Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.8113 OF 2009
THE VICE CHANCELLOR, RANCHI
UNIVERSITY & ORS. ….Appellant(s)
VERSUS
JHARKHAND STATE HOUSING
BOARD & ORS. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is directed against the final
judgment and order dated 21.11.2006 passed
by the High Court of Jharkhand at Ranchi in
L.P.A. No. 440 of 2006, whereby the High
Signature Not Verified
Court setting aside the order of the Single
Digitally signed by
ANITA MALHOTRA
Date: 2019.01.17
17:13:46 IST
Reason:
1
Judge allowed the L.P.A. filed by the
respondent Nos.9 and 10 herein.
2. In order to appreciate the issues involved
in this appeal, it is necessary to set out the
facts in detail hereinbelow.
3. The appellant is the University at Ranchi
(hereinafter referred to as “the University”)
whereas respondent no.1 is the State Housing
Board (hereinafter referred to as “the Board”)
created under the State Law.
4. On 05.07.1976, the Board allotted 192
Flats to the University for the residence of the
University's employees known as “Ranchi
University Housing Colony” for a total
consideration of Rs.42,24,000/.
5. In terms of the allotment agreement, the
University was required to pay 10% of the total
consideration to the Board and the balance
2
money was to be paid in 180 monthly
installments each for Rs.31,195.30.
6. The University paid 10% of the total
consideration and started paying monthly
installments, which they paid up to the year
1991 regularly. However, there were some
defaults made by the University in paying
remaining installments.
7. The University in the meantime got
possession of the flats and they allotted few
flats to its employees. The University also in
the meantime converted some flats for its use
as Girls Hostel Block. In the meantime, the
University paid lump sum Rs.5 Lakh towards
monthly installments to the Board towards
total consideration.
8. The Board on 19.10.1989, however,
raised a demand of Rs.2,62,44,149/ on the
3
University, which included partly balance
money towards principal amount and
remaining towards interest accrued on the
defaulted sum. Since the University did not
satisfy/pay the demand of Rs.2,62,44,149/,
the Board cancelled the allotment by order
dated 29.11.1992 and decided to allot the flats
to some of the occupants (employees) who were
by that time retired but continued to occupy
the flats. This allotment was made on the
request made by the University to the Board.
9. The University, however, on 29.01.1993
realized at their end that there was some foul
play behind sending of the letter of allotment
from the University to the Board for allotment
of the flats to its employees which was done
apparently at the instance of some occupants.
The University, therefore, immediately
4
cancelled the request letter and warned the
concerned employees that they should not act
upon the request earlier sent by the University
to the Board and nor should make any
payment to the Board to obtain allotment of
flats in their personal capacity. The employees
were also warned not to enter into any
independent transaction with the Board in
relation to the flats in question, else erring
employees would have to face disciplinary
action. The University also wrote to the Board
on 30.01.1993 that the University is also on its
part requesting the State to arrange for
payment of balance money to the Board to
enable them to complete the transaction in
terms of the allotment order.
10. Despite this, 19 employees deposited
Rs.10,000/ for allotment of the flats to them.
5
In the meantime, the University also paid
Rs.one lakh, Rs.five lakh and some more
money towards the sale consideration to the
Board on different dates. The Board also
accepted the said money paid by the
University.
11. It is with these background facts, three
writ petitions, namely, Writ Petition (C)
No.3652/1996, Writ Petition (C) No.3442/2002
and Writ Petition (C) No.1342/2002 were filed
by the employeesoccupants against the Board
and the University seeking therein a prayer for
issuance of the writ of mandamus directing the
Board to execute the lease deed of the flats in
question and allot the said flats in their favour.
The University contested these writ petitions
on several grounds.
6
12. By order dated 08.08.2006, the learned
Single Judge dismissed the said writ petitions.
It was held that the writ petitioners were in
unauthorized occupation of the flats in as
much as they had no right whatsoever to
either remain in occupation or to ask for any
relief in relation to the flats except to pay penal
rent to the University for their wrongful use
and occupation of the flats.
13. The writ petitioners felt aggrieved and
filed intracourt appeal before the Division
Bench of the High Court. By impugned order,
the Division Bench allowed the appeal, set
aside the order of the learned Single Judge and
while allowing the writ petitions issued a writ
of mandamus directing the Board to execute
the lease deed of the flats in question in favour
of each occupant on the basis of terms and
7
conditions as prevailing today and as may be
mutually agreed between them.
14. It is against this order; the University has
felt aggrieved and filed the present appeal by
way of special leave to appeal in this Court.
15. Heard Mr. Gopal Prasad, learned counsel
for the appellant and Mr. Pradeep Kant,
learned senior counsel for the respondent(s).
16. Having heard the learned counsel for the
parties and on perusal of the record of the
case, we are constrained to allow the appeal,
set aside the impugned order and restore that
of the learned Single Judge as indicated below.
17. In our considered opinion, the approach,
reasoning and the conclusion arrived at by the
Learned Single Judge was just, legal and
proper as against that of the Division Bench
for the reasons mentioned hereinbelow.
8
18. Firstly, it is not in dispute that the
original allotment of the flats made by the
Board was in favour of the University.
