Full Judgment Text
2024 INSC 33
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 3659-3660 OF 2023
DELHI DEVELOPMENT
AUTHORITY …APPELLANT(S)
VERSUS
HELLO HOME EDUCATION
SOCIETY …RESPONDENT(S)
J U D G M E N T
VIKRAM NATH, J.
1. These appeals by the Delhi Development Authority
assail the correctness of the judgment and order
dated 12.11.2021 passed by the High Court of Delhi
in L.P.A. No.224 of 2019, whereby the appeal filed by
the appellant was dismissed and the judgment of the
learned Single Judge dated 15.11.2018 in Writ
Petition (Civil) No.4459 of 2014 allowing the writ
petition was confirmed. Further challenge is to an
order dated 22.02.2022 passed in Review Petition No.
Signature Not Verified
Digitally signed by
SONIA BHASIN
Date: 2024.01.11
17:22:30 IST
Reason:
15 of 2022, by which the review petition was
Civil Appeal Nos. 3659-3660/2023 Page 1 of 33
effectively dismissed except for a clarification that in
the main judgement, in place of ‘Jasola’ with respect
to the resolution of Institutional Allotment
1
Committee and the approval of Lieutenant Governor,
the word ‘Vasant Kunj’ be read.
Brief facts:
2
2. Hello Home Educational Society desired to establish
a new Junior High School (Class I to Class VIII) in
Jasola area, New Delhi. For the said purpose, the
Society was required to obtain an Essentiality
Certificate, Sponsorship Letter and also the
necessary recommendation from the appropriate
authority. On 27.12.2000, an Essentiality Certificate
was issued by the Deputy Director of Education.
Thereafter, on 08.01.2002, Sponsorship Letter was
issued by the Estate Branch, Lucknow Road, Delhi
for setting up the Middle School in Jasola, District
South Zone. It is after the fulfilment of these two
conditions that the Land Allotment Committee
recommends for allotment of the land.
1
IAC
2
The Society
Civil Appeal Nos. 3659-3660/2023 Page 2 of 33
3. According to paragraph 4 of the Sponsorship Letter,
the same was valid for five years and the allotment of
land would be made subject to Essentiality Certificate
being valid and only for the area recommended. It
further provided that in case land is not available in
that area, the Society could approach the Land
Allotment Committee for fresh sponsorship in areas
where the land is available.
4. Having obtained necessary permissions, the Society
applied on 09.09.2002 vide Form No.3124 for
allotment of one acre of land in the following three
areas namely: Jasola, Sarita Vihar and Vasant Kunj.
5. The IAC made recommendation for allotment of land
to the Society in Vasant Kunj vide letter dated
23.01.2004. It appears that this letter recommending
allotment of land in Vasant Kunj was issued under
some mis-conception. The Sponsorship Letter and
Essentiality Certificate had been issued for Jasola
area only and there was no Essentiality Certificate or
Sponsorship Letter for Vasant Kunj area. Vasant
Kunj area was in Zone 20, whereas Jasola in Zone 25
at the relevant time and now it is in Zone 29.
Civil Appeal Nos. 3659-3660/2023 Page 3 of 33
6. A complaint was made by one Mr. Sukhbir Singh,
who was a resident of Vasant Kunj on 21.02.2003,
stating that the Society was trying to illegally get an
allotment in Vasant Kunj area for establishing a
school whereas the sponsorship letter was issued by
the Directorate of Education for Jasola area. Despite
the said objection, being on record and also the fact
that the Society was not entitled to any allotment in
any area other than for which the Essentiality
Certificate and Sponsorship Letter had been issued,
the file for allotment of land measuring 0.54 hectares
in Pocket 6 & 7, Sector-B, Vasant Kunj was prepared
and submitted for approval. The said file was also
placed before the Lieutenant Governor who had in
turn granted the in-principle approval for the same
on 24.03.2003.
