9911796707
TMI Blog2019 (2) TMI 1735X X X X Extracts X X X X X X X X Extracts X X X X ..... or the publications were to propagate the principles and ideologies of the Indian National Congress ("INC‟). The appellant No.2, Sh.Nalin Kumar Asthana is the Company Secretary and it is said that he had been authorized by the Board of Directors vide resolution dated 2nd April, 2018 to file this appeal. 3. Facts as have come on record reveal that on 2nd August, 1962 an agreement for lease/memorandum of agreement was entered into between the President of India (hereinafter referred to as "the lessor‟) and the appellant company herein (hereinafter referred to as "the lessee‟) whereby the lessor agreed to demise the suit land for the purpose of construction on certain terms and conditions as is mentioned therein. Clause XIX of the agreement provide for forfeiture and re-enter upon the premises in case the lessee breeches or commits any default in performance of the agreement. However, Clause XX imposes certain restrictions on the lessor in exercising this right of forfeiture of re-entry inasmuch as the lessee is entitled to a notice in writing specifying the breach complained of and in case the breach can be of remedy, to do so. Facts further reveal that the premis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he premises was not being used for any press or newspaper publication activity. Accordingly, it is said that on 6th September, 2016 a letter was addressed to the appellant company notifying that the premises of the company would be inspected by the officers of the Department on 13th September, 2016. In pursuance to the aforesaid communication, inspection was carried out by the technical team on 13th September, 2016/26th September, 2016 and it is the case of the respondents that on inspection, the team did not find any press activity in the premises. The basement was lying vacant, ground floor and first floor were rented to Passport Office, i.e., Seva Kendra, second floor and third floor were used by Tata Consultancy Services and fourth floor by the appellant company. Annexure-P/9 at page 392 of the paper book is the notice of the inspection dated 6th September, 2016. Annexure-P/10 is the communication dated 9th September, 2016 made to the Land & Development Officer on behalf of the appellant company by Sh.Motilal Vora expressing his inability to be available at the time of inspection on 13th September, 2016 and, therefore, on 9th September, 2016 an intimation is sent by the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng condition, were found lying there. However, front side mezzanine in Basement is being used by Akash Gift Gallery in an area of 84 sq.ft. This comes under misuse category. (B) Ground Floor: The floor is rented out to Passport Seva Kendra. Apart from this, unauthorised pucca construction used as panel room in rear in an area measuring 1010.03 sq.ft. (C) First Floor: The floor is rented out to Passport Seva Kendra. (D) Second and Third Floor: The floors are rented out to Tata Consultancy Services. (E) Fourth Floor: The floor is being used by the Lessee for its office. Photographs taken at the premises are also enclosed. " 8. On 7th April, 2018 vide Annexure P/17, the appellant replied to the department with reference to the inspection to be carried out on 9th April, 2018 and made certain submissions. It was their case in the reply that the breaches pointed out in the year 2016 have been rectified, National Herald newspaper is being published from the premises now, unauthorized construction is being studied in detail, efforts are being made to vacate the unauthorized occupants M/s Akash Gift Gallery etc.. It is said that thereafter on 18th June, 2018 a show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0th October, 2018 are:- (a) no press or press related activity has been carried out from the premises for the last 10 years, (b) misuse of land outside the primary purpose for which the lease was granted, (c) 100% transfer of shares of AJL to another company, namely, Young India which violates Clause III(13). 10. Aggrieved by this order passed by the Land and Development Officer (hereinafter referred to as "L&DO‟) on 30th October, 2018 the writ petition in question was filed and the learned writ Court having dismissed the same by the impugned order dated 21st December, 2018, this appeal now by the appellant challenging both the orders dated 30th October, 2018 passed by the L&DO and the order passed by the learned writ Court. 11. Dr.Abhishek Manu Singhvi, the learned Senior Counsel along with Sh.Vivek Tankha, the learned Senior Counsel argued at length and pointed out that the entire action taken by the departmental authorities in passing the impugned order dated 30th October, 2018 and the consequential dismissal of writ petition is contrary to settled principles of law and is unsustainable and is liable to be interfered with. 12. Dr.A.M.Singhvi pointed out that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at no printing activity is being carried out. That being the position, it is said that the finding recorded to the effect that there is no printing activity, is totally unsustainable in law and as it was not the foundation for taking action in the show cause notice, therefore, it could not be a ground for determination of the lease. It is said that it was only after on 18th June, 2018, when the fourth show cause notice was issued on 24th September, 2018 that this allegation was made which is also not substantiated on the basis of the material on record. It was emphasized by him that the allegation of no printing activity being carried out is an afterthought and could not be a ground for determination of the lease. 