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Delhi High CourtIndian Cases

Lovely Bal Shiksha Parishad vs Delhi Development Authority And Anr. on 11 June 2004

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Delhi High Court
Lovely Bal Shiksha Parishad vs Delhi Development Authority And Anr. on 11 June, 2004
Equivalent citations: 2004(77)DRJ5
Author: R.C. Jain
Bench: Dalveer Bhandari, R.C. Jain
JUDGMENT

R.C. Jain, J.

1. The conduct of the respondents in particular that of the Municipal Corporation of Delhi (in short `MCD’) to which we would often advert in this judgment, has caused us some anguish. A piece of land measuring 2.47 acres (the actual area on the spot being 2.69 acres bearing No.PS-4, located in pocket B(F), Mayur Vihar Phase-II is the bone of contention between the parties in these appeals.

2. Sometimes in the year 1988, the MCD sought allotment of a piece of land from the Delhi Development Authority (in short `DDA’) in Mayur Vihar Phase-II for construction of a primary school. In June 1989, DDA decided to allot one acre of land out of plot No.PS-4, pocket B(F), Mayur Vihar Phase-II. Vide a communication dated 9th September, 1989 called upon the MCD to deposit a sum of Rs.5,000/- as the lease premium for grant of perpetual lease in respect of the said piece of land. This letter was duly received in the MCD but it appears that the concerned authorities and officers in the MCD slept over the matter for about 8 years as neither any acceptance for allotment of the land was communicated to the DDA nor the lease premium of Rs.5,000/- as asked for by the DDA was deposited despite reminders dated 30th September, 1992 and 18th September, 1993 issued by the DDA. Surprisingly, the MCD even without accepting the allotment and/or making payment of the lease money and without any permission of the DDA, occupied the entire plot of land and started running a primary school from the said site in tents since 1994. As the lease money was not paid by the MCD for a period of about 8 years after allotment-cum-demand letter since September, 1989, the DDA cancelled the allotment of land vide a letter dated 12th June, 1997. Even this action of the DDA did not move the MCD and it kept quite again for about 2 years.

3. The appellant, a Society registered under the Societies Registration Act, applied for the allotment of land for the purpose of a Middle School. The case of the appellant-Society for allotment was duly sponsored and recommended by the Directorate of Education of the Delhi Government. The Allotment Committee of the DDA considered the request of the appellant-Society and recommended the allotment of entire plot of land measuring 2.47 acres to the appellant-Society. The DDA vide a communication dated 2nd July, 1998 allotted the said piece of land to the appellant-Society at a lease premium of Rs.97,64,641/- which amount was deposited by the appellant-Society with the DDA on 23rd December, 1998. However, it appears that the possession of the allotted land was not handed over to the appellant-Society obviously for the reason that a primary school of the MCD was already running from the said site, though in tents. In May and September, 1999, the DDA categorically informed the MCD that allotment of land in its favor made in the year 1989 had been cancelled after giving several opportunities and the land stood allotted to the appellant-Society who had paid full lease money and, therefore, possession of the land has to be handed over to them. The DDA, however, suggested to the MCD that another plot measuring 1 acre situated in Sector-G, Mayur Vihar Phase-III could be considered for allotment to the MCD for construction of a primary school. It was also informed that another primary school of MCD was already existing in Mayur Vihar Phase-II at a distance of 1 to 1.5 kilometers from the land in question and called upon the MCD to hand over the possession of the plot in question to the appellant-Society.

