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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.