7. Despite the in-principle approval of the Lieutenant
Governor, no allotment letter was issued to the
Society. A note was made on the same day for
verification of the complaint before proceeding any
further. The Director of Education was required to
give a clarification as to how the land was
Civil Appeal Nos. 3659-3660/2023 Page 4 of 33
recommended for allotment in Vasant Kunj area, in
place of Jasola. These communications are dated
31.03.2003 and 03.04.2003. The note regarding
verification of the complaint was made on the same
file in which in-principle approval was granted by the
Lieutenant Governor and it was recorded that only
after verification, the matter was to be proceeded
further.
8. In the meantime, a resolution was passed on
15.12.2003 by the competent body of the appellant
that allotment of land to Educational Institutions
running on commercial lines should be made
through auction including the cases where the
allotment was yet to be made. As no allotment had
been made in favour of the Society, any further
allotment would be covered by the policy decision
dated 15.12.2003. A second complaint dated
19.01.2004 was made by one Mr. A.B. Gour on
similar lines as the complaint dated 21.02.2003.
Several other complaints were received with respect
to allotment of public land for educational sites to
establish institutions on commercial basis.
Civil Appeal Nos. 3659-3660/2023 Page 5 of 33
Considering the seriousness of complaints, a CBI
enquiry was directed to be conducted.
9. In the meantime, the Society applied for Essentiality
Certificate for establishing Junior High School (Class
I to Class VIII) for Vasant Kunj area. The Competent
Authority i.e. the Deputy Director of Education, vide
letter dated 29.01.2004, issued the Essentiality
Certificate for Vasant Kunj area. Once again it was
limited for a period of five years subject to obtaining
all other necessary permissions and fulfilment of all
conditions. The Central Government, in consultation
with the appellant amended the Delhi Development
Authority (Disposal of Developed Nazul Land) Rules,
3
1981 vide Delhi Development Authority (Disposal of
Developed Nazul Land) Amendment Rules, 2006,
dated 19.04.2006 making it mandatory that
allotment of land could be made either through
Auction or by Tender.
10. The appellant, vide communication dated
19.06.2008, rejected the request for allotment in view
of the changed policy and required the Society to
3
For short, “1981 Rules”
Civil Appeal Nos. 3659-3660/2023 Page 6 of 33
participate in public auction of school sites, if it was
so interested. The appellant again, vide letter dated
18.05.2012 in response to request letter of the
Society dated 30.01.2011, informed that the request
for allotment letter had been examined and duly
rejected by the competent authority.
11. The Society, in the meantime, approached the
High Court of Delhi by way of W.P.(Civil) No.4459 of
2014 on 19.07.2014 praying for a writ of Mandamus
directing the respondent therein to implement the
decision already taken for allotment of institutional
plot to the appellant in view of the approval granted
for Vasant Kunj area. Parity was also claimed with
one Jyotika Education Society decided by the Delhi
High Court in L.P.A. No.1670-71 of 2006. Relief
claimed in the writ petition is reproduced hereunder:
i) To issue a writ in the nature of Mandamus or
any other appropriate order or direction
directing the respondents to implement the
decision already taken for allotment of an
institutional plot to the petitioner for
establishment of a middle school in Vasant
Kunj pocket 6&7 Sector B and at par with
Civil Appeal Nos. 3659-3660/2023 Page 7 of 33
Jyotika Education society and other matter
decided by the Hon’ble Court decided in LPA
No. 1670-71/2006.
ii) Quash the impugned letter dated
19/06/2003 and 18/05/2012 as the
allotment to establish the middle school was
approved by the Hon’ble on 24/03/2003
much prior to the notification of change in
policy i.e. 19/04/2006 hence both the
impugned letter against the natural principle
of justice.
iii) Restore the letter of sponsorship issued by
the Directorate of Education in 2003.
iv) Any other relief as this Hon’ble Court may
deem fit and proper in the facts and
circumstances of the case may, also be
granted.
