BRIG. (RETD) D.K JETLEYversusARMY WELFARE HOUSING ORGANISATION AND ANR.

               BRIG. (RETD) D.K JETLEY                                         A
                          v.
     ARMY WELFARE HOUSING ORGANISATION AND ANR.

                               MAY 9, 1995

   (AM. AHMADI, C.J., R.M .. SAHAI AND S.P. BHARUCHA, JJ.]                     B

      Housing:

       Am1y Welfare Housing Organisation-Allotment of flats-Four
Claimants for two flats--<Jnly two are entitled-Conflicting orders passed by   C
different courts--<Jbviously under misapprehension of facts-Direction for
allotment-lssued.

       In 1979 the respondent-Organisation undertook to construct 422
flats in Som Vihar (R.K. Puram, New Delhi). It invited applications from
the Officers, both serving and retired, in 1979. 932 persons registered        D
themselves. 21 flats were reserved for ex-army service personnel. For
remaining 401 flats lots were drawn. The appellant and two others were
placed in the list of allotment at SI. No. 102, 146 and 346 respectively.

       The appellant deposited a sum of Rs. 5,100 on 24th December, 1979
as initial deposit for getting himself registered. He deposited another sum    E
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 respondent took a decision that since the
deposit was made beyond 17 days, the allotment in his favour was liable
                                                                               F
to be cancelled and bis seniority was pushed down to 895. This was
challenged by the Appellant before the High Court which passed an order
restraining the respondent from allotting Flat No. C-306 F-305 at R.K.
Puram to anybody till further orders.
                                                                               G
      On coming to know of this orders, D, another officer, moved an
application before the High Court that he was allotted Flat No. F-305;
therefore, the order directing that F-305 be kept reserved, may be recalled.
This application ~s allowed by the High Court.

      G, another officer, moved an application before the High Court for       H
                                    103
    104                   SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.

A   recall of the order passed in favour D. This application was also allowed
    by the High Court.

         K, another officer, filed an application claiming that Flat No. C-306
    had been reserved for him.

B         Aggrieved by the orders, the appellant preferred the present Appeal.

          Disposing of the Appeal, this Court

          HELD : 1. There are four claimants for two Oats in Som Vlhar.
    Everyone claimed that he was entitled to these Oats and placed reliance on
C   order of one or the other court passed in his favour. The position that
    emerges from various proceedings and the affidavits filed on behalf of the
    respondent is that the seniority of the appellant and D at SI. No.102 and SI.
    No.146 has become final. The orders obtained hy G. and K were obviously
    under misapprehension of facts. If the courts would have been aware that
D   the seniority orthe appellant and D stands restored at SI. Nos. 102 and 146
    then probably these conflicting order could not have been passed. Flat No.
    F-305, Som Vlhar, R.K. Puram and Oat No. C-306 shall be allotted to D and
    the appellant respectively. Flat in Noida, Ghaziabad and Oat at Faridabad
    shall be allotted to Kand G respectively. [108-F, 109-G, 111-D)

E        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5460 of
    1995 Etc.

          From the Judgment and Order dated 11.2.92 of the Delhi High Court
    in F.AO. (OS) No. 131 of 1991.

F         Arun Jaitley, Shiv Dayal Srivastava, S.K. Bagga, M.N. Krishnamani,
    R.K.P. Shankardass, Ms. Nandini Gore, R. Karanjawala for Ms. M.
    Karanjawala, AK. Tewari, Ms. Tanuj Bagga, Seeraj Bagga, Mrs. S.
    Bagga, Subhash Oberoi, AK. Sinha and Rishi Kesh for the appearing
    parties.
G
          The Judgment of the Court was delivered by

          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
    (RK. Puram, New Delhi) for the last fifteen years. How the controversy
H   has arisen giving rise to four appeals, two filed by Brig. Jetley, one by U.
            D.K. JE1LEY v. ARMY WELFARE HSG. ORGN. [R.M. SARAI, J.]             105

       Col. Gupta and one filed by the Union of India shall be narrated presently      A
       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 says 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
                                                                                       B
       service and retired too, has behaved casually, may be because the courts
       at different levels have been passing orders giving rise to conflicting claim
       raising hopes, of a flat in Som Vihar, in favour of each of the officer. How
       to adjust the equities? Fortunately, the A WHO 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.                 c
               All these appeals a11d applications relate to allotment of flat 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 D
        were reserved for ex-army service personnel. For remaining 401 flats lots
....    were drawn. Sri Jelley, Sri Dahiya and Sri Gupta were placed in the list of
        allotment .at SI. No. 102, 146 and 346 respectively. Sri Jelley 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 E
        rate of six per cent for delayed payment. )t 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 Jelley and he filed a suit F
        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 allotted to him had G
        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 the_ 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 H
    106                  SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A   this order, Sri Dahiya moved an application that he was allotted Flat No.
    F-305 and his placement in seniority was at SI. 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
B   was passed. It was observc_d 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 A WHO 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
C   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 was satisfied that there was no impediment in way
    of A WHO in delivering possession of Flat No. F-305 to Sri Dahiya par-
    ticularly because Flat No. C-306 had beeri kept reserved to be allotted to
D   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. 3255 of 1992. This order was made absolute on 10th March, 1992. _
    This order is subject-matter of Civil Appeal arising out of SLP (C) No.
    4536 of 1992. In the Civil Appeal of Sri Jetley this Court while entertaining
E   the SLP against the first order 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
F
    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 A WHO allotted the flat in his name to another officer. The
G   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
H   of Sri Khandpur. The written statement further pointed out that the flat
    D.K. JETLEY v. ARMY WELFARE HSG. ORGN. [R.M. SAHA!, J.]             107

