Sharma Montessori Sch.& Oriental ... vs Socy Vs. Uoi & Ors
2013 Latest Caselaw 1822 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of Decision: 23.04.2013

+      W.P.(C) 3219/2000

       SHARMA MONTESSORI SCH.&

       ORIENTAL COLLEGE                                              ..... Petitioner

                             Through:   Mr. B. Krishan, Adv.

                    versus



       SOCY VS. UOI & ORS                                        ..... Respondent

                             Through:   Mr Sachin Datta, Adv. for UOI

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                             JUDGMENT

V.K.JAIN, J. (ORAL)

The petitioner before this Court is a society stated to be running a number of schools in Delhi. The case of the petitioner is that it started running a middle school under the name of Sharma Montessori School on a plot of land belonging to the government in Minto Roa area of New Delhi. This is also the case of the petitioner that on 22.7.1954, a temporary allotment of the aforesaid piece of land was made to the petitioner by the Land & Development Office, on a temporary basis. Since the aforesaid land was sought to be allotted to Mata Sundari College, vide letter dated 5.9.1975 issued by the Land & Development Office, the respondents allotted an alternative piece of land measuring 0.68 acres to the petitioner in lieu of the land which it was using for running the aforesaid school. The allotment was made on

purely temporary basis and the salient terms and conditions of allotment read as under:

"(iii) The new alternative site is only in lieu of the present old site on purely temporary basis and the school authorities will be allowed to put up only light removable structure of purely temporary character;

(iv) The school authorities will first surrender and hand over the vacant possession of the existing site in their occupation.

(v) The possession of the new site now being allotted shall be given only after the vacant possession of the existing site is handed over back to this office.

(vi) This temporary allotment will not entitle the school to claim for allotment of the site on permanent basis.

(vii) The school authorities shall also execute a temporary lease at their own cost.

(viii) The lease shall be on purely temporary year to year basis."

2. The temporary lease in respect of the aforesaid plot was executed in favour of the petitioner in the year 1976 and was last extended up to 1978 a is evident from the letter number L-V-S(183)/81 dated 29.9.1981 sent by the respondent to the petitioner. Vide the aforesaid letter dated 29.9.1981, the petitioner was informed that the aforesaid site was now required for allotment to G.B. Pant Hospital and, therefore, no extension of the temporary lease would be given. The petitioner was accordingly requested to hand over possession of the aforesaid land to the officials of Land & Development Office. Since the petitioner failed to vacate the aforesaid piece of land, the proceedings under Public Premises (Eviction of

Unauthorized Occupants) Act, 1971 were initiated against it. A show cause notice under Section 4 and the other under Section 7 of the aforesaid Act were issued to the petitioner by the Estate Officer, calling upon it to show cause as to why eviction order be not passed in respect of the aforesaid land and why it be not directed to pay damages in respect of the said land from 1978 onwards.

3. During pendency of the said proceedings, this writ petition was filed seeking the following reliefs:

"A Issue a writ of prohibition prohibiting the 3rd respondent from proceeding further on the impugned notices dated 24.5.2000 for eviction/ recovery of damages issued by the Estate Officer (respondent no.3) purportedly under Section 4 and 7 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971.

(B) Issue writs, orders, and directions of appropriate nature to the respondents thereby directing them to formally regularize the allotment/ lease for the past period and to grant perpetual lease in respect of the entire plot of land in occupation of the petitioner society within such time limit as may be fixed by this Hon'ble Court."

4. The case of the respondents is that though a piece of land measuring 0.68 acres of land at Minto Road was allotted to the petitioner on temporary basis (year to year) for running a school and the said temporary lease was extended upto 4.9.1978, considering the requirement for extension of Maulana Azad Medical College, Irwin Hospital and G.B. Pant Hospitals and decision was taken to allot the aforesaid land to the hospitals and accordingly they requested the petitioner to vacate the same. This is also the case of the respondent that as per the Zonal

Development Plan of this area, the land in question is to be used for an hospital and, therefore, it cannot be allotted to the petitioner for running a school. It would be pertinent to note here that the petitioner had applied to the Government for allotment of the aforesaid plot to it and the Deputy Director of Education vide a communication dated 3.5.1982 had informed the petitioner that its application seeking allotment of the aforesaid land had been sent to Government of India, Ministry of Works and Housing, duly recommended by them. The petitioner was also informed that the premium @ Rs.6 lac per acre + ground rent @ two and a half percent of the land premium as applicable to recognized unaided schools shall be payable by it on allotment of the land.

5. The only question which comes up for consideration in this writ petition is as to whether the petitioner is entitled to allotment of the land occupied by it, on a regular basis. As noticed earlier, as per the zonal plan of the area, the land under occupation of the petitioner falls in the area earmarked for a hospital. It is not permissible even for the government to allot a land which under the Zonal Development Plan is earmarked for use of hospitals, for a different purpose. Therefore, no direction can be given to the respondents to allot the land in question to the petitioner for running a school. This by itself is a good ground, to reject the prayer of the petitioner for a direction to allot the land in question to it on a regular basis for running a school.

6. Relying upon a letter dated 6.10.1975 written by the Deputy Minister of Works and Housing, to the members of Parliament and the President of the petitioner society, it is contended by the learned counsel for the petitioner that an assurance had been given by the government to allot the aforesaid land to the petitioner, the only requirement left being to formalize the said decision by issuing

a letter of allotment to the petitioner. I, however, find no merit in the contention. The aforesaid letter to the extent it is relevant reads as under:

"While I appreciate the difficulties of the Association, permanent allotment of a plot of land to the school is not feasible till the revised Zonal Development Plan of the area is approved, the site redeveloped and the plots demarcated. As such the Association may have to accept allotment of the site made to it on a temporary basis. The claim of the Association for allotment of a plot on permanent basis will be duly considered at the appropriate point of time"

7. It is evident from a perusal of this letter that permanent allotment of land in question to the petitioner for running a school was not found feasible till the time the revised zonal plan of the area was approved. The Zonal Development Plan of the area having already been approved and the land in question having been earmarked for a hospital, no reliance on this letter can be placed by the petitioner to seek allotment of land in question for running a school. In any case, this letter contains no decision of the government to allot, land in question to the petitioner, on permanent basis.

The learned counsel for the petitioner stated that he had inspected the relevant file of the government, and there was a proposal in the file to allot land in question to the petitioner. It is by now well settled proposition of law that any proposal mooted or even a decision taken by the Government in its file or by way of a letter such as the letter being relied upon by the learned counsel for the petitioner cannot be enforced through the process of law. Only a decision which is taken by the Competent Authority as per the business rules of the government and is duly communicated to the persons concerned, can be sought to be enforced

through the process of the Court. Therefore, a DO letter written by the Deputy Director of Works & Housing does not constitute an enforceable decision of the government.

The following observations made by Supreme Court in Shanti Sports Club and anr. Vs. Union of India (UOI) and Ors [2009 (15) SCC 705] are pertinent with respect to notings/opinions recorded by the Government Officers/Ministers on the file:

A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government, unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.

In Sethi Auto Service Station v. DDA (2009) 1 SCC 180 Supreme Court observed as under:

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.

In any case, as noted earlier, even this letter does not contain any decision of the government to allot land in question to the petitioner on permanent basis. By way of this letter, only an assurance was sought to be given to the President of the petitioner society that the claim of the society for allotment of the aforesaid land on permanent basis would be considered at an appropriate time after the Zonal Development Plan of the area was approved, the sites were re-developed and the plots were demarcated, which clearly means that such a consideration had to be in conformity with the Zonal Development Plan, as and when such a plan was prepared. The Zonal Development Plan earmarking the land in question for a hospital, it would not be open to the government to allot this land to the petitioner for running a school.

8. It is contended by the learned counsel for the petitioner that some other societies which applied later than the petitioner were allotted land whereas request of the petitioner society has not been acceded to by the government. In this regard, the learned counsel for the petitioner drew rmy attention to the following averments made in the petition:

"(O) That the principle of Promissory Estoppel warrants that the respondents should refrain themselves from taking a negative approach towards demolition of the school at Mata Sundri Road. On the contrary it warrants a positive thinking of Establishing the school in a proper manner by allowing perpetual lease in respect of the plot of land. The petitioners are being discriminated against the similar other

societies who have been allotted land on regular basis by ignoring the claim of the petitioner society. Those societies who have come up much after the petitioner society are not being asked to vacate. Only the petitioner society is being singled out. This is violative of the provisions of Article 14 of the Constitution of India."

A list of the schools/ societies referred in the aforesaid para of the writ petition has been filed by way of a supplementary affidavit filed on 15.7.2003.

9. I find no merit in the plea of discrimination taken by the petitioner. In order to make out a case of hostile discrimination, the petitioner is required to establish that the societies which were allotted land by the respondent were similarly situated societies and the petitioner has been discriminated against in this regard. No such averment has however been made in the writ petition. This is not the case of the petitioner, in the writ petition, that all these societies were also allotted land on temporary basis and thereafter they sought allotment on a regular basis, and later their allotment was not extended resulting in institution of proceedings against them under Public Premises (Eviction of Unauthorized Occupants) Act. This is also not the case of the petitioner that the land allotted to these societies was earmarked for the Zonal Development Plan for the purpose other than that for which the same was allotted to the societies. Therefore, there is no merit in the plea alleging discrimination with the petitioner society.

10. It was lastly contended by the learned counsel for the petitioner that it would not be appropriate to uproot the school which is being run since the year 1948 and, therefore, the occupation of the land in question needs to be regularized so as to protect the interest of the children. However, a perusal of the additional affidavit of Deputy Land and Development Officer filed on 19.4.2005 would show that

pursuant to the order of this Court inspection of the land in question was carried out, was found that no school was functioning, and there was no student or teachers. In its reply to the aforesaid additional affidavit, the petitioner stated that the aforesaid school was being run till the academic year ending March, 2004. It is thus admitted that the land in question is no more being used for running a school. Therefore, the considerations pleaded by the learned counsel for the petitioner do not come into picture at all.

11. For the reasons stated hereinabove, I am of the considered view that the petitioner is not entitled to allotment of land in question either on regular or any other basis. The proceedings under Public Premises Act, 1971 have already been instituted against the petitioner and are pending. I am informed that no order has so far been passed in those proceedings. The petition is devoid of any merit and is hereby dismissed. Interim order, if any, stand vacated. There shall be no orders as to costs.

                                                                          V.K. JAIN, J

APRIL        23, 2013/rd