Indian Kanoon - Search engine for Indian Law

7(i) The construction of the new Express Building with an increased FAR of 360 for starting a Hindi Newspaper and the installation of the printing press in double basement was allowed by the Delhi Development Authority, in accordance with the provisions of the Master Plan. [520 H] 7(ii) The Press Enclave on Bahadurshah Zafar Marg otherwise known as the Mathura Road Commercial Complex is not a `development area' within the meaning of s.2(3) of the Delhi Development Act, 1957. The Master Plan does not prescribe any FAR for the press enclave situate on Mathura Road commercial area nor does such area fall within the `already built-up commercial are `as defined in the Master Plan i.e. commercial area falling within the walled city of Old Delhi. Apparently, the contention that the FAR of no commercial area in Delhi can exceed 400 is wholly misconceived inasmuch as the Master Plan in express terms permits FAR of the commercial areas in Minto Road and Ranjit Singh Road at 400. The Zonal Development Plan for the D-II area approved by the Central Government in November 1966 mentions four commercial areas, namely (1) Asaf Ali Road commercial area (2) Minto Road commercial area (3) Mathura Road commercial area, and (4) Circular Road commercial area (opposite Ramlila Ground). Although in the Zonal Development Plan for D-II area, Asaf Ali Road commercial area is described as fully developed with no room for expansion, the FAR of which is admittedly 400, there could be still a further increase in FAR subject to payment of premium. This could only be under the provisions of the Zonal Development Plan for D-II area and therefore it must logically follow that the FAR prescribed in the Zonal Development Plan for Mathura Road commercial area where the press enclave is situate is 400. The press area is not far from Asaf Ali Road commercial area. It not only falls in the same D-II area but is treated as part of a complex of four commercial areas in the Zonal Development Plan for D-II area. This press area is not even described as fully commercialized. If FAR 400 is prescribed and allowed for asaf Ali Road commercial area which is fully developed, it could not possibly be impermissible for the press area which although fully commercialized was still not fully developed. [520 D; 524 C- E; 526 D-G] 7(iii) The floor area ratio or FAR is the restriction on the number of floors in a building with reference to the plot area. Where FAR is not specified in the Master Plan which admittedly is the case in regard to press area on Bahadurshah Zafar Marg, the only bye-law applicable would be bye-laws 21 and 22. Bye-law 21(1) restricts the height of a building to 70 feet. This height is to be measured from the centre of the adjacent portion of the `nearest street'. Admittedly as is clear from the sanction plan, the height of the new Express Building is about 47 feet. The adjacent portion which is the service road is on level with the plinth of the additional construction. Taking Mathura Road as the 'nearest street' the level of Mathura Road stretches from 2 ft. to 5 ft. higher than the plinth level of the additional construction. In any view of the matter, the additional construction could therefore be permissible if it did not exceed a height of 63 feet. This is because of bye- law 21(1) and also because of FAR with which is linked the ground floor coverage is not specified in the Master Plan. In order to avoid congestion the maximum height is further restricted under bye-law 22 in proportion to the width of the abutting street. In the instant case, Mathura Road which is the abutting street measure in width 150 feet. This is apart from the immediately abutting service road which, even if reckoned as an abutting street, is 63 feet in width. Therefore, applying bye-law 22(4) read with bye-law 21(1), it is the service road of the street that governs the height of the buildings in the press area as well as the number of floors, the minimum floor height being already specified in bye-law 19. The restriction on the height of buildings is therefore governed by the width of the street subject to the maximum height of 70 feet and this is the measure adopted where FAR for a particular area is not specified in the Master Plan. [529 C, E-F; 530 A-C; F-H; 531 A] 7(iv) Bye-law 25(2)(IV-B) only applies to "already built up commercial areas as indicated in the Master Plan such other areas as may be declared as commercial areas by the appropriate authority from time to time. The list of already build-up commercial area as defined in the Master Plan admittedly does not include the press area on the Mathura Road. At the time of construction of buildings in the press area, there were also no restrictions as to the FAR along the Mathura Road and the only restriction on construction of such buildings was that the allottees of the plots in the press area should construct buildings upto a height of 60 ft. [533 E-F] 7(v) It must therefore be held that the permission granted by Sikander Bakht, the then Minister for Works & Housing for the construction of the w Express Building with an increased FAR of 360 with a double basement for Installation of the printing press was not in violation of the Master Plan for Delhi or the Zonal Development Plan for D-II area or the Delhi Municipal Corporation (Buildings) Bye-laws, 1959 inasmuch as ex facie by-law 26 read with 25(2)(IV-B) was not applicable to the press area on the Mathura Road. Admittedly, the Master Plan does not prescribe any FAR for the Press enclave. The Zonal Development Plan for the first time prescribed FAR for the four commercial areas for general business and commercial areas. All these commercial areas fall within D-II area for which the Zonal Development Plan prescribes an FAR of 400. [535 E-F] 8(i) The non-obstante clause in section 53(A)(l) of the Delhi Development Act clearly gives an overriding effect to the sanction granted by the Delhi Development Authority for the construction of the new Express Building with an increased FAR of 360 and a double basement for Installation of printing press or the working platform. The effect of grant of such permission by the Authority was to modify the sanctioned plans of the Municipal Corporation to that . tent. That apart the term development as defined in section 2(t) of the Act includes . the carrying out of buildings........ in, on, over or under land in any building etc. and is wide enough to include the structures. in question. As the Authority approved each of these structures for which the impugned show cause notice under ss. 343 and 344 of the Delhi Municipal Corporation Act, 1957 had been Issued by the Zonal Engineer (Buildings), City Zone, Municipal Corporation, it is clear that he had acted beyond his authority and power. [537 A-C] 8(ii) There is no dispute that all the structures are below the ground. The main purpose of the upper basement i.e. a working platform measuring 6000 sq.ft. was meant to work the printing press. If the upper basement or the working platform constructed by the Express Newspapers Pvt. Ltd. is demolished, the Installation of the printing press itself in the lower basement with the sanction of the Delhi Development Authority under the appropriate statutory provision would be nullified and the Express Newspapers Pvt. Ltd. would not be in a position to operate the printing press at all. Without the water storage tank the Express Newspapers Pvt. Ltd. would not get the completion certificate and it is difficult to understand how the underground tunnel passage, to connect the old and new Express Building would cause traffic hazard. At any rate, such minor deviation would not result in a demolition of the Express Building. The manner in which the impugned notice was got issued by the Municipal Corporation at the direction of respondent no.2 shows that it was done with an ulterior purpose. The illegality of the action is writ large and the manner in which it was done creates a ground for belief that the action was motivated. [538 C-E] 8(iii) It 18 evident from page 16 of the Printed Master Plan and the Zonal Development Plan for D-II area at pages 935 and 936 that semi-basement, meaning a second basement is permissible under the Master-Plan as well as the Zonal Development Plan. The Bye-laws of the Delhi Municipal Corporation do not prohibit second basement and on the contrary bye-law 54 use the term `basements'. Moreover, double basements have, in fact, been permitted in the case of many hotels by the Delhi Development Authority. [543 B-D] 8(iv) It is difficult to conceive how the huge printing press with a height of 24 ft. could be placed on a pedestal or be laid on the floor of the basement in such a manner as to discharge the newspapers on the ground floor. It is common ground that there is a working platform in all the other printing presses in the same line of buildings like that of the Times of India, the National Herald, Patriot and the old Indian Express Building . In all these buildings, the printing presses are Installed in the lower basement and there is an over-hanging platform in the printing press in each of the buildings to receive the printed material. Therefore, there is no Justification of the working platform. If the Municipal Bye-laws do not permit the construction of a double basement then they would be clearly violative of Art.14, 19(1)(a) and 19(1)(g) of the Constitution. [543 F-H; 544 A] 9(i) The basic principle of estoppel is that a person who by some statement or representation of fact causes another to act to his detriment in reliance on the truth of it is not allowed to deny it later, even though it is wrong. Justice here prevails over truth. Estoppel is often described as a rule of evidence, but more correctly it is a principle of law. As a principle of common law it applies only to representation about past or present facts. But there is also an equitable principle of `promissory estoppel' which can apply to public authorities. [545 E-F] 9(ii) In public law, the most obvious limitation on the doctrine of estoppel is that lt cannot be evoked 80 as to give an overriding u power which lt does not in law possess. In other words, no sextuple can legitimate action which 18 ultra vires. Another limitation is that the principle of estoppel does not operate at the level of Government policy. Estoppels have however been allowed to operate against public authority in minor matters of formality where no question of ultra vires arises. [548 A-C] In the instant case, the then Minister for Works & Housing acted within the scope of his authority in granting permission of the lessor i.e. the Union of India, Ministry of Works & Housing to the Express Newspapers Pvt. Ltd. to construct new Express Building with an increased FAR of 360 with a double basement for inst installation of a printing press for publication of a Hindi newspaper under the Rules of Business framed by the President under Art.77(3). Therefore, the doctrine of ultra vires does not come into operation. In view of this, respondent no.1 the Union of India is precluded by the doctrine of promissory estoppel from questioning the authority of the Minister in granting such permission. In that view, the successor Government was clearly bound by the decision taken by the Minister particularly when it had been acted upon- [548 D-Fl Robertson v. Minister of Pensions L.R. [1949] I K.B. 227, Union of India & Ors v. M/s Indo-Afghan Agencies Ltd. [1968] 2 S.C.R. 366 & Century Spinning & Manufacturing Co. Ltd. & Anr. v. Ulhasnagar Municipal Council & Anr. [1970] 3 S.C.R. 854 M/s.Motgilal Padampat Sugar Mills co, (P) Ltd. v. State of Uttar Pradesh & Ors. [1980] 3 S.C.R. 689 referred to.

