Justice For All vs Govt. Of Nct Of Delhi & Anr.
2014 Latest Caselaw 6073 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of decision: 24th November, 2014

+                               W.P.(C) No.4607 /2013

       JUSTICE FOR ALL                                        .... Petitioner
                    Through:           Mr. Khagesh K. Jha, Adv.

                                   Versus

    GOVT. OF NCT OF DELHI & ANR.              ..... Respondents

Through: Mr. V.K. Tandon, Adv. for GNCTD.

Mr. D. Ray Chaudhary & Ms. Arpita, Advs. for DDA.

CORAM:-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This appeal under Article 226 of the Constitution of India, filed as a

Public Interest Litigation (PIL), flags the issue of allottees of land for the

purpose of establishing a nursery school / play school / crèches thereon, on

the condition of admitting students belonging to weaker sections of the

society to the extent of 25% and grant of freeship to them, after being put

into possession of the said land not abiding by the said condition and the

respondents Director of Education, Government of NCT of Delhi (GNCTD)

and Delhi Development Authority (DDA) not only not taking any action

with respect thereto but also having no mechanism to ensure compliance of

the said condition.

2. The petition was entertained. The respondent no.1 GNCTD in the

affidavit of the Additional Director (Education), Directorate of Education,

GNCTD filed in response to the writ petition has even failed to address the

issued flagged. However the counsel for the respondent no.1 GNCTD

during the hearing sought to wish away any concern with the issue stating

that the same was between the DDA as the agency which had allotted the

land and the allottee of the land and if the allottee of the land is in breach of

any of the terms and conditions of the allotment, it is for the DDA to take

action. Per contra, respondent no.2 DDA in the counter affidavit of its

Director (Lands) in response to the writ petition has stated that the

respondent no.1 GNCTD is the agency to check and monitor the activities of

the educational institutions, qua grant of admission to students belonging to

weaker sections of the society and that as and when the respondent no.1

GNCTD has informed the respondent no.2 DDA about any violation of

norms of admission of students belonging to weaker sections, action for

cancellation of allotment and determination of perpetual lease is taken. It is

however pleaded that no complaints had been received from the respondent

no.1 GNCTD and that though complaints received by the respondent no.2

DDA of violation of 25% freeship condition were forwarded to Directorate

of Education, GNCTD which is the monitoring authority for ascertaining the

facts but nothing further had been heard. The counsel for the respondent

no.2 DDA during the hearing also reiterated the same stand and further

contended that DDA is merely the land owing agency and has no mechanism

to monitor whether the condition of ensuring admission to students

belonging to weaker sections to the extent of 25% and grant of freeship to

them is being abided by or not.

3. The counsel for the petitioner, during the hearing, rejoined by

contending that the allotment by the respondent no.2 DDA of such plots for

establishing nursery school is only upon such allotment being sponsored by

the respondent no.1 GNCTD and the stand of the respondent no.1 GNCTD

of washing off its hands from the responsibility of ensuring compliance by

the allottees of the aforesaid condition, is unfair.

4. The aforesaid demonstrates a very unfortunate and sorry state of

affairs; the State / State instrumentality as DDA is, after allotting land at

concessional rate, as a largesse, justifying such allotment at concessional

rate on the condition imposed of the allottee being required to admit

students, in the school established on the said land, to the extent of 25%

from weaker sections of the society and on freeship, after such allotment, not

devising any mechanism for ensuring compliance of the condition on the

premise whereof land much below the market rate was allotted. Such

allotments of land at concessional rate, with condition aforesaid, were made

in performance of the State's obligation towards citizens from the weaker

sections. The persons affected by such an attitude of the respondents are

most in need of education and for providing which the aforesaid Scheme

was devised. Such persons have very little access to justice too. We

observe so because yet another contention raised by the counsel for the

respondent no.1 GNCTD was that the occasion for taking any action did not

arise because no complaint was received.

5. We do not expect the weaker sections of the society, for whose benefit

the aforesaid scheme of allotment of prime land at concessional rates on the

condition aforesaid was devised, to be in the know of the said condition or to

claim enforcement thereof. It is also not as if the respondents have taken

any steps, year after year at the time of admission to schools, to advertise the

said scheme so as to make the citizens belonging to the weaker sections of

the society aware thereof, to be able to approach the schools who are bound

by the said condition.

6. Thus, the Scheme aforesaid has, rather than achieving the purpose, of

benefitting the weaker sections of the society, benefitted the allottees of such

land who on the one hand have been able to acquire prime land at rates much

below the prevalent market rate and on the other hand owing to the

respondents not enforcing the condition subject to which such concession

was given, being relieved thereof and resultantly being able to also admit

students to the said 25% of the seats which were meant for weaker sections

of the society, on paid basis.

7. Though the relief claimed in this petition is with respect to land

allotted for establishing nursery school, play school and crèches but the

counsel for the respondents stated that there is no allotment of land for play

schools or for crèches and the counsel for the petitioner has not controverted

the same. The counsel for the respondent no.2 DDA informed that

allotments of land for educational purposes were either for Primary School

or for Middle School or for a Senior Secondary School and the Master Plan

for Delhi - 2021 has done away with the concept of nursery schools. It was

further informed that with effect from the year 2004, the disposal of

institutional land by the DDA is on auction basis only and the Scheme of

allotment at concessional rates as earlier prevalent has been done away with.

