D.K. Jetley Vs. Army Welfare Housing Organisation & Anr  INSC 265 (9 May 1995)
R.M. (J) Sahai, R.M. (J) Ahmadi A.M. (Cj) Bharucha S.P. (J) R.M. Sahai,J.
1995 SCC Supl. (2) 738 JT 1995 (5) 135 1995 SCALE (3)675
9TH DAY OF MAY, 1995 Present:
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
following Judgment of the Court was delivered:
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]
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 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.
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.
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
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 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.
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
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:
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 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.
is accordingly disposed of.
will be no order as to costs.
High Court is requested to dispose of the matter pending before it within three
months from now".
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.
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.
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.
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 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.
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.
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
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.
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.
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 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.
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.
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.
these reasons, the appeals, applications and the contempt petition are disposed
of with following directions:
Flat No. F-305, Som Vihar, R.K. Puram, New Delhi shall be allotted to Sri Dahiya.
Flat No. C-306 shall be allotted to Sri Jetley.
Flat in Noida, Ghaziabad, shall be allotted to Sri Khandpur.
Flat at Faridabad shall be allotted to Sri Gupta.
applications for intervention filed by different parties in different SLPs
stand disposed of in the light of what has been stated above.
Contempt Petition No. 165 of 1992 shall stand dismissed.
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.
shall bear their own costs.