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EXPRESS NEWSPAPERS LTD. vs UNION OF INDIA (UOI)

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

CORAM:
JUSTICE PRATHIBA M. SINGH

JUDGMENT

Prathiba M. Singh, J.

CONTENTS
S. No.
Particulars
Paragraphs
1.
Brief Facts
1-5
2.
Background
6-14
3.
The Backdrop of the Emergency and the decision of the Supreme Court
15-20
4.
Developments post the judgment of the Supreme Court dated 7th October, 1985
21-29
5.
Proceedings in the Suit
30-39
6.
Submissions on merits
1. Submissions on behalf of Express Newspapers
2. Submissions on behalf of L&DO
40-45
7.
Analysis of evidence
1. Evidence on behalf of Union of India
a. Evidence on behalf of PW-1
b. Evidence on behalf of PW-2
2. Evidence on behalf of Express Newspapers
a. Evidence on behalf of DW-1
46-49
8.
Findings
50-63
9.
Issue wise findings
64-101
10.
Computation
102-117
11.
Conclusion
118-120
BRIEF FACTS

“A free press is one of the pillars of Democracy”
– Nelson Mandela1
1. In the judicial history of a nation, the impact of some cases is beyond their own facts, with larger ramifications for institutions, citizens and their Rights. The present dispute between a well-known media house and the Government has spanned over five decades, witnessing critical historical events such as the Emergency and its aftermath. The dispute erupted as a result of action taken by the then Government in 1977-79, against a media house, for its fair and independent role during the Emergency imposed between the years 1975-19772. Ultimately, the Rights enshrined in the Constitution of India have emerged more powerful and stronger with the seminal decision rendered early on by the Supreme Court3 in exercise of its jurisdiction under Art.32 of the Constitution.
2. The present two suits i.e., CS(OS) 2480/1987 and CS(OS) 52/1988 are related to a premises leased to Express Newspapers Ltd. i.e., Plot Nos. 9-10, Bahadur Shah Zafar Marg, New Delhi-110002 (hereinafter ‘suit property’) which is a publisher of various Newspapers and magazines including Indian Express. Broadly, there are only two parties involved in the present dispute i.e., the media house and the UOI. However, certain tenants

of the media house as also the promoters were impleaded. For reference purposes, the parties arrayed are set out below:

CS(OS) 2480/1987
Plaintiff
Defendant
The Union of India, represented by the Land & Development Officer
Express Newspapers Pvt. Ltd.

M/s. Greaves & Cotton Ltd., Express Building, Ground Floor

M/s. Shri Ram Fibres Ltd., Express Building

M/s. Steel Authority of India Ltd., Express Building

National Bank for Agriculture and Rural Development, Express Building

Hindustan Lever Ltd., Express Building

Punjab National Bank, Express Building

Minerals and Metals Trading Corporation of India Ltd., Express Building

CS(OS) 52/1988
Plaintiff
Defendant
Union of India
Express Newspapers Ltd. & Ors. (hereinafter collectively referred as ‘Express Newspapers’)
Land & Development Officer
(hereinafter collectively referred as ‘UoI’)

Indian Express Newspapers (Bombay) Pvt. Ltd.

Ramnath Goenka, Chairman, Indian Express Newspapers (Bombay) Pvt. Ltd.

Ms. Ritu Goenka, Joint Managing Director, Express Newspapers Ltd.

3. The details of the proceedings which have been heard and in which the present judgment is being pronounced are as follows:
CS(OS) 2480/1987 – UoI v. Express Newspapers Ltd. & Ors.
4. This suit has been filed by the Union of India seeking possession of the suit property as also other ancillary reliefs including damages and mesne profits. The prayer also sought interest at the rate of 18% p.a. for the amount pending, rent, occupation charges, damages and misuser charges etc., to the Land and Development Officer from 9th November, 1987.
CS(OS) 52/1988 -Express Newspapers Ltd. & Ors. v. UoI & Anr.
5. A subsequent suit was filed being ‘M/s. Express Newspapers Ltd. & Others v. Union of India & Anr.’ seeking relief against notice of re-entry and ejection dated 2nd November, 1987 issued by Land & Development Officer to M/s. Express Newspapers Ltd. & Others, declaring them as illegal.
BACKGROUND
6. By way of background, it deserves to be noticed that initially, Express Newspapers were allotted plot nos. 1 and 2 which were close to the Tilak Bridge, ITO, New Delhi. These plots were part of the ten plots which were earmarked for the press/publications and were loosely termed as the Press Enclave. It is averred that due to a specific request made on behalf of the then Prime Minister – Pandit Nehru, as per the record, the founder of the Express Newspapers, Mr. Ram Nath Goenka surrendered plot nos. 1 and 2 and as an alternative, present plot nos. 9 and 10 were allotted, as the said plot nos. 1 and 2 were to be allotted for the establishment of the Gandhi Memorial Hall (Pyare Lal Bhawan). The intended lease agreement for Plot nos. 9 and 10, was executed on 17th November, 1952 and the agreement for lease was entered on 26th May, 1954. During construction, an underground sewer pipe line was discovered. This resulted in a change in the construction, which was planned for the building and a revised allotment was made. The terms of the revised allotment dated 11th April, 1956 were that the building line should be 25ft. away from the east side of the Central line of the sewer and excavation of foundation shall not be less than 20 ft. away from the central line of the sewer.
7. Consensus was arrived at to undertake construction only east of the drain until the drain is shifted. The revision was made accordingly and the allotment took place by which the two plots were divided diagonally. As per this revised lease deed dated 11th April, 1956 read with 14th May, 1956 and 19th May, 1956, the allotment of land to the Indian Express was on the following basis:
* 2965 sq. yds. to the east of the pipeline was marked for construction of the building and;
* 2740 sq. yds. to the west of the pipeline was to be maintained as open space.
8. A perpetual lease deed was then executed, after the construction of the building, in terms of the revised allotment on 17th March, 1958 wherein clauses 2(7) and 2(13) stipulated certain restrictions i.e., the suit premises will not be used for any other purposes apart from Newspaper press and certain residential flats. However, by then, permission was sought by Express Newspapers for using the building and the surplus area for non-Newspapers purposes i.e., for general commercial purpose. Correspondence ensued between the parties, in this regard.
9. Finally, on 15th January, 1960 and 23rd February, 1960, permanent change of purpose was permitted in respect of 1 lakh sq. ft. out of the total 1.50 lakhs, subject to payment of additional premium at Rs.3,75,000/- per acre. Pursuant to this understanding which was arrived at between the parties, various commercial lessees/tenants were inducted by Express Newspapers.
10. According to the L&DO, however, formal permission was still required from the Ministry, which as per Express Newspapers, was not required. Various demands were raised by L&DO in the year 1962 which according to the Defendants stood paid. The supplemental lease deed was then executed on 17th November, 1964 which recognized the use of 1 lakh sq. ft. for a non-newspaper purpose i.e., general commercial purpose.
11. Express Newspapers on 25th October, 1977 applied to the Ministry for Works & Housing for shifting of the sewer pipe line to enable the land located west of the drain to be made usable as they wanted to start a Hindi Newspaper and inter-connect the proposed building with the existing one. Thereafter, vide letter dated 7th December, 1977, it was acknowledged that DDA has permitted 300% Floor Area Ratio(hereinafter ‘FAR’) and so the new construction should not exceed the same. Thus it was requested that the plot should only be treated as a commercial complex vide letter dated 31st December, 1977. Express Newspapers had also approached the Delhi Water Supply and Sewage Disposal (hereinafter ‘DWSSB’) and upon the feasibility of shifting being confirmed by DWSSB and MCD, Express Newspapers agreed to reimburse both these authorities the actual cost of reconstruction of the drainage and the shifting thereof. Subsequently, the DWSSB gave its approval to shift the existing trunk barrel vide letter dated 30th December, 1977.
12. Express Newspapers again sought approval for construction of a five storied building which was the original plan. A three-member committee from the Ministry inspected the land and on 9th June, 1978 and the construction was permitted, subject to the sewer line being diverted. The Urban Arts Commission also permitted the approval for the additional construction. On 11th September, 1978, the Ministry of Works & Housing, Land & Development Office directed Express Newspapers to pay damages with respect to unauthorised construction on the suit premises.
13. The DDA on 4th November, 1978 sanctioned FAR of 360 and the printing machinery was permitted to be installed in the basement. The Ministry of Works and Housing on 24th November, 1978 and 1st December, 1978 wrote to the DDA confirming that FAR 360 would be allowed and the same would be excluding the basement area. Additional construction was also permitted and plans for reconstruction were approved by the MCD. After construction, the area west to the sewer line was to be converted for commercial purposes and permission to change the user of the said area was also sought.
14. It is the stand of Express Newspapers that during this entire period, the L&DO and the Ministry of Works and Housing were kept duly informed. The letter dated 25th October, 1977, by which Express Newspapers had applied to the Ministry of Works and Housing for diversion of the sewer and change of user was sent to the L&DO. In January, 1980, however, after the general elections when a new government took over, an attempt to re-enter the building was made by the then Government vide re-entry notices dated 7th March, 1980 and 10th March, 1980 respectively, which is stated to be in contravention of the clauses 2(14) and 2(5) of the lease deed. The said notices were challenged before the Supreme Court in a petition under Article 32 of the Constitution of India, resulting in the decision which is discussed herein below.

