Delhi High Court
Bhagwan Mahavir Education ... vs Dda & Ors. on 25 March, 2011
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 18.02.2011
% Date of decision : 25.03.2011
+ W.P.(C) No.2459-60/2005
BHAGWAN MAHAVIR EDUCATION SOCIETY (REGD.) & ANR.
...PETITIONERS
+ W.P.(C) No.8162/2005
HEALTH AND EDUCATION SOCIETY (REGD.) ...PETITIONERS
+ W.P.(C) No.17412/2005
VARDHMAN JAIN EDUCATIONALSOCIETY (REGD.) ...PETITIONER
+ W.P.(C) No.4203/2006
BALAJI EDUCATIONAL SOCIETY ...PETITIONER
+ W.P.(C) No.9222/2006
MADHU BALA INSTITUTE OF COMMUNICATOIN AND ELECTRONIC
MEDIA SOCIETY (REGD.) ...PETITIONER
+ W.P.(C) No.9516/2006
M/S.NEEL KANTH SOCIETY FOR EDUCATION & SOCIAL WELFARE
...PETITIONER
+ W.P.(C) No.10721/2006
R.P. KATHURIA ...PETITIONER
+ W.P.(C) No.11873/2006
SANKALPA EDUCATIONAL WELFARE & CHARITABLE SOCIETY
(REGD.) ...PETITIONER
+ W.P.(C) No.11879/2006
BHARTI CARE EDUCAITONAL & WELFARE SOCIETY ...PETITIONER
+ W.P.(C) No.15647/2006
KIDS PARADISE EDUCATIONAL & WELFARE SOCIETY (REGD.)
...PETITIONER
+ W.P.(C) No.81/2007
RISHI AURBINDO EDUCATINAL SOCIETY (REGD.) ...PETITIONER
+ W.P.(C) No.3241/2007
GRAMOUDYOGIK SHIKSHAN MANDAL ...PETITIONER
+ W.P.(C) No.6130/2007
HEALTH & EDUCATION SOCIETY
...PETITIONER
_____________________________________________________________________________________________
WP (C) No. 2459-60/2005 & Connected Matters Page 1 of 37
+ W.P.(C) No.6132/2007
TECNIA EDUCATIONAL SOCIETY ...PETITIONER
+ W.P.(C) No.8017/2007
M.S.MEDICAL AID AND CHARITABLE SOCIETY (REGD.)
...PETITIONER
+ W.P.(C) No.2096/2008
MILLENIUM SOICETY FOR ADVANCED TECHNICAL RURAL
DEVELOPMENT AND EMPLOYMENT RESEARCH EDUCATION
(REGD.) ...PETITIONER
+ W.P.(C) No.4956/2008
SURAJMAL MEMORIAL EDUCATION SOCIETY (REGD.)...PETITIONER
+ W.P.(C) No.5612/2008
SAINT GAUTAM EDUCATIONAL SOCIETY & ANR.
...PETITIONERS
+ W.P.(C) No.7274/2008
SHRI OM PRAKASH AHUJA MEMORIAL EDUCATOINAL SOCIETY &
ANR. ...PETITIONERS
+ W.P.(C) No.7275/2008
SHRI KUNDAN LAL AHUJA MEMORIAL EDUCAITONAL SOCIETY &
ANR. ...PETITIONERS
+ W.P.(C) No.7276/2008
EAST DELHI HEALTH & EDUCATION SOCIETY & ANR.
...PETITIONERS
+ W.P.(C) No.7277/2008
NARSIMHA EDUCATION SOCIETY (REGD.) & ANR.
...PETITIONERS
+ W.P.(C) No.7278/2008
CAPT.BHIKA RAM EDUCATIONAL SOCIETY & ANR. ...PETITIONERS
+ W.P.(C) No.7279/2008
ANKURIT EDUCATIONAL SOCIETY (REGD.) & ANR. ...PETITIONERS
+ W.P.(C) No.7280/2008
SHRI LAXMAN DASS SACHDEVA MEMORIAL EDUCATIONAL
SOCIETY & ANR. ...PETITIONERS
+ W.P.(C) No.7281/2008
RATAN MEMORIAL EDUCITONAL SOCIETY & ANR.
...PETITIONERS
+ W.P.(C) No.7282/2008
EAST DELHI HEALTH & EDUCATION SOCIETY & ANR.
...PETITIONERS
+ W.P.(C) No.7711/2008
_____________________________________________________________________________________________
WP (C) No. 2459-60/2005 & Connected Matters Page 2 of 37
BALAJI EDUCATIONAL SOCIETY & ANR. ...PETITIONERS
+ W.P.(C) No.7713/2008
ANUKAMPA EDUCATION SOCIETY & ANR. ...PETITIONERS
+ W.P.(C) No.21/2009
NARANG EDUCATION SOCIETY (REGD.) & ANR. ...PETITIONERS
+ W.P.(C) No.7962/2007
PUJA LAKSHMI EDUCATIONAL SOCIETY ...PETITIONER
+ W.P.(C) No.7965/2009
PRITHVI RAJ EDUCATIONAL SOCIETY & ANR. ...PETITIONERS
+ W.P.(C) No.10251/2009
DHRUV EDUCATION & EDUCATION SOCIETY & ANR.
...PETITIONERS
+ W.P.(C) No.10263/2009
KEWAL EDUCATION SOCIETY (REGD.) & ANR. ...PETITIONERS
-VERSUS-
DDA & ORS. ... RESPONDENTS
+ W.P.(C) No.3394/2006
JAGAN NATH GUPTA MEMORIAL EDUCATIONAL SOCIETY (REGD.)
...PETITIONER
+ W.P.(C) No.10280/2006
OLIVITA EDUCATION SOCIETY ...PETITIONER
+ W.P.(C) No.10294/2006
STUDENTS WELFARE AND EDUCATIONAL SOCIETY
...PETITIONER
+ W.P.(C) No.10383/2006
GOLA EDUCATIONAL SOCIETY ...PETITIONER
+ W.P.(C) No.10645/2006
RUDRA PRIYA EDUCATIONAL SOCIETY ...PETITIONER
+ W.P.(C) No.18116-118/2006
DAV COLELGE TRUST AND MANAGEMENT SOCIETY & ANR.
...PETITIONERS
+ W.P.(C) No.12200/2006
PARVEEN KUMAR ...PETITIONER
+ W.P.(C) No.13177/2006
BHAGWAN CHINTAMANI PARASNATH EDUCATION SOCIETY
_____________________________________________________________________________________________
WP (C) No. 2459-60/2005 & Connected Matters Page 3 of 37
(REGD.) ...PETITIONER
+ W.P.(C) No.158/2007
PUSHPA EDUCATIONAL SOCIETY (REGD.) ...PETITIONER
+ W.P.(C) No.1030/2007
PARVATI KUND EDUCATION SOCIETY ...PETITIONER
+ W.P.(C) No.1530/2007
KHEER BHAWANI EDUCATION SOCIETY (REGD.) ...PETITIONER
+ W.P.(C) No.1656/2007
SHEMROCK EDUCATIONAL SOCIETY ...PETITIONER
+ W.P.(C) No.2547/2007
NEW KRISHNA EDUCATION SOCIETY ...PETITIONER
+ W.P.(C) No.2714/2007
AKHIHL BHARTIYA GRAMIN SEWA SANGH (REGD.) ...PETITIONER
+ W.P.(C) No.3711/2007
BHAGIRATHI DHAM EDUCATIONAL SOCIETY ...PETITIONER
+ W.P.(C) No.4895/2007
GOVIND RAM EDUCATIONAL SOCIETY ...PETITIONER
+ W.P.(C) No.7173/2007
PRABHA MANDAL EDUCATIONAL SOCIETY ...PETITIONER
+ W.P.(C) No.8184/2007
INDIAN INSTITUTE OF PLANNING AND MANAGEMENT & ANR.
