WWW.LIVELAW.IN
SYNOPSIS
1. The instant Special Leave Petition (“SLP”) is being preferred
by the Petitioner against the judgment and final order dated
28.02.2019, passed by the Hon‟ble Division Bench of the
Hon‟ble Delhi High Court, in LPA No. 10 of 2019. Vide the
impugned order, the High Court has upheld the judgment and
order of the Ld. Single Judge dated 21.12.2018 dismissing the
Writ Petition bearing WP(C) No. 12133 of 2018 filed by the
Petitioners herein challenging the determination of the
perpetual lease deed dated 10.01.1967 by the Respondents.
2. The Petitioner herein was incorporated in 1937 inter alia to
propagate the ideals and ideas of the Indian National
Congress during the freedom movement. The Petitioner has
been publishing newspapers for the last several decades (over
half century) and was granted a perpetual lease dated
10.01.1967 in respect of Plot No.5-A Bahadur Shah Zafar
Marg, New Delhi. The Petitioner has been in lawful possession
of the subject premises for more than five decades. The
Respondents by order dated 30.10.2018 have sought to
determine the perpetual lease dated 10.01.1967 granted to the
Petitioner which was challenged before the Courts below.
3. At the outset, it is respectfully submitted that the determination
of the lease deed is ex facie malicious, arbitrary, based on
extraneous grounds, and has been effected for political WWW.LIVELAW.IN
considerations contrary to the express provisions of the lease
deed itself.
4. The impugned order of the Division Bench has interalia
rendered the following findings which are being impugned in
the present SLP. For the sake of convenience, they are
broadly outlined hereunder
(i) No “Press Activity” in the demised/subject premises [Para 48
to 54 of the impugned order].
(ii) Clause III (16) (Re-entry Clause) in the Lease Deed has no
relevance [Para 55]
(iii) Transfer of shareholding in AJL constitutes violation of Clause
III (13) of the Lease Deed [Para 57 to para 66]
(iv) Alternate remedy under PP Act. [Para 67-70]
RE: IMPUGNED ORDER IS VITIATED FOR RECORDING FINDINGS OF FACT PREJUDICIAL TO THE PETITIONER WITHOUT THERE BEING ANY SWORN AFFIDAVIT BEING PLACED ON RECORD BY THE RESPONDENTS
5. Before dilating upon the grievances of the Petitioner against
the findings of the impugned order noted hereinabove, it is
submitted that the impugned order has recorded findings of
fact prejudicial to the Petitioner without there being any
pleadings on affidavit filed by the Respondents. It is submitted
that several findings of fact have been rendered based on oral
arguments of the Respondents and a List of Dates handed
over by the Ld Senior counsel for the Respondents at the time
of arguments without there being a single affidavit placed on WWW.LIVELAW.IN
record by the official-Respondents. It may also be relevant to
note that there was also no sworn affidavit filed by the
Respondents before the Ld Single Judge.
6. In Para 58, the Hon‟ble High Court interalia records
(i) Facts relating to the incorporation of Young Indian and its
share capital
(ii) That within 5 days of incorporation of Young Indian, by a deed
of assignment, a loan of Rs. 90 crores, which was outstanding
in the books of Indian National Congress, was assigned to
Young Indian.
(iii) A loan of Rs. 1 Crore was received by Young India from
another company M/s Dotex.
(iv) Further observations are made about transfer of shares of
Young Indian to Shri Suman Dubey, Shri Sam Pitroda, Smt.
Sonia Gandhi, Shri Oscar Fernandes, Shri Rahul Gandhi,
7. It is relevant to note neither Young Indian, nor the Directors, or
shareholders were parties to the instant proceedings. Based
on the observations in Para 58, the Hon‟ble Court has applied
the principle of lifting of corporate veil and come to a
conclusion in Para 65 that the transaction was not permissible
in law, fraudulent in nature, against public interest and that the
entire transaction was a clandestine and surreptitious transfer
of the lucrative interest in the premises to Young Indian. WWW.LIVELAW.IN
8. It is submitted that apart from the finding being ex facie
factually false and incorrect and having no relevance
whatsoever as far as the determination of the lease is
concerned, which the Petitioner will demonstrate hereinafter,
nevertheless the Hon‟ble High Court as a court of record could
not have rendered findings that a transaction was purportedly
clandestine and surreptitious transaction without there being
any affidavit or averment by the official-Respondents in the
Writ Petition.
9. The observations in Para 58 appear to have been
incorporated from the List of Dates handed over by the
Counsel for the Respondents and also from the judgment
dated 10.09.2018 passed by another coordinate bench of this
Hon‟ble Court in W.P.(C) 8482/2018. It is submitted that it was
impermissible for the Hon‟ble High Court to render findings of
fact by verbatim incorporating the allegations made from a list
of dates handed over by a Counsel or from another judgment
in respect of parties who are not even before the Court. On
this ground of procedural illegality alone, which goes to the
root of the matter, the impugned order deserves to be set
aside.
WWW.LIVELAW.IN
10. The Hon‟ble High Court has erred in coming to a conclusion in
Para 46 that judicial notice of these facts can be taken. It is
submitted such power is not available to the Hon‟ble High
Court without an affidavit being placed on record by the
official-Respondents. The aforesaid observations are in the
teeth of Section 57 of the Evidence Act, 1872.
11. RE: NO “PRESS ACTIVITY” IN THE DEMISED/SUBJECT PREMISES [PARA 48 OF THE IMPUGNED ORDER]
11.1 The Hon‟ble High Court from Para 48 to Para 54 deals with
the issue of “No Press Activity”. Despite noticing the
voluminous evidence placed on record to show that the
Petitioner was in fact carrying out the publication of several
newspapers, for last several decades, the Hon‟ble High Court
has non-suited the Petitioner on a singular ground relying
upon the purported communication dated 26.09.2016 made by
Shri Motilal Vora. It is submitted that that the High Court ought
to have noticed that the Petitioner was continuously carrying
out publishing for over 7 decades and over 5 decades from the
demised premises, and as such the lease could not have been
terminated more so when the publishing activity was in full
swing with several newspapers and online publications at the
time when the impugned termination dated 30.10.2018 was
issued. WWW.LIVELAW.IN
11.2 When the inspection was carried out on 26.09.2016 or when
the show cause notice was issued on 10.10.2016, there was
no issue whatsoever of the lack of any printing activity in the
premises. Neither there was any inspection report of
26.09.2016 which has been till date furnished to the
Petitioners which shows that there was no printing activity nor
was there any allegation in the show cause notice dated
10.10.2016 about lack of printing activity in the premises.
11.3 In these circumstances, the findings of the Hon‟ble High Court
in Para 50 that “When the premises were inspected on 26th
September, 2016, no press activity was being carried out in
the area” is a finding with no basis whatsoever and has been
rendered merely on the oral arguments of the Counsel for the
Respondents. Be that as it may, even the letter dated
26.09.2016 relied upon by the High Court does not in any
manner indicate that there was no publication from 2008 to
2016 as observed by the High Court.
11.4 More importantly, despite noticing the fact that the
newspapers were being published in Para 51 the Hon‟ble High
Court comes to a conclusion that on 26.09.2016 when the first
inspection took place, admittedly there was no printing or
publication activity and the digital versions of the publication
commenced only on 14.11.2016. WWW.LIVELAW.IN
11.5 It is respectfully submitted that apart from the factual errors in
the aforesaid findings, it is submitted that the relevant date
and time for the purposes of ascertaining even this aspect of
the matter as to whether there was any press activity or not
could only be when the impugned order dated 30.10.2018 was
passed. The date of 26.09.2016 cannot at all be the relevant
date for the purposes of ascertaining the cause of action
inasmuch as there is no document or notice in 2016 or rather
till June, 2018, which is sent by the Respondent which at all
takes up the issue of „no press activity‟.
11.6 The Hon‟ble High Court could not have taken 26.09.2016 as
the anchor date. The relevant anchor date ought to have been
the time of passing the order dated 30.10.2018 for the
purposes of ascertaining whether no printing activity was
being carried out. It is respectfully submitted that the Hon‟ble
High Court has committed a grave error in prescribing the
anchor date as 26.09.2016 which was not at all the case of the
Respondent as neither the inspection report of 26.09.2016,
that has not been provided till date, nor even notices dated
10.10.2016 and 05.04.2018 (after more than 1.5 years of the
first inspection), mentioned about the allegation of lack of
printing press. In these circumstances, the Hon‟ble High Court
could not have resorted to the date of 26.09.2016 as the WWW.LIVELAW.IN
starting point for ex-post facto justification of the lack of
printing press allegation.
11.7 It is further submitted that the very first mention of no press
activity came in the SCN dated 18.06.2018, almost 2 years
after the 1st inspection as an afterthought of the respondent,
since by then the press activity had fully resumed.
11.8 It is further submitted that Hon‟ble High Court in para 53 of the
Impugned Order, has ignored the fact that the letter dated
26.09.2016 by Shri Motilal Vora addressed to the L&DO which
was handed over to the Committee at the time of physical
inspection on 26.09.2016, also categorically informed the
Respondent of the recruitment of Shri Neelabh Mishra in
August 2016 as the Editor-in-Chief of the Petitioner Company.
It would be pertinent to note that the recruitment of Shri
Neelabh Mishra as the Editor-in-Chief was carried out much
prior to the first inspection notice dated 06.09.2016 as well as
the physical inspection dated 26.09.2016 and was not after the
inspection.
11.9 The Hon‟ble High Court in para 54 of the Impugned Order
comes to a conclusion that the demised premises was being
used only for commercial activity. This finding is totally
baseless to say the least. The lease deed was given for the
purpose of Press and Offices of AJL in the basement and any WWW.LIVELAW.IN
one of the floors, and balance floors were permitted to be
rented. It is submitted that the press and offices of AJL have
been continuing for over 5 decades, ever since the execution
of the lease deed. It is further submitted, there is no
commercial activity being carried out from the demised
premises which is in any breach of the terms of the lease
deed.
11.10 It is further submitted that the Hon‟ble High Court has failed to
appreciate and consider the effect of the factual material
placed on record relating to the circulation of the newspapers
of the Petitioner which was provided by reputed agencies. The
High Court discards this evidence in para 56 by merely stating
that circulation figures are during the breach proceedings. This
finding is completely untenable. The breach notice as far as
the lack of printing press allegation is concerned was issued
only in the year 2018 and the circulation figures provided were
much prior to the passing of the impugned order of
termination.
11.11 It is further submitted that the impugned order palpably fails to
appreciate that the term “press” has to be understood
„contemporanea expositio‟, in line with the latest development
in technology which includes digital publishing and does not
involve the traditional mode of printing. The word „press‟ used
in the lease deed dated 10.01.1967 has a wide connotation WWW.LIVELAW.IN
and includes a „printing press‟. The activity of „press‟ also
includes „digital publication‟ apart from traditional printing. The
requirement of running a press cannot mean that all press and
printing related activities have to necessarily be conducted at
the same premises i.e. Demised Premises. The imperatives of
prudent commercial business operations may necessitate that
the Petitioner-Company utilises the infrastructure or the
premises at some other place as a supplement to their
operations in the present Demised Premises. It is pertinent to
mention here that the printing press at demised property has
been functioning much before the order dated 30.10.2018 of
the Respondent.
11.12 Further, the newspaper publishing business is not merely
about printing the paper in the press, but this is just one
activity in the many other activities that go into publishing the
newspaper. Newspaper publishing involves multiple, critical
and important activities such as: content gathering;
typography; story commissioning, pagination; text and photo
editing; layout, designing; colour marking; production; and
circulation etc.
11.13 It is, therefore, submitted that the word “press” used in the
lease deed dated 10.01.1967 includes in its ambit the entire WWW.LIVELAW.IN
gambit of activities relating to a press and cannot be only
related to the physical printing.
