Justice for All Vs. Govt. of Nct of Delhi and Anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/5905
CourtDelhi High Court
Decided OnNov-24-2014
JudgeRajiv Sahai Endlaw
Appellant Justice for All
RespondentGovt. of Nct of Delhi and Anr.
Excerpt:
*in the high court of delhi at new delhi date of decision:24. h november, 2014 % + w.p.(c) no.4607 /2013 justice for all through: .... petitioner 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, j1 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. gnctd109(2003) dlt489 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. gnctd140(2007) dlt698. thereafter, also from time to time orders inter alia reported in 112 (2004) dlt791and 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 november24 2014 ‘gsr’
Judgment:

*IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:

24. h November, 2014 % + W.P.(C) No.4607 /2013 JUSTICE FOR ALL Through: .... Petitioner 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, J1 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. GNCTD109(2003) DLT489 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. GNCTD140(2007) DLT698. Thereafter, also from time to time orders inter alia reported in 112 (2004) DLT791and 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 NOVEMBER24 2014 ‘gsr’