Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 26.05.2023
+ LPA No. 140/2021 & CM Nos.12990, 12992 of 2021
DELHI DEVELOPMENT AUTHORITY ..... Appellant
Through: Mr. Sanjay Jain, Senior Advocate
(ASG) with Mr. Nitin Mishra,
Mr. Nishank Tripathi, Mr. Arkaj
Kumar, Ms. Harshita Sukhija,
Advocates with Mr. Kamal Gupta,
Director, DDA.
versus
ACTION COMMITTEE, UNAIDED RECOGNIZED
PVT SCHOOLS ..... Respondent
Through: Mr. Amit Sibal, Senior Advocate with
Mr. Kamal Gupta, Mr. Sparsh
Aggarwal and Mr. Yash Yadav,
Advocates.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
HON'BLE MR. JUSTICE VIKAS MAHAJAN
J U D G M E N T
NAJMI WAZRI, J.
The hearing has been conducted through hybrid mode (physical
and virtual hearing).
1. This appeal impugns the judgment dated 24.01.2020 passed in
W.P.(C) No.10451/2015, wherein the learned Single Judge has held:
“126. Following on the above discussions, it is hereby
declared that the members of the petitioner-
Association/Society, which are entitled to income tax
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exemption, would be also entitled to run their schools at the
senior secondary level, without having to pay any additional
charges to the DDA, whether by way of additional FAR
charges, or otherwise. The DDA is also directed to modify the
lease deeds, executed with the individual societies, to the said
effect; however, it is clarified that the right of the societies to
run their institutions at the senior secondary level would not
be conditional, or dependent, upon such modification.”
Facts:
2. In terms of the Master Plan for Delhi, 2001 („MPD-2001‟),
which came into force on 01.08.1990 lands were allotted by DDA to
various societies/entities for running Nursery, Primary and Senior
Secondary schools. Recognition of schools is granted by Department
of Education, GNCTD, under the Delhi School Education Act, 1973.
Accreditation for higher secondary course is granted by CBSE/ICSE.
For the land allotted to the schools, premium was charged by the Delhi
Development Authority („DDA‟) for the entire land and not on the
basis of category of schools as mentioned in the allotment letter. The
premium was linked to the area where the land was located and
irrespective of the category of the school. Over the ensuing decades,
the population of Delhi grew manifold. The city planners cognized the
need for more schools and/or augmentation of the capacity of the
existing schools to cater to more school-going children. Since land in
the NCT of Delhi is limited, the growing needs could be met by letting
the existing educational institutions/schools grow vertically, by
increasing the Floor Area Ratio („FAR‟). It is in this background that
the Master Plan for Delhi, 2021 („MPD-2021‟) which came into effect
from 07.02.2007, reduced the minimum required land area for various
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categories of schools and increased the FAR for schools on the
allotted lands. A notification was issued permitting the schools to
construct more classrooms and/or provide additional infrastructure at
their campuses. The FAR for Nursery, Primary and Senior Secondary
schools was increased to 100%, 120% and 150% respectively.
However, DDA sought to capitalize on enhanced FAR by asking the
allottee/Society/school through an Office Order dated 29.08.2008, to
pay “premium at the rate applicable when the plot was allotted with
10% upto date annual increase”. The Office Order reads as under:
“
Dated: 29.08.2008
OFFICE ORDER
As per decision of the Authority, the Primary School/Middle School
plots having 0.8 hec. of land or more can be converted into Sr.
Secondary School, if a formal request is received from the Society.
Such converted plots shall be treated as one unit as applicable to Sr.
Secondary Schools and will be allowed over all 35% ground
coverage, 150 FAR and 18 meters height as prescribed for Sr.
Secondary Schools under the Development Control Norms of MPD-
2021.
For additional FAR, Societies shall have to pay premium at the
rate applicable when the plot was allotted and with 10% upto date
annual increase.
The lease deed shall be amended by the Lands Disposal Wing to
Sr. Secondary School from Primary School on specific request of the
Society.