12. The appellant filed its counter affidavit and
additional affidavit. After exchange of pleadings, the
learned Single Judge, vide judgment dated
15.11.2018, quashed the communications dated
19.06.2008 and 18.05.2012 and further directed the
appellant to issue allotment letter forthwith. The
Civil Appeal Nos. 3659-3660/2023 Page 8 of 33
learned Single Judge allowed the writ petition on the
following findings:
i) The complaint made was with respect to the
allotment in Jasola and not Vasant Kunj;
ii) Vasant Kunj and Jasola fall in the same zone;
iii) Change in policy cannot be made
retrospectively;
iv) Doctrine of legitimate expectation should
have been invoked in favour of the Society;
v) The right to allotment had accrued to the
Society in March, 2003 and the same could
not be nullified.
13. The appellant was aggrieved by the judgment of
the learned Single Judge as, according to it, the
judgment was both factually and legally incorrect and
as such unsustainable. It preferred an intra-Court
appeal before the Division Bench which was
registered as L.P.A. No.224 of 2019. The Division
Bench, by the impugned order dated 12.11.2021,
dismissed the appeal on the reasoning that change of
policy from allotment to auction could not have any
retrospective effect, and therefore, the rejection of
Civil Appeal Nos. 3659-3660/2023 Page 9 of 33
allotment was illegal. The appellant filed a Review
Petition before the Division Bench registered as
R.P.No.15 of 2022, which was disposed of, vide order
dated 22.02.2022 without interfering with the main
order, except for a clarification. It is against these two
orders that the present appeals have been filed.
14. This Court, while issuing notice on 13.07.2022,
passed an interim order staying the operation and
effect of the impugned orders. The fact thus remains
that till date no allotment has been made in favour of
the respondent Society.
15. We have heard Ms. Madhavi Divan, learned
Additional Solicitor General for the appellant and Dr.
Abhishek Manu Singhvi, learned senior counsel for
the respondent.
ARGUMENTS BY APPELLANT
16. The arguments advanced by Ms. Divan may be
briefly summarised as under:
i) The respondent had no vested right conferred
upon them as no allotment had taken place
in their favour at any time. It was merely a
Civil Appeal Nos. 3659-3660/2023 Page 10 of 33
noting in the office file and in-principle
approval of the Lieutenant Governor.
However, with a rider that the complaint
already made by Mr. Sukhbir Singh on
21.02.2003 was to be verified and thereafter
further process was to take place.
Subsequently, the Society had been duly
communicated that the request for allotment
had been rejected which was communicated
twice; firstly, on 19.06.2008 and later on
18.05.2012.
ii) The internal notings are not decisions and do
not confer any right, till such time, the
decision taken on file is translated into
allotment order and duly communicated to
the allottee. Mere internal notings and
approval cannot form a basis for claiming a
right. Reliance was placed upon the following
judgments:
4
a. Bachhittar Singh vs State of Punjab
5
b. Sethi Auto Service Station vs DDA
4
AIR 1963 SC 395
5
(2009) 1 SCC 180
Civil Appeal Nos. 3659-3660/2023 Page 11 of 33
6
c. Mahadeo vs Sovan Devi .
iii) Once there is a change in law, a policy
decision taken by the competent authority,
where allotment was replaced by ‘public
auction’ or ‘tender’ and such policy decision
also providing that this change would apply
to even pending cases, no claim could be set
up by the Society contrary to the said change
in policy. The Society was duly
communicated that as and when auction for
educational sites is held, it was at liberty to
participate in the same. Reliance was placed
upon the following judgement for this
preposition:
a. Howrah Municipal Corporation & Ors.