11.14 The Hon‟ble High Court in Para 53 seeks to distinguish S.
Sundaram Pillai & Ors. Vs. V.R. Pattabiraman & Ors.
(1985) 1 SCC 591 and Shrikrishna Oil Mill vs.
Radhakrishan Ramchandra, (2002) 2 SCC 23. It is submitted
that both the cited judgments were clearly applicable. It is well
settled that the cause of action for the purposes of passing the
impugned order should exist at the time of passing of the said
order. If that cause of action is conspicuous by its absence,
the order cannot be based on a previous set of circumstances
which have already been rectified.
12. RE: RE-ENTRY CLAUSE
12.1 It is submitted that the Hon‟ble High Court has completely
failed to appreciate the true tenor, intent and purpose of
Clause 13(VI) of the lease deed. Clause 13(VI) reads as
follows:-
“VI. No. forfeiture or re-entry shall be affected until the Lessor has served on the Lessee a notice in writing: - (a) Specifying the particular breach complained of,
(b) If the breach is capable of remedy requiring the Lessee to remedy the breach, and the Lessee fails within a reasonable time from the date of service of the notice to remedy the breach, if it is capable of remedy. In event of forfeiture of re-entry the Lessor or such officer as may be authorised by him in this behalf may in his WWW.LIVELAW.IN
discretion relieve against forfeiture on such terms and conditions as he thinks proper.”
12.2 It is submitted that as per Clause VI of the Perpetual lease
deed dated 10.01.1967, it was incumbent upon the lessor not
to terminate the lease unless an opportunity of curing the
breach was given to the lessee. Even if it is assumed, for the
sake of argument, that the Petitioner had not carried out
printing activity for a period of eight years between 2008 to
2016, nevertheless by the time order was passed on
30.10.2018 the Petitioner was carrying out the full-fledged
running of three newspapers online as well as an imprint. And
Ld. DB has acknowledged that the paper publication has
commenced and the breach with regard to printing activity has
been rectified. Hence, the allegation of the respondent that the
dominant purpose (as per the respondent) of the lease has
been violated, is false and it can not be a ground for re-entry
when the same has already been rectified in full.
12.3 In these circumstances, it is submitted that no termination
could be effected without even giving an opportunity to the
Petitioner to cure or confirm any alleged breach. No
opportunity was at all given either in the show cause notice or
in the impugned orders for curing the defect as mandated
under Clause 13(VI) of the lease deed.
WWW.LIVELAW.IN
12.4 It is submitted that the Hon‟ble High Court has completely
brushed aside the aforesaid argument in Para 55 by merely
noticing that there were other breaches. The Hon‟ble High
Court, while observing our contention that paper publication
has commenced and the breach with regard to printing activity
has been rectified, did not deal with the effect of the
resumption of publication w.e.f. November, 2016 and whether
at all the lease could be determined on the ground of no press
activity without giving an opportunity to the lessee to rectify the
defect. Furthermore, the alleged reliance upon (a) Misuse by
Akash Gallery and (b) Unauthorised construction is also
entirely baseless.
13. RE: MISUSE BY AKASH GALLERY
13.1 The Petitioner Company has no concern whatsoever with
the said Akash Gift Gallery and has no power under the
law to forcibly physically evict Akash Gift Gallery. The
eviction suit is pending adjudication before the Court of
Additional District & Sessions Judge, Tis Hazari Court, in
'CS No. 181 of 2005' titled - "M/s. Associated Journals
Limited Versus Ms. Shabana Alam" and CS 311 of 2013
Titled - "M/s. Associated Journals Limited Versus Ms.
Shabana Alam" for recovery from the aforesaid illegal
occupant for misuse charges imposed by respondent
(L&DO). WWW.LIVELAW.IN
13.2 No prudent person, including the Petitioner herein would
risk losing possession of the entire Demised Premises
only on account of a misuse of a small portion thereof (a
mere 84 square foot area) and that too by someone who
has no connection or who does not add value or provide
any service to the Petitioner herein. The Petitioner had
categorically stated in its various communications
regarding its sincere efforts since the year 2005 vide Civil
Suit No. 181/ 2005 in the Tis Hazari Court to evict Akash
Gift Gallery from the property since the latter is in illegal
possession thereof. Furthermore, in 2011/2012 the
Petitioner paid compounding fees for the presence of
Akash gift Gallery in the small space of 84 square feet of
the Demised Premises and cured the breach till January
2013. The use of the said space as a shop by Akash Gift
Gallery is thus beyond the Petitioner's control and such
this cannot be a ground for cancellation of the Lease.
14. RE: UNAUTHORIZED CONSTRUCTION
14.1 With regards to the allegation regarding alleged
unauthorised construction of 1010.03 sq.ft. is concerned,
it was pointed out that the same was in accordance with
'Unified Building Bye-Laws for Delhi' and 'Model Building
Bye-Laws, 2016' issued by Ministry of Urban
Development. The Petitioner Company cannot be faulted WWW.LIVELAW.IN
and/or penalized for acting in a manner which is in
consonance of the applicable municipal laws and fire
safety standards. The Electrical Panel Room is
constructed to ensure safety and security of the demised
premises and it surely cannot be the contention of the
Respondent, who is a public authority unlike the
Lessee/Petitioner Company should act or conduct its
affairs in a manner that is hazardous to life and limb of
public at large.
14.2 It is thus submitted that the impugned order is completely
vitiated in view of the non-consideration of Clause 13(VI)
of the lease deed. Furthermore, the issues relating to
Akash Gift Gallery and panel room had not been even
dealt with by the Ld Single Judge. In these
circumstances, the Hon‟ble Division Bench erred on
validating the stand taken by the Respondents in respect
of (a) and (b) noted hereinabove.
15. RE: TRANSFER OF SHAREHOLDING FROM AJL TO YOUNG INDIAN [PARA 57 TO PARA 66]
15.1 It is respectfully submitted that the findings/reasons rendered
by the Hon‟ble High Court regarding violation of Clause III(13)
of the Lease are also completely untenable. Clause III(13) of
the Lease reads as follows – WWW.LIVELAW.IN
“The Lessee shall not be entitled to sub-divide the demised premises or transfer by sale, mortgage, gift or otherwise the said premises or building erected thereon or any part thereof without obtaining the prior approval in writing of the Lessor…..”.
Clause III (13) is attracted when there is:- i. Sub-division of the demised premises. ii. Transfer by Sale. iii. Transfer by Mortgage. iv. Transfer by Gift. vi. Transfer by “Otherwise”
Admittedly there is no allegation of sub-division of the demised
premises. There is no allegation of Transfer by Sale,
Mortgage, and Gift of the demised premises.
15.2 The impugned order fails to appreciate that the 1962 Lease
Deed (Agreement for Lease) and the 1967 Lease Deed
(Perpetual Lease) was executed by the Respondent Lessor,
who was perfectly aware and fully cognizant of the fact that
the Petitioner-Company/Lessee is not a „natural person‟ but a
juristic/non-natural/artificial/ corporate entity i.e. a Company
incorporated under the Companies Act, having shares and
shareholding pattern/structure. Yet the Lease Deed did not
contain any prohibition or a covenant that there cannot be any
change of the shareholding pattern without the prior consent of WWW.LIVELAW.IN
the Lessor as was stipulated in other matters of the Lease
Deed.
15.3 It is submitted that unless there is a specific clause prohibiting
a change in the constitution of the Lessee, the lease cannot be
determined. In U.P. State Industrial Development Corpn.
Ltd. v. Monsanto Manufacturers (P) Ltd., (2015) 12 SCC
501, there was a specific clause 3(p) which prohibited any
alteration or change in the constitution of the Lessee.
15.4 In contra distinction, Clause III (13) contained a prohibition
only on the transfer of rights by the Petitioner-Company of the
demised premises to a third entity without the Lessor‟s
consent. The change of the shareholding pattern of the
Petitioner does not tantamount to the transfer of the interest of
the Petitioner-Company in the demised premises to a third
party. The leasehold rights of the demised premises still
continue to vest in the Petitioner. It is submitted that the
impugned order flies in the face of the decisions of the Hon‟ble
Delhi High Court in “Delhi State Industrial & Infrastructure
Development Corporation Ltd v K.G. Electronics Pvt. Ltd.
& Anr” - 2014 SCC Online 2309 and “Delhi Development
Authority v Human Care Charitable Trust - 2016 SCC
Online Del 629”.
WWW.LIVELAW.IN
15.5 In Delhi State Industrial & Infrastructure Development
Corporation Ltd Vs. M/s. K.G. Electronics Pvt. Ltd. & Anr,
2014 SCC Online 2309, a plot was initially allotted to a Private
Limited Company on a perpetual lease basis. Thereafter, the
shareholding of the said Private Limited Company had
changed. The issue before the Hon‟ble Court was that whether
due to the transfer of the shareholding the provisions in the
lease deed which prohibits selling/transferring, assigning or
otherwise parting with the leased land was violated. The
Learned Single Judge allowed the writ petition. The Learned
Division Bench vide judgment and order dated 07.11.2014 in
L.P.A. No. 391/2014 upheld the decision of the Learned Single
Judge by observing the following: -
“7. We have also examined the letter dated 7th July, 1990 of allotment of the said land in favour of the respondent no. 1/writ petitioner and the same is also not found to contain any condition to the effect that the change of shareholding and Directorship was prohibited or any unearned increase would be payable therefor. We may in this regard notice that such a provision exists in some of the documents of allotment and lease/perpetual lease of land executed by governmental agencies.”
15.6 In DDA v. Human Care Medical Charitable Trust, (2016) 1
HCC (Del) 761, a perpetual lease deed was executed in favor
of a Society. Clause 5A of the perpetual lease deed in the
case therein read as follows -
“(5) (a) The lessee shall not sell, transfer, assign or possession of the whole or any part of the said land or any building thereon except with the WWW.LIVELAW.IN
previous consent in writing of the lessor which he shall be entitled to refuse in his absolute discretion.”
15.7 There was a change in the constitution of the Society and the
lease was sought to be determined due to the change in the
constitution of the Society. The Learned Single Judge allowed
the writ petition filed by the Society impugning the action of the
Respondent. In this regard, Hon‟ble Division Bench while
affirming the findings of the Learned Single Judge in Paras
15(a), 15(d) and 15(e) observed as follows: -
“15. In so concluding, the learned Single Judge has held as under: (a) The case projected by DDA to justify its action of cancelling the allotment of land in favour of society that sale of land was effected by the society by changing membership of society has no legs to stand in view of the fact that the lease deed dated 11-6-1996 executed by DDA in favour of the society does not prohibit the society from inducting new members or filling up membership upon resignation of existing members. Change of membership would not amount to a sale of land. (b) In view of the settled legal position that the society is a quasi-corporation and is deemed to be a separate legal entity distinct from its members and entitled to hold property, any change in the membership of the society or its governing body cannot fall within the meaning of the expression “otherwise part with possession of the property” occurring in the lease deed dated 11-6-1996, particularly when the perpetual lease deed dated 11-6-1996 has been executed by the DDA in favour of the society and it is the society which is prohibited from selling, transferring, assigning the land/building constructed thereon. The privity of DDA under the perpetual lease deed dated 11-6- 1996 is with the society and not with the members of the society. (c) The expression “otherwise part with possession” occurring in Clause 2(5)(a) of the WWW.LIVELAW.IN
lease deed dated 11-6-1996 have to be read in ejusdemgeneris to sale, transfer, assignment by society to another entity and cannot be read as prohibiting a change in membership.”
