Delhi High Court
Nanak Chand And Ors. vs Uoi & Ors. on 18 July, 2013
Author: Manmohan
#18
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7057-75/2004
NANAK CHAND AND ORS. ..... Petitioners
Through Mr. Atul Nagrajan with Mr. Sushant
Kumar Thakur, Mr. Surjeet Singh
Malhotra and Mr. Ashwini Kumar,
Advocates
versus
UOI & ORS. ..... Respondents
Through Mr. Ruchir Mishra with Mr. Mukesh
Kumar Tiwari, Advocates for R-1 to 3.
Mr. Arun Birbal with Mr. Vineet
Malhotra and Mr. D.K. Singh,
Advocates for R-4/DDA.
% Date of Decision: 18th July, 2013
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. Present writ petition has been filed under Article 226 of the
Constitution of India seeking a direction to the respondents to execute a sale
deed/conveyance deed in favour of the petitioners in respect of Madangir
flats in their possession/occupation. The prayer clause in the present writ
petition is reproduced hereinbelow:-
(i) Direct respondent no. 1, 2 & 3 to allot and execute the Sale Deed in
favour of the petitioners for the flats in their occupation and possession;
(ii) Direct respondent no. 4 to forthwith execute Conveyance Deed in
favour of the petitioners;
(iii) Direct respondent no. 4 to register the appellants as owners of Janta
Type Flats at Madangir, New Delhi;
(iv) Direct respondent no. 1 & 2 to issue no-objection certificate to the
effect that they are willing and forthcoming in transferring ownership,
right and title in the Janta Type Flats at Madangir, New Delhi in favour
of the petitioners;
(v) Direct respondent no. 2 & 3 to restrain from making any further
deductions from the salaries/ pensions of the petitioners towards licence
fee and treat the same towards payment of instalment/ cost of the each
flat;
(vi) Direct respondent no. 1, 2 & 3 to correctly calculate/ assess and return
the excess amount collected from the petitioners towards hire-purchase
charges;
(vii) Pass any other or further orders which this Hon'ble Court may deem fit
and proper."
2. At the outset, learned counsel for the respondents raises a preliminary
objection to the maintainability of the present writ petition on the ground
that the present petition is barred by principles of constructive res judicata.
Learned counsel for respondents point out that an earlier writ petition being
W.P.(C) 238/1996 filed by the present petitioners praying for identical relief
was dismissed by a learned Single Judge of this Court on 28th October, 2003
and even an appeal being W.A. 898/2003 was dismissed by the Division
Bench of this Court. They state that even a Special Leave petition against
the Division Bench's order was dismissed by the Supreme Court.
3. Mr. Arun Birbal, learned counsel for respondent-DDA states that
petitioners have mischievously tried to create an impression in their List of
Dates that the Supreme Court had given them a liberty to file the present
writ petition. Mr. Birbal submits that the averment in the List of Dates is
false as the Supreme Court had dismissed the petitioners Special Leave
petition in limine without any leave or liberty to the petitioners to file a fresh
writ petition.
4. However, Mr. Atul Nagrajan, learned counsel for petitioners submits
that the issue decided in the first round of litigation is not being agitated in
the present writ petition. He submits that the plea of discrimination, as
advanced in the present writ petition, was not even canvassed in W.P.(C)
238/1996. In support of his submission, learned counsel for petitioners
refers to the judgment and order dated 28 th October, 2003 passed by the
learned Single Judge wherein it has been observed as under:-
"10) The case of the petitioners is solely based on the plea of
promissory estoppel as it is submitted that these various
representations amount to a clear and unequivocal representation to
the petitioners to transfer the flats in their names. It is submitted
that reconsideration of the matter really arose only subsequently in
1987 when a letter was addressed by the Vice-Chairman, DDA.
xxxx xxxx xxxx xxxx
15) In view of the narrow compass of the aforesaid controversy,
the only question to be considered is whether there was any
unequivocal and clear representation to the petitioners that the flats
would be transferred in their names and whether the petitioners
have acted in pursuance to such representations which would give
rise to a position where the withdrawal from the said
representations would result in injustice to the petitioners.
5. Mr. Atul Nagrajan, learned counsel for petitioners submits that
constructive res judicata which is special and artificial form of res judicata
enacted by Section 11 of CPC does not apply to the writ petitions filed under
Article 32 or Article 226 of the Constitution of India. He further submits
that no individual can waive his fundamental rights. In support of his
submission, he refers to and relies upon the judgment in Amalgamated
Coalfields Ltd. and others Vs. Janapada Sabha Chhindwara and others,
AIR 1964 SC 1013 wherein it has been held as under:-
"24. In the present appeals, the question which arises directly for
our decision is : does the principle of constructive res judicata apply
to petitions under Art. 32 or Art. 226 where the dispute raised is in
respect of a year different from the year involved in a prior dispute
decided by this Court ? We have already noticed the points actually
decided by this Court against the appellants, on the earlier occasion
(vide The Amalgamated Coalfields Ltd., 1962-1 SCR 1: (AIR 1961
SC 964). One of the points sought to be raised was in regard to the
validity of the increase in the rate of tax from 3 pies to 9 pies per
ton; and since this point had not been taken in the petition and
relevant material was not available on record, this Court refrained
from expressing any opinion on it. The appellants contend that the
order passed by this Court refusing permission to the appellants to
raise this point on the earlier occasion does not mean that this Court
has decided the point on the merits against the appellants; if may
mean that the appellants were given liberty to raise this point later;
but even otherwise, the point has not been considered and should not
be held to be barred by constructive res judicata. It is significant
that the attack against the validity of the notices in the present
proceedings is based on grounds different and distinct from the
grounds raised on the earlier occasion. It is not as if the same
ground which was urged on the earlier occasion is placed before the
Court in another form. The grounds now urged are entirely distinct,
and so, the decision of the High Court can be upheld only if the
principle of constructive res judicata can be said to apply to writ
petitions filed under Art. 32 or Art. 226. In our opinion, constructive
res judicata which is a special and artificial from of res judicata
enacted by section 11 of the Civil Procedure Code should not
generally be applied to writ petitions filed under Art. 32 or Art. 226.