...PETITIONERS
+ W.P.(C) No.3602/2008
SHREE MAHAVIR JEE EDUCATION SOCIETY (REGD.) ... PETITIONER
+ W.P.(C) No.7000/2008
THE MOONLITE EDUCATION SOCIETY ...PETITIONER
+ W.P.(C) No.649/2011
DEVENDRA SINGH RANA MEMORIAL EDUCATION SOCIETY (REGD.)
...PETITIONER
-VERSUS-
UOI & ORS. ..RESPONDENTS
Present : Mr. Raju Ramachandran and Mr. Ravi Gupta,
Sr. Advocates with Mr. Laliet Kumar, Advocate
for the Petitioner in W.P. (C) No. 2459-60/2005.
Mr. Harish Malhotra, Sr. Advocate with
Mr. Tanuj Khurana, Advocate for Petitioner in
_____________________________________________________________________________________________
WP (C) No. 2459-60/2005 & Connected Matters Page 4 of 37
W.P. (C) Nos. 0294/2006 and 12200/2006.
Mr. Ravinder Sethi, Sr. Advocate with
Mr. Rajiv Kumar Ghawana, Advocate
for the Petitioner in W.P. (C) Nos. 8162/2005,
17412/2005, 3394/2006 and 81/2007.
Mr. R.K. Saini, Advocate for the Petitioner in
W.P. (C) Nos. 8162/2005, 2714/2007, 2547/2007
and 7000/2008.
Mr. Digvijay Rai, Advocate for the Petitioner in
W.P. (C) No. 9222/2006.
Mr. Rajeshwar Dagar, Advocate for the Petitioner in
W.P. (C) No.11873/2006.
Mr. Sachin Midha, Mr. Sarfaraz Ahmed and
Mr. Sumit Rajput, Advocates for the Petitioners in
W.P. (C) No. 3394/2006 & 7695/2009 and
for the Respondent in W.P. (C) No. 9222/2006.
Mr. Praveen Kumar, Advocate for GGSIP University.
Mr. A.S. Singh, Advocates for UOI in
W.P. (C) Nos. 3394/2006 and 3602/2008.
Mr. Naveen Bhardwaj and Harjot Singh Rohilla,
Advocates for the Petitioner in W.P.(C)No.10280/2006.
Mr. Madan Lal Sharma, Advocate for the Petitioner in
W.P. (C) No. 2096/2008.
Mr. Sachin Puri and Ms. Kaadambari Puri, Advocates
for the Petitioner in W.P. (C) No. 10383/2006.
Mr. Gagan Chhabra, Advocate for the Petitioners in
W.P. (C) Nos. 3394/2006 & 8184/2007.
Mr. Sumit Bansal, Mr.Ateev Matghur and
Mr. Vaibhav Arora, Advocates for the Petitioner in
W.P. (C) Nos. 4203/2006, 11879/2006,
15647/2006, 6130/2007 and 6132/2007.
Mr. P.R. Chopra, Advocate for the Petitioner in
W.P. (C) No.10721/2006.
Mr. Rakesh Mahajan, Advocate for the Petitioner in
W.P. (C) No. 18116-118/2006.
Mr. Sumit Batra, Advocate for the Petitioner in
W.P. (C) No. 158/2007.
Mr. N. Menon, Advocate for the Petitioner in
W.P. (C) No.4687/2007.
Ms. Anita Abraham, Advocate for the Petitioner in
W.P. (C) No.7962/2007.
Mr. Ankit Jain, Advocate for the Petitioner in
W.P. (C) No. 8017/2007.
Mr. Viraj R. Datar and Mr. Chetan Lokur, Advocates for
the Petitioner in W.P. (C) No. 649/2011.
Ms. Chandra Shekhar, Advocate for the Petitioner in
W.P. (C) Nos. 1030/2007 and 1530/2007.
Mr. Rajiv Bansal with Mr. Harshit Agarwal,
Mr. Saurabh Suman Sinha, Mr. Abhir Dutt and
Ms. Razia Ali, Advocates for DDA.
Mr. L.K. Garg, Advocate for Respondents in
_____________________________________________________________________________________________
WP (C) No. 2459-60/2005 & Connected Matters Page 5 of 37
W.P. (C) No. 2459/2005, 8162/2005, 11873/2006,
11879/2006, 6130/2007 & 7173/2007.
Ms. Sana Ansari, Proxy counsel for the GNCT in
W.P. (C) Nos. 3394/2006 and 81/2007.
Mr. Mukesh Anand, Advocate for the UOI in
W.P. (C) No. 13177/2006.
Mr. Nawal Kishore, Jha, Advocate for GNCTD.
Mr. Virendra Kumar Singh, Advocate for the UOI in
W.P. (C) No. 2096/2008.
Mr. Aakash D. Pratap, Advocate for the UOI in
W.P. (C) No. 10294/2006.
Mr. Vijay Kinger, Advocate for the UOI in
W.P. (C) No. 18116-18/2006.
Ms. Meera Bhatia for UOI in W.P. (C) No. 158/2007.
Mr. Saleem Ahmed, Advocate for UOI in
W.P. (C) No. 7000/2008.
Ms. Raman Oberoi, Advocate for the UOI in
W.P. (C) No. 1030/2007.
Mr. Sachin Datta and Mr. Abhimanyu Kumar,
Advocates for UOI in W.P. (C) No. 21/2009.
Ms. Payal Jain, Proxy counsel for UOI in
W.P. (C) No. 4687/2007.
Mr. Y.D. Nagar for UOI in W.P. (C) No. 7173/2007.
Ms. Sonia Mathur, Advocate for the UOI in
W.P. (C) No. 4895/2007.
Mr. V. Singh, Advocate for R-2 in
W.P. (C) No. 5612/2008.
Mr. Atul Bandhu, Advocate for the UOI in
W.P. (C) No. 4956/2008.
Mr. Chetan Chawla, Advocate for the UOI in
W.P. (C) No. 5612/2008.
Mr. Jatan Singh and Mr. Ashish Kumar Srivastava,
Advocates for UOI in W.P. (C) No. 7711/2008 &
7713/2008.
Mr. Anuj Aggarwal, Advocate for the UOI.
Mr. Sandeep Khatri and Ms.Reeta Kaul, Advocates
for R-2 in W.P. (C) No. 7965/2009.
Mr. Baldev Malik, Advocate for UOI in
W.P. (C) Nos. 10251/2009 and 10263/2009.