14. That apart, he took us through various documents and made detailed submissions about the voluminous material produced by the appellants before the authorities concerned indicating the factum about a web edition being published, publication of a weekly newspaper for which printing activities are being undertaken in a press in Noida. Digital version of the newspaper having commenced on 14th November, 2016, on 12th August, 2017 the digital version of "Qaumi Awaaz" in U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. It was emphasized by the learned Senior Counsel that the activity of a press as on date would also include a digital publication and when the overall material on record shows that the digital publication is in progress, a finding recorded with regard to there being no printing activity is unsustainable and perverse. 16. Learned Senior Counsel for the appellant further argued that even if for a moment it is accepted that there was no printing for some time but on the date when the impugned action is taken, publication and printing in the form of digital newspaper having commenced, the finding is unsustainable. He referred to the material available on record to show that in the year 2017, the company had re-launched its newspaper and in two widely published inaugural ceremonies, one in Bangalore on 12th June, 2017 and another held in New Delhi on 1st July, 2017, the publication of the newspapers had commenced. Accordingly, the first ground alleged was that the finding with regard to no printing activities in the premises in question recorded by the competent authority and approved by the learned writ Court is unsustainable, perverse and a misconceived finding. 17. The learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mputation, the transfer is hit by the said Clause III(13). At length, detailed arguments were advanced by Dr.Singhvi to say that a company as a juristic person owns property in its name, the property stands in the name of the company, a juristic person and its shareholders have only a right to seek dividends or bonus on their shares, they have no right on the property of the company. It was argued that even if Young India or any other person purchased the share of the appellant company, the appellant company continues to be a company incorporated under the Companies Act and the change in the shareholding pattern would not change the ownership or right to property of the company. Inviting our attention to the judgments in Bacha F. Guzdar, Bombay vs. Commissioner of Income Tax- Bombay, AIR (1955) SC 74; Vodafone International Holdings B.V. vs. Union of India, (2012) 6 SCC 613 and U.P. State Industrial Development Corporation Ltd. vs. Monsanto Manufacturers Pvt. Ltd., (2015) 12 SCC 501, the learned Senior Counsel argued that mere change in the shareholding pattern of the appellant company, if evaluated in the backdrop of a well settled doctrine of contra proferentem, would not change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3; appearing in the lease agreement, the learned writ Court, according to him, has committed an error. 20. Even though certain grounds were tried to be submitted with regard to malafides or ulterior political motive in taking the impugned action but in fact no substantive or substantial objections were raised in this regard. 21. Finally, it was argued that the impugned action which was subject matter of challenge before the writ Court, namely, the order dated 30th October, 2018 passed by the departmental authorities determining the lease could be challenged only by way of a writ petition, there was no other remedy by which this order could be challenged. Dr.Singhvi argued that under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as "the PP Act‟) the impugned order could not be and cannot be challenged. By placing reliance on a judgment of the Supreme Court in the case of Express Newspaper Pvt. Ltd.& Ors. vs. Union of India & Ors., (1986) 1 SCC 133 Dr.Singhvi argued that in Paras-85 and 86 of the said judgment, Hon‟ble Supreme Court has clearly held that for challenging such an order, the remedy available under the PP Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment in pursuance to a show cause notice issued on 18th June, 2018, the fact about transfer of shares to Young India and various other persons and argued that these factors have not been properly pleaded by filing a detailed counter affidavit. No counter affidavit has been filed and by merely referring to all these factors without filing a detailed counter affidavit, the objections raised by the learned Solicitor General, according to Dr.Singhvi, is unsustainable. 23. It was argued by him that the reference made to most of the facts pertaining to transfer of shares, action taken by the Income Tax authorities and even certain reference made to a judgment of a co-ordinate Bench of this Court in petitions filed being W.P.(C) 8482/2018 and other connected cases are not at all relevant and should not be taken note of as they have been made without any counter affidavit or relevant material being brought on record. He had also argued that Young India, the company which has purchased the so-called maximum shares of the appellant company is a company incorporated and having the benefit of Section 25 of the Companies Act and, therefore, the issue of the said company acquiring ownership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afone International Holdings (Supra), learned senior counsel emphasized that mere transfer of shares of the company cannot change the ownership of the company and as the right to ownership rests wholly with AJL, this ground is unsustainable. Dr.Singhvi took us through the judgments relied upon by the learned Solicitor General in the case of State of Rajasthan vs. Gotan Lime Stone Khanij Udyog (P) Ltd., (2016) 4 SCC 469 and UT, Chandigarh vs. Esys Information Technologies Pte Ltd.