JUDGMENT - D. R. DHANUKA, J.:---By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioners have sought a writ of certiorari so as to quash and set aside the order passed by the Sub-Divisional Officer, Chandrapur on 19th September, 1984, in Tenancy Appeal No. 2-59(28)/83-84, village Samda BK. and the order passed by the Maharashtra Revenue Tribunal, Nagpur, on 19th February 1988 in Revision Application No. Ten-A-46/85. By this petition, the petitioners have also sought stay of the proceedings for return of possession of the lands described in para 1 of the petition and a declaration that the orders passed in consequence of the letter dated 2nd January 1984 addressed by the Tahsildar, Chandrapur to the Talathi, Samda village (a copy whereof is Annexure A to the petition) and the mutation entries effected in pursuance thereof are valid. 2. This litigation has a chequered history. Shri S.R. Deshpande, the learned Counsel for the petitioners has made a valiant effort to persuade the Court that the petition deserves to be allowed. I have remained unconvinced throughout. To my mind, the petition is a frivolous petition as would be shown in the later part of the judgment. It is unfortunate that the petitioners have been able to drag on the litigation for about two decades by resorting to one technicality or another and that too without any merit and cause substantial injustice to respondent Nos. 2 to 6. 3. The relevant facts leading to the filing of this petition are required to be set out in detail. The relevant facts are as under : (a) The respondent Nos. 2 to 6 are the legal heirs of late Smt. Saraswatibai Gopalrao Batwe. The subject matter of this petition concerns field Survey No. 47/3-K, area 4.71 acres, Survey No. 48/1, area 3-00 acres, and Survey No. 49/3, area 2-00 acres, situated at village Samda (BK), tahsil Mul, District Chandrapur, as more particularly set out in the record of authorities below. (b) Section 80-A of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, provided that the State Government could assume management of the land which had remained uncultivated for any two consecutive years etc. as set out in the said section. Section 80-A was inserted in the said Act by Maharashtra Act No. V of 1961. (b) Section 80-A of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, provided that the State Government could assume management of the land which had remained uncultivated for any two consecutive years etc. as set out in the said section. Section 80-A was inserted in the said Act by Maharashtra Act No. V of 1961. Sub-section (2) of section 80-A of the said Act provided that on the assumption of management, the holding shall vest in the State Government during the continuance of the management and thereupon the other provisions of Chapter VI of the Act shall apply mutatis mutandis as shall apply in relation to holdings the management of which was assumed under section 62 of the said Act. (c) On or about 15th February 1965, the Sub-Divisional Officer, Chandrapur, exercising his delegated powers, passed an order under section 80-A of the Act for assumption of management of said lands by the Government of Maharashtra, as it appeared to the authorities that the said lands had remained uncultivated for the statutory period of two consecutive years. On or about 1st March 1965, the prescribed authorities allotted the said lands to different writ petitioners for a period of 10 years. The petitioners claim to be lessees of the said lands from the Government of Maharashtra. It is no practical consequence for the purpose of this petition as to whether the petitioners were allottees or lessees of the said lands from the Government of Maharashtra. The allotment or lease was for a period of 10 years. The above-referred period of 10 years has expired long back. (d) On 24th January 1969, the Division Bench of this Court held in the case of (Dr. Gulabrao v. M.T. Bokhare)1, Special Civil Application No. 299 of 1966, that section 80-A of the said Act was unconstitutional and of no effect as the said section was violative of constitutional guarantee contained in Articles 14, 19 and 31 of the Constitution. The Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act 99 of 1958 was not included in the Ninth Schedule of the Constitution until 11th March, 1977. The Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act 99 of 1958 was not included in the Ninth Schedule of the Constitution until 11th March, 1977. (e) In view of the fact that the said section 80-A of the said Act was declared ultra vires and also in view of the fact that no period of management was stipulated in the said order dated 15th February 1965 as required by law, the Government of Maharashtra was obliged to return the possession of the said lands to the owner the said Smt. Saraswatibai. On 20th June 1975, the Tahsildar passed an order directing restoration of the said lands to said Smt. Saraswatibai. It is so stated in the order of the Maharashtra Revenue Tribunal (Annexure C to the petition) and not disputed at the Bar. Being aggrieved by the said order, the petitioners filed an appeal before the Sub Divisional Officer. The said appeal was also dismissed by the Sub-Divisional Officer, Chandrapur. Being aggrieved by the said order, the petitioners preferred a revision application before the Maharashtra Revenue Tribunal, Nagpur. By a well-considered judgment, the Maharashtra Revenue Tribunal, Nagpur, dismissed the said revision application by its order dated 7th July 1976. On 20th August 1976, the petitioners herein filed a writ petition in this Court, being Writ Petition 4005 of 1976. The said writ petition was admitted by Masodkar, J., and interim relief was granted in favour of the petitioners as sought for. Before the said writ petition was disposed of, the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, was included in the Ninth Schedule of the Constitution (vide Item 135 in the Ninth Schedule). The said Act was included in the Ninth Schedule by the Constitution (Fortieth Amendment) Act. The Constitution Amendment Act referred to hereinabove came into force on 11th March 1977. The abovereferred Writ Petition No. 4005 of 1976 was dismissed by this Court on 16th February 1979 for want of prosecution. The above-referred orders acquired finality. The said order dated 20th June 1975 directing restoration of possession of lands by the petitioners herein in favour of Smt. Saraswatibai (whose estate is now represented by respondent Nos. 2 to 6) became final and conclusive. It is distressing and unfortunate that the petitioners nevertheless continue to be in possession of the said lands and the said order dated 20th June 1975 is still not enforced or executed. 