Delhi High Court

Kalka Educational Society Regd vs D.D.A. on 9 February, 2010

Author: G. S. Sistani

14.
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 23464/2005

%                                Judgment Delivered on: 09.02.2010

KALKA EDUCATIONAL SOCIETY REGD                          ..... Petitioner
              Through : Mr. R.K. Saini, Adv.

                     versus

D.D.A.                                                  ..... Respondent
                     Through :   Ms. Sangeeta Chandra, Adv. for the
                                 DDA.
                                 Mr. Ayusha Kumar, Adv. for
                                 respondent no.2 and 3.

       CORAM:
       HON'BLE MR. JUSTICE G.S.SISTANI

          1. Whether the Reporters of local papers may be allowed to
             see the judgment?
          2. To be referred to Reporter or not?
          3. Whether the judgment should be reported in the Digest?

G.S.SISTANI, J. (ORAL)

1. Rule. Petition heard for disposal.

2. Brief facts, which have led to the filing of the present petition,

are that petitioner is stated to be a registered educational

society, running a school as Kalka Public School from a building

constructed by it on a land allotted by the DDA at Alaknanda,

Kalkaji, New Delhi, measuring 3.59 acres, which was allotted to

the petitioner society by the DDA vide allotment letter dated

02.01.1986 and physical possession of which was handed over

to the petitioner on 02.05.1991.

3. Grievance of the petitioner society is that despite handing over

possession of the land, in question, the DDA has failed to

execute a lease deed in its favour.

4. Petitioner society is stated to have made a representation to

the DDA on 20.07.1992 and on various other dates. The

petitioner was directed to deposit a sum of Rs.1,79,293/- as

ground rent by a letter dated 16.01.1995 and also directed to

file form under Section 37-I duly signed and issued from the

income tax authority to enable the DDA to execute a lease deed

in favour of the petitioner society. Ground rents and other

payments are stated to have been deposited on 06.05.2004.

Petitioner is also stated to have approached the Permanent Lok

Adalat as well, however, having received no satisfactory

response from the DDA, petitioner has filed the present writ

petition.

5. Learned counsel for the petitioner submits that upon handing

over possession of the land, the DDA was duty bound to

execute a lease deed in favour of the petitioner. Counsel

further submits that there is no reasonable explanation or

cogent reason has been given by the DDA as to why the lease

deed has not been executed in favour of the petitioner.

6. Per contra, learned counsel for the respondent/DDA has

opposed this petition primarily on the ground that the petitioner

society is running a B.Ed course in addition to running a senior

secondary school in the same premises. Counsel further

submits that despite a show cause notice dated 18.10.2005

having been issued by the DDA to the petitioner, the petitioner

has failed to discontinue running of a professional course from

the same premises without prior permission. Counsel for DDA

also submits that as per MPD 2021, there is a provision for

running vocational classes in a school premises after school

hours, subject to fulfillment of certain conditions but no

degree/diploma course can be run in such premises, thus, for

the breach of the terms of allotment the allotment is liable to be

cancelled.

7. Learned counsel for the respondent/DDA has relied upon the

relevant provisions of MPD 2021, which are reproduced below:-

"Coaching Centres / vocational training centres would be permissible in school classes after school hours with (a) prior approval of Competent Authority in the case of schools run by GNCTD or local body and (b) with prior intimation to lessor and payment of fee to be prescribed in the case of schools run privately on leased land. Structured courses leading directly to degree / diploma shall however not be permitted."

8. Learned counsel for the respondent/DDA submits that DDA is

contemplating to cancel the allotment of the petitioner in view

of the continued breach of the terms of the allotment letter as

well as the terms of the MPD 2021 and, thus, no purpose will be

achieved in executed lease deed in favour of the petitioner at

the first instance and thereafter cancelling the allotment of the

petitioner.

9. Learned counsel for the petitioner relies upon W.P.(C)No.11457-

58/2004 wherein a Single Judge of this Court has dealt with a

similar issue and while relying upon a Circular dated

08.07.1996, held as under:-

"23. Admitted position is that when DDA allotted land to the societies to establish a school thereon, allotment had a negative covenant. The covenant mandates that site shall be used for running a school and there shall be no sub-letting or transfer without prior permission of DDA obtained in writing.

24. On 08.07.1996, DDA issued a circular as under:

DELHI DEVELOPMENT AUTHORITY DIRECTOR (LANDS) OFFICE

No.F.4(41)/98/IL Dated 08.07.96

Subject: Subletting of the institutional premises.

Delhi Development Authority has decided to allow permission for subletting of the institutional premises with immediate effect subject to following conditions:

1. The allottee institutions should put up building by fully utilizing the permissible FAR.

2. The institution can let out a portion of the built up area to institutions of similar nature after obtaining prior permission of DDA by furnishing a copy of the certificate of registration and a copy of the memorandum and articles of association of the licencee institutions.

3. The institution may also be allowed to sublet a portion of the premises having built with prior approval of the DDA for service organizations like banks, on payment of 25% of the licencee fee received.

4. The institutions can also utilize a portion of the premises for the purpose of residence of the functionaries of the organization subject to the condition that the area so used does not exceed 15% of the built up space subject to a maximum of 150 sq. mtr.

5. The total area sublet under the above categories and the area used for residential purposes should, however, not exceed 40% of the built up area.

6. In case of subletting of the premises to institutions to similar nature covered under para (2), without prior approval of the DDA. The lesser shall be required to pay 15% of the rent so penalized for the leased premises and 30% for the service organizations like banks etc. who use the place for commercial purposes.

Sd/-

(ASMA MANZAR) DIRECTOR (LANDS)

25. Circular permits use of school building by institutes of similar nature. Of course, after obtaining permission from DDA. Default in obtaining permission is condonable under Clause 6 similar nature would mean a purpose

similar to that for which the building can be used. Education is the genus in the present case. Primary, Middle, Higher and College level education are all specie thereof. Thus use of a school building for imparting college level education is use of similar nature. I may not that the word is "similar" and not "same".

10. Learned counsel for the petitioner while relying on the

Circular dated 08.07.1996 submits that in case of any breach

the DDA can only take action against the petitioner in terms of

Clause 6 of Circular dated 08.07.2006, which reads as under:

6. In case of subletting of the premises to institutions to similar nature covered under para (2), without prior approval of the DDA. The lesser shall be required to pay 15% of the rent so penalized for the leased premises and 30% for the service organizations like banks etc. who use the place for commercial purposes.

11. Counsel for the petitioner submits that in any case despite the

show cause notice, which was issued to the petitioner as far

back as on 18.10.2005, DDA has failed to take any action

against the petitioner. Counsel further submits that the

petitioner had sent a reply to the Show Cause Notice on

27.10.2005 along with a copy of the judgment of the Single

Judge, bringing to their notice the legal position. Counsel also

submits that, in fact, DDA was completely satisfied by reply

submitted by the petitioner and as no action has been taken by

the DDA in effect the DDA has withdrawn its show cause notice.

12. Counsel for the respondent/DDA, however, submits that DDA is

contemplating action but no action was taken in view of the fact

that present writ petition was filed in the year 2005. Counsel

further submits that by not taking any action in any case would

not amount to condonation of breach of terms of allotment

letter by the petitioner.

13. I have heard learned counsel for the parties and given my

thoughtful consideration to the matter. The basic facts are not

in dispute. The allotment of plot at Alaknanda, Kalkaji, New

Delhi, measuring 3.59 acres, was made in favour of the

petitioner on 02.01.1986 and physical possession of which was

handed over to the petitioner on 02.05.1991. I find no force in

the submission of counsel for the petitioner that the lease deed

should have been executed by the DDA after handing over of

possession. I find force in the submission of learned counsel for

the respondent/DDA that lease deed could not have been

executed in favour of the petitioner till the entire dues and

payments were cleared. Admittedly, all payments were made

to the respondent/DDA in the year 2004. Further, in the year

2004, request of the petitioner for grant of lease was declined

by the DDA on the ground that the petitioner was running B.Ed

course after school hours at the premises allotted by the DDA

and for which DDA issued a show cause notice to the petitioner

on 18.10.2005. From October, 2005, till date the DDA has failed

to take any action against the petitioner for breach of terms of

allotment letter. The petitioner has also relied on the minutes

of the meeting held in the Chamber of V.C., DDA, on

10.01.2006, which was fixed to discuss the matters relating to

B.Ed courses in schools and colleges. The minutes of the

meeting reads as under:-

"DELHI DEVELOPMENT AUTHORITY OFFICE OF THE DIRECTOR (INSTITUTIONAL LAND)

No.F-50(10)/05/IL/Policy/303 January 31, 2006.

MINUTES OF THE MEETING HELD ON 10.01.2006 .

Minutes of the meeting held in the chamber of VC, DDA on 10.01.2006 to discuss the matters relating to B.Ed Courses in the attached schools/colleges.

The following officers were present in the meeting:

1. Shri Dinesh Rai, Vice-Chairman, DDA in Chair;

2. Shri R.K. Singh, Commissioner (LD);

3. Shri Thakur, VC, NCTE;

4. Shri M.C. Mathur, Dir.-SCERT;

5. Shri V.K. Jain, Registrar, G.G.I.P. University;

6. Shri Ashok Kumar, AC (Plg.), DDA;

7. Shri Prahlad Singh Director (Land Costing);

8. Shri S.N. Bonsal, Dy. CAO - LC;

9. Shri T.K. Jain, AO - Higher Education, GNCTD;

10. Shri Y.V.J. Rajasekhar, Dy. Dir. (Inst. Land);

11. Ms. Manju Paul, Dy. Dir. (Plg.)

At the outset, it was mentioned that some of the schools were earlier given permission to run B.Ed. courses in the existing schools, however, the same have been withdrawn after it was felt that B.Ed courses being professional courses should not be allowed in the premises which are meant for the schools. Accordingly, such permission has been withdrawn.