We would be reluctant to apply this principle to the present appeals
all the more because we are dealing with cases where the impugned
tax liability is for different years. In dismissing the appellants'
petitions on the ground of res judicata, the High Court has no doubt
referred to Art. 141 under which the law declared by this Court is
binding on all Courts within the territory of India. But when we are
considering the question as to whether any law has been declared by
this Court by implication, such implied declaration, though binding
must be held to be subject to revision by this Court on a proper
occasion where the point in question is directly and expressly raised
by any party before this Court. Therefore, we are inclined to hold
that the appellants cannot be precluded from raising the new
contentions on which their challenge against the validity of the
notices is based."
6. On merits learned counsel for petitioners states that hundred flats at
Madangir had been purchased by respondent nos. 1 and 2 from respondent-
DDA for use and occupation of its Class IV employees. He states that right
at the outset, sixty out of hundred flats were given to allottees on hire-
purchase basis and consequently, they became owners of the said flats. He
contends that though the remaining forty allottees also sought allotment of
flats on hire-purchase basis, yet they were arbitrarily denied ownership of
the said flats. He submits that respondent nos. 1 and 2 should have treated
the case of petitioners on similar / identical footing as the case of sixty
employees of the respondent-hospital who had been given the said Janta
Flats at Madangir on hire-purchase basis.
7. In support of his plea of discrimination, learned counsel for
petitioners relies upon the letter dated 23rd March, 1987 written by the Vice
Chairman, DDA to Additional Secretary, Ministry of Health and Family
Welfare. The said letter reads as under:-
"OM Kumar DELHI DEVELOPMENT AUTHORITY
Vice-Chairman VIKAS SADAN
INA
D.O. NO. F(44)/86/HJG
March 22, 1987
Dear Shri Umashankar,
Please refer to your d.o. letter No. y. 16015/2/85-H dated the
26th February, 1987, regarding transfer of 40 Janta type flats at
Madangir to the staff of the Safdarjang Hospital.
2. We had earlier offered flats to the employees of Safdarjang
Hospital and certain other Public Sector Undertakings. However,
on re-consideration, we feel that instead of offering flats to
individual employees, it would be better to offer them as staff
quarters of the Organisation. This is so because in the former case
only the individual employees will be benefitted while in the latter
requirements of many employees will be catered to. Some of the
organisations have appreciated this logic and are willing to accept
allotment of flats for their staff quarters. I do hope that you would
also be willing to take flats from us for staff quarters of Safdarjung
Hospital. We shall take further action in the matter on hearing from
you.
With regards,
Yours sincerely,
Sd/-
(OM KUMAR)
Shri P. K. Umashankar,
Addl. Secretary,
Govt. of India,
Ministry of Health and Family Welfare,
NEW DELHI."
8. Learned counsel for petitioners also refers to the letter dated 7 th July,
1987 and office order dated 28th September, 1987 issued by the Office of
Labour Commissioner. The letter dated 7th July, 1987 and the Office Order
dated 28th September, 1987 are reproduced hereinbelow:-
A) Letter dated 7th July, 1987 :-
"OFFICE OF THE LABOUR COMMISSIONER
(DELHI ADMINISTRATION)
15-RAJPUR ROAD : DELHI-110 054
No.F.14(1)/83/AHC/170 Dated the:-
To
Sh. Ramchander Tiwari,
General Secretary,
Jan Adhikar Kalyan Samiti,
I-346, Karampura,
New Delhi-110 015
Sir,
With reference to your letter No. 1407 dated 12.6.87
regarding, conferring of Hire-Purchase/Ownership rights to the
unauthorised occupants of Housing colonies at Karampura,
Vishwakarma Nagar, Giri Nagar and Nehru Nagar etc. addressed to
the Labour Commissioner, Delhi Administration, Delhi, I am
directed to inform you that in pursuance of the policy decision of the
Executive Council meeting held at Raj Niwas on 16.4.86, necessary
action is being taken in consultation with the Finance Department of
Delhi Administration to give Hire-Purchase/Ownership rights to the
unauthorised occupants of the aforesaid colonies. During the
course of discussions with your representatives on 3rd July, 1987, it
was pointed out to your Samiti that the matter is in its final stage
and the terms and conditions on which Hire-Purchase/Ownership
rights are to be conferred will be intimated to you.
In the meantime, necessary directions are being issued to the
Office of the Asstt. Housing Commissioner to complete the other
formalities in the matter.
Yours faithfully,
Sd/- 7/7/87
(R.P. DATTA)
DY. LABOUR COMMISSIONER (H)"
B) Office Order dated 28th September, 1987
"DELHI ADMINISTRATION : DELHI
15-RAJPUR ROAD : DELHI
No.F.14(1)/83/AHC/P.II/ Dated : 28.9.87
OFFICE ORDER NO. 1/87
The Delhi Administration constructed 4844 quarters in
various labour colonies from time to time under the Subsidised
Industrial Housing Scheme. Later on in 1979 policy decision was
taken by Delhi Administration to give these houses to the allottees on
Hire-purchase/ Ownership basis.
