Delhi High Court
Delhi Development Authority vs Modern Public School Education Society ... on 10 March, 2011
Author: Sanjiv Khanna
Bench: Dipak Misra, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LETTERS PATENT APPEAL NO. 487 OF 2010
Reserved on : 31st January, 2011.
% Date of Decision : 10th March, 2011.
DELHI DEVELOPMENT AUTHORITY .... Appellant
Through Ms. Sangeeta Chandra, Advocate.
VERSUS
MODERN PUBLIC SCHOOL EDUCATION SOCIETY &
ANOTHER .....Respondents
Through Mr. Harish Malhotra, Sr. Advocate
with Mr. Tanuj Khurana, Advocate for
respondent No. 1.
Mr. Sauarb Khanna, Advocate for Mr. Gaurang
Kanth, Advocate for respondent No. 2-MCD.
CORAM:
HON'BLE MR. JUSTICE DIPAK MISRA, THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in the Digest ? Yes
SANJIV KHANNA, J.:
Delhi Development Authority (DDA) has filed the present intra-Court appeal against the judgment dated 1st December, 2009 allowing Writ Petition (Civil) No. 9321/2006 filed by Modern Public School Education, the respondent herein. The appellant has been directed to issue No Objection Certificate (NOC) to the Municipal Corporation of Delhi (MCD) to permit them to proceed with sanction of building plans in respect of land measuring 3.97 L.P.A. No. 487 of 2010 Page 1 acres at block-B, between pockets L&P, Paschim Salimar Bagh, New Delhi (Land, for short). The respondent has been directed to deposit composition fee for non-construction of Rs.9,12,599/- together with interest @ 6% per annum from 2003 till the date of judgment. It has been further held that the directions were subject to the final order which may be passed in the proceedings arising out of the charge sheet filed by the Central Bureau of Investigation (CBI) and to this extent the respondent would be bound by the statements made by their counsel in the Court.
2. The appellant had allotted leasehold rights in respect of the land for establishing a senior secondary school and an indenture in form of the perpetual lease deed was subsequently executed on 4th January, 2002. The said indenture records that the land was demised to the respondent as a lessee on 26th August, 1985. The lease deed stipulated as under:-
"(4) The lessee shall, within a period of two years from the 26th day of August one thousands nine hundred and eighty five (and the time so specified shall be of the essence of the contract) after obtaining sanction to the building plan, with necessary designs, plans and specification land and complete in a substantial and workmanlike manner a building for Sr. Sec. School with the requisite and proper walls, sewers and drain and other conveniences in accordance with the L.P.A. No. 487 of 2010 Page 2 sanctioned building plan and to the satisfaction of such municipal or other authority."
3. The admitted position is that no building has been constructed on the said land and there is violation of the aforesaid clause 4. The admitted position is that the DDA had granted extension of time on 9th October, 2001 to raise a construction upto 30th June, 2002 on payment of composition fee. The respondent had made a representation for waiver of the composition fee but ultimately had deposited the amount of Rs.8,57,053/- towards composition fee for extension of time upto 30th June, 2002. The respondent did not construct within this extended period upto 30th June, 2002.
4. On 18th November, 2002, the appellant issued a show cause notice to the respondent why action should not be taken for cancellation of the lease for not raising construction in violation of clause 4. On 8th January, 2003, a reply to the show cause notice was submitted by the respondent with a prayer for extension of time for another period of two years. On 6th February, 2003, the respondent was granted extension of time upto 31st December, 2004 upon payment of composition fee of Rs.13,57,759/-. By letter dated 6th February, 2003 the demand of composition fee was reduced to Rs.9,12,599/-.
L.P.A. No. 487 of 2010 Page 3
5. On 10th February, 2003, the respondent made a representation to DDA for waiver of composition fee stating, inter alia, that in cases of schools the appellant had been taking lenient view when construction was not raised. The appellant by their communication dated 28th February, 2003 informed the respondent that the composition fee amounting to Rs.9,12,599/- had been waived. Thereafter, the respondent applied for sanction of building plans with the MCD on 16th September, 2003. MCD by their letter dated 8th October, 2003 requested DDA to grant NOC for processing the case. DDA vide their communication dated 13th November, 2003 refused to grant NOC and intimated to the MCD that the original allotment file was in the custody of the CBI.