Mr. Vikram Saini, Proxy counsel for Ms. Reeta Kaul,
Advocate for R-2 in W.P. (C) No.7965/2009.
Mr. M.P. Singh, Advocate for the UOI
in W.P. (C) No. 649/2011.
Ms. Anusuya Salwan and Ms. Neha Mittal, Advocates
for DDA in W.P. (C) Nos. 2459/2005, 17412/2005,
1530/2007 and 3711/2007.
Mr. Neeraj Chaudhari and Mr. Khalid Arshad,
Advocates for UOI in W.P. (C) Nos. 2714/2007,
7274-7279/2008, 7281/2008 and 7282/2008.
Mr. Ravinder Agarwal and Mr. Nitish Gupta, Advocates
for UOI in W.P. (C) Nos. 8162/2005, 13177/2006,
81/2007 and 2714/2007.
_____________________________________________________________________________________________
WP (C) No. 2459-60/2005 & Connected Matters Page 6 of 37
-
CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether the Reporters of local papers YES
may be allowed to see the judgment?
2. To be referred to Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
SANJAY KISHAN KAUL, J.
1. The claim of the petitioners for entitlement to land at
pre-determined rates under the Delhi Development
Authority (Disposal of Developed Nazul Land) Rules, 1981
{'the said Rules' for short} for running of higher and
technical education institutes, schools and hospitals has
given rise to this batch of writ petitions.
2. The common grievance of the petitioners is that their
cases for allotment of Nazul land at pre-determined rates
was at an advanced stage after due clearances but on
the eve of the proposed allotment, the policy was
changed, and all land is now being disposed of only by
way of public auction. The nature of activities set out
above are stated to entitle the petitioners to land at
cheaper rates i.e. pre-determined rates rather than
through auction mode.
_____________________________________________________________________________________________
3. We may at the inception itself state that the submissions
of learned counsel for the parties has not been based on
factual matrix of each case but only on the general
principles of law and the factual position qua the said
Rules and the amendments made thereto.
4. The Delhi Development Authority ('DDA' for short) is a
statutory body established under the Delhi Development
Act, 1957 ('the DDA Act' for short) for purposes of
development of Delhi according to plan and for matters
ancillary thereto. The developed and undeveloped lands
in Delhi could be placed at the disposal of the DDA by the
Central Government in terms of Section 22 of the DDA
Act, which reads under:
"22. NAZUL LANDS
(1) The Central Government may, by
notification in the Official Gazette and upon
such terms and conditions as may be agreed
upon between that government and the
Authority, place at the disposal of the Authority
all or any developed and undeveloped lands in
Delhi vested in the Union (known and
hereinafter referred to as "nazul lands") for the
purpose of development in accordance with the
provisions of this Act.
(2) No development of any nazul land shall be
undertaken or carried out except by, or under
the control and supervision of, the Authority
after such land has been placed at the disposal
of the Authority under sub-section (1).
(3) After any such nazul land has been
developed by, or under the control and
supervision of, the Authority, it shall be dealt
with by the Authority in accordance with rules
made and directions given by the Central
Government in this behalf.
_____________________________________________________________________________________________
(4) If any nazul land placed at the disposal of
the Authority under sub-section (1) is required
at any time thereafter by the Central
Government, the Authority shall, by notification
in the Official Gazette, replace it at the disposal
of that government upon such terms and
conditions as may be agreed upon between the
government and the Authority."
5. Section 56 of the DDA Act empowers the Central
Government to make rules after consultation with the
authority to carry out the purposes of the DDA Act. In
terms of Section 56(2) of the DDA Act without prejudice
to the generality of power, such rules may provide for
any of the matters specified therein. Clause (j) of Section
56(2) of the DDA Act refers to the manner in which the
Nazul land shall be dealt with after development. It is in
pursuance to the exercise of such power to make rules
r/w Section 22(3) of the DDA Act, that the said Rules
came to be enacted. Chapter II of the said Rules deals
with the disposal of Nazul land. The purposes for which
the Nazul land can be allotted is set out in Rule 3 of the
said Rules, which reads as under:
"3. Purposes for which Nazul land may be
allotted - Authority may allot Nazul land for
public utilities, community facilities, open
spaces, parks, playgrounds, residential
purposes, industrial and commercial uses and
such other purposes as may be specified from
time to time by the Central Government by
notification."
6. Rule 4 of the said Rules sets forth the persons to whom
the Nazul land may be allotted while Rule 5 of the said
Rules refers to the premium for allotment of Nazul land
to certain public institutions. Rule 8 of the said Rules
_____________________________________________________________________________________________
prescribes the manner of allotment which is to be on
payment of premium as may be determined either by
auction or by tender in accordance with provisions of
Chapter III and Chapter IV of the said Rules. Rule 20 of
the said Rules deals with the allotment to certain public
institutions. Rules 4, 5 and 20 of the said Rules have
seen amendments and it is these amendments which are
crucial to the submissions made by the learned counsel
for the parties. We set out hereinafter the history of the
amendments to these Rules.
AMENDMENT TO THE RULES
POSITION PRIOR TO 2002
7. Rules 4 and 5 of the said Rules empowered DDA to allot
land to schools, colleges, universities, hospitals other
social or charitable institutes at a premia and ground rent
in force immediately before coming into force of the said
Rules or at such rates the Central Government may
determine from time to time. Rule 8 of the said Rules
prescribed that save as otherwise provided in Rules 5 to
7 of the said Rules, allotment of land is to be made on
payment of such premia as may be determined either by
auction or by tender in accordance with the provisions of
the said Rules. Rule 20 of the said Rules prohibit
allotment of Nazul land to public institutes referred to in
Rule 5 unless it was to a Society registered under the
Societies Registration Act or was owned or run by the
_____________________________________________________________________________________________
Government or any legal authority having a non-profit
making character and the allotment was to be sponsored
or recommended by a Department of Delhi
Administration or a Ministry of the Central Government.
The relevant rules read as under:
"4. Persons to whom Nazul land may be allotted
The Authority may, in conformity with the plans, and
subject to the other provisions of these rules, allot Nazul
land to individuals, body of persons, public and private
institutions, co-operative house building societies, other
cooperative societies of individuals, cooperative societies
of industrialists and to the departments of the Central
Government, State Governments and the Union
territories.
5. Rules of premium for allotment of Nazul land to
certain public institutions.
The Authority may allot Nazul land to schools, colleges,
universities, hospitals, other social or charitable
institutions, religious, political, semi-political
organizations and local bodies or remunerative, semi-
remunerative or un-remunerative purposes at the premia
and ground rent in force immediately before the coming
into force of these rules, or at such rates as the Central
Government may determine from time to time.
8. Manner of Allotment
Save as otherwise provided in rules 5,6 and 7, allotment
of Nazul land for a residential purpose, an industrial
purpose, a commercial purpose or any other purpose
shall be made on payment of such premium as may be
determined either by auction or by tender in accordance
with the provisions of these rules.