8. The stand taken by the respondent no.1 GNCTD surprises us all the

more because it is not as if this issue has been flagged for the first time. As

far back as vide order dated 20th January, 2004 in Social Jurist Vs. GNCTD

109 (2003) DLT 489, this Court had directed the respondent no.1 GNCTD to

ensure compliance of such condition in the letters of allotment / perpetual

leases of land to unaided recognized private schools in Delhi including if

need be by framing rules in that regard. (Similar directions were also issued

with respect to hospitals which also had been allotted land at concessional

rates on the condition of providing free treatment to poor and indigent

persons, in Social Jurist Vs. GNCTD 140 (2007) DLT 698). Thereafter,

also from time to time orders inter alia reported in 112 (2004) DLT 791 and

dated 24th February, 2010 were made in the said petition. However it

appears the same remain uncomplied. Though in view thereof there would

have been no need for us to again issue directions but we feel the need for

the same because the counsel for the respondent no.1 GNCTD has also

contended that nursery schools are not within the jurisdiction of the

Directorate of Education of GNCTD. The said contention was refuted by

the counsel for the petitioner by contending that the DDA made allotment of

land to nursery schools only upon such allotments being sponsored by the

GNCTD and GNCTD cannot now wash off its hands. Though we are of the

view that the orders in the earlier writ petition i.e. Social Jurist (supra) were

with respect to all schools without carving out any distinction of primary,

middle or secondary schools but to avoid any ambiguity, we direct the

Directorate of Education, GNCTD to on yearly basis ensure that all schools

including nursery schools which have been allotted land on the condition of

admitting 25% of the students in schools established thereon from weaker

sections of the society and on freeship basis, abide thereby and if finds any

such schools to be in breach, immediately send intimation thereof to the

DDA. We also direct the DDA to immediately on receipt of such intimation,

initiate the process of cancellation of the leases.

9. We may notice that the legislature has since enacted the Right of

Children to Free and Compulsory Education (RTE) Act, 2009 and which has

come into force with effect from 1st April, 2010 and the provisions whereof

mandate every recognized school imparting elementary education even if it

is an unaided school, not receiving any kind of aid or grant to meet its

expenses from the appropriate government or the local authority, to admit to

the extent of at least 25% of the strength, children belonging to weaker

sections and disadvantaged group in the neighbourhood and provide free and

compulsory education to them. The said Act also makes a provision for

reimbursement by the Government to the said school of the expenses of

imparting education to such children. We have enquired from the counsels

whether the obligations on the schools which have been allotted land on the

condition aforesaid are required to, besides fulfilling the said condition of

admitting 25% of the students from weaker sections of the society and on

freeship basis, admit another 25% of the students under the provisions of the

RTE Act. The counsel for the respondent no.1 GNCTD replied in the

negative and stated that the obligation in such case would be under the RTE

Act only and not under the condition of allotment of land.

10. We however further enquired from the counsel for the respondent

no.1 GNCTD whether in such a situation, the school would not be a

beneficiary inasmuch as it would then receive reimbursement from the

Government (under the provisions of the RTE Act) with respect to students

so admitted and which reimbursement the school was not entitled to receive

under the terms and conditions of allotment of land.

11. The counsel for the respondent no.1 GNCTD then stated that he had

no instructions; though he stated that he will file an affidavit / documents in

this regard but nothing further has been filed till date.

12. We find a similar question to have been raised in the order dated 24 th

September, 2012 in W.P.(C) No.3715/2011 titled Ashok Kumar Thakur Vs.

Bal Bharti Public School, where it was observed:

"The judgment in Society for Unaided Private Schools of Rajasthan Vs. Union of India and Anr.'s case (supra) has however carved out an exception in case of unaided minority institutions. However, there may be cases of land allotment at concessional rates even where the terms of the lease may provide for giving free education to certain percentage of students.

The principal question thus being posed is that the terms and conditions of the lease which are in the nature of a grant by the Government cannot be washed away and even if there is no obligation or lesser obligation under the said Act, the obligations of the lease must be met.

It appears that the aforesaid has not received the attention of the respondents and provision has been made to ensure that the terms of the lease are adhered to. The result is that some schools are stated to be under a misconception that if they are outside the scope of the said Act, they are absolved even of their obligations under the terms of the lease. Further some of the schools who are covered by the said Act may again have a misapprehension that to the extent that the lease provides for a higher obligation, the same is waived. It is common ground that this cannot be so."

but do not in the order dated 4th December, 2012 disposing the said

petition find the same to have been adjudicated.

13. We, in the circumstances, though disposing of this writ petition with

the directions aforesaid, also request Hon'ble the Lieutenant Governor who

is also the Chairman of the DDA to kindly look into the said aspect and have

an affidavit filed in this Court on or before 31 st March, 2015 clarifying the

position.

14. The affidavit when filed be placed before the Court.

15. With the aforesaid directions, the petition is disposed of.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE

NOVEMBER 24, 2014 'gsr'