In the above background, views have been obtained from officers present in the meeting. According to Department of Education, GNCTD, no other course is to be allowed other than the purpose for which it is allotted. However, Shri Thakur, VC, National Council of Teacher Education has expressed the views that NCTE being apex body of B.Ed courses recommends existence of B.Ed. courses in the attached schools/colleges, since the exiting children and other facilities like labs will serve as a conducive material for teacher education training and accordingly NCTE recommends the continuation of B.Ed. courses in the attached schools/colleges.

The representative of Guru Gobind Singh Indraprastha University also endorsed the views of NCTE but however, mentioned that the school should earmark at least 1400 sq. mtrs. for hundred students as per the norms.

The officers from Planning Wing of DDA have mentioned that the draft MPD -2021 allows other educational activities after the school hours subject to NOC/clearance from concerned organization and department.

Finally, it was mentioned that DDA may not have any objection in allowing such B.Ed courses only; if GNCTD gives NOC in this respect and also subject to charging of certain fees as may be fixed by DDA. The meeting ended with vote of thanks to chair.

(Y.V.V.J. Rajasekhar) Dy. Dir. (Instl. Lands)

To -

1. OSD to VC, DDA;

2. PS to CLD;

3. Shri Thakur, VC, NCTE;

4. Shri M.C. Mathur, Dir - SCERT;

5. Shri V.K. Jain, Registrar, GCIP University;

6. Shri Ashok Kumar, AC (Plg.), DDA;

7. Shri Prahlad Singh, Dir (Land Costing);

8. Shri S.N. Bansal, Dy. CAO-LO;

9. Shri T.K. Jain, AO, Higher Education, GNCTD;

10. Ms. Manju Paul, Dy. Dir. (Plg.)"

14. Learned counsel for the petitioner has also relied upon on a

note signed by the Private Secretary to the Chief Minister dated

27.06.2007, which reads as under:-

OFICE OF THE CHIEF MINISTER GOVERNMENT OF NCT OF DELHI.

May please find enclosed a representation received from Association of Self Finance Institutions regarding permission to run B.Ed. Course already approved by the NCTE and affiliated to GGSIP University in the school premises.

The issue was discussed before the Union Minister of Urban Development in the presence of VC (DDA) and other officers of the Ministry of Urban Development. While the officers of Ministry of Urban Development persisted in supporting the stipulation made in Master Plan restricting the use of school premises for running coaching classes and not permitting them for structured degree, diploma courses, VC (DDA) agreed that the restriction did not apply to B.Ed. courses. Director (Higher

Education) should, therefore, issue No Objection Certificate for running B.Ed. courses in school premises, provided the same has been approved by the NCTE and fulfils the laid down requirements of the space, etc., ascertained through inspection.

(P.K. TRIPATHI) Pr. Secretary to C.M.

June 27, 2007

Director (Higher Education)

15. To canvass his argument that DDA in fact has no objection in

running B.Ed courses, subject to charging of certain fees, as

may be fixed by the DDA, counsel for the petitioner relies upon

a reply received by the petitioner to an RTI application wherein

the following answer has been given to question no.1:

             S.No.     Question                         Answer

             1.        Whether running of B.Ed.         As per MPD 2021
                       course is allowed in the         and Policy, B.Ed.
                       school hours. If not, Name       can be allowed, if
                       and address of the School        NOC is given by
                       where B.Ed. courses affiliated   Delhi        Govt.
                       to GGSIPU University are         School        wise
                       being run and why action has     information being
                       been taken against these         a voluminous task
                       schools / copies of the          could    not    be
                       correspondent / action taken     complied.
                       thereof, be provided

16. Taking into consideration that running of B.Ed. course in the

school premises is not a question, which is to be decided by this

Court, at this stage, the only question, which is to be decided is

whether in the absence of any action taken by the respondent

for an alleged breach committed by the petitioner with regard

to the terms of allotment letter, can the DDA withhold execution

of lease deed with respect to the allotment made in favour of

the petitioner. The answer is to be in the negative in view of the

fact that despite the show cause notice dated 18.08.2005, the

DDA has failed to take any action against the petitioner.

Accordingly, since the petitioner has made all the payments

and also taking into consideration the minutes of the meeting

dated 10.01.2006, letter of the Private Secretary to C.M. dated

27.06.2007, reply to the Right to Information query and the fact

that the DDA has also not been able to render a satisfactory

explanation as to why no action has been taken against the

petitioner after the show cause notice was issued as far back as

on 18.10.2005, DDA is directed to execute a lease deed in

favour of the petitioner within a period of ten weeks from today.

It is, however, made clear that execution of the lease deed will

not be construed as breaches if having been condoned by the

DDA. It is also clarified that this Order will not come in the way