2. From time to time, there have been representations from the
sublettees of these quarters that as the original allottees of these
quarters did not require these quarters for their personal use, they
had subletted these quarters to them at exorbitant rents. It was
contended by them that they also belong to economically weaker
sections of the society and that the quarters which were in their
possession should be given to them on Hire-Purchase/Ownership
basis.
3. The Delhi Administration has taken a policy decision on
16.4.86 to give these quarters to the aforesaid sublettees of these
quarters at the price at which Janata quarters are being sold by the
D.D.A. to the public.
4. Labour Department had obtained eviction orders in about 59
cases but these orders could not be executed for one or the other
reason and in the meantime, the original allottees happened to
occupy the same. It has been agreed that they should also be
charged the same rate as mentioned in para-3 above.
5. There are a few cases in which Labour Department had
obtained eviction orders under the Public Premises Act and got the
quarters evicted but later on, the original allottees re-occupied these
quarters. In these cases also they are to be charged at the rates
mentioned in para -3 above.
6. In a few cases, wrong allotments had been made i.e. though
the allottees were industrial workers but later on, it was found that
they were not the workers of registered factories and as such, they
were not entitled for allotment under the Rules. In these cases also,
they are to be charged at the rates mentioned in para-3 above.
7., In some cases, there is double allotment i.e. before the
marriage of the industrial workers they were allotted quarters
individually but subsequently they got married and thus came into
possession of two quarters instead of one. In most of these quarters,
the old parents of these allottees are living. They are also to be
charged at the rates mentioned in para-3 above.
In some cases, business activities are being conducted by the
allottees either in the allotted portion of the quarter or in the
unauthorised constructed portion of the quarter. In these cases also
they are to be given Hire-Purchase Rights as in the cases of eligible
allottees.
Sd/-
(R.P. DATTA)
DY. LABOUR COMMISSIONER (H)"
9. Mr. Arun Birbal, learned counsel for respondent no. 4-DDA states
that flats at Madangir were constructed under a scheme namely Madangir
Residential Scheme floated in the early 1970s. He points out that the said
Scheme was open to public at large. He, however, states that as there was
difficulty in selling the flats, they were also sold to public sector enterprises
for use of their employees.
10. According to Mr. Birbal, out of the hundred flats in issue, sixty flats
formed one category and were allotted to the individual registrants under
Madangir Residential Scheme, while remaining forty flats formed a distinct
category as only forty flats were allotted to the respondent Hospital through
the Central Government for use of its employees.
11. Mr. Birbal states that the averments in the writ petition and the
material annexed to the writ petition (Annexure P-1) clearly showed that the
sixty persons who had been allotted the flats were registrants under that
Scheme with DDA in their individual capacity. He points out that it is not
the case of the petitioners that they got themselves registered with DDA for
allotment of flats under that Scheme. According to him, even if for the sake
of argument, it is presumed that some or even all of those allottees were
employees of the Hospital that was not the reason they got allotment of flats
in their name.
12. Mr. Birbal contends that the Central Government or the Hospital did
not come into picture when the allotment was made to those sixty persons by
DDA as these allotments were made by DDA directly and the cost towards
those sixty flats was also received by DDA from those allottees.
13. Mr. Birbal states that forty flats were not allotted to individuals but to
the respondent-Hospital through the Central Government for use of its
employees. Cost towards these forty flats was received by DDA from the
Central Government. Thus, he submits that allotment of flats to sixty
persons on individual basis cannot be the reason for allotment of forty flats
to the employee occupants. Mr. Birbal further states that after retirement,
the quarters were liable to be vacated by the employees and the same were
then to be allotted to the employees next in line and those in service of the
respondent-hospital.
14. In rejoinder, learned counsel for petitioners submits that it is for the
respondents to prove that the petitioners are not being discriminated against.
In support of his submission, he relies upon the judgment of the Supreme
Court in D.S. Nakara and Others vs. Union of India, (1983) 1 SCC 305
wherein it has been held as under:-
"16. As a corollary to this well established proposition, the next
question is, on whom the burden lies to affirmatively establish the
rational principle on which the classification is founded correlated
to the object sought to be achieved? The thrust of Article 14 is that
the citizen is entitled to equality before law and equal protection of
laws. In the very nature of things the society being composed of
unequals a welfare State will have to strive by both executive and
legislative action to help the less fortunate in the society to
ameliorate their condition so that the social and economic inequality
in the society may be bridged. This would necessitate a legislation
applicable to a group of citizens otherwise unequal and amelioration
of whose lot is the object of State affirmative action. In the absence
of doctrine of classification such legislation is likely to flounder on
the bed rock of equality enshrined in Article 14. The Court
realistically appraising the social stratification and economic
inequality and keeping in view the guidelines on which the State
action must move as constitutionally laid down in Part IV of the
Constitution, evolved the doctrine of classification. The doctrine was
evolved to sustain a legislation or State action designed to help
weaker sections of the society or some such segments of the society
in need of succour. Legislative and executive action may accordingly
be sustained if it satisfies the twin tests of reasonable classification
and the rational principle correlated to the object sought to be
achieved. The State, therefore, would have to affirmatively satisfy the
Court that the twin tests have been satisfied. It can only be satisfied
if the State establishes not only the rational principle on which
classification is founded but correlate it to the objects sought to be
achieved. This approach is noticed in Ramana Dayaram Shetty v.
