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PETITIONER:

BRIG.(RETD.) D.K.JETLEY

Vs.

RESPONDENT:

ARMY WELFARE HOUSING ORGANISATION & ANR.

DATE OF JUDGMENT09/05/1995

BENCH:

SAHAI, R.M. (J)

BENCH:

SAHAI, R.M. (J)

AHMADI A.M. (CJ)

BHARUCHA S.P. (J)

CITATION:

1995 SCC Supl. (2) 738 JT 1995 (5) 135

1995 SCALE (3)675

ACT:

HEADNOTE:

JUDGMENT:

THE 9TH DAY OF MAY, 1995

Present:

Hon'ble the Chief Justice

Hon'ble Mr. Justice R.M.Sahai

Hon'ble Mr. Justice S.P.Bharucha

Mr.Arun Jaitley, Mr.Shiv Dayal Shrivastava, Mr.S.K.Bagga,

Mr.M.N.Krishnamani and Mr.R.K.P.Shankardass, Sr.Advs.,

Ms.Nandini Gore,(Mr.R.Karanjawala,) Adv. for

Ms.M.Karanjawala,

Mr.A.K.Tewari, Ms.Tanuj Bagga,Mr.Seeraj Bagga,

Mrs.S.Bagga,Mr.Subhash Oberoi,Mr.A.K.Sinha,and Mr.Rishi

Kesh,

Advs.with them for the appearing parties.

J U D G M E N T

The following Judgment of the Court was delivered:

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5460 OF 1995

[Arising out of SLP (C) No. 3255 of 1992]

Brig (Retd.) D.K. Jetley .... Appellant

vs.

Army Welfare Housing Organisation .... Respondents

& Anr.

WITH

[C.A. Nos. 5461 & 5462 of 1995 (Arising out of SLP (C) Nos.

4536 and 13450 of 1992 and C.P. No. 165 of 1992 with I.A.

No.3 in C.A. No. 4880 of 1991]

J U D G M E N T

R.M. Sahai,J.

Four senior officers occupying high ranking office in

the Army, now retired, are litigating for allotment of flats

in Som Vihar (R.K.Puram, New Delhi) for the last fifteen

years. How the controversy has arisen giving rise to four

appeals, two filed by Brig. Jetley, one by Lt. Col. Gupta

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and one by the Union of India shall be narrated presently

but they do not leave a very satisfactory impression. All

these officers have been running from the lowest court in

the hierarchy to the highest Court. And we are sorry to say

so at times without disclosing correct facts. The Army

Welfare Housing Organisation (AWHO) which has been

established by the Union of India to construct houses for

army personnel, both in service and retired too, has behaved

casually, may be because the courts at different levels have

been passing orders giving rise to conflicting claims

raising hopes, of a flat in Som Vihar, in favour of each of

the officer. How to adjust the equities? Fortunately, the

AWHO now at the instance of this Court has filed affidavit

which solves at least one problem that four flats are

available. Who should get them and where is the only issue.

All these appeals and applications relate to allotment

of flats in Som Vihar constructed by the AWHO. In 1979 the

AWHO undertook to construct 422 flats in Som Vihar. It

invited applications from the officers, both serving and

retired, in 1979. 932 persons registered themselves. 21

flats were reserved for ex-army service personnel. For

remaining 401 flats lots were drawn. Sri Jetley, Sri Dahiya

and Sri Gupta were placed in the list of allotment at S1.

No. 102, 146 and 346 respectively. Sri Jetley deposited a

sum of Rs. 5100/-on 24th December, 1979 as an initial

deposit for getting himself registered. He deposited another

sum of Rs., 35,000/-, as required, beyond seventeen days.

Since there was delay, he deposited interest at the rate of

six per cent for delayed payment. It was accepted and he was

allotted placement at No. 102 in the seniority list.

