Cambridge Foundation Education ... vs Delhi Development Authority
1987 Latest Caselaw 129 Del

JUDGMENT

B.N. Kirpal, J.

(1) The fight in the present case is about 2 acres of land which the petitioner wants should be allotted to it instead of Guru Singh Sabha, which is a registered society and is managing schools under the name of Guru Nanak Public School.

(2) The petitioner had applied for allotment of 4 acres of land at Rajouri Garden, New Delhi. Its school is recognised by the Director of Education and according to the norms which have been set, a recognised Senior Secondary School's to be allotted four acres ofland; if available.

(3) It is an admitted case of the parties that in 1977, the petitioner was informed vide a letter dated 19th February, 1977, that the D.DA. (Respondent No. 1) had decided to allot 4 acres of land in Rajouri Garden for consideration of a Senior Secondary School building at the rate of Rs. 5,000.00 per acre with annual ground rent of 5/o on the total premium. The petitioner was required to make the payment of Rs. 20,000.00 before possession of the land could be handed over to it,

(4) It is not in dispute that the aforesaid amount of Rs. 20,000.00 was paid by the petitioner within stipulated period. Thereafter, the petitioner was given possession of a plot ofland, which was admittedly less than about 2 acres on one side of the Ring Road. It appears that land adjoining to it was in illegal occupation and its vacant possession could not be given to the petitioner. Across the road, there was a land which, according to the zonal Development Plan, was meant for being used as a public park. It appears that when possession of 4 acres of land was not given to the petitioner, it constructed school building on the land whose possession had been given to it and at the same time, it occupied a portion of a land across the road, which was then used as a playing field and other activities.

(5) Respondent No. I regarded the occupation of the aforesaid land across the road as being unwarranted. It, therefore, required the petitioner to surrender the said land before lease deed could be executed and building plans passed. Accordingly, a letter dated 20th March, 1978 was written by the petitioner to the respondent No. I in which it was stated that they were handing over the play field land on the understanding that they should be allowed to use it and retain it and that later this space will be allowed to be used as common playing field.

(6) On 24th August, 1978, lease deed for 1.81 acres of land was executed in favor of the petitioner. It is on this land that the school building has been constructed. It is also not in dispute that notwithstanding the aforesaid letter dated 20th March, 1978, the petitioner has been using the land across the road for its playing field. The reason for this is that notwithstanding the fact that 4 acres of land had been allotted to it, lease for 1.81 acres only had been executed in its favor.

(7) During the course of arguments, learned counsel for respondent No. I, has placed before the court, the relevant files of the Dda pertaining to the allotment of land in this area. With regard to allotment of land to the petitioners, the relevant facts which emerge are as follows :-

(A)It appears that on behalf of the petitioner, a Member of Parliament wrote in 1981 to the then Lt. Governor for allotment of land for a play ground. On 26th December, 1981, the then Lt. Governor informed the member of Parliament that he was asking the Vice Chairman, Dda to examine the petitioner's request "regarding allotment of land to Cambridge Foundation, Senior Secondary School for play ground in exchange of the land adjacent to the school." Thereafter, the Dda wrote a letter to the said member of Parliament informing him that the matter "regarding allotment of land for play ground to Cambridge Foundation in exchange of the land adjacent to the school" was being examined. (b) No land apparently was allotted and a similar request was again made by the said Member of Parliament on behalf, of the petitioner to the new Lt. Governor in the year 1983. The Lt. Governor informed that the matter .was being looked into. (c) On 29th June, 1983, the petitioner wrote a letter to the Dda in which it was stated that the land adjacent to the one which had been allotted to the petitioner on which the building had been constructed was occupied by squatters and it was learnt that it would be cleared within a month or two. The petitioner requested that this land may be allotted to it and possession given. (d) On 5th May, 1983, another letter to the same effect, was written asking for allotment of adjacent land for play ground. In the said letter, like in the previous letter also, it was stated that it was dangerous for the children to cross the busy road in order to attend daily assembly and to use the play ground for playing. (e) The reply to the aforesaid letter of the petitioner dated 2nd Sep- tember, 1983 was to the effect that the land in question was under encroachment and it will take some time to remove the same. (f) It appears that somewhere in 1984, the Dda did agree to allot the adjacent land to the petitioner for use as a playing field. The petitioner was, however, informed that the land was under encroachment and the squatters will have to be removed. (g) It is at this stage, that the petitioner wrote a letter dated 31st May, 1984, followed by letter dated 6th June, 1984, in which it requested that the adjoining land be allotted to it for extension of the existing school. It was represented that the school wanted to segregate the boys and the girls classes into two independent schools and the further request of the petitioner was that the land across the road, which was being used by the petitioner, should be formally allotted to it as a play ground. (h) It seems that the Dda was not averse to the idea of the petitioner being allotted the adjoining plot of land for extension of the school but by its letter dated 16th September, 1985, it required the petitioner to furnish sponsorship from the Director of Education for another school.