7
Vs. Ganges Rope Co. Ltd. & Ors . .
iv) It was mandatory to possess an Essentiality
Certificate and the Sponsorship Letter from
the competent authority for specific zones
where the institution was to be set up or
6
Civil Appeal No. 5876 of 2022 (decided on 30.08.2022)
7
(2004) 1 SCC 663
Civil Appeal Nos. 3659-3660/2023 Page 12 of 33
established. In the present case, initially the
Society had the Essentiality Certificate and
the Sponsorship Letter for Jasola area. Later
on it only had obtained an Essentiality
Certificate for Vasant Kunj area. It admittedly
till date has no Sponsorship Letter for Vasant
Kunj area. As such also the Society was not
eligible for any allotment of educational site
or for that matter even eligible for applying for
setting up an educational institution in
Vasant Kunj area.
v) The claim of the Society that allotments had
been made in favour of the Vikram Shilla
Education Society, High Brow Education
Society and M/s Jyotika Education Welfare
Society would not be of any help for two
reasons. Firstly, all these Societies possessed
the Essentiality Certificate and the
Sponsorship Letters for the specific areas
where allotment was sought. Secondly, if any
wrong had been committed in allotting
educational sites to these three Societies, no
negative parity could be claimed on its basis.
Civil Appeal Nos. 3659-3660/2023 Page 13 of 33
vi) The plea of a legitimate expectation raised by
the Society on the basis of the in-principle
approval of the Lieutenant Governor also was
unfounded in law. The said doctrine of
legitimate expectation would not be affected
in the present case, for the reason that once
a policy decision had been taken in larger
public interest and also to maintain
transparency in dealing with land belonging
to the State, to be settled by way of auction
or tender, the liberty was also given to the
Society to apply and participate.
vii) The request for allotment was made as far
back as March, 2003. The policy had
changed on 15.12.2003, the 1981 Rules had
also been amended later on in April 2006, the
rejection for allotment was made in 2008 and
2012, the Society for the first time challenged
the rejection only in July 2014. It never
challenged the change in the policy decision
nor the amendment to the 1981 Rules. As
such there was an inordinate delay of 10
Civil Appeal Nos. 3659-3660/2023 Page 14 of 33
years on the part of the Society in filing the
writ petition. Today after 20 years, there can
be no justification for making any such
allotment.
viii) Learned Single Judge as also the Division
Bench committed factual and legal error in
allowing the writ petition and dismissing the
appeal of the appellant respectively. It was
thus prayed that the appeal be allowed and
the impugned order be set aside and the writ
petition filed by the Society be dismissed.
ARGUMENTS BY RESPONDENT
17. On the other hand, Dr. Abhishek Manu Singhvi,
learned senior counsel, defended the impugned
orders while making the following submissions:
i) The appellant had been continuously
changing its stand in the pleadings filed
before the High Court and before this Court.
Most of the arguments advanced before this
Court were not pleaded or raised before the
High Court. This Court may, therefore, not
Civil Appeal Nos. 3659-3660/2023 Page 15 of 33
consider such pleadings, documents and
arguments which are not available before the
High Court.
ii) In particular, it was pointed out that the fact
regarding the CBI enquiry was never raised
before and was being raised for the first time
before this Court. The fact that there was no
need for a school in Vasant Kunj area is also
being raised for the first time before this
Court. The fact that Vasant Kunj and Jasola
fall in different Zones has also been raised for
the first time before this Court.
iii) The Lieutenant Governor being the highest
executive authority and having approved in-
principle allotment in favour of the Society in
Vasant Kunj area on 24.03.2003, nothing
further was required to be deliberated upon
and it was just a ministerial act of issuing the
allotment letter pursuant to the said approval
which was required. The appellant for
reasons best known to it delayed the issue of
allotment letter and over a period of time have
Civil Appeal Nos. 3659-3660/2023 Page 16 of 33
been raising all kinds of frivolous pleas to
deprive the Society from the allotment and
establishing an educational institution in
Vasant Kunj area.
iv) The change in policy could not be given
retrospective effect. The in-principle approval
was granted on 24.03.2003, whereas the
change in policy came in December, 2003.