Sometime in 1981 the AWHO took a decision that since the

deposit was made beyond 17 days, the allotment in his favour

was liable to be cancelled and his seniority was pushed down

to 895. This was challenged by Sri Jetley and he filed a

suit for declaration for correcting his seniority and

allotment of flat No. J-306. The suit was dismissed on 10th

October, 1986. After the dismissal of the suit the AWHO

allotted Flat No. J-306 to another officer. Sri Jetley filed

an appeal. It was allowed in 1988 and the order bringing

down his seniority was declared to be illegal. But since by

then the flat allowtted to him had already been allotted in

favour of another officer, the authorities were helpless in

complying with the order, therefore, he filed another suit

No. 66/90 for mandatory injunction for enforcement of

decree. In this suit an order was passed on 16th January,

1990 by a Single Judge of the High Court restraining the

AWHO from allotting Flat No. C-306 and Flat No. C-305 at

R.K. Puram to anybody till further orders. On coming to know

of this order, Sri Dahiya moved an application that he was

allotted Flat No. F-305 and his placement in seniority was

at S1. No. 146, therefore, the order directing that F-305

may be kept reserved may be recalled. This application was

rejected on 9th May, 1991. Dahiya filed First Appeal against

that order before the Division Bench and on 11th February,

1992 the impugned order was passed. It was observed by the

Bench that this flat was allotted to Sri Dahiya in 1984 and

he had paid the entire price but could not get possession

due to restrain order passed against the AWHO in three

different litigations for not delivering the possession of

the flat to Sri Dahiya. The Bench observed that in two

litigations Sri Dahiya was able to get the stay orders

vacated and the appeal filed by Sri Jetley was the third

litigation in which the stay order had been obtained without

impleading Sri Dahiya. The Bench, therefore, was of the

opinion that on consideration of the matter prima facie it

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was satisfied that there was no impediment in way of AWHO in

delivering possession of Flat No. F-305 to Shri Dahiya

particularly because Flat No. C-306 had been kept reserved

to be allotted to the rightful person whether Shri Jetley or

anyone else who was found to be entitled. This order is

subject-matter of Civil Appeal arising out of SLP (C) No.

4336 of 1992. passed an ex-parte order that if any allotment

of flat was made it would expressly be subject to the result

of the appeal and the allottee should be holding possession

till then only as an agent of the Court. The order was

modified on 15th May, 1992, after hearing counsel for both

the parties, by directing that any allotment made in the

meanwhile may be subject to the orders made in the Special

Leave Petition. It may not be out of place to mention that

in the written statement filed by the AWHO in Suit No. 66 of

1990 filed by Sri Jetley it was pointed out by the AWHO that

the allotment of Sri Jetley was cancelled and he having been

pushed down in the order of seniority and his suit having

been dismissed, the AWHO allotted the flat in his name to

another officer. The AWHO further pointed out that Flat No.

F-305 was already allotted to Sri Dahiya in consequence of

order passed in Writ Petition No. 610 of 1980, LPA No. 90/85

and judgment and decree in Suit No. 2850 of 1990. It was

stated that Flat No. J-604 was reserved for Sri Gupta in

Writ Petition No. 1520 of 1993 and Flat No. J-306 was

reserved in Suit No. M-36/84 in favour of Sri Khandpur. The

written statement further pointed out that the flat reserved

in favour of Sri Jetley was allotted to one Col. I.P. Gaur

when the suit filed by him was dismissed and no interim

order was granted and the flat allotted to Col. Gupta was

handed over to Col. Goswamy on 21.5.1986.

The appeal of Sri Gupta is directed against the

direction given by the High Court on intervention of Sri

Dahiya that Flat No.F-305 may be allotted to him. A little

background of this litigation is necessary. A flat was

allotted to Sri Gupta in Som Vihar. But the allotment was

cancelled as the AWHO came to know that he was having

another flat. This order was challenged by Sri Gupta in the

High Court. In December, 1983 the High Court passed an order

in presence of AWHO that one flat may be kept reserved for

him in Som Vihar. The petition it appears was dismissed in

1985 for non-appearance of the learned counsel of Sri Gupta.

He filed an application for recal of the order. It was

allowed on 13th March, 1987. In respect of interim order,

the Court observed that the order dated 15th December, 1983

shall stand revived provided the flat in the Som Vihar had

not been allotted. Till then there was no difficulty but on

3.3.89 the High Court directed status quo to be maintained

as regards Flat No. F-305 and Flat No. C-306. When Sri

Dahiya came to know of it he applied for intervention

claiming that in pursuance of the High Court's order an

order had been made in his favour in respect of Flat No. F-

305. The application was decided on 14th November, 1989 and

AWHO was directed to handover possession to Sri Dahiya of

Flat No. F-305. This direction was challenged by Sri Gupta

in Civil Appeal No. 4880 of 1991. This appeal came to be

disposed of on December 9, 1991 by this Court by an order

which is extracted below:

"Special leave granted.

