The Shreeyans Educational ... vs The Secretary (Education) And ...
2006 Latest Caselaw 825 Del

JUDGMENT

Pradeep Nandrajog, J.

1. At the outset, I may record that at the hearing held on 18th April, 2006, Ms.Zubeda Begum counsel for Government NCT, Delhi stated that the real purport of the impugned communication dated 2.4.2004 is to treat the petitioner ineligible for land to set up a school at Vasant Kunj. The Directorate of Education continues to treat the petitioner as the holder of a valid Essentiality Certificate and Sponsorship Letter pertaining to the area Samalkha and Rajokri. Noting the said stand of Government of NCT Delhi, I proceed to note the facts and deal with the issues urged at the hearing held on 18.4.2006.

2. Nazul land placed by the Central Government at the disposal of DDA in terms of Section 22 of the Delhi Development Act, 1957 are required to be developed and disposed of by DDA upon such terms and conditions as may be prescribed by the Central Government. The Central Government has notified the Delhi Development Authority (Disposal of Developed Nazul Land) Rules, 1981 (here-in-after referred to as the Nazul Land Rules, 1981). The said rules specify the manner in which Nazul lands would be allotted and the premium to be charged for the allotment. Briefly stated, under Rule 5, DDA can allot Nazul land for establishing schools provided the person applying for land complies with Rule 20 of the Nazul Land Rules, 1981. Inter alia, Clause 'e' of Rule 20 of the Nazul Land Rules, 1981 requires that before allotment of land can be made, the applicant must be sponsored or recommended by the concerned department of Government of NCT, Delhi or a Ministry of Central Government. Since education up to senior secondary level is regulated in the Union Territory of Delhi by the Government of NCT, Delhi, pertaining to land to be allotted for establishing a school, requisite sponsorship or recommendation has to be obtained from the Directorate of Education, Government of NCT, Delhi.

3. Petitioner, a society registered under the Societies Registration Act, 1860 intended to establish a middle school in Delhi. On 30.6.2000 it submitted the necessary application to the Educational Officer, South-West Zone. By and under the said application request was made to issue a Essentiality Certificate to the petitioner for opening a middle school. The letter reads as under:

Sir,

I am applying for granting EC for opening a new middle school in Zone South West. Kindly find enclosed all the documents required by your office and please issue EC to Society as early as possible.

4. It may be noted that the application filed by the petitioner was for opening a school in South-West Zone. No particular colony was specified. It may also be relevant to note that while filling up the proforma prescribed by Directorate of Education, under Column 7, petitioner specified that it was seeking allotment of land in any zone of South Delhi.

5. Processing the application, Education Officer, vide letter dated 23.3.2001 wrote to the petitioner as under:

I am to inform you to submit or application for issue of EC for a proposed middle school at some other alternative site.

6. As conceded by Ms.Zubeda Begum, counsel for Government of NCT, Delhi, Education Officer required the petitioner to give option for other sites.

7. As would be noted from the facts here-under noted, the said letter was meaningless in as much as final stand taken by Government of NCT, Delhi before me during arguments was that Essentiality Certificates related to zones and not to specific areas. Be that as it may, vide response dated 23.3.2001, petitioner gave option for the following sites:

1) Mahipal Pur,

2) Rajokri,

3) Kishan Garh,

4) Samalkha.

8. It may be relevant to note that after indicating Samalkha as an option, petitioner indicated:

and or anywhere in Zone-XXI

9. On 8.5.2001 the Deputy Director of Education issued the necessary Essentiality Certificate by informing the petitioner as under:

the said acceptance to establish new school in Rajokri/Samalka area, Zone No. XXI of District South West especially limited only for a period of 3 years.

10. Needless to state, Directorate of Education wrote its letter dated 8.5.2001 as granting Essentiality Certificate for establishing a new school only in Rajokri or in Samalkha, both areas being in Zone-XXI.

11. Essentiality Certificate was followed by a Sponsorship Letter addressed to Delhi Development Authority on 7.2.2002 written by Assistant Director of Education. Inter alia, the Assistant Director of Education informed DDA as under:

I am directed to state that the Land Allotment Committee constituted by Hon'ble Lt.Governor has on merits conceded and recommended allotment of land to Shreeyans Educational Society for establishment of middle school in Rajokri/Samalkha only of District South-West 'A'.