The 1981 Rules were much later amended in
April 2006. The Society would be entitled to
be dealt with the practice and procedure
existing at the time when the request was
made and in-principle approval was granted
by the Lieutenant Governor.
v) Lastly it was submitted that in similar facts
and circumstances, the appellant had
allotted land to different Societies even after
the change of policy and the amendment in
the 1981 Rules without holding public
auction or by tender process.
Civil Appeal Nos. 3659-3660/2023 Page 17 of 33
ANALYSIS
18. Having considered the submissions advanced,
our analysis on the various issues is as under:
18.1 Taking up the last point first as raised by the
appellant that there was inordinate delay in
approaching the Court, we find much
substance in the same. It is well settled that
the litigant who is not diligent cannot invoke
the extraordinary jurisdiction of the High
Court under Article 226 of the Constitution of
India. The in-principle approval having been
granted on 24.03.2003, there was no
justification for the Society to wait for 11
years to file a writ petition in the year 2014
on the basis of the said in-principle approval
of the Lieutenant Governor. The Society
ought to have exercised due diligence and
should have claimed its rights within a
reasonable time from the date of said in-
principle approval if the same was not being
implemented and the allotment letter was not
being issued. There is no justifiable or
satisfactory explanation for the said period of
Civil Appeal Nos. 3659-3660/2023 Page 18 of 33
inordinate delay of 11 years. The writ petition
ought to have been dismissed on this ground
alone. Reference can be made to a recent
judgment of this Court in State of Orissa &
Anr. vs. Laxmi Narayan Das (Dead) thr. LRs
8
& Ors . Paragraphs 25, 30, 32, 33 and 34 are
extracted hereunder:
“25. In New Delhi Municipal Council v.
Pan Singh and others, (2007) 9 SCC
278, this Court has opined that though
there is no period of limitation provided
for filing a writ petition under Article
226 of the Constitution of India, yet
ordinarily a writ petition should be filed
within a reasonable time. In the said
case the respondents had filed the writ
petition after seventeen years and the
court, as stated earlier, took note of the
delay and laches as relevant factors and
set aside the order passed by the High
Court which had exercised the
discretionary jurisdiction.
xxx xxx
30. Subsequently, a Constitution Bench
of this Court in Senior Divisional
Manager, Life Insurance Corporation of
India Ltd. and others v. Shree Lal
Meena, (2019) 4 SCC 479, considering
8
2023 INSC 619 paras 23-34
Civil Appeal Nos. 3659-3660/2023 Page 19 of 33
the principle of delay and laches, opined
as under:- “36. We may also find that
the appellant remained silent for years
together and that this Court, taking a
particular view subsequently, in Sheel
Kumar Jain v. New India Assurance
Company Limited, (2011)12 SCC 197
would not entitle stale claims to be
raised on this behalf, like that of the
appellant. In fact the appellant slept
over the matter for almost a little over
two years even after the pronouncement
of the judgment. 37. Thus, the
endeavour of the appellant, to approach
this Court seeking the relief, as prayed
for, is clearly a misadventure, which is
liable to be rejected, and the appeal is
dismissed.” 31. In Bharat Coking Coal
Ltd. and others v. Shyam Kishore Singh
- (2020) 3 SCC 411, the issue regarding
the delay and laches was Civil Appeal
No.8072 of 2010 Page 27 of 51
considered by this Court while
dismissing the petition filed belatedly,
seeking change in the date of birth in
the service record.
xxx xxx
32. The issue of delay and laches was
considered by this Court in Union of
India and others vs. N. Murugesan and
others, (2022) 2 SCC 25. Therein it was
observed that a neglect on the part of a
party to do an act which law requires
Civil Appeal Nos. 3659-3660/2023 Page 20 of 33
must stand in his way for getting the
relief or remedy. The Court laid down
two essential factors i.e. first, the length
of the delay and second, the
developments during the intervening
period. Delay in availing the remedy
would amount to waiver of such right.