After hearing learned counsel for

the parties and having regard to the

facts and circumstances of the case and

especially in view of the offer made by

the Society, we direct that Flat No. C-

306, Som Vihar, New Delhi, shall be kept

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reserved and if the appellant succeeds

in the proceedings before the High Court

the same shall be allotted to him. This

will, however, be subject to the deposit

of the requisite amount by the

appellant.

Appeal is accordingly disposed of.

There will be no order as to costs.

The High Court is requested to

dispose of the matter pending before it

within three months from now".

When Sri Jetley and Sri Dahiya came to know of the order,

they filed application for recall of the order whereas Sri

Gupta has filed an application for taking proceedings in

contempt against the officers of the AWHO.

On 13th November, 1994 Brig. Khandpur another officer

filed an application for recall of order dated 9th December,

1991 passed in the appeal filed by Sri Gupta. It is claimed

by him that the order was procured by concealing the real

facts. It is alleged that Flat No. C-306 in Som Vihar had

been reserved for him under the orders of the Court dated

28th January, 1985. He claims that this flat had been

reserved for him and successive orders have been passed in

his favour. It is claimed that the Suit No. 524/81 filed by

him has been decreed on 1.10.1992 and the AWHO had been

directed to handover possession of the aforesaid flat. Sri

Khandpur has further pointed out that Flat Nos. J-306, C-306

and C-305 have been handed over to different officers by the

AWHO subject to the decision of the court proceedings.

While these proceedings were going on the High Court on

22nd May, 1992 decided the writ petition of Sri Gupta on

22nd May, 1992 decided the writ petition of Sri Gupta

against cancellation of allotment. It was held that the

cancellation of the flat in favour of Sri Gupta on basis

that he was holding another flat was contrary to the bye-

law. This order has been challenged by the Union of India by

way of Civil Appeal arising out of SLP (C) No. 13450 of

1992.

Thus there are four claimants for two flats in Som

Vihar. Everyone claimed that he was entitled to these flats

and placed reliance on order of one or the other Court

passed in his favour. Before considering their claim few

facts brought out by the AWHO may be noticed. When Sri

Khandpur staked his claim few facts brought out by the AWHO

may be noticed. When Sri Khandpur staked his claim for a

flat on an award made in his favour the Secretary of AWHO by

letter dated 16th February, 1988 replied that the award had

not been made the rule of the court, therefore, Sri Khanpur

was not entitled to stake his claim for Flat No. C-306. It

was also pointed out that one Type V flat No. 1417 at second

floor in Sector 37 at NOIDA was allotted to him and he had

already paid a sum of Rs. 2,77,864/-. The letter further

required him to deposit the balance of Rs. 10029/-. This

flat, according to the affidavit filed by the AWHO, is still

available.

When these appeals were heard earlier, the learned

counsel for the AWHO was directed to ascertain if there were

four flats available with the AWHO and if so, where An

affidavit has been filed which indicates that two flats are

available in Som Vihar (R.K. Puram, New Delhi), one in NOIDA

(Ghaziabad, UP) and one which is likely to come up by

November in Faridabad (Haryana). It is further averred that

Flat No. F-305 is in possession of Sri Dahiya since 10th

March, 1992. He is holding the possession as an agent of

this Court. His seniority, according to the affidavit, the

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seniority of Sri Jetley stands restored to 102 and Flat No.

C-306 is still available. The affidavit further points out

that since this Court by its order dated 9th December, 1991

had directed that Flat No. C-306 be kept reserved for Sri

Gupta, he was requested to deposit the requisite amount, but

the officer has not complied with the letter. It is stated

that even though Sri Gupta is not entitled to any flat and

the SLP against the order passed by the High Court setting

aside the order of cancellation is pending in this Court,

yet the Society was ready and willing to allot the officer

an economy apartment having super area of about 1250 sq.ft.

under construction at Sector 21-C, Faridabad, Haryana. In

respect of Sri Khandpur, the affidavit points out that the

Subordinate Judge vide order dated 6th January, 1988 set

aside the arbitration award made in his favour on 11th June,

1981 and Sri Khandpur in the mean time on 1st January, 1982

had accepted the allotment of a Type V flat No. 1417 at Arun

Vihar, NOIDA. The affidavit further points out that the

officer in another Suit No. 425 of 1988 obtained an ex-parte

order on 1st October, 1992 that he was entitled to a flat in

P-1 series and that Flat No. C-306 be allotted to him. The

affidavit points out that this officer is not entitled to

this flat as in seniority of the Society he is below Sl. No.