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

15. It is the case of Express Newspapers that during the dark days of the Emergency, Express Newspapers and its owner at that time- Mr. Ram Nath Goenka had stood up to the excesses of the then Government.
16. This had saddled them with the consequences of a notice of re-entry dated 10th March, 1980 to the land where Express building is situated in the Bahadur Shah Zafar Marg, New Delhi. It was alleged in the said Notice that Express Newspapers did not take approval from the Land and Development Officer or Ministry of Works and Housing regarding construction on the open portion of the plot. This re-entry was directed by virtue of a notice issued on 10th March, 1980, which was dealt by the Supreme Court in its historic and seminal judgment titled Express Newspapers Pvt. Ltd. and Others v. Union of India and Others, 1986 1 SCC 133. The notices of re-entry and demolition were held to be impinging upon the Fundamental Rights guaranteed under Article 19 (1)(a) and (g) of the Constitution of India. The relevant observations of the Supreme court are set out below:
“73. Here, the very threat is to the existence of a free and independent press. It is now firmly established by a series of decisions of this Court and is a rule written into the Constitution that freedom of the press is comprehended within the right to freedom of speech and expression guaranteed under Article 19(1)(a) and I do not wish to traverse the familiar ground over again except to touch upon certain landmark decisions. In Romesh Thappar v. State of Madras [1950 SCC 436 : AIR 1950 SC 124 : 1950 SCR 594] the Court observed that the Founding Fathers realized that freedoms of speech and of the press are at the foundation of all democratic organizations, for without free political discussion no public education, so essential for proper functioning of the processes of popular Government, is possible. In Sakal Papers (P) Ltd. v. Union of India [AIR 1962 SC 305 : (1962) 3 SCR 842] (sic), the Court reiterated:
“Our Government set-up being elected, limited and responsible, we need requisite freedom of any animadversion for our social interest which ordinarily demands free propagation of views. Freedom to think as one likes and to speak as one thinks are as a rule indispensable to the discovery and separate of truth and without free speech, discussion may be futile.”
74.………
75. I would only like to stress that the freedom of thought and expression, and the freedom of the press are not only valuable freedoms in themselves but are basic to a democratic form of Government which proceeds on the theory that problems of the Government can be solved by the free exchange of thought and by public discussion of the various issues facing the nation. It is necessary to emphasize and one must not forget that the vital importance of freedom of speech and expression involves the freedom to dissent to a free democracy like ours. Democracy relies on the freedom of the press. It is the inalienable right of everyone to comment freely upon any matter of public importance. This right is one of the pillars of individual liberty—freedom of speech, which our Court has always unfailingly guarded. I wish to add that however precious and cherished the freedom of speech is under Article 19(1)(a), this freedom is not absolute and unlimited at all times and under all circumstances but is subject to the restrictions contained in Article 19(2). That must be so because unrestricted freedom of speech and expression which includes the freedom of the press and is wholly free from restraints, amounts to uncontrolled licence which would lead to disorder and anarchy and it would be hazardous to ignore the vital importance of our social and national interest in public order and security of the State.
76. In Bennett Coleman case [(1972) 2 SCC 788 : AIR 1973 SC 106 : (1973) 2 SCR 757] the Court indicated that the extent of permissible limitations on this freedom are indicated by the fundamental law of the land itself viz. Article 19(2) of the Constitution. It was laid down that permissible restrictions on any fundamental right guaranteed under Part III of the Constitution have to be imposed by a duly enacted law and must not be excessive i.e. they must not go beyond what is necessary to achieve the object of the law under which they are sought to be imposed. “The power to impose restrictions on fundamental rights is essentially a power to ‘regulate’ the exercise of these rights. In fact, ‘regulation’ and not extinction of that which is to be regulated is, generally speaking, the extent to which permissible restrictions may go in order to satisfy the test of reasonableness”. The Court also dealt with the extent of permissible limitations on the freedom of speech and expression guaranteed under Article 19(1)(a). The test laid down by the Court in Bennett Coleman case [(1972) 2 SCC 788 : AIR 1973 SC 106 : (1973) 2 SCR 757] is whether the direct and immediate impact of the impugned action is on the freedom of speech and expression guaranteed under Article 19(1)(a) which includes the freedom of the press. It was observed that the restriction on the number of pages, a restraint on circulation and a restraint on advertisements would affect the fundamental right under Article 19(1)(a) on the aspects of propagation, publication and circulation of a newspaper. In repelling the contention of the learned Additional Solicitor-General that the newsprint policy did not violate Article 19(1)(a) as it does not directly and immediately deal with the right mentioned in Article 19(1)(a), the Court held that the tests of pith and substance of the subject-matter and of direct and incidental effect of legislation are relevant to questions of legislative competence but they are irrelevant to the question of infringement of fundamental rights. The true test, according to the Court, is whether the effect of the impugned action is to take away or abridge fundamental rights. It was stated that the word “direct” would go to the quality or character of the effect and not the subject-matter and the restriction sought to be imposed by the impugned newsprint policy was, in substance, a newspaper control i.e. to control the number of pages or circulation of dailies or newspapers and such restrictions were clearly outside the ambit of Article 19(2) of the Constitution and therefore were in abridgement of the right of freedom of speech and expression guaranteed under Article 19(1)(a), and it added:
“The Newsprint Control Policy is found to be newspaper control order in the guise of framing an Import Control Policy for newsprint.
This Court in the Bank Nationalisation case [R.C. Cooper v. Union of India, (1970) 1 SCC 248] laid down two tests. First it is not the object of the authority making the law impairing the right of the citizen nor the form of action that determines the invasion of the right. Secondly, it is the effect of the law and the action upon the right which attracts the jurisdiction of the court to grant relief. The direct operation of the Act upon the rights forms the real test.
… No law or action would state in words that rights of freedom of speech and expression are abridged or taken away. That is why courts have to protect and guard fundamental rights by considering the scope and provisions of the Act and its effect upon the fundamental rights.”
We have only to substitute the word “executive” for the word “law” and the result is obvious. Here, the impugned notices of re-entry upon forfeiture of lease and of the threatened demolition of the Express Buildings are intended and meant to silence the voice of the Indian Express. It must logically follow that the impugned notices constitute a direct and immediate threat to the freedom of the press and are thus violative of Article 19(1)(a) read with Article 14 of the Constitution. It must accordingly be held that these petitions under Article 32 of the Constitution are maintainable.”