6. After investigation, CBI has filed a charge sheet before Special Judge, CBI. The allegations in the charge sheet are that Mr. Subhash Sharma the then Vice-Chairman, DDA had entered into criminal conspiracy during the period November, 2002 to March, 2003 with the co-accused Jagdish Chander, Director (Land), DDA, Dharambir Khattar, a private person, Ashok Kumar, an ex-Private Secretary to the Vice-Chairman, DDA and Amrit Lal Kapoor, Director of the respondent society to show undue favour in the matter, not to cancel the lease, grant L.P.A. No. 487 of 2010 Page 4 extension of period of construction and by reducing the composition fee from Rs.13,57,679/- to Rs.9,12,599/- which was subsequently waived, against pecuniary advantage of Rs.2,50,000/-. Charges were framed on 20th May, 2008 by the Special Judge and the said persons are facing prosecution.
7. In the light of the aforesaid facts, it is to be examined whether the directions given in the impugned judgment dated 1st December, 2009 can be sustained or should be upset/reversed. One additional factor which has to be taken into consideration is the guidelines or the procedure for imposition of composition fee and calculation of composition fee in cases of late construction. The said guidelines were directed to be produced before us and have been placed on record.
8. The contention of the learned counsel for the appellant was that it is not mandatory or a right of any allottee to claim extension of time for construction upto 20 years on payment of composition fee and on the other hand the authorities have discretion to extend time upto 20 years but on satisfaction that there are good reasons, why the construction was not commenced/completed. It is pointed out that in some cases, leases have been cancelled before expiry of 20 years as L.P.A. No. 487 of 2010 Page 5 construction was not carried out. However, it appears that in the two such cases the matter is sub-judice.
9. In the present case, as noticed above show cause notice dated 18th November, 2002 was issued by the appellant to the respondent stating why action should not be taken for cancellation of the lease, due to non-construction. On 8th January, 2003, a reply was submitted asking for further extension for a period of two years. On 6th February, 2003, extension was granted upto 31st December, 2004 on payment of composition fee of Rs. 13,57,769/- which was subsequently reduced to Rs. 9,12,599/-. By communication dated 28th February, 2003 the composition fee was entirely waived. Copy of the charge framed by the Sub-Judge on 20th May, 2008 placed on record reads as under:-
" That you A-1 Subhash Sharma, being a public servant while working as Vice Chairman, DDA, Delhi, entered into a criminal conspiracy during the period November 2002 to March, 2003 at Delhi with your co-accused A-2 Jagdish Chander Director (Lands), DDA, A-3 Dharambir Khattar (private person), A-4, Ashok Kapoor the Ex. PS of Vice Chairman, DDA and A-5, Amrit Lal Kapoor (private person) and in furtherance of the said criminal conspiracy, A-5 Amrit Lal Kapoor Director of Modern Public School Educational Society, Shalimar Bagh, New Delhi was shown undue favour in the matter not to cancel the lease relating to extension of period for construction of building L.P.A. No. 487 of 2010 Page 6 on the vacant land of about 4 acres and by reducing composition fee from Rs.13,57,769/- to Rs.9,12,599/- which was subsequently waived off against a pecuniary advantage of Rs.2.50 lakhs which was obtained through A-3 Dharambir Khattar who was acting as a conduit between you all public servants and A-5 Amrit Lal Kapoor and the favour was done by you all by abusing your official position and by corrupt and illegal means knowing fully well that previously a show cause notice was issued to the Modern School Educational Society for cancellation of lease and in furtherance of the said criminal conspiracy a favourable note for waiving the composition fee was put up by Sh. CU Kumar, Dy. Director Lands, DDA on the directions of you A-2 Jagdish Chander which was approved by you A-1 Subhash Sharma and extension of period of construction was also approved by you A-1 Subhash Sharma and the letters of both the approvals were collected and delivered by you A-4 Ashok Kapoor to A-5 Amrit Lal Kapoor and also you A-4 Ashok Kapoor collected the settled amount of Rs.2.50 lakhs from A-5 Amrit Lal Kapoor and this amount was shared by you all the public servants and A-3 Dharambir Khattar and thereby you all committed offences under Section 120-B IPC read with Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1938 and within the cognizance of this Court.