15.8 It is submitted that the impugned order flies in the face of the
decisions of this Hon‟ble Court in Bacha F. Guzdar, Bombay
Vs. Commissioner of Income Tax - Bombay AIR (1955) SC
74; Vodafone International Holdings v. Union of India -
(2012) 6 SCC 613 which clearly hold that a shareholder is not
the owner of the assets of the company and therefore mere
change in shareholding does not amount to transfer of assets
of the company to the shareholder. The ratio of the decision of
this Hon'ble Court in the Vodafone case and Bachha Guzdar
case clearly applies to the facts of the present case that the
change of the share holding pattern / share holding structure
of a corporate entity does not lead to a change of ownership of
the said corporate entity. The assets owned and held by a
company belongs to the company alone and the individual
shareholder have no individual right / title / interest in the said
assets.
15.9 It is submitted that the mere fresh allotment of the shares of
AJL to Young Indian which is a section 25 company cannot at
all be construed as a breach of Clause III (13) of the Lease.
15.10 It is submitted that the doctrine of lifting of corporate veil was
completely inapplicable in the facts and circumstances of the WWW.LIVELAW.IN
case. In any event, it is submitted that the doctrine of lifting of
corporate veil could have been resorted to only when there
were pleadings of facts before the court by which the court
could come to a conclusion that the entire arrangement was a
subterfuge to achieve an illegal object. It is respectfully
submitted that the observations made in Para 58 without the
parties being present before the court are findings which have
been made behind the back of parties concerned. The said
findings have been made for the purposes of applying the
principle of lifting of corporate veil which could not have been
done.
15.11 It is submitted that the judgements in State of Rajasthan v.
Gotan Lime Stone Khanij Udyog (P) Ltd., (2016) 4 SCC
469, D.D.A v. Skipper Construction Co. (P) Ltd. and Anr.
(1996) 4 SCC 622 and Workmen vs Associate Rubber
Industries (1985) 4 SCC 114 relied upon by the High Court
are completely inapplicable.
16. RE:- ALTERNATE REMEDY UNDER PP ACT. [PARA 67 TO 70 OF THE IMPUGNED ORDER]
16.1 It is submitted that the Hon‟ble High Court in Para 69 comes to
a conclusion that “the petitioners have a remedy under the PP
Act…”. The Hon‟ble High Court could not have adjudicated on
the validity of the impugned order dated 30.10.2018 on facts
and then relegated the Petitioner to alternate remedy. It is WWW.LIVELAW.IN
submitted that on the one hand the Hon‟ble High Court has
completely adjudicated the matter on merits while on the other
hand has relegated the Petitioner to an alternate remedy. It is
submitted that the impugned order is completely inconsistent
and as a matter of fact any remedy under the PP Act has been
rendered completely nugatory and otiose in view of the
findings/reasons rendered on merits about the validity of the
order dated 30.10.2018 passed by the Respondent.
16.2 Furthermore, the Hon‟ble High Court has committed a grave
error in Para 70 that the Petitioner had not denied the fact
about the unauthorized occupation by Akash Gift Gallery and
pendency of the eviction proceedings. It is respectfully
submitted that the Petitioner had clearly put all these matters
in issue and had challenged the findings relating to the above
before the Ld. Single Judge. In Para B.11 to B.14 of WP (C)
No 12133/2018 these issues were squarely raised before the
Hon‟ble High Court.
16.3 It is further submitted that the Hon‟ble High Court has not
appreciated the law laid down in Express Newspapers (P)
Ltd. v. Union of India (1986) 1 SCC 133, and its
interpretation in Ashoka Marketing Ltd vs Punjab National
bank, (1990) 4 SCC 406.
WWW.LIVELAW.IN
16.4 It is submitted that the law laid down in Para 85 of Express
Newspapers regarding the lack of jurisdiction of the Estate
Officer to determine the question of the validity of termination
of the lease is good law even after the judgment of this
Hon‟ble Court in Ashoka Marketing.
16.5 It is further submitted that the first agreement of lease was
executed on 02.08.1962 when only a vacant piece of land was
allotted to the Petitioner herein. Subsequently, the Petitioner
constructed the superstructure on the said vacant piece of
allotted land and built a basement, ground floor, and four
floors. The superstructure therefore, has been constructed by
the Petitioner Company in the five-year period between
02.08.1962 and the date of Lease Deed dated 10.01.1967.
Therefore, in terms of the ratio of the decision of this Hon‟ble
Court in Express Newspapers, the proceedings under the PP
Act are not maintainable.
16.6 It is submitted that the principles laid out in Express
Newspapers is squarely applicable to the present case also
on account of the stark similarity in facts. The similarity
between Express Newspapers and the instant case is as
follows:
i) Press/Newspaper;
ii) Same street at Bahadur Shah Zafar Marg; WWW.LIVELAW.IN
iii) Similar lease conditions;
iv) Curb on freedom of press and violation of the
fundamental right granted under Article 19 of the
Constitution;
v) Construction by the lessee on vacant land with the
permission of lessor (no unauthorised construction).
16.7 It is submitted that it would be incorrect to contend that this
Hon‟ble Court in Ashok Marketing has declared Express
Newspapers case not to be good law. On the contrary,
paragraph 32 of Ashoka Marketing clearly states that the
Express Newspapers was confined to the facts of the case.
16.8 It is submitted that Express Newspapers and Ashoka
Marketing operate on different footings. The facts of the
present case are almost identical to the facts of Express
Newspaper inasmuch as in both cases there was only a
Lease of the land and the superstructure was constructed by
the Lessee in Express Newspaper as well as in the present
case. This Hon'ble Court held in Express Newspaper that
since the superstructure was constructed and built by the
Lessee and therefore the Estate Officer has no jurisdiction to
proceed against such a Lessee because such a Lessee would
not answer to the definition of an “unauthorized occupant” in
terms of section 2(g) of the PP Act.
WWW.LIVELAW.IN
16.9 The facts of the Ashoka Marketing are clearly distinguishable
from the facts of the present case. In Ashoka Marketing the
land as well as the superstructure was built and belonged to
the Government and therefore, for the purposes of eviction of
an occupant, the applicability/provisions of PP Act was held to
be maintainable. This is not so in the facts of the present case.
17. RE.: ALLEGATIONS OF MALAFIDE NOT CONSIDERED AT ALL BY THE IMPUGNED ORDER:
17.1 It has been the clear, consistent and vehement ground urged
by the Petitioners herein, both before the Ld. Writ Court and
before the Ld. DB that the entire eviction proceedings are
actuated by bias and malafide. The publications of the
Petitioner-Company espouse the ideology of the Congress
Party, which is presently the largest Opposition Party in the
country. The eviction proceedings have been initiated for the
purposes of scuttling the voice of democratic dissent of the
Congress Party. It is a clear affront to the freedom of speech
and expression guaranteed under Article 19(1)(a) of the
Constitution and a deliberate attempt to suppress and destroy
the legacy of the first Prime Minister of the country i.e. Shri
Jawaharlal Nehru, who was the guiding light for the
publications of the Petitioner-Company. The present political
dispensation in power at the Centre, has never hidden its
pathological hatred for Nehruvian ideals. One of their favorite WWW.LIVELAW.IN
propaganda is to blame Pandit Nehru for almost everything
that ails the nation. The eviction proceedings constitute a
malicious step in the larger design of defaming and effacing
the legacy of Pandit Nehru.
17.2 It is a matter of public knowledge, which this Hon‟ble Court
may be pleased to take judicial notice that the principal
political party of the incumbent ruling collation dispensation at
the Centre viz the Bharatiya Janata Party (in its present form
since 1980 and in its earlier avatar – the Bhartiya Jana Sangh
since 1951) harbours a pathological animus to the ideas of
Indian‟s first Prime Minister – Shri Pandit Nehru, whom they
incessantly and viciously accuse of creation of a “secular
democratic republic” where people of all faiths have equal
protection and equal access under the Constitution of Indian.
Their avowed objective of creation of a majoritarian state, has
always been at logger-heads at our secular constitutional
values, represented by Pandit Nehru and the Indian National
Congress.
17.3 It is further submitted that malafide intent is writ large even by
a bare perusal of the Tweets of the members of the BJP
published even prior to the issuance of the
communication/order dated 30.10.2018 by the Respondent.
17.4 The impugned order fails to discuss let alone consider the
aforementioned submissions of bias of malafide. It also fails to WWW.LIVELAW.IN
consider that one of the main grounds of eviction proceedings
is the alleged letting out of the demise premises to other sub-
lessees. The Petitioner-Company has let out a part of the
demised premises, which is permissible under the Lease Deed
and done with the consent of the Respondent/Lessor.
17.5 The various Show Cause Notices do not raise this allegation.
It is further submitted that the other 8 (Eight) Allottees /
Lessees at Bahadur Shah Zafar Marg too have subleased a
portion of their demised premises and the Petitioner-Company
is of the humble view that this must have been done based on
pari materia provisions existing in their respective lease
deeds. A chart herein below will indicate the sub leases that
are executed by the other 8 (eight) Allottees on the same
street i.e. Bahadur Shah Zafar Marg.
Sr. Lessee Address Tenants
No.
1. Patriot 3, Bahadur Shah Ground Floor: Central
House Zafar Marg, New Bank of Indian, United
Delhi-110002 Periodicals, JK Group,
Religare, Oriflame
2. Nehru 4, Nehru House, Ground Floor: Children
House Bahadur Shah Zafar Book Trust, Business WWW.LIVELAW.IN
Marg, New Delhi- Standard, JK Papers,
110002 JK Cement,
1st Floor: Doll Museum,
2nd Floor: Superb
Enterprises Pvt. Ltd.,
Superb My Trip Pvt.
Ltd., LIC Of Indian,
3rd Floor: JK Paper
Limited, JK Lakshmi
Cement, Navbharat
Vanijya Limited,
Crossbow Investment
Pvt. Ltd, Akhand
Investment Pvt. Ltd.,
4th Floor: JK Paper
Limited, JK Lakshmi
Cement, JK Envirotech.
3. Herald 5A, Herald House, Ground Floor:
House Bahadur Shah Zafar Passport Seva Kendra,
Marg, New Delhi- WWW.LIVELAW.IN
110002 1st Floor: Passport
Seva Kendra,
2nd Floor: Tata
Consultancy Limited,
3rd Floor: Tata
Consultancy Limited,
4th Floor: The
Associated Journals
Limited.
4. Pratap 5, Bahadur Shah Ground Floor: Udupi
Bhawan Zafar Marg, New Café / Shreeji Rasoi,
Delhi-110002 LM Energy & Software,
KJ Mongia &
Associates
MEZ: Indian Portfolio /
Vineet Securities;
Mahindra Paper
Trading Company,
1st Floor: Ashwani & WWW.LIVELAW.IN
Associates (CA);
Geetanjali Jain (CA),
Ajit Samachar,
Millenium Post; Shah
Times,
2nd Floor: OCIO Tours
Pvt. Ltd., RDS
Management Services
Ltd, Sai Capital/Daily
Pratap/Media Plus
Network/
3rd Floor: Visa Express
Corporate Travel Pvt.
Ltd., Mansukh
Investments & Trader
Solutions,
4th Floor: International
Certification Bureau/
Sarokar Media, Sikh
Times
5. Tej Daily Tej Pvt Ltd., B- Ground Floor: Daily WWW.LIVELAW.IN
Building 8, Bahadur Shah Tej Pvt. Ltd.
Zafar Marg, New
Delhi 110002 1st Floor: Malayala
Manorma Group of
Publication,
2nd Floor: Medi Assist
Indian TPA Pvt. Ltd.,
Bharti AXA Life
Insurance.
3rd Floor: Adaan
Business Solutions,
4th Floor: Supreme
Court Legal Cell(U.P.
Govt.)
6. Milap Daily Milap Private The Daily Milap
Building Ltd, Milap Niketan, /McDonalds /Superb
8-A, Bahadur Shah Enterprises / HDFC
Zafar Marg, New Bank / The Hindu
Delhi 110002 (Regional Office) /
Bates Indian Pvt. Ltd.
