavits which are so discrepant and contra- dictory in this case. B The right to the land and to consturct buildings thereon for running a business is not derived from Article 19(l)(a) or 19(l)(g) of the Constttution but springs from terms of contract between the parties regulated by other laws governing the subject, viz., the Delhi Development Act, 1957, the Master Plan, the Zonal Development Plan framed under the Delhi Municipal c Corporation Act and the Delhi Municipal Bye-laws, 1959 irrespec- tive of the purpose for which the buildings are constructed. Whether there has been a breach of the contract of lease or whether there has been a breach of the other statutes regulating the construction of buildings are the questions which can be properly decided by taking detailed evidence invloving exami- nation and cross-examination of witnesses. D I accordingly allow the writ petitions with costs against the Unior Government and the Lt. Governor of Delhi and quash the impugned notices.

REVIEW PETITION NO. 670 OF 1985 E

We have gone through the application for review and the connected papers. The application is supported by an affidavit by the petitioner Jagmohan, former Lieutenant-Governor of Delhi who F was respondent no.2 in Writ Petitions Nos. 535-539 of 1980, decided on October 7, 1985. He seeks review of the judgment delivered by this Court principally on the ground that there is an error apparent on the face of the record as the judgment turns on certain arguments and statements atlributed to Shri L.N. Sinha, learned counsel appearing for respondent no.1, the Union G of India and to Shri M.C. Bhandare, learned counsel appearing for respondent no.3, Municipal Corporation of Delhi. The petitioner Jagmohan avers in the affidavit that the contents of Paras 1 to 3 are true to his knowledge and based on information derived from the counsel appearing in the case which he believes to be true. Along with the application for review he has annexed a letter H dated October 12, 1985 addressed by Shri P.P.Singh who was assisting Shri L.~.Sinha asserting that the learned counsel had

EXPRESS NEWSPAPERS V' u.o.r. [SEN, J.] 559

never advanced.the arguments attributed to him the judgment and a A letter of Shri M.C. Bhandare, dated October 13," 1985 addressed to Shri B.P. Maheshwari, Advocate-on-Record of respondent no.3, Municipal Corporation of Delhi denying that he ever made the statement attributed to him at pp. 189-190 of the judgment delivered by one of us (Sen, J). In the first letter, Shri p,p; Singh writes to say : I!

"There are certain statements in the judgment which are attributed to Shri Sinha having made in the course of his arguments which do not seem to be correct as having been made by him. I have discussed the matter with Mr. Sinha and he agrees with me that it is not C correct that he made the following statements during his course of arguments :

(a) ''He has further submitted that the land leased under the lease deed being nazul land is exclusively owned by the Union Government and the powers delegated ll to the former Chief Comnission of Delhi under the lease deed were no longer exercisably by the present Lt. Governor of Delhi."

(b) ............ on the date on which the action.was initiated in this case by the Lt. Governor against the E petitioner the Lt. Governor had acted without autho- rity or power."

(c) That "the Learned Counsel for the Union of India had di,sowned all the actions of the I,t. Governor."

(d) That the Learned Counsel for Respondent NQ.l i.e. F the Union of India "contended that Lt. Governor, as an Administrator had no function as the Lessor or its delegatee"

(e) That "the Lt. Governor could not usurp the powers and functions of the Union of India in relation to the G property of the Union and therefore had no functions in relation to the lease in question"

(f) That "the Central Government were contemplating to undertake a legislation and to provide for a Forum for adjudication of such disputes H (Shri Sinha did inform the Court that he had advised the Central Government to undertake a legislation for

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

A empowering the Government to condone the violations of the nature involved in the present case in public interest)''

••••••• It is i9correct as stated at pages 90-91 of the Judgment that the Learned Counsel for the Union of B India conceded that the Impugned Notice was invalid and had no legal effect."

