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 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 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 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 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