12. Essentiality Certificate was extended on 10.6.2004 but in the meanwhile, unknown to the petitioner and without any prior notice, impugned letter dated 2.4.2004 was sent by the Directorate of Education to the petitioner with copy to DDA. Following was written by Directorate of Education:

To,

The President Secretary,

Shreeyans Educational Society,

ND-92A, Pitampura

Delhi-110035

Subject : Enquiry into the allotment of Institutional Land by DDA

Sir/Madam,

This is with reference to the enquiry held in the cases cleared for allotment of land by the Institutional Land Allotment Committee of DDA in its meeting held during the Feb.2003. Consequent upon the enquiry, the case of your society for allotment of land for Middle in the ... area has been found unfit and not in order and hence the DDA has been advised by the Govt.of NCT of Delhi to treat the cases of the society as not having the approval of competent authority and hence withdrawn.

However, as per the decision of the Govt. the society is given a fresh opportunity to apply afresh with proper documentation including valid Essentiality Certificate. Thereafter the case of the society will be processed as per department's policy afresh.

Yours faithfully,

Sd/-

ASST.DIRECtor OF EDUCATION(LAND)

13. What had happened was that the Land Allotment Committee of DDA recommended allotment of a school site to the petitioner at Vasant Kunj. According to the Government of NCT, Delhi, petitioner had manipulated a site at an area qua which sponsorship was not issued. Large number of such instances were noted. Directorate of Education conducted an enquiry and wrote letters to the applicants with copy to DDA withdrawing their sponsorship. As noted above, qua the petitioner, sponsorship was withdrawn on the ground that the petitioner had managed allotment in an area for which sponsorship was not issued.

14. Shri Harish Malhotra, learned senior counsel appearing for he petitioner urged that notified policy of the Government of NCT, Delhi, Directorate of Education was to grant Sponsorship and Essentiality Certificate in relation to a zone and not specific locality. Counsel drew attention to the minutes of the meeting of the Land Allotment Committee held in the chamber of the Secretary, Education, Government of NCT Delhi on 6.9.2002 wherein para 2 of the decision taken records as under:

The sponsorship will be valid only for Educational Zone of the Directorate of Education from where the E.C. Has been issued and the D.D.A. will allot land to the Society only in that Educational Zone. The Directorate of Education will provide a list of zone-wise area to the D.D.A. to facilitate the allotment in the relevant Zone.

15. Counsel urged that Government of NCT, Delhi interpreted the policy evidenced by its reply filed in WP(C) No. 6413/2001 wherein stand taken by Government of NCT, Delhi was as under: 'That paragraph No. (1) of the writ petition as stated is not admitted. It is submitted that earlier,the allotment of land etc. was only with a particular zone and it was later on decided for allotment of land in a nearby locality but within the same education district.'

16. Referring to decision taken dated 1.4.2003 disposing of CW No. 6413/2001, Shri Harish Malhotra, learned senior counsel for the petitioner urged that this court, relying upon the policy as interpreted by Government of NCT Delhi, in para 14 and 15 of the decision observed as under:

14. The last aspect agitated by learned Counsel for the petitioner is that in terms of the decision taken on 16.2.2001 by DDA and the Directorate of Education, certain norms were fixed for recommendation as well as allotment of land requiring the land to be allotted in the particular area or a nearby locality within the same education district. Learned counsel for the petitioner thus contends that thought the sponsorship of respondent No. 4 was for allotment of land for running a senior secondary school in Dilshad Garden area, the allotment for middle school was made at Mayur Vihar, Phase-III.

15. Respondent No. 4 has sought to explain the aforesaid position by stating that the said respondent had applied for Vasundhara/Dilshad Garden/Rohini area under the option and choice was given where land is to be allotted and Vasundhara falls in Zone-II, District East. It is further stated that Vasundhara/Mayur Vihar Phase III, Patparganj falls within Zone-II, District East and thus they fall in the same Zone-II. Respondent No. 2 DDA in their affidavit have also stated that the land which has been allotted to respondent No. 4 falls in the same zone.

