Shubit Education Society vs Govt. Of Nct & Ors.
2013 Latest Caselaw 879 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment reserved on: 19.02.2013
                               Judgment pronounced on : 21.02.2013


+      LPA 724/2012 and CM No. 18578/2012 (placing additional
       documents)



       SHUBIT EDUCATION SOCIETY                            ..... Appellant

                         Through: Mr Sandeep Sethi, Sr. Adv with
                         Mr Gaurav Mitra, Mr Shivshankar Panicker and
                         Mr Vineeth Advs.

                         versus

       GOVT. OF NCT & ORS.                       ..... Respondents
                     Through: Ms Zubeda Begum with Ms Sana
                     Ansari Advs for Respondents 1 and 2
                     Mr Rajiv Bansal with Mr Rahul Bhandari, Advs
                     for DDA
       CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE V.K. JAIN


V.K. JAIN, J.

1. The appellant society, which was desirous of establishing a middle

school, sought to obtain allotment of land from DDA on which the

proposed school could be set up. One of the requirements of DDA for

allotment of land was Essentiality Certificate to be issued by Directorate

of Education, Delhi in terms of the Rule 44 of Delhi School Education

Rules, 1973. Vide Certificate dated 09.07.2001, Directorate of Education,

Delhi conveyed to the appellant that the Appropriate Authority had

accepted its proposal to establish a new middle school in

Samalkha/Rajokri in Zone XXI of District South West. Vide letter dated

08.01.2002, Directorate of Education, Delhi conveyed to Delhi

Development Authority that the Land Allotment Committee constituted

by Lieutenant Governor had recommended allotment of land to the

appellant-society in Samalkha/Rajokri/Vasant Kunj area of South West

Districts. In its meetings held on 13.02.2003 and 17.02.2003,

Institutional Allotment Committee of Delhi Development Authority

recommended allotment of plot measuring 0.58 hectares in Pocket 8,

Sector „C‟ of Vasant Kunj to the appellant-society. This recommendation

was a part of the recommendations made for allotment of land to 291

such societies. Relying upon the said recommendations, Delhi

Development Authority vide letter dated 28.03.2003, decided to allot land

measuring 5800 square metre/2900 square metre for school building and

2900 square metre for playfield, to the appellant-society, for running a

middle school. Some inquiry came to be initiated by Delhi Development

Authority in respect of such allotments, as many as 12 allotments were

found to be inappropriate and the case of the appellant society was found

to be unfit and not in order. Vide letter dated 02.04.2004, the appellant

society was informed by Directorate of Education that DDA had been

advised by Delhi Government to treat the case of the appellant-society as

not having approval of the Competent Authority and hence withdrawn.

The appellant society, however, was given a fresh opportunity to apply

afresh with proper documentation, including valid Essentiality

Certificate. Vide letter dated 12.05.2004, Directorate of Education issued

a fresh Essentiality Certificate to the appellant under Rule 44 of Delhi

School Education Rules, 1973 for establishing a new school at Vasant

Kunj in Zone XX. Vide letter dated 03.08.2004, the appellant-society

again applied to Directorate of Education for grant of sponsorship to open

a middle school in Vasant Kunj. Delhi Development Authority vide letter

dated 21.08.2004 rejected the application of the appellant for allotment of

land, for want of Essentiality Certificate. On 09.02.2005, the appellant

took back the amount of Rs 1,42,30,000/- which it had deposited for

allotment of land to it.

2. WP(C) No. 19768/2005 was filed by the appellant, challenging the

letter dated 02.04.2004, whereby the Essentiality Certificate dated

09.07.2001 was withdrawn by Directorate of Education. The said writ

petition was dismissed as withdrawn on 08.11.2005 when the Court noted

that in view of the fact that the order impugned itself records that the

petitioner would have a fresh opportunity to apply fresh with proper

documentation, including Essentiality Certificate and the petitioner had

already applied afresh.

3. Vide its resolution dated 19.01.2006, Delhi Development

Authority, in order to strike a balance between a transparent mode of

allotment and social obligation to provide free education to the poor,

formulated a policy, whereby 50% of the school plots were to be placed

at the disposal of the Government and the remaining 25% were to be put

to public auction with a condition that the auction purchaser would be

obliged to provide 25% free ship to students from the poor and weaker

sections of the society. Vide Notification dated 19.04.2006, an

amendment was made in the DDA (Disposal of Developed Nazul Land)

Rules, 1981, which prescribed the mode of disposal of land. The

amended Rules provided for earmarking 50% of the plots to Government

Schools, besides making it mandatory for all the private prospective

auctioneers/bidders to provide 25% free ship to the students from the

weaker sections of the society.