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

114. The principal point in controversy between the parties is whether the notice of re-entry upon forfeiture of lease issued by the Engineer Officer, Land & Development Office dated March 10, 1980 purporting to be on behalf of the lessor i.e. the Union of India, Ministry of Works & Housing, and that of March 1, 1980 issued by the Zonal Engineer (Buildings), 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 pre-censorship powers, enactment of a set of draconian laws which reduced freedom of the press to a naught.
115. 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 clause 5 of the indenture of lease dated March 17, 1958 for alleged breach of clauses 2(14) and 2(5)—which in fact were never committed—and the notice dated March 1, 1980 by the Zonal Engineer (Buildings), City Zone, Municipal Corporation for demolition of new Express Building where the printing press is installed under Sections 343 and 344 of the Delhi Municipal Corporation Act were really intended and meant to bring about the stoppage of the publication of Indian Express which has throughout been critical of the Government in power whenever it went wrong on a matter of policy or in principle. Also, mala fide because they constitute misuse of powers in bad faith. Use of power for a purpose other than the one for which the power is conferred is mala fide use of power. Same is the position when an order is made for a purpose other than that which finds place in the order.
xxxxx
136. In the facts and circumstances, I am constrained to hold that the impugned notices dated March 1, 1980 and March 10, 1980 were not issued bona fide in the ordinary course of official business for implementation of the law or for securing justice but were actuated with an ulterior and extraneous purpose and thus were wholly mala fide and politically motivated.”