WWW.LIVELAW.IN
7. Indian The Indian Express Ground Floor: ESIC,
Express Pvt Ltd, Mezzanine Times Of Indian, ICICI
Building Floor, Express bank, Samay Ki
Building 9&10, BSZ Charcha,
Marg, New Delhi
110002 1st Floor: TVL,
Standard Chartered,
2nd Floor: IDFC Bank,
Star Paper Mills, BW
Paper Work, HDFC
Bank,
3rd Floor: Crompton,
DMI Group
8. Times of Times House, 7 Under Construction
Indian Bahadur Shah Zafar
Building Marg, New Delhi-
110002
9. Gulab MBD Group, Gulab Ground Floor: Cafe
Bhawan Bhawan, 6, Bahadur Coffee Day, Times of
Shah Zafar Marg, Indian, MBD books,
New Delhi 110002 Democratic World (Part WWW.LIVELAW.IN
of MBD Group),
1st Floor: Times of
Indian,
2nd Floor: Axis Bank,
3rd Floor: International
College of Fashion,
International College of
Financial Planning,
Share Gurukul, National
Payment Corporation of
Indian, Back Side: JK
Lakshmi Cement
Limited, JK Tyres,
Umang Dairies LTD. JK
Papers Limited, JK
Corp. Limited.
17.6 The Respondent herein is put to strict proof to submit
information for the kind perusal of this Hon‟ble Court, as to
which of the other 8 (eight) Allottees / Lessees on the same
street have faced Show Cause Notices, inspections,
determination of leases and issuances of the impugned order. WWW.LIVELAW.IN
It is only the Petitioner-Company herein who is singled out for
such malicious and invidious discrimination..
17.7 Another example of glaring discrimination is that as per the
report of the Ministry of Urban Development for 2009-2010
[www.cag.gov.in/sites/default/files/audit report files /
union performance Civil Land Development Office 6 2009
chapter 11.pdf], there are outstanding dues with regards to
the other 8(eight) Allottees / Lessees. The Petitioner-Company
has paid its dues of Rs.3.5 Crores on 04.10.2011. The
Petitioner-Company is unaware whether other 8 (eight)
Allottees / Lessees have similarly clear their outstanding dues.
The fact that the Respondent herein has chosen to
deliberately ignore the outstanding dues of other 8 (eight)
Allottees / Lessees and opted to act against the Petitioner
herein alone is yet another example of malice and invidious
discrimination.
17.8 There are several publishing houses which are located in the
same vicinity as of the AJL/Petitioner herein, and all those
newspapers are printed at Noida or places outside Delhi.
None of those offices have been served with a notice. This
proves a clear motive for bias and malafide. Hence the
present SLP praying for urgent ad interim reliefs against
dispossession and stay of proceedings under the PP Act. WWW.LIVELAW.IN
LIST OF DATES
DATES PARTICULARS
20.11.1937 The Associated Journals Limited („AJL‟) – Petitioner-
Company, was incorporated on 20.11.1937 to run
newspapers in different languages to propagate the
principles and ideology of the Indian National Congress.
A True Typed copy of the Memorandum of Association
dated 20.11.1937 of the AJL is annexed as ANNEXURE
P-1 (pp to ).
02.08.1962 An Agreement for Lease/Memorandum of Agreement
was entered into between the President of India
(„Lessor‟) and the Petitioner-Company herein („Lessee‟),
whereby the Lessor agreed to demise the suit land for
the purpose of construction for commercial purpose on
certain terms and conditions mentioned therein.
Clause XIX of the said agreement provides for forfeiture
and re-entry upon the premises in case the Lessee
breaches or commits default in the performance of any
covenant on its part.
Clause XX, more importantly, imposes a fetter on any
such forfeiture or re-entry in as much as it inter alia
requires the Lessor to serve upon the Lessee a notice in
writing – WWW.LIVELAW.IN
a. Specifying the particular breach complained of.
b. If the breach is capable of remedy, requiring the
Lessee to remedy the breach.
And the Lessee fails within a reasonable time from the
date of service of the notice to remedy the breach, if it is
capable of remedy.
A True typed copy of the agreement for lease dated
02.08.1962 between the president of Indian and the AJL
is annexed as ANNEXURE P-2 (pp to ).
NIL The Petitioner-Company brought to the notice of the
Respondent that the Petitioner-Company was desirous
of sub-letting the other portions of the building which
was in excess of the requirement of the building for
productions of newspapers and accordingly an
additional premium of Rs.4,46,536/- was paid and a
perpetual lease was executed on 11.01.1967.
19.02.1964 The Petitioner-Company vide letter dated 19.02.1964
made a request to obtain sanction for subletting any
portion of the building in excess of the requirements for
production and publication of their daily newspaper.
23.12.1966 The Respondent vide letter dated 23.12.1966 agreed
that on payment of additional premium as per market
rate, permanent change of purpose may be agreed to,
with the condition that a portion of the premises will WWW.LIVELAW.IN
continue to be used for the purpose for which the plot
was originally leased out.
10.01.1967 Upon completion of the construction as agreed upon in
the Agreement for Lease/Memorandum of Agreement
dated 02.08.1962, and pursuant to the payment of an
additional premium of Rs. 4,46,536/-, a Perpetual Lease
Deed dated 10.01.1967 was executed in favour of the
Petitioner-Company/Lessee.
Clause IV of the Perpetual Lease empowers the Lessor,
in case of violations/defaults by the Lessee of Clauses
III(5), III(9) and III(10), to enter upon the premise to
remove such violations.
Clause V, however, empowers the Lessor or any officer
authorised by him to re-enter the demised premises, in
case of any breach by the Lessee of any of the Lease
covenants or conditions, resulting in the determination
of the Lease.
The powers of re-entry and forfeiture provided for in
Clauses IV and V are circumscribed by Clause VI which
provides that no forfeiture or re-entry shall be affected
unless the Lessor has served upon the Lessee a notice
in writing –
a. Specifying the particular breach complained of.
b. If the breach is capable of remedy, requiring the WWW.LIVELAW.IN
Lessee to remedy the breach.
And the Lessee fails within a reasonable time from the
date of service of the notice to remedy the breach, if it is
capable of remedy.
A True typed copy of the Perpetual Lease in favour of
the AJL dated 10.01.1967 is annexed as ANNEXURE
P-3 (pp to ).
13.04.2011 AJL made a request to the Union Minister for Urban
Development seeking incorporation of changes in
Clause III (7) of the perpetual lease dated 10.01.1967,
which clause stipulated the manner in which different
premises of the property were to be used. A True typed
copy of the letter dated 13.04.2011 between Union
Minister of Urban Development and AJL is annexed as
ANNEXURE P-4 (pp to ).
04.10.2011 It is also relevant to note that in 2009 the committee
was appointed by the Respondents in respect of the
press/media plots on Bahadurshah Zafar Marg blocks to
examine the deviations/irregularities and impose
appropriate conditions/dues to be payable for the
purpose of regularization. Pursuant to this
recommendation the Petitioner-Company paid the sum
of Rs 3.54 crores for the purpose of regularization. It is
submitted that the Respondent has acknowledged the WWW.LIVELAW.IN
receipt of Rs. 3.54 crores vide communication dated
04.10.2011. A True typed copy of the communication /
letter dated 04.10.2011 acknowledging the receipt of
Rs. 3.54 Crores is annexed as ANNEXURE P-5 (pp
to ).
07.01.2013 Clause III (7) perpetual lease dated 10.01.1967, which
stipulated the manner in which the different floors were
to be used was modified as per request on behalf of the
lessee. It was agreed that the premises could be used
as follows:
i. Basement and any one floor of the building for the
press and offices of the Lessee.
ii. The remaining four floors of the building for letting
out to other commercial concerns as office
accommodation.
A True typed copy of the letter dated 07.01.2013 issued
on behalf of the Land and Development Office is
annexed as ANNEXURE P-6 (pp to ).
22.03.2016 A Notification is issued by the Delhi Development
Authority in respect of the Unified Building Bye-Laws for
Delhi 2016. A True Typed copy of Notification dated
22.03.2016 (Unified Building Bye-Laws for Delhi 2016)
notified in the Gazette of India on Model Building Bye-
Laws, 2016 is annexed as ANNEXURE P-7 (pp WWW.LIVELAW.IN
to ).
06.09.2016 A letter was addressed to the Petitioner-Company
Lessee notifying it that the premises of Herald House
would be inspected by an officer of the Land and
Development Office on 13.09.2016. A True typed copy
of the letter dated 06.09.2016 by the Land and
Development Office to AJL is annexed as ANNEXURE
P-8 (pp to ).
09.09.2016 The Petitioner-Company Lessee responded through its
Chairman to the above letter requesting two weeks time
on account of his unavailability due to a medical
emergency as well as also on account of the fact that as
stipulated in the notice dated 06.09.2016, the Lessee is
required to make available a certified copy of the
sanction and completion plan, obtaining which from the
concerned departments would take time. A True &
typed copy of the letter 09.09.2016 by Shri Moti Lal
Vohra, Chairman, AJL is annexed as ANNEXURE P-9
(pp to ).
15.09.2016 A revised letter was addressed to the Petitioner-
Company Lessee notifying it that the premises of Herald
House would be now be inspected by an officer of the
Land and Development Office on 26.09.2016. A True
typed copy of the letter 15.09.2016 by the Land and
Development Office to AJL is annexed as ANNEXURE WWW.LIVELAW.IN
P-10 (pp to ).
26.09.2016 The Chairman, AJL, responded by inter alia informing
the L&DO about the authorised person who would be
present during the inspection and further also supplying
certified copies of the sanctioned plan and occupancy
certificate. A True typed copy of the response of the
Chairman, AJL to the L&DO dated 26.09.2016 is
annexed as ANNEXURE P-11 (pp to ).
10.10.2016 A breach notice dated 10.10.2016 (“SCN I”) by the
Respondent calling upon the Lessee to remedy
purported breaches of Clauses III (5) and (7) of the
perpetual lease deed as listed therein before exercising
re-entry powers. A True typed copy of the breach notice
by the L&DO dated 10.10.2016 is annexed as
ANNEXURE P-12 (pp to ).
14.11.2016 The publication of National Herald in its digitised form
commenced from 14.11.2016.
19.11.2016 The Lessee replied to the breach notice dated
10.10.2016 (“SCN-I”) vide communication dated
19.11.2016 requesting 60 days time to enable it to
examine the breaches pointed out by a team of
technical experts before submitting a detailed reply. A
True & typed copy of the communication requesting 60
days‟ time dated 19.11.2016 by AJL is annexed as WWW.LIVELAW.IN
ANNEXURE P-13 (pp to ).
12.08.2017 AJL has been publishing a newspaper for the last to 24.09.2017 several decades and that although there was a brief and
temporary suspension period due to financial trouble the
formal newspaper and digital media operations had fully
resumed.
The digital version of the newspaper „National Herald‟ in
English had commenced from 14.11.2016. On
12.08.2017 the digital version of „Qaumi Awaz‟ in Urdu
commenced with Shri. Zafar Agha as Editor-in-Chief.
The digital version of „Navjivan‟ in Hindi commenced on
28.08.2017 under the leadership of Late Shri. Neelabh
Mishra.
The hard print weekly newspaper „National Herald‟ on
Sunday was resumed from 24.09.2017 where it was
explicitly stated that the place of publication was the
demised premises.
On 14.10.2018 AJL resumed its hard print weekly
newspaper in Hindi i.e. “Sunday Navjivan” where it was
explicitly stated that the place of publication was the
demised premises.
Further plans to launch newspapers in other languages
including Urdu and/or from other centres are in the
pipeline during the next four quarters. WWW.LIVELAW.IN
05.04.2018 In ignorance of the communication dated 19.11.2016,
and after more than a year, the Respondent on
05.04.2018 communicated to the Petitioner-Company of
the formation of a 3-member committee to visit the
premises for inspection again. A True typed copy of the
letter dated 05.04.2018 informing AJL of the formation
of a 3-member committee to visit the premises for
inspection again by the Land and Development Office is
annexed as ANNEXURE P-14 (pp to ).
