AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7609 OF 2007 Kadam Arun Maruti & Ors. ... Petitioners Versus The State of Maharashtra & Ors. ... Respondents Mr. J.S. Kini i/b Mr. Suresh Dubey for the petitioners. Mr. N.P. Deshpande, A.G.P. for respondents 1 and 2. Mr. Y.S. Jahagirdar, senior counsel i/b Mr. G.S. Godbole and Mr. S.S. Kanetkar for respondent 4. Mr. V.A. Thorat, senior counsel i/b Mr. S.N. Chandrachud for respondents 5 to 46. CORAM : SMT. RANJANA DESAI & A.A. SAYED, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 3RD AUGUST, 2009. DATE ON WHICH THE JUDGMEMT IS PRONOUNCED : 25TH AUGUST, 2009. JUDGMENT.:- (Per Smt. Ranjana Desai, J.) 1. Rule. The respondents waive service. By consent of the parties, taken up for final hearing and disposal forthwith. AJN 2 2. The petitioners are flood affected persons. Respondent 1 is the State of Maharashtra. Respondent 2 is the District Collector, Pune. Respondent No.3 is the original owner Mr. Gopal Vinayak Dhere (since deceased), who is represented through his heir – respondent 3(A). Respondent 4 is a developer. Respondents 5 to 46 are persons who also claim to be entitled to rehabilitation. 3. We must begin with the gist of facts. According to the petitioners, in the year 1961, the Panshet dam burst and because of the heavy floods, their properties situate at Village Shivane, Taluka Haveli, District Pune, which included residential houses, were washed away. They became homeless. Several people suffered similarly. The State Government announced a Scheme for rehabilitation of the flood affected persons. 4. On 18/10/1971, respondent 2 i.e. the District Collector, Pune passed Order No.IWS/11/1888/69 AJN 3 reserving 8 acres, 34 gunthas out of Survey No.160 part, 167/2/26/25/29 part of Village Kothrud for resettlement of flood affected persons of Village Shivane, Taluka Haveli, District Pune. According to the survey and investigation, it was found that only 65 flood affected persons were eligible for grant of plot of land. Therefore, the Office of the S.D.O., Haveli, District Pune by its order dated 18/4/1972 granted the plot being Survey No.160 part and 162/7/26/25/29 part of Village Kothrud to the said 65 persons. Before granting this land, the State Government had acquired it after following the necessary procedure prescribed under the Land Acquisition Act, 1894 (for short, “the L.A. Act”) for rehabilitating flood affected persons. The State Government took possession of the said land after paying compensation to Gopal Vinayak Dhere, the original owner. The original owner filed Civil Suit No.1338 of 1994 in the Court of Civil Judge, Senior Division, Pune, inter alia, praying that the respondents be restrained from interfering with his possession of the said land. In that suit, the State had filed a written statement stating that AJN 4 the original owner is not concerned with the said land as the said land vested in the State Government. Inspite of the above, the State Government by order dated 20/4/2004 restored some portion of the said land in favour of the original owner on the ground that the said land can be excluded from the land acquisition proceedings as per Section 48 of the L.A. Act. Initial order was passed by the 1st respondent and, thereafter, the 2nd respondent directed the District Collector to implement the said order by his order dated 6/3/2004. By further order dated 31/3/2004, the Divisional Commissioner, Pune directed the District Collector to exclude the land restored to the original owner under Section 48 of the L.A. Act and hand it over to him. Pursuant to the said order, the District Collector by his order dated 20/4/2004 directed exclusion of the land restored to the original owner under Section 48 of the L.A. Act. He directed his subordinate officer to hand over possession of the restored land to the original owners. In short, the petitioners’ case is that restoration of land to the original owner is illegal. The petitioners have prayed AJN 5 that orders dated 6/3/2004, 31/3/2004 and 20/4/2004 be quashed and set aside. They have prayed for a declaration that they have a right in the land allotted to them at 167/2/26/25/29 part of Village Kothrud Taluka Haveli, District Pune. 5. We have heard Mr. Kini, learned counsel for the petitioners. He has reiterated the averments made in the petition. Mr. Kini submitted that once the land is acquired, it should be used for public purpose and the remaining land should not be restored to the original landlord but it should be sold by public auction. Learned counsel submitted that this position is settled by several judgments of the Supreme Court. The State Government has, therefore, committed an illegality in restoring the land to the original owner. Any construction made on such land is unauthorized. Mr. Kini submitted that all flood affected persons have not yet been resettled and, therefore, the State Government could not have returned the acquired land to the original owner. Learned counsel AJN 6 submitted that in the circumstances, the impugned orders must be set aside. 