(2016) 12 SCC 582, DDA vs. Skipper Construction Co. (P) Ltd. & Anr., (1996) 4 SCC 622 and canvassed a contention about change of ownership, transfer of property falling in the category of transfer by any means "otherwise‟ is not a correct proposition of law as the facts in each of the aforesaid cases are clearly different, distinguishable and none of these cases would apply in the facts and circumstances of the present case. The present case is a simple case of transfer of shares without any malafide or ulterior motive. The theory of lifting of the corporate veil have been applied in the cases relied upon by Mr.Tushar Mehta based on the peculiar facts of those cases and, therefore, they cannot be appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or suffer to be erected on any part of the said demised premises any building other than and except the buildings erected thereon at the date of these presents. ...... (7) The lessee will not without such consent as aforesaid carry on or permit to be carried on, on the said premises, any business, trade or manufacture which in the opinion of the lessor or such office as he may authorize in his behalf is noisy noxious or offensive, or permit the said premises to be used for any purpose other than the purpose specified below: (i) basement and the first floor of the building for the press and the offices of the lessee. (ii) the remaining four floors of the building for letting out to other commercial concerns as office accommodation accepting use as hotels, cinemas and restaurants. Running of a canteen in the building for the bonafide use of the building will, however, not constitute a breach of the covenant. .... (13) The lessee shall not be entitled to sub divide the demised premises or transfer by sale, mortgage, gift or otherwise, the said premises or buildings erected thereon or any part thereof without obtaining the prior approval in writing of the lessor or su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose for which the lease was granted is for establishing a printing press and publishing a newspaper. Admittedly for a long period of time, that is, for more than 8 years, no printing or press activity had taken place. It is appellant‟s own admission that VRS was granted to the employees and it was only on 14th November, 2016 that the digital version of the newspaper National Herald in English commenced. He argued that between the period when the press was closed and the printing activity suspended, except using the premises for commercial purpose and taking advantage of the rent received, the purpose for which the lease was granted was frustrated. This is the breach and for this breach if the impugned action is taken, the contentions advanced by Dr.Singhvi is unsustainable. He took us through various documents available on record and emphasized that there was no publication of the newspaper and the printing press was non-functional during the period 2008-2016. It was only after the first notice for inspection was issued in September, 2016 that the respondents to pre-empt any action being taken by the authorities, restarted the printing activity as is evident from the rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken but do not reflect the correct picture. 33. As far as the question of transfer of shareholding and Young India being made the shareholder to the extent of 99% of the shares are concerned, Sh.Tushar Mehta made detailed submissions before us and emphasized that the theory of "lifting of the corporate veil‟ has to be applied in this case and the purpose of the transaction of share transfer has to be considered by this Court and then a decision taken. 34. Learned Solicitor General invited our attention to certain facts which he pointed out are reflected in the proceedings held before this Court in certain tax matters involving shareholders of the appellant company and the Income Tax authorities and argued that a company named and styled "Young India Ltd.‟ was founded on 23rd November, 2010. The registered address of this company was also shown as 5-A, Bahadur Shah Zafar Marg, namely, the premises in question. He argued that on 23rd October, 2010 when Young India was founded, 5-A, Bahadur Shah Zafar Marg was the premises in possession of the appellant but surprisingly it also constitutes the registered address of another company, namely, "Young India Ltd.‟. "Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruary, 2011, that is, about a month thereafter, the Associated Journals Ltd., the appellant herein, in order to repay its loan of Rs. 90.21 crores to Young India transferred 99% of shares to Young India and, therefore, it is the case of Sh.Tushar Mehta and he emphasized on the same to say that by this device Young India became shareholders entitled to the beneficial interest of appellant company‟s property worth Rs. 413.40 crores as on that day. It was when all these transactions came to light that a notice was issued by the Income Tax Department to Young India and thereafter, notices to the individual shareholders of Young India with regard to re-opening of assessment of tax. Sh.Tushar Mehta argued that this Court should take note of these transactions, apply the principle of "lifting of the corporate veil‟ and then considered the question of as to who