Delhi High Court

Defence Public School vs N.C.T Government Of Delhi & Anr. on 3 February, 2015

Author: V.K.Shali

*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                    W.P. (C) No.4549/2008

                                              Decided on : 3rd February, 2015

    DEFENCE PUBLIC SCHOOL                                       ..... Petitioner
                            Through:      Mr. Pravin H. Parekh, Senior
                                          Advocate with Mr. Sameer Parekh,
                                          Mr. Shashank Kumar and
                                          Mr. Anurag Tripathi, Advocates.

                            versus

    N.C.T GOVERNMENT OF DELHI & ANR.                         ..... Respondents
                            Through:      Mr. Ajay Verma, Adv. for R-2.

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

    V.K. SHALI, J.

1. The present writ petition has been filed seeking following

reliefs:

a) Writ of mandamus or any other appropriate writ/order/direction etc. directing the respondents not to demolish the school building in question situated at the Defence Enclave Colony, Mahipalpur Extension, New Delhi without following the due process of law and without taking any final decision on the issue of the regularization of the structures in the colony in question namely the Defence Enclave, Mahipalpur Extension in temrs of the order of this Hon'ble Court dated 05.10.2005 in Writ Petition No.4134-

229 of 2005.

b) Appropriate writ order or direction against the respondents prohibiting/restraining them from taking any action against the petitioner's school building situated in the Defence Enclave, Mahipalpur Extension, New Delhi without following the due process of law and without taking any final decision in terms of the aforementioned order dated 05.10.2005."

2. Briefly stated the facts leading to the filing of the present writ

petition are that the petitioner is claiming itself to be a charitable Non

Government organization working for the upliftment of the poor and

weaker sections of the society. It has been stated that the

petitioner/School is imparting free education to the poor and needy

people. The aims and objects of the Society are stated to be :

i) to encourage and assist, organize or undertake and contribute to the

community development and social welfare programmes with

emphasis on rural areas; and

ii) to bring general awareness and up to date knowledge of

nation/state environment, health and hygiene to the underprivileged

people at large and to provide medical relief and education to the

poor.

3. It has been stated that the petitioner is running a school built on

a plot admeasuring 2000 square yards in khasra No.867/2, village

Mahipalpur. It has been stated that the school is a single storeyed

building having four class rooms, one office room and one room for

peons/store. There are 280 students, children of slum dwellers in the

area, who are benefited by receiving quality education being imparted

by the petitioner/school at the premises in question. It has been stated

that the school is known as Defence Public School and is situated in

an unauthorized colony known as Defence Enclave, Mahipalpur,

Extension, New Delhi.

4. It has also been stated that the students are being provided free

education, uniform, books and mid-day meal by the school without

any assistance from any source whatsoever. It is alleged by the

petitioner that on 13.06.2008 the officials of the DDA visited the

colony in question and threatened to demolish the school on

18.06.2008 because of which they constrained to file the present writ

petition.

5. It has been averred that the threatened action of demolition on

the part of the respondent No.2/DDA is not only arbitrary, illegal,

discriminatory but is also violative of Article 21A of the Constitution

of India which guarantees right to free education up to primary level

and hence the present writ petition has been filed claiming the

aforesaid reliefs.

6. The court issued notice to the respondents to show cause on

18.06.2008 and directed status quo with regard to the property in

question to be maintained. This order of status quo was continued till

date. The respondents have filed their counter affidavit and contested

the writ petition.

7. The case of the respondents is that the present writ petition

claiming protection against demolition action is essentially based by

the petitioner/society on the order dated 05.10.2005 passed in the writ

petition bearing No. 4134-229/2005. However, it has been stated in

the said order, the structures which have come up post 01.04.2002

would not be entitled to any protection. The respondents are free to

take action as per law to demolish the said structures which have

come up post 1.4.2002. It has also been stated that the land in

question is an acquired land in respect of which possession was

handed over by the Land and Building Department to the DDA on

11.02.2013 free from any encroachment or any structure. However,

the petitioner after handing over of the land to the respondent

No.2/DDA have encroached on the said parcel of land and built

unauthorized structures. It has also been stated by the respondent

No.2/DDA that the petitioner is also not eligible for regularization

under the guidelines issued on 24.03.2008 by the Government of

India as the policy of regularization is basically framed for

regularization of residential structures. In this regard, clause 3.4 has

been referred to, which is as under:

Clause 3.4

"no regularization will be done in respect of residential buildings used for non residential purposes except those covered under the mixed land use regulations contained in the MPD- 2021 as may be amended from time to time. The time limit of 90 days for conducting survey for notification of mixed used streets as prescribed in clause 15.3.4 of the MPD-2021 in respect of these colonies will commence with effect from the date of notification of the colony as deemed regularized colony by the GNCTD or the date with effect from which the colony shall qualify for regularization."

8. Accordingly, it is contended that since running of a school is a

non residential activity, therefore, the regularization of the same is not

permissible.

9. On the basis of the aforesaid averments, it has been stated that

the writ petition of the petitioner is a gross abuse of the process of law

and deserves to be dismissed.

10. This aspect has been contested by the petitioner. It has been

stated by the petitioner that it had constructed the structure in the year

2000 after purchasing the land in question from one vender

Mr.Virender Kumar on 18.07.2000 situated in Khasra No.867/2 on

the basis of a General Power of Attorney and other documents of

transfer of property. It has also been stated that since the petitioner is

providing education to slum dwellers, therefore, the school may not

be demolished till the time a view is taken by the Government with

regard to the regularization of the colony in question.

11. I have heard the learned senior counsel for the petitioner as well

as the learned counsel for the respondent No.2/DDA.

12. The contention of Mr. Parekh, the learned senior counsel for the

petitioner, has been essentially two fold.

13. The first contention of Mr. Parekh, the learned senior counsel is

that the right to education has been guaranteed as a fundamental right

under Article 21A of the Constitution of India and the petitioner is

providing the said right to the under-privileged children of slum in the

neighbourhood. It is stated that not only the petitioner is providing

free education but it is also providing mid day meal, free books and

other amenities to the students and, therefore, the demolition of the

structure of the school is going to cause irreparable loss to these

under-privileged children from continuing with schooling and they

deserve to be protected.

14. The second submission of the learned senior counsel for the

petitioner is that even though assuming, not admitting, that the

petitioner is illegal possession of the land in question, the respondent

No.2/DDA cannot dispossess them except in accordance with the due

process of law. They cannot come to the school premises and

threaten action of demolition so as the school structure is concerned.

15. In this regard, the learned senior counsel for the petitioner, has

copiously referred to various judgments to contend that a person w ho

is admittedly in settled possession of the premises in question,

deserve to be protected by the court as the respondent No.2/DDA

cannot demolish the school and dispossess the petitioner forcibly.

The learned senior counsel for the petitioner has relied upon the

following judgments: i) Munshi Ram & Ors. v. Delhi Administration;

(1968) 2 SCR 455, ii) Puran Singh & Ors. v.The State of Punjab;

(1975) 4 SCC 518, iii) Rame Gowda (Dead) by LRs v. M.Varadappa

Naidu (dead) by LRs; (2004) 1 SCC 769, iv) Unni Krishnan, J.P. &

Ors. v. State of Andhra Pradesh & Ors.; (1993) 1 SCC 645 and TMA

Pai Foundation and Ors. v. State of Karnataka & Ors.; (2002) 8 SCC

481.

16. The learned counsel for the respondent has contended that the

petitioner is a rank trespasser on the government land and the said

construction has also been issued after 2002 only and was not

protected by the interim order on the basis of which stay order was

obtained. It has been stated that bearing khasra No.862/2 measuring

three bighas and 17 biswas has been acquired vide award No.34/86-

87 and the alleged transaction by the petitioner school is post

acquisition which does not vest any right, title or interest in the said

land. It is also stated that vacant physical possession was taken by the

LAC and thereafter handed over to the DDA on 11.2.2003. The

petitioner has trespassed and thereafter raised construction which is

unauthorized after that for which complaints were made with the local

police.