6. Mr. Jahagirdar, learned senior counsel appearing for respondent 4 submitted that the points raised in this petition were also raised by the petitioners’ predecessors in earlier petition being Writ Petition No.4035 of 2005. The petition was heard finally and rejected. Mr. Jahagirdar submitted that respondent 4 was a party in that petition and the order was passed after hearing all the parties. Mr. Jahagirdar submitted that it is, therefore, not open to the petitioners to raise the same issue again because the present petition is barred by the principles of `res judicata’. Mr. Jahagirdar submitted that assuming that the same points were not raised, they were available to the petitioners and must be deemed to have been heard and decided. In any case, the petition is barred by constructive res judicata. In support of his submissions, Mr. Jahagirdar relied upon the Supreme Court’s judgments in State of U.P. v. Nawab Hussain, AIR 1977 SC AJN 7 1680 and The Workmen of Cochin Port Trust v. The Board of Trustees of the Cochin Port Trust & Anr., AIR 1978 SC 1283. Mr. Jahagirdar submitted that this vital fact is suppressed by the petitioners in the present petition. Relying on the Supreme Court’s judgment in S.P. Chengalvaraya Naidu (dead) by LRs v. Jagannath (dead) by LRs. & Ors. (1994) 1 SCC 1, Mr. Jahagirdar submitted that inasmuch as the petitioners have suppressed material facts, they have not come to this court with clean hands and on that ground alone the petition must be dismissed. Mr. Jahagirdar submitted that the petition also suffers from latches and no explanation is offered by the petitioners for the delay in approaching the court. Mr. Jahagirdar submitted that in any event all the petitioners have been allotted plots as promised and, hence, the petition deserves to be dismissed. 7. We have also heard Mr. Thorat, learned senior counsel appearing for respondents 5 to 46. AJN 8 8. Mr. Kini in response to Mr. Jahagirdar’s plea of res judicata submitted that in the earlier writ petition, the petitioners’ predecessors had not challenged restoration of the acquired land to the original owner. There is no reference to Section 48 of the L.A. Act and, therefore, there is no question of application of the principles of res judicata or constructive res judicata to this case. Mr. Kini added that the earlier petitions were not disposed of on merits and, hence, the present petition cannot be said to be barred by the principles of res judicata or constructive res judicata. In this connection, Mr. Kini relied on the judgment of the Supreme Court in International Wollen Mills v. M/s. Standard Wool (U.K.) Ltd., 2001 AIR SCW 1806. 9. We have already indicated the nature of the petitioners’ grievance. Several petitions have been filed in this court by persons affected by floods caused by bursting of Panshet dam. It is necessary to refer to some of them. AJN 9 10. In Writ Petition No.4437 of 1993 and Writ Petition No. 769 of 1994 filed by some of the flood affected persons by order dated 1/3/1994, the Division Bench of this court constituted a Committee to submit a report inter alia on the question whether the houses situated at Village Shivane are within the flood line (Red zone) and, if so, whether they are required to be shifted. The report was submitted on 25/7/1994. The report stated that Village Shivane is likely to be affected by floods and, hence, it is advisable to shift inhabitants from the low lying area of Village Shivane to safe places. The Committee recommended that those houses which are coming within the red line should be shifted to a safer place and distance, for which 8 acres and 34 gunthas land of Village Kothrud is earmarked. 