is the actual beneficiary of all these transactions, whether the premises in question still continues to be in the ownership of AJL and what is the effect of all these transactions. He argued that even though the judgments in the case of Bacha F. Guzdar (supra), Vodafone International Holdings (Supra), etc. lays down the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmittal India Private Ltd. vs. Satish Kumar Gupta & Ors., 2018 SCC Online SC 1733 to say that if the theory of lifting of the corporate veil is applied in the facts and circumstances of the present case, it would be clear that the order passed by the authorities and the writ Court, impugned in this appeal, is in accordance with the requirement of law. He had further pointed out that the dominant purpose for which the lease was granted having been frustrated, determination of the lease was proper. In support of his contention with regard to the dominant purpose theory, he referred to the following judgments:- i) Allensbury Engines Pvt. Ltd. vs. Ramkrishna Dalmia & Ors., (1973) 1 SCC 7 ii) Boddu Narayanamma vs. Venkatrama Aluminium Co. & Ors., (1999) 7 SCC 589 iii) Precision Steel & Engineering Works & Anr. vs. Prem Deva Niranjan, (2003) 2 SCC 236 iv) Waller and Son Ltd. vs. Thomas, (1920) 1 KB 541 v) Feyereisel vs. Turnidge, 1949 F. 614 vi) T. Dakshinamoorthy vs. Thulja Bai & Anr., CMP No.4955/1950, Madras High Court 37. With regard to the non-grant of time for rectification, the same has been addressed by the respondents primarily in their written arguments and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to there being press activity in conformity with the lease. It was his submission that in recording a finding that there had been no press activity in the premises based on totality of the circumstances, the writ Court has not committed any error. 39. With regard to non-grant of opportunity of rectification, learned Solicitor General argued that for long years there has been continuous breach of the terms and conditions of the lease and if after the breach was pointed out and when action was being taken for breach, a mere formal rectification of a small part of the breach in the facts and circumstances of the case will not bring the case within the purview of Clause XIII (6). It is argued by him that the appellants could take advantage of Clause XIII (6)(b) only if the breach was for a short period and rectified immediately on being pointed out. In this case, the breach was not only continued for a long period of time and even the rectification done, in the facts and circumstances, is only a farce or an act on the part of the respondents to preempt action for breach. Even the certificates issued by the Audit Bureau of Circulation on 7th September, 2018 available at pages-677-6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h.Tushar Mehta argued that he has not relied upon the principle of law or finding recorded in the said writ petition by the Division Bench but he only relies upon the factual assertions made with regard to the shareholding of the petitioner/appellant, National Herald, Young India, loan of more than Rs. 90 crores advanced, its repayment in a manner alleged and transfer of shares etc. He points out that all these facts narrated by him at the time of hearing are contained in paras-2 to 5 of the order passed in W.P.(C) No.8482/2018 and merely if judicial notice is taken of these facts by this Court based on the facts recorded by a co-ordinate Bench of this Court, in the absence of categorical or specific denial of the same by the appellants or contending that these are false or incorrect fact, there is nothing in law which debars the respondents from canvassing these aspects of the matter only for the purpose of applying the principle of lifting of the corporate veil to understand the modus operandi about transfer and the reason which weighed with the respondent to say that there is transfer of the property to a third person to attract the provisions of Clause III(13) of the lease and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the lease has been determined. He further argues that coordinate Benches of this Court in the case of Escorts Hearts Institute & Research Centre Ltd.(Supra), DDA vs. Ambitious Gold Nim Manufacturing (supra), DDA vs. Parsu Ram (2007) 96 DRJ 548 having upheld the principle laid down in the case of Ashoka Marketing Ltd. (Supra) and having approved it, the learned writ Court has not committed any error in holding that the petition was not maintainable and the impugned order could be challenged in a statutory proceedings under the PP Act. 43. Sh.Tushar Mehta invited our attention to the judgment in the case of Ashoka Marketing Ltd. (Supra) and the observations made in para-34 thereof and submitted that the scheme of the PP Act and the Rules have been considered in paras-33 and 34 by the Hon'ble Supreme Court to contend that the law laid down in the case of Ashoka Marketing Ltd. (Supra) clearly provides that the PP Act can be invoked in the present case. 44. Accordingly, Sh.Tushar Mehta argued that in the facts and circumstances of the present case, the order passed by the learned writ Court which is based on due appreciation of the evidence and material that came on record, do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th September, 2019, that is, W.P.