07.04.2018 In response to the communication dated 05.04.2018,
the Petitioner-Company replied stating that they had
already removed 3 of the 5 breaches mentioned in the
breach notice dated 10.10.2016.
In reference to the breach that Akash Gift Gallery was
operating from 84 sq. Ft. In the basement, it was
pointed out that the Lessee has been pursuing litigation
since 2005 vide C.S. No. 181/2005 in the Tis Hazari
Court to evict Akash Gift Gallery which was in illegal
possession as well as C.S. No. 311/2013 for recovery
from the aforesaid illegal occupant for misuse charges
imposed by Respondent (L&DO).
In reference to the breach in the construction of an
Electric Panel Room, it was submitted that the same
has been constructed in terms of the existing bye-laws.
This space is being used as “panel room” i.e. space WWW.LIVELAW.IN
being utilized for electric substation also known as
meter room. The Unified Building Bye-Laws for Delhi
2016” notified in the Gazette of Indian on 22nd March
2016 and updated „Model Building Bye Laws 2016‟
issued by the Ministry of Urban Development,
Government of Indian state that the panel room should
be constructed as per these updated bye laws. Earlier
the panel room was in the basement but the change in
the Model Building Bye Laws made us shift the panel
room as per these updated bye laws. A True typed copy
of the letter dated 07.04.2018 by AJL in response to
the communication regarding breaches is annexed as
ANNEXURE P-15 (pp to ).
09.04.2018 The three-member committee as indicated in the
communication dated 05.04.2018 inspected the
premises.
18.06.2018 A show cause notice dated 18.06.2018 (“SCN II”) was
issued to the Petitioner-Company to show cause why
action should not be taken for violation of Clause 2(7)
and 4 of the lease deed. A True & typed copy of the
show-cause notice (“SCN II”) dated 18.06.2018 is
annexed as ANNEXURE P-16 (pp to ).
16.07.2018 The Petitioner-Company AJL replied to the show cause
notice dated 18.06.2018 (“SCN II”) inter alia stating that
the inspection committee did not exhaustively visit the WWW.LIVELAW.IN
basement where the printing press was installed along
with a stock of papers. All inquiries made by the said
committee was in respect of the breaches pointed out in
the breach notice earlier and no inquiry was made in
respect of a functioning printing press. A True typed
copy of the reply dated 16.07.2018 with enclosures to
the show-cause notice is annexed as ANNEXURE
P-17 (pp to ).
10.08.2018 The Petitioner-Company vide communication dated
10.08.2018 expressed its dismay over the manner in
which contents of notices intended to be served upon
the Petitioner-Company by the Respondent were being
leaked to the media even before the same was received
by the Petitioner-Company. A True typed copy of the
letter with enclosures dated 10.08.2018 to Respondent
about Media Leaks is annexed as ANNEXURE P-18
(pp to ).
24.09.2018 A fresh show cause notice (“SCN III”) was issued to the
(P/22) Petitioner-Company on the ostensible ground that since
its shares stood transferred to Young Indian, which fact
was not communicated to the Respondent, the
Respondent has violated Clause III(13) of the perpetual
lease deed in as much as the demised property has
been transferred to Young Indian. Hence it was WWW.LIVELAW.IN
concluded that the Respondent was in violation of
clauses III(5), III(7) as well as III(13) of the lease deed.
A True typed copy of the show-cause notice dated
24.09.2018 is annexed as ANNEXURE P-19
(pp to ).
09.10.2018 The Petitioner-Company filed a detailed reply to the
show cause notice dated 24.09.2018 (“SCN III”) inter
alia reiterating the contents of its previous replies.In
respect of new allegations of transfer of the demised
property from AJL to Young Indian based of Income Tax
proceedings, it was stated therein that the same is
under challenge before the Appellate Authority and it
was emphatically reiterated that no such transfer of
property has taken place and the demised premises
continue to be solely in possession and control of AJL in
terms of the perpetual lease as amended. A True typed
copy of the reply with enclosures dated 09.10.2018 to
the show cause notice is annexed as ANNEXURE
P-20 (pp to ).
04.08.2018 That malafide intent is writ large even by a bare perusal
of the Tweets of the members of the BJP published
even prior to the issuance of the communication/order
dated 30.10.2018 by the Respondent which is tabulated
in the form of a chart. A True typed copy of the tweet
published by member of BJP on 04.08.2018 is annexed WWW.LIVELAW.IN
as ANNEXURE P-21 (pp to ).
05.08.2018 A True & typed copy of the tweet published by member
of BJP on 05.08.2018 is annexed as ANNEXURE P-22
(pp to ).
11.09.2018 A True typed copy of the tweet published by members
of BJP on 11.09.2018 is annexed as ANNEXURE P-23
(pp to ).
27.10.2018 A True typed copy of the tweet published by members
of BJP on 27.10.2018 is annexed as ANNEXURE P-24
(pp to ).
30.10.2018 The Respondent issued the communication/order dated
30.10.2018, whereby the Respondent has
communicated its intent to re-enter the demised
premises to the exclusion of the Petitioner-Company
herein on 15.11.2018, failing which action under the
Public Premises (Eviction of Unauthorized Occupants)
Act, 1971 shall be initiated in the Court of the Estate
Officer. A true typed copy of the Show Cause Notice
dated 30.10.2018 is annexed as ANNEXURE P-25
(pp to ).
12.11.2018 The Show Cause Notice dated 30.10.2018 was
challenged in Writ Petition (Civil) No. 12133 of 2018
titled “The Associated Journals Ltd. & Anr. V. Land and WWW.LIVELAW.IN
Development Office” before the Hon‟ble High Court of
New Delhi. A true typed copy of the Writ Petition (C) No.
12133 of 2018 dated 12.11.2018 titled “The Associated
Journals Ltd. & Anr. Vs. Land and Development Office”
before the Hon‟ble High Court of Delhi at New Delhi is
annexed as ANNEXURE P-26 (pp to ).
13.11.2018 The aforesaid writ is listed for the first time. However on
this date, the Court File is not received from the
Registry and hence renotified for 15.11.2018. A True &
Typed copy of the order dated 13.11.2018 passed by
the Ld. Single Judge in Writ Petition is annexed as
ANNEXURE P-27 (pp to ).
15.11.2018 Dr. Abhishek Manu Singhvi, Ld Senior Advocate for the
Petitioners herein made his oral submissions at length.
Shri Tushar Mehta, Ld Solicitor General, appearing for
the Respondent sought time to produce a few records.
A True Typed copy of the order dated 15.11.2018
passed by the Ld. Single Judge in Writ Petition is
annexed as ANNEXURE P-28 (pp to ).
22.11.2018 Shri Tushar Mehta, Ld SG makes submissions on
behalf of the Respondent, followed by a Rejoinder by
Dr. A.M Singhvi for the Petitioners herein. Arguments
concluded and the judgment is reserved, without
issuance of a formal notice and without directing the WWW.LIVELAW.IN
Respondent to place their say by way of a reply/counter
affidavit. A True Typed copy of the order dated
22.11.2018 passed in Writ Petition (C) No. 12133 of
2018 by the Ld. Single Judge of the Hon‟ble High Court
is annexed as ANNEXURE P-29 (pp to ).
26.11.2018 Written submissions filed, by the Petitioners herein with
due permission of the Hon‟ble Court. A true typed copy
of the Written Submissions dated 26.11.2018 filed on
behalf of the Petitioner- Company in Writ Petition (C)
No. 12133 of 2018 before the Ld. Single Judge of the
Hon‟ble High Court is annexed as ANNEXURE P-30
(pp to ).
21.12.2018 The final order and judgment was passed in Writ
Petition (C) No. 12133 of 2018 by the Ld. Single Judge
dismissing the Writ Petition filed by the Petitioners and
directing them to vacate the premises within 2 weeks.
True typed copy of the final judgment and order dated
21.12.2018 passed in Writ Petition (C) No. 12133 of
2018 titled “The Associated Journals Ltd. & Anr. V. Land
and Development Office” by the Hon‟ble High Court is
annexed as ANNEXURE P-31(pp to ).
27.12.2018 A letter by Respondent / L&DO served upon the
Petitioner-Company, calling upon the letter to vacate the
demised premises and hand over the possession to the WWW.LIVELAW.IN
Respondent by 03.01.2019. A True Typed copy of the
letter dated 27.12.2018 sent by the Respondent to the
Petitioner, herein is annexed as ANNEXURE P-32
(pp to ).
02.01.2019 The Petitioner-Company filed a reply to the letter dated
27.12.2018 by Respondent/L&DO requesting the
Respondent to desist from taking any action till the LPA
is heard by the Division Bench of the Hon‟ble High
Court. True Typed copy of the reply dated 02.01.2019
by Petitioner-Company to the Respondent is annexed
as ANNEXURE P-33 (pp to ).
05.01.2019 LPA No. 10 of 2019 titled as “The Associated Journals
Ltd. & Anr. Vs. Land and Development Office” is filed.
True typed copy of the LPA No. 10 of 2019 dated
05.01.2019. A true & typed copy of the LPA No. 10 of
2019 titled “The Associated Journals Ltd. & Anr. Vs.
Land and Development Office” filed by the Petitioner-
Company before the Hon‟ble High Court of Delhi is
annexed as ANNEXURE P-34 (pp to ).
09.01.2019 The Ld Counsel for the Respondent entered
appearance, listed on 16.01.2019 at his request. True
typed copy of the order dated 09.01.2019 passed in
LPA No. 10 of 2019 by the Hon‟ble High Court is
annexed as ANNEXURE P-35 ( ).
WWW.LIVELAW.IN
16.01.2019 True typed copy of the order dated 16.01.2019 passed
in LPA No. 10 of 2019 by the Hon‟ble High Court is
annexed as ANNEXURE P-36 (pp to ).
28.01.2019 Arguments made by Dr. Abhishek Manu Singhvi, Senior
Counsel on the behalf of the Petitioners herein. The
matter was part heard and listed on 01.02.2019. A true
typed copy of the order dated 28.01.2019 is annexed as
ANNEXURE P-37 (pp to ).
01.02.2019 True typed copy of the order dated 01.02.2019 passed
in LPA No. 10 of 2019 by the Hon‟ble High Court is
annexed as ANNEXURE P-38 (pp to ).
11.02.2019 The Ld Solicitor General appeared and made
arguments on behalf of the Respondents herein.
Arguments were part heard and listed on 18.02.2019.
True typed copy of the order dated 11.02.2019 passed
in LPA No. 10 of 2019 by the Hon‟ble High Court is
annexed as ANNEXURE P-39 (pp to ).
18.02.2019 Rejoinder Arguments Were Made By Dr. AM Singhvi.
Judgment Reserved. Parties Directed To File Their
Respective Written Submissions By 22.02.2019. True
Typed Copy Of The Order Dated 18.02.2019 Passed In
LPA No. 10 Of 2019 By The Hon‟ble High Court Is
Annexed As ANNEXURE P- 40 (Pp To ).
WWW.LIVELAW.IN
22.02.2019 Written Submissions filed by the Petitioners herein. A
true typed copy of the written submissions dated
22.02.2019 is annexed as ANNEXURE P- 41
(pp to ).
NIL True copy of the list of licenses/ certificates for the
purposes of publication obtained by AJL dated Nil is
annexed as ANNEXURE P-42 (pp to ).
True copy of the tabular representation of the data with
respect to Newspaper Printing/ Circulation/ Readership
of Petitioner Company dated Nil is annexed as
ANNEXURE P-43 (pp to ).
True copy of the report on details of Distribution and
territorial breakdown of circulation of the National Herald
by the Audit Bureau of Circulation dated Nil is annexed
as ANNEXURE P-44 (pp to ).
True copy of the tabular representation of the data with
respect Online Reach/ Page Views/ Users of Petitioner
Company dated Nil is annexed as ANNEXURE P-45
(pp to ).
True copy of the Alexa Rankings in India and Globally of
the National Herald with other news portals dated Nil is
annexed as ANNEXURE P-46 (pp to ).
True copy of the Employees Data, department wise of WWW.LIVELAW.IN
Petitioner Company dated Nil is annexed as
ANNEXURE P-47 (pp to ).
True typed copy of the editorial code of conduct of
Petitioner Company dated Nil is annexed as
ANNEXURE P-48 (pp to ).
28.02.2019 The Hon‟ble High Court of Delhi dismissed LPA No. 10
of 2019 titled, “The Associated Journals Lt & Anr v Land
& Development Office”. (“Impugned Order”).
28.02.2019 A letter by Respondent / L&DO served upon the
Petitioner-Company, calling upon the letter to vacate the
demised premises and hand over the possession to the
Respondent by 01.03.2019 at 11.00 am. A True Typed
copy of the letter dated 28.02.2019 sent by the
Respondent to the Petitioner, herein is annexed as
ANNEXURE P- 49(pp to ).
28.02.2019 The Petitioner-Company filed a reply to the letter dated
28.02.2019 by Respondent/L&DO informing the
Respondent that the Petitioner-Company is in the
process of filing SLP in the Hon‟ble Supreme Court,
hence requesting the Respondent to desist from taking
any action under the PP Act till the SLP is heard by the
Hon'ble Supreme Court. True Typed copy of the reply
dated 28.02.2019 by Petitioner-Company to the
Respondent is annexed as ANNEXURE P- 50 WWW.LIVELAW.IN
(pp to ).
01.03.2019 3-member team of the Respondent namely Mr. Satpal
Singh, Mr. K.S. Rana & Mr. Malik came to takeover the
possession of the demised premises. The Petitioner-
Company informed them about filing the SLP in the
Hon‟ble Supreme Court and referred its letter dated
28.02.2019 sent to the Respondent.
05.03.2019 The notice by the Estate officer dated 05.03.2019 under
sub-section (1) and clause (b)(ii) of sub-section (2) of
Section 4 of the Public Premises (Eviction of
Unauthorised Occupant), Act, 1971, on Petition of
Respondent / L&DO, served upon the Petitioner-
Company, calling upon to show cause on or before
13.03.2019 at 12.00 noon and for personal hearing on
13.03.2019 at 12.00 noon. A True Typed copy of the
notice along with all annexures dated 05.03.2019 sent
by the Estate Officer to the Petitioner, herein is annexed
as ANNEXURE P- 51 (pp to ).
11.03.2019 Hence, the present Special Leave Petition.
WWW.LIVELAW.IN
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO. OF 2019
(Under Article 136 Of The Constitution Of India)
[AGAINST THE FINAL JUDGMENT AND ORDER DATED 28.02.2019 IN LPA NO. 10 OF 2019 PASSED BY THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI]
BETWEEN POSITION OF PARTIES
Before Hon‟ble Before this High Court Hon‟ble Court
The Associated Journals Ltd. Appellant No. 1 Petitioner Through its Company Secretary, No. 1 Namely sh. N.K. Asthana, Herald house 5A Bahadur Shah Zafar Marg New Delhi-110002
Shri Nalin Kumar Asthana Appellant No. 2 Petitioner Company Secretary of No.2 The Associated Journals Ltd S/o Dinesh Kumar Asthana Flat no. 1, plot no. 7, Vipin Garden, Uttam Nagar New Delhi-110059
VERSUS
Land and Development Office, Respondent Respondent Through the Estate Officer, Ministry of Urban Development Nirman Bhawan New Delhi-110001
WWW.LIVELAW.IN
TO THE HON’BLE THE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHOWETH
1. That the Petitioners herein, The Associated Journals
Limited‟/Petitioner-Company (“AJL”) & Petitioner No. 2- Shri
Nalin Kumar Asthana, Company Secretary in the Company &
the Authorized Signatory on behalf of the Petitioner No. 1 has
preferred the Special Leave Petition, being aggrieved by the
order dated 28.02.2019 (“Impugned Order”) passed by the
Hon‟ble High Court of Delhi in LPA No. 10 of 2019.
2. QUESTIONS OF LAW:
I. Whether it is permissible to invoke PP Act proceedings against a
Super-Structure which has been constructed by a Lessee out of its
own funds without any role/contribution of the Lessor?
II. Whether it is permissible to determine a valid lease on patently
misconceived grounds?
III. Whether it is permissible to determine the Lease even after the
Lessee has cured the alleged defects?
WWW.LIVELAW.IN
IV. Whether it is permissible to determine the Lease on alleged
breaches which do not exist on the date when the process to initiate
the determination of Lease has been taken by the Lessor?
V. Whether the Company and its assets are distinct from its
shareholders?
VI. Whether the shareholders have any claim on the assets belonging
to a Company?
VII. Whether a change in shareholding pattern/structure/shareholders of
a Company leads to change in the ownership of the said Company‟s
assets?
VIII. Whether it is permissible for the Courts below to ignore the law laid
down by this Hon‟ble Court governing determination of Leases and
piercing the corporate veil?
IX. Whether it is permissible for the Courts to below to permit the
Respondent Writ Petition to submit voluminous documents without a
responsible officer‟s affidavit in reply on record?
X. Whether it is permissible to determine a Lease based on political
malafides, malicious and motivated reasons?
WWW.LIVELAW.IN
XI. Whether it is permissible to give a restrictive imprudent meaning
term “printing press”?
XII. Whether it is permissible to interpret the term “printing press”
contemporanea exposito?
3. DECLARATION UNDER RULE 3(2):
The Petitioners herein state that they have not filed any other
Special Leave Petition against the final order dated
28.02.2019 passed by the Hon‟ble High Court of Delhi at New
Delhi in LPA No. 10 of 2019.
4. DECLARATION IN TERMS OF RULE 5:
The Annexures P - to P - produced along with the
present Special Leave Petition are true typed/translated
copies of the pleadings/documents which formed the part of
records of the case in the Court (s) below against whose order
the Special Leave to Appeal is sought for in this Special Leave
Petition.
5. GROUNDS:
WWW.LIVELAW.IN
A. FOR THAT, it is respectfully submitted that the determination
of the lease deed is ex facie malicious, arbitrary, based on
extraneous grounds, and has been effected for political
considerations contrary to the express provisions of the lease
deed itself.
RE: IMPUGNED ORDER IS VITIATED FOR RECORDING FINDINGS OF FACT PREJUDICIAL TO THE PETITIONER WITHOUT THERE BEING ANY SWORN AFFIDAVIT BEING PLACED ON RECORD BY THE RESPONDENTS
B. FOR THAT, it is submitted that there is a common streak of
error which permeates the entire impugned judgment in as
much as several findings of fact have been made rendered
prejudicial to the case of the Petitioner based on oral
arguments of the Respondents and a list of dates handed over
by the Ld Senior counsel for the Respondents without there
being a single affidavit placed on record by the official-
Respondents.
C. FOR THAT, based on the observations in Para 58 which have
been made sans a sworn affidavit, the Hon‟ble Court then
seeks to apply the principle of lifting of corporate veil and
comes to a conclusion in Para 65 that the transaction was not
permissible in law, fraudulent in nature, against public interest
and that the entire transaction was a clandestine and
surreptitious transfer of the lucrative interest in the premises to
Young Indian. It is submitted that apart from such a finding
being ex facie factually false and incorrect, the Hon‟ble High WWW.LIVELAW.IN
Court as a court of record could not have rendered findings
that a transaction was purportedly clandestine and
surreptitious transaction without there being any affidavit or
averment by the official-Respondents in the Writ Petition.
D. FOR THAT, the observations in Para 58 appear to have been
incorporated from the List of Dates handed over by the
Counsel for the Respondents and also from the judgment
dated 10.09.2018 passed by another coordinate bench of this
Hon‟ble Court in W.P.(C) 8482/2018. It is submitted that it was
impermissible for the Hon‟ble High Court to render findings of
fact by verbatim incorporating the allegations made from a list
of dates handed over by a Counsel or from another judgment
in respect of parties who are not even before the Court. On
this ground of procedural illegality alone, which goes to the
root of the matter, the impugned order deserves to be set
aside.
E. FOR THAT, the Hon‟ble High Court has erred in coming to a
conclusion in Para 46 that judicial notice of these facts can be
taken. It is submitted such power is not available to the
Hon‟ble High Court without an affidavit being placed on record
by the official-Respondents. The aforesaid observations are in
the teeth of Section 57 of the Evidence Act, 1872.
RE: NO “PRESS ACTIVITY” IN THE DEMISED/SUBJECT PREMISES [PARA 48 OF THE IMPUGNED ORDER]
WWW.LIVELAW.IN
F. FOR THAT, despite noticing the voluminous evidence placed
on record to show that the Petitioner was in fact carrying out
the publication of several newspapers for last several
decades, the Hon‟ble High Court has non-suited the Petitioner
on a singular ground relying upon the purported
communication dated 26.09.2016 made by Shri Motilal Vora. It
is submitted that that the High Court ought to have noticed that
the Petitioner was continuously carrying out publishing for over
7 decades and over 5 decades from the demised premises,
and as such the lease could not have been terminated more
so when the publishing activity was in full swing with several
news papers and online publications at the time when the
impugned termination dated 30.10.2018 was issued.
G. FOR THAT, when the inspection was carried out on
26.09.2016 or when the show cause notice was issued on
10.10.2016, there was no issue whatsoever of the lack of any
printing activity in the premises. Neither there was any
inspection report of 26.09.2016 which has been till date
furnished to the Petitioners which shows that there was no
printing activity nor was there any allegation in the show cause
notice dated 10.10.2016 about lack of printing activity in the
premises. In these circumstances, the findings of the Hon‟ble
High Court in Para 50 that “When the premises were
inspected on 26th September, 2016, no press activity was
being carried out in the area” is a finding with no basis WWW.LIVELAW.IN
whatsoever and has been rendered merely on the oral
arguments of the Counsel for the Respondents.
H. FOR THAT, in the letter dated 26.09.2016, does not in any
manner indicate that there was no publication from 2008 to
2016.
I. FOR THAT, more importantly, despite noticing the fact that the
newspapers were being published, in Para 51 the Hon‟ble
High Court comes to a conclusion that on 26.09.2016 when
the first inspection took place, admittedly there was no printing
or publication activity and the digital versions of the publication
commenced only on 14.11.2016.
J. FOR THAT, it is respectfully submitted that apart from the
factual errors in the aforesaid findings, it is submitted that the
relevant date and time for the purposes of ascertaining even
this aspect of the matter as to whether there was any press
activity or not could only be when the impugned order dated
30.10.2018 was passed. The date of 26.09.2016 cannot at all
be the relevant date for the purposes of ascertaining the cause
of action inasmuch as there is no document or notice in 2016
or rather till June, 2018, which is sent by the Respondent
which at all takes up the issue of no press activity.
K. FOR THAT, the Hon‟ble High Court could not have taken
26.09.2016 as the anchor date. The relevant anchor date
ought to have been the time of passing the order dated WWW.LIVELAW.IN
30.10.2018 for the purposes of ascertaining whether no
printing activity was being carried out.
L. FOR THAT, it is respectfully submitted that the Hon‟ble High
Court has committed a grave error in prescribing the anchor
date as 26.09.2016 which was not at all the case of the
Respondent as neither the inspection report of 26.09.2016,
that has not been provided till date, nor even notices dated
10.10.2016 and 05.04.2018 (after more than 1.5 years of the
first inspection), mentioned about the allegation of lack of
printing press. In these circumstances, the Hon‟ble High Court
could not have resorted to the date of 26.09.2016 as the
starting point for ex-post facto justification of the lack of
printing press allegation.