4. It appears that after the above communications received from the DDA, the MCD woke up from a long slumber and thereafter started making serious efforts for the restoration of the allotment of the land in their favor. It appears that the matter was also raised in the Parliament through a question and pursuant to a certain direction received from the Ministry of Urban Development, Government of India, the DDA cancelled the allotment of 1.4 acres of land out of the 2.47 acres of land allotted to the appellant-Society and after adjusting the price of the remaining land, refunded the balance amount to the appellant. The balance refunded amount was not accepted by the appellant. The appellant was put in possession of the remaining 1.29 acres of land. Aggrieved by the said decision of cancellation of allotment of part of the land, the appellant-Society approached the permanent Lok Adalat. The Lok Adalat on a consideration of the entire matter found that the cancellation of allotment of part of the land to the appellant-Society was illegal and could not be justified. The Lok Adalat accordingly suggested that if the Law was to be strictly followed, the entire plot of land measuring 2.47 acres should be handed over to the appellant-Society and the MCD could be allotted another piece of land in Mayur Vihar Phase-III for running a primary school or the children of the school being run from the site in question, could be accommodated in the MCD primary school already in existence in Mayur Vihar Phase-II at a distance of about 1.5 kilometers. The other alternative suggested was that the DDA should hand over possession of 1.69 acres of land to the appellant-Society for the present and balance one acre of land could be handed over to the appellant-Society after making arrangement for MCD school in any of the sites which were originally meant for primary schools, which sites were converted for the purposes of Community Centers (flats) or Parks. The conduct of the DDA in converting the primary school sites for the purposes of Community Centers (flats) or Parks has been adversely commented by the Lok Adalat. None of the above recommendations of the Lok Adalat found favor with the DDA. The appellant-Society accordingly challenged the action of the DDA in cancelling the allotment of part of the land in its favor and seeking delivery of possession of the entire site, filed the writ petition. At the time of filing of the writ petition, an interim relief was sought by the appellant-Society for restraining the DDA from approving the plans of MCD and from permitting MCD to raise construction at the site in question. On 20th December, 2002 the learned Single Judge, passed the following order in CM 13985/02;-

” Notice. Ld. Cl. for the Respondent accept notice. The petitioner has prayed for a restrain order against the DDA and its officials from approving the plans of the MCD and from permitting, the MCD to raise construction on the land. The land is already in occupation of the MCD. The claim of the petitioner is yet to be adjudicated in the W.P. In view thereof I am not inclined to pass any interim orders on the application. However, any action taken by the respondents during the pendency of the W.P. Shall be subject to the outcome of the W.P.”
5. It appears that despite the above order, MCD started raising constructions on the said site, which compelled the appellant to move another application, being CM 10381/B in CW 8272/02, on which the following order came to be passed by learned Single Judge on 12th September, 2003:-

“This is an application filed by the petitioner seeking restraint order against the MCD, Respondent No.2 from carrying out any construction. The interest of the petitioner is already fully protected vide order dated 20.12.2002 wherein it is stated that any action taken by Respondent No.2/MCD shall be subject to the outcome of the W.P. Thus even if some construction is made by Respondent/MCD thereafter, the same cannot create any special equities in favor of the MCD in view of the order already passed on 20.12.2002.
Dismissed with aforesaid observations.”
6. The learned Single Judge while disposing of the writ petition vide the impugned order has taken note of the sequence of events, the orders of the Permanent Lok Adalat dated 12.2.2002 and 13.8.2002 and has expressed his concern over the conduct of MCD by observing that despite interim orders dated 20.12.2002 (supra), MCD started construction and carried out the same up to the roof level only after the interim orders were passed. Though he observed that in the circumstances, there could be no equities in favor of MCD, however, it would appear that ultimately this factor and the loss to the exchequer, which was going to be caused in case of demolition of the said construction has weighed heavily with the learned Single Judge while passing the impugned order. The learned Single Judge observed that decision of DDA to cancel the allotment in favor of the appellant Society could not be sustained in law and there was no justification in law or on facts for the conduct of MCD. The writ petition has been disposed of with the directions to DDA to carve out 1.69 acres of land in favor of the appellant and 1 acre of land in favor of MCD in such a manner that the construction being carried out by MCD is least affected and the land to be handed over to the appellant should be contiguous. Learned Single Judge further directed that the appellant shall be entitled to interest from 1.3.1999 to 31.7.2002, which is actually liable to be recovered from the appellant against allotment of 1.69 acres of land @ 6% p.a towards the claim for compensation. The impugned order also directs the refund of the balance amount of premium money received by DDA to the appellant-Society along with 15% interest. However, the ultimate liability to pay this amount has been enfastened on the MCD.