18. The Supreme Court in its decision, upheld the role of the Press and observed that during the emergency period there was misuse of power which led to press censorship. The Supreme Court then quashed the re-entry notice dated 10th March, 1980, as also other actions contemplated by the then Government. The decision also restrained the Union of India from taking any steps for termination of lease, for non-payment of conversion charges or otherwise for the construction of the building till the final determination of the amount payable by a Civil Court. Three separate judgements were authored by the three-Hon’ble Judges on the Bench. The operative portions of each of the said judgments are set out below:
Justice A.P. Sen
“194. We cannot possibly in these proceedings under Article 32 undertake an adjudication of this kind but I am quite clear that Respondent 5 the Land & Development Officer having already indicated his mind that the amount of conversion charges would be more than Rs 3.30 crores, it would not subserve the interests of justice to leave the adjudication of a question of such magnitude to the arbitrary decision of the Land & Development Officer who is a minor functionary of the Ministry of Works & Housing. We were informed by Shri Sinha, learned counsel for Respondent 1, the Union of India that the Central Government were contemplating to undertake a legislation and to provide for a forum for adjudication of such disputes. As stated earlier, we had suggested that the dispute as to the quantum of conversion charges payable be referred to the arbitration of an impartial person like a retired Judge of the Supreme Court of India, but this was not acceptable to the respondents. The Union of India may in the contemplated legislation provide for the setting up of a tribunal with a right of appeal, may be to the District Judge or the High Court, to the aggrieved party. If such a course is not feasible, the only other alternative for the lessor i.e. the Union of India, Ministry of Works & Housing would be to realize the conversion charges and additional ground rent, whatever be recoverable, by a duly constituted suit. Till then I would restrain the Union of India, Ministry of Works & Housing and the Land & Development Officer or any other officer of the Ministry from taking any steps for termination of the lease held by Petitioner 1, Express Newspapers Pvt. Ltd. for non-payment of conversion charges or otherwise for the construction of the Express Building till the final determination of such amount to be realized by a statutory tribunal or by a civil court.
195. For these reasons, I would, therefore, for my part, quash the impugned notices.
196. The result therefore is that these petitions under Article 32 of the Constitution must succeed and are allowed with costs. The notice issued by the Engineer Officer, Land & Development Office dated March 10, 1980 purporting to act on behalf of the Government of India, Ministry of Works & Housing requiring the Express Newspapers Pvt. Ltd. to show cause why the lessor i.e. the Union of India, Ministry of Works & Housing should not re-enter upon and take possession of plots Nos. 9 and 10, Bahadurshah Zafar Marg, New Delhi together with the Express Buildings built thereon, under clause 5 of the indenture of lease dated March 17, 1958 for alleged breaches of Clauses 2(5) and 2(14) thereof, and the earlier notice dated March 1, 1980 issued by the Zonal Engineer (Buildings), City Zone, Municipal Corporation, Delhi requiring them to show cause why the aforesaid buildings should not be demolished under Sections 343 and 344 of the Delhi Municipal Corporation Act, 1957, are quashed. It is declared that the construction of the new Express Building on the residual portion of 2740 square yards on the western side of plots Nos. 9 and 10, Bahadurshah Zafar Marg with an increased FAR of 360 with a double basement for installation of a printing press for publication of a Hindi daily newspaper was with the permission of the lessor i.e. the Union of India, Ministry of Works & Housing and did not constitute a breach of clauses 2(5) and 2(14) of the lease-deed.
197. It is directed that the respondents, particularly the Union of India, Ministry of Works & Housing, the Delhi Development Authority, and the Municipal Corporation of Delhi, shall forbear from giving effect to the impugned notices in the manner threatened or in any other manner whatsoever. It is further directed that the Union of India, Ministry of Works & Housing shall enforce its claim for recovery of conversion charges by a duly constituted suit or by making a law prescribing a forum for adjudication of its claim. It is also directed that the Municipal Corporation of Delhi shall compound the construction of the double basement of the new Express Building, the excess basement beyond the plinth limit and the underground passage on payment of the usual composition fee.”

19. Two concurring decisions were rendered by the other two Judges who also quashed the impugned show cause notices dated 1st March, 1980 and 10th March, 1980 on the ground that the notices were arbitrary and violate Article 14 of the Constitution of India. The operative portion in the decisions of the other two Judges on the Bench are set out below:
Per Justice Venkataraman
“201. The material available in this case is sufficient to hold that the impugned notices suffer from arbitrariness and non—application of mind. They are violative of Article 14 of the Constitution, Hence they are liable to be quashed. It is not necessary therefore to express any opinion on the contentions based on Article 19(I)(a) of the Constitution.
202. The rest of the questions relate truly to the civil rights of the parties flowing from the lease-deed. Those questions cannot be effectively disposed of in this petition under Article 32 of the Constitution. The questions arising out of the lease, such as, whether there has been breach of the covenants under the lease, whether the lease can be forfeited, whether relief against forfeiture can be granted etc. are foreign to the scope of Article 32 of the Constitution. They cannot be decided just on affidavits. These are matters which should be tried in a regular civil proceeding. One should remember that the property belongs to the Union of India and the rights in it cannot be bartered away in accordance with the sweet will of an officer or a Minister or a Lt. Governor but they should be dealt with in accordance with law. At the same time a person who has acquired rights in such property cannot also be deprived of them except in accordance with law. The stakes in this case are very high for both the parties and neither of them can take law into his own hands.
203. I, therefore, quash the impugned notices and direct the respondents not to take any further action against the petitioners pursuant to them. I express no opinion on the rights of the parties under the lease and all other questions argued in this case. They are left open to be decided in an appropriate proceeding. It is, however, open to both the parties if they are so advised to take such fresh action as may be open to them in law on the basis of all the relevant facts including those which existed before the impugned notice dated March 10, 1980 was issued by the Engineer Officer of the Land and Development Office to vindicate their respective rights in accordance with law. This order is made without prejudice to the right of the Union Government to compound the breaches, If any, committed by the lessee and to regularize the lease by receiving adequate premium therefor from the lessee, if it is permissible to do so.”
xxx xxx xxx

Per Justice R.B. Mishra

“206. I have perused the judgment prepared by brother Justice A.P. Sen as also: the judgment of brother Justice E.S. Venkataramiah. While I agree that the impugned notices threatening re-entry. and demolition of the construction are invalid and have no legal value and must be quashed for reasons detailed in the two judgments, which I do not propose to repeat over again. I am of the view that the other question involved in the case are based upon contractual obligations between the parties. These questions can bel satisfactorily and effectively dealt with in a properly instituted proceeding or suit and not by a writ petition on the basis of affidavits which are so discrepant and contradictory in this case.
207. The right to the land and to construct buildings thereon for running a business is not derived from Article 19(1)(a) or 19(1)(g) of the Constitution but springs from the terms of contract between the parties regulated by other laws governing the subject, viz., the Delhi Development Act, 1957, the Master Plan, the Zonal Development Plan framed under the Delhi Municipal Corporation Act and the Delhi Municipal Bye-laws, 1959 irrespective of the purpose for which the buildings are constructed. Whether there has been a breach of the contract of lease or whether there has been a breach of the other statutes regulating the construction of buildings are the questions which can be properly decided by taking detailed evidence involving examination and cross-examination of witnesses.
208. I accordingly allow the writ petitions with costs against the Union Government and the Lt. Governor of Delhi and quash the impugned notices”

20. As per the decision of the Supreme Court, the UOI could file a civil suit, which then led to the filing of the present suit by the UOI and thereafter a counter suit by Express Newspapers.
Developments post the judgment of the Supreme Court dated 7th October, 1985
21. A show cause notice was issued on 1st August, 1986 by the Ministry of Urban Development (L&DO) after the decision of the Supreme Court. The said notice was based on the premise that Justice Sen’s opinion in the Supreme Court’s decision was a minority view. Paragraph 12 of the show cause notice reads as under:
“12. The Writ Petitions were heard by a Bench of 3 Hon’ble Judges of the Supreme Court consisting of Hon’ble Mr. Justice .P. Sen, Hon’ble Mr.Justice E.S. Venkataramiah and Hon’ble Mr.Justice R.B. Misra. Their Lordships Hon’ble Mr. Justice E.S. Venkataramiah and Hon’ble Mr.Justice. R. P. Misra held that notices dated 1.3.1930 and 10.3.1980 were invalid on the ground that the said notices were arbitrary and for non-application of mind. The learned Judges did not express any opinion on the rights of the parties under the lease deed and all the other questions argued in the case and left them open observing that it was open to the Lessor and to the Delhi Municipal Corporation to take appropriate steps in accordance with the law for the breaches committed by you. However, his Lordship’ Hon’ble Mr. Justice A.P. Sen expressed his opinion in regard to the contentions urged on behalf of you, His Lordship Hon’ble Mr. Justice A.P. Sen observed that the Lessor is entitled to enforce his claim for recovery of conversion charges by a duly constituted suit or making a law prescribing a forum for adjudication of its claims. The judgement of his Lordships.