2 to 6) became final and conclusive. It is distressing and unfortunate that the petitioners nevertheless continue to be in possession of the said lands and the said order dated 20th June 1975 is still not enforced or executed. The Court is informed by the learned Counsel on either side that the said order could have been executed through Mamlatdar. This is procedural aspect concerning execution of orders passed by the Tahsildar. (f) In this situation, the petitioners adopted another strategy. The petitioners made an application to the Tahsildar for effecting mutation entries in the record of rights so as to delete the names of respondent Nos. 2 to 6 and insert their names. By the letter dated 2nd January 1984 (Annexure A to this writ petition), the Tahsildar, Chandrapur, directed the Talathi to amend the record of rights. In pursuance of the said letter/order, the names of respondent Nos. 2 to 6 were illegally deleted from the record of rights behind their back and without notice to them. The said mutation entries were made on 28th June 1984. The said mutation entry is known as Mutation Entry No. 101. The said mutation entry was certified according to usual procedure. These facts are set out in detail in order of the Sub-Divisional Officer dated 19th September 1984, copy whereof is Annexure `B' to this petition. (g) Being aggrieved by letter dated 2nd January 1984 as well as the mutation entries effected in pursuance thereof, the respondent Nos. 2 to 6 filed Tenancy Appeal No. 2-59(28)/83-84, village Samda, before the Sub-Divisional Officer, Chandrapur. A copy of the said order is annexed as Annexure B to the writ petition. In the said appellate proceeding, the respondent Nos. 2 to 6 impleaded only the State of Maharashtra as a party respondent. In other words, the writ petitioners in this writ petition were not made parties in the said appeal. It was observed in the said appellate order dated 18th September, 1984, passed by the Sub-Divisional Officer, Chandrapur that the names of all the five appellants before the Sub-Divisional Officer (meaning thereby respondent Nos. 2 to 6 in this petition) were struck off from the record behind their back without giving them any notice. It was observed in the said appellate order dated 18th September, 1984, passed by the Sub-Divisional Officer, Chandrapur that the names of all the five appellants before the Sub-Divisional Officer (meaning thereby respondent Nos. 2 to 6 in this petition) were struck off from the record behind their back without giving them any notice. After going through the original records, some of which are now not available, the Sub-Divisional Officer came to the conclusion that the order of the Tahsildar passed on 20th June 1975 was a lawful and the Tahsildar was not entitled to issue directions for effecting mutation entries by his letter dated 2nd January 1984. In the result, the Sub-Divisional Officer held that the Mutation Entry No. 101 of village Samda in respect of the said lands was wrongly certified. By the said order, the Sub-Divisional Officer set aside the order passed by the Tahsildar and all follow up steps taken by the various revenue officers in pursuance thereof and allowed the appeal. (h) Being aggrieved by the said appellate order, the writ petitioners herein filed Revision Application No. Ten-A-46/85 before the Maharashtra Revenue Tribunal, Nagpur. By its well-considered order dated 7th April 1988, the Maharashtra Revenue Tribunal dismissed the said revision application. The Maharashtra Revenue Tribunal addressed itself to the question as to whether the applicants (meaning thereby writ petitioners) had any legal right to get their names mutated in the record of rights whatsoever. The Maharashtra Revenue Tribunal rightly answered the said question in the negative in view of the fact that even the period of 10 years for which the petitioners were permitted to cultivate the lands had come to an end. It was submitted on behalf of the petitioners before the Maharashtra Revenue Tribunal that the said appellate order was illegal as the writ petitioners herein were not made parties to the appeal filed by respondent Nos. 2 to 6 before the Sub-Divisional Officer. Dealing with this contention, the Maharashtra Revenue Tribunal held that in the circumstances of the case, the State of Maharashtra alone was a necessary party and the petitioners herein were not necessary parties to the appellate proceeding. The Maharashtra Revenue Tribunal held that the omission of the names of the petitioners from the array of respondents was of no legal consequence. The Maharashtra Revenue Tribunal held that the omission of the names of the petitioners from the array of respondents was of no legal consequence. It was also emphasised that the conduct of the petitioners was blameworthy in getting the names of respondent Nos. 2 to 6 struck off from the record of rights behind their back and without any notice to the said respondents. The Maharashtra Revenue Tribunal held that the writ petitioners herein had no right to apply for getting their names mutated. The Maharashtra Revenue Tribunal referred to order dated 20th June 1975 whereby the Tahsildar had already directed the petitioners to hand over possession of the said lands to the owner. If the petitioners wanted to raise any contention regarding the alleged invalidity of order of restoration of lands in favour of respondent Nos. 2 to 6 passed by the Tahsildar on 20th June 1975, the petitioners ought to have pursued the said writ petition, being Writ Petition No. 4005 of 1976, and ought to have raised all necessary contentions in the said proceeding. It is too late in the day for the petitioners to ask this Court at this stage to go behind the above-referred order of restoration of possession dated 20th June 1975. 4. The learned Counsel for the petitioners has submitted that the order passed by the Sub-Divisional Officer on 18th September 1984 is liable to be quashed and set aside, inasmuch as the petitioners herein were not impleaded as parties to the said appeal. The learned Counsel for the petitioners has submitted that the mutation entry effected in pursuance of the order dated 2nd January 1984 passed by the Tahsildar could not be set aside by the Sub Divisional Officer, Chandrapur, unless the petitioners were impleaded as party respondents in the said appeal and unless the petitioners were duly heard by the appellate authority. The petitioners themselves had obtained the order from the Tahsildar without impleading respondent Nos. 2 to 6 as party respondents in the proceeding before the Tahsildar. Having regard to the situation like this, the view taken by the Maharashtra Revenue Tribunal to the effect that the petitioners were not necessary parties to the said appeal, is correct and deserves to be upheld. 2 to 6 as party respondents in the proceeding before the Tahsildar. Having regard to the situation like this, the view taken by the Maharashtra Revenue Tribunal to the effect that the petitioners were not necessary parties to the said appeal, is correct and deserves to be upheld. In any event, the petitioners have suffered no prejudice by reason of the alleged irregularity, if any, on this count as the petitioners were fully heard by the Maharashtra Revenue Tribunal in the revision application and the said appellate order passed by the Sub-Divisional Officer has now merged with the said revisional order. The writ jurisdiction of this Court under Articles 226 and 227 of the Constitution is discretionary and it cannot be exercised so as to defeat the real and substantial justice. The principles of natural justice are liable to be moulded according to the facts and circumstances of each case. The situational modifications are always permissible. In this view of the matter, the petition is liable to be dismissed straightway, as no other contention really arises for consideration of the Court in so far as this petition is concerned. The learned Counsel for the petitioners raised certain alternate contentions at the hearing of this petition. The said contentions must be noted and dealt with whatever they are worth. 5. The learned Counsel for the petitioners submitted that the effect of the Constitution (Fortieth Amendment) Act incorporating the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, in the Ninth Schedule ought to be considered by this Court in this writ petition and if the Court is satisfied that the earlier order for restoration of possession passed on 20th June 1975 is a nullity, the Court may take this aspect into consideration for granting of relief to the petitioners in this writ petition. Having regard to the dismissal of Writ Petition No. 4005 of 1976 for want of prosecution by an order passed on 16th February 1979, I am not prepared to allow the petitioners to go behind the order dated 20th June 1975 passed by the Tahsildar, directing restoration of possession of the lands in question to respondent Nos. 2 to 6 or the appellate or revisional orders arising therefrom. 2 to 6 or the appellate or revisional orders arising therefrom. It is of considerable significance that before the said writ petition was dismissed by this Court i.e. on 16th February 1979, the Constitution (Fortieth Amendment) Act had already come into force. At some stage, there should be a finality of litigation. In this view of the matter, I have reached the conclusion that the above-referred orders must be treated as final, conclusive and binding on the parties. 6. Assuming that I am wrong on this aspect, I would like to record my alternative finding on the merits of the contentions raised also even though the contention raised does not directly and strictly arise for consideration of the Court in this writ petition. 7. The question to be asked is as to whether Article 31-B merely protects the Acts specified in the Ninth Schedule or whether Article 31-B also protects the orders and notifications issued under the Acts included in the Ninth Schedule. It was held by the Hon'ble Supreme Court in the case of (Ajaykumar Banarjee and others v. Union of India and others)2, A.I.R. 1984 S.C. 1130, that the rights already accrued to the person concerned prior to the placement of the Act in the Ninth Schedule were not retrospectively affected by inclusion of the Act in the Ninth Schedule. Para 43 of the said judgment clearly declares the law on this aspect. The relevant portion of the abovereferred observation of the apex Court reads as under: "In any event, any right which accrued to the person concerned prior to the placement of the Act in the Ninth Schedule cannot be retrospectively affected by the impugned provisions." The Hon'ble Supreme Court referred to the judgment in the case of (M/s. Prag Ice Oil Mills v. Union of India)3, A.I.R. 1978 S.C. 1296, in para 43 of the said judgment. In the case of M/s. Prag Ice Oil Mills and another v. Union of India, the Constitution Bench of the Supreme Court was seized of the question as to whether the Price Control Order issued under the Essential Commodities Act, 1955 was also protected under Article 31-B of the Constitution merely because the Essential Commodities Act, 1955 was so protected. In the case of M/s. Prag Ice Oil Mills and another v. Union of India, the Constitution Bench of the Supreme Court was seized of the question as to whether the Price Control Order issued under the Essential Commodities Act, 1955 was also protected under Article 31-B of the Constitution merely because the Essential Commodities Act, