Shree Bhagirathi Ganga ... vs Delhi Development Authority
2015 Latest Caselaw 93 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                            W.P. (C) No.4394/2014

                                     Decided on : 8th January, 2015

SHREE BHAGIRATHI GANGA EDUCATIONAL & CULTURAL
SOCIETY (REGD.)                         ...... Petitioner
              Through: Ms. Richa Kapoor & Mr. Hemant Singh,
                       Advocates.

                        Versus

DELHI DEVELOPMENT AUTHORITY            ...... Respondent
             Through: Mr. Dhanesh Relan & Mr. Arush
                      Bhandari, Advocates for the DDA.

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

V.K. SHALI, J.

1. This is a writ petition filed by the petitioner society for issuing

demand-cum-allotment letter of a plot measuring 800 square meters in

Block E, Sector 16, Rohini, for setting up of a nursery school.

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

are that the petitioner society is stated to have applied for allotment of a

land for nursery school vide application No.3497 on 19.3.2001. On

12.4.2001, the Directorate of Education is purported to have sent a letter

to the respondent/DDA recommending the case of the petitioner society

for establishment of a nursery school. On 30.5.2002, the DDA

considered the request of the petitioner through Institutional Allotment

Committee. A proposal for allocation of a plot of land measuring 800

square meters in Block E, Sector 16, Rohini for establishment of a

nursery school was allocated subject to verification of the financial status

of the society. On 3.1.2003, the respondent DDA sent a letter to the

petitioner society requesting for submitting a bank certificate showing

financial status of the petitioner society. Consequent to this, on

18.1.2003, the bank certificate is purported to have been submitted by the

petitioner society. On 8.8.2003, the respondent/DDA sent a letter to the

bank seeking verification of the authenticity of the certificate purported to

have been issued by the bank. Since the bank had verified the

authenticity of the certificate, a letter was issued to the petitioner society

on 25.6.2004 seeking certain clarification. In the meantime, as the policy

for allotment of nursery school on pre-determined rates was under

review, therefore, no action seems to have been taken in this regard and

the petitioner society was not issued any demand-cum-allotment letter by

the DDA. The petitioner society sent letters to the Government of India

who, in turn, sought necessary information from the respondent/DDA

with regard to the allotment of the plot of land for setting up of a nursery

school. These letters were duly replied by the DDA to the concerned

officer in Government in India in the month of September-October, 2004

intimating that the policy regarding allotment of institutional land for

setting up of schools was under review and once the process is finalized,

the case of the petitioner would be examined accordingly.

3. It is the case of the petitioner society that it had been continuously

representing the respondent/DDA till March, 2008, through public

hearings for allotment of land for school. It had also kept an amount of

Rs.20 lacs available with its bank to be paid to the DDA as the price of

the land; however, as nothing was heard, the petitioner society made

representation on 23.12.2013. A letter was received from the office of

the Secretary to the Lt. Governor that favourable order for allotment of a

school land has not been passed which has necessitated filing of the

present writ petition.

4. The writ petition came up for hearing for the first time on

18.7.2014 when this court took note of the fact that the grievance of the

petitioner is seeking issuance of a demand-cum-allotment letter in respect

of a plot of land in question, is prima facie hit by inordinate delay and

latches yet before passing any order on the writ petition, the court

directed the respondent to produce the record as one of the prayer of the

petitioner society was for production of the record so as to enable it to

decide as to whether the matter needs to be examined further or not.

5. The main contention of the learned counsel for the petitioner is that

as it had fulfilled all the requisite parameters of obtaining an essentiality

certificate from the Directorate of Education, the financial viability

certificate from its banker and the Institutional Allotment Committee had

earmarked a particular parcel of land measuring 800 square meters in

Block E, Sector 16, Rohini, therefore, the petitioner was entitled to

demand-cum-allotment letter to be issued by the respondent which was

being denied arbitrarily and illegally.

6. It has also been contended by the learned counsel that a similarly

placed school for blinds has been issued demand-cum-allotment letter and

this action on the part of the respondent has resulted in adopting pick and

choose policy for the purpose of allotment of land. It has also been

contended by the learned counsel that the cancellation of the demand-

cum-allotment letter or rather non-issuance of the same, without giving

an opportunity of being heard, is in violation of principles of natural

justice which has been frowned upon by the Division Bench of this court.

7. The learned counsel for the petitioner has also referred to the three

judgments of this court in order to substantiate his contention. These

judgments are Government of NCT of Delhi vs. Veerwati; 189 (2012)

DLT 674, Pragati Educational and Welfare Society vs. Delhi

Development Authority; 149 (2008) DLT 225 and Government of NCT of

Delhi & Anr. vs. Shreeyans Educational Society & Anr.; 207 (2014) DLT

562.

8. I have carefully considered the submissions of the learned counsel

for the petitioner and have also gone through the record. I am of the

considered opinion that the writ petition is not only barred by inordinate

delay and latches but also the same is not maintainable as no fundamental

right of the petitioner society has been violated.

9. Even if the case of the petitioner for allotment is accepted to be

correct, there was no allotment of land made in favour of the petitioner.