20. Allotment to certain public institutions
1) No allotment of Nazul land to public institutions
referred to in rule 5 shall be made unless,
a) According to the aims and objects of that public
institution,
i) It directly sub-serves the interest of the
population of the Union Territory of Delhi;
ii) It is generally conducive to the planned
development of the Union Territory of Delhi;
iii) It is apparent from the nature of work to be
carried out by that public institution, that
the same cannot, with equal efficiency, be
carried out elsewhere than in that part of
Union Territory.
b) It is a society registered under the Societies
Registration Act, 1860 (21 of 1860) or such
institution is owned and run by the Government or
_____________________________________________________________________________________________
any local authority, or is constituted or established
under any law for the time being in force;
c) It is of non-profit making character;
d) It is in possession of sufficient funds to meet the
cost of land and the construction of buildings for
its use; and
e) Allotment to such institution is sponsored or
recommended by a Department of the Delhi
Administration or Ministry of the Central
Government."
AMENDMENTS EFFECTIVE FROM 05.07.2002
8. Rule 4 of the said Rules was amended by adding sub-rule
(2) whereby the Nazul land could be allotted to a
company, firm or trust for purposes of establishment of
hospitals or dispensaries. As a sequitur, an explanation
was added in Rule 5 of the said Rules stating that for the
purpose of this Rule, the expression „Hospitals‟ did not
include hospitals/dispensaries established by a company,
firm or trust as referred to in Rule 4(2) of the said Rules.
Similarly, amendments were made in Rule 8 of the said
Rules. Rule 20 was also amended so as to expand the
allotment of land at pre-determined rates to entities
apart from societies registered under the Societies
Registration Act i.e. a company, firm or trust for purposes
of establishment of a hospital or dispensary provided it is
sponsored or recommended, which condition was not
applicable if the allotment was by way of auction or
tender. The aforesaid amendments thus made provision
for allotment of land at pre-determined rates to a
company, firm or trust for setting up a hospital /
dispensary apart from the mode of auction or tender.
The amended rules thus read as under:
_____________________________________________________________________________________________
"4. Persons to whom Nazul land may be allotted
[(1)] The Authority may, in conformity with the plans, and
subject to the other provisions of these rules, allot nazul
land to individuals, body of persons, public and private
institutions, cooperative house building societies, other
cooperative societies of individuals, cooperative societies
of industrialists and to the departments of the Central
Government, State Governments and the Union
Territories.
[(2) The Authority may, in conformity with the plans, and
subject to the other provisions of these rules, allot nazul
land to a company, firm or trust or the purpose of the
establishment of hospitals or dispensaries]
5. Rules of premium for allotment of Nazul land to
certain public institutions.
The Authority may allot Nazul land to schools, colleges,
universities, hospitals, other social or charitable
institutions, religious, political, semi-political
organizations and local bodies or remunerative, semi-
remunerative or un-remunerative purposes at the premia
and ground rent in force immediately before the coming
into force of these rules, or at such rates as the Central
Government may determine from time to time.
[Explanation - For the purpose of this rule the expression
"hospitals" do not include the hospitals/dispensaries
established by a company, firm or trust as referred to in
sub-rule (2) of rule (4)).]
8. Manner of allotment - Save as otherwise provided
in Rules 5, 6 & 7 allotment of Nazul and for a residential
purpose, an industrial purpose, [a commercial purpose,
or for the purpose of the establishment of hospital or
dispensary] or any other purpose shall be made on
payment of such premium as may be determined either
by auction or by tender in accordance with the provisions
of these rules.
20. Allotment to certain public institutions - No
allotment of Nazul land to public institutions referred to in
rule 5 shall be made unless -
(a) according to the aims and objects of that public
institution -
(i) it directly sub-serves the interests of the population of
the Union Territory of Delhi;
(ii) it is generally conducive to the planned development
of the Union Territory of Delhi;
(iii) it is apparent from the nature of work to be carried
out by that public institution, that the same cannot,
with equal efficiency be carried out elsewhere than in
that Union Territory.
(b) it is a society registered under the Societies
Registration Act, 1860 (21 of 1860) or such institution is
owned and run by the Government or any Local
Authority, or is constituted or established under any law
[for the time being in force or it is a company, firm or
trust for the purpose of establishment of hospital or
dispensary];
_____________________________________________________________________________________________
(c) it is of non-profit making character;
(d) it is in possession of sufficient funds to meet the cost
of land and the construction of buildings for its use; and
(e) allotment to such institution is sponsored or
recommended by a [Department of the Government of
National Capital Territory of Delhi] or a Ministry of the
Central Government:
[PROVIDED that in case of allotment to a company, firm
or trust for the purpose of establishment of hospital or
dispensary by tenders or auction, as the case may be,
such company, firm or trust, as the case may be, shall
not be required to be sponsored by a Department of the
Government of National Capital Territory of Delhi or a
Ministry of the Central Government.]"
AMENDMENTS EFFECTIVE FROM 09.12.2004
9. The scope of amendments carried out in 2002 was
expanded to include higher/technical educational
institutes apart from hospital/dispensary. This is so to
facilitate allotment of land at pre-determined rates to a
company, firm or trust not only for a hospital/dispensary
but also for a higher / technical educational institute.
AMENDED RULES READ AS UNDER:
"4. Persons to whom Nazul land may be allotted
[(1)] The Authority may, in conformity with the plans,
and subject to the other provisions of these rules, allot
nazul land to individuals, body of persons, public and
private institutions, cooperative house building
societies, other cooperative societies of individuals,
cooperative societies of industrialists and to the
departments of the Central Government, State
Governments and the Union Territories.
[(2) The Authority may, in conformity with the plans,
and subject to the other provisions of these rules, allot
nazul land to a company, firm or trust or the purpose of
the establishment of (hospitals, dispensaries or
higher/technical education institutes.)]
5. Rules of premium for allotment of Nazul land
to certain public institutions.
The Authority may allot Nazul land to schools, colleges,
universities, hospitals, other social or charitable
institutions, religious, political, semi-political
organizations and local bodies or remunerative, semi-
_____________________________________________________________________________________________
remunerative or un-remunerative purposes at the
premia and ground rent in force immediately before
the coming into force of these rules, or at such rates as
the Central Government may determine from time to
time.
[Explanation - For the purpose of this rule the
expressions "colleges", "universities" and "hospitals"
do not include higher/technical education institutes or
hospitals or universities established by a company,
firm or trust, as the case may be, as referred to in sub-
rule (2) of Rule 4.]
8. Manner of allotment - Save as otherwise provided
in rules 5, 6 and 7, allotment of Nazul land for a
residential purpose, an industrial purpose, [a
commercial purpose, or for the purpose of the
establishment of {hospitals, dispensaries or
higher/technical education institutes}] or any other
purpose shall be made on payment of such premium as
may be determined either by auction or by tender in
accordance with the provisions of these rules.
20. Allotment to certain public institutions - No
allotment of Nazul land to public institutions referred to
in rule 5 shall be made unless -
(a) according to the aims and objects of that public
institution -
(i) it directly subserves the interests of the population
of the Union Territory of Delhi;
(ii) it is generally conducive to the planned
development of the Union Territory of Delhi;
(iii) it is apparent from the nature of work to be carried
out by that public institution, that the same cannot,
with equal efficiency be carried out elsewhere than
in that Union Territory.