Relevant paras 20 to 22 of the above
mentioned case are extracted below:
“20. The principles governing delay,
laches, and acquiescence are
overlapping and interconnected on
many occasions. However, they have
their distinct characters and distinct
elements. One can say that delay is the
genus to which laches and acquiescence
are species. Similarly, laches might be
called a genus to a species by name
acquiescence. However, there may be a
case where acquiescence is involved,
but not laches. These principles are
common law principles, and perhaps
one could identify that these principles
find place in various statutes which
restrict the period of limitation and
create non-consideration of
condonation in certain circumstances.
They are bound to be applied by Civil
Appeal No.8072 of 2010 Page 28 of 51
way of practice requiring prudence of
the court than of a strict application of
law. The underlying principle governing
these concepts would be one of
estoppel. The question of prejudice is
also an important issue to be taken note
Civil Appeal Nos. 3659-3660/2023 Page 21 of 33
of by the court. 21. The word “laches” is
derived from the French language
meaning “remissness and slackness”. It
thus involves unreasonable delay or
negligence in pursuing a claim involving
an equitable relief while causing
prejudice to the other party. It is neglect
on the part of a party to do an act which
law requires while asserting a right, and
therefore, must stand in the way of the
party getting relief or remedy. 22. Two
essential factors to be seen are the
length of the delay and the nature of
acts done during the interval. As stated,
it would also involve acquiescence on
the part of the party approaching the
court apart from the change in position
in the interregnum. Therefore, it would
be unjustifiable for a Court of Equity to
confer a remedy on a party who knocks
its doors when his acts would indicate a
waiver of such a right. By his conduct,
he has put the other party in a
particular position, and therefore, it
would be unreasonable to facilitate a
challenge before the court. Thus, a man
responsible for his conduct on equity is
not expected to be allowed to avail a
remedy.” Civil Appeal No.8072 of 2010
Page 29 of 51
33. Finally, in paras 37 and 38, it was
observed as under : “37. We have
already dealt with the principles of law
that may have a bearing on this case. …
Civil Appeal Nos. 3659-3660/2023 Page 22 of 33
there was an unexplained and studied
reluctance to raise the issue .... 38.
….Hence, on the principle governing
delay, laches … Respondent No. 1 ought
not to have been granted any relief by
invoking Article 226 of the Constitution
of India.”
34. If the aforesaid principles of law are
applied in the facts of the case in hand
from the table of list of dates as
available in para no. 12, it is evident
that there is huge delay on the part of
the respondents to avail of their
appropriate remedy.”
18.2 It may also be noticed that the original
Essentiality Certificate and Sponsorship
Letter were with respect to setting up an
educational institution in Jasola Area. The
said certificates and the requirements were
area specific. On the basis of an Essentiality
Certificate and Sponsorship Letter for Jasola
Area, no allotment could have been proposed
for Vasant Kunj area. Complaint had already
been made prior to the in-principle approval
and had substance. Apparently for the same
reason, the note was made below the in-
principle approval that further process to
Civil Appeal Nos. 3659-3660/2023 Page 23 of 33
take place after verification of the complaint.
It may be noted here that the Essentiality
Certificate, the Sponsorship Letter and the
allotment letter are to be carried out by three
different authorities. The last of the three
stages i.e. allotment was to be carried out by
appellant. However, only upon fulfilment of
the conditions as provided under the relevant
rules and the policy. The appellant could not
be compelled to make an allotment where the
essential and mandatory conditions were not
fulfilled, as in the case at hand. The High
Court fell in error in not correctly
appreciating this aspect of the matter.
18.3 The fact that Jasola and Vasant Kunj fall in
different areas or zones is admitted by the
Society in as much as it had separately
applied for Essentiality Certificate for Vasant
Kunj, which was also granted in 2004. The
appellant has specifically stated that Jasola
area was in Zone 25 (now Zone 29) whereas
Vasant Kunj area was in Zone 20. The High
Court thus committed an error in treating
Civil Appeal Nos. 3659-3660/2023 Page 24 of 33
them to be in the same Zone without any
basis.
