NARAINDAS DWARKADAS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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 v. Improvement Trust, Amritsar, : AIR1972SC865 . 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.