International Airport Authority of India [(1979) 3 SCC 489, 506 :
AIR 1979 SC 1628 : (1979) 3 SCR 1014, 1034 : (1979) 2 LLJ 217]
when at SCR p. 1034 (SCC p. 506), the Court observed that a
discriminatory action of the Government is liable to be struck down,
unless it can be shown by the Government that the departure was not
arbitrary, but was based on some valid principle which in itself was
not irrational, unreasonable or discriminatory."
15. He also requests this Court to summon the original DDA file
pertaining to Madangir Residential Scheme.
16. At this stage, learned counsel for Safdarjung Hospital states that he
has brought the individual files of certain petitioners as directed by this
Court in other connected matters. However, these files offer no assistance to
the petitioners.
17. Having heard learned counsel for parties, this Court finds that
petitioners herein had earlier filed a civil writ petition bearing CWP No.
238/1996 before this Court seeking execution of Conveyance Deed of flats
in their favour. The prayer clause in CWP No. 238/1996 is reproduced
hereinbelow:-
"a) Issue an appropriate writ/direction and/or order in the nature
of mandamus directing the respondent no.1 to execute the necessary
conveyance deed and/or documents in favour of the petitioners in
respect of the flat which are in their use and occupation ever since
1976 and which are more specifically mentioned in ANNEXURE P-I.
b) Issue an appropriate writ/direction and/or order in the nature
of prohibition, prohibiting the respondent no.2 in any way
interfering with the due execution of the conveyance deed in favour
of the petitioners.
c) Issue an appropriate writ/direction and/or order in the nature
of prohibition, prohibiting the respondent no.2 in making any
deductions from the salaries of the petitioners towards the hire
purchase charges as the entire cost of the flat has been recovered.
d) to direct the respondent no.2 by an appropriate writ/direction
and/or order to treat the deductions made as licence fee towards the
payment of cost of the flats allotted to the petitioner.
e) to issue any other and/or further appropriate writ/direction
and/or order, in the like nature as this Hon'ble Court may deem fit
and proper in the order to extend relief to the petitioners.
f) to refund the amount which has been recovered over and
above the cost of the flats.
g) and to pass much other and/or further order/s as this Hon'ble
Court may deem fit and proper in the facts and circumstances of the
case."
18. The said writ petition was dismissed by a learned Single Judge of this
Court vide a detailed judgment and order dated 28th October, 2003. The
relevant portion of the said judgment is reproduced hereinbelow:-
"16) It is not disputed that there was no allotment letter issued in
favour of any of the petitioners staff or for that matter any of the
employees. The extracts of the minutes of the meeting dated
01.08.1973 show that the full payment was made by the Government
of India and flats obtained from DDA. However, the Union raised
the issue of transfer of these flats on hire-purchase basis to the
occupants and it was resolved that in case all the 40 allottees are
prepared to go in for hire-purchase of these flats, the matter may be
taken up with DDA Authorities. Thus, the matter was under
consideration.
17) The letter dated 24.10.1985 of the Employees Union itself
makes it clear that even the stand of the Union was that the flats had
been purchased from DDA by the Hospital and that monthly
deductions were being made towards rent from salary of the
individuals. It may, however, be noted that in the counter affidavit,
it is stated that it is the licence fee which was being deducted. The
Employees Union by the said letter, in fact, proposed that the
amount recovered from the salary bills of the individuals be adjusted
against the cost of the flats allotted to them. Thus even in 1985, it
was known that the flats had not been transferred to the occupants,
but what was proposed was an adjustment of the licence fee / rent
deducted from the salaries of the employees to be adjusted against
the cost of the flat. The various representations made in this behalf
were considered, but did not ultimate find favour. The letter dated
26.04.1989 of the Director General of the Health Services itself
shows that there should be a final rejection of the demand and the
staff be informed accordingly. The writ petition has been filed in the
year 1996, which is about 7 years after the final rejection.
18) The documents filed along with counter affidavit of the
Hospital itself referred to the letter dated 22.03.1987 of the Vice-
Chairman, DDA. The same also shows that though undoubtedly at
some stage of time the proposal was considered whether these flats
could be transferred to the employees, there was no final approval at
any stage of time. In fact, the matter was resolved against the
employees in this behalf.
19) In order to apply the principles of promissory estoppel in
favour of the petitioners, the representation should be clear and
unequivocal. In my considered view, at no stage of time, has there
been any representation or promise, much less unequivocally, which
would go on to create any such equitable rights in favour of the
petitioners. The petitioners are fully aware that only a licence fee/
rent was being charged from them. They were requesting for
transfer on ownership basis, but no decision was taken to approve
the said request of the petitioners.
20. It is also to be appreciated that there is larger public issue
involved inasmuch as these are flats of the Hospital, which are to be
utilised by the employees. Thus, whoever is working with the
Organisation for the time being gets the benefit of occupation of
these flats on deduction of a licence fee charged. To transfer these
flats to some of the allottees, who are the petitioners, would deprive
the Organisation the benefit of making available such
accommodation to the current employees of the Hospital. In my
considered view, there can be hardly any equities in favour of the
petitioners, which would attract the doctrine of promissory estoppel.
21. In view of the aforesaid, the petitioners have no right to seek
transfer of the flats on ownership basis in the individual names,
which flats vest with the Hospital for the benefit of its employees.
22. I find no merit in the writ petition and the same is dismissed
leaving the parties to bear their own costs."
19. The Division Bench of this Court in WA No. 898/2003 vide order
dated 16th February, 2004 affirmed the decision of the learned Single Judge.