(b) it is a society registered under the Societies
Registration Act, 1860 (21 of 1860) or such institution is
owned and run by the Government or any Local
Authority, or is constituted or established under any law
[for the time being in force or it is a company, firm or
trust for the purpose of establishment of hospital or
dispensary];
(c) it is of non-profit making character;
(d) it is in possession of sufficient funds to meet the
cost of land and the construction of buildings for its use;
and
(e) allotment to such institution is sponsored or
recommended by a [Department of the Government of
National Capital Territory of Delhi] or a Ministry of the
Central Government:
[PROVIDED that in case of allotment to a company, firm
or trust for the purpose of establishment of {hospitals
or dispensaries or higher/technical education institutes}
by tenders or auction, as the case may be, such
company, firm or trust, as the case may be, shall not be
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required to be sponsored by a Department of the
Government of National Capital Territory of Delhi or a
Ministry of the Central Government.]"
AMENDMENTS EFFECTIVE FROM 19.04.2006
10. The last set of amendments is very crucial to the matter
in issue. Rule 4(1) of the said Rules was amended to
include firms and companies eligible for allotment of
Nazul land. Rule 4(2) of the said Rules was amended so
that the authority shall dispose of the Nazul land by
auction to the following institutions:
i) Hospitals;
ii) Dispensaries;
iii) Nursing Homes;
iv) Higher or Technical Institutions;
v) Community Halls;
vi) Clubs;
vii) Schools;
11. Rule 5 of the said Rules was amended whereby subject to
the other provisions of the said Rules, DDA could allot
Nazul land to schools, colleges, universities, hospitals
and other social and charitable institutes at premia and
ground rent in force. In turn Rule 8 of the said Rules was
amended providing that save as otherwise provided in
Rule 4(2) & Rules 5 to 7 of the said Rules, allotment of
Nazul land for any purpose shall be made on such premia
as may be determined either by auction or by tender.
Rule 20 was also amended by the addition of a proviso
specifying that nothing in that rule shall apply to
provisions of Rule 4(2) of the said Rules. Amended rules
read as under:
"4. Persons to whom Nazul land may be allotted
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[(1)] The Authority may, in conformity with the plans, and
subject to the other provisions of these rules, allot nazul
land to individuals, body of persons, firms, companies,
public and private institutions, cooperative house
building societies, other cooperative societies of
individuals, cooperative societies of industrialists and to
the departments of the Central Government, State
Governments and the Union Territories.
[(2) The Authority may, in conformity with the plans, and
subject to the other provisions of these rules, dispose of
nazul land by auction to the following institutions:
a) Hospitals;
b) Dispensaries;
c) Nursing homes;
d) Higher or technical institutions;
e) Community halls;
f) Clubs;
g) Schools.
5. Rules of premium for allotment of Nazul land to
certain public institutions.
The Authority may allot Nazul land to schools, colleges,
universities, hospitals, other social or charitable
institutions, religious, political, semi-political
organizations and local bodies or remunerative, semi-
remunerative or un-remunerative purposes at the premia
and ground rent in force immediately before the coming
into force of these rules, or at such rates as the Central
Government may determine from time to time.
8. Manner of allotment - Save as otherwise provided
in sub-rule 2 of rule 4, rules 5, 6 and 7, allotment of
Nazul land for any purpose shall be made on payment of
such premium as may be determined either by auction or
by tender in accordance with the provisions of Chapter III
or Chapter IV, as the case may be, of these rules.
20. Allotment to certain public institutions - No
allotment of Nazul land to public institutions referred to in
rule 5 shall be made unless -
(a) according to the aims and objects of that public
institution -
(i) it directly subserves the interests of the population of
the Union Territory of Delhi;
(ii) it is generally conducive to the planned development
of the Union Territory of Delhi;
(iii) it is apparent from the nature of work to be carried
out by that public institution, that the same cannot,
with equal efficiency be carried out elsewhere than in
that Union Territory.
(b) it is a society registered under the Societies
Registration Act, 1860 (21 of 1860) or such institution is
owned and run by the Government or any Local
Authority, or is constituted or established under any law
[for the time being in force or it is a company, firm or
_____________________________________________________________________________________________
trust for the purpose of establishment of {hospitals,
dispensaries or higher/technical education institutes}];
(c) it is of non-profit making character;
(d) it is in possession of sufficient funds to meet the cost
of land and the construction of buildings for its use; and
(e) allotment to such institution is sponsored or
recommended by a [Department of the Government of
National Capital Territory of Delhi] or a Ministry of the
Central Government:
[PROVIDED that in case of allotment to a company, firm
or trust for the purpose of establishment of {hospitals or
dispensaries or higher/technical education institutes} by
tenders or auction, as the case may be, such company,
firm or trust, as the case may be, shall not be required to
be sponsored by a Department of the Government of
National Capital Territory of Delhi or a Ministry of the
Central Government.]"
[Provided that nothing in this rule shall apply to the
provisions of sub-rule (2) of rule 4.]"
THE PETITIOENRS' CASE
12. It is the case of the petitioners that after they received
the requisite sponsorship and completed the other
formalities, their cases were placed before the
Institutional Allotment Committee („IAC‟ for short). The
meeting of the IAC was held on 13.03.2003 and
17.03.2003. The cases of the petitioners were
recommended, but it is not in dispute that the allotment
actually did not take place. By virtue of the
amendments, the DDA is entitled to either auction the
land or allot land at pre-determined rates for
establishment of higher/technical education institutes,
schools or hospitals, but no proper safeguard or
guidelines have been put in force as to whom land is to
be allotted and by which mode. The case of the
petitioners is that despite being cleared by the IAC, the
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right of allotment, which ought to have accrued within a
reasonable time, did not materialize.
13. It is the plea of the petitioners in petitions dealing with
Higher/Technical Education Institutes and Schools that
the right to education should be treated on a different
pedestal and thus the Government is duty-bound to
provide cheaper land to private institutions facilitating
this activity as otherwise it would have a deleterious
impact on the right to education. Learned counsel
sought to derive strength for their arguments by relying
upon Articles 21 and 41 of the Constitution of India and
the observations made by the Supreme Court in
T.M.A.Pai Foundation v. State of Karnataka; (2002) 8 SCC
481 that there should be no profiteering in education.
The public interest element in this behalf was
emphasized by reference to the Judgment of the
Supreme Court in Meerut Development Authority v.
Association of Management Studies and Anr. (2009) 6
SCC 171. In the facts of the said case, the Meerut
Development Authority (MDA) had made available land to
institutions imparting education in engineering at
concessional rates of 50 per cent of the sector rates,
which was stated to take care of the public interest
parameter. Thus, it was found that the State had made
effective provisions for securing right to education by
resolving to make land available at concessional rates
_____________________________________________________________________________________________
with a view to give effect to Directive Principles of State
Policy enshrined under Article 41 of the Constitution of
India.
