Naraindas Dwarkadas (Deceased) through L.Rs. vs State of Maharashtra and Others

R.G. Vaidyanatha, J.—Civil Application No. 5947 of 1994 filed in this Petition is hereby allowed and the Legal Representatives of the Petitioner shall be brought on record.

This is a Writ Petition filed by the Petitioners challenging the allotment of disputed plot in favour of one Gokuldas and also to set aside certain orders passed by the Screening Committee and other officers of the Government. We have heard the learned Counsel appearing for both the parties.

Few facts which are not in dispute for disposal of this Writ Petition are as follows :

The disputed land is Plot No. U-141, opposite Building No. 21 at Kopari Colony, Thane. Both the Petitioner and the deceased Gokuldas claim the disputed land on the basis of unauthorised possession since long time. It is common ground that as per the policy of the Government, unauthorised possession prior to 11-5-1965 should be regularised. Accordingly, the Petitioner made request to the Government to regularise his unauthorised possession of the disputed land since he was alleged to be in possession prior to 11-5-1965. All the authorities under the Displaced Persons (Compensation & Rehabilitation) Act, 1954 (hereinafter referred to as "the Act") and also the Screening Committee have rejected the Petitioner''s allegation that he has been in possession prior to 11-5-1965, All of them have recorded a finding of fact that Petitioners possession is only after 11-5-1965 and therefore, he is not entitled to regularisation of his unauthorised possession. This finding of fact has not been challenged by the Learned Senior Counsel before us and even otherwise, this question of fact cannot be investigated by this Court while hearing a Writ Petition. It appears the Government has granted the same disputed plot to one Gokuldas. The Petitioner is challenging the allotment in favour of Gokuldas and is also challenging some of the orders passed by the Authorities under the Act.

The Petitioner has not made out any legal ground for allotment of the disputed plot in his favour since on facts, he is found to be in possession only subsequent to 11-5-1965. If once he is not entitled to regularisation of unauthorised possession, then as between the Petitioner and the Gokuldas, the Government has discretion to allot the property to any one of them. Therefore, we find that the Petitioner has no legal right to get allotment in his favour since his possession is found to be subsequent to 11-5-1965.

At this stage, we also notice that the Petitioner had filed the previous Writ Petition No. 5182 of 1986 where the reliefs are almost identical to the present Writ Petition. After issuing Rule and hearing both the sides, this Court passed the Order as follows :-

Rule returnable forthwith.

Mr. Gokhale for Respondents Nos. 1 to 3.

Mr Irani for 4 to 6.

The Screening Committee shall dispose of the Petitioner''s case within four weeks from today.

In the meanwhile Respondents Nos. 4 to 6 will not evict the Petitioner from the disputed plot.

Rule made absolute accordingly.

No order as to costs.

From the above order, we find that the Petitioner has been granted only one relief namely, that his request that the screening Committee should be asked to re-consider his case has been granted. The learned Counsel appearing for the contesting Respondents submitted that the present Writ Petition is not maintainable and is barred by principles of resjudicata since same prayers made in the previous Writ Petition were not granted by this Court. The learned Counsel for the Petitioner did not dispute the principle that the principles of res judicata apply to Writ Petitions. In our view Explanation 5 to Section 11 C.P.C. is attracted to this case which reads as follows :

Section 11 -

Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.

It clearly says that any relief which is claimed in the plaint and not expressly granted is deemed to have been refused. No authority is necessary when the legal position is very clear. The learned Counsel for the Petitioner invited our attention to a decision reported in Narain Das and Others Vs. The Improvement Trust, Amritsar and Another, . But in our view, the said decision has no direct bearing on the point under consideration, and is distinguishable on facts''. Since the Petitioner had asked identical reliefs in the previous Writ Petition and he has not been granted any relief except one relief, the Petitioner cannot reagitate the same reliefs once again in the present Writ Petition.

As far as the directions of this Court that the Screening Committee should reconsider his case, we find that the said direction has been complied with by the Screening Committee and it has considered the Petitioner''s request and has passed the order which reads as follows :

Occupation is after 11.5.1965, it doesn''t fall within preview of Screening Committee, may be dropped and alternate site may not be provided.

It is therefore seen that the Petitioner''s case has been considered and the Screening Committee had rejected it. As already stated the petitioner has not made out a case that he has any legal right to get allotment in his favour. The learned Counsel for the Petitioner made a submission that the latter portion of the order of the Screening Committee- "alternate site may not be provide", was not within the jurisdiction of the Screening Committee and it has exceeded its jurisdiction in making that observation. It is common ground that the Screening Committee''s power is only to decide the question whether a person is in unauthorised possession prior to 11.5.1965 and entitled to regularisation. Therefore, the question whether the alternate site can be given to the Petitioner was not a power given to the Screening Committee. Therefore, the Screening Committee was not right in making such observation that alternate site may not be provided. The learned Counsel for the Petitioner also brought to our notice that all the Authorities under Act including the Settlement Commissioner have made recommendations that the Petitioner may be given an alternate Plot. We do not wish to do anything in this matter since it is for the officers under the Act to allot alternate site and grant it accordingly if he is otherwise entitled according to law to the same.

After considering the arguments addressed by the learned Counsel appearing for the Petitioner we find that there is no merit in the Writ Petition. Hence the Petition has to fail.

In the result, Writ Petition is dismissed. Rule is discharged with costs.

Certified copy of this Judgment be issued expeditiously.