Bringing an end to a "tussle between bureaucracy and educational institutions", the Delhi High Court on Friday paved the way for hundreds of schools to increase their space by declaring that all middle schools, which are members of the Action Committee Unaided Recognized Private Schools, shall be entitled to run as senior secondary schools without payment of any additional charges to the Delhi Development Authority.
Justice C Hari Shankar also directed the DDA to modify schools without any charges the lease deeds of the which were for allotted plots for setting up primary and middle schools and were allowed to upgrade by one level but not before payment of additional charges.
"…it is hereby declared that the members of the petitioner-Association/Society, which are entitled to income tax 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 (Floor Area Ratio) 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," declared Justice Shankar.
A hope in passing
While passing the order, the high court expressed hope that in future, interests of students and larger public interest would be given primacy as it noted that while the institutions have been permitted, by the CBSE and the DoE, to function at senior secondary level, and are so functioning, they were being inhibited from doing so, by the DDA, by the demand for exorbitant additional FAR charges.
"It is hoped, fondly, that, in future cases, statutory authorities, such as the DDA, the DoE and the CBSE, would avoid adopting conflicting stands, with respect to the functioning of educational institutions, so that, in the ultimate analysis, the right to education is in a position to prosper and thrive. One must bear in mind the fact that, at the end of the day, the voiceless students are the ones who are sacrificed, in the tussle between the bureaucracy and the educational institutions. In a welfare state, such as ours, this is unthinkable," said Justice Shankar.
The order of the court comes on a petition moved by the 'Action Committee Unaided Recognized Private Schools' represented by senior advocate Amit Sibal, along with advocate Kamal Gupta.
The petitioner, a society registered under the Societies Registration Act, 1860, comprising approximately 300 private unaided recognised schools in Delhi, espoused the cause of various primary and middle schools, who, consequent to modified recognition granted by the DoE and the CBSE, are functioning at the senior secondary level.
The schools claim to be aggrieved by the demand, by the DDA, for payment, by the said schools, of additional charges, for being allowed the facility of additional Floor Area Ratio.
The petitioner's case was that, despite clear cut instructions having been circulated by the DDA allowing such upgradation subject to the schools having the requisite land area, the DDA itself is for no justifiable reason, refusing such up-gradation until and unless additional charges are paid, by the said schools, for being allowed additional FAR, which such up-gradation would entail.
Initially, plots were allotted, by the DDA, to the Societies (Petitoners) for setting up primary and middle schools, under the Delhi Development Authority (Disposal of Developed Nazal Lands) Rules, 1981.
The petitioner contends that the premium payable, to the DDA, at the time of allotment of plots, was the same for all educational institutions, irrespective of the level thereof, i.e. irrespective of whether they were primary, middle, secondary or senior secondary.
Till the coming into force of the Master Plan of Delhi- 2021 the stand of the DDA was that, under the MPD 2001, separate standards had been stipulated for different categories of schools, and that it was consciously decided to allot specific sites depending on the use to which the sites were to be put, depending on the category of school to be established thereon. As such, the DDA was of the view, at that point of time, that, on a site, which had been leased by the DDA for establishing a school of a particular category/level, no school, of any higher category/level, could be established or run. In other words, a site which was allotted for establishing a primary school could not, in any circumstances, be used for setting up a middle, secondary or senior secondary school.
With effect from 7th February, 2007, the MPD 2021 came into force. Under the MPD 2021, the minimum required land area, for the various categories of schools, was reduced, and the FAR and ground coverage, permitted to the schools, were increased.
The petition rued the August, 2008 office order, which, as a precondition for conversion of primary/middle Schools, situated on plots at measuring 0.8 hectares or more, requires that the Societies pay premium at the rate applicable when the plot was allotted with 10% up-to-date annual increase.
Justice Shankar noted that in three earlier decisions taken note of the Office Order dated 29th August, 2008, as well as the Notifications, dated 23rd December 2008 and dated 17th July, 2012, issued by the DDA.
"The Division Bench of this Court has accorded the Notification dated 17th July 2012, retrospective application, and has held that, in view of the issuance thereof, societies running educational institutions, which were entitled to income tax exemption, would not be required to pay additional FAR charges," noted Justice Shankar.
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