18.4 The policy decision taken on 15.12.2003
clearly mentioned that allotment of land
would be made through auction and also
included those cases where allotment was yet
to be made. Subsequently the 1981 Rules
were amended in April 2006, whereby also
the provision for allotment was replaced by
auction or by tender. There was no challenge
either to the policy decision of December,
2003 or to the amendment of 2006 to the
1981 Rules. Merely seeking a Writ of
Mandamus on the strength of the in-principle
approval given by the Lieutenant Governor
would not be maintainable in view of the
change situation which had arisen much
earlier to the filing of the writ petition.
18.5 The arguments advanced by Dr. Singhvi that
the appellant had been changing its stand
continuously is no help as the facts of the
case which are on record and which are not
Civil Appeal Nos. 3659-3660/2023 Page 25 of 33
disputed, need to be accepted, even if they
are raised at a later stage. The respondents
have not been able to establish or even prima
facie establish that the facts as narrated by
the appellant and as recorded above were
incorrect.
18.6 The issue relating to the CBI enquiry being
raised before this Court as also the other
facts like Vasant Kunj area did not require a
school, or that Vasant Kunj and Jasola fall in
different zones being raised for the first time
before this Court also do not have any
bearing on the merits of the matter in view of
the conduct of the respondent Society which
approached the Court after 11 years.
18.7 The issue relating to internal notings as to
whether it would confer any right or not has
been adequately dealt with and settled by
series of judgements of this Court. It is well
settled that until and unless the decision
taken on file is converted into a final order to
be communicated and duly served on the
Civil Appeal Nos. 3659-3660/2023 Page 26 of 33
concerned party, no right accrues to the said
party. Mere notings and in-principle
approvals do not confer a vested right.
Relevant extracts from judgments of this
Court in this regard are being reproduced
hereunder:
a) Bhachhittar Singh (supra):
“9. The question, therefore, is whether
he did in fact make such an order.
Merely writing something on the file
does not amount to an order. Before
something amounts to an order of the
State Government two things are
necessary. The order has to be
expressed in the name of the Governor
as required by clause (1) of Article 166
and then it has to be communicated. As
already indicated, no formal order
modifying the decision of the Revenue
Secretary was ever made. Until such an
order is drawn up the State Government
cannot, in our opinion, be regarded as
bound by what was stated in the file…..
[Emphasis supplied]
10. ……Thus it is of the essence that the
order has to be communicated to the
person who would be affected by that
order before the State and that person
Civil Appeal Nos. 3659-3660/2023 Page 27 of 33
can be bound by that order. For, until
the order is communicated to the
person affected by it, it would be open
to the Council of Ministers to consider
the matter over and over again and,
therefore, till its communication the
order cannot be regarded as anything
more than provisional in character.”
[Emphasis supplied]
b) Sethi Auto Service Station (supra)
“14. It is trite to state that notings in a
departmental file do not have the
sanction of law to be an effective order.
A noting by an officer is an expression
of his viewpoint on the subject. It is no
more than an opinion by an officer for
internal use and consideration of the
other officials of the department and for
the benefit of the final decision-making
authority. Needless to add that internal
notings are not meant for outside
exposure. Notings in the file culminate
into an executable order, affecting the
rights of the parties, only when it
reaches the final decision-making
authority in the department, gets his
approval and the final order is
communicated to the person
concerned.”
