SYNOPSIS 1. the Instant Special Leave Petition (“SLP
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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.