The conversion will be totally optional and will be considered
only on a specific request of the society.
Sd/-
(Asma Manzar)
Commissioner (LD)”
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3. This was followed by two notifications of the DDA dated
10.10.2008 and 23.12.2008 issued under section 57 of the Delhi
Development Act, 1957 (the DDA Act), wherein the percentage of
levy and the increased FAR rates were specified. The learned Single
Judge has noted that the DDA‟s notification dated 10.10.2008 was
recommendatory in nature while the latter Notification dated
23.12.2008 merely specified the premium rates which would be
applicable for different areas of Delhi. The said notifications were
challenged in a batch of writ petitions. During the pendency of this
petition, the DDA issued another notification dated 17.07.2012,
whereunder it specified that additional FAR charges will not be
recovered from Educational Institutions/Trusts, Health-care and other
Social Welfare Societies etc. having exemption from Income-Tax.
4. A Division Bench of the court vide its order dated 20.07.2012
passed in South Delhi Educational Society vs. DDA and Anr. (W.P (C)
9572/2009), held inter-alia as under:
“... In view of the above notification it is absolutely clear that
no additional FAR charges are to be recovered from the
Educational societies/ Health care and Social welfare
societies having income tax exemption. As such no additional
FAR charges would therefore be recoverable from the present
petitioners. If any of the petitioners have made deposits in this
court pursuant to any order passed by this court the same
shall be returned to the respective petitioners. In case of any
Bank Guarantees that may have been furnished on account of
directions of this court in view of the additional FAR charges,
the petitioners concerned would also be entitled to have the
same revoked.
In view of the fact that now no FAR charges are to be
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recovered from the Educational societies/ Health care and
Social welfare societies having income tax exemption, any
action which may have been made conditional on the
payment of the additional FAR charges would now not have
the said condition. In other words, the non-payment of the
FAR charges will not come in the way of the petitioners to
proceed with their release of sanctioned building plans,
occupancy certificates, extension of time and NOCs etc. if the
other conditions prescribed in law are fulfilled…”
5. The same view and order was followed in two Division Bench
orders namely DDA vs. Jagan Nath Memorial Education Society,
(2014) 210 DLT 750-DB and Rohini Educational Society vs. D.D.A,
(2014) 143 DRJ 94-DB . The order of South Delhi Educational
Society (supra) has attainted finality as DDA‟s SLP against it was
dismissed. However, the issue of demand raised by the Office Order
dated 29.08.2008 remained. The learned Single Judge held that the
Office Order cannot overereach the statutory benefit extended to
schools by way of increase of the FAR. He rejected DDA‟s contention
that there is a distinction between the “upgradation charges” and
“additional FAR charges”. It has held inter-alia as under;
“…77. The distinction between “upgradation charges” and
“additional FAR charges” has, therefore, no legs to stand
on. In fact, para 3 of the affidavit, filed by the DDA, on 19th
November, 2018 itself states that “it was decided that
Educational Societies/Trust should not be exempted from
additional FAR/upgradation charges as the land allotted to
Societies by DDA is already less than the market rates…”
In a similar vein, the office noting, dated 9th May, 2018, of
the DDA, placed, by the DDA, on record under cover of an
affidavit dated 19th November, 2018, records that “it was
also expressed by officials present in the meeting that
Educational Societies/Trust should not be exempted from
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additional FAR/upgradation charges…” This, too, goes to
indicate that there is no distinction between charges for
upgradation and charges for being allowed for additional
FAR.
Right to seek modification of lease deeds
78. Referring to the prayer, of the petitioner, for a
mandamus, to the DDA, to modify the lease deeds, executed
by them, with the members of the petitioner society,
upgrading the level of school stipulated therein, to “senior
secondary”, Mr. Bansal has, while seeking to submit that
this would amount to novation of the lease deed, also gone
on to submit that the DDA had no objection to modifying the
lease deeds, as sought by the petitioner, provided the
petitioners were agreeable to paying the amounts claimed
by the DDA in return therefor. In view of this submission,
the right of the members of the petitioner to modification of
the lease deeds, executed by them, with the DDA, by
upgrading the category of school, as stipulated therein, is
not seriously open to question.”