7. Aggrieved by the said judgment, both the appellant Society as well as MCD have filed the appeals. The claim of the appellant-Society being for delivery of possession of the entire 2.47 acres of land allotted to it, while the MCD has assailed the impugned judgment on a variety of grounds.

8. We have heard Mr.P.P.Malhotra, learned Senior counsel representing the appellant-Society, Mr.Vinay Sabharwal, representing the MCD and Ms.Gita Mittal on behalf of DDA at length. We have also perused the record of the DDA in regard to the allotment of the land in question to the MCD and the appellant-Society. We are constrained to observe that despite specific directions, the DDA has failed to produce the relevant records relating to conversion of 4 sites earmarked for primary schools and two sites earmarked for senior secondary schools in Mayur Vihar Phase-II which could show at what stage and for what reasons and/or considerations and at what level in the hierarchy of the DDA, the decisions were taken to convert the school sites for the purposes like Community Centers (flats) and Parks etc. In the absence of relevant record forthcoming, we are entitled to presume that the conversion of these school sites for Community Halls/Parks was resorted to for certain extraneous reasons/considerations which the DDA is not prepared to disclose before the Court. The very fact that the conversion of school sites for the purpose of Community Halls (flats) or Parks etc. was made without providing for alternate sites for the schools, appears to be a serious matter which needs a thorough probe.

9. Mr.P.P.Malhotra, learned Senior Counsel representing the appellant-Society has vehemently urged that the impugned order so far as it has not allowed the claim of the appellant for possession over the entire piece of allotted land measuring 2.47 acres, cannot be legally sustained more particularly when the learned Single Judge himself arrived at a categoric finding that the decision of DDA to cancel the allotment of land in favor of the appellant was not legally sustainable and there was no justification in law or facts for the conduct of MCD. On the other hand, Mr.Vinay Sabharwal has sought to assail these findings and even the direction to hand over 1.69 acres of land to the appellant Society. Mr.Sabharwal infact conceded that there was a default/negligence on the part of MCD in not conveying its acceptance for the allotment of 1 acre of land made to MCD vide letter dated 9.9.1989 and in not depositing the amount of Rs.5,000/- as the premium amount for a long period of 8 years. He, however, contended that despite this default, DDA was not justified in cancelling the allotment of land allotted to the MCD, more so, when a MCD school had already commenced from the said site since 1994, which fact was very much in the knowledge of DDA. According to him, a vested right stood created in favor of MCD by being in actual physical possession of the site and by running a primary school for about 10 years. We have noted this submission only to reject the same because the law of the land, as it exists today, authorises no person or body of person or even statutory bodies like MCD to take law into their hands or to do what is otherwise impermissible to do under the law. Such like statutory bodies are governed by the Rule of Law and cannot become Law unto themselves. Allowing such corporations or authorities to function in any manner they like in total disregard of law on the assumption that the statutory bodies have any preferential rights, would be dangerous, as it will erode the majesty of Law on one hand and whittle down the rights of citizens on the other. In the present case, it appears that the MCD treated itself above the Law disregarding its rights and legal obligations even in contractual matters because the other authority (in the present case DDA) was also a statutory authority, and therefore, the two authorities were free to deal in any manner they liked without caring for their own laws, rules and bye-laws which, it appears, were violated with impunity in the case in hand. Can inaction of MCD for not conveying the acceptance of allotment and not paying a small premium of Rs.5,000/- for a period of 8 years be justified by any stretch of explanation? Without depositing the said amount, MCD entered into a wholly illegal misadventure by occupying the site in question and starting a primary school in the year 1994, without any permission, express or implied from DDA. A citizen if he had committed these acts of commission and omission, would be viewed as a rank trespasser, an encroacher, then what special privilege MCD has got in its favor not to be branded with any of these labels.

10. Mr.Sabharwal has then urged before us that the allotment of land in question in favor of the appellant Society was per se illegal and not in accordance with the Master Plan or Zonal Plan. In this connection, he has invited our attention to the extract of Delhi Master Plan, -“What will be Delhi in 2001; Delhi Master Plan, August, 1990 (revised)” and more particularly, to that part relating to `Education Infrastructure’, which lays down the norms in respect of the area of the land, which can be allotted to schools of different categories. It reads as under:-

“(a ) Pre-Primary Nursery School 1 for 2500 population Area for School 0.08 ha.
Pre-primary/Nursery School to be located near a park
(b) Primary School (Class I to V) 1 for 5,000 population Strength of the school 500 students Area per school 0.40 ha.
School building area 0.20 ha.

Play field area with a minimum of 18 m x 36 m to be ensured for effective play (c.) Senior Secondary School (VI to XII) 1 for 7,500 population Strength of the school 1000 students Area per school 1.6 ha.

School Building Area 0.60 ha.

Play field area with a minimum of 68 m x 126 m to be ensured for effective play.

(d) xxx xxx xxx

(e) xxx xxx xxx”

11. Mr.Sabharwal empathetically contended that no Middle Schools are envisaged under the Master Plan and, therefore, allotment of land to the appellant-Society for the purpose of a Middle School was not in accordance with law. We are unable to accept this contention because though the above Master Plan makes no separate provision/norms for allotment of land to Middle Schools but under the heading “Senior Secondary School Class VI to XII”, (Middle School Level), i.e. VI to VIII are included and have been taken care of. Ms.Gita Mittal, Advocate has submitted that the question of allotment of land for Middle School was duly considered in the meeting of the Technical Committee held on 15.10.1990 and the following decisions were taken:-
” The issue was discussed in detail and Technical Committee decided that minimum 0.4 ha. land be allotted for a primary school. Accordingly, the Primary School sites shown in approved layout plans need not be changed. The sites which are more than 0.6 ha. in area may be considered for allotment to a middle school on the recommendations by Delhi Administrator, Education Department. For secondary and Higher secondary schools, 1.6 ha. site be allotted whereas for a composite school, as recommended in MPD-2001, (3.5 to 3.9 ha.) land be considered for allotment. The schemes be formulated as per norms given in MPD-2001.”
12. Ms.Gita Mittal further submitted that owing to the acute shortage of land in Delhi, the said decision was revised and the revised norms have been fixed for allotment of land for the Middle Schools. In this connection reference has been made to the letter No.F.19(Misc.)/(6)/20 regarding the decisions taken in the meeting held on 16.2.2001 which provided that it was also decided that DDA will continue to make allotment of land as per the revised norms, i.e 2 acres of senior secondary schools, 1 acre for middle and primary school and about 800 to 1,000 sq.m. for nursery schools. Ms.Gita Mittal submitted that allotment of more than 1 acre of land to the appellant Society for the Middle School is perfectly in consonance of the revised decisions. That the appellant should not make any grievance if one acre of land is continued to be occupied by MCD for its primary school.

13. On the other hand, Mr.Malhotra has urged that DDA is not following any uniform policy in regard to allotment of land to various educational institutions. He has filed a list of several educational institutions, who have been allotted much more land than provided by the norms and some of the institutions, which can be taken note are mentioned at Serial No.27 (Priyanka Education Society) wherein a plot of land measuring 6,000 sq.m in Sector-18, Block-A, Rohini was allotted to the said Society for the purpose of a Middle School. Similarly another Society Pragati Education Society had been allotted a plot of land measuring 2 acres in Sector-18, Rohini for Middle School. Another Society Shree Ganesh Education and Welfare Society has been allotted a plot of 1.5 acres while Nanaksar Thath Isher Darbar has been allotted a plot of land measuring 2.74 acres at G.K.-II for Middle School and Gurdwara. Ms.Gita Mittal states that these were simply the proposals and have not materialised as the decision of allotment in these cases is the subject matter of certain investigations being undertaken by the CBI.

14. In the case in hand, the land in question was allotted to the appellant Society in July, 1998 and at that time, the norms laid down by the Technical Committee as on 15.10.1990, were applicable. As per these norms, a Middle School was required to be allotted land exceeding 0.6 hectares, i.e more than 1.5 acres and, therefore, the allotment of land measuring 2.74 acres in favor of the appellant cannot be said to be illegal or against the norms of the DDA. In any case, it was for DDA to have considered this plea at the time of allotment. The DDA and MCD is estopped from raising any such plea in regard to validity of the said allotment on the strength of later decisions.