[Emphasis supplied]
Civil Appeal Nos. 3659-3660/2023 Page 28 of 33
“22. From the afore-extracted notings of
the Commissioner and the order of the
Vice Chairman, it is manifest that
although there were several notings
which recommended consideration of
the appellants' case for relocation but
finally no official communication was
addressed to or received by the
appellants accepting their claim. After
the recommendation of the Technical
Committee, the entire matter was kept
pending; in the meanwhile, a new policy
was formulated and the matter was
considered afresh later in the year 2004,
when the proposal was rejected by the
Vice Chairman, the final decision
making authority in the hierarchy. It is,
thus, plain that though the proposals
had the recommendations of State Level
Co-ordinator (oil industry) and the
Technical Committee but these did not
ultimately fructify into an order or
decision of the DDA, conferring any
legal rights upon the appellants. Mere
favourable recommendations at some
level of the decision making process, in
our view, are of no consequence and
shall not bind the DDA. We are,
therefore, in complete agreement with
the High Court that the notings in the
file did not confer any right upon the
appellants, as long as they remained as
such. We do not find any infirmity in the
approach adopted by the learned Single
Civil Appeal Nos. 3659-3660/2023 Page 29 of 33
Judge and affirmed by the Division
Bench, warranting interference.”
[Emphasis supplied]
Mahadeo
c) (supra),
“14. It is well settled that inter-
departmental communications are in
the process of consideration for
appropriate decision and cannot be
relied upon as a basis to claim any right.
This Court examined the said question
in a judgment reported as 3Omkar
Sinha v. Sahadat Khan3 . Reliance was
placed on Bachhittar Singh v. State of
Punjab4 to hold that merely writing
something on the file does not amount
to an order. Before something amounts
to an order of the State Government,
two things are necessary. First, the
order has to be expressed in the name
of the Governor as required by clause (1)
of Article 166 and second, it has to be
communicated. As already indicated, no
formal order modifying the decision of
the Revenue Secretary was ever made.
Until such an order is drawn up, the
State Government cannot, in our
opinion, be regarded as bound by what
was stated in the file.
[Emphasis supplied]
Civil Appeal Nos. 3659-3660/2023 Page 30 of 33
18.8 Reference can also be made to another
judgment of this Court in Municipal
Committee, Barwala, District Hisar,
Haryana trough its Secretary/President v.
9
Jai Narayan and Company and Another
,
wherein this Court took a similar view.
18.9 Whether the change in policy was
retrospective or not is not an issue here. The
change in policy decision taken on
15.12.2003 clearly mentions that even
pending allotment matters were to be dealt
with according to said change i.e. of holding
auctions. This decision of change in policy
brought about on 15.12.2003 was never
challenged as is apparent from the relief
claimed in the petition. Therefore, the settled
procedure to be followed on or after
15.12.2003 was only to provide land by way
of auction of educational sites and not by way
of any allotment. Before that date there was
no allotment of land in favour of the
respondent. Even otherwise it is the settled
9
(2022) SCC Online SC 376
Civil Appeal Nos. 3659-3660/2023 Page 31 of 33
position of law that whenever the State
intends to transfer any land resort should be
by public auction or inviting tenders.
18.10 Another argument raised by Dr. Singhvi
regarding allotment having been made in
favour of other Societies is also of no help. In
the present case, the Society did not have the
necessary Sponsorship Letter for
establishing the school in Vasant Kunj area,
and therefore, it was not even eligible to apply
for procuring a site in Vasant Kunj area
under the original rules. Further it is well
settled that if any allotment had been made
contrary to the existing policy and rules, the
same would not form a basis of benefit being
extended to another society as under law
negative parity is not recognised or approved
rather it is disapproved.
19. For the reasons recorded above, we are
convinced that the only outcome of the writ petition
was dismissal. The Single Judge and Division Bench
fell in serious error while granting relief to the
Civil Appeal Nos. 3659-3660/2023 Page 32 of 33
respondent Society. Accordingly, the appeals are
allowed, the impugned orders passed by the Division
Bench and Single Judge are set aside. The writ
petition is dismissed.
20. There shall, however, be no order as to costs.
……………………………………J.
(VIKRAM NATH)
……………………………………J.
(RAJESH BINDAL)
NEW DELHI
JANUARY 11, 2024
Civil Appeal Nos. 3659-3660/2023 Page 33 of 33