11. Writ Petition No.425 of 1996 was filed by the said 65 persons (Bhikobu Dhangat & Ors.) praying that (a) it be declared that the entire Survey No.160/1 Part and AJN 10 167/2/26/25/29 admeasuring 8 acres and 34 gunthas of Village Kothrud has been declared for rehabilitating the petitioners; (b) that the Committee’s recommendation dated 25/7/1994 for shifting persons be declared as inexecutable and (c) the respondents be directed to implement order dated 13/4/1972 passed by the SDO Haveli, recommendations of the Collector dated 30/12/1988 and direction of the Chief Minister to act on the recommendation of the Collector endorsed on the letter dated 21/1/1990 and the respondents be directed to issue the allotment orders to each of the petitioners as per their entitlement. The petition was rejected by the Division Bench of this court on 18/6/1996, recording the statement of the Advocate General that the said 65 persons (the petitioners in that petition) were allotted land in 1972, but they are in unauthorized occupation of the land. Without prejudice to this, the Advocate General made a further statement that the land allotted to the said 65 persons in 1972 shall not be utilized for rehabilitating 72 persons in terms of the report of the AJN 11 Committee dated 25/7/1994 appointed by order of this court dated 1/3/1994 passed in Writ Petition No.4437 of 1993 and Writ Petition No.769 of 1994. 12. Another writ petition being Writ Petition No.5029 of 2004 came to be filed by the said 65 persons (Bhikoha Dhangat & Ors.). The grievance was made that though Writ Petition Nos.425 of 1996 and 416 of 1996 were disposed of by this court recording the statement of the Advocate General that 65 persons who have been allotted land in 1972 are in unauthorized occupation, however without prejudice to that the land allotted to them shall not be utilized for rehabilitating 72 persons in terms of report of the Committee dated 25/7/1994. On 1/9/2003, the Collector, Pune sent a proposal to the Secretary Revenue & Forest Department, inter alia, providing for land for allotment to 71 persons and accordingly on 27/2/2004, a notification came to be issued by the Revenue Department to rehabilitate the said 71 persons from Shivane Village. The petitioners contended that in AJN 12 that notification, there is no reference to the said 65 persons. Thus, plot which is allotted to the said 65 persons way back in 1972 is sought to be reallotted to new 71 families which are likely to be affected in future. Apprehending that their possession would be disturbed, this petition came to be filed praying that notification dated 27/2/2004 issued by the Revenue Department be declared illegal and direction be issued to allot land to the said 65 persons. At the hearing of this petition, learned A.G.P. on instructions from the Government made a statement that the said 65 persons will not be disturbed and the statement made by the Advocate General recorded in order dated 18/6/1996 will be adhered to. The petition was disposed of by recording this statement on 2/8/2004. 13. Thereafter, Writ Petition No.4035 of 2005 was filed by the said 65 persons. It must be noted here that the petitioners’ predecessors were some of the petitioners in that petition. The developer, respondent 4 in the instant AJN 13 petition was respondent 5 in that petition. After narrating all the facts, which we have noted hereinabove, such as bursting of Panshet dam, various government orders passed earmarking 8 acres, 4 gunthas of land for the flood affected persons, the petitioners stated in the petition that on 10/3/2005, they came across an advertisement issued by Paranjpe Schemes (Construction) Pvt. Ltd., respondent 4 herein calling upon public at large to purchase flats constructed on the said 8 acres and 4 gunthas. The petitioners contended that respondent 5 therein i.e. the developer had encroached upon the said land. The petitioners contended that if respondent 5 is allowed to construct on the said land, project affected persons would become homeless. The petitioners prayed that the respondents be directed to earmark, allot and transfer plots and consequent entries in record of rights be made in respect of the said 8 acres and 34 gunthas in favour of the petitioners and respondent 5 developer be restrained from transferring the said land. AJN 14 14. Writ Petition No.4780 of 2005 was filed by three other flood affected persons. Respondent 4 therein was the son of the original owner, who is respondent 3A in the instant petition. Respondents 5 to 7 therein were the developers. It must be mentioned here that the developer Shashank Paranjape of M/s. Paranjape Schemes who is respondent 4 in the instant petition was impleaded as respondent 7 in that petition. The grievance of the petitioners in this petition was same. The petitioners were aggrieved by order dated 6/3/2004 passed by the State excluding portion of the