6. He held that the Office order cannot travel beyond the statutory
notification issued under section 57 of the DDA Act wherunder the
FAR was enhanced. Another Office Order issued on 21.02.2014,
sought to resuscitate the order of 29.08.2008, however, the impugned
judgment has held that it would be a futile endeavour to resuscitate the
order, because the same would be deemed to be subsumed in an earlier
notification of 24.01.2014.
7. Office Orders cannot whittle down a notification, which has a
character of statutory regulation and the same would remain in force
till they are amended by the competent authority, which in this case is
the Government of India. In this regard, the learned Single Judge has
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held as under:
101. The Notification, dated 17th July, 2012, was by way of
an exception, carved out, in the case of educational
institutions/health-care and welfare societies, having
income tax exemption, from the normal requirement of
having to pay additional FAR charges, as stipulated by
Regulation 6(g), applicable to institutional plots/allotments.
102. Similarly, the Notification, dated 24th January, 2014,
too, excepted, from the normal requirement of payment of
additional FAR charges, as applicable to institutional plots
administered by educational societies/trusts, health-care
and social welfare societies, having income tax exemption.
103. The beneficial dispensation, conferred by the
Notifications, dated 17th July, 2012, and 24th January,
2014, therefore, extended only to educational, healthcare,
and social welfare societies having income tax exemption.
104. As against this, there is no reference to such societies,
in the Office Orders dated 29th August, 2008, and 21st
February, 2014.
105. Indeed, if one were to read the judgment dated 20th
July, 2012, in WP 9572/2009 (South Delhi Educational
Society supra), the Division Bench of this Court has noticed
precisely this.
…”
8. The conclusion of the learned Single Judge were on the basis of
the extensive analysis of MPD-2021, effect of statutory Notifications
issued under the DDA Act. According to the learned Single Judge, the
enhancement of FAR was to be enjoyed by the parties without levy of
any charge. The writ petition was allowed holding that: i) there can be
no additional FAR charges or upgradation charges and ii) appellant‟s
right to run the educational institutions would not be conditional or
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dependent upon modification of their lease deeds.
Contentions on behalf of the appellant-DDA:
9. The learned ASG appearing for the DDA submits that: i) the
said judgment has erred because the Perpetual Lease Deed dated
06.08.2004 has to be strictly interpreted inasmuch as it has been
executed under section 3 of the Government Grants Act, 1895 and the
same would prevail, irrespective of any statutory prescription or order
to the contrary, ii) the lay-out plan annexed with the lease deed would
require changes and upgradation, therefore, upgradation charges are
leviable, iii) the upgradation requires multi level planning of all areas
under exclusive jurisdiction of DDA and the same cannot be taken
away by any Notification or by mere increase in the FAR. He says that
although the FAR charges/upgradation charges are to facilitate the
allottees to enjoy the increase in the FAR and the same was
specifically clarified in DDA‟s Office Order dated 29.08.2008, which
stipulates that “....For additional FAR, societies shall have to pay
premium at the rate applicable when the plot was allotted and with
10% upto date annual increase.”
10. However, after some arguments, the learned ASG had
submitted, upon instructions, that DDA is in the process of
formulating a policy as regards the nature, scope and implementation
of Proviso to clause II(13) of the Perpetual Lease Deed dated
06.08.2004, concerning institutional plots allotted for primary and
middle schools, keeping in mind the MPD-2021, which provides for
integrated schools as well as in view of the mandate of Articles 21 A
and 45 of the Constitution of India, 1949, Delhi School Education Act,
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1973 and the Right of Children to Free and Compulsory Education
Act, 2009. He submits that in view of the same, DDA was willing to
withdraw its office order dated 29.08.2008 and Notifications dated
10.10.2008, 21.12.2008, 17.07.2012, 24.01.2014 and 21.02.2014 and
issue appropriate Office Order or Notification in terms of the New
Policy. Therefore, the DDA requests that the observations contained
in paragraphs 119, 120 and 126 of the impugned order be set aside.
11. The court is of the view that for DDA‟s intention,
contemplation or proposal to withdraw the impugned Office Orders
and Notifications is of no consequence, after the same have been
adjudicated upon and it having been held that the respondent
Association/Society, which are entitled to income tax exemptions,
would not be required to pay any additional charge to DDA, whether
by way of any additional FAR charges or otherwise. The issue was
examined in great detail by the learned Single Judge in the context of
MPD-2021. Therefore, there is no occasion at this stage, for acceding
to the aforesaid request. Moreover, if the impugned Office Orders and
Notifications are allowed to be withdrawn after about a decade and a
half, it would cause irreparable prejudice to the respondent
Association/Society, as well as to entities having claims like the
respondent i.e. those who are seeking or hopeful for a similar relief
under the enhanced FAR allowed by MPD-2021. If the DDA‟s belated
request is even considered or allowed then Notifications/ Office
Orders, may be notified, which could well be the subject matter of
further litigation, thus further defeating the objective of the increased
FAR i.e. to accommodate more students in the existing schools, etc.
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KUMAR
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The prudence, foresight and wisdom of the city planners to provide for
the growing need for schools to accommodate more students in the
future is embodied in the adaptive modification of MPD-2021 vis-a-
vis the previous MPD. The vision needs to be given full effect as it
seeks to provide for the much needed infrastructure for education to
generations of school children. By a Notification dated 21.02.2014,
the benefits were extended to the educational trusts as well.
Respondent‟s contention
12. Mr. Amit Sibal, the learned Senior Advocate for the respondent
submits that: i) there is no error in the impugned order, the appeal is
without basis and should be dismissed, ii) there is no basis for DDA‟s
insistence or demand for additional FAR charges or upgradation
charges because the nature of activities carried out by the respondent
is in terms of the MPD-2021, which itself, does not contemplate any
additional FAR charges and iii) therefore, the relevant lease deeds will
have to be interpreted, in terms of what the law prescribes and permits.
13. The MPD is a statutory document. It is the law concerning the
extent to which building can be constructed on lands allotted by DDA
for setting up schools/educational institutions. The law has changed in
favour of the schools. The Master Plan has increased the FAR without
levy of charges. The rationale for the increase in FAR and for
encouraging integrated schools from pre-primary to higher secondary,
is articulated in clauses 13.2 and 13.3 of MPD-2021. The same are
reproduced hereunder:
•13.2 EDUCATION
“…The literacy rate in Delhi has increased from 75.3% in the
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year 1991 to 81.82% in the year 2001. In overall terms Delhi
has a fairly elaborate network of educational institutions
from the pre-primary / primary to the higher education and
professional education levels. At present there are 2416
primary schools, 755 middle schools, and 1576 secondary /
senior secondary schools. At the higher/ professional
education levels, there are 114 colleges for general
education, 8 engineering colleges, 4 universities, 7 deemed
universities one Open University .
However, there is a deficiency in few planning zones,
particularly in the field of school education. Further, keeping
in view the fast changing national and global economic
scenario, the employment and educational requirements are
also undergoing a rapid change involving the development of
new professional and vocational avenues for specialised
education. A number of coaching centres, computer training
institutes and language/ training classes are opening up.
However, these are mainly operated by the private sector.
Suitable provision for such centres in commercial areas is
desirable with a view to enhancing the financial resources of
the concerned land owning agency.
With the consequent potential for availability of financial
resources for this purpose, involvement of the private sector
in the development of educational facilities is growing.
Keeping the, need for expansion and diversification as
brought out above, the availability of land could become a
major constraining factor. It has, therefore, become
necessary to develop policies and norms, which would enable
optimal utilisation of land and available, educational
infrastructure. As far as school education is concerned, the
policy should be geared to encourage integrated schools from
the pre-primary to the higher secondary level, rather than
allocating space separately tor Nursery Schools, Primary
Schools and Middle Schools. Primary Schools may
specifically be set up by the Delhi Government or the Local
Civic Bodies.