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

22. On this premise, the show cause notice dated 1st August, 1986, listed out various alleged violations by Express Newspapers, which are set out below:
i) induction of non-Newspapers tenants;
ii) earning of rental income of more than Rs.1 crore per year;
iii) permission to occupy the new building without necessary completion certificate by the MCD was given by the Supreme Court at the risk of Express Newspapers;
iv) since the plot was allotted only for the purposes of Newspapers, so by letting out of for commercial purpose there was unjust enrichment to the tune of Rs.1 crore per year, on which, the Ministry is entitled to 18% per annum;
v) construction of more than FAR 360 is in excess of the sanctioned plan by MCD;
vi) no permission was taken from the L&DO to regularise the misuse created by using the building for purposes other than a newspaper. Hence L&DO is entitled to re-enter the property as there were violations of the lease deed dated 17th March, 1958;
vii) sanction plans of the MCD have not been submitted to the L&DO which is in contravention of the lease deed. Despite the Ministry’s letters dated 24th November, 1978, 1st December, 1978 and 25th December, 1978 which permitted additional construction with FAR 360, no construction could be done until clauses 2(14) and 3 of the perpetual lease deed dated 17th March, 1958 are varied. A supplemental lease deed was required and no construction could have been commenced till the said lease deed was executed. Thus, there is a violation of perpetual lease permitting the Government to re-enter the premises;
viii) there is a misuse of 65,139 sq. ft. Thus, the L&DO was entitled to collect misuse charges, penalty and interest at 18% p.a. till the day the misuse was stopped, failing which L&DO would re-enter the property;
ix) drawings and plans which are sanctioned by the MCD should be submitted and any excess construction ought to be removed beyond the sanction plans;
x) the basement was sanctioned only for the purposes of storage by the MCD but the same is being used for the purpose of Newspapers press office which was contrary to the MCD’s sanction plan and is also a breach of the terms of the lease;
xi) that there are breaches in the old building of unauthorized construction and misuse for which notices dated 11th September, 1978 and 16th April, 1979 have been issued;
xii) the details of the rent payable and the amounts recoverable were set out in the notice;
xiii) misuse of the basement is to the tune of 28,082 sq. ft. for which misuse charges are payable;
xiv) damages for unauthorized construction and misuse based on the
land rate works out to Rs.2.08/- per sq. mtrs. Unauthorized construction’s damages are therefore liable to be paid;
xv) total charges claimed by the Union of India is Rs.2,12,82,473/- on various counts;
xvi) temporary regularization of misuse has not been sought and hence the said charges are payable;
xvii) six months were granted to remove the breaches and for payment of all the damages, failing which, the said amount would be recoverable;
xviii) the conclusion of notice reads as under:
“32. This is also further to give you notice that if you fail to comply with this notice and remedy the breaches committed by you, as more fully set out in detail hereinabove in this notice, the Land & Development Officer on behalf of the Lessor will institute proceedings before appropriate forum to enforce the terms of the ‘lease including the right of re-entry upon the premises as provided under the lease deed dated 17.3.1958.”

23. This notice was replied to by Express Newspapers on 30th September, 1986. In its reply, Express Newspapers took the position that the stand of the L&DO, that Justice Sen’s opinion is the minority opinion, is baseless and a clarification is liable to be issued as to how such a claim could be enforced without filing of a suit. Express Newspapers also sought the details of the rules, regulations and guidelines regarding the norms for determination of breach of lease provisions, compoundability, computation of charges etc. A request to inspect the files related to all properties in Press Enclave was also made.
24. In response thereto, on 17th December, 1986, the L&DO informed Express Newspapers that it would file a suit to enforce rights under the lease deed. Further correspondence took place between the parties and letters were addressed by Express Newspapers seeking clarification. Vide letter dated 23rd June, 1987, Express Newspapers asked a few queries, pertaining to the show cause notice dated 1st August, 1986 by the L&DO. The questions raised are as under:
“(a) Is the L & DO a functionary under the Ministry of Works and Housing or not,
(b) Does the Chief Commissioner of Delhi continue to be an authority under the Lease Deed between the President of India and the Company,
(c) Is the Lt Governor of Delhi a successor in office of the Chief Commissioner of Delhi,
(d) Is the Lt Governor entitled to exercise the powers of the Chief Commissioner of Delhi under the provisions of the Lease Deed and in particular can he exercise the powers of the Chief Commissioner under Clauses 2(9) and 2(14) of the Lease Deed,
(o) Does the Ministry of Works & Housing represent the lessor or not
(f) Does the L&DO maintain that the orders of the then
Minister for Works & Housing, Mr. Sikhandar Bakht,
illegal, improper and irregular
(g) Does the L & D 0 maintain that the grants made by
the Ministry of Works &. Housing vide its letter of June 9, 1978, illegal, improper and irregular and if so what are the reasons,
(h) Does the L& DO maintain that the grant made by the Ministry of Works & Housing vide letter dated 24.11.78 was illegal, improper and irregular and for what reasons
(i) Does the L & DO maintain that the grant made by the Ministry of Works & Housing vide letter dated 1.12.78 is illegal, improper and irregular and for what
reasons,
(j) Does the L&DO maintain that no permission for shifting of the sewer line was maintained under Clause 2(14) of the Lease Deed,
(k) Does the L &DO maintain that the orders communicated by the industry of Works & Housing are illegal because they are not expressly in the name of the President of India,
(1) Is the L & DO empowered to authenticate documents under the Authentication of Documents Rules issued under Art, 77 of the Constitution of India,
(m) Is the Power to sign contracts on behalf of the Central Government under Art, 299 of the Constitution of India not available to Secretary, Joint Secretary or Deputy Secretary to Govt,
(n) Was the permission of the lessor to let granted in 1963 given by the Ministry, of Works & Housing or the L &DO,
(o) What is the legal effect of the letter of the Ministry of Works & Housing to L &DO dt 17/18 Feb 1970 on the policy of liberalisat on in the administration of nazul land in Delhi
(p) Is the land lessed to the Company a nazul land or not,
(q) How did the three-member Committee arrive at the figure of conversion charges at Rs.30 lakhs,
r) What is the basis for the claim of conversion charges,
(s) What is the formula for claiming conversion charges,
(t) What is the statutory rule or contractual obligation
in the deed authorising the levy of conversion charges,
(u) Is not the lease deed and every grant made by the govt, a govt, grant under the Govt, Grantst Act 1895,
(v) What were the reasons for the issue of the show cause notices dt. 7.3.80 and 10.3.80,
(w) What is the meaning of the terms “conversion charges” and additional premium and where do we find them in the grants made by the govt, to the company.”