4. The appellant filed WP(C) No.2360/2006 also sought direction to

the said Directorate to sponsor the case of the appellant for allotment of

land and make recommendations to DDA for this purpose. Another

direction sought in the writ petition was to DDA to make allotment on the

basis of recommendations which the Directorate of Education was to

make for establishing a middle school in Vasant Kunj, Zone XX of

District South West. The writ petition having been dismissed by way of

order dated 08.08.2012, the appellant is before us by way of this appeal.

5. It is not in dispute that in view of the provisions contained in

Section 22 of Delhi Development Act, allotment of developed Nazul land

in Delhi can be made by DDA only in terms of the DDA (Disposal of

Developed Nazul Land) Rules, 1981. Admittedly, the amended Rules do

not provide for such allotment of land to any person, company, society or

other entity for setting up a school. Under the Rules, 50% of the plots

meant for construction of school buildings are to be placed at the disposal

of the Government and the remaining 50% of the plots are to be sold by

way of public auction. The contention of the learned counsel for the

appellant is that since the allotment of land was made to the appellant on

28.03.2003 much before the aforesaid Rules were amended, the

respondent cannot apply the amended Rules to the appellant and are

required to consider allotment of land to the appellant-society in terms of

the DDA (Disposal of Developed Nazul Land) Rules, 1981 as they stood

on the date earlier allotment was made.

However, on consideration of the matter, we are unable to accept

the contention made by the learned senior counsel for the appellant. A

perusal of the Essentiality Certificate dated 09.07.2001, issued by

Directorate of Education, Government of NCT of Delhi to the appellant-

society, clearly shows that the said Directorate had accepted the proposal

of the appellant to establish a new middle school in Samalkha/Rajokri in

Zone XXI. Therefore, the aforesaid certificate envisaged setting up a

new school either in Samalkha or in Rajokri which, at that time, fell in

Zone XXI of District South West of Delhi. No proposal was accepted by

the Directorate for establishing a school in Vasant Kunj, which

incidentally also fell in Zone XXI of District South West at the relevant

time and now falls in Zone XX of the aforesaid District. In view of the

Essentiality Certificate being confined to setting up a school in

Samalkha/Rajokri, the sponsorship could not have been granted to the

appellant society for establishing a school in Vasant Kunj. Consequently,

DDA was not competent to allot land to the appellant-society in Vasant

Kunj for setting up a school in terms of the Essentiality Certificate dated

09.07.2001. Since the allotment of land made to the appellant by DDA

was not in consonance with the Essentiality Certificate dated 09.07.2001,

the Directorate of Education, in our view, was absolutely justified in

withdrawing the Essentiality Certificate, issued to the appellant on

09.07.2001, vide its communication dated 02.4.2004.

6. The learned senior counsel for the appellant has drawn our

attention to the decision of a learned Single Judge of this Court dated

04.05.2006 in WP(C) No. 15169/2004 titled as "The Shreeyans

Educational Society v. The Secretary (Education) and Ors. and

submitted that in the this case, the facts were identical since Essentiality

Certificate in that case was also to establish a new school in

Samalkha/Rajokri, which was withdrawn by Directorate of Education

vide letter dated 02.04.2004. The learned Single Judge, while quashing

the impugned letter dated 02.04.2004 for want of show cause notice, also

proceeded to consider the plea taken by the petitioner before him on

merits, considering the fact that the Government had been projecting

different stands in different writ petitions. Reference to the varying stand

taken by the Government was made in the aforesaid order. The learned

Single Judge noted that while responding to WP(C) No. 6413/2001, the

stand taken by the Government was that the recommendations pertained

to zones, did not prohibit allotment of land in nearby localities and the

allotment of land to a society had been upheld in the aforesaid writ

petition holding that the as regards allotment was in zone qua which

sponsorship was issued, the same was valid. It was observed that since

DDA faced difficulties and required latitude in allotting land, it should be

free to allot land even in nearby localities if it could not fulfil the demand

in a particular locality and for which DDA has taken a decision on

18.05.2001. During the course of arguments, the learned senior counsel

for the appellant, in his usual fairness, informed us that in an appeal filed

against the aforesaid order, notice has already been issued by a Division

Bench of this Court and the matter is pending before the Division Bench.

A perusal of the aforesaid judgment would show that in the case of

The Shreeyans Educational Society (supra), the petitioner before this

Court had initially applied for granting Essentiality Certificate for

opening a new middle school in Zone South West, without specifying any

particular colony. When the Directorate of Education asked the petitioner

to submit application for proposed school at some other alternative site,

he gave option for Mahipal, Rajokri, Kishangarh and Samalkha and/or

anywhere in Zone XXI. However, in the case before us, there is no

material before us to indicate that the appellant had applied for opening a

school anywhere in South West district of Delhi, without specifying a

particular colony or that Vasant Kunj was amongst the colonies, which

was opted by the appellant. The Certificate dated 9.01.2001, to the extent

it is relevant, reads as under:-

"This is with reference to your application dated 18.02.2000 to establish a new school under Rule 44 of DSEAR, 1973. I am directed to state that the appropriate authority after considering the particulars specified in the application form has accepted the proposal to establish a new middle school from Class I to VIII in Samalkha/Rajokri in Zone No. XXI of District South West.

The said acceptance to establish new school in Samalkha/Rajokri area Zone No.XXI of District South West shall be limited only for a period of three years."

The indication one gets from the Certificate is that the application

of the appellant was to establish a new school in Samalkha/Rajokri and

not any place in District South West of Delhi. Therefore, the decision of

this Court in the case of The Shreeyans Educational Society (supra)

would not be applicable to such a fact situation. Presuming, however, that

the appellant had also applied for establishing a school anywhere in South

West District of Delhi or that Vasant Kunj was one of the colonies opted

by the appellant that, in our view, would make no difference since the

Essentiality Certificate was restricted to a new school to be set up in

Samalkha/Rajokri. This certificate, in our opinion, did not permit the

appellant to establish a school at any place other than Samalkha/Rajokri

in South West District of Delhi. If the appellant was aggrieved on

account of the Essentiality Certificate being confined to

Samalkha/Rajokri, the appropriate remedy for him was either to seek

modification of the aforesaid Certificate from Directorate of Education or

to challenge the Certificate in appropriate proceedings. But having

accepted the Essentiality Certificate, which conveyed approval to

establish a school in Samalkha/Rajokri, the appellant was not entitled to

allotment of land in Vasant Kunj, which admittedly is a colony different

from Samalkha/Rajokri, though falling in District South West of Delhi.

Consequently, DDA could not have allotted any land to appellant in

Vasant Kunj on the strength of the Essentiality Certificate dated

09.07.2001. Since the allotment made to the appellant in Vasant Kunj

was contrary to the Essentiality Certificate dated 09.07.2001, the

Directorate of Education, in our view, was fully justified in withdrawing

the said Certificate.

7. More importantly, the appellant having withdrawn the earlier

application for allotment of land, having submitted a fresh application

dated 03.08.2004 seeking grant of sponsorship on the strength of the new

Essentiality Certificate dated 12.05.2004, and withdrawing W.P.(C)

No.19768/2005 which he had filed challenging withdrawal of the

Essentiality Certificate dated 9.7.2001, no legal right survives to the

appellant, to seek allotment of land on the strength of the Essentiality

Certificate dated 09.07.2001. After withdrawal of W.P.(C) 19768/2005, it

is not open to the appellant, to question the letter dated 2.4.2004, by way

of W.P(C) No.2360/2006.

8. Admittedly, vide communication dated 21.08.2004, the case of the

appellant for allotment of land was rejected by DDA and intimation in

this regard was given to the appellant society on 22.12.2004. Admittedly,

the money which the appellant had deposited with DDA was also taken

back by it on 24.05.2005.

9. Admittedly, no allotment has been made to the appellant pursuant

to the new Essentiality Certificate dated 12.05.2004 and the fresh

application submitted by it vide its letter dated 03.08.2004. Hence, it

cannot be said that DDA (Disposal of Developed Nazul Land) Rules,

1981, as they stand post amendment, cannot be applied to the case of the

appellant.

For the reasons stated hereinabove, we find no merit in the appeal

and the same is hereby dismissed. There shall be no order as to costs.

V.K.JAIN, J

CHIEF JUSTICE

FEBRUARY 21, 2013 BG