It was only at best an allocation done by the Committee. Prima facie the

right of the petitioner for allotment of a parcel of a land would arise only

when a formal letter of allotment is issued in its favour by the DDA that

its legal right can be deemed to have been affected in case the letter of

allotment is not followed up by a demand-cum-allotment letter. In the

instant case, what has been relied upon by the petitioner is only the

notings obtained by the petitioner in pursuance to the RTI query to

contend that the Institutional Allotment Authority had considered the case

of the petitioner for allotment of a parcel of land measuring 800 square

meters in a particular area for setting up of a nursery school and,

therefore, it is entitled to issuance of demand-cum-allotment letter.

10. I am afraid, this cannot be permitted to be done because the locus

to get the demand-cum-allotment letter would arise in favour of the

petitioner only when a formal allotment of land is made in its favour. So

long as the formal communication of allotment is made to the petitioner

society, it at best remains a proposal and cannot be said to be fructifying

into a legal right so far as the allotee or a proposed allottee is concerned.

Therefore, in the instant case, in my considered opinion, the petitioner

cannot base its claim on the mere proposal on the part of the DDA in

processing the claim of the petitioner for allotment of a land as the same

having been approved by the Institutional Allotment Committee. The

Supreme Court in Delhi Development Authority vs. Pushpendra Kumar

Jain; 1994 Supp (3) Supreme Court Cases 494 case also, though in a

different context with regard to assailing of the cost of a flat, has

observed that the right to challenge the cost of a flat accrues to the

allottee only once the demand-cum-allotment letter is formally issued in

its favour. Therefore prior to the issuance of demand-cum-allotment

letter, the petitioner society will have no locus standi to challenge the

same. Therefore, on this score, I feel that no legal right of the petitioner

has been affected by not allotting it a plot of land pursuant to its

representation to the respondent/DDA and, therefore, no writ petition

under Article 226 of the Constitution of India would lie against the

respondent/DDA.

11. Even if it is assumed that a writ petition would lie on the basis of a

proposal even then, it is not in dispute that allocation of a plot of land in

favour of the petitioner was made way back in the year 2001-2002 and

that the petitioner corresponded with the DDA for issuance of demand-

cum-allotment letter till 2004 when it learnt that the policy with regard to

the allotment of institutional land was being changed by the

respondent/DDA. It is at that point of time that the petitioner ought to

have come to the court for getting a writ of mandamus against the

respondent/DDA that so long as the policy of the respondent is not

reviewed or changed, the petitioner has a right to get demand-cum-

allotment letter on the basis of recommendation of the Institutional

Allotment Committee. The petitioner, in the instant case, preferred to

wait till the policy for allotment of institutional land was reviewed and a

fresh policy was formulated under which the institutional land was

directed to be auctioned rather than being allotted for various institutional

purposes on pre-determined rates. This new policy was also assailed by

various parties feeling aggrieved by the same and the validity of the new

policy has already been upheld by the Division Bench of this court in the

case of Bhagwan Mahavir Education Society (Regd.) & Anr. Vs. DDA &

Ors; MANU/DE/0968/2011. Having done so, it is not open to the

petitioner now today to revert back to the old policy and contend that

notwithstanding the fact that validity of the new policy has been upheld,

according to which the institutional land is to be allotted on the basis of

an open auction, that it should be allotted the institutional land for setting

up of a school at a pre-determined rate on the basis of an old policy. This

cannot be permitted to be done. The petitioner's grievance that there was

a delay on the part of the DDA in processing the case of the petitioner

and it should not be made to penalize for the same has no merit. Merely

because the respondent has allegedly caused delay did not foreclose the

option of the petitioner society to come to the court and gets its grievance

redressed at the earliest possible opportunity.

12. It may also be pertinent here to refer to the judgments which have

been relied upon by the petitioner society briefly. The first judgment

which has been relied upon by the petitioner in support of its case is

Pragati Educational and Welfare Society's case (supra). I have gone

through the said judgment. The judgment is not applicable to the facts of

the present case as the issue in the said case was totally different from the

facts of the present case. In that case, final allocation was made and

demand-cum-allotment letter was issued and the petitioner had also paid a

part of the amount to the respondent/DDA. Therefore, issuance of

demand-cum-allotment letter and payment of part payment makes the

difference with the facts of the present case where there is no demand-

cum-allotment letter issued in favour of the petitioner with regard to the

land in question. In Pragati's case (supra), withdrawal of the demand-

cum-allotment letters was sought to be quashed.

13. The second judgment which has been relied upon by the petitioner

is Veerwati's case (supra). This case deals with the question of allotment

of alternative plots of land owners, whose land has been acquired in Delhi

and, therefore, the facts of this case are totally different than the facts of

the case in hand and has no applicability to the present case.

14. So far as Shreeyans's case (supra) is concerned, the issue in the

said case was with regard to sponsorship certificate having been issued to

the respondent society zone wise rather than area wise. In the instant

case, the question as to whether the certificate of essentiality which was

issued by the Directorate of Education in favour of the petitioner society

was zone wise or area wise is not at all in question and, therefore, the

facts of the said case or the law laid down therein is also not helpful to the

petitioner.

15. For the reasons mentioned above, I feel that the present writ

petition is not only hopelessly barred by inordinate delay and latches but

also on merits as no legal right of the petitioner society has been invaded

by the respondent/DDA on account of non-allotment of a parcel of land

as claimed by the petitioner because of the implementation of the new

policy of institutional land adopted in the year 2005. Accordingly, the

writ petition is dismissed. No order as to costs.

V.K. SHALI, J.

JANUARY 08, 2015 'AA'