Delhi School Education Act, 1973 – Section 17 (3) – Public Interest Litigation filed by “Justice For All” seeking a direction that no private un-aided school in Delhi which has been allotted land by the Delhi Development Authority (DDA) shall enhance the fee without prior sanction of the Director of Education.
THE HIGH COURT OF DELHI AT NEW DELHI
CORAM: HON’BLE THE CHIEF JUSTICE AND HON’BLE MR. JUSTICE JAYANT NATH
Pronounced on: 27th July, 2016
JUSTICE FOR ALL ….. Petitioner Through: Mr.Ashok Agarwal, Mr.Khagesh B. Jha, Advocates for petitioner. Mr. Sunil Gupta, Sr. Advocate with Mr.S.D.Salwan, Mr. Vedanta Varma, Mr.Vibhor Kush, Ms.Anisha Mitra & Mr.Akhil Kumar Gola, Advs. for R-2/Review Petitioner in Review Petition No.129/2016. Mr. Amit Sibal, Sr. Advocate with Mr.Kamal Gupta, Mr. Vinay P. Tripathi and Mr. Namit Suri, Advocate for the Review Petitioner/Trans Yamuna School’s Federation in Review Petition No.186/2016. Versus GOVT OF NCT OF DELHI & ORS. ….. Respondents Through: Mr.Santosh Kumar Tripathi, ASC for GNCTD/R-1. Mr.Vikas Mahajan, CGSC with Mr.S.S.Rai, Adv. for R-3/UOI. Mr.Arun Birbal and Mr.Sanjay Singh, Advocates for DDA.
Ms.G. ROHINI, CHIEF JUSTICE:
Review Petition No.129/2016 & CM No.9383/2016 (delay); CM No.9384/2016 (impleadment); CM No.9385/2016 (leave to file review) & CM No.9386/2016 (stay) Review Petition No.186/2016 & CM No. 13529/2016 (impleadment); CM No.13530/2016 (leave to file review); CM No. 13531/2016 (stay) and CM No. 13533/2016 (delay)
1. These two review petitions are filed seeking review of the order dated 19.01.2016 in W.P.(C) No.4109/2013.
2. The petitioners in both the review petitions claim to be the societies registered under the Societies Registration Act, working for promoting the right kind of education for children in all schools with prescribed minimum standards. Since they were not parties to the writ petition, these petitions came to be filed along with petitions seeking leave to file the review.
3. The averments in both the review petitions and the grounds of review are verbatim same.
4. We have heard Shri Sunil Gupta, the learned Senior Advocate who appeared for the petitioner in Review Petition No.129/2016 and Shri Amit Sibal, the learned Senior Advocate who appeared for the petitioner in Review Petition No.186/2016. We have also heard the learned counsel appearing for the Government of NCT of Delhi and the learned counsel appearing for the writ petitioner.
5. W.P.(C) No.4109/2013 was a Public Interest Litigation filed by “Justice For All” seeking a direction that no private un-aided school in Delhi which has been allotted land by the Delhi Development Authority (DDA) shall enhance the fee without prior sanction of the Director of Education.
6. Placing reliance upon
Modern School vs. Union of India & Ors.; (2004) 5 SCC 583
it was pleaded in the writ petition that though as per Master Plan-2021, an allottee of land for the purpose of establishing an educational institution is under an obligation not to increase the tuition fees without prior sanction from the Director of Education (DoE), the un- aided educational institutions in Delhi failed to comply with the same and have been indulging in profiteering and commercialization of school education by enhancing the fees without taking the prior permission of DoE.
7. In the counter affidavit filed on behalf of Respondent No.3/Land and Development Department, Ministry of Urban Development, it was stated that the Land and Development Office allotted plots to schools, colleges, universities at pre-determined concessional rates and that one of the conditions in the allotment letter is that the percentage of free-ship from the tuition fees shall be governed by the Rules made by the DoE, Delhi Administration. It was also stated that appropriate action for cancellation of allotment would be taken against those schools which failed to comply with the said condition and show cause notices were already issued to nine such schools.
8. Reiterating the stand taken in the counter affidavit of the Land and Development Department, it is further stated by the Director of Education in his counter affidavit that in terms of the directions of the Supreme Court in Modern School v. Union of India (supra), Circular dated 16.04.2010 has been issued regulating the fee hike in the recognized un- aided schools.
9. After referring to the decision of the Supreme Court in Modern School v. Union of India (supra) wherein the applicability of
Section 17(3) of the Delhi School Education Act, 1973
(for short ‘DSE Act’) to un-aided schools and regulation of quantum of fees charged by them was extensively considered and the liability of private un-aided schools situated in the land allotted by DDA at concessional rates was decided, this Court disposed of W.P.(C) No.4109/2013 holding as under:
“17. Thus it is clear that the schools cannot indulge in profiteering and commercialization of school education. Quantum of fees to be charged by unaided schools is subject to regulation by DoE in terms of the power conferred under Section 17(3) of DSE Act, 1973 and he is competent to interfere if hike in fee by a particular school is found to be excessive and perceived as indulging in profiteering. So far as the unaided schools which are allotted land by DDA are concerned, in the light of the decision of the Supreme Court in Modern School vs. Union of India & Ors. (supra), we are clear in our mind that they are bound to comply with the stipulation in the letter of allotment. Para 28 of the majority judgment in Modern School vs. Union of India & Ors. (supra) upholds the binding nature of the stipulation in the letter of allotment issued by the DDA that the school shall not increase the rate of tuition fees without the prior sanction of DoE.
18. For the aforesaid reasons, we consider it appropriate to dispose of the writ petition with a direction that the respondent No.1/DoE shall ensure the compliance of term, if any, in the letter of allotment regarding the increase of the fees by all the recognized unaided schools which are allotted land by DDA. The respondent No.2/DDA shall also take appropriate steps in accordance with law in case of violation of such stipulation in the letter of allotment by the unaided schools.”
10. The said order is sought to be reviewed in these two review petitions.
11. It is contended by Shri Sunil Gupta, learned Senior Counsel appearing for the petitioner in Review Petition No.129/2016 that this court failed to notice that Para 27(c) of Modern School v. Union of India & Ors. (supra) is per incuriam and not capable of being read as a binding direction since the three issues framed and considered by the Supreme Court in the said decision had nothing to do with the terms of the allotment letter or the lease deed pertaining to the land allotted to various societies/trusts for running private unaided schools. It is also contended that there was neither an issue with regard to terms of the allotment letter pertaining to a school plot and its applicability in respect of schools whose lease deed did not contain the terms of the allotment letter nor it was the subject matter of deliberation, submission or consideration in Modern School v. Union of India & Ors. (supra).
12. Placing reliance upon