In the second lelter Shri M.C. Bhandare writes to Shri B.P. Maheshwari, and states

"Your clients, the Municipal Corporation of Delhi, c have acquired from you as to how Bis LoDdship Mr. Justice A.P. Sen, in his judgment has made the following observations

"Shri M.C. Bhandare, learned counsel appearing for respondent nos. 3 & 4, Municipal Corporation of Delhi and Zonal Engineer (Building), City Zone, Municipal D Corporation, Delhi is fair enough to state that if the Express Newspapers Pvt. Ltd., were to make an appli- cation for modification of the sanctioned plan pertaining to the new building with respect to the basement and the working platform which according to the Municipal Corporation constitute double basements and the inter-connecting underground passage connect- ing the existing Indian Express Building, the same shall be considered having regard to consideration of ju•tice and the needs of the peti~ioners and also taking into consideration that the new building has been constructed for installing a printing press and that the press so installed cannot function without the working platform which the Express Newspapers Pvt. Ltd., have already constructed, as well as the fact that the underground passage has been constructed by them for inter-connecting the new building with the existing Indian Express Building. He further states that the Nunicipal Corporation will compound the deviation which is minimum on payment of such composi- tion fee as is payable under the bye-laws.

Learned counsel states that this shall not be treated as a precedent for others." H (pages 189-190 of the Judgn.ent)"

EXPRESS NEWSPAPERS v. U.O.l. [SEN, J.] 561

After setting out what he mentions were his submissions, h~ says: A ".•., •••• I never made the statement attributed to me. However, 1 did say that any cause shown by the petitioners would be considered in accordance with law. 1 may categorically state that there was no statement on my part that the deviation were minillJ.Jlll or that the Municipal Corporation ' of Delhi would II compound the deviations on payment of such composition fee as was payable und.er the bye-laws. Thia ass!Jmea that the composition is permissible under• the bye-laws, which was a disputed matter. 1 did not state that this should not be treated as a precedent for others. 1 never made an argument whereby 1 contended c that there would be a diecriminstory treatment either in favour or against the Indian Express."

He thus categorically asserts that there was no statement on bis part that the deviations were minimal or that the Municipal Corporation of Delhi would compound the deviation on payment of such composition fee as payable under the !lye-laws. Further, he denies that he ever stated that composition of the deviations, according to bis statement, by the Municipal Corporation of Delhi should not be treated as a precedent for others.

It is unfortunate that the two senior counsel have chosen this devious and, indeed, curious method of disowning arguments advanced by them. !he proper thing for them to do would have been to file affidavits and either file petitions for review or have the matters listed, with the permission of the Court, for being mentioned. Instead, the ~ operandi adopted was to address letters to the Advocates-on-Record who in turn have, for reasons best known to them, passea on the letters to the petitioner Jag- F mohan who was not their client at all. Advance copies of this petition laying emphasis on the aforesaid two letters of counsel appearing for other parties which, we do not doubt have the effect of scandalizing the Court, appear to have been given to the press for publication. We deprecate the conduct of those involved in thie unsavoury event. We feel greatly concerned that G the advocates of this Court who are not mere pleaders for parties but officers of the Court should stoop to such blameworthy tactics, unworthy of the high traditions of the noble and learned profession to which they belong. We feel grieved and not a little perturbed at all this. H Every word written in the judgment for111.11ating the arguments advanced by Shri L.N. Sinha, learned counsel for respondent no.l,

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

A Union of India is taken from our minute-books in which we noted the arg!Dllents of counsel almost verbatim during the course of 'hearing particulary because the matter involved questions of grave public importance. It is therefore highly improper for Shri p,p, Singh who was assisting Shri L.N. Sinha to suggest in his letter dated October 12, 1985 that the argument attributed to B learned counsel for respondent no .1 in the judgment were never advanced by him. We cannot possibly act on any correspondence that passed between the petitioner Jagmohan and Shri p,p, Singh, Advocate-on-Record of respondent no.l., Union of India or that between Shri M.C. Bhandare, and Shri B.P, Maheshwari, Advocate- on-Record for respondent no.3, Municipal Corporation of Delhi.

