D.A.V. College Trust and Management Society v. Delhi Development Authority

Delhi High Court · 05 Dec 2022 · 2022:DHC:5329-DB

Satish Chandra Sharma; Subramonium Prasad

LPA 657/2022

2022:DHC:5329-DB

administrative appeal_dismissed Significant

AI Summary

The Delhi High Court dismissed the appeal holding that time-bound permissions for nursery school land lapsed and subsequent policy changes mandating auction-based allotment override any legitimate expectation claimed by the appellants.

Full Text

Neutral Citation Number of LPA-657/2022 : 2022/DHC/005329

LPA 657/2022
HIGH COURT OF DELHI
Date of Decision: 05th DECEMBER, 2022 IN THE MATTER OF:

LPA 657/2022 & CM APPL. 49132/2022
D.A.V. COLLEGE TRUST AND MANAGEMENT SOCIETY &
ANR. ..... Appellants
Through: Mr. Rajshekhar Rao, Sr. Advocate with Mr. Mobashshir Sarwar, Advocate

VERSUS

DELHI DEVELOPMENT AUTHORITY & ORS. ..... Respondents
Through: Mr. Sanjay Katyal, Standing Counsel, DDA with Mr. Nihal Singh, Advocate.

CORAM:

HON’BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

JUDGMENT

1. The Appellants herein seek to challenge the Orders dated 10.10.2019, passed by the learned Single Judge in W.P. (C) 7532/2013, dismissing the Writ Petition which was filed by the Appellants herein seeking quashing of the letter dated 08.10.2013, issued by the DDA, rejecting the request of the Appellants herein for regularization of nursery school site/land at Shrestha Vihar Delhi (hereinafter referred to as „the area in question‟) & 16.09.2022, passed by the learned Single Judge rejecting the Review Petition, being Review Petition No.140/2022, which was filed by the Appellants herein seeking review of the Order dated 10.10.2019.

2. Shorn of details, the facts of the case are as under: a) Appellant No.1 is running a number of schools and colleges in different parts of the country. It is stated that the residents of Respondent No.3 herein, i.e. Shreshta Cooperative House Building Society Ltd., requested the Appellant No.1 herein to start a school in the area. Accordingly, a resolution was passed by the Managing Committee of the Respondent No.3/Society that they have no objection if DDA allots two school sites to the Appellant No.1 herein to start the schools. It is stated that a nursery school was proposed to be established in the area. It is stated that the Government of National Capital Territory of Delhi (hereinafter referred to as „the GNCTD‟) wrote a letter dated 16.02.1996 under Rule 44 of the Delhi School Education Rules, 1973 (hereinafter referred to as „the DSER’) to the Appellant No.1 herein accepting its request for establishing a new nursery school in the area in question. However, the acceptance was only for a period of three years. A perusal of the said letter shows that the Government has clearly mentioned that the acceptance to establish new school by the Appellant No.1 herein will automatically lapse if the Appellant No.1 herein fails to obtain recognition from the appropriate authority after fulfilling the condition of recognition as laid down in Rules 50 & 51 of the DSER. b) It is stated that DDA wrote a letter to the Appellant No.1 herein requesting it to submit sponsorship for the nursery school so that further action can be taken. It is stated that on 19.09.2000, GNCTD wrote a letter to the DDA stating that the Land Allotment Committee as constituted by the Lt. Governor has considered recommending allotment of land to the Appellant No.1 herein for establishment of nursery school in the area in question on certain conditions. A perusal of the said letter shows that the sponsorship given by the DDA was valid till 31.03.2001. c) Material on record further shows that on 09.11.2001 once again a letter was written by the DDA requesting the Appellant No.1 herein to submit a sponsorship in favour of regularization of the Nursery School site. In reply of the said letter, a letter dated 19.09.2005 was written by the Appellant No.2 herein stating that the sponsorship letter had been sent on 23.11.2001. Material on record indicates that despite various communications the requisite letter for regularization of the nursery school was not received by the DDA and on 08.10.2013 a letter was sent by the DDA to the Appellant No.2 herein stating that the application for regularization of the nursery school cannot be accepted by the DDA as the mode of allotment of land to schools has been changed to auction mode as per Gazette Notification of the Government of India dated 19.04.2006 and, therefore, the allotment of nursery school has been discontinued. d) A show-cause notice was issued by the DDA to the Appellants herein on 12.11.2013 seeking response as to why action should not be taken against them for encroaching upon the DDA land without their permission. e) A Writ Petition, being W.P.(C) 7532/2013, was filed by the Appellants herein seeking quashing of the letter dated 08.10.2013, sent by the DDA rejecting the request of regularization of the Nursery School as the mode of allotment of land to schools has been changed to auction mode, on the ground that the said letter was illegal, arbitrary, unreasonable, mala fide, vindictive, unjust and discriminatory. A further prayer for not initiating proceedings against the Appellants was also made in the said Writ Petition. f) In the said Writ Petition, a counter affidavit was filed by the DDA stating that the permission for regularization of the School in question was given by the DDA as early as 2000 and the Appellants have approached the Court only in the year 2013 and, therefore, the Writ Petition is barred by delay and laches. It was also stated in the counter affidavit that a notification was issued by the Government of India to amend Delhi Development Authority (Disposal of Development Nazul Land) Rules, 1981 and according to the said notification, allotment of land to schools could only be made through auctions. In the said notification it was stated that the DDA, in conformity with plans and subject to the provisions of the rules, dispose the Nazul land only by auction to hospitals, dispensaries, nursing homes, higher or technical education institutions, community halls, clubs and schools, etc. It is stated that despite the fact that the Nazul Land Rules were amended in 2006, no Writ Petition was filed by the Appellants herein till 2013. It is further stated that on 07.02.2007, Master Plan 2021 was notified by the DDA and under the said Plan there was no provision for allotment of land to Nursery Schools. g) The learned Single Judge, vide Order dated 10.10.2019, dismissed the Writ Petition by holding that the Appellants herein are running a Nursery School as well as a Senior Secondary School in the area and regularization was granted by the DDA to the Senior Secondary School, however, due to change in policy, the Nursery School run by the Appellants could not be regularized. h) A review Petition being, Review Pet. 140/2022, was filed by the Appellants herein seeking review of the Order dated 10.10.2019. The same was dismissed by the learned Single Judge vide Order dated 16.09.2022. i) The Appellants have, thereafter, filed the instant appeal.