The order of the Division Bench is reproduced hereinbelow:-
"This appeal is directed against the order of the learned
Single Judge dated 28.10.2003. 40 Janta flats were purchased by
Ministry of Health and were given to Safdarjang Hospital for the use
of its Class IV employees. These flats were allotted to the appellants
herein on a monthly licence fee of Rs.37/- which they have been
paying all through. In the counter affidavit placed before the
learned Single Judge, it is mentioned by the Safdarjang Hospital that
these 40 Janta Type DDA flats were allotted to employees by
Safdarjang Hospital and as and when any quarter fell vacant, the
same will be allotted to the next senior person in the waiting list. In
the counter affidavit it is also mentioned that total number of
employees on the waiting list is more than 4,000 whereas
accommodation available with them is less than 800. These flats
meant for Class IV employees were purchased by the respondent
No.2 and given to the Hospital to overcome the scarcity of the
housing problem. The appellants are entitled to reside in these flats
as long as they are in service with Safdarjang Hospital till
superannuation. These flats have to be returned to Safdarjang
Hospital to be allotted to other eligible employees according to the
waiting list maintained by the Hospital. These flats cannot be sold to
the appellants on the ownership basis.
We find no merit in this appeal. The appeal being devoid of
any merit is accordingly dismissed.
CM Nos. 2228/03, 2229/03 and 2230/03 also stand disposed
of."
20. The Special Leave petition against the order of the Division Bench
was dismissed in limine. The order of the Supreme Court dismissing the
Special Leave petition is reproduced hereinbelow:-
"The special leave petition is dismissed."
21. The petitioners have tried to give an impression in their List of Dates
as if the present writ petition had been filed in pursuance to the liberty
granted by the Supreme Court. Page F of the List of Dates of the writ
petition reads as under:-
"April 2004 The petitioners thereafter prefer a Special Leave
Petition before the Hon'ble Supreme Court. The
petitioners place before the Supreme Court the fact
which Safdarjung Hospital and DDA concealed that is,
sixty (60) other individuals who were similarly placed
as the petitioners were given flats on hire-purchase by
the respondents but the same benefit has been denied
to the petitioners. The Supreme Court verbally
observes that this is a new/additional ground which
was never agitated before the learned Single Judge
which gives rise to a fresh cause of action. However,
the said petition is dismissed."
22. From the Supreme Court's order referred to hereinabove it is apparent
that petitioners' submission in the List of Dates is patently false.
23. Moreover, as the Supreme Court and the High Courts are Courts of
record, the petitioners are precluded from relying on any alleged oral
observation contrary to the record.
24. In view of aforesaid, this Court is of the opinion that a false averment
has been made by the petitioners. The Supreme Court in K.D. Sharma vs.
Steel Authority of India Limited and Others, (2008) 12 SCC 481 has held
as under:-
"34. The jurisdiction of the Supreme Court under Article 32 and of
the High Court under Article 226 of the Constitution is
extraordinary, equitable and discretionary. Prerogative writs
mentioned therein are issued for doing substantial justice. It is,
therefore, of utmost necessity that the petitioner approaching the
writ court must come with clean hands, put forward all the facts
before the court without concealing or suppressing anything and
seek an appropriate relief. If there is no candid disclosure of
relevant and material facts or the petitioner is guilty of misleading
the court, his petition may be dismissed at the threshold without
considering the merits of the claim.
35. The underlying object has been succinctly stated by Scrutton,
L.J., in the leading case of R. v. Kensington Income Tax Commrs. in
the following words: (KB p. 514)
".... it has been for many years the rule of the court, and one
which it is of the greatest importance to maintain, that when an
applicant comes to the court to obtain relief on an ex parte
statement he should make a full and fair disclosure of all the
material facts--it says facts, not law. He must not misstate the
law if he can help it--the court is supposed to know the law. But
it knows nothing about the facts, and the applicant must state
fully and fairly the facts; and the penalty by which the court
enforces that obligation is that if it finds out that the facts have
not been fully and fairly stated to it, the court will set aside any
action which it has taken on the faith of the imperfect
statement."
(emphasis supplied)
36. A prerogative remedy is not a matter of course. While exercising
extraordinary power a writ court would certainly bear in mind the
conduct of the party who invokes the jurisdiction of the court. If the
applicant makes a false statement or suppresses material fact or
attempts to mislead the court, the court may dismiss the action on
that ground alone and may refuse to enter into the merits of the case
by stating, "We will not listen to your application because of what
you have done." The rule has been evolved in the larger public
interest to deter unscrupulous litigants from abusing the process of
court by deceiving it.
37. In Kensington Income Tax Commrs. Viscount Reading, C.J.
observed: (KB pp. 495-96)
"... Where an ex parte application has been made to this Court
for a rule nisi or other process, if the Court comes to the
conclusion that the affidavit in support of the application was not
candid and did not fairly state the facts, but stated them in such a
way as to mislead the Court as to the true facts, the Court ought,
for its own protection and to prevent an abuse of its process, to
refuse to proceed any further with the examination of the merits.
This is a power inherent in the Court, but one which should only
be used in cases which bring conviction to the mind of the Court
that it has been deceived. Before coming to this conclusion a
careful examination will be made of the facts as they are and as
they have been stated in the applicant's affidavit, and everything
will be heard that can be urged to influence the view of the Court
when it reads the affidavit and knows the true facts. But if the
result of this examination and hearing is to leave no doubt that
the Court has been deceived, then it will refuse to hear anything
further from the applicant in a proceeding which has only been
set in motion by means of a misleading affidavit."