17. Counsel additionally relied upon instructions issued by the Delhi Development Authority, Institutional Branch on 18th May, 2001 wherein it was decided that in future, sponsorships would be not specific to a locality for the reason many a times DDA has problem in alloting land in a particular locality. Counsel drew attention of the court to the following preamble noted in DDA's communication dated 18th May, 2001:

At the outset, Commissioner (LD) explained that due to shrinking availability of land, the norms for allotment of land for senior secondary, middle, primary and nursery schools are required to be relooked into. It was also explained that sometime it become difficult to allot land to the institution in the area for which the sponsorship is made because of non-availability of land in that particular area, and therefore, Education Department should not issue sponsorship for a particular colony instead it should be for the zone/district.

18. Shri Harish Malhotra, drawing attention to a letter dated 14.2.2006 addressed by Shri O.P.Mishra, OSD (Lands) to one Shri M.P.Singh relating to the petitioner's allotment by Land Allotment Committee of DDA submitted that said letter shows that DDA treated recommendation for allotment of a plot at Vasant Kunj to be a valid allotment.

19. Expanding the point, drawing attention to letter dated 10.2.2006 addressed by the Deputy Director of Education in response to information sought, counsel pointed out that letter dated 10.2.2006 accepts that on 8.5.2001 Rajokri and Vasant Kunj were in Zone-XXI and thereafter both areas were assigned to Zone-XX. Counsel therefore urged that the withdrawal of sponsorship could not be sustained on merits. Without prejudice to the stand taken on merits, counsel urged that Government of NCT, Delhi could under no circumstances withdraw the sponsorship without issuing the petitioner a prior show cause notice entitling petitioner to a defense before impugned action was taken.

20. On the issue of violation of principles of natural justice, Government of NCT Delhi has pleaded in para 13 of its counter affidavit as under:

13. That the sponsorship granted to the society has been withdrawn only after careful examination and judicious scrutiny by the Inquiry Officer appointed by Govt. of Delhi for the purpose. There was no reason to provide any opportunity to any individual or any society by the Inquiry Officers as they had to rely on whatever records or facts were available in the file of any society concerned.

21. Surely, the stand taken by Government of NCT, Delhi cannot be countenanced. Denial of principles of natural justice is prejudice enough and no prejudice independent thereof needs to be shown. In a case where consequence of administrative order are to deprive the person a legal right, prior hearing is a must. Indeed, in the decision reported as AIR 1981 SC 137 S.L.Kapoor v. Jagmohan, it was observed as under:

The principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced.

Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. Therefore, merely because facts are admitted or are indisputable it does not follow that natural justice need not be observed.

22. Since petitioner was not issued any prior show cause notice, impugned letter dated 2.4.2004 is liable to be quashed on the said short ground.

23. Needless to state, since Government of NCT, Delhi withdrew the sponsorship, Delhi Development Authority dropped further action and did not take to the logical conclusion recommendations made by its Land Allotment Committee. Needless to state, if Sponsorship and Essentiality Certificates issued by Government of NCT, Delhi are sustained and withdrawal thereof is quashed, stand projected by DDA was that it would treat the petitioner as eligible for allotment of Nazul land and would treat the petitioner as fulfillling the requirements of Rule 20 of Nazul Land Rules, 1981. I take on record the said stand projected by DDA through Shri Jagmohan Sabharwal, learned Senior Counsel who appear for DDA.

24. However, I need to clarify the legal position in relation to the controversy on merits in as much as I find that Government of NCT, Delhi has been projecting different stands in different writ petitions.

25. While responding to the present writ petition, in para 8, Government of NCT, Delhi has stated as under:

Land was allotted by DDA in areas and zones other than the locality specifically recommended by Land Allotment Committee of the Department. The prescribed Essentiality certificate not having been issued by the Deptt. for the localities in which land was finally allotted, the cases of these societies should have been processed afresh for sponsorship after modification of the Essentiality certificates and following the prescribed procedures. This not having been done, the allotment should be deemed to have been made irregularly.