972 and not within the zone of entitlement, i.e., Sl. No.

402.

The position that emerges from various proceedings and

the affidavits filed on behalf of the AWHO is that the

seniority of Sri Jetley at Sl. No. 102 was restored as far

back as 1988 and that order has become final. Similarly, the

seniority of Sri Dahiya at Sl. No. 146 has become final. The

orders were obtained by Sri Gupta and Sri Khandpur after

these dates from different courts. This was obviously under

misapprehension of fact. If the courts would have been aware

that the seniority of Sri Jetley and Sri Dahiya stands

restored at Sl. Nos. 102 and 146 then probably these

conflicting orders could not have been passed.

The cases of each individual officers may now be taken

up. The allotment in favour of Sri Jetley was cancelled in

1981. This order was set aside in 1988. Whether the AWHO was

justified or not in allotting Flat No. J-306 after dismissal

of the suit in favour of a third party without waiting for

the appeal which Sri Jetley had filed need not be gone into.

Although we must express our disapproval of the manner and

the hurry with which this flat was allotted after the

decision of the suit and before filing of the appeal and its

decision in July, 1988, however, the fact remains that this

flat has been allotted to a third person. The question then

is whether Sri Jetley was justified in procuring order from

the court for reservation of flat No., C-306 and Flat No. F-

305. These orders were passed in his favour in 1990. Since

Flat No.C-306 was available and he was above all the

claimants in allotment list the reservation of Flat No.C-306

was in accordance with law.

Taking up the case of Sri Gupta, it is clear that his

allotment for a flat in Som Vihar was cancelled sometime in

1983. He challenged it before the High Court and an interim

order was granted that one flat in Som Vihar shall be kept

reserved for him. The order does not mention any flat

number. His petition was dismissed in default. It was

restored in 1987 and it was in 1989 only when he could

secure an order directing AWHO to reserve Flat No. C-306 and

Flat No. F-305. Neither flats were available. Flat No.F-305

had been allotted in favour of Sri Dahiya in 1985. And Flat

No.C-306 in order of seniority after 1988 could be allotted

to Sri Jetley. The orders were, therefore, passed on

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misapprehension of fact and the moment it was brought to the

notice of the court by Sri Dahiya the court recalled its

order in respect of Flat No. F-305, and the order dated 9th

December, 1991 in respect of Flat No. C-306 was again

obtained from this Court without apprising it of the

position that it was reserved for Sri Jetley. Therefore, in

our opinion, Sri Gupta was not entitled to any of these

flats.

As regards Sri Khandpur, the affidavit filed by the

AWHO clarifies that there was no order in his favour in 1985

and the averments made by him in the appliction for

intervention filed in the appeal of Sri Gupta did not

disclose correct facts and the order passed in 1992 is not

only ex-parte but without impleading either Sri Jetley in

whose favour the flat was reserved or Sri Gupta who was

laying claim to it. The order, therefore, does not create

any right in his favour.

So far as Sri Dahiya is concerned, Flat No. 305 was

allotted in his favour as far back as 1985. He has succeeded

from every court in getting the interim order vacated. He is

occupying this flat at present as an agent of this Court. In

our opinion, his claim is well-founded. In the facts and

circumstances mentioned above the appeal of Union of India

need not be decided. The question of law raised by it on

construction of bye law shall remain open.

For these reasons, the appeals, applications and the

contempt petition are disposed of with following directions:

1(a) Flat No. F-305, Som Vihar, R.K. Puram, New Delhi

shall be allotted to Sri Dahiya.

(b) Flat No. C-306 shall be allotted to Sri Jetley.

(c) Flat in Noida, Ghaziabad, shall be allotted to Sri

Khandpur.

(d) Flat at Faridabad shall be allotted to Sri Gupta.

2. The applications for intervention filed by

different parties in different SLPs stand disposed of

in the light of what has been stated above.

3. Contempt Petition No. 165 of 1992 shall stand

dismissed.

4. All the writ petitions, suits pending between

parties or between anyone of them and AWHO in this

Court, High Court or any other court relating to

allotment of flats in Som Vihar shall stand terminated.

Parties shall bear their own costs.