5. The impugned notice issued by the Zonal Engineer (Building), City Zone, Municipal Corporation of Delhi dated March 1, 1980 upon the Express Newspapers Pvt. Ltd. to show cause why the Express Buildings should not be demolished under ss. 343 and 344 of the Delhi Municipal Corporation Act, 1957 was illegal and ineffective inasmuch as the construction of the said building was not without or contrary to the sanction referred to in s. 336 or in contravention of any of the provisions of the Act or bye-laws made thereunder. The threat to demolish the second basement especially when similar double basement/platform exists in other newspaper buildings. in the press area such as the Times of India, National Herald Patriot etc. along the Bahadurshah Zafar Marg was violative of Arts. 14 F and 19(1)(a) of the Constitution. The denial of the respondents to allow such a double basement to be constructed by the Express Newspapers Pvt. Ltd. in the new Express Building clearly infringes the petitioners' right to free speech and expression guaranteed under Art. 19(1)(a) which includes the freedom of the press as otherwise the printing apparatus installed in the lower basement would be rendered incapable of operation and is therefore a sine qua non for the printing and publication of the Indian Express.

6. The erection of the double basement or a working platform in a printing press like the Express Newspapers Pvt. Ltd. is a compoundable deviation from the sanctioned plan and the insistence of the Municipal Corporation of Delhi to demolish the same suffers from the vice of hostile discrimination. Even assuming that the municipal bye-laws do not permit the construction of a double basement in the press area along the Bahadurshah Zafar Marg, such bye-laws would amount to an unreasonable restriction on the right to carry on the business of printing and publishing the newspaper and thus offends Art. 19(1)(g) of the Constitution.

Learned counsel further pointed out that the impugned notice of the Engineer Officer nowhere suggests that the construction of the said building with an increased FAR of 360 was in breach of the Master Plan or the Zonal Development Plan for D-II area framed under the Delhi Development Act or of the Building Bye-laws made under the Delhi Municipal Corporation Act, 1957. The contention is that the said building with an increased FAR of 360 together with a double basement for installation of a printing press for the publication of a Hindi newspaper was with the express sanction of the lessor i.e. the Union of India, Ministry of Works & Housing accorded to the Express Newspapers Pvt. Ltd. which had duly submitted the building palns for grant of requisite sanction. In the premises, it is submitted that each of the structures was constructed with the express sanction of the lessor, and the Delhi Development Authority granted under the Delhi Development Act, 1957 which was the paramount law on the subject. It is urged that the re-entry upon forfeiture of lease or the threatened demolition of the new Express Building with the double basement where the printing press is installed for publication of the Hindi newspaper Jansatta will result in snuffing out the Indian Express as a newspaper altogether although it has the largest combined net sales among all daily newspapers in India. The learned counsel particularly emphasized the fact that the Express Buildings at 9-10, Bahadurshah Zafar Marg from the nerve- centre of the Express Group of Newspapers in general and the Indian Express in particular as the teleprinter is installed therein. We are informed that the editorials and the leading articles of the Indian Express are sent out and the editorial policy laid down from the Delhi office to ten centres all over India. As already stated, the Indian Express as a newspaper is simultaneously published from Ahmedabad, Bangalore, Bombay, Chandigarh, Cochin, Delhi, Hyderabad, Madras, Madurai, Vijaywada and Vizianagaram. In this factual background, the learned counsel contends that the impugned notices have a direct impact on the freedom of the press and being in excess of governmental authority and colourable exercise of statutory powers, are liable to be struck down as offending Art. 19(1)(a) read with Art. 14 of the Constitution. He contends that the test laid down by this Court in Bannett Coleman & Co. & Ors. v. Union of India & Ors. [1973] 2 S.C.R. 757, is whether the direct and immediate impact of the impugned action is on the freedom of speech and expression guaranteed under Art. 19(1)(a) which includes the freedom of the press. According to him, that test is clearly fulfilled in the facts and circumstances of the present case. In my considered view, the contention of the learned counsel for the petitioners must prevail.