25. A press report then appeared in the Times of India, New Delhi, dated 15th November, 1987 stating that the Union Government has taken over the Express building in Bahadur Shah Zafar Marg, after issuing a notice. The said press article from TOI dated 15th November 1987, is extracted below:

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

Proceedings in the Suits:
CS(OS) 2480/1987
30. This is a suit filed by the Union of India on the basis of the stand taken in the Show Cause Notice dated 1st August, 1986. The prayers in the suit are as under:
“(a) to grant a decree for recovery of possession of Plot No.9-10, Bahadur Shah Zafar Marg, New Delhi, admeasuring 1,179 acres or 5700 sq: yards = 4771.4 sq. metres, bounded on the North by Road, bounded on the South by the Service Road, bounded on the East by Service Road and bounded on the West by the approach Road, including all buildings standing thereon from the first defendant, consequent on determination of the lease on 29.9.1987 and re-entry by the plaintiff in exercise of the rights under Clause 5 and 6 of the lease deed;
(b) grant a decree against the first defendant for a sum of Rs.3,16,54,831/- (Rupees three crores sixteen lakhs fifty four thousand eight hundred and thirty one only) towards misuse and other charges/mesne profits from 29.4.1982 till 29.9.1987 with interest upto 8.11.1987;
(c) to grant a decree against the first defendant for a sum of Rs.54,85,160/- (Rupees fifty four lakhs eighty five thousand one hundred and sixty only) towards damages/mesne profits from 30.9.1987 to 8.11.1987 for unauthorized occupation of buildings by defendants 1 to 8 after determination of the lease;
(d) to grant a decree against the first defendant for payment of Rs.14,40,335/- (Rupees Fourteen lakhs forty thousand three hundred and thirty five only) per month payable on 7th of each month from 9.11.1987 onwards for damages/mesne profits towards unauthorized occupation of the portion of the premises for Newspaper press;
(e) to grant a decree against Defendants 1 to 8 for payment of Rs.27,29,794/- (Rupees twenty seven lakhs twenty nine thousand seven hundred and ninety four only) per month payable on the 7* of each month for damages/mesne profits towards unauthorized occupation of the portion of the premises for the office use of Defendants 2 to 8.
(f) to grant interest at the rate of 18% per annum during the pendency of the suit on the amounts claimed;
(g) to grant a decree with interest at the rate of 18% per annum on the amount due pending the disposal of the suit accrued to the plaintiff during the pendency of the suit;
(h) to pass orders directing Defendants 2 to 8 to pay the rent for use and occupation to the Land and Development Officer from 9.11.1987;
i) to award costs of the suit; and
j) to grant such further relief or reliefs as this Hon’ble Court deems fit and proper in the circumstances of the case.”

31. The said suit i.e., CS (OS) 2480/1987 was filed on 9th November, 1987. Immediately thereafter, on 4th January, 1988, Express Newspapers filed CS (OS) No.52/1988 titled ‘Express Newspapers &Ors. v. UoI’ on the premise that the notice dated 2nd November, 1987 issued by the Union of India are barred and void. The reliefs sought to challenge the re-entry notices. The reliefs sought are as under:
“1. That the purported termination of the lease dated 17th March, 1958, by the impugned notice dated 2nd November, 1987 effective from 29th September, 1987, is illegal and invalid.
2. That the notice dated 2nd November, 1987 to all the sub-tenants in the building calling upon them to pay the rent and other dues with effect from 29th September 1987 to the Land and Development Officer and not to the plaintiff No. 1 is also illegal, invalid and contrary to law.
3. That the defendants, their officers, servants and agents be restrained by a permanent injunction from acting in pursuance of, or in furtherance to, the impugned notices respectively dated 2nd November, 1987, and from in any manner seeking to disturb the possession, actual and constructive, of the plaintiffs in and in respect of the lease terms or any part thereof.
4. That the following orders of the Government of India viz.:
Order No.
Order No. J 22011/1/75-LII(1) dt. 25.6.79,
Order No. J 22011/3/80-LD(DOI)dt. 21.10.81,
Order No. J 22011/3/80-LD dt. 27.7.83,
Order No. J 22011/2/84-LD dt. 24.10.84,
Order No. J 22012/1/86-LD(DOI) dt.25.4.86,
Order No. J 22011/4/86-LD(DOI) dt. 1.6.87, prescribing the market rates for the land allotments by the Government in Delhi from time to time and the office orders or directions issued in pursuance thereof by the defendants, are inapplicable to the plaintiffs and cannot be enforced against them.
5. In the alternative, that said orders, office orders and directions are illegal, Ultra vires and unconstitutional under section 14 and 265 of the Constitution of India.
6. That the defendants, their officers and servants and agents be restrained by a permanent injunction from in any way enforcing the said impugned orders, office orders or directions and/or from recovering or seeking to recover from the Plaintiffs the alleged charges mentioned therein or any other charges for, by way of, or in respect of, the composition for the alleged breaches.
7. Any other order that this Hon’ble Court may deem and proper in the facts of this case.
8. Cost of the suit.”