M. For that the High Court failed to appreciate that the very first
mention of no press activity came in the SCN dated
18.06.2018, almost 2 years after the 1st inspection as an
afterthought of the respondent, since by then the press activity
had fully resumed.
N. For that the Hon‟ble High Court in para 53 of the Impugned
Order, has ignored the fact that the letter dated 26.09.2016 by
Shri Motilal Vora addressed to the L&DO which was handed
over to the Committee at the time of physical inspection on
26.09.2016, also categorically informed the Respondent of the
recruitment of Shri Neelabh Mishra in August 2016 as the
Editor-in-Chief of the Petitioner Company. It would be WWW.LIVELAW.IN
pertinent to note that the recruitment of Shri Neelabh Mishra
as the Editor-in-Chief was carried out much prior to the first
inspection notice dated 06.09.2016 as well as the physical
inspection dated 26.09.2016 and was not after the inspection.
O. For that the Hon‟ble High Court in para 54 of the Impugned
Order comes to a conclusion that the demised premises was
being used only for commercial activity. This finding is totally
baseless to say the least. The lease deed was given for the
purpose of Press and Offices of AJL in the basement and any
one of the floors, and balance floors were permitted to be
rented. It is submitted that the press and offices of AJL have
been continuing for over 5 decades, ever since the execution
of the lease deed. It is further submitted, there is no
commercial activity being carried out from the demised
premises which is in any breach of the terms of the lease
deed.
P. For that the High Court failed to appreciate and consider the
effect of the factual material placed on record relating to the
circulation of the newspapers of the Petitioner which was
provided by reputed agencies. The High Court discards this
evidence in para 56 by merely stating that circulation figures
are during the breach proceedings. This finding is completely
untenable. The breach notice as far as the lack of printing
press allegation is concerned was issued only in the year 2018 WWW.LIVELAW.IN
and the circulation figures provided were much prior to the
passing of the impugned order of termination
Q. FOR THAT, it is further submitted that the impugned order
palpably fails to appreciate that the term “press” has to be
understood „contemporanea expositio‟, in line with the latest
development in technology which includes digital publishing
and does not involve the traditional mode of printing.
R. FOR THAT, the word „press‟ used in the lease deed dated
10.01.1967 has a wide connotation and includes a „printing
press‟.
S. FOR THAT, the activity of „press‟ also includes „digital
publication‟ apart from traditional printing. The requirement of
running a press cannot mean that all press and printing related
activities have to necessarily be conducted at the same
premises i.e. Demised Premises. The imperatives of prudent
commercial business operations may necessitate that the
Petitioner-Company utilises the infrastructure or the premises
at some other place as a supplement to their operations in the
present Demised Premises.
T. FOR THAT, the newspaper publishing business is not merely
about printing the paper in the press, but this is just one
activity in the many other activities that go into publishing the
newspaper. Newspaper publishing involves multiple, critical
and important activities such as: content gathering;
typography; story commissioning, pagination; text and photo WWW.LIVELAW.IN
editing; layout, designing; colour marking; production; and
circulation etc.
U. FOR THAT, it is submitted that the word “press” used in the
lease deed dated 10.01.1967 includes in its ambit the entire
gambit of activities relating to a press and cannot be only
related to the physical printing.
V. FOR THAT, the Hon‟ble High Court in Para 53 seeks to
distinguish S. Sundaram Pillai & Ors. Vs. V.R. Pattabiraman
& Ors. (1985) 1 SCC 591 and Shrikrishna Oil Mill vs.
Radhakrishan Ramchandra, (2002) 2 SCC 23. It is
submitted that both the cited judgments were clearly
applicable. It is well settled that the cause of action for the
purposes of passing the impugned order should exist at the
time of passing of the said order. If that cause of action is
conspicuous by its absence, the order cannot be based on a
previous set of circumstances which already been rectified.
RE: RE-ENTRY CLAUSE
W. FOR THAT, it is submitted that the Hon‟ble High Court has
completely failed to appreciate the true tenor, intent and
purpose of Clause 13(VI) of the lease deed.
X. FOR THAT, it is submitted that as per Clause VI of the
Perpetual lease deed dated 10.01.1967, it was incumbent
upon the lessor not to terminate the lease unless an
opportunity of curing the breach was given to the lessee. WWW.LIVELAW.IN
Y. FOR THAT, even if it is assumed, for the sake of argument,
that the Petitioner had not carried out printing activity for a
period of eight years between 2008 to 2016, nevertheless by
the time order was passed on 30.10.2018 the Petitioner was
carrying out the full-fledged running of three newspapers
online as well as an imprint.
Z. FOR THAT, it is submitted that no termination could be
effected without even giving an opportunity to the Petitioner to
cure or confirm any alleged breach. No opportunity was at all
given either in the show cause notice or in the impugned
orders for curing the defect as mandated under Clause 13(VI)
of the lease deed.
AA. FOR THAT, it is submitted that the Hon‟ble High Court has
completely brushed aside the aforesaid argument in Para 55
by merely noticing that there were other breaches. The
Hon‟ble High Court, while observing that paper publication has
commenced and the breach with regard to printing activity has
been rectified, did not deal with the effect of the resumption of
publication w.e.f. November, 2016 and whether at all the lease
could be determined on the ground of no press activity without
giving an opportunity to the lessee to rectify the defect.
Furthermore, the alleged reliance upon (a) Misuse by Akash
Gallery and (b) Unauthorised construction is also entirely
baseless.
WWW.LIVELAW.IN
RE: MISUSE BY AKASH GALLERY
BB. FOR THAT, the Petitioner Company has no concern
whatsoever with the said Akash Gift Gallery and has no power
under the law to forcibly physically evict Akash Gift Gallery.
The eviction suit is pending adjudication before the Court of
Additional District & Sessions Judge, Tis Hazari Court, in 'CS
No. 181 of 2005' titled - "M/s. Associated Journals Limited
Versus Ms. Shabana Alam" and CS 311 of 2013 Titled - "M/s.
Associated Journals Limited Versus Ms. Shabana Alam" for
recovery from the aforesaid illegal occupant for misuse
charges imposed by respondent (L&DO).
CC. FOR THAT, no prudent person, including the Petitioner herein
would risk losing possession of the entire Demised Premises
only on account of a misuse of a small portion thereof (a mere
84 square foot area) and that too by someone who has no
connection or who does not add value or provide any service
to the Petitioner herein.
DD. FOR THAT, the Petitioner had categorically stated in its
various communications regarding its sincere efforts since the
year 2005 vide Civil Suit No. 181/ 2005 in the Tis Hazari Court
to evict Akash Gift Gallery from the property since the latter is
in illegal possession thereof.
EE. FOR THAT, furthermore, in 2011/2012 the Petitioner paid
compounding fees for the presence of Akash gift Gallery in the
small space of 84 square feet of the Demised Premises. The WWW.LIVELAW.IN
use of the said space as a shop by Akash Gift Gallery is thus
beyond the Petitioner's control and such this cannot be a
ground for cancellation of the Lease.
RE: UNAUTHORISED CONSTRUCTION
FF. FOR THAT, with regards to the allegation regarding alleged
unauthorised construction of 1010.03 sq.ft. is concerned, it
was pointed out that the same was in accordance with 'Unified
Building Bye-Laws for Delhi' and 'Model Building Bye-Laws,
2016' issued by Ministry of Urban Development.
GG. FOR THAT, the Petitioner Company cannot be faulted and/or
penalised for acting in a manner which is in consonance of the
applicable municipal laws and fire safety standards. The
Electrical Panel Room is constructed to ensure safety and
security of the demised premises and it surely cannot be the
contention of the Respondent, who is a public authority unlike
the Lessee/Petitioner Company should act or conduct its
affairs in a manner that is hazardous to life and limb of public
at large.
RE: TRANSFER OF SHAREHOLDING FROM AJL TO YOUNG INDIAN [PARA 57 TO PARA 66]
HH. FOR THAT, it is respectfully submitted that the
findings/reasons rendered by the Hon‟ble High Court
regarding Clause III (13) of the Lease are also completely
untenable and perverse to say the least. WWW.LIVELAW.IN
II. FOR THAT, Clause III (13) is attracted when there is:- i. Sub-division of the demised premises. ii. Transfer by Sale.
iii. Transfer by Mortgage.
iv. Transfer by Gift.
vi. Transfer by “Otherwise”
Admittedly there is no allegation of sub-division of the
demised premises. There is no allegation of Transfer by
Sale, Mortgage, and Gift of the demised premises.
JJ. FOR THAT, the impugned order further fails to appreciate that
the 1962 Lease Deed (Agreement for Lease) and the 1967
Lease Deed (Perpetual Lease) was executed by the
Respondent Lessor, who was perfectly aware and fully
cognizant of the fact that the Petitioner-Company/Lessee is
not a „natural person‟ but a juristic/non-natural/artificial/
corporate entity i.e. a Company incorporated under the
Companies Act, having shares and shareholding
pattern/structure. Yet the Lease Deed did not contain any
prohibition or a covenant that there cannot be any change of
the shareholding pattern without the prior consent of the
Lessor as was stipulated in other matters of the Lease Deed.
KK. FOR THAT, it is submitted that unless there is a specific
clause prohibiting a change in the constitution of the Lessee,
the lease cannot be determined.
LL. FOR THAT, Clause III (13) contained a prohibition only on the
transfer of rights of the Petitioner-Company in the demised WWW.LIVELAW.IN
premises to the third entity without the Lessor‟s consent. The
change of the shareholding pattern of the Petitioner-Company
does not tantamount to the transfer of the interest of the
Petitioner-Company in the demised premises to a third party.
The leasehold rights of the demised premises still continue to
vest in the Petitioner-Company, therefore, this allegation of the
respondent is wholly misplaced and baseless.
MM. FOR THAT, it is submitted that the impugned order flies in the
face of the decisions of the Hon‟ble Delhi High Court in “Delhi
State Industrial & Infrastructure Development Corporation
Ltd v K.G. Electronics Pvt. Ltd. & Anr” - 2014 SCC Online
2309 and DDA v. Human Care Medical Charitable Trust,
(2016) 1 HCC (Del) 761
NN. FOR THAT, the impugned order is also contrary to the
decisions of this Hon‟ble Court in Bacha F. Guzdar, Bombay
Vs. Commissioner of Income Tax - Bombay AIR (1955) SC
74; Vodafone International Holdings v. Union of India -
(2012) 6 SCC 613 which clearly hold that a shareholder is not
the owner of the assets of the company and therefore mere
change in shareholding does not amount to transfer of assets
of the company to the shareholder.
OO. For that the mere fresh allotment of the shares of AJL to
Young Indian which is a section 25 company cannot at all be
construed as a breach of Clause III(13) of the Lease. WWW.LIVELAW.IN
PP. FOR THAT, it is submitted that the doctrine of lifting of
corporate veil was completely inapplicable in the facts and
circumstances of the case. In any event, it is submitted that
the doctrine of lifting of corporate veil could have been
resorted to only when there were pleadings of facts before the
court by which the court could come to a conclusion that the
entire arrangement was a subterfuge to achieve an illegal
object. Firstly, it is respectfully submitted that the observations
made in Para 58 without the parties being present before the
court are findings which have been made behind the back of
parties concerned. The said findings have been made for the
purposes of applying the principle of lifting of corporate veil
which could not have been done.
QQ. FOR THAT, it is submitted that in State of Rajasthan v.
Gotan Lime Stone Khanij Udyog (P) Ltd., (2016) 4 SCC
469, the issue was whether there was a violation of the
MMRDA Act and Rules. In the said case, there was a clear
clause/statement made in the application by the Lessee that
there will be no change in the Directors. In this context, the
Hon‟ble Court held that the lifting of corporate veil could be
resorted to when as a matter of a fact the change in
shareholding was effected in contravention of the direct
clause/statement made by the Lessee.