(8) The file further reveals that the Dda was favorably considering the proposal to allot 2 acres of land across the road to the petitioner for being used as a play ground. The adjoining land of 2 acres for which a request had been received for it to be allotted to the petitioner for extension of the school was under consideration and on 20th November, 1985, the Commissioner (Lands), had directed to link up the papers relating to this land with those of the allotment to the Singh Sabha, respondent No. 2. It may here be noted that in the meeting held on 23rd July, 1985, the Land Allotment Committee had agreed to the allotment of additional land to the petitioner for extension of school subject to the furnishing of sponsorship. At this stage, the Dda did not have under its consideration, the allotment of this land to Singh Sabha.

(9) Respondent No. 2 had also been requesting for allotment of land in Rajouri Garden area. Adjoining the land of the petitioners is a plot measuring approximately 3.8 acres which, according to the Zonal Development Plan, is also meant for a Senior Secondary School. Vide a letter dated 31st December, 1985, the Dda allotted this plot of land to respondent No.2. It was, however, made clear in the letter of allotment that the said land was under encroachment and it will be the responsibility of the allottees, respondent No. 2 to get the said land cleared of encroachers.

(10) Respondent No. 2 accepted the aforesaid allotment of 3.8 acres and paid approximately 50% of the premium asked for. At this stage, the case takes an interesting turn. Notwithstanding the fact that on 23rd July, 1985, two acres of land adjoining the petitioner's building was agreed to be allotted by the Land Allotment Committee to the petitioner, the Commissioner (Lands) directed that the matter regarding allotment of play ground to the petitioner be kept pending. The file of the Dda pertaining to allotment of land to respondent No. 2 reveals that notwithstanding the allotment of 3.8 acres of land to the said respondent, the case appears to have been reopened and on 22 nd May, 1986, the Institutional Allotment Committee of the Dda passed the following Resolution : "THE case was considered and it was recommended for allotment of alternative vacant land measuring 2 acres which is vacant at site. Arising out of this, it was also decided that the area measuring 3.5 acres which is presently under stay may be utilised, when stay is vacated for any play ground by this school and the Cambridge School."

(11) The aforesaid facts show that by virtue of the Resolution dated 22nd May, 1986, of the Institutional Allotment Committee, the 2 acres of land adjoining the building of the petitioner's school is now proposed to be allotted to respondent No. 2 and the land measuring 3.5 acres which is presently in occupation of the squatters and is under encroachment is proposed to be given to the two schools at a later date for use as playing fields. The effect of this Resolution is that the said two acres of land is not to be given to the petitioner.

(12) In view of the aforesaid decision of 22nd May, 1986, petitioner has filed the present writ petition challenging the non-allotment of the adjoining area of 2 acres of land to it. Originally, Guru Singh Sabha was not imp leaded as a respondent in the writ petition but subsequently on an application being filed, it was imp leaded as the respondent No. 2.

(13) On behalf of the petitioners, it has been vehemently contended that it had been allotted 4 acres of land for which payment had been made as far back as 1977 and, therefore, it was entitled to allotment and possession of a composite piece of land measuring 4 acres. Respondent No. 2, on the other hand, contends that the petitioner had given up its right to the allotment of this piece of land for being used as a play ground because the petitioner wanted this land for extension of the existing school and as it did not have the sponsorship from the Director of Education, therefore, the petitioner was not entitled to the said land being allotted to it.