(C) No.8482/2018 and other connected matters which were filed by the shareholders of Young India while challenging the action taken by the Income Tax authorities. There is no whisper or serious challenge to these factual aspects by the appellant. They do not say, even orally, that these facts stated and relied upon by the respondents are false, incorrect, fabricated, untrue etc. They only say that certain facts have been stated without filing a counter affidavit. If the facts so stated, cognizance of which have been taken by the writ Court, are based on materials available in proceedings held before the L&DO and by a co-ordinate Bench of this Court in a writ petition, we see no reason as to why we cannot take cognizance or judicial notice of these facts and proceed to consider them for deciding the lis in question, particularly, when there is no specific or categorical denial of them even orally before us at the time of hearing. Accordingly, we are not impressed by the submissions by Dr.Singhvi to say that as no counter affidavit has been filed, therefore, most of the facts stated by Sh.Tushar Mehta should not be taken into consideration. 47. Havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the newspaper in the current financial year 2016-17. Referring to this letter, the learned Solicitor General had argued that this letter was written only for pre-empting the authorities so that they are not surprised if no printing activities are found in the premises. In fact, Sh.Tushar Mehta is right in contending that this was an attempt by the appellants and, in fact, an admission by them that no printing activity was being carried out in the premises at that point of time. That apart, when we go through the four show cause notices available on record issued on 10th October, 2016, 5th April, 2018, 18th June, 2018 and 24th September, 2018 and the reply filed thereto, we find that various breaches were pointed out in all these show cause notices and they were replied to by the appellant company and the cumulative admitted position that can be made out from the reading of these documents are as under. 50. When the premises was inspected on 26th September, 2016, no press activity was being carried out in the area. Press activity and publication of the newspaper was suspended right from the year 2008 and all the employees were granted VRS. After the communication dated 26th S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the show cause notice, action should not be taken on this ground treating it to be violation of a condition of the lease. 53. If we go through the detailed order passed by the competent authority which was impugned in the writ petition dated 30th October, 2018, we find that the impugned action has been taken not based only on the show cause notice dated 10th June, 2016, the impugned action is taken based on four show cause notices issued, all the replies and documents submitted by the appellants and after taking note of the totality of the facts and circumstances that came on record based on a combined analysis and scrutiny of all the four show cause notices and their replies, the breach has been recorded. The breach had been continuing right from the year 2008 till commencement of the digital publications on 14th November, 2016 and, therefore, if action is taken by holding that there has been violation of the terms and conditions of the lease deed for a period of more than 8 years and that only to retain the building and to pre-empt the respondents from taking any action, the socalled digital publications and weekly publications were commenced after inspection conducted on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the 4th floor were to be used for press and office. Admittedly, if not for the entire period, for a long period of time, that is for 8 years there was no press acivity and the premises was used only for commercial activity if after examining the totality of circumstances, the lease is determined on recording a conclusive finding to the effect that no press has been functioning in the said premises for 8 or 10 years and is being used only for commercial purpose which violates a clause of the lease agreement, we see no reason to hold that the findings recorded for determining the lease and approved by the learned writ Court is a perverse and incorrect finding. The fact of lack of printing press alleged and the finding recorded is a proper finding based on the facts and circumstances of the present case and merely because after the actions were initiated by inspection and issuance of show cause notice on 26th September, 2016 and 10th October, 2016 if some publication activity both in the form of digital or printing is carried out that would not debar or prevent the respondents from determining the lease finding the same to have been breached continuously at least for a period of 8 y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the pendency of the breach proceedings before the competent authority but they do not make any material difference with regard to various other allegations of breach which are found to be established. That being the position, we need not dwell into this aspect of the matter in any further detail. REGARDING TRANSFER OF SHARE/PROPERTY 57. The next issue which was vehemently canvassed before us on behalf of the appellant was with regard to the transfer of shareholding from AJL to Young India. It is the case of the appellant that mere transfer of shareholding cannot be a ground for holding that to be change of ownership or transfer of the lease. Placing reliance on the judgment of Bacha F. Guzdar (supra) detailed submissions were made by Dr. Singhvi to emphasize that a shareholder only acquires a right to participate in the profit of the company. He gets no interest in the property of the company and even if the shareholders of the company do have some voice in administering the affairs of the company, but their interest is limited to sharing the profits of the company and the company, a juristic person, which is distinct from the shareholders still owns the property. It is arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reafter, that is, on 18th December, 2010, by a deed of assignment the loan of Rs. 90 crores and odd outstanding in the books of Indian National Congress as recoverable from Associated Law Journals for the period 2002 to 2011 was transferred to Young India. Three days thereafter, on 21st December, 2010, a Board Meeting of AJL called for an EGM which was subsequently held on 24th December, 2010 and on the said date a loan of Rs. 1 crore was received by Young India from another company M/s Dotex and thereafter on 28th December, 2010 i.e. within a week a formal deed of assignment was executed by AICC assigning the loan of Rs. 90 crores in favour of Young India. Immediately thereafter on 21st January, 2011, an EGM of Associated Law Journal was held approving fresh issue of 9.021 crores shares to Young India and on 22nd January, 2011 i.e. on the next day the second Managing Committee of Young India was held in which Smt. Sonia Gandhi, Mr. Motilal Vohra and Mr. Oscar Fernandes were appointed as Directors and the 550 shares of the existing shareholders of Young India - Suman Dubey and Sam Pitroda were transferred to Smt.Sonia Gandhi and Mr.Oscar Fernandes and on the same day fresh allotmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by Dr. Singhvi and as observed by the Hon‟ble Supreme Court the principle indicates that a shareholder acquires a right to participate in the profit of the company but he does not acquire any right or interest in the assets of the company. It has been held that by investing money in the purchase of shares the shareholder does not get any right to property of the company though he acquires a right in the profits if and when the company decides to divide it. Even though the shareholder of the company have the sole determining voice in administering the affairs of the company and are entitled to as provided in the Articles of Association to declare the dividends and distribute the profits of the company but their right individually or collectively is nothing more than participating in the profits of the company, it is held that the company is a juristic person and is distinct from the shareholders. In fact, it is the company which owns the property and not the shareholder. The judgment further goes to say that there is nothing in the Indian Law to warrant the assumption that the shareholder who by his share buys any interest in the property of the company which is a juristi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Bacha F. Guzdar (supra). After referring to most of the judgments including the judgment in the case of Bacha F. Guzdar (supra) relied upon by Dr.Singhvi is referred to and finally the consideration to be made is culled out in para 19 of the judgment in the following manner: "19. As already stated, the question for consideration is whether in the given fact situation the transfer of entire shareholding and change of all the Directors of a newly formed company to which lease rights were transferred by a declaration that it was mere change of form of partnership business without any transfer for consideration being involved can be taken as unauthorised transfer of lease which could be declared void." 63. Thereafter, the learned Court proceeds to discuss various issues and takes note of the fact that the transaction in fact technically does not sell the lease right but only shares are transferred and in para 24, it has been held that the principle of lifting of corporate veil as an exception to the distinct corporate personality of a company and its member is recognized not only to unravel tax evasion but also to protect public interest which is of paramount importa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgy Ltd. v. Union of India, (2012) 11 SCC 1, para 41; Amritlal Nathubhai Shah v. Union of India, (1976) 4 SCC 108; Geomin Minerals & Mktg. (P) Ltd. v. State of Orissa, (2013) 7 SCC 571. Ed.: See also Thressiamma Jacob v. Deptt. of Mining & Geology, (2013) 9 SCC 725 : (2013) 4 SCC (Civ) 559.] Cases of Arun Kumar Agrawal v. Union of India [Arun Kumar Agrawal v. Union of India, (2013) 7 SCC 1] (Vedanta case), Balco Employees' Union v. Union of India [Balco Employees' Union v. Union of India, (2002) 2 SCC 333] (Balco case) and Vodafone International Holdings BV v. Union of India[Vodafone International Holdings BV v. Union of India, (2012) 6 SCC 613 : (2012) 3 SCC (Civ) 867] cited by the learned counsel for the respondent have no application to the present case once real transaction is found to be different from the apparent transactions. In fact, the principle of law laid down in Vodafone case [Vodafone International Holdings BV v. Union of India, (2012) 6 SCC 613 : (2012) 3 SCC (Civ) 867] that the court can look to the real transaction goes against the respondent." 