And I hereby direct that you all be tried by this court on the above said charge."
10. A reading of the said charge shows that there are allegations that there was no good ground for extension of time for construction and there was criminal conspiracy as a result of which the time was extended first on payment of composition fee L.P.A. No. 487 of 2010 Page 7 of Rs.13,57,769/-, which was subsequently reduced to Rs.9,12,599/- and then waived. It is alleged that this was done for pecuniary advantage/bribe of Rs.2,50,000/-. Amrit Lal Kapoor, Director of the respondent society is also facing prosecution for having indulged and being a co-conspirator in the said offence. Thus, the extension of time, first with composition fee and then its waiver itself are subject matter of the charge sheet and the criminal case. Learned counsel for the appellant is right in her contention that the extension granted on 6th February, 2003 itself is subject matter of the charge sheet and the criminal prosecution. Therefore, it is not correct on the part of the private respondent to state that they were granted extension of time to construct upto 31st December, 2004 on payment of composition fee and the said decision is binding on the appellant. As per the charge sheet which is pending consideration, the decision to extend the time for construction upto 31st December, 2004, itself was a result of a conspiracy which is subject matter of the criminal trial.
11. The facts of the present case are rather peculiar. Learned single Judge while allowing the writ petition has held that the respondent, will be bound by the decision of the criminal court, but they should be allowed to construct on payment of L.P.A. No. 487 of 2010 Page 8 composition fee of Rs.9,12,599/- along with 6% interest from 2003 till the date of judgment. The criminal court obviously cannot decide whether or not extension of time should be granted. This cannot be a subject matter of a criminal trial and the judgment, which would be passed by the criminal court. Further, once construction is carried out, it will be difficult or rather impossible for the appellant to get back the plot, even if the criminal conspiracy is established and there is conviction. It is obvious that in case Mr. Amrit Lal Kapur, Director of the respondent society was involved in the conspiracy and had paid bribe of Rs.2,50,000/- for extension of period of construction or for waiver of composition fee, the respondent society should not be granted extension of time and the lease hold rights should be forfeited and cancelled for failure to construct in violation of clause (4). The respondent society cannot be allowed to profit because of their wrong. Further, the trial is going to take time, maybe years before it is decided. To allow status quo to continue and keep the matter hanging will also result in failure of justice and is not a desired option.
12. Clause (iii) at page 17 of the said brochure/guidelines for extension read as under:-
L.P.A. No. 487 of 2010 Page 9 "In partial modification of the instructions issued on 21.7.88, the Lt. Governor is pleased to revise the following guidelines for recovery of composition fee for extension of period of construction on plots and other allied matter.
1. (a) x x x x x x
(i) x x x x x x
(ii) x x x x x x
(iii) Beyond 10th year the name shall invariably removed in exceptional cases V.C. may grant the extension on payment of usual penalty."
13. Thus extension of time after 10 years is not a formality or simply a matter of calculation of composition fee and on payment thereof extension of time for construction a foregone conclusion. Factual justification in each individual case has to be examined on merits and then a decision has to be taken. It is not mandatory to extend time for construction, even if the allottee is ready and willing to pay the composition fee. The said fee has to be paid but when construction does not commence even after 10 years, the allottee has to justify and explain the delay. Longer the delay, deeper the scrutiny is required and necessary. Justification has to be established.
14. Before the learned single Judge, DDA was asked to constitute a Committee to examine the case of the respondent for extension. The case was examined by the committee and an affidavit was filed before the single Judge, the relevant portion of which reads as under:-
L.P.A. No. 487 of 2010 Page 10
"3.........
The matter was taken up for
consideration in the meeting of the designated committee on 28.11.08 under the Chairmanship of the PC, DDA where the C.V.O., C.L.A. and C.L.D. were also present. The Committee deliberated the issue at length and observed that the extension of time to the petitioner from 1.1.03 to 31.12.2004 was by itself irregular. The CBI was investigating the matter and Mr. A.L. Kapoor through whom the petition has been charge-sheeted by the CBI. It was opined upon consideration that when the grant of extension of time on the previous occasion itself was not considered regular, the request of the petitioner society for extension of time beyond 31.12.2004 could not be considered at this stage.
After due deliberations, the Committee concluded that since the CBI was investigating the matter and the secretary of the petitioner society had been charge-sheeted it would not be advisable to grant extension at this stage. Thus, the request of the petitioner for extension of time beyond 31.12.2004 could not be considered for the said reasons.
The said decision has been approved by the Competent Authority being the Vice-Chairman, DDA on 22.12.08."
15. It is, therefore, clear from the aforesaid that the appellant- DDA had refused to extend the time upto 31st December, 2004. The reason given by them is that this could not be considered now in 2008.
L.P.A. No. 487 of 2010 Page 11
16. In view of the aforesaid facts, we have examined the reasons and grounds given by the respondent for extension of time. As noticed above, it is not doubted that the possession of the land was given to the respondent on 26th August, 1985. They were also granted extension of time upto 30th June, 2002 on payment of composition fee of Rs.8,57,053/- vide letter dated 9th October, 2001. Thus, they were given 18 years to construct a building on the land which was allotted for construction of a senior secondary school. By no stretch, this is a small period.
17. The respondent after the last extension period had expired on 30th June, 2002, waited till 21st November, 2002, when they made an application for extension of time. This application was moved only when the appellant-DDA had written the letter dated 18th November, 2002, why the respondent society had not constructed the building and the site/plot was being used as a play ground. The respondent society in their letter dated 21st November, 2002 had stated:-
"We could not shift our Senior Secondary School at the allotted site due to some financial constraints inter alia beyond our control. It is also relevant to point out that we have got our Lease Deed of the subject site executed in the Registrar's office only on 01.01.2002 and we are in the process of getting the building plans sanctioned from the MCD. The DDA has also L.P.A. No. 487 of 2010 Page 12 granted extension of time for construction of building upto 30.06.2002 (Copy enclosed).
You will be very kindly aware that without proper Lease Deed, the MCD will not entertain our building plans for sanction. Now, the building plans are being sent to the MCD for their approval.
We may point out that we have made payments of all our dues to DDA upto date.
We may also point out that out of 3.97 acres allotted for a Senior Secondary School, 1.97 acres were allotted for play ground of a Senior Secondary School and the same is being rightly used for that purpose. Our only fault is that we have not been able to raise a Senior Secondary School building on the remaining 2 acre site and shift the Senior Secondary sections above primary to the proposed/Senior Secondary building. We are now taking frantic steps to remedy the wrong as aforesaid."
18. The contention that the lease deed was executed only on 4th January, 2002 is inconsequential and not relevant. Once possession of the land is given to the lessee/allottee, he has to carry out construction after getting NOC. The delay in executing lease deed did not prevent the respondent from construction. It is clear that no reason or ground was given in their letter for extension of time. Subsequently by another letter dated 8th January, 2003, the respondent society had replied to the show cause notice dated 2nd January, 2003 and had submitted:-
L.P.A. No. 487 of 2010 Page 13 "2. That a plot of subject land measuring 3.977 acres was allotted to this school society and time was given to raise the building on the 2 acres of the said plot of the land upto 30.06.2002. 1.977 acres was given to us for play ground out of the said site.
3. That a Senior Secondary School under this society being Modern Public School Education Society is running on the adjoining primary school site and we are required to shift secondary and senior secondary sections above the primary school to the building to be built on the said allotted plot of land.
4. That we have already and enclosed the allotted site by a designer boundary wall 8 feet height and further put an iron railing of 3 feet height on the piece of site reserved for play ground.
5. That the play ground area of the said site has further been developed by providing for :
i) One Football ground
ii) One Hockey ground
iii) One Handball court
iv) Two Basket concrete court
v) Two Volleyball court
vi) Four Kho-Kho courts &
vii)A gymnasium for the students
6. That for certain financial and other constraints beyond our control we could not raise the building on the allotted site within the allotted time.
7. That we are now dead set and willing to raise a quick building on the allotted site."
19. The aforesaid reasons given cannot be regarded as grounds why building had not been constructed. By no stretch, these can be considered as justification. In the writ petition filed L.P.A. No. 487 of 2010 Page 14 on 9th March, 2006, the respondent had given the following grounds why the construction could not be raised:-
"6. That while the petitioner (i.e. the respondent in the present appeal) was in the process of getting the building plans sanctioned, the petitioner had suffered a huge financial setback for the reasons.
a. The petitioner had lost their case against the Employees Provident Fund Authorities and, thus, a huge demand of about Rs.1.50 Crores was raised against them.
b. In view of the recommendations of 5th pay commission and implementation thereof, the petitioner was burdened with the additional salary.
c. In view of the Judgment of Hon'ble Supreme Court of India, the petitioner had purchased three CNG buses.
d. The petitioner was also required to deposit a sum of Rs.4.00 Lac plus interest thereon with the Delhi Development Authority in view of the revised land rates.
For the aforesaid reasons, the petitioner could not proceed for the sanction of the building plans and also could not raise the construction in time."
20. The reasons mentioned in the writ petition cannot be regarded as cogent and justifiable grounds to extend time for construction beyond 18 years. In the first reason i.e. provident fund dues of Rs.1.5 Crores, no dates have been mentioned when the amount became due and was paid. The same reason was given in the letter dated 19th September, 2001, when the L.P.A. No. 487 of 2010 Page 15 respondent had applied for extension of time, which was granted upto 30th June, 2002. The second reason is equally farcical. 5th Pay Commission was applicable with effect from 1996. Pursuant to implementation of the 5th Pay Commission, the school fees were also hiked and the said ground can hardly justify extension of time in 2002-2003. Similarly, third reason i.e. purchase of buses was mentioned in the earlier letter dated 19th September, 2001. More than 8 years old buses were weeded out in terms of the order passed by the Supreme Court and replaced with 3 CNG buses. The fourth reason given above is that the respondent had to deposit Rs. 4,00,000/- plus interest towards additional cost on account of revised land rates. This ground was also mentioned in the earlier letter dated 19th September, 2001. The respondent vide letter dated 9th Oct.,2001 was granted extension of time upto 30th June,2002 on payment of composition fee of Rs. 8,57,053/-, but no construction was undertaken. It is not the case of the respondent that any construction was started. These four reasons do not furnish any ground or cause to the respondent to repeatedly apply and get extension of time whenever they want as per their wishes.
21. The respondent claims that it is a charitable society. The land has been allotted to them on the basis of said assert, at pre L.P.A. No. 487 of 2010 Page 16 determined fixed rate and not at the market rate for furtherance and to enable them to construct a senior secondary school and spread education/educate children. Convergence of the State largesse on the respondent was/is coupled with the obligation and duty to serve public good and purpose. We cannot forget and be impervious to the objective and purpose behind the said allotment. There was/ is a shortage of private schools and parents of children face tough time and harassment. Developed land in Delhi is scarce. Even if the government or the appellant want that more schools should be constructed, so that the demand and supply mismatch is reduced, land cannot be allotted for schools, because it is not available. The whole object and purpose gets defeated and nullified in case a school building is not constructed even for 18 years. In these circumstances to allow extension of time for construction even after 18 years of allotment, on mere asking without any justification and good cause, will be contrary to the larger public interest. The present case cannot be compared to cases of allotment of a residential plot to an individual for benefit of the said person or her family. The allotment in the present cases is made for the benefit of the society and the community. Any L.P.A. No. 487 of 2010 Page 17 leniency or latitude to the respondent will defeat the said social purpose and object.
22. In view of the aforesaid reasoning, we allow the present appeal and set aside the impugned judgment dated 1st December, 2009 passed in W.P.(C) 9321/2006. The said writ petition will be treated as dismissed. In the facts of the case there will be no order as to the costs.
(SANJIV KHANNA) JUDGE (DIPAK MISRA) CHIEF JUSTICE MARCH 10th, 2011 VKR L.P.A. No. 487 of 2010 Page 18