reserved in favour of Sri Jetley was allotted to one Col. J.P. Gaur when A
the suit filed by him was dismissed and no interim order was granted and
flat allotted to Co. Gupta was handed over to Col. Gowswamy 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
                                                                             B
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      c
in 1985 for mm-appearance of the learned counsel of Sri Gupta. He filed
an application for recall 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 D
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 14 November, 1989 and AWHO was directed to handover
possession to Sri Dahiya of Flat No. F-305. This direction was challenged E
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.                                                F
            After hearing learned counsel for the parties and having regard
        to the facts and circumstances of the case and especially in view
        of the officer made by the Society, we direct that Flat No. C-306,
        Som Vihar, New Delhi Delhi, shall be kept reserved and if the
        appellant succeeds in the proceedings before the High Court the        G
        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.                                                        H
    108                   SUPREME COURT REPORTS [1995) SUPP. 1 s.c.13.

A              The High Court is requested to disposed of the matter pending
            before it within three months from now".

    When Sri J etley and Sri Dahiya came to know of the the order, they filed
    application for recall of the order whereas Sri Gupta has filed an applica-
B   tion 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 Flats No. C-306 in Som Vihar
C   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 passed in his favour. It is claimed that 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         '
D   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 against cancellation of allot-
E   ment. 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 SIP (C) No. 13450 of 1992.

F          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 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
G   been made the rule of the court, therefore, Sri Khandpur 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 Naida 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
H   filed by the AWHO, ic still available.
     D.K. JETLEY v. ARMY WELFARE HSG. ORGN. [R.M. SAHAI, J.]              109

       When these appeals were heard earlier, the learned counsel for the A
A WHO was directed to ascertain if there were four flats available with the
A WHO and if so, where. An affidavit has been filed which indicates that
two flats arc available in Some Vihar (R.K. Puram, New Delhi), one in
NOIDA (Ghaziabad, U.P.) and one which is likely to come up by Novem-
ber in Faridabad (Haryana). It is further averred that the Flat No. F-305
                                                                                  B
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, in the allotment list is 146. According to affidavit, the 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 C
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 wos ready and willing to allot the officer an economy apartment D
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 vi de 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 allot-
ment of a Type V flat No. 1417 at Arun Vihar, NOIDA. The affidavit E
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 SI. No. 972 and not within the zone of entitlement, i.e., SI. No. 402. F

       The position that emerges from various proceedings and the af-
fidavits filed on behalf of the A WHO is that the seniority of Sri Jelley at
SI. No. 102 was restored as far back as 1988 and that order has become
final. Similarly, the seniority of Sri Dahiya at SI. No. 146 has become final.
The orders were obtained by Sri Gupta and Sri Khandpur after these dates         G
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 st SI. Nos. 102 and 146 then probably these con-
flicting orders could not have been passed.

      The cases of each individual officer may now be taken up. The              H
    110                    SUPREMECOURTREPORTS [1995] SUPP. l S.C.R.

A   allotment in favour of Sri J etlcy 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 and 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
B
    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
C   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
D   the High Court and an interim order was granted that one flat in Som
    Vihar shall be kept reserved for him. The order docs 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
E   No. C-306 in order of seniority after 1988 could be allotted to Sri Jelley.
    The orders were, therefore, passed on 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
F   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 application for intervention filed in the· appeal of Sri Gupta did
G   not disclose correct facts and the order passed in 1992 is not only ex-parte
    but without imp leading either Sri J etley 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.

H         So far as Sri Dahiya is concerned, Flat No. 305 was allotted in his •
          D.K. JETLEY v. ARMY WELFARE HSG. ORGN. [R.M. SAHA!, J.]              111

      favour as far back as 1985. He was succeeded from every court in getting        A
      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 )aw raised by it on construction of bye law shall
      remain open.
                                                                                      B
            For these reasons, the appeals, applications and the contempt peti-
      tion are disposed of with following directions :

               l(a) Flat No. F-305, Som Vihar, R.K. Puram, New Delhi shall be
                    allotted to Sri Dahiya.                                           C

               (b) Flat No. C-306 shall be allotted to Sri Jetley.
·.,
               (c) Flat in Naida, Ghaziabad, shall be allotted to Sri Khandpur.

               (d) Flat at Fari<;labad shall be allotted to Sri Gupta.                D
               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.          E

               4.   All the writ petitions, suits pending between parties or be-
                    tween 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.
                                                                                      F
                    Parties shall bear their own costs.

      v.s.s.                                                 Appeals disposed of.




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