64. Finally in para 31, it is held by the Hon‟ble Supreme Court that while discerning the true nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in shareholder with four of its shareholders acquiring the administrative right to administer property of more than 400 Crores. Even though Dr.Singhvi had argued that there is nothing wrong in such a transaction and it is legally permissible, but if we take note of the principles and the doctrine for which the theory of lifting of the corporate veil has received legal recognition, we have no hesitation in holding that the entire transaction of transferring the shares of AJL to Young India was nothing but, as held by the learned writ Court, a clandestine and surreptitious transfer of the lucrative interest in the premises to Young India. In fact, the contention of Dr.Singhvi has to be rejected and rightly so was rejected by the Single Judge even though without applying the principle of lifting of the corporate veil. In case the theory of lifting of the corporate veil, as discussed hereinabove, is applied and the transaction viewed by analyzing as to what was the purpose for such a transaction, the so called innocent or legal and permissible transaction as canvassed before us, in our considered view, is not so simple or straight forward as put before us, but it only indicates the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the PP Act will not apply and further that the order determining the lease by the Land and Development Authorities cannot be challenged before the Estate Officer as he is not a judicial authority and certain observations made by the Supreme Court in the Express Newspaper Pvt. Ltd. (supra) have been relied upon in this regard. However, the entire judgment in the case of Express Newspaper Pvt. Ltd. (supra) was considered by a Constitution Bench of the Supreme Court in the case of Ashoka Marketing (supra) and in para 30, 32, 34 and 36, the Constitution Bench lays down the following principle: "30. The definition of the expression "unauthorised occupation‟ contained in Section 2(g) of the Public Premises Act is in two parts. In the first part the said expression has been defined to mean the occupation by any person of the public premises without authority for such occupation. It implies occupation by a person who has entered into occupation of any public premises without lawful authority as well as occupation which was permissive at the inception but has ceased to be so. The second part of the definition is inclusive in nature and it expressly covers continuance i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fall outside the purview of the Public Premises Act. On the other hand the said observations show that the learned Judge has held that the provisions of the Public Premises Act could not be invoked in the facts of that case. (emphasis supplied) xxx xxx xxx 34. Rule 5(2) of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971, requires the Estate Officer to record the summary of evidence tendered before him. Moreover Section 9 confers a right of appeal against an order of the Estate Officer and the said appeal has to be heard either by the District Judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years' standing as the District Judge may designate in that behalf. It shows that the final order that is passed is by a judicial officer in the rank of a District Judge. (emphasis supplied)." 68. If we consider the Constitution Bench judgment of the Supreme Court in the case of Ashoka Marketing (supra) as is reproduced hereinabove, it is clear that it is because of the peculiar facts and circumstances in the case of Express Newspaper Pvt. Ltd. (supra) that the learned Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of jurisdiction of the Estate Officer to decide whether there was any breach of the grant/lease, whether there was valid and justified determination was not raised before us during the course of arguments and is not being determined and decided. We have specifically mentioned this aspect in the judgment as we find that the appellant in the grounds of appeal has referred to the decision of the Supreme Court in Annamalai Club v. Government of Tamil Nadu, (1997) 3 SCC 169. 10. Another contention raised by the appellant was that the building constructed on the land is not public premises under Section 2(c) of the Public Premises (Eviction for Unauthorised Occupants) Act, 1971 because building was never given on lease and has been constructed by the lessee. In this connection, learned Counsel for the respondent No. 1 had drawn our attention to Clause 15 in the perpetual lease deed, which stipulates that the lessee on determination of the lease shall peacefully yield up the said land and the buildings thereon to the lessor. In view of the said clause, it cannot be said that the building constructed on the land cannot be regarded as the public premises." 69. This, in our considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictional power available to this Court under Article 226 of the Constitution, we find that in this case the finding with regard to no press activity being carried out in the premises for about ten years, misuse of land and 100% transfer of share to another company are all subject matters of four notices issued to the petitioner. The petitioner submitted voluminous documents and replies to these notices which made allegations of unauthorized construction, unauthorized permission to Akash Gift Gallery, clandestine transfer for ulterior motive etc. and the petitioners had in fact admitted the position with regard to there being no press activity and admitted non-publication of the newspaper due to financial trouble for more than eight years. It was only when the breach proceedings took place that press was installed, licence obtained and publication commenced after 24th September, 2017. The appellant also do not deny the fact about there being unauthorized occupation by Akash Gift Gallery, pendency of eviction proceeding. If all these factors are taken note of and a decision is taken by the respondents to say that the dominant purpose for which the lease was granted has been violated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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