38. The above principles have been accepted in our legal system
also. As per settled law, the party who invokes the extraordinary
jurisdiction of this Court under Article 32 or of a High Court under
Article 226 of the Constitution is supposed to be truthful, frank and
open.....".
25. Consequently, as the petitioners have not approached this Court with
clean hands, present writ petition is liable to be dismissed.
26. Also, upon a perusal of the prayer clause in CWP 238/1996 this Court
is of the view that present writ petition is not maintainable on the principle
of constructive res judicata as the present petition amounts to re-litigation.
Rule of constructive res judicata postulates that if a plea could have been
taken by the parties in an earlier proceeding between the same parties, the
petitioner cannot be permitted to take that plea in a subsequent proceeding
based on the same cause of action. This rule is based on public policy and
the principle of finality of judgment.
27. This Court is further of the opinion that the petitioners' submission
that principle of constructive res judicata does not apply to writ petitions
filed under Article 32 or Article 226, is untenable in law. In Devilal Modi
Vs. Sales Tax Officer, Ratlam and Others, AIR 1965 SC 1150 the Supreme
Court has held as under:-
"12. The result of the decision of this Court in the earlier appeal
brought by the appellant before it is clear and unambiguous, and that
is that the appellant had failed to challenge the validity of the
impugned order which had been passed by the Assistant
Commissioner against him. In other words, the effect of the earlier
decision of this Court is that the appellant is liable to pay the tax and
penalty imposed on him by the impugned order. It would, we think, be
unreasonable to suggest that after this judgment was pronounced by
this Court, it should still be open to the appellant to file a subsequent
writ petition before the Madhya Pradesh High Court and urge that the
said impugned order was invalid for some additional grounds. In case
the Madhya Pradesh High Court had upheld these contentions and
had given effect to its decision, its order would have been plainly
inconsistent with the earlier decision of this Court, and that would be
inconsistent with the finality which must attach to the decisions of this
Court as between the parties before it in respect of the subject-matter
directly covered by the said decision. Considerations of public policy
and the principle of the finality of judgments are important
constituents of the rule of law and they cannot be allowed to be
violated just because a citizen contends that his fundamental rights
have been contravened by an impugned order and wants liberty to
agitate the question about its validity by filing one writ petition after
another."
28. It is pertinent to mention that in Devilal Modi (supra) the Constitution
Bench of the Supreme Court explained its earlier decision in Amalgamated
Coalfields Ltd. (supra) and held as under:-
"10. In regard to orders of assessment for different years, the position
may be different. Even if the said orders are passed under the same
provisions of law, it may theoretically be open to the party to contend
that the liability being recurring from year to year, the cause of action
is not the same; and so, even if a citizen's petition challenging the
order of assessment passed against him for one year is rejected, it
may be open to him to challenge a similar assessment order passed
for the next year. In that case, the court may ultimately adopt the same
view which had been adopted on the earlier occasion; but if a new
ground is urged, the court may have to consider it on the merits,
because, strictly, speaking the principle of res judicata may not apply
to such a case. That, in fact, is the effect of the decision of this Court
in The Amalgamated Coalfields Ltd. and Anr. v. The Janapada Sabha,
Chhindwara. In that case, this Court had occasion to consider the
question about the applicability of constructive res judicata to
proceedings taken by the appellant, the Amalgamated Coalfields Ltd.,
challenging the tax levied against it for different periods. The petition
first filed by it for challenging the validity of the tax imposed against it
for one year was dismissed by this Court in The Amalgamated
Coalfields Ltd. & Anr. v. The Janapada Sabha, Chhindwara. At the
time when the appeal of the Amalgamated Coalfields Ltd. was argued
before this Court, some new points of law were sought to be raised,
but this Court did not allow them to be raised on the ground that they
should have been raised at an earlier stage. When a similar order was
passed against the said Company for a subsequent year, the said
additional points were raised by it in its petition before the High
Court. The High Court held that it was not open to the Company to
raise those points on the ground of constructive res judicata; and that
brought the Company to this Court in appeal by special leave. This
Court held that the Court was in error in holding that the principle of
constructive res judicata precluded the Company from raising the said
points. Accordingly, the merits of the said points were considered and
in fact, the said points were upheld. In dealing with the question of
constructive res judicata, this Court observed that constructive res
judicata was an artificial form of res judicata enacted by Section 11 of
the Code of Civil Procedure and it should not be generally applied to
writ petitions filed under Art. 32 or Art. 226. It was in that connection
that this Court also pointed out that the appeal before the Court was
in relation to an assessment levied for a different year, and that made
the doctrine of res judicata itself inapplicable. Mr. Trivedi contends
that in dealing with writ petitions, no distinction should be made
between cases where the impugned order of assessment is in respect
of the same year or for different years; and in support of this
contention, he relied on the general observations made by this Court
in The Amalgamated Coalfields Ltd. In our opinion, the said general
observations must be read in the light of the important fact that the
order which was challenged in the second writ petition was in relation
to a different period and not for the same period as was covered by
the earlier petition."
29. In State of U.P. Vs. Nawab Hussain, (1977) 2 SCC 806 the Supreme
Court after considering both Amalgamated Coalfields Ltd. (supra) and
Devilal Modi (supra) observed as under:-
"8. It is not in controversy before us that the respondent did not raise
the plea, in the writ petition which had been filed in the High Court,
that by virtue of clause (1) of Article 311 of the Constitution he could
not be dismissed by the Deputy Inspector-General of Police as he had
been appointed by the Inspector-General of Police. It is also not in
controversy that that was an important plea which was within the
knowledge of the respondent and could well have been taken in the
writ petition, but he contended himself by raising the other pleas that
he was not afforded a reasonable opportunity to meet the case against
him in the departmental inquiry and that the action taken against him
was mala fide. It was therefore not permissible for him to challenge
his dismissal, in the subsequent suit, on the other ground that he had
been dismissed by an authority subordinate to that by which he was
appointed. That was clearly barred by the principle of constructive res
judicata, and the High Court erred in taking a contrary view."
