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Court said that there was no challenge to the change of policy made in 2003 and there was a settled position of law that the allotment had to be made by public auction and the land having been allotted to others could not be a ground to extend the relief as negative parity had been disapproved in the law
The Supreme Court has said that internal file notings and in principle approval do not confer any right to a party until a final decision is taken and a litigant who does not exercise due diligence can't claim relief for failing to claim his rights within a reasonable time.
A bench of Justices Vikram Nath and Rajesh Bindal allowed an appeal filed by the Delhi Development Authority against the Delhi High Court's single and division bench orders for "serious error" in directing for allotment of land for respondent Hello Education Home Society for establishing a middle school at upscale Vasant Kunj in Delhi.
The bench said that there was no challenge to the change of policy made in 2003 and there was a settled position of law that the allotment had to be made by public auction and the land having been allotted to others couldn't be a ground to extend the relief as negative parity had been disapproved in the law.
The top court found much substance in the contention by the appellant that there was no justification for the Society to wait for 11 years after the in-principle approval of its proposal in 2003 by the Lieutenant Governor to file a writ petition before the high court in 2014.
"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 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 inordinate delay of 11 years," the bench said.
The appellant contended the letter recommending the allotment of land in Vasant Kunj was issued under some misconception. 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.
It also submitted that several complaints were received with respect to allotment of public land for educational sites to establish institutions on commercial basis and a CBI enquiry was directed to be conducted.
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, it further said.
In its judgment, the bench said that the high court fell in error in not correctly appreciating the matter as the Essentiality Certificate, the Sponsorship Letter and the allotment letter were 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.
It also noted that the high court committed an error in treating Vasant Kunj and Jasola area falling in the same zone, though it was not so.
The court also noted that the policy decision taken on December 15, 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," the bench said.
The society has not been able to establish or even prima facie establish that the facts as narrated by the appellant were incorrect, the bench said.
With regard to the internal notings, the bench said, "The issue 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 concerned party, no right accrues to the said party. Mere notings and in-principle approvals do not confer a vested right."
After the change in policy in 2003, the bench said that the settled procedure to be followed on or after the date 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 position of law that whenever the State intends to transfer any land resort should be by public auction or inviting tenders," the bench said.
With regard to a contention by the society that others were allotted the land, the bench again said, "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."
Case Title: Delhi Development Authority Vs Hello Home Education Society
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