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2013 DIGILAW 402 (DEL)

Shubit Education Society v. Govt. of NCT

2013-02-21

D.MURUGESAN, V.K.JAIN

body2013
JUDGMENT : V.K. Jain, J. 1. The appellant society, which was desirous of establishing a middle school, sought to obtain allotment of land from DDA on which the proposed school could be set up. One of the requirements of DDA for allotment of land was Essentiality Certificate to be issued by Directorate of Education, Delhi in terms of the Rule 44 of Delhi School Education Rules, 1973. Vide Certificate dated 09.07.2001, Directorate of Education, Delhi conveyed to the appellant that the Appropriate Authority had accepted its proposal to establish a new middle school in Samalkha/Rajokri in Zone XXI of District South West. Vide letter dated 08.01.2002, Directorate of Education, Delhi conveyed to Delhi Development Authority that the Land Allotment Committee constituted by Lieutenant Governor had recommended allotment of land to the appellant-society in Samalkha/Rajokri/Vasant Kunj area of South West Districts. In its meetings held on 13.02.2003 and 17.02.2003, Institutional Allotment Committee of Delhi Development Authority recommended allotment of plot measuring 0.58 hectares in Pocket 8, Sector “C” of Vasant Kunj to the appellant-society. This recommendation was a part of the recommendations made for allotment of land to 291 such societies. Relying upon the said recommendations, Delhi Development Authority vide letter dated 28.03.2003, decided to allot land measuring 5800 square metre/2900 square metre for school building and 2900 square metre for playfield, to the appellant-society, for running a middle school. Some inquiry came to be initiated by Delhi Development Authority in respect of such allotments, as many as 12 allotments were found to be inappropriate and the case of the appellant society was found to be unfit and not in order. Vide letter dated 02.04.2004, the appellant society was informed by Directorate of Education that DDA had been advised by Delhi Government to treat the case of the appellant-society as not having approval of the Competent Authority and hence withdrawn. The appellant society, however, was given a fresh opportunity to apply afresh with proper documentation, including valid Essentiality Certificate. Vide letter dated 12.05.2004, Directorate of Education issued a fresh Essentiality Certificate to the appellant under Rule 44 of Delhi School Education Rules, 1973 for establishing a new school at Vasant Kunj in Zone XX. Vide letter dated 03.08.2004, the appellant-society again applied to Directorate of Education for grant of sponsorship to open a middle school in Vasant Kunj. Vide letter dated 12.05.2004, Directorate of Education issued a fresh Essentiality Certificate to the appellant under Rule 44 of Delhi School Education Rules, 1973 for establishing a new school at Vasant Kunj in Zone XX. Vide letter dated 03.08.2004, the appellant-society again applied to Directorate of Education for grant of sponsorship to open a middle school in Vasant Kunj. Delhi Development Authority vide letter dated 21.08.2004 rejected the application of the appellant for allotment of land, for want of Essentiality Certificate. On 09.02.2005, the appellant took back the amount of Rs 1,42,30,000/- which it had deposited for allotment of land to it. 2. WP(C) No. 19768/2005 was filed by the appellant, challenging the letter dated 02.04.2004, whereby the Essentiality Certificate dated 09.07.2001 was withdrawn by Directorate of Education. The said writ petition was dismissed as withdrawn on 08.11.2005 when the Court noted that in view of the fact that the order impugned itself records that the petitioner would have a fresh opportunity to apply fresh with proper documentation, including Essentiality Certificate and the petitioner had already applied afresh. 3. Vide its resolution dated 19.01.2006, Delhi Development Authority, in order to strike a balance between a transparent mode of allotment and social obligation to provide free education to the poor, formulated a policy, whereby 50% of the school plots were to be placed at the disposal of the Government and the remaining 25% were to be put to public auction with a condition that the auction purchaser would be obliged to provide 25% free ship to students from the poor and weaker sections of the society. Vide Notification dated 19.04.2006, an amendment was made in the DDA (Disposal of Developed Nazul Land) Rules, 1981, which prescribed the mode of disposal of land. The amended Rules provided for earmarking 50% of the plots to Government Schools, besides making it mandatory for all the private prospective auctioneers/bidders to provide 25% free ship to the students from the weaker sections of the society. 4. The appellant filed WP(C) No.2360/2006 also sought direction to the said Directorate to sponsor the case of the appellant for allotment of land and make recommendations to DDA for this purpose. 4. The appellant filed WP(C) No.2360/2006 also sought direction to the said Directorate to sponsor the case of the appellant for allotment of land and make recommendations to DDA for this purpose. Another direction sought in the writ petition was to DDA to make allotment on the basis of recommendations which the Directorate of Education was to make for establishing a middle school in Vasant Kunj, Zone XX of District South West. The writ petition having been dismissed by way of order dated 08.08.2012, the appellant is before us by way of this appeal. 5. It is not in dispute that in view of the provisions contained in Section 22 of Delhi Development Act, allotment of developed Nazul land in Delhi can be made by DDA only in terms of the DDA (Disposal of Developed Nazul Land) Rules, 1981. Admittedly, the amended Rules do not provide for such allotment of land to any person, company, society or other entity for setting up a school. Under the Rules, 50% of the plots meant for construction of school buildings are to be placed at the disposal of the Government and the remaining 50% of the plots are to be sold by way of public auction. The contention of the learned counsel for the appellant is that since the allotment of land was made to the appellant on 28.03.2003 much before the aforesaid Rules were amended, the respondent cannot apply the amended Rules to the appellant and are required to consider allotment of land to the appellant-society in terms of the DDA (Disposal of Developed Nazul Land) Rules, 1981 as they stood on the date earlier allotment was made. However, on consideration of the matter, we are unable to accept the contention made by the learned senior counsel for the appellant. A perusal of the Essentiality Certificate dated 09.07.2001, issued by Directorate of Education, Government of NCT of Delhi to the appellant-society, clearly shows that the said Directorate had accepted the proposal of the appellant to establish a new middle school in Samalkha/Rajokri in Zone XXI. Therefore, the aforesaid certificate envisaged setting up a new school either in Samalkha or in Rajokri which, at that time, fell in Zone XXI of District South West of Delhi. Therefore, the aforesaid certificate envisaged setting up a new school either in Samalkha or in Rajokri which, at that time, fell in Zone XXI of District South West of Delhi. No proposal was accepted by the Directorate for establishing a school in Vasant Kunj, which incidentally also fell in Zone XXI of District South West at the relevant time and now falls in Zone XX of the aforesaid District. In view of the Essentiality Certificate being confined to setting up a school in Samalkha/Rajokri, the sponsorship could not have been granted to the appellant society for establishing a school in Vasant Kunj. Consequently, DDA was not competent to allot land to the appellant-society in Vasant Kunj for setting up a school in terms of the Essentiality Certificate dated 09.07.2001. Since the allotment of land made to the appellant by DDA was not in consonance with the Essentiality Certificate dated 09.07.2001, the Directorate of Education, in our view, was absolutely justified in withdrawing the Essentiality Certificate, issued to the appellant on 09.07.2001, vide its communication dated 02.4.2004. 6. The learned senior counsel for the appellant has drawn our attention to the decision of a learned Single Judge of this Court dated 04.05.2006 in WP(C) No. 15169/2004 titled as “The Shreeyans Educational Society v. The Secretary (Education) and Ors. and submitted that in the this case, the facts were identical since Essentiality Certificate in that case was also to establish a new school in Samalkha/Rajokri, which was withdrawn by Directorate of Education vide letter dated 02.04.2004. The learned Single Judge, while quashing the impugned letter dated 02.04.2004 for want of show cause notice, also proceeded to consider the plea taken by the petitioner before him on merits, considering the fact that the Government had been projecting different stands in different writ petitions. Reference to the varying stand taken by the Government was made in the aforesaid order. The learned Single Judge noted that while responding to WP(C) No. 6413/2001, the stand taken by the Government was that the recommendations pertained to zones, did not prohibit allotment of land in nearby localities and the allotment of land to a society had been upheld in the aforesaid writ petition holding that the as regards allotment was in zone qua which sponsorship was issued, the same was valid. It was observed that since DDA faced difficulties and required latitude in allotting land, it should be free to allot land even in nearby localities if it could not fulfil the demand in a particular locality and for which DDA has taken a decision on 18.05.2001. During the course of arguments, the learned senior counsel for the appellant, in his usual fairness, informed us that in an appeal filed against the aforesaid order, notice has already been issued by a Division Bench of this Court and the matter is pending before the Division Bench. A perusal of the aforesaid judgment would show that in the case of The Shreeyans Educational Society (supra), the petitioner before this Court had initially applied for granting Essentiality Certificate for opening a new middle school in Zone South West, without specifying any particular colony. When the Directorate of Education asked the petitioner to submit application for proposed school at some other alternative site, he gave option for Mahipal, Rajokri, Kishangarh and Samalkha and/or anywhere in Zone XXI. However, in the case before us, there is no material before us to indicate that the appellant had applied for opening a school anywhere in South West district of Delhi, without specifying a particular colony or that Vasant Kunj was amongst the colonies, which was opted by the appellant. The Certificate dated 9.01.2001, to the extent it is relevant, reads as under:- “This is with reference to your application dated 18.02.2000 to establish a new school under Rule 44 of DSEAR, 1973. I am directed to state that the appropriate authority after considering the particulars specified in the application form has accepted the proposal to establish a new middle school from Class I to VIII in Samalkha/Rajokri in Zone No. XXI of District South West. The said acceptance to establish new school in Samalkha/Rajokri area Zone No.XXI of District South West shall be limited only for a period of three years.” The indication one gets from the Certificate is that the application of the appellant was to establish a new school in Samalkha/Rajokri and not any place in District South West of Delhi. Therefore, the decision of this Court in the case of The Shreeyans Educational Society (supra) would not be applicable to such a fact situation. Therefore, the decision of this Court in the case of The Shreeyans Educational Society (supra) would not be applicable to such a fact situation. Presuming, however, that the appellant had also applied for establishing a school anywhere in South West District of Delhi or that Vasant Kunj was one of the colonies opted by the appellant that, in our view, would make no difference since the Essentiality Certificate was restricted to a new school to be set up in Samalkha/Rajokri. This certificate, in our opinion, did not permit the appellant to establish a school at any place other than Samalkha/Rajokri in South West District of Delhi. If the appellant was aggrieved on account of the Essentiality Certificate being confined to Samalkha/Rajokri, the appropriate remedy for him was either to seek modification of the aforesaid Certificate from Directorate of Education or to challenge the Certificate in appropriate proceedings. But having accepted the Essentiality Certificate, which conveyed approval to establish a school in Samalkha/Rajokri, the appellant was not entitled to allotment of land in Vasant Kunj, which admittedly is a colony different from Samalkha/Rajokri, though falling in District South West of Delhi. Consequently, DDA could not have allotted any land to appellant in Vasant Kunj on the strength of the Essentiality Certificate dated 09.07.2001. Since the allotment made to the appellant in Vasant Kunj was contrary to the Essentiality Certificate dated 09.07.2001, the Directorate of Education, in our view, was fully justified in withdrawing the said Certificate. 7. More importantly, the appellant having withdrawn the earlier application for allotment of land, having submitted a fresh application dated 03.08.2004 seeking grant of sponsorship on the strength of the new Essentiality Certificate dated 12.05.2004, and withdrawing W.P.(C) No.19768/2005 which he had filed challenging withdrawal of the Essentiality Certificate dated 9.7.2001, no legal right survives to the appellant, to seek allotment of land on the strength of the Essentiality Certificate dated 09.07.2001. After withdrawal of W.P.(C) 19768/2005, it is not open to the appellant, to question the letter dated 2.4.2004, by way of W.P(C) No.2360/2006. 8. Admittedly, vide communication dated 21.08.2004, the case of the appellant for allotment of land was rejected by DDA and intimation in this regard was given to the appellant society on 22.12.2004. Admittedly, the money which the appellant had deposited with DDA was also taken back by it on 24.05.2005. 9. 8. Admittedly, vide communication dated 21.08.2004, the case of the appellant for allotment of land was rejected by DDA and intimation in this regard was given to the appellant society on 22.12.2004. Admittedly, the money which the appellant had deposited with DDA was also taken back by it on 24.05.2005. 9. Admittedly, no allotment has been made to the appellant pursuant to the new Essentiality Certificate dated 12.05.2004 and the fresh application submitted by it vide its letter dated 03.08.2004. Hence, it cannot be said that DDA (Disposal of Developed Nazul Land) Rules, 1981, as they stand post amendment, cannot be applied to the case of the appellant. For the reasons stated hereinabove, we find no merit in the appeal and the same is hereby dismissed. There shall be no order as to costs.