30. Not too far back, the Supreme Court in M. Nagabhushana Vs. State
of Karnataka and Others, (2011) 3 SCC 408 emphatically re-emphasised
that the principle of constructive res judicata is applicable to writ
proceedings. The relevant portion of the Supreme Court's judgment in M.
Nagabhushana (supra) is reproduced hereinbelow:-
"12. The principles of Res Judicata are of universal application as
they are based on two age-old principles, namely, interest reipublicae
ut sit finis litium which means that it is in the interest of the State that
there should be an end to litigation and the other principle is nemo
debet bis vexari, si constat curiae quod sit pro una et eademn cause
meaning thereby that no one ought to be vexed twice in a litigation if
it appears to the Court that it is for one and the same cause. This
doctrine of res judicata is common to all civilized system of
jurisprudence to the extent that a judgment after a proper trial by a
court of competent jurisdiction should be regarded as final and
conclusive determination of the questions litigated and should for ever
set the controversy at rest.
xxxx xxxx xxxx xxxx
22. In view of such authoritative pronouncement of the
Constitution Bench of this Court, there can be no doubt that the
principles of constructive res judicata, as explained in Explanation IV
to Section 11 of the CPC, are also applicable to writ petitions.
23. Thus, the attempt to re-argue the case which has been finally
decided by the Court of last resort is a clear abuse of process of the
court, regardless of the principles of res judicata, as has been held by
this Court in K.K. Modi Vs. K.N. Modi (1998) 3 SCC 573. In SCC
para 44 of the Report, this principle has been very lucidly discussed
by this Court and the relevant portions whereof are extracted below:
(SCC p. 592)
"44. One of the examples cited as an abuse of the
process of the court is relitigation. It is an abuse of the
process of the court and contrary to justice and public
policy for a party to relitigate the same issue which has
already been tried and decided earlier against him. The
reagitation may or may not be barred as res judicata"
24. In coming to the aforementioned finding, this Court relied on The
Supreme Court Practice 1995 published by Sweet & Maxwell (p. 344).
The relevant principles laid down in the aforesaid practice and which
have been accepted by this Court are as follows: (K.K. Modi case,
SCC p. 592, para 43)
"43. ...This term connotes that the process of the court must
be used bona fide and properly and must not be abused. The
court will prevent improper use of its machinery and will in a
proper case, summarily prevent its machinery from being used
as a means of vexation and oppression in the process of
litigation. ... The categories of conduct rendering a claim
frivolous, vexatious or an abuse of process are not closed but
depend on all the relevant circumstances. And for this purpose
considerations of public policy and the interests of justice may
be very material';
25. On the premises aforesaid, it is clear that the attempt by the
appellant to reagitate the same issues which were considered by this
Court and were rejected expressly in the previous judgment in AIMO
case, is a clear instance of an abuse of process of this Court apart
from the fact that such issues are barred by principles of res judicata
or constructive res judicata and principles analogous thereto."
31. In N.D. Qureshi Vs. Union of India, 2008 (13) DRJ 547, a Division
Bench of this Court of which the present Bench was a party observed as
under:-
"12. Moreover, from the above narrated facts, it would be apparent
that the petitioner has been re-litigating for a considerable number of
years. In our view on the principle of res judicata and re-litigation
the petitioner is even barred from raising new pleas for the same old
relief. The Hon'ble Supreme Court in K.K.Modi Vs. K.N.Modi and
others, reported in (1998) 3 SCC 573 has held that it is an abuse of
the process of the court and contrary to justice and public policy for a
party to re-litigate the same issue which has already been tried and
decided earlier against him. This re-agitation may or may not be
barred as res judicata. But if the same issue is sought to be re-
agitated, it also amounts to an abuse of the process of the court. The
Hon'ble Supreme Court has further held that if a spurious claim is
made in a case, it may also amount to an abuse of process of the
court. In our view, frivolous or vexatious proceedings amount to an
abuse of the process of the court especially where the proceedings are
absolutely groundless-like in the present case."
32. Consequently, in the opinion of this Court as on the same cause of
action, an alleged new argument is being sought to be advanced, it is barred
by principle of constructive res judicata and amounts to re-litigation which is
impermissible in law.
33. As far as plea of discrimination is concerned, this Court finds that
even in the counter-affidavit filed by DDA in the earlier CWP 238/1996 it
had been made clear that there are two ways of allotment of flats. First is
that if an individual gets himself registered by making an application under a
scheme framed by DDA wherein flats are allotted by DDA to individuals
from time to time and the second is, after approval from the Government of
India, DDA makes an allotment in favour of government
organisations/institutions for their staff quarters. It was repeatedly
emphasised in the said counter-affidavit that only forty flats involved in the
present proceedings were allotted to Safdurjung Hospital for their staff
quarters in consultation with the Government of India and not for individual
ownership.
34. This Court also finds that the letter dated 22nd March, 1987 relied
upon by learned counsel for petitioners in the present petition had been
considered by learned Single Judge while dismissing the writ petition being
CWP 238/1996.
