Bombay High Court
Sheikh Gafoor S/O Sheikh Khaja vs The State Of Maharashtra And Ors. on 23 March, 1993
Equivalent citations: 1993(3)BOMCR466
JUDGMENT D.R. Dhanuka, J.
Rule. Heard forthwith.
1. The relevant facts having bearing on the subject-matter of this petition are briefly summarised hereunder :---
(a) By a registered sale deed dated 30th April 1973 the petitioner purchased 4 acres of land out of land bearing Survey No. 28/1/A of village Pimpalshenda from the respondent No. 2. The respondent No. 2 claimed to be a tribal. By an order dated 10th August 1976, the Sub-Divisional Officer, Mangrulpeer directed restoration of the said land by the petitioner to the respondent No. 2 in view of the provisions contained in the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974. The Maharashtra Revenue Tribunal dismissed the appeal preferred by the petitioner.
(b) The petitioner filed Writ Petition No. 2652 of 84 in this Court. By an order dated 16th July 1987, Shri Justice Qazi, J., dismissed the said writ petition observing in his order as under :---
"The only challenge before me is on the ground of constitutional validity of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974. That point has already been concluded by the decision Lingappa Pochanna Appealwar v. State of Maharashtra and another. In view of this, nothing survives. The petition is, accordingly, dismissed with no order as to costs. Rule is discharged."
(c) On 10th July 1988, the Revenue Inspector factually and actually restored the possession of the said land to the respondent No. 2 as admitted by the petitioner in this petition.
(d) The petitioner thereafter filed Letters Patent Appeal in this Court being L.P.A. No.54 of 1988. The said appeal was time barred. The petitioner applied for condonation of delay. By an order dated 14-7-1988., S/Shri Justices Mohta and Patel, JJ., dismissed the said appeal by observing as under :---
Heard Shri Shende. Perused papers. The land has been restored to a tribal under the provisions of the Act. No. 14/1975. The only point raised before the learned Single Judge was about validity of the Act. As validity is upheld by the S.C. the petition was rejected. That the respondent was a tribal was an admitted position before the S.D.O. Under the circumstances, the contention that the respondent is not a tribal cannot be considered at this stage. Apart from that prima facie aspect, no case for condonation is disclosed.
Application rejected".
2. By this petition, the petitioner seeks a direction to the State of Maharashtra to restore possession of the said land to him and for a further direction to the State Government to consider the gravity of the situation arising out of the erronecus interpretation and erroneous application of law in the earlier cases.
3. The learned Counsel for the petitioner submits that in the recent cases the Court has taken a view that the tribal concerned must be the tribal on the date of transfer. On principles anologous to res-judicata, it is not possible for the Court to allow the petitioner to reopen the said controversy at this late stage. The petitioner cannot reopen the entire litigation already concluded years ago merely because of change in interpretation of the provisions of the Act in subsequent rulings, if any.
4. The learned Counsel for the petitioner has specifically invited attention of the Court to the order passed by Shri Justice A.A. Desai, J., in Writ Petition No. 555 of 92 on 6th April, 1992. The said order reads as under :---
"Heard by consent of parties.
2) Undisputedly, the respondent No. 2 at the relevant time of transfer in the year 1966 was not a tribal. As such, there could not be a restoration in his favour. The impugned orders are, therefore, set aside. It is directed that the land in question be restored back to the petitioner-transferee. With this direction, the petition is disposed of. No order as to costs."
5. In the case before Shri Desai, J., it was admitted that the respondent No. 2 at the relevant time of transfer was not a tribal. The brief order passed by Brother Justice Desai, J., does not lay down the law to the effect that the principles anologous to res-judicata must be given a go-bye and all earlier orders and the finality of earlier orders passed by this Court can be disturbed on filing of a fresh writ petition. I am firmly of the opinion that I have no jurisdiction to go behind the orders passed by S/Shri Justices Mohta and Patel, JJ., referred to hereinabove. It is not unknown in our system of jurisprudence that different view is taken in respect of interpretation of the provisions in subsequent cases. Merely because the provisions of the statute are interpreted differently in later cases, the orders already passed and executed in earlier cases do not become nullity. The petitioners themselves have described this case as a case of change in interpretation. In my judgment, the principles anologous to res-judicata clearly apply. In exercise of discretion as writ Court, I refuse to allow the petitioner to reopen the controversy closed and settled long time back.
6. In the result, the petition fails and the petition is dismissed.