Delhi High Court
Directorate Of Health Services ... vs Ms. Educational Society And Ors on 29 October, 2013
Author: S.Ravindra Bhat
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 29.10.2013
+ LPA 53/2013, C.M. APPL. 1148/2013 & 1150/2013
DIRECTORATE OF HEALTH SERVICES
THROUGH: ITS SECRETARY AND ANR...... Appellants
Through: Ms. Ruchi Sindhwani with Ms.
Megha Bharara, Advocates.
versus
MS. EDUCATIONAL SOCIETY AND ORS...... Respondents
Through: Mr. Tanuj Khurana with Mr.
Gaurav Malik, Advocates, for R-1 & 2.
Mr. Rajiv Bansal, Advocate, for DDA.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE NAJMI WAZIRI
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
1. The Government of NCT of Delhi is aggrieved by the
directions contained in the judgment and order of the learned Single
Judge passed in W.P. (C) 19209/2006 made on 30.08.2012.
2. The respondent (hereafter referred to as 'the Society') had
preferred a writ petition claiming certain reliefs which included a
direction to the concerned authority, i.e., Government of NCT of
Delhi to issue a sponsorship certificate in respect of its proposal to
expand an existing school in respect of an adjacent plot. The Society
LPA53/13 Page 1
claimed that it was issued an essentiality certificate on 19.11.2003; it
applied to the Directorate of Education on 23.01.2004 for sponsorship
for the allotment of land between pocket B-3 and B-4 at Keshav
Puram, Delhi. Complaining of deliberate inaction, the Society
preferred a writ petition impleading the Delhi Development Authority
(hereafter referred to as 'DDA') and the Education Department of
Government of NCT of Delhi. In the meanwhile, the policy of the
DDA, the land owning agency, apparently changed on account of the
amendment to the DDA (Disposal of Developed Nazul Land), Act,
1981 w.e.f. 19.04.2006. As a result of this, the procedure of allotment
was entirely changed. The concerned or affected parties such as
Societies and Charitable Trusts entitled to set up the schools had to -
with certain exceptions - participate in an open bidding auction. It
was in these circumstances that the Society preferred its writ petition
in December, 2006 claiming reliefs that were sought. During the
intervening period - when the writ proceedings were pending - the
changed policy, i.e., the amended Nazul Rules were pronounced upon
in Division Bench ruling (Bhagwan Mahaveer Educational Society v.
DDA & Ors.). The Division Bench upheld the DDA's changed
policy. Taking note of this and the subsequent rulings in Ram
Chander Educational Society v. DDA, 2011 122 DRJ, the learned
Single Judge directed that the allotment of the plot in question should
be cancelled and that the Society should hand over the additional land
to the DDA which should then proceed to auction the plot.
3. The Government of NCT of Delhi argues that the direction to
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put the Keshavpuram plot to auction overlooks the previous allotment
made in its favour for setting up of a hospital. Learned counsel relies
upon an allotment letter dated 10.11.2006 and also alludes to other
supporting documents and materials such as the payment of
Rs.89,51,307/- made to the DDA on 20.06.2007 and the subsequent
possession letter issued by the latter on 17.08.2007. It is argued that
all these developments were brought to the notice of the Court and yet
were erroneously overlooked by the learned Single Judge. Learned
counsel submitted that having regard to these circumstances, such
land stood excluded from the land bank of the DDA and could not
have been made a subject matter of the impugned directions.
4. Counsel for the DDA supported the stand and argument made
on the appellant's behalf.
5. Counsel for the Society argues that the impugned directions
ought not to be interfered with. He relies upon the order of another
Division Bench of this Court, dated 01.10.2012 passed in LPA
668/2012, whereby the Society's appeal was disposed off. Counsel
pointedly referred to certain passages in that order to state that the
Court consciously refrained from making any observations with
respect to the directions to allot the plot through an open auction. It
was submitted that at the stage when the writ petition was filed,
neither the Government of NCT of Delhi nor the DDA brought to the
notice of the Court that the allotment of the plot had been made as
alleged for the purpose of setting up of the hospital.
LPA53/13 Page 3
6. From the forgoing narrative, it is apparent that the Government
of NCT of Delhi claims to be aggrieved by the directions contained in
the order to the extent that it requires the land in question, i.e., 1.67
acres to be put to auction in terms of the amended Nazul Land Rules
amended w.e.f. 19.04.2006. The validity of those rules has been
upheld by the Division Bench of this Court in Bhagwan Mahaveer
Educational Society's matter (supra); the Supreme Court in appeal by
special leave has affirmed the directions in Bhagwan Mahaveer
Educational Society's matter.
7. So far as the rights of the Society to claim that 1.67 acres of
land and to be put to auction is concerned, this Court notices that no
right was set up apart from the existence of an essentiality certificate
issued in its favour in the year 2003. By the time it preferred the writ
petition, this amended policy had come into existence. Sethi Auto
Service Station v. Delhi Development Authority, 2009 (1) SCC 180
and Delhi Development Authority v. Pushpendra Kumar Jain, AIR
1995 SC 1, are authorities to the proposition that till allotment of land
is made, there is no vested or enforceable right that inheres in the
applicant. The facts of the present case established that as on the date
when Society approached this Court, no such right had crystallized in
its favour. By that time - unfortunately for the Society - the said land
itself stood allotted by the DDA to the Government of NCT of Delhi
on 10.11.2006. That these facts were not alluded to and apparently
not argued at the stage of final hearing is a matter of detail. The
material on record in the form of Government of NCT of Delhi's
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affidavit makes it clear that these facts were brought on the record.
The order of the Single Judge vacating the stay on 15.04.2009 is also
the testimony to the fact that the Court was alive to the existence of
such allotment - which apparently had been overlooked when the
initial interim order restraining the construction was made. The
Court, therefore, holds insubstantial the Society's argument that the
allotment could not have been made except in accordance with the
amended Nazul Land Rules. Once the land was not available for
allotment by reasons of its being given to the Government of NCT of
Delhi for another public purpose, i.e., construction of setting up of
hospital, whatever rights available to the Society to claim that it ought
to be put for auction vanished. The Court would now deal with the
last submission with respect to the effect of the order made on
01.10.2012 in LPA 668/2012. It is evident from the reading of
paragraph 12 and 13 of that order that the Division Bench was aware
about the Government of NCT of Delhi's rights, yet the Court
refrained from dealing with it - necessarily - and expressed rightly,
because the grievance articulated by the Government of NCT of Delhi
was not the subject matter of the challenge by the Society. So viewed,
the Division Bench's ruling is unexceptionable in that it upheld the
order which was based upon the prevailing policy. The Court had no
option to deal with whether the allotment had been made to
Government of NCT of Delhi and, therefore, the land itself not being
available for auction.
8. In view of the above conclusion, the Court is of the opinion that
LPA53/13 Page 5
the directions impugned by the appellant contained in the impugned
order requiring the subject plot to be auctioned cannot be sustained.
They are accordingly set aside. The appeal is allowed in the above
terms.
9. Consequently, the directions cancelling the allotment in favour
of the Government of NCT of Delhi is hereby set aside.
S. RAVINDRA BHAT
(JUDGE)
NAJMI WAZIRI
(JUDGE)
OCTOBER 29, 2013
/vks/
LPA53/13 Page 6