C As regards the allegation made by Shri M.c. Bh'andare in his letter dated October 13, 1985 addressed to Shri B.F. Maheshwari it is enough to mention that we recorded three statements made by counsel during the course of hearing. We distinctly remember that on September 14, 19o3 during the course of hearing we required learned counsel appearing for the parties to clarify the legal position. Two of the statements were recorded on September 14 D 1983, one by Dr. L.M. Singhvi appearing for respondent No. 2, Lt. Governor of Delhi and respondent· No. 5, Land & Development Officer as to the amount of conversion charges payable, and the other by Shri Arun Jaitley appearing for the petitioners regard- ing the willingness of the Express Newspapers Fvt. Ltd. to pay the conversion charges. The third staten.ent by Shri M.C. Bhandare E learned counsel for respondent No. 3, Municipal Corporation of Delhi was recorded on September 15, 1983 signifying the willing- ness of the Municipal Corporation of Delhi to compound the devia- tions as they were minimal on payment of the usual composition fee. We have satisfied ourselves by perusing the ~dnutes of the Court proceedings as recorded by the Court ~iaster on September 14 F and 15, 1983 that the statements of all the three counsel were recorded in the minutes. We have no doubt that the statements were shown to all the counsel.

The typescript of the statement made by Shri M.C. Bhandare as recorded in the Minutes of the Court proceedings by the Court G Master on September 15, 1983 reads as follows :

""Shri Bhandare appearing for the Municipal Corporation is fair enough to say that the petitioner would make an application for modification of the sanctioned plan with respect to the basement and the working R platform and the inter-connecting underground passage

EXPRESS NEWSPAPERS v. U,0,1. [SEN, J,] 563

the same shall be considered having regard to the considearation of justice and the needs and also taking into consideration that the building has been constructed for installing a printing press and that the press cannot function without the working platform which is already constructed. The :!.earned counsel states that this shall not be treated as precedent for others. The Municipal Corporation will compound the deviation which is minimum on payment of whatever"' composition fee. 11

The statement attributed to Shri M.C. Bhandare learned counsel for respondent No. 3 at pp.189-190 of the judgment is virtually a verbatim reproduction of the correct draft prepared from the rough draft of the statement actually made by him in Court subject to certain grammatical variations signifying the willingness of the Municipal Corporation of Delhi to compound the deviations as they were minimal on payment of the usual composition fee. D

We are constrained to observed that the review application is lacking in bona £ides, based on false averments and constitutes a flagrant abuse of the process of the Court. The allegations contained in the aforesaid two letters are wholly inaccurate and totally false. Such attempts to question the sanctity of the Court proceedings unless ruthlessly curbed will have the tendentious effect of making fearless dispensation of justice by the Courts in India almost impossible.

We had been extremely indulgent with the petitioner Jagmohan, who was respondent No. 2 in the aforesaid Writ Petitions. ln the joint counter filed by him on behalf of the respondents he made several statements which were far from accurate but we refrained from taking any action. 'Th.is crude attempt on his part by filing this review application on totally false allegations is an attempt to subvert the course of justice. His conduct in casting serious aspersions on the Court b) suggesting in paragraph 10 that the delay in the pronouncement of the judgment was responsible for 'facts stated and submissions made on behalf of the respondent, having a decisive bearing on the case' escaping ' the attention of their Lordships' virtually BIOOunts to gross contempt of Court. We cannot also help in observing that there has in this case been lamentably complete lack of candour and want of probity on the part of some of the counsel in making factually incorrect statements and thereby casting aspersions on the Court.

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

A The review application is accordingly dismissed.

Nothing that we have said will affect the separate judgments delivered by each one of us.

We direct the Registrar of this Court to keep the documents B enumerated hereinafter in sealed covers under his custody, ..namely:

1. The minute-book of the Court proceedings maintained by the Court Master, dated September 14 and 15, 1983. c 2. The original draft typescripts of the aforesaid statements prepared by the Court Master on September 14 and 15, 1983.

3. The shorthand notebook of the Private Secretary to D Sen, J. dated September 15, 1983 from which the correct drafts of the statements actually made by the counsel on September 14 and 15, 1983 were prepared.

4. The fair drafts prepared by the Private Secretary of the said statements on September 15, 1983.

The Registrar shall also keep the original records of Writ PetitiOllll Nos. 535-539 of 1980 in a separate sealed cover under his custody. F

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