26. As noted above, while responding to CW No. 6413/2001, stand projected by Government of NCT, Delhi was that recommendations pertained to zones and that it did not prohibit allotment of land in nearby localities. Indeed, on the basis of the said stand, disposing of WP(C) No. 6413/2001, learned Single Judge of this Court upheld allotment of land to a society in an adjoining locality notwithstanding sponsorship being for a different locality, holding that as long as allotment was in the zone qua which sponsorship was issued, allotment was valid. As noted above, decision taken by the Land Allotment Committee of Government of NCT, Delhi on 6.9.2002 stipulated that sponsorship will be valid for the educational zones and for which the Director of Education will provide a list of zone-wise are to DDA to facilitate allotment in the relevant zone. In this connection, it may also be noted that DDA faced difficulties and required latitude in alloting land, latitude being that DDA should be free to allot land even in nearby localities if it could not fulfilll the demand for land in a particular locality and for which DDA took a decision on 18.5.2001.

27. Looked at from any angle, policies framed by Government of NCT and DDA, and as were correctly projected in CW No. 6413/2001 required Essentiality Certificates/Sponsorships to be valid in the entire educational zone and not relatable to specific localities.

28. OSD, DDA correctly opined in his letter dated 14.2.2006 wherein he opined as under:

1. It is fact that sponsorship of Shreeyans Education Society has been withdrawn by the Education Deptt. G.N.C.T.D. and the society has filed CWP No. 15169/04 against withdrawl of sponsorship before Hon'ble High Court.

2. There was no Violation of rules/policy in recommendation of plot to the society at Vasant Kunj. However due to withdrawl of sponsorship the recommendation of allotment has been rejected and rejection letter issued on 30.11.2005. Further as per new policy mode of disposal of Institutional land has been changed from allotment to auction.

29. Reasons for cancellation/withdrawal of the sponsorship advanced by Government of NCT, Delhi are patently faulty.

30. On the issue of educational zone, in para 4(e) to (h) to the parawise reply, it has been pleaded by Government of NCT, Delhi as under:

As regards the decision of Land Allotment Committee meeting held on 06.09.02 the same was for the same zone for which Essentiality Certificate has been issued. In the case of Shreeyance Educational Society the Essentiality Certificate dated 08.05.01 was for Rajokri/Samalkha of Educational Zone-21 while the land has been allotted by DDA in Educational Zone 20. Thus, as per the decision of Govt. of Delhi, the matter rightly deserves the withdrawl of sponsorship.

31. Stand projected by Government of NCT, Delhi is an attempt to hoodwink this court. In response to information sought under the Right to Information Act, Government of NCT, Delhi furnished the following information:

SL.No.

Information Sought

Reply 1 Is it true that on date 08.5.2001 (Eight May Two Thousand and One) Rajokri and Vasant Kunj areas were in Zone-21?

The areas of Rajokri and Vasant Kunj were in Zone-21 on 08.05.2001.

2 Is is true that on date 17.2.2003 (Seventeen February Two Thousand and Three) Rajokri and Vasant Kunj areas are in Zone-20? The areas of Rajokri and Vasant Kunj are in Zone-20 on 17.2.2003.

3 Is it a fact that always Rajokri and Vasant Kunj areas remain in the same zone?

(Either before bifurcation or after the bifurcation).

It is a fact that Rajokria nd Vasant Kunj areas remain in the same Zone before bifurcation and after the bifurcation

32. It is apparent that when petitioner applied for sponsorship, Rajokri and Vasant Kunj were in Education Zone-XXI. Both were assigned to Education Zone-XX as on 17.2.2003.

33. It is obvious that the petitioner has not taken benefit of any change of zone. Government of NCT, Delhi took out Rajokri and Vasant Kunj from Zone No. XXI and placed the same in Zone No. XX.

34. Taking note of the stand projected by Government of NCT, Delhi as recorded in para (1) above and the legal position noted here-in-above, the rule is made absolute. Impugned letter dated 2.4.2004 is quashed. Needless to state, action of DDA in dropping further consideration of entitlement of the petitioner is declared to be illegal. Mandamus is issued to DDA to further process the application of the petitioner for allotment of land. Eligibility would be now treated for Zone-XX. Since considerable time has passed when petitioner obtained requisite sponsorship, I direct DDA to take the final decision and communicate the same to the petitioner within 3 months from today.

35. No costs.