Secondly, it is also not in dispute that the
University had made substantial part payment
to the Board pursuant to the allotment order,
which the Board had accepted. Thirdly, it is
also not in dispute that the writ petitioners
were the employees of the University, and
therefore they were allotted flats by the
University by virtue of their employment
conditions. In other words, the writ petitioners
came in occupation of the flats through their
employer i.e. University. If they were not in
the employment of the University, they would
not have been able to occupy these flats in
their individual right at that point of time for
want of any privity of contract with the Board.
9
19. In our considered opinion, the writ
petitioners’ (respondent nos. 4 and 5) right to
remain in lawful occupation of the flats could
subsist only so long as they were in the
employment of the University, and that too on
payment of house rent fixed by the University
as per their policy. In other words, the writ
petitioners could exercise their right of
occupation qua the University only during
their service tenure subject to fulfillment of the
requisite terms and conditions and their right
of occupation was terminable on their service
tenure coming to an end.
20. The day on which their services came to
an end, whether due to their tendering the
resignation, or on attaining the age of
superannuation or for any other reasons, their
right to continue in occupation of the flats
10
came to an end. Their possession in the flats
became unlawful and unauthorized. They
were under contractual and legal obligation to
handover vacant and peaceful possession of
the flats to their employer i.e. the University so
as to enable the University to allot the flats to
other employees who were eligible for
allotment.
21. It is not in dispute that the writ
petitioners (respondent nos. 4 and 5) had
retired long back from their services and yet
they retained unlawful possession of the flats
in question.
22. In our opinion, the learned Single Judge
has rightly held that respondent nos. 4 and 5
(writ petitioners) were in unauthorized
occupation of the flats from the date they
ceased to be in the employment of the
11
University and hence were liable to be evicted
from the flats and were also liable to pay penal
rent to the University for their use and
occupation till the date of their eviction. So far
it has not been done.
23. We are not impressed by the submission
of the learned Senior counsel for the
respondent nos. 4 and 5 (writ petitioners)
when he contended that since the writ
petitioners (Respondent Nos. 4 and 5)
deposited some money with the Board for
allotment of the flats in their personal capacity
pursuant to the decision of the University
taken by them in that behalf, a right had
accrued in their favour to remain in
occupation of the flats even after they had
ceased to be in the employment of the
University in their individual rights.
12
24. This submission is wholly untenable and
deserves rejection for more than one reason.
25. First, It is not in dispute that the
University had withdrawn its decision to allot
the flats to its employees immediately and also
warned them not to enter into any transaction
with the Board directly in relation to the flats,
else they will have to face the disciplinary
action. This was sufficient indication to the
employees not to deal with the Board in any
manner in their individual capacity: Second, it
is also not in dispute that the University even
after cancellation of the initial allotment order
went on paying monthly installments in lump
sum to the Board and the Board in turn also
went on accepting the money as and when
paid by the University. The acceptance of
payment from the University subsequent to
13
cancellation by the Board amounted to
revocation of the cancellation order and
resulted in restoration of the initial allotment
made in favour of the University: Third, the
issue in the writ petitions was between the writ
petitioners (employees) and the University
because the writ petitioners had come into
possession of the flats through the University.
They had, therefore, no independent cause of
action in relation to the issue of flats qua the
Board; Fourth, the writ petitioners did not file
any suit for specific performance of contract
against the Board for enforcement of their
alleged independent contractual right in
relation to the flats. Their alleged disputes qua
the Board in relation to flats, therefore, could
not have been gone into in these proceedings:
Fifth, in any event, mere payment of
14
Rs.10,000/ to the Board by the writ
petitioners contrary to the directions issued by
the University did not create any independent
right in their favour and nor such payment
even if made by the employees impaired the
rights of the University in any manner in
relation to the allotment of flats qua Board and
lastly, the cancellation having been revoked on
account of acceptance of payment from the
University by the Board, the original allotment
dated 05.07.1976 stood restored in favour of
the University .
26. In the light of the foregoing
discussion/reasons, we cannot concur with
the reasoning and the conclusion of the
Division Bench and are inclined to agree with
that of the learned Single Judge.
15
27. The appeal thus succeeds and is allowed.
The impugned order is set aside, and that of
the learned Single Judge restored. The writ
petitions out of which this appeal arises is
accordingly dismissed.
28. Needless to observe, the University would
be at liberty to proceed against the writ
petitioners seeking their eviction from the flats
in question by filing appropriate proceedings
before the Competent Authority under the
Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 and also claim in the
said proceedings arrears of penal rent payable
by the writ petitioners from the date their
possession became unauthorized in the flats
till their delivery.
29. The University is also at liberty to finalize
the issue of allotment of the flats with the
16
Board with the intervention of the State
expeditiously. It will be for the benefit of the
University and its employees, in service.
30. Likewise, the writ petitioners and other
employees (occupants) would also be at liberty
to take refund from the Board of their paid
amount, which they claimed to have deposited
with the Board for allotment of the flats along
with interest at a reasonable rate.
31. On such request being made by the writ
petitioners, the Board will refund the money to
the writ petitioners and any such employees
within three months from the date of making a
demand after verification as an outer limit.
17
32. In the light of this order, the intervention
application and impleadment application
stands disposed of.
…...……..................................J.
[ABHAY MANOHAR SAPRE]
.………...................................J.
[INDU MALHOTRA]
New Delhi;
October 23, 2018.
18