land from acquired land and restoring it to the original landlord, order dated 31/3/2004 passed by the Divisional Commissioner stating that the District Collector should exclude a portion of the land from the acquired land and restoring it to the original owner and order dated 20/4/2004 passed by the District Collector directing his subordinate officers to exclude a portion of the land from acquisition under Section 48 of the L.A. Act and restore it to the original owner. It is important to note that in the instant petition, the AJN 15 petitioners have made the same prayers. The same orders are under challenge and are sought to be struck down. 15. Both these petitions were disposed of by a Division Bench of this court on 29/11/2005. This court noted that the State had filed affidavit recognizing that a total of 128 persons will be rehabilitated. This court observed that there were two groups, a group of 65 persons and a subsequent group which was of 71 persons. In this subsequent group, 8 persons belonged to the earlier group of 65. This court accepted the statement made by the State on oath and directed the State to complete the allotment after preparing the layout within two months and file compliance report within 2 weeks thereafter. On behalf of the petitioners in Writ Petition No.4780 of 2005, certain difficulties were pointed out by their counsel. The Associate Advocate General made a statement that he will sort out the difficulties amicably. After recording this statement, the petition was disposed of. It must be noted AJN 16 that this order was passed after hearing counsel appearing for all parties which included counsel for the predecessors of the petitioners herein and the counsel for the developer. 16. In the instant petition, affidavit in reply is filed by Chandrakant Dalvi, Collector of Pune, stating that after direction was given by this court vide its order dated 29/11/2005 to prepare a layout plan, the Town Development Department prepared a layout of the land Survey No.25/29 (part), 160 (part) and 167 (part). As per this layout, all 128 persons can be accommodated and possession of plots has already been handed over to 21 persons. It is further stated that in case of those persons, whose names are in the list of allottees, notices are served on them for vacating the land which they are additionally and illegally occupying besides the extent of land they are entitled to. It is categorically stated that order dated 29/11/2005 passed by this court is complied with. Mr. Deshpande, learned A.G.P. has confirmed this AJN 17 statement. It appears to be the case of the respondents that certain persons to whom land has been allotted as flood affected persons have encroached upon the land beyond their entitlement. Notices have been issued to them. Those notices have been challenged by them. We are not concerned with that issue and, hence, we need not dwell on it here. 17. The limited question with which we are concerned here is whether the present petition can be entertained in view of the background of the case which we have quoted hereinabove. 18. There are certain events in this matter which can hardly be disputed. In 1961, the Panshet dam burst, making several persons homeless. The State Government announced a Scheme for rehabilitation. Certain area from Kothrud Village was earmarked for flood affected persons. It is the contention of the petitioners that land admeasuring 8 acres and 34 gunthas out of Survey No. AJN 18 160 part and 167/2/2625/29 part of Village Kothrud was reserved for the said 65 flood affected persons which included the petitioners’ predecessors. We have narrated the details of several petitions filed in this court about the rehabilitation of flood affected persons with a purpose. On several occasions, this issue has been brought before this court. It has been debated upon and appropriate orders have been passed. There was some difference of opinion between the group of the said 65 flood affected persons and another group of 71 flood affected persons. But, taking all aspects into consideration, this court has passed several orders protecting the interest of all. We have already referred to the affidavit filed by Shri Dalvi, the Collector of Pune that layout plan is prepared. Plots are allotted to all flood affected persons. Some of them have taken possession also. 19. Now a grievance is made that the State acting under Section 48 of the L.A. Act restored some of the acquired land to the original owner and that is illegal. AJN 19 20. We have already referred to