3. Learned Counsel for the Appellants has drawn the attention of this Court towards the fact that the DDA had sought for a sponsorship for regularization of the Nursery School from the Appellants herein vide letter dated 24.03.2000 and the same was obtained by the Appellants herein on 19.09.2000. He states that vide letter dated 19.09.2005, the Appellants had informed the Respondents that the requisite sponsorship letter received from the Assistant Director of Education (Capital Works) for allotment of land to the Appellant No.1 herein for establishing a Nursery School in the area in question has already been sent vide letter No.807 dated 23.11.2001. He, therefore, submits that once the letter has been submitted by the Appellants, the DDA ought to have regularized the Nursery School. He states that the said letter was given way back in 2001 when the mode of allotment of land had not been converted to auction mode and, therefore, the DDA ought to have allotted the land to the Appellants herein. He states that the act of omission on the part of the DDA in not regularizing the Nursery School in spite of the Appellants providing the requisite letter in 2001, amounts to violation of Article 14 of the Constitution of India.

4. Per contra, learned Counsel for the DDA supports the judgment passed by the learned Single Judge.

5. Heard the Counsels for the parties and perused the material on record.

6. The facts, as placed before this Court by the Appellants herein, reveals that on 30.10.1988 the Managing Committee of Shrestha Vihar Cooperative House Building Society approved opening of a Branch of DAV Nursery and Primary/Middle School in the area in question. In terms of the resolution passed by the Managing Committee, a request was made by the Appellants herein for allotment of land for Nursery School at the area in question. In 1996, the GNCTD had sent a letter accepting the request of the Appellant No.1 for establishing a nursery school. However, the acceptance was valid only for a period of three years. In 2000-2001, DDA requested the Appellant No.1 herein to submit sponsorship in favour of allotment/regularization of Nursery School. In 2005, it was informed by the Appellant No.1 that the sponsorship letter had already been sent by them. On 19.04.2006, Ministry of Urban Development, Government of India, issued a notification to amend Delhi Development Authority (Disposal of Nazul Land) Rules, 1981, according to which allotment of land to Nursery School could only be made through auction mode. Master Plan 2021 was notified by the DDA on 07.02.2007 and under the said Master Plan, no provision was there for allotment of land to Nursery Schools. Vide letter dated 19.09.2013, the Appellant No.1 herein requested DDA for regularization of the Nursery School site which was rejected by the DDA vide letter dated 08.10.2013 and consequent to the said rejection, a show cause notice dated 12.11.2013 was issued by the DDA to the Appellants herein seeking reply as to why action should not be taken against the Appellants herein for encroaching upon the DDA land without prior permission of the Authority.

7. The facts, as stated above, shows that the Appellants did not approach this Court from 2001-2013 and they have approached this Court only after a show cause notice was issued by the DDA for removing the encroachment from the DDA land. The facts also show that in 2006 a notification had been issued by the Ministry of Urban Development, Government of India, amending Delhi Development Authority (Disposal of Nazul Land) Rules, 1981, according to which allotment of land to Nursery School could only be made through auction mode. The said amendment has not been challenged. Thereafter, Master Plan 2021 was notified by the DDA on 07.02.2007 and under the said Master Plan, no provision was made for allotment of land to Nursery Schools.

8. The short question which arises for consideration is as to whether any right enured on the Appellants herein when they obtained the sponsorship from the GNCTD to establish Nursery School or not and further whether the communication dated 19.09.2000, which was valid till 31.03.2001, informing the Appellants herein that the Lt. Governor has recommend allotment of land to them for establishment of Nursery School in the area in question, creates any rights in favour of the Appellants herein or not.

9. Material on record indicates that on 16.02.1996, the GNCTD issued an essentiality certificate under Rule 44 of the DSER to the Appellants herein to establish a new nursery school in the area in question. However, acceptance of the said certificate was limited only for a period of three years and the letter categorically states that the acceptance to establish a Nursery School will automatically lapse if the Appellants herein fail to obtain recognition from the appropriate authority after fulfilling the conditions of recognition as laid down under Rules 50 & 51 of the DSER. Material on record further indicates that on 19.09.2000, DDA issued a recommendation letter to the Appellants herein for establishment of a nursery school. Clause 3(b) of the said letter states that the sponsorship is valid only till 31.03.2001 for applying to land owning agency where after the sponsorship letter for allotment of land to the Appellants herein will be treated as lapsed. Material on record further shows that there was a complete silence on the part of the Appellants herein till 19.09.2005 when the Appellant No.2 wrote a letter to the DDA stating that they had sent a sponsorship letter vide letter No.807 dated 23.11.2001. The counter affidavit filed by the DDA does not indicate as to whether the said letter was sent to the DDA and as to whether the DDA has received that letter or not. Even after 2005 there was a complete silence on the part of the Appellants till 2013 when a request for recognition of the School was made by the Appellants herein and the same was rejected by the DDA vide letter dated 08.10.2013. The Appellants herein, therefore, ought to have approached this Court in time. The Delay in approaching the Court has not been explained by the Appellants. In any event, in 2006 there was a change in the policy and a notification was issued by the Ministry of Urban Development, Government of India, amending the Delhi Development Authority (Disposal of Nazul Land) Rules, 1981, and according to the said notification and in conformity with plans and subject to the provisions of the rules, Nazul land was to be disposed of only by auction to the hospitals, dispensaries, nursing homes, higher or technical education institutions, community halls, clubs and schools, etc. Further, in 2007 Master Plan for 2021 was notified by the DDA and under the said Plan, practice of providing dedicated Nursery School plots in the layout plan was discontinued. Neither the Amendment to the Delhi Development Authority (Disposal of Nazul Land) Rules, 1981, dated 19.04.2006 nor the 2007 Master Plan are under challenge in the Writ Petition.

10. The case of the Appellants herein can, therefore, be best placed on the principles of legitimate expectation that the sponsorship certificate issued by the School (which is not established as to whether the same was received by the DDA or not) creates some kind of right in favour of the Appellants herein which could be enforced by way of the instant petition.

11. The Apex Court in Navjyoti Coop. Group Housing Society v. Union of India, (1992) 4 SCC 477, has observed that the authorities could not defeat legitimate expectation without demonstrating some overriding reason for change in policy. It is well settled that a person who bases his claim on the basis of legitimate expectation, in the first instance, must satisfy that there is a foundation and has locus standi to make such a claim but the decision taken by the authority is based on the policy or even if the claim of legitimate expectation has been taken away by change of policy, the Courts will loath to interfere with the decision.

12. The Apex Court in Food Corporation of India v. Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71, has held as under:

“8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to

be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.”

13. In Sethi Auto Service Station v. Delhi Development Authority, (2009) 1 SCC 180, the Apex Court after referring to various precedents has observed as under:

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“32. An examination of the aforenoted few decisions shows that the golden thread running through all these decisions is that a case for applicability of the doctrine of legitimate expectation, now accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfil unless some overriding public interest comes in the way. However, a person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. 33. It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or in the public interest unless the action taken amounts to an abuse of power. The court

must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. [Vide: Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499]” But on the facts of that case, has held as under:

“37. It is plain that under the new policy, resitement of a petrol pump, etc. is possible only when the existing petrol pump is utilised for a planned project/scheme, which directly necessitates the closing down of the petrol pump. Under the new policy, resitement on account of fall in sales, etc. is not contemplated. In fact, resitement on any other ground is specifically ruled out. It is also evident from the new policy that in the event of DDA permitting resitement, the possession of the old site has to be delivered to DDA, which presupposes that the old site was also allotted by DDA. As noted above, the existing sites on which the two petrol pumps in question are operating were allotted by the Airport Authority of India and not by DDA. 38. Having bestowed our anxious consideration to the facts in hand, in our judgment, the doctrine of legitimate expectation, as explained above, is not attracted in the instant case. It is manifest that even under the 1999 policy, on which the entire edifice of the appellants' substantive expectation of getting alternative land for resitement is built does not cast

any obligation upon DDA to relocate the petrol pumps. The said policy merely laid down a criterion for relocation and not a mandate that under the given circumstances DDA was obliged to provide land for the said purpose. Therefore, at best the appellants had an expectation of being considered for resitement. Their cases were duly considered, favourable recommendations were also made but by the time the final decision-making authority considered the matter, the policy underwent a change and the cases of the appellants did not meet the new criteria for allotment laid down in the new policy.”

14. Similarly, in a recent case, in State of West Bengal and Others v. Gitashree Dutta (Dey), 2022 SCC OnLine SC 691, the Apex Court, after considering the cases of Food Corporation of India v. Kamdhenu Cattle Feed Industries (supra) and Sethi Auto Service Station (supra), has held as under:

“10. The doctrine of “legitimate expectation” has been developed in the context of principles of natural justice. „Legitimate expectation‟ is a public law right whereas „promissory estoppel‟ is a private law right. The doctrine of legitimate expectation in public law is based on the principle of fairness and non- arbitrariness in governmental actions. 11. However, the doctrine of legitimate expectation ordinarily would not have any application when the legislature has enacted the statute. Further, the legitimate expectation cannot prevail over a policy introduced by the Government, which does not suffer from any perversity, unfairness or unreasonableness or which does not violate any fundamental or other enforceable rights vested in the respondent. When the decision of public body is in conformity with law or is in public interest, the plea of legitimate expectation cannot be sustained. In Punjab Communications Ltd. v.

Union of India[1] this Court held that policy decision creating the legitimate expectation which is normally binding on the decision maker, can be changed by the decision maker in overriding public interest. It was held as under:

“37. The above survey of cases shows that the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision-maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way…….””

”

15. Applying the law laid down by the Apex Court to the present case, it can be seen that there was no promise by the DDA to regularize the School. The permission which was given by the GNCTD was only for a period of three years from 1996 and the sponsorship given by the DDA was valid only till 31.03.2001. The right, if any, which was created extinguished in 2001. There is nothing on record to show that there was any renewal of the said permission. The policy of the Government of India changed in the year 2006 by which land could only be allotted to School by auction and in any event, in the Master Plan 2021 which was notified by the Government in 2007, there was no provision for allotment of lands to the nursery schools at all. The amendment to the Delhi Development Authority (Disposal of Nazul Land) Rules, 1981 and the Master Plan 2021 are obviously in public interest which will override the doctrine of legitimate expectation as pleaded by the Appellants herein. Therefore, this Court does not find any reason to interfere with the judgment of the learned Single Judge.

16. Accordingly, the appeal is dismissed, along with pending application(s), if any.

SATISH CHANDRA SHARMA, C.J. SUBRAMONIUM PRASAD, J DECEMBER 05, 2022

D.A.V. College Trust and Management Society v. Delhi Development Authority

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