17. It has been further stated that the petitioner is trying to cover its

misdeeds by the so-called of providing free education to the children

of the slum dwellers. As a matter of fact, it is only a ploy to

perpetuate its illegal occupation on the government land. It is also

stated that this illegal occupation is hampering widening of a public

road.

18. I have carefully considered the submissions made by the

learned senior counsel for the petitioner as well as the learned counsel

for respondent No.2/DDA.

19. It is not in dispute that a school is being run at a parcel of land

in respect of which the petitioner does not have any document of title.

The document of sale by one Virender Kumar on 18.7.2000 cannot be

treated as a document creating any right, title or interest in the suit

property when it is an acquired property which vests with the

government.

20. The petitioner in the absence of any document of title could not

have established a school and claimed protection from the court. As a

matter of fact, the writ jurisdiction is a discretionary jurisdiction of

the court and a party, who seeks to invoke the writ jurisdiction must

come to the court with clean hands while as, in the instant case, the

petitioner is a rank trespasser after the possession of the land was

handed over to the DDA by the Land & Building Department after

acquisition of the land. Then after encroaching, the petitioner has

built an illegal structure and obtained an order of status quo on the

strength of another interim order without disclosing that the

construction has been raised after 2002.

21. In the instant case, the petitioner has protection against

demolition in respects of the structures which admittedly are

unauthorized. It is established by preponderance of probability by the

respondents that the land in respect of which the petitioner is in

occupation and where the school is purportedly being run is an

acquired land in respect of which the possession was delivered to the

respondent No.2/DDA by the respondent No.1/Land and Building

Department of the Govt. of NCT of Delhi way back in the year 2003.

Once the possession of the land which was vacant, was delivered to

the respondent No.2/DDA, the subsequent encroachment by the

petitioner and erection of the super structure thereon, does not

regularize the super structure or the ownership of the land in their

favour. Therefore, because of these reasons, I feel that it may not be

proper for this court to exercise the jurisdiction in favour of the

petitioner by protecting them against any demolition which

respondent No.2/DDA are well within their rights to carry out for the

purpose of removal of unauthorized construction over the land owned

by them.

22. The second submission of the learned counsel senior counsel

for the petitioner that the demolition action ought not to be carried out

till the time the question of regularization of the unauthorized colony

known as Defence Enclave Colony, Mahipalpur Extension, New

Delhi is decided by the Govt. of NCT of Delhi, is not tenable in law.

This is on account of the fact that the learned counsel for the

respondent No.2/DDA has rightly referred to Clause 3.4 of the policy

which show that the regularization policy essentially pertains to

residential structures and not commercial or non residential structures.

Moreover, vide C.M. No.14117/2014, the respondent has already

informed the court that the colony in question is also not eligible for

regularisation under Section 33 (c) of the Regulation dated 24.3.2008.

23. The contention of the learned senior counsel for the petitioner

that it is not making any profit out of running the school and is doing

social service by providing free education, uniform, mid day meals

and books, etc. to the under privileged children does not detract from

the policy in any manner whatsoever. This is on account of the fact

that the petitioner may not be making any profit out of running the

school or may be doing so as a part of larger social responsibility or

obligation to the society, but certainly this cannot be used as a ground

for perpetuating something which is contrary to the regularization

policy of the Government of India. The plea that the fundamental

right of the children guaranteed under Article 21A of the Constitution

of India to provide the primary education is also not violated. The

purpose of the respondent is not to violate the right of the children

under Constitution of India but only to retrieve its land which has

been wrongfully usurped by the petitioner society. A party cannot be

permitted to firstly commit an illegality and then perpetuate the same

by taking the plea that any fundamental right of the citizen is being

violated. A person who is feeling aggrieved on account of any action

of the state is free to get his grievance redressed in law but a third

party cannot be permitted to set up this as a defence for action being

taken against him.

24. Therefore, in my view, the school being a non residential

activity carried out by the petitioner cannot be permitted to be

regularized and this prayer of the petitioner in the writ petition that

the respondent No.2/DDA should keep its hands off the property till

the question of regularization of the colony is question is decided by

the Government, is bereft of any merit.

25. The learned senior counsel for the petitioner Mr. Parekh has

also relied upon the cases of Munshi Ram (supra), Puran Singh

(supra) and Rame Gowda (supra) in support of his submission that as

the petitioner is in settled position of the aforesaid parcel of land,

therefore, even though, it may not be successful in getting the

requisite relief of injunction against demolition and removal of the

school but by virtue of the aforesaid pronouncements, the court must

observe that it shall not be dispossessed except in accordance with

due process of law or in other words that the possession shall be taken

over from it only in accordance with law. In this regard, the learned

senior counsel has contended that the only method in which the

possession can be taken is by filing a civil suit and recover the

possession.

26. I do not agree with this contention of the learned senior counsel

that even though the writ petition may not be maintainable, still the

court must observe that for retrieval of possession of the premises in

question or carrying out demolition, the respondents are required to

go to the court. The reasons for this are that the petitioner knows that

in case a suit for possession is filed, it will take the respondents to

perpetuate its illegality at least for two decades. It will be a kind of

situation that the grass would grow and the house would die. That, in

my opinion, is not the purpose of law. A party should not be

permitted to reap the benefit of an illegality or to take unfair

advantage of a procedure which is dilatory or cumbersome. In this

regard, reliance is placed on Maria Margarida Sequeira Fernandes &

Others vs. Erasmo Jack De Sequeira; (2012) 5 SCC 370 wherein para

80, it has been observed as under :-

"The High Court of Delhi in a case Thomas Cook (India) Limited v. Hotel Imperial held as under:

"28. The expressions `due process of law', `due course

of law' and `recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed `forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing -- ejectment from settled possession can only be had by recourse to a court of law. Clearly, `due process of law' or `due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.

Now, this `due process' or `due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the `bare minimum' requirement of `due process' or `due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the `recourse to law' stipulation stands satisfied when a judicial

determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law."

27. So far as the judgments in Munshi Ram (supra) and Puran

Singh's (supra) cases are concerned, to which reference has been

made in order to contend that the petitioner was in settled position of

the suit premises, the issues which were involved before the Apex

Court were pertaining to a criminal trespass of a parcel of a land and

the exercise of right of self-defence by the party who was in

possession.

28. The Supreme Court in the context of deciding those rights of

the parties of self-defence has dealt with the question of settled

position, which cannot be made applicable to the facts of the present

case. The reason for this is that the Apex Court in its own judgment

passed in Haryana Financial Corporation & Another vs. M/s.

Jagdamba Oil Mills & Anr.; (2002) 3 SCC 496 has observed that law

cannot be applied like theorems. Before the law which is laid down

by the Apex Court in one of the cases is made applicable to the facts

of the case in hand, the court must be conscious about the facts of the

two cases and try to correlate the same so as to make the law

applicable to the facts of the case in hand. Accordingly, both these

judgments in Munshi Ram (supra) and Puran Singh's (supra) cases

are not applicable to the facts of the present case as the question

which was involved in both these cases had a different contour and

that too under criminal law. So far as the Rame Gowda's case is

concerned, it is the reiteration of the same principal that a person who

is in settled position may not be disturbed except with due process of

law.

29. In the instant case, the possession has been wrongly protected by virtue of a court order in another writ petition when it was very much clear in the writ that construction raised after certain date is not protected.

30. I feel since the petitioner has not been able to establish any

right or title to the property in question, therefore, he is not to be

entitled to any protection in law against the respondents. Accordingly,

I feel that this plea of the petitioner is totally misconceived and the

same deserves to be dismissed. However, so far as the action for

demolition or retrieval of the possession is concerned, it shall be taken

only after 2.4.2015 as by that date, the present session shall come to

an end. Further in order to ensure that there is no discontinuation of

the studies of the students. The Director Education, MCD as well as

the Director Education, Government of NCT of Delhi shall take all

necessary steps to admit the students in other neighbouring

government schools so that there is no disruption of their studies.