the averments made in Writ Petition No.4035 of 2005 filed by the predecessors of the petitioners. In that petition, developer was a party. The petitioners had referred to the advertisement published by the developer i.e. respondent 4 and stated that the developer is encroaching on the plot reserved for the petitioners. The petitioners had stated that the State has not earmarked 8 acres, 34 gunthas, which is reserved for the petitioners and that if construction is allowed to continue, the flood affected persons will become homeless. The petitioners had prayed that the developer be stopped from carrying out construction on the said land and he may be stopped from creating third party interest or transferring or alienating the said land. 21. In Writ Petition No.4780 of 2006 also the developer is a party and a specific challenge is raised to the action taken by the State under Section 48 of the L.A. Act. The petitioners had challenged the orders passed by the State AJN 20 releasing a portion of the acquired land in favour of the original owner. Both these petitions were heard and disposed of by this court by a common order dated 29/11/2005, gist of which we have reproduced hereinabove. 22. In the present petition, the petitioners, who are heirs of the petitioners in Writ Petition No.4035 of 2005 are making the same grievance again. In fact, the same orders which were challenged in Writ Petition No.4780 of 2005 are again challenged in this petition. In our opinion, once the petitions raising the same challenge filed by the petitioners’ predecessors has been dismissed by a speaking order, it will not be legally permissible for us to deal with it again. 23. To understand the rival contentions of the parties as to the applicability or otherwise of the principles of res judicata or constructive res judicata to this case, it is necessary to quote Section 11 of the Code of Civil AJN 21 Procedure, 1908 (for short, “the Code”) to the extent to which it is relevant to the present case. It reads thus: “11. Res judicata. - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I. - xxx xxx xxx Explanation II. - xxx xxx xxx Explanation III. - xxx xxx xxx Explanation IV. - Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.” 24. The doctrine of res-judicata is codified in Section 11 of the Code. The rule of constructive res judicata is engrafted in Explanation IV of Section 11. If by any AJN 22 judgment or order any matter in issue has been directly and explicitly decided, the decision operates as a res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties. The principle of res judicata also comes into play when in the judgment and order, a decision of a particular issue is implicit. In that case, it must be deemed to have been necessarily decided by implication and the principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and, therefore, is taken as decided (The Workmen of Cochin Port Trust’s case). 25. In this case, the earlier writ petition being Writ Petition No.4035 of 2005 was filed by the predecessors of the petitioners. The encroachment made by the AJN 23 developer on the land earmarked for the petitioners and construction made by him thereon was in issue in that writ petition. The developer was also party to the earlier petition. It was inter alia prayed that the developer may be stopped from constructing on the said land. The earlier petition was finally disposed of after hearing all parties. Therefore, in our opinion, the present petition is barred by res judicata. 26. Mr. Kini urged that in the earlier petition, there was no specific challenge to the restoration of land to the original owner. There was no reference to Section 47 of the L.A. Act and, hence, the present petition is not barred by res judicata. 27. We have already noted that in the companion writ petition, which was decided on the same day, the point regarding restoration of acquired land to the original owner was taken. There was reference to Section 48 of the L.A. Act. The original owner and developers were AJN 24 party to that petition. The averments made by the petitioners’ predecessors in Writ Petition No.4035 of 2005 indicate that they knew about the restoration of acquired land to the original owner. But assuming they did not know about it, they had sufficient notice of it when the petitioners in the companion writ petitions raised the point. The said point could have been agitated by them. Both the petitions were heard at length. All counsel were heard and the petitions were finally disposed of by a speaking order.