RR. FOR THAT, in D.D.A v. Skipper Construction Co. (P) Ltd.
and Anr. (1996) 4 SCC 622, is also not at all applicable to the WWW.LIVELAW.IN
facts of the present case. In the aforesaid judgment the
Hon‟ble Court was concerned with the principle that the
contemnor should not be allowed to enjoy or retain the fruit of
its contempt and in that context resorted to the doctrine of the
lifting of the corporate veil.
SS. FOR THAT, the ratio of the decision of this Hon'ble Court in
the Vodafone case was canvassed by the Petitioners herein
in support of their submissions alongwith the decision of this
Hon'ble Court in Bachha Guzdar case to hold that the change
of the share holding pattern / share holding structure of a
corporate entity does not lead to a change of ownership of the
said corporate entity. The assets owned and held by a
company belongs to the company alone and the individual
shareholder have no individual right / title / interest in the said
assets.
RE:- ALTERNATE REMEDY UNDER PP ACT. [PARA 67 TO 70 OF THE IMPUGNED ORDER]
TT. FOR THAT, it is submitted that the Hon‟ble High Court in Para
69 comes to a conclusion that “the petitioners have a remedy
under the PP Act…”. If this was the finding which was
recorded, then the Hon‟ble High Court could not have
adjudicated on the validity of the impugned order dated
30.10.2018 on facts.
UU. FOR THAT, it is submitted that on the one hand the Hon‟ble
High Court has completely adjudicated the matter on merits WWW.LIVELAW.IN
while on the other hand has relegated the Petitioner to an
alternate remedy. It is submitted that the impugned order is
completely inconsistent and as a matter of fact any remedy
under the PP Act has been rendered completely nugatory and
otiose in view of the findings/reasons rendered on merits
about the validity of the order dated 30.10.2018 passed by the
Respondent.
VV. FOR THAT, the Hon‟ble High Court has committed a grave
error in Para 70 that the Petitioner had not denied the fact
about the unauthorized occupation by Akash Gift Gallery and
pendency of the eviction proceedings. It is respectfully
submitted that the Petitioner had clearly put all these matters
in issue and had challenged the findings relating to the above
before the Ld. Single Judge. In Para B.11 to B.14 of WP (C)
No 12133/2018 these issues were squarely raised before the
Hon‟ble High Court.
WW. FOR THAT, it is submitted that the law laid down in Para 85 of
Express Newspapers regarding the lack of jurisdiction of the
Estate Officer to determine the question of the validity of
termination of the lease is good law even after the judgment of
this Hon‟ble Court in Ashoka Marketing.
XX. FOR THAT, it is further submitted that the first agreement of
lease was executed on 02.08.1962 when only a vacant piece
of land was allotted to the Petitioner herein. Subsequently, the
Petitioner constructed the superstructure on the said vacant WWW.LIVELAW.IN
piece of allotted land and built a basement, ground floor, and
four floors. The superstructure therefore, has been
constructed by the Petitioner Company in the five-year period
between 02.08.1962 and the date of Lease Deed dated
10.01.1967. Therefore, in terms of the ratio of the decision of
this Hon‟ble Court in Express Newspapers, the proceedings
under the PP Act are not maintainable.
YY. FOR THAT, it is submitted that the principles laid out in
Express Newspapers is squarely applicable to the present
case also on account of the stark similarity in facts. The
similarity between Express Newspapers and the instant
case is as follows:
i) Press/Newspaper;
ii) Same street at Bahadur Shah Zafar Marg;
iii) Similar lease conditions;
iv) Curb on freedom of press and violation of the
fundamental right granted under Article 19 of the
Constitution;
v) Construction by the lessee on vacant land with the
permission of lessor (no unauthorised construction).
ZZ. FOR THAT, it is submitted that it would be incorrect to contend
that this Hon‟ble Court in Ashok Marketing has declared
Express Newspapers case not to be good law. On the
contrary, paragraph 32 of Ashoka Marketing clearly states WWW.LIVELAW.IN
that the Express Newspapers was confined to the facts of the
case.
AAA. FOR THAT, it is submitted that Express Newspapers and
Ashoka Marketing operate on different footings. The facts of
the present case are almost identical to the facts of Express
Newspaper inasmuch as in both cases there was only a
Lease of the land and the superstructure was constructed by
the Lessee in Express Newspaper as well as in the present
case. This Hon'ble Court held in Express Newspaper that
since the superstructure was constructed and built by the
Lessee and therefore the Estate Officer has no jurisdiction to
proceed against such a Lessee because such a Lessee would
not answer to the definition of an “unauthorized occupant” in
terms of section 2(g) of the PP Act.
BBB. FOR THAT, the facts of Ashoka Marketing are clearly
distinguishable from the facts of the present case. In Ashoka
Marketing the land as well as the superstructure was built and
belonged to the Government and therefore, for the purposes
of eviction of an occupant, the applicability/provisions of PP
Act was held to be maintainable. This is not so in the facts of
the present case.
RE.: ALLEGATIONS OF MALAFIDE NOT CONSIDERED AT ALL BY THE IMPUGNED ORDER:
CCC. FOR THAT, it has been the clear, consistent and vehement
ground urged by the Petitioners herein, both before the Ld. WWW.LIVELAW.IN
Writ Court and before the Ld. DB that the entire eviction
proceedings are actuated by bias and malafide.
DDD. FOR THAT, the publications of the Petitioner-Company
espouse the ideology of the Congress Party, which is
presently the largest Opposition Party in the Country. The
eviction proceedings have been initiated for the purposes of
scuttling the voice of democratic dissent of the Congress
Party. It is a clear affront to the freedom of speech and
expression guaranteed under Article 19(1)(a) of the
Constitution and a deliberate attempt to suppress and destroy
the legacy of the first Prime Minister of the country i.e. Shri
Jawaharlal Nehru, who was the guiding light for the
publications of the Petitioner-Company.
EEE. FOR THAT, the present political dispensation in power at the
Centre, has never hidden its pathological hatred for Nehruvian
ideals. One of their favourite propaganda is to blame Pandit
Nehru for almost everything that ails the nation. The eviction
proceedings constitute a malicious step in the larger design of
defaming and effacing the legacy of Pandit Nehru.
FFF. FOR THAT, it is a matter of public knowledge, which this
Hon‟ble Court may be pleased to take judicial notice that the
principal political party of the incumbent ruling collation
dispensation at the Centre viz the Bhartiya Janata Party (in its
present form since 1980 and in its earlier avatar – the Bhartiya
Jana Sangh since 1951) harbours a pathological animus to the WWW.LIVELAW.IN
ideas of Indian‟s first Prime Minister – Shri Pandit Nehru,
whom they incessantly and viciously accuse of creation of a
“secular democratic republic” where people of all faiths have
equal protection and equal access under the Constitution of
Indian. Their avowed objective of creation of a majoritarian
state, has always been at logger-heads at our secular
constitutional values, represented by Pandit Nehru and the
Indian National Congress.
GGG. FOR THAT, it is further submitted that malafide intent is writ
large even by a bare perusal of the Tweets of the members of
the BJP published even prior to the issuance of the
communication/order dated 30.10.2018 by the Respondent.
HHH. FOR THAT, the impugned order fails to discuss let alone
consider the aforementioned submissions of bias of malafide.
It also fails to consider that one of the main grounds of eviction
proceedings is the alleged letting out of the demise premises
to other sub-lessees. The Petitioner-Company has let out a
part of the demised premises, which is permissible under the
Lease Deed and done with the consent of the
Respondent/Lessor.
III. FOR THAT, it is further submitted that the other 8 (Eight)
Allottees / Lessees at Bahadur Shah Zafar Marg too have
subleased a portion of their demised premises and the
Petitioner-Company is of the humble view that this must have WWW.LIVELAW.IN
been done based on pari materia provisions existing in their
respective lease deeds.
JJJ. FOR THAT, the Respondent herein is put to strict proof to
submit information for the kind perusal of this Hon‟ble Court,
as to which of the other 8 (eight) Allottees / Lessees on the
same street have faced Show Cause Notices, inspections,
determination of leases and issuances of the impugned order.
It is only the Petitioner-Company herein who is singled out for
such malicious and invidious discrimination. The impugned
order is shockingly silent on this issue also.
KKK. FOR THAT, another example of glaring discrimination is that
as per the report of the Ministry of Urban Development for
2009-2010 [www.cag.gov.in/sites/default/files/audit report
files / union performance Civil Land Development Office 6
2009 chapter 11.pdf], there are outstanding dues with
regards to the other 8(eight) Allottees / Lessees. The
Petitioner-Company has paid its dues of Rs.3.5 Crores on
04.10.2011. The Petitioner-Company is unaware whether
other 8 (eight) Allottees / Lessees have similarly clear their
outstanding dues. The fact that the Respondent herein has
chosen to deliberately ignore the outstanding dues of other 8
(eight) Allottees / Lessees and opted to act against the WWW.LIVELAW.IN
Petitioner herein alone is yet another example of malice and
invidious.
LLL. FOR THAT, there are several publishing houses which are
located in the same vicinity as of the AJL/Petitioner herein,
and all those newspapers are printed at Noida or places
outside Delhi. None of those offices have been served with a
notice. This proves a clear motive for bias and malafide.
6. GROUNDS FOR INTERIM RELIEF:
(A) Because the Petitioner-Company is admittedly in possession
of the demised premises, 5A Herald House, Bahadur Shah
Zafar Marg, New Delhi-110002, for more than 50 years and
would suffer serious harm and irreparable injury, in case the
Petitioner is evicted from the premises in question, during the
pendency of the Special Leave Petition.
(B) Because the Petitioner-Company has a very strong prima
facie case in his favour.
(C) Because the balance of convenience also lies in granting the
interim relief, during the pendency of the Special Leave
Petition.
7. MAIN PRAYER:
WWW.LIVELAW.IN
THAT IN VIEW OF THE FACTS STATED AND SUBMISSIONS MADE ABOVE, THE PETITIONER RESPECTFULLY PRAYS THAT THIS HON’BLE COURT MAY GRACIOUSLY BE PLEASED TO:-
(A) Grant Special Leave to the Petitioner to appeal under Article
136 of the Constitution of India against the Judgment and
Final Order dated 28.02.2019 passed by Hon‟ble High Court of
Delhi in LPA No. 10 of 2019; and
(B) Pass such other or further order(s) as this Hon‟ble Court may
deem fit, just and proper in the facts and circumstances of the
case.
8. PRAYER FOR INTERIM RELIEF:
IT IS THEREFORE, MOST RESPECTFULLY PRAYED THAT THIS HON’BLE COURT MAY GRACIOUSLY BE PLEASED TO:
(A) Stay the operation of the order dated 30.10.2018 passed by
the Respondent determining the perpetual lease deed dated
10.01.1967 executed with the Petitioner herein;
(B) Stay the operation of the Impugned judgment and final order
dated 28.02.2019 passed by Hon‟ble High Court of Delhi in
LPA No. 10 of 2019;
(C) Restrain the Respondent from taking any coercive steps qua
the demised premises or from pursuing any remedy available WWW.LIVELAW.IN
under the PP Act during the pendency of the instant Special
Leave Petition;
(D) Pass any such and further orders that may be deemed fit and
proper, considering the facts and circumstances of this case
and in the interest of justice.
AND FOR THIS ACT OF KINDNESS THE PETITIONERS AS IS DUTY BOUND SHALL EVER BE GRATEFUL.
DRAWN BY: Devadatt Kamat & Priyansha Indra Sharma
SETTLED BY: Dr. Abhishek Manu Singhvi & Shri Vivek K. Tankha, Senior Advocates
DRAWN ON: 09.03.2019 FILED ON: 11.03.2019 NEW DELHI
FILED BY:
(SUNIL FERNANDES) ADVOCATE FOR THE PETITIONERS