32. The suit filed by the Union of India was registered and summons ware issued on 20th November, 1987. In the suit filed by Express Newspapers, summons was issued on 7th January, 1988. The interim application filed by Express Newspapers was considered on 18th December, 1989 and vide a detailed order, a ld. Single Judge of this Court, observed that the main question raised is as to whether the judgment of Justice Sen is a minority judgment or would constitute the ratio of the Supreme Court. The said question, as per the ld. Single Judge was a serious legal issue which required to be considered. The Court also observed that most of the grounds in the impugned notice were repeated after the Supreme Court judgement. Accordingly, relief was granted in the following terms:
“xxx xxx xxx
Thus, the main question, involved in the present case, is as to whether the judgment of Mr. Justice A. P. Sen, is a minority judgment, or it constitutes the ratio of the Supreme Court. In other words, the question, which has arisen for decision, is, as to whether, the Union of India was precluded from issuing the impugned notices, to terminate the lease and to take constructive possession of the building, by directing tenants to pay rent to Union of India, as, according to plaintiffs, there was an injunction, issued by Mr. Justice A.P. Sen.
This is purely a legal question. No-doubt, at the time of deciding an application for temporary injunction, this Court is to take only a prima facie view. But, the decision on this legal question, is likely to dispose off the present suit, filed by plaintiffs, as well as, the suit No.2480 of 1987, filed by Union of India.
I, therefore, do not consider proper to express any opinion, at this stage. As, there are issues of law, involved in the present suit, as well as, the suit filed by Union of India, proper issues can be framed and tried, as preliminary issues, as provided under Order 14 Rule 2 of Civil Procedure Code.
It is thus evident that there are serious questions, which are to be tried in the suit.
Defendants, have alleged that, subsequent to the judgment of the Supreme Court in Express Newspapers Pvt. Ltd. and others (supra), there had been new grounds, on the basis of which, the impugned termination had been effected and, therefore, the grounds for the termination were not subject matter of dispute, before the Supreme Court. Mr. Nariman has controverted these allegations.
After going through the show cause notice and the documents, prima facie, it appears that in substance, most of the grounds, prior to the judgment, were repeated in the impugned show cause notice, which was issued after the judgment of the Supreme Court. However, this question has to be decided on merits, after trial.
In addition, plaintiffs have filed various documents to show that huge expenses are incurred by plaintiffs, for maintaining the building, payment of property taxes and other charges. Moreover, plaintiff no.1 has been the lessee, under the lease-deed and constructed the building, at its Own expense. Plaintiff No.1 cannot be denied the benefits, as lessee. Thus, in my view, plaintiffs have got a good prima facie case.
Plaintiffs are in possession of the premises and have been enjoying all the benefits as lessees for the last several years. Thus, the balance of convenience, also lies in their favour. For this reason, it can be safely said that in case, plaintiffs are denied the benefits as a lessee., then, they will suffer an irreparable loss and injury.
Under the facts and circumstances of the case. and till the decision of the suit, the operation of the impugned notice dated November 2,1987, is stayed.
C.A.145 of 1988, stands disposed off.”

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

35. A perusal of the above order would show that the tenants were permitted to continue paying the rent to their landlord, namely, Express Newspapers and the applications were disposed of. Both the orders dated 18th December, 1989 were challenged before the ld. Division Bench. The ld. Division Bench considered the entire matter and vide order dated 24th August, 1994, disposed of the appeals. The findings of the ld. Division Bench were that the ld. Division Bench need not go into the question as to whether Justice Sen’s view is a minority view. The matter was left to be decided by the Trial Court even as a preliminary issue. The injunction granted ought to have had imposed certain conditions in regard to the rents which were being paid by the sub-tenants. The ld. Single Judge had not considered the imposition of certain conditions and hence I.A. 148/1988 and other similar applications were remanded in the following terms:
“xxx xxx xxx
We feel that we need not decide the question whether the Judgment of A.P. Sen. J is a minority judgment or whether it is impliedly concurred with by the two other learned Judges and that therefore the notice dated 2.11.1987 is in the teeth of the said directions. In fact, learned Single Judge in the order in I.A.145/88 did not decide the question whether the Judgment of A.P. Sen, J was a minority Judgment and whether the other two learned Judges must be deemed to have accepted or concurred in the injunction. If he had in fact decided the said issue, it would have been necessary for us to go into the question as to whether the decision of A.P. Sen, J was a minority Judgment and whether his view was accepted impliedly by the other two learned Judges. We are, however, relieved of this necessity inasmuch as the learned Single Judge did not decide this issue at all in the impugned judgment.
xxxx
We leave the said question open, but for that reason we consider it necessary to remand I.A. 145/88 as well as other I.As to the learned Trial Judge to enable him to consider whether any further directions in regard to the rents are necessary so as to safeguard the interests of the Union of India are necessary and if so, what should be those conditions.
We allow the appeals only to the limited extent indicated above. We should not be understood as having expressed any opinion on either as to the binding nature of the judgment of A.P. Sen, J in Express Newspapers Private Ltd and Others vs. Union of India and Others (supra) or as to whether it is a fit case in which any conditions are to be imposed in relation to the rents pending suit. It would be for the learned Trial Judge to pass orders whether it is a fit case where condition. are to be imposed and f so, what should be those conditions. Appeals are disposed of accordingly.”