14. The petitioners also sought to draw strength from The
Delhi Professional Colleges or Institutions (Prohibition of
Capitation Fee, Regulation of Admission, Fixation of Non-
Exploitative Fee and Other Measures to Ensure Equity
and Excellence) Act, 2007 („Act of 2007‟ for short). The
Act of 2007 was enacted with the object of prohibiting
capitation fee, regulation of admission, fixation of non-
exploitative fee, allotment of seats to Scheduled Castes,
Scheduled Tribes and other socially and economically
backward classes and other measures to ensure equity
and excellence in professional education in the National
Capital Territory of Delhi. The Act of 2007 is to apply to
unaided institutions affiliated to a University imparting
education in degree, diploma and certificate courses.
Section 5 of the Act of 2007 especially prohibits
collection of capitation fee and enjoins the State
Government to set up a Fee Regulatory Committee under
Section 6 of the Act of 2007. In terms of Section 7 of the
Act of 2007, one of the factors for determination of the
fee as per clause (b) thereof is the available
infrastructure including allotment cost of land. Section
10 of the Act of 2007 prohibits collection of excessive
fee. The submission thus is that on the one hand
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commercialization of education is sought to be prohibited
in an endeavour to make education available at
reasonable rates to public at large, while on the other
hand, contrary to this intent, land is sought to be
auctioned at market rates. It is contended that the high
prices paid for the land at auction would in turn affect the
fee to be fixed by the Fee Regulatory Committee and
would thus burden the students.
15. It is the submission of learned counsel for the petitioners
that even post the amendments carried out with effect
from 19.04.2006, the rights of the petitioners cannot be
affected. This plea is predicated on the construction of
the said Rules. Rule 4(2) of the said Rules though refers
to disposal of Nazul land by auction or by tender to the
institutions mentioned in clauses (a) to (g) of Rule 4(2) of
the said Rules, Rule 5 of the said Rules permits the Nazul
land to be allotted to the different institutions mentioned
therein at pre-determined rates. The manner of
allotment is specified in Rule 8 of the said Rules, but the
same is followed by Rule 20 of the said Rules which deals
with the allotment to certain public institutions under
Rule 5 of the said Rules. Learned counsel for the
petitioners also drew our attention to the definition of
„pre-determined rates‟ in Section 2(l) of the said Rules
which is based on cost of acquisition, development
charges and concessional charges for use and
_____________________________________________________________________________________________
occupation. It is thus the submission of learned counsel
for the petitioners that the Rule of Harmonious
Construction should be applied which in turn would imply
that the allotment under Rule 4(2) of the said Rules can
be made not only by auction, but also at pre-determined
rates. A wider meaning is sought to be given to the word
„allot‟. Learned counsel referred to the judgments in
Jagdish Singh v. Lieutenant Governor Dehi & Ors.; AIR
1977 SC 2239, Sultana Begum v. Prem Chand Jain;
(1997) 1 SCC 373 and State of Rajasthan v. Gopi Kishen
Sen; 1993 Supp (1) SCC 522, which set out the Rule of
Harmonious Construction. It is thus pleaded that all
the modes are open for allotment of land and lands can
be allotted at pre-determined rates to the petitioners for
which recommendations were already made by the IAC.
16. Learned counsel for the petitioners submitted that once
the conditions as laid down in Rule 20 of the said Rules
are satisfied, a society can be allotted land under Rule 5
of the said Rules at pre-determined rates for any of the
three purposes, to meet the plea of learned counsel for
DDA that Rule 5 of the said Rules is the controlling Rule
and the requirements in Rule 20 of the said Rules are in
addition.
17. Learned counsel for the petitioners also drew our
attention to the order dated 27.09.2001 issued by the
Directorate of Education in terms whereof the LG was
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pleased to re-constitute the Land Allotment Committee
with the terms of reference providing that the allotment
of land to the private educational societies would be
made by the DDA strictly on the basis of the decision of
the Land Allotment Committee and as per the priorities
fixed by the Land Allotment Committee, which would not
be reviewed by the DDA. The submission thus is that
once the Land Allotment Committee has recommended
allotment, the order itself envisages that no other
authority should interfere in the process of allotment.
DEFENCE OF DDA
18. Mr. Rajiv Bansal, the counsel appearing for DDA,
submitted that the expression „allot‟ has been used in the
aforesaid Rules in the ordinary sense, i.e., to apportion or
to distribute. The allotment can be on the basis of
auction or tender or pre-determined rates. While Rule 26
of the said Rules provides for allotment by way of
auction, Rule 33 of the said Rules provides for allotment
by way of tender.
19. Rule 4(1) of the said Rules refers to the entities whether
natural or juristic, to whom land allotment can be made.
And as per the currently amended Rules in force, the
allotments are to be made by auction for purposes set
out in clauses (a) to (g) of Rule 4(2) of the said Rules.
Thus, it is only through the auction mode that such
allotment has to be made, but the proviso carves out an
_____________________________________________________________________________________________
exception for allotment of land to the Central
Government, a State Government, a Union Territory or
local bodies who may get allotment of land at pre-
determined rates even for purposes set out in clauses (a)
to (g) of Rule 4(2) of the said Rules. Rule 5 of the said
Rules refers to allotment of land at pre-determined rates.
It only gives discretion to the authority to allot Nazul land
at pre-determined rates if the conditions prescribed are
satisfied, but no person, learned counsel for the DDA
contended, could claim an inherent right to get such land
at pre-determined rates. The provisions are clear in their
terms and it was submitted that if Rules 4 and 5 of the
said Rules are read together, there was no inconsistency
or disharmony which require the aid of Rule of
Harmonious Construction.
20. The interpretation put forth in respect of Rule 5 of the
said Rules is that it permits the DDA to allot Nazul land at
pre-determined rates even to schools, colleges,
universities and hospitals, but these four categories are
followed by the words „other social or charitable
institutions'. Thus, only schools, colleges, universities or
hospitals which are run for charitable purposes would be
entitled to such allotment at pre-determined rates as the
expressions should be read ejusdem generis. The
aforesaid interpretation is also sought to be supported by
the frame of Rule 20 of the said Rules which deals with
_____________________________________________________________________________________________
allotment to certain public institutions. The Rule 20 of
the said Rules begins with "No allotment of Nazul land to
public institution referred to in Rule 5 shall be made
unless ...." Rule 5 and Rule 20 of the said Rules are thus
stated to be applicable to public institutions and Rule 5 of
the said Rules had to be worded in this manner for
providing allotment of lands at pre-determined rates to
institutions, say, for the blind, under-privileged children
or children with special needs. Rule 20 of the said Rules,
as per its sub clauses, lays down the pre-conditions
without which the land cannot be allotted to anyone at
pre-determined rates and thus prescribes the manner
and condition in which Rule 5 is to operate. This is the
reason why the proviso to Rule 20 of the said Rules
specifically states that nothing stated in the said Rule
would apply to provisions of Rule 4(2) of the said Rules.