15. Besides, allotment of land to the appellant-society was made by the DDA only after it was satisfied about the eligibility and genuine requirement of the appellant-Society for the said land. No default or negligence of any kind is alleged on the part of the appellant-Society in meeting its obligations in relation to the allotment of land. The DDA was contractually obliged to deliver the vacant possession of the allotted land in question to the appellant-Society. The appellant-Society strictly in accordance with the provisions of law, could not be told that the entire site cannot be handed over to them as MCD Primary School was functioning from the allotted site. The occupation of part of the site by MCD primary school was an important fact which could not have escaped the knowledge of DDA while offering the allotment of the land to the appellant. It is difficult to believe that the officers in the DDA were not aware of this fact. It is too late in the day to justify the cancellation of allotment of part of the land on the ground that one acre of land which was allotted to the MCD for construction of primary school as far back as in the year 1989, which allotment was cancelled in the year 1997 and thereafter it was regularised in favor of the MCD. This would clearly demonstrate that the DDA had no uniform Policy or guidelines to be adhered and could do or undo things unmindful of their statutory functions and contractual obligations. It appears to us that the part of the site was regularised in favor of the MCD pursuant to a question raised in the Parliament and on the directions of the Ministry of Urban Development. If the DDA considered the allotment of the land to the appellant just and proper why they had succumbed to the pressure of the Ministry? This would show that DDA was blowing hot and cold in the same breath. We fully endorse the conclusions arrived at by the learned Single Judge that the cancellation of allotment of part land to the appellant-Society was not in accordance with law. Once the cancellation is held to be illegal and unjustified, the natural consequence should be that the appellant should be put into possession of the entire 2.47 acres, may be it requires the demolition of the structure raised by the MCD during the pendency of the CWP.

16. The concept of ” Rule of Law” implies that all persons viz individuals or legal persons like institutions or organisations or for that matter the State or an instrumentalities of the State within the meaning of Article 12 of the Constitution are subject to law of the land alike. The State and the statutory authorities are not entitled to any preferential treatment in contra distinction to the individual citizens. Least they can be allowed to flout law of land with impunity merely on the assumption that they are the State or instrumentality of the State. The age old saying “Howsoever high you may be, the law is above you” applies without any exception to the instrumentality of the State and statutory bodies like the DDA and MCD.

17. Even at the sake of repetition, we would like to mention that the MCD has not only defaulted in conveying their acceptance to the allotment of land measuring 1 acre and making payment of a paltry sum of Rs.5,000/- towards lease premium for more than eight years till the allotment was cancelled. Even after the cancellation of the allotment of land, the MCD was not shaken and kept quite for two years before seeking the reallotment/regularisation of the land in their favor. The flash point reached when the MCD occupied the site in question unauthorisedly and without any permission from the DDA in 1994 and started running a primary school. Was the MCD within its rights to occupy the land in question without making payment of the lease premium and being handed over the possession by the DDA? The answer is not far to seek. The occupation of the land by the MCD for the above circumstances would therefore, necessarily fall within the expression “trespass/encroachment” etc. As if it was not enough, the MCD perpetuated the wrong by raising certain constructions on the site during the pendency of the writ petition despite clear order of the Court passed on 20.12.2002 and 12.9.2003. What this shows? This clearly exhibits the bent of mind of the authorities and officers of the MCD who were in the helm of affairs. The very fact that the MCD authorities decided to go ahead with the construction on a disputed piece of land where the challenge was to the allotment of land in their favor and its occupation would unerringly point out that the authorities wanted to make it a fete-accomplie, thereby leaving no scope for the court to order the restoration of the land to the Society even if the Society was found legally entitled to it.

18. The above conduct of the MCD is sought to be justified on the strength of the equities and larger public interest more particularly that of the children of weaker-sections of the society who are studying in the MCD primary school. This is a far cry and is like a convict, guilty of murdering his parents asking for clemency on the ground that he was an orphan. Where was MCD and its authorities when the DDA converted the sites earmarked for primary school in Mayur Vihar Phase-II for some other purposes i.e. for construction of community hall (flats) or for the purpose of parks etc. Why they did not make hue and cry for the cause of education to the children which was so dear to them and then why DDA converted those sites into parks and community hall etc. without providing other alternate sites for schools. The only explanation coming forth from DDA is that this was done in larger public interest. We are not able to comprehend what larger public interest was going to be served by converting the sites earmarked for primary schools into parks or into community hall/flats. In the absence of any record coming forth, we are entitled to presume that no larger public interest was involved in converting these sites of schools for other purposes. Rather we have a strong suspicion that this was done by certain vested interests for extraneous reasons/considerations. Who were those persons and what were the extraneous reasons for doing this type of conversions is a matter of inquiry at the high level.

19. The various acts of omission and commission on the part of the MCD as noticed by us in detail also need to be enquired by the Chief of the MCD and responsibility is required to be fixed and errant officials need to be suitably punished so that there is no recurrence of said like episodes.

20. It is pertinent to mention that during the course of hearing, various suggestions were put forward from the side the appellant-Society. One suggestion was that the appellant-Society may be handed over the possession of entire peace of land including the constructions raised by the MCD and the appellant-Society would reimburse the actual cost of construction incurred by the MCD and the appellant-Society would also accommodate all the students of the MCD primary school in the Middle School to be started by the appellant-Society and no fee would be charged from those students. The other suggestion was to accommodate the children of the existing MCD primary school being run in the site in question in the already functional MCD primary school in Mayur Vihar Phase-II at a distance of about 1 kilometer. The third suggestion was to allot a piece of land to the MCD in Mayur Vihar Phase-III. None of these suggestions found favor with the MCD or DDA and it was stated by the DDA that no other suitable site was available in Mayur Vihar Phase-II which could be allocated to the MCD for construction of a primary school.

21. We have noted with concern as to how at every stage the MCD has exhibited its conduct of high-handedness in the entire affair. If we go by the letter and spirit of Law, there is no escape from the conclusion that despite raising construction, no special equity is created in favor of the MCD. Legally and strictly, the construction raised by the MCD should be demolished and they should be asked to hand over the possession of the land to the appellant-Society. Despite our strong observations and reservations about the conduct of the MCD, we would not like to make such an order. The reason which impels us not to take such an extreme view is the larger public interest and the interest of education and the public exchequer which will suffer if we make such an order. The principle object of the appellant-Society and that of the MCD being one and the same, e.g. imparting of education to the children of the locality. The MCD primary schools are meant to cater the need of compulsory primary education to the children of weaker section of the society, It is common knowledge that any citizen with even moderate resources, prefers to get his child educated in a public school rather than sending him to a municipal school. What impels the parents to make such preference is again a question which the Corporation should address to itself.

22. Since in the case in hand, only one acre of land has been regularised in favor of the MCD and the learned Single Judge has also confined the claim of the MCD only to that extent and has directed that remaining 1.69 acres of land be regularised in favor of the appellant-Society after a proper segregation, we are of the considered opinion that this is the only conscientious solution of this controversy. Therefore, without upsetting the judgment of the learned Single Judge on the above aspect, we would like to give the following directions in the matter:-

I.The Chief Executive Head of the MCD will hold an inquiry into the various acts of omission and commission as noticed by us in detail in the judgment and fix the responsibility of the officer(s) of the MCD responsible for the same and would initiate disciplinary action against him/them. The inquiry to be completed and `action taken report’ to be submitted to the Court within four months.
II.We also direct the Secretary, Ministry of Urban Development, Government of India to inquire into the matter relating to the conversion of the primary and secondary school sites for other purposes than the schools without providing alternate site for the schools and the circumstances in which the allotment of the land to the MCD was cancelled and to pin-point the officer(s) of the DDA who were responsible for creating such an unsavoury situation. We further direct that appropriate disciplinary actions be initiated against the erring officer(s) and `action taken report’ be submitted to the Court within four months.
23. In the result, these appeals fail and are hereby dismissed with the above observations.