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KUMAR
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Following planning policy parameters are proposed:
i) Differential norms and standards for various
educational institutes / institutions shall be
applicable in the light of the norms of the
concerned controlling authorities, e.g. University
Grants Commission (UCC) / All India Council for
Technical Education (AICTE) / Directorate of
Education, GNCTD / Central Board of Secondary
Education (CBSE) etc.
ii) Coaching centres / vocational training centres
would be permissible in school classes after
school hours with (a) prior approval of Competent
Authority in the case of schools run by GNCTD or
local body and (b) with prior intimation to lessor
and payment of fee to be prescribed in the case of
schools run privately on leased land. Structured
courses leading directly to degree / diploma shall
however not be permitted.
iii) The educational institution premises may be
permitted to function in two shifts, subject to
statutory approvals and any other conditions that
may be stipulated by the relevant competent
authority.
iv) Nursery School may function as part of Primary
School /Secondary School / Senior Secondary
School, wherever needed. Separate / exclusive
Nursery Schools are permitted in residential
premises as per the Mixed-use policy.
v) Requirement of schools and training centres for
mentally and physically challenged with
differential development norms are given.
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Digitally Signed By:KAMLESH
KUMAR
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14. The vision and hope of the city planners reflected in MPD-2021
is to be given full-effect lest the NCT suffer from lack of educational
facilities. Interestingly, the impugned judgment has also observed that
this is a case where the DDA seems to be working in cross-purpose
with the DoE/CBSE. It has held as under:
“…
117. This case highlights, unfortunately, a situation in
which the DDA and the DoE/CBSE are working at cross
purposes. Admittedly, pursuant to recognition having been
granted, to them, for the said purpose, the affected
institutions of the petitioner-Society are functioning at the
senior secondary level. In fact, submits Mr. Sibal, the issue
of permission to function at the senior secondary level does
not, in view of this fact, survive for consideration. A reading
of the various file notings, which have been placed on
record, indicates that the opinion, of the Hon‟ble LG, while
examining the issue of grant of recognition, to the
institutions, and recommended permitting of the institutions
to function at one level higher than that stipulated in the
lease deeds executed by the DDA, was that the policy of the
DDA was essentially with respect to allotment, and not
recognition. This view, though superficially in order,
however, effectively misses the wood for the trees, as is
apparent from the controversy that has arisen in the present
case, in which the institutions have been permitted, by the
CBSE and the DoE, to function at senior secondary level,
and are so functioning, but are being inhibited from doing
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so, by the DDA, by the demand for exorbitant additional
FAR charges.
118. It would be wise to remember that, in cases dealing
with educational institutions, there is an overwhelming
element of public interest. Education, earlier a directive
principle of State policy, contained in Article 45 of the
Constitution of India has, with the insertion of Article 21A
by the 86th Amendment to the Constitution in 2002, been
elevated to the status of a fundamental right, relatable as
much to Article 21 of the Constitution of India, as to Article
21A. The right to education also stands statutorily sanctified
in what has come, popularly, to be known as the Right to
Education Act. Maximising the reach of education is
therefore, not only an avowed constitutional objective but is,
indeed, a treasured constitutional imperative. Every effort
has to be made towards achieving this end, and financial
considerations of the Government, though undoubtedly
entitled to their due weight, have to cede place to the right
to education.
119. I am constrained to enter these observations in view of
the somewhat unsettling submission, advanced by Mr.
Bansal on behalf of the DDA, that the DDA was willing to
allow additional FAR to the petitioner, but, if the petitioner
desired to have its lease deeds amended, it would have to
pay the charges, demanded by the DDA therefor. To my
mind, this stand is completely unreasonable, and amounts to
an attempt to take away, with the left hand, that which is
given with the right. As the Office Order, dated 29th August,
2008, issued by the DDA itself, clearly demonstrates,
modification of the lease deeds is but a procedural sequitur,
to the upgradation of the institutions to senior secondary
level, which entails, in its wake, right to additional FAR and
extra ground coverage. In fact, the said Office Order makes
it clear that the petitioners would be entitled to such
upgradation, as well as to the additional FAR and
additional ground coverage which follows as a consequence
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thereto. I am in agreement with the submission, of Mr.