21. The aforesaid interpretation is also sought to be
supported by the factual matrix. In this behalf,
Resolution dated 15.12.2003 has been referred to when
the Policy for Allotment of Land to Higher/Technical
Educational Institutions was considered. It was resolved
that the new policy would be implemented in a fair and
transparent manner and that allotment of land to
educational institutions running on commercial lines
should be made through auction including the cases
where allotment was yet to be made. In a meeting held
_____________________________________________________________________________________________
under the Chairmanship of the LG on 09.11.2004, The
Summary Record of Discussions on Institutional
Allotment records a decision taken that all pending IAC
recommendations would abate. Thus, unless land had
already been allotted and a communication in that
regard was duly sent, the uniform decision was to pursue
the auction mode for the allotment of land. Learned
counsel for the DDA also emphasized that insofar as the
larger question of providing education at reasonable
rates is concerned, the recent legislation, i.e., The Right
of Children to Free and Compulsory Education Act, 2009
{„the Act of 2009‟ for short}, which has received the
assent of the President on 27.08.2009, takes care of this.
The definition of a „School‟ under Section 2(n) of the Act
of 2009 includes unaided schools not receiving any kind
of aid or grant to meet its expenses. Section 12 of the Act
of 2009 provides for extent of a school‟s responsibility for
free and compulsory education and 25 per cent of the
strength of each school is to be filled by children
belonging to weaker sections and disadvantaged groups
in the neighbourhood. Thus, the legislature has taken
due care of the mandate of Article 21 and Article 41 of
the Constitution of India for providing education.
Learned counsel emphasized that the larger issue was
only a bogey being raised by the petitioners and relied
upon the observations made in para 50 of the judgment
_____________________________________________________________________________________________
in Meerut Development Authority v. Association of
Management Studies and Anr.‟s case (supra) as under:
"50. We are, however, of the opinion that the
effort, if any, made by MDA to augment its
financial resources and revenue itself cannot be
said to be unreasonable decision. It is well said
that the struggle to get for the State the full value
of its resources is particularly pronounced in the
sale of State owned natural assets to the private
sector. Whenever the Government or the
authorities get less than the full value of the
asset, the country is being cheated; there is a
simple transfer of wealth from the citizens as a
whole to whoever gets the assets "at a discount".
Most of the times the wealth of a State goes to
the individuals within the country rather than to
multinational corporations; still, wealth slips away
that ought to belong to the nation as a whole."
(emphasis supplied)
It was, thus, submitted that once the legislature has
provided for proper education through an enactment of
Parliament, it is not open to the petitioners to claim that
land should be made available to them at cheaper rates.
This would amount to giving discount to these institutions
at the cost of the larger public as observed aforesaid.
22. Learned counsel for the DDA also emphasized that
undisputedly no allotment letters had been issued and
ultimate authority vested with the LG. The Office Order
dated 27.09.2001 could not, and did not, take away the
authority of the LG, but was passed with the objective at
that time of preventing any other authority from dealing
with the issue of allotment of land for educational
purposes which was dependent on the IAC
recommendations. The final authority still vested with
the LG.
_____________________________________________________________________________________________
23. No communication for allotment of land had been sent
and the mere recommendations of IAC, it was pleaded,
would not confer any right in the petitioners for allotment
of land. In this behalf, learned counsel for the DDA relied
upon the observations made in Sethi Auto Service Station
and Anr.v. Delhi Development Authority and Ors.; (2009)
1 SCC 180 where it was observed that notings made in
the departmental file do not have the sanction of law to
be an effective order. The relevant observations made in
para 14 to 16 of the said judgment are as under:
"14. It is trite to state that notings in a
departmental file do not have the sanction of law
to be an effective order. A noting by an officer is
an expression of his viewpoint on the subject. It
is no more than an opinion by an officer for
internal use and consideration of the other
officials of the department and for the benefit of
the final decision-making authority. Needless to
add that internal notings are not meant for
outside exposure. Notings in the file culminate
into an executable order, affecting the rights of
the parties, only when it reaches the final
decision-making authority in the department;
gets his approval and the final order is
communicated to the person concerned.
15. In Bachhittar Singh v. The State of Punjab;
AIR 1963 SC 395, a Constitution Bench of this
Court had the occasion to consider the effect of
an order passed by a Minister on a file, which
order was not communicated to the person
concerned. Referring to the Article 166(1) of the
Constitution, the Court held that order of the
Minister could not amount to an order by the
State Government unless it was expressed in the
name of the Rajpramukh, as required by the said
Article and was then communicated to the party
concerned. The court observed that business of
State is a complicated one and has necessarily
to be conducted through the agency of a large
number of officials and authorities. Before an
action is taken by the authority concerned in the
_____________________________________________________________________________________________
name of the Rajpramukh, which formality is a
constitutional necessity, nothing done would
amount to an order creating rights or casting
liabilities to third parties. It is possible, observed
the Court, that after expressing one opinion
about a particular matter at a particular stage a
Minister or the Council of Ministers may express
quite a different opinion which may be opposed
to the earlier opinion. In such cases, which of the
two opinions can be regarded as the "order" of
the State Government? It was held that opinion
becomes a decision of the Government only
when it is communicated to the person
concerned.
16. To the like effect are the observations of this
Court in Laxminarayan R. Bhattad and Ors. v.
State of Maharashtra and Anr.;(2003) 5 SCC 413,
wherein it was said that a right created under an
order of a statutory authority must be
communicated to the person concerned so as to
confer an enforceable right".
(emphasis supplied)
OUR CONCLUSIONS
24. We have given our thoughtful considerations to the
matter in issue. We are of the considered view that the
matter in issue pertains really only to reading and
interpretation of the Rules as the intent of the legislature
is translated into statutory provisions by enactment.
25. Before we come to the interpretation of the Rules, we
must notice that undoubtedly in order to prevent
multifarious authorities dealing with the matter of
allotment of land, the Office Order dated 27.09.2001,
was passed. This Office Order, issued by the Joint
Director of Education, only provided that the decision of
the Land Allotment Committee regarding allotment of
land to private educational institutions would be followed.
_____________________________________________________________________________________________
Such a decision, however, in our view, cannot in any
manner dilute the ultimate authority of the LG to take a
decision whether to allot or not. The Resolution dated
15.12.2003, and the file notings placed on record, show
that a conscious decision was taken to initially keep the
matter in abeyance without issuance of any allotment
letter and thereafter it was resolved that such allotment
should only take place by way of auction. The reason
appears to be that there were various complaints about
the institutions to whom land was allotted in such a
manner and it was felt that transparency would be best
served through the auction mode despite the land being
utilized for educational purposes. To serve that purpose,
it was decided to make necessary amendments to the
said Rules. There can really be no doubt that the mere
recommendations of the IAC would not confer any right
whatsoever unless a decision taken on the file is
approved by the competent authority and thereafter
communicated to the beneficiary. The decision in Sethi
Auto Service Station and Anr.v. Delhi Development
Authority and Ors.‟s case (supra) which also relies upon
the earlier pronouncements including in the case of
Bachhittar Singh v. The State of Punjab; AIR 1963 SC 395,
leaves no manner of doubt in this behalf.
26. To constitute an enforceable right, the decision of the
statutory authority has to be duly communicated. In the
_____________________________________________________________________________________________
present case, there was no such communication. In view
of the aforesaid factual matrix, regardless of any internal
decision taken prior to the final picture that has emerged
under the Rules, since no allotment had actually been
made till then, it is the finally amended Rules which
would govern the rights and obligations of the parties.
We have to thus see the Rules as they stood in 2006 with
the amendments carried out therein with effect from
19.04.2006.
