Mr. Laxmikant Sharma And Ors. vs The N.C.T. Of Delhi And Ors.
2002 Latest Caselaw 1140 Del

JUDGMENT

A.K. Sikri, J.

1. This writ petition is filed by parents of students of Respondent No. 4 school known as Jindal public School. The petition is in the nature of Public Interest Action with attempt to preserve the entry way of students and their parents and teachers to the school. This school is bordered on Nasirpur Nallah and students enter the school using the slab covering bridge on the said nallah. It is averred in the petition that the school had built the slab covering the bridge on the said nallah in the year 1991. Since then students from the age of 5 years onwards (Class 1 to Class 12) have been using the same for entering the school building. No untoward happening has taken place so far, The nallah sides are fitted with wall railings and there is safety to the students. The respondent No. 2 has sent notice to the school that the said slab covering should be removed or else, they will remove it. It is submitted that it will expose the students to fear of accidental death or some serious accidents.

2. Along with the petition the petitioners have annexed certain photographs which show that the nallah in question runs along with the boundary wall of the school. After this nallah is the main road. Thus if nallah is not covered by the slab as done by the respondent No. 4 school and the slab is removed, the entry from this gate cannot be used at all.

The petition contains the following prayer :

"In view of the above facts and circumstances, the petitioners respectfully pray that this hon'ble Court may be pleased to issue writ of mandamus and/or any other appropriate writ, order, direction thereby directing the respondents 1 to 3 not to demolish or remove the slab covering (Bridge) over the Nasirpur Nallah drain joining the main road with the respondent No. 4/school, namely Jindal Public School, Vaishali, Palam Road, Delhi in pursuance to their letter No. F7(22) /2000-1/AEIII/CD1/22.4.2002.

Any other and further order as may be deemed fit and proper may also be passed in the interest of justice."

3. Notices in this petition were directed to be served upon the respondents. Respondents 1 to 3 have filed reply-affidavit opposing this petition. Respondent No. 4, namely the school has also filed its affidavit supporting the petitioner.

4. In the counter-affidavit filed on behalf of respondents 1 to 3 it is explained that part reach of said Naseerpur Drain is running parallel to main Dabri Palam road and is storm water/sewerage water drain. However, number of persons have laid unauthorised slabs over the said drain thereby not only creating hurdles in the regular cleaning/desilting of the drain but have also unauthorisedly occupied public land for their personal use. These respondents have attached a rough sketch of the area to show the bridge in question as well as the photographs. In the instant case the gate on the bridge in question has been erected at point 'A' by the school by laying slab on the drain with the motive to have a shorter access to the Jindal Public School from the Dabri Palam main road. It is alleged that apart from unauthorised covering of drain, the bridge in question is proving traffic hazard at the said location because of movement of school buses. This also exposes the children to the avoidable danger of accident from the vehicular traffic. As would be apparent from the site plan there are two other gates of the school which are well connected with approach roads. School authorities are intentionally using the unauthorised bridge leaving aside other two existing gates which are much safe for children. Further, the SHO of the area had also written a letter to the answering respondent complaining about the unauthorised covering of the nalla by putting slabs and has requested the removal of the same. In the light of the aforesaid facts and circumstances the respondents 1 to 3 have submitted that the bridge is totally unauthorised and therefore has to be removed in terms of the letter dated 22.4.2002 issued by respondent No. 3 to Jindal Public School.

5. In the counter-affidavit filed by respondent-School, it is stated that the Trust which runs the School and the School itself were in constant touch with respondents No. 1 and 2 with regard to the construction of the bridge and in fact the correspondence exchanged between the parties show tacit consent permitting the school to construct the slab and the slab was accordingly constructed in the year 1991.

6. We heard learned counsel for the parties at length. The main opposition of the respondents 1 to 3 over this slab is that it is not only the school but various other persons who have also constructed such slabs with the result cleaning/desilting of the drain has become difficult and further that the bridge in question constructed by the school was proving traffic hazard in the said location because of the movement of school buses which was even exposing the children to the avoidable danger of accident from the vehicular traffic. Mr. Shali learned counsel for the respondents 1 to 3 further explained that if the slab is removed the visitors to the school would not suffer any inconvenience inasmuch as there were two gates of the school which were connected with approach roads and could be used for entry to the school.

7. We have given our utmost consideration to the issue at hand. There is no denial of the fact that the slab/bridge is existing since 1991. It is also not the case of the respondents 1 to 3 that any mishap has occurred because of using of the gate in question from the moving road through the bridge. The correspondence exchange between the school authorities and official respondents further discloses that the matter was brought to the knowledge of the respondents. By letter dated 10.9.1987 the Trust managing the school had conveyed to the Executive Engineer (P&D) Flood Control. Delhi Administration for the need to have the said bridge which was required for school coming children. It was also stated in the letter that:

"we want to construct a puce bridge as indicated in the site plan having a clear span of 3.75 metres. Please prepare the estimate and the cost may kindly be intimated to us to enable us to proceed further in this matter. We may assure you that if the amount demanded is within the purview of the Trust otherwise we may kindly be granted permission to construct the same with your approved drawings."

8. By reply dated 4.12.1987 to the aforesaid letter, the Office of the Chief Engineer (I&F) informed the Trust that the estimated cost of construction of puce bridge on the said drain was Rs. 1.23 lacs. The respondent No. 4-school was even asked to deposit the amount so that work could be undertaken by the Division. It implies that respondents themselves would have constructed the slab had this amount been deposited. However, the school thought that the amount demanded was on higher side. It replied vide letter dated 30.3.1988 stating that their technical experts had prepared the estimate cost which was Rs. 39,500/-. It was also stated that the school was prepared to erect the bridge by its own resources and the permission of the respondents for this purpose was sought. It appears that thereafter the matter was discussed between the school and the official respondents and this led to writing of another letter dated 30.3.1988 whereby certain undertaking were given by the school. This letter reads as under :

"In continuation to our letter dated 30-3-1988 and the personnel discussions we had with your goodself today, we hereby undertake to comply with the following points in connection with the matter under subject :

1. We will not claim compensation or entitlement in case of remodelling / widening of your drain.

2. We shall be responsible for structural stability of the bridge for which we have submitted the drawings.

3. We will maintain the drain in bridge's portion and will not obstruct hydraulic system of the drain.

4. We shall also be responsible for any kind of mishappening if occurred during the construction of bridge or there after due to the said bridge.

Kindly accord your kind permission to erect the bridge as referred to above and oblige".

9. Thereafter on record is letter dated 20.4.89 from the office of the Chief Engineer (I&F) to the Executive Engineer (P&D) asking him to finalise the matter regarding permission to the school for constructing the bridge at his level.

10. It appears that nothing happened in the matter for quite some time although the discussions were regularly held between the parties and by another letter dated 11.2.1991 the school informed the office of the Executive Engineer (P&D) that the absence of the bridge was causing inconvenience to the students and the parents and again permission for the construction of the bridge was sought for vide school's letter dated 30.3.1988. This letter evoked reply dated 8.3.1991 from the office of Executive Engineer stating as under :

"With reference to your letter No. Nil dated 11.2.91 addressed to EE (P&D) and copy endorsed to SE (SDC-II), you are requested to inform us as to whether your school is an authorised/regularised school or not.

Your request for taking up the construction of the bridge across Nasirpur drain shall be further processed in the light of your above reply".

11. As per this letter the respondents had asked for the information as to whether the school was authorised and regularised school or not. This information was supplied by the school vide letter dated 21.3.91.

12. Whether the permission thereafter was given or not is not known. However, fact remains that the school constructed the said slab/bridge which is in existence for the last 10 years. The aforesaid correspondence shows that the respondents were aware of the fact that school wanted to construct the bridge for which it had approached the respondents for appropriate permission. Not only this, event he respondents had in principle no objection as they had by letter dated 4.12.87 given the estimate cost and asked the school to deposit the cost so that work could he undertaken by the respondents. In view of these facts, coupled with the fact that the matter relates to educational institution where the interest of large number of students and teachers as well as parents visiting the school is involved the matter can be reconsidered by respondents 1 to 3. The only ground now stated by respondents 1 to 3 to the effect that such unauthorised slab over the drain is causing hurdles in the regular cleaning/desilting of the drain. No doubt when such slabs are constructed all over the drain by various persons, existence thereof would cause hurdles in desilting the drain. However, when the decision is taken to remove the slab to achieve this purpose the respondents may act in a more objective manner by removing those slabs constructed by private parties for their own purposes. If the solitary slab in question which is meant for a public institution is allowed to remain, we do not think that it would cause any problem in desilting of the drain. It would be more appropriate in such circumstances, for the authorities, to consider the case of such an institution like school on a different footing which is a separate class in itself.

13. Since there is no permission on record but the slab/bridge is in existence for last number of years, it would be appropriate if the respondents authorities bestow their serious consideration on the request made by the school, and take an appropriate decision after objective assessment of the situation.

14. We may not have suggested this course had we been convinced that the movement of buses carrying the children and teachers to the school from other two gates would be smooth. However, from the rough sketch of the area as produced by the official respondents, it appears that the buses may have to enter from the approach lanes which are not wide enough and, therefore, their movements from the said roads and entry from the side gates may not be very convenient. We also find that there are houses abutting the side walls of the school as well as in front of school and the entry of buses from approach lanes cause inconvenience not only to school but even to the residents of the area. Therefore, we are of the prima facie view that the two side gates may not serve the purpose of entry into school carrying the children and teachers and other visitors using buses.

15. Thus in the peculiar facts and circumstances of this case, we dispose of the writ petition with direction to the respondents 1 to 3 consider the request of the school for allowing the school authorities to retain the said bridge and not to remove the same and for this purpose give formal appropriate permission in writing. Such a consideration be made within two months from the date of receipt of the copy of this order and till then no precipitative action be taken by respondents 1 to 3.

16. We make it clear that we have expressed our tentative view in the matter and the final decision would be that of respondent authorities after taking into consideration all the relevant material.