(14) The admitted fact being that the petitioner was allotted 4 acres of land, vide a letter dated 19th February, 1977, the petitioner was entitled to get possession of the same. Lease deed, which had been executed in favor of the petitioner, is only for an area of 1.81 acres. The land which is presently in its occupation, across the road, has not been formally allotted to the petitioner and is really under its unauthorised occupation. The petitioner has paid Rs. 20.000.00 being the amount demanded by Dda for allotment of 4 acres of land. The Dda is, therefore, clearly estopped from going back on its commitment and is under an obligation to allot 4 acres of land to the petitioner.

(15) The question which, however, arises is whether the petitioner can demand the adjoining land to be allotted to it for making up the short fall and secondly whether it is advisable for this Court to issue such a direction.

(16) The perusal of the correspondence between the petitioner and the respondent reveals that originally the petitioner wanted the adjoining piece of land for use as a play ground. The petitioner was then informed that the adjoining piece would not be given as there were squatters. The letters of 1981 and 1983 written by the then Lt. Governors to Shri J.K. Jain, the then member of Parliament indicates that the petitioners, at that time, wanted allotment of a playing field in lieu of the adjacent land. This request was made because the land under the actual occupation had not been formally allotted to it and the petitioners were desirous of a formal allotment of 2 acres in their favor for being used as playing field. The adjoining 2 acres of land, which was cleared of squatters only in April, 1986. could obviously not being used by the petitioners as its playing fields. Therefore, at that time, the request of the petitioners was for allotment of suitable land for being used as playing field.

(17) In 1984, however, the petitioners were willing to accept the adjoining 2 acres of land as a play-ground but then it changed its stand. The letters on the record shows that the petitioners were willing to retain the land across the road as its play ground and further desired that the adjoining land be allotted to it for extension of the school. The concern for the safety of the children, therefore, vanished in 1984 when the petitioners saw that there was possibility of its getting adjoining land for extension of its school. In terms did no uncertain the petitioners write to the Dda willing to accept the land across the road as a playing field. In this view of the matter, I did not see as to how the petitioners can have a preferential claim to the adjoining piece of land of 2 acres, which now has been cleared of squatters in April, 1986, to be allotted to it as a play ground.

(18) The matter does not end here. As I have already observed, the petitioners are entitled to allotment of 4 acres of land. The petitioners had paid the price which was demanded from it. Moreover, the accepted educational norms are that a Senior Secondary School has to be allotted 4 acres of land. Therefore, before allotment in ibis area can be made by the petitioner in favor of any other school, the Dda is duty bound to fulfill its earlier commitment and obligation by allotting 4 acres of land to the petitioner. The land which is to be allotted will be for the Dda to decide. I do not think it is desirable for the Court to discharge the functions of the Dda in deciding as to which area of land be allotted to the claimant. The only jurisdiction which the Court has is to decide whether the petitioner has a just claim or not and if the petitioner establishes its right to allotment of land, then to direct the Dda to act in accordance with law. It is open to the Dda, in the present case, either to allot adjoining 2 acres of land to the petitioner or to allot the land across the road, which is in the occupation of the petitioner to it or to allot any other area in the near vicinity to the petitioner and to give possession of the same to it. The Dda has to fulfill it's earlier obligation before it allots available land to any other institution.

(19) As far as respondent No. 2 is concerned, it voluntarily accepted 3.8 acres of land knowing fully well that it is under occupation of squatters and has been encroached upon. The said respondents were informed of this fact but nevertheless it decided to accept the said land. It is true that 2 acres of land adjoining the land of the petitioner is proposed to be allotted to respondent No. 2 but this allotment can be made only after the claim of the petitioner for allotment of 4 acres of land in toto has been met.

(207) I Accordingly issue a writ of mandamus directing the respondent/ Dda to allot and give possession of a land not exceeding 2.19 acres to the petitioner for being used as a play-ground and this allotment should be made within 8 weeks from today. Till such time, the adjoining area of 2 acres should not be handed over by the Dda to anyone. It is made clear, that it is open to the Dda to decide as to whom this 2 acres of land is to be allotted and there is no direction by this Court asking the Dda to allot this 2 acres of land either to the petitioner or to respondent No. 2. The parties will bear their own costs.