27. Rule 3 of the said Rules provides for allotment of land for
certain purposes. It does not say the manner of
allotment. It has been rightly noticed that under the
said Rules only three modes are envisaged - auction,
tender and pre-determined rates. Rule 4 of the said
Rules in turn stipulates the entities to whom such Nazul
land could be allotted. Under the earlier Rule 4(1) of the
said Rules, only a co-operative society could be a
beneficiary of allotment of Nazul land, but that definition
was expanded by including hospitals, nursing homes and
then by including institutes of higher and technical
education and schools. This Rule 4(1) of the said Rules
when it uses the expression „allot‟ necessarily implies
that any of the three modes of allotment would be
available for allotment of Nazul land to these entities.
Rule 4(2) of the said Rules clarifies the picture. It
specifically provides the mode of disposal by auction of
_____________________________________________________________________________________________
Nazul land to the institutions mentioned thereunder from
clauses (a) to (g) of Rule 4(2) of the said Rules which
includes hospitals, dispensaries, nursing homes, higher
or technical education institutions, community halls,
clubs and schools, subject of course to the other
provisions of the said Rules. The only exception carved
out is that the same would not affect the allotment of
land to the Central Government, a State Government, a
Union Territory and the local body. After setting forth the
mode of disposal of land to these institutions only by
auction, these Rules are followed by Rule 5. Rule 5 deals
with the premium for allotment of Nazul land to certain
public institutions i.e. through the mode of pre-
determined rates. It begins with „Subject to the
provisions of sub-rule (2) of Rule 4‟. If one reads Rule 4
of the said Rules, it is abundantly clear that only a
particular kind and character of institutions are to get the
benefit of the same. No doubt, the words „schools‟,
„colleges‟, „universities‟ and „hospitals‟ are used in Rule 5
of the said Rules, but these are immediately followed by
the expression „other social or charitable institutions‟.
The first four words, thus, have to be read ejusdem
generis with the latter expression and, therefore, the
logical conclusion is that Rule 5 would include schools,
colleges, universities, hospitals or other social institutions
provided they are also run for charitable purposes. The
_____________________________________________________________________________________________
basis for this has been explained by the learned counsel
for the DDA. Mr. Bansal stated that there are institutions
of this nature, i.e., where education is for blind, under-
privileged or children with special needs, etc., which may
still require land to be made available at pre-determined
rates. We may notice at this stage that one of the
petitions being W.P. (C) No. 7408/2008, which was
tagged with the present lot of writ petitions, dealt with
the case of a society seeking land for setting up a
dispensary to provide free treatment to the poor. In the
said case, it was contended that since no charge at all
was to be levied, it fell squarely within the scope of Rule
5 as defined by learned counsel for DDA himself. He
stated that this petition be segregated since he needs to
seek further instructions from the DDA keeping in mind
the provisions of Rule 5 of the said Rules. That has
already been done. Rule 8 of the said Rules makes it
abundantly clear that the mode of allotment is auction or
tender save as otherwise provided in Rule 4(2) & Rules 5
to 7 of the said Rules.
28. That brings us to Rule 20 of the said Rules which deals
with allotment to certain public institutions. It provides
certain stipulations for allotment of land to public
institutions referred to in Rule 5 of the said Rules. It puts
the condition of a non-profit making character and a
sponsorship or recommendation by a Department of
_____________________________________________________________________________________________
Govt. of NCT of Delhi or by a Ministry of the Central
Government as a mandatory requirement apart from the
other clauses. The requirement of sponsorship is,
however, not to apply where the mode of allotment is
through auction. The second proviso attached to this
Rule again makes it clear that nothing in this Rule would
apply to Rule 4(2) of the said Rules. Thus, other than the
case of some special institutes, the clear mode of
disposal of Nazul land for hospitals, dispensaries, higher
or technical education institutes and schools, would
continue to be by way of auction. We are unable to
accept the plea that there is any unguided power
conferred under the said Rules which is capable of being
misused. It is, in fact, the past misuses which gave rise
to the amendments with a view to minimize arbitrary
exercise of excessive discretion.
29. We are, thus, of the considered view that the
interpretation of Rules placed before us by the DDA is the
correct view and the petitioners have no case in this
behalf in view of no allotment having matured in their
favour prior to the amendments of the said Rules.
30. We may also notice that the endeavour of the petitioners
to raise a larger issue of Article 21 and Article 41 of the
Constitution of India, is not of much avail. Firstly, as
observed in Meerut Development Authority v. Association
of Management Studies and Anr.‟s case (supra), that a
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State must get full value of its resources because
otherwise it benefits a certain section „at a discount‟ to
the detriment of the larger public and thus the „wealth
that ought to belong to the nation as a whole slips away‟.
Secondly, in furtherance of the Directive Principles
contained in Section 41 of the Constitution of India, the
legislature in its wisdom has enacted the Act of 2009. It
more than takes care of the object of providing education
at private institutions to the under privileged and weaker
sections of the society. It deals with different
eventualities. The petitioners cannot hide behind the
provisions of the Act of 2007 which seek to regulate the
unaided institutions with the object of preventing
profiteering. The Fee Regulatory Committee constituted
under Section 6 of the said Act is to be guided by factors
set out in Section 7 of the Act of 2007. Thus, allotment
cost of land is one factor to be taken care of. The result
would be that the fee would be determined keeping in
mind the cost of land to the institution. That being the
position, an institution can charge appropriate fee from
the students and the rights of economically weaker
sections and under privileged are taken care of by the
Act of 2009.
31. We may add that, in our considered view, the ratio of
T.M.A. Pai Foundation v. State of Karnataka‟s case
(supra) has not been correctly appreciated by the
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petitioners. What has been prohibited by the judgment is
profiteering in education. The word „profiteering‟ has
been defined in Black‟s Law Dictionary Sixth Edition as
under:
"Profiteering: Taking advantage of unusual or
exceptional circumstances to make excessive
profits; e.g. selling of scarce or essential
goods at inflated prices during time of
emergency or war."
In Concise Oxford Dictionary, 8th Edition, „Profiteering‟
has been defined as under:
"Profiteering: Make or seek to make
excessive profits specially illegally or in black
market conditions."
Thus, what is prohibited is making excessive profits
especially illegally. It is not as if no profit can be made.
Not only that, it is not the case of the petitioners that no
profit element will be involved in the working of their
institutions, but only that the price of education will
increase on account of increase of cost of land. This
aspect is taken care of by the Act of 2007. Under the
circumstances and looking to the meaning of the
expression "profiteering", as extracted above, it cannot
be said that merely because the cost of education to
citizens might increase, it will lead to profiteering by
educational institutions.
32. We are, thus, of the unequivocal view that under the
existing Rules, it is the mode of auction which is available
for disposal of the Nazul land for higher and technical
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education institutes, schools and hospitals other than
cases which fall within the domain of Rule 5 r/w Rule 20
of the said Rules. The petitioners do not fall in this
category.
33. The writ petitions are accordingly dismissed leaving the
parties to bear their own costs.
SANJAY KISHAN KAUL, J.
MARCH 25, 2011 SUDERSHAN KUMAR MISRA, J.
dm
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