36. Thereafter, issues were framed in the matter on 5th November, 2001. The two suits were consolidated on 3rd May, 2007 and the issues were recast in the following terms:
“1. Whether the plaint in Suit No. 2480/1987 has been signed and verified and the suit is instituted by a duly authorised person? OPP
2. Whether the defendant has breached any term of the lease deed dated 17th March, 1958 and supplementary lease deed dated 17th November, 1964? If so, to what effect? OPP
3. Whether the termination of the lease dated 17th March, 1958 by a notice dated 29th September, 1987 or 2nd November, 1987 is in accordance with the terms of the lease and is not arbitrary, discriminatory, malafide or in violation of the applicable law? OPP
4. Whether the construction carried out by the defendant on the area of 2740 sq. yards on the western side of the plot nos. 9 & 10, Bahadur Shah Zafar Marg is in accordance with law? If not, to what effect ? OPD
5. Whether the action of the plaintiff in issuing the notice dated 29th September, 1987 or 2nd November, 1987 is barred by res judicata? OPD
6. Whether the action of the Union of India in terminating the lease dated 17th March, 1958 and filing the present suit is barred by estoppel? OPD
7. Whether the notice dated 29th September, 1987 or 2nd November, 1987 have been issued by a duly authorised and competent authority? OPP
8. Whether the construction raised by the defendant on the suit property is in terms of a valid and binding grant by the Union of India? If not to what effect? OPD
9. Whether the defendant is using the suit property for a purpose and use permissible under the lease deed and in terms of a valid and binding grant by the Union of India? If so, to what OPD effect?
10. Whether the plaint in Suit No. 52/1988 has been signed and verified and the suit is instituted by a duly authorised person? OPP
11. Whether the Suit No. 52/1988 is maintainable without compliance of Section 80 of the Code of Civil Procedure? OPP
12. Whether the Suit No. 52/1988 has been valued for the purposes of court fee and jurisdiction? OPP
13. Whether the plaintiff is entitled to recovery for possession of the suit property i.e. Plot Nos. 9 & 10, Bahadur Shah Zafar Marg? OPP
14. Whether the plaintiff is entitled to a decree for the recovery of Rs.3,16,54,831/- towards misuse and mesne profits for the period 29th April, 1982 till 29th September, 1987? OPP
15. Whether the plaintiff is entitled to a decree for recovery of Rs.54,85,160/- towards the damages for the period 30th September, 1987 to 8th November, 1987? OPP
16. Whether the plaintiff is entitled to mesne profits at the rate of Rs.14,40,335/- per month with effect from 9th November, 1987?
17. Whether the plaintiff is entitled to mesne profits against defendant nos. 2 to 8 at the rate of Rs. 27,29,794/- per month for unauthorised occupation of the premises for the office use of defendant nos. 2 to 8 from 9th November, 1987? OPP
18. Whether the plaintiff is entitled for interest on the amounts found due and payable from the defendants? If so, at what rate, on what amount and for what period? OPP
19. Whether the plaintiff is entitled to mesne profits with effect from when the suit was filed on 9th November, 1987 till the date of vacation by the defendants? If so, at what rate?
20. Relief”

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

S. No.
NAME
DESIGNATION

PW 1
H.K. Beniwal
Deputy, L&DO
PW 2
Biri Singh
Surveyor, L&DO

DEFENDANT’S EVIDENCE:

S. No.
NAME
DESIGNATION

DW 1
S.N. Bajpai
CEO, Express Newspapers

38. The evidence commenced on 18th July, 2007 and concluded on 21st August, 2014 and the matters were listed in the final category.
39. Submissions were made in this matter by Mr. A. Subba Rao, ld. Counsel (since expired) and thereafter by ld. Senior Counsels- Mr. Sandeep Sethi and Mr. Salman Khurshid on behalf of Express Newspapers.

SUBMISSIONS ON MERITS:
Submissions on behalf of Express Newspapers
40. Mr. Sethi, ld. Sr. Counsel and Mr. Khurshid, ld. Sr. Counsel on behalf of Express Newspapers have made the following submissions:
i. Firstly, they recalled the various facts leading to the decision of the Supreme Court. According to ld. Senior Counsels, Express Newspapers was targeted by the then Government for its anti-emergency stance during the years 1977 to 1979;
ii. Once the new Government was elected, actions were taken by the then Lieutenant Governor and the MCD etc., seeking to demolish and re-enter the property. This was despite the fact that all the steps undertaken by Express Newspapers i.e., of the initial construction of the building on the east side due to the existence of the drain/sewer line, the shifting of the sewer line, the construction on the west side, change of user of some portions to general commercial purpose, the use of the basement for a Hindi newspaper, etc., were all done with the approval of the concerned authorities;
iii. Show Cause notice issued on 10th March, 1980 was, thus, an act of vendetta. The same was challenged before the Supreme Court, and in terms of the said judgment the Union of India could enforce its rights only by way of a civil suit;
iv. Express Newspapers applied for conversion in the year 2007, however, the same was not accepted. The termination which was issued with effect from 29th September, 1987 was stayed;
v. According to ld. Sr. Counsels, various allegations were raised by the Union of India, however, the clear direction of the Supreme Court was that the Union of India could file a suit for recovery of the conversion charges and the MCD was to compound the construction which was already made. Ld. Sr. Counsels have relied upon the following decisions:
i. R. K. Mittal v. State of U.P.& Ors., AIR 2012 SC 389
ii. Munshi Ram v. Union of India 2000 7 SCC 22
iii. Prem Prakash Gupta v. Union of India & Ors., AIR 1977 Allahabad 482 paragraph 10
iv. V. Padmanabha Ravi Varma Raja and Ors. v. The Deputy Tahsildar Chittur and Ors. AIR 1963 Kerala 155.
v. Mahendra Bahawanji Thakar v. S.P. Pande AIR 1964 Bom 170
vi. State of Tamil Nadu v. State of Kerala and Anr., 2014 12 SCC 696 at 798 paragraph 168- a judgment on the writ petition is also res judicata.
vi. The questions which have been raised by the L&DO are breach of clause 2(5) and 2(14) of the lease deed. On each of the issues, it is his submission that the Supreme Court’s decision has already been rendered;
vii. According to Mr. Sethi, ld. Sr. Counsel even if there is misuse, only a recovery suit can be filed by the Union of India and no termination can be resorted to;
viii. The misuse is also based on non-newspaper use which is already recognized and permitted by the Government. The order dated 29th April, 1982 permitting the sub-letting to tenants, though, subject to the outcome of the writ petition, tenants could take possession. The said possession was subject to the final order. There is no mention of the tenants in the final order;
ix. In view thereof, the Union of India filed a review petition which was also dismissed. Insofar as the misuse of basement is concerned, the Supreme Court holds that the construction of double basement is not illegal. On unauthorized construction, the Supreme Court directed that the Corporation will compound the deviation;
x. According to Mr. Sethi, ld. Sr. Counsel, the termination of the lease is in the teeth of the restraint order passed by the Supreme Court. It is his submission that the impugned notices are nothing but a fraud on power. He relied on the decision of the Madras High Court in M/s. Park View Enterprises v. State Government of Tamil Nadu, AIR 1990 Mad 251 to argue that the perpetual lease granted qua the land and mere letting out cannot lead to termination.
Submissions on behalf of L&DO
41. Mr. Subba Rao, ld. Counsel, on the other hand, submitted that –
i. in paragraph 185 of the Supreme Court judgment, the clear undertaking was recorded to the effect that Express Newspapers would approach the Government of India since the said undertaking was made by the counsels before the Court, Express Newspapers was bound by the said undertaking;
ii. Express Newspapers ought to have applied to the Union of India for permission for change of user and for payment of necessary additional ground rent and conversion charges. This obligation according to Mr. Rao is of a binding nature,