35. Further, letter dated 7th July, 1987 and Office Order dated 28th
September, 1987 issued by the Deputy Labour Commissioner do not pertain
to the flats at Madangir. In fact, the Office Order dated 28 th September,
1987 is confined to 4844 quarters under the Subsidised Industrial Housing
Scheme. In the opinion of this Court, correspondence and office orders
issued by the Labour Commissioners are irrelevant and cannot be used to
bind down the Central Government or the respondent-Hospital or DDA.
36. The submission of learned counsel for petitioners that it is for the
respondents to prove that petitioners are not being discriminated against, is
untenable in law. In State of J & K v. T.N. Khosa, (1974) 1 SCC 19, it was
reiterated that where a party seeks to impeach the validity of a rule made by
a competent authority on the ground that the rule offends Article 14, the
burden is on him to plead and prove the infirmity. There is always a
presumption in favour of the constitutionality of an enactment and the
burden is upon him who attacks it to show that there has been a clear
transgression of the constitutional principles. A rule cannot be struck down
as discriminatory on any a priori reasoning.
37. The judgment of D.S. Nakara and Others (supra) referred to by
learned counsel for petitioners only states that when prima facie, a plea of
discrimination is made out, the burden of proof shifts on the state to show
that it is not so.
38. Consequently, as the petitioners have not been able to make out a
prima facie case of discrimination, the judgment of D.S. Nakara and Others
(supra) is clearly inapplicable to the present case.
39. This Court is further of the view that the present petition is barred by
delay and laches. Even in the earlier writ petition being CWP 238/1996, the
learned Single Judge had pointed out that the said writ petition had been
filed seven years after the final rejection.
40. Undoubtedly, the provisions of Limitation Act, 1963 do not apply to
the proceedings under Article 226 of the Constitution, but in a catena of
cases it has been held that if a writ petition is filed beyond the period of
limitation prescribed for filing a civil suit for a similar cause, the High Court
would be well entitled not to entertain the petition on the ground of delay
and laches. In fact, the Supreme Court in State of Madhya Pradesh and
another vs. Bhailal Bhai & Anr., AIR 1964 SC 1006, has held as under:-
"21. ........Learned Counsel is right in his submission that the
provisions of the Limitation Act do not as such apply to the granting
of relief under Art.226. It appears to us however that the maximum
period fixed by the legislature as the time within which the relief by a
suit in a civil court must be brought may ordinarily be taken to be a
reasonable standard by which delay in seeking remedy under Art.
226 can be measured. This Court may consider the delay
unreasonable even if it is less than the period of limitation
prescribed for a civil action for the remedy but where the delay is
more than this period, it will almost always be proper for the Court
to hold that it is unreasonable......"
41. Further, the Supreme Court in Banda Development Authority, Banda
Vs. Moti Lal Agarwal & Ors., (2011) 5 SCC 394 has held as under:-
"17. It is true that no limitation has been prescribed for filing a
petition under Article 226 of the Constitution but one of the several
rules of self-imposed restraint evolved by the superior courts is that
the High Court will not entertain petitions filed after long lapse of
time because that may adversely affect the settled/crystallised rights of
the parties. If the writ petition is filed beyond the period of limitation
prescribed for filing a civil suit for similar cause, the High Court will
treat the delay unreasonable and decline to entertain the grievance of
the petitioner on merits."
42. Principle of delay and laches is not an abstract proposition of law but
based on the ground level reality including the fact that parties are not
supposed to maintain records or papers beyond a certain time. To ask DDA
now to produce documents pertaining to a Scheme which is thirty to forty
years old would be both unfair and an impossible act.
43. As this Court has reached the conclusion that the present petition
amounts to re-litigation, the respondents needs to be restituted inasmuch as
by virtue of the interim order passed by this Court, they have not been able
to evict the petitioners for nearly nine years. The Supreme Court in Kavita
Trehan (Mrs) & Anr. v. Balsara Hygiene Products Ltd., (1994) 5 SCC 380,
has held as under:-
"22. The jurisdiction to make restitution is inherent in every court
and will be exercised whenever the justice of the case demands. It
will be exercised under inherent powers where the case did not
strictly fall within the ambit of Section 144. Section 144 opens with
the words: "Where and insofar as a decree or an order is varied or
reversed in any appeal, revision or other proceeding or is set aside
or modified in any suit instituted for the purpose,......" The instant
case may not strictly fall within the terms of Section 144; but the
aggrieved party in such a case can appeal to the larger and general
powers of restitution inherent in every court."
44. Consequently, exercising the inherent power of restitution, this Court
directs the petitioners to hand over vacant physical possession of the flats in
question to respondents within a period of four weeks. In the event the
physical vacant possession is not handed over within the stipulated period,
respondents shall be entitled to take forcible possession of the same. The
local police is directed to render all assistance to the respondents in evicting
the petitioners. Respondents are also granted liberty to file appropriate
proceedings to seek recovery of mesne profits for use and occupation of
their flats from the date of dismissal of Special Leave Petition, i.e., 16th
April, 2004.
45. The direction to evict and to use police force has been passed in the
present case as these flats were to be utilised by the employees of the
respondent-Hospital and not by family members of retired employees. In
fact, flats had been purchased by the respondent-Hospital with intent to
serve its patients efficiently by offering good reasonable residential
accommodation to its employees. This Court is of view that due to
pendency of the present proceedings and grant of interim order, a larger
public purpose has been defeated. Further, the petitioners who have scant
regard to the finality of a judgment need to know that in courts there may be
delay but once the wheel of justice moves, complete justice is done. With
the aforesaid observations, present writ petition is dismissed. Interim order
dated 5th July, 2004 stands vacated.
MANMOHAN, J
JULY 18, 2013
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