Sibal, that entitlement to additional FAR and ground
coverage are statutory sequiturs, granted by the MPD 2021,
to the grant of permission to the schools to function at the
senior secondary level, and cannot, therefore, be made
dependent on payment, to the DDA, of any additional
amount. The Office Order also makes it clear that the DDA
would be obliged to amend the concerned lease deeds
appropriately – as is manifested by the use of the word
“shall”. The only covenant, in the said Office Order, with
which the petitioners are aggrieved, is the stipulation that,
in order to be able to enjoy the additional FAR, additional
FAR charges would have to be paid by the concerned
societies. Today, before this Court, the contention of Mr.
Bansal is that the DDA has no objection to allowing
additional FAR to the petitioner, and its member-Societies,
but that, if the lease deeds have to be modified or amended,
that would be allowed at a price. This stand, in my view, is
directly contrary even to the Office Order dated 29th
August, 2008, and is unavailable to the DDA. Once this
Court has held that additional FAR charges would not have
to be paid by the members of the petitioner-Society, all other
stipulations, in the Office Order dated 29th August, 2008,
would kick in, and modification/amendment of the lease
deeds – which, in the peculiar circumstances of this case, is
only a procedural requirement – would necessarily have to
be effected by the DDA.
120. For the same reason, I am of the opinion that the
layout plan, annexed to the lease deeds, cannot affect the
right of the petitioners to function as senior secondary
schools, without having to pay any additional FAR charges,
or, indeed, any other additional charges, to the DDA.
…”
15. In view of the above reasoning and conclusion, with which we
concur, the contentions raised on behalf of DDA are untenable and
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KUMAR
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rejected. The statutory notifications under sections 57 and 58 of the
DDA Act, would prevail over the lease deeds, which at the relevant
time when they were executed, was on the basis of the then prevailing
Master Plan. However, now the Master Plan permits enhanced FAR
and a lesser requirement of land area for running schools in Delhi. It
encourages creation of integrated schools. The statutory effect of the
MPD cannot be denied to the schools/Societies. The perpetual Lease
Deeds/Allotment Letters would have to be read meaningfully along
with statutory/vision document viz the Master Plan-2021. Not doing
so would tantamount to denying a statutory right created in favour of
the schools. The statutory notifications cannot be over-ridden by way
of an Office Order issued by DDA.
16. What emerges from the preceding discussion is that the
upgradation of schools from one category to other i.e. from Primary to
Senior Secondary is neither the domain nor the jurisdiction of the
DDA. This is to be done by the Directorate of Education, GNCTD and
CBSE. The lands were allotted to schools in Delhi on the basis of the
size of the plot of the land and the premium of that location/area. Now
that the schools have been permitted, by way of statutory notification,
an enhancement of FAR as per MPD-2021, no upgradation charges
are leviable because the land already stands allocated and only the
additional FAR is to be utilized. The notifications dated 17.07.2012
and 24.01.2014 have been issued by the Central Government under
sections 57 and 58 of the DDA Act. They are not something from
which the DDA can withdraw or resile from. These statutory
notifications are to be applied in full measure to optimize the benefit
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KUMAR
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envisaged therein, for the larger public good.
17. In view of the above, we see no reason to interfere with the
findings and directions of the impugned judgment. The appeal is
without merit and is accordingly dismissed, alongwith pending
applications.
18. Applications for NOC/Sanction for utilisation of the additional
FAR shall be addressed by the DDA within four weeks of receipt of
the same.
NAJMI WAZIRI, J
VIKAS MAHAJAN, J
MAY 26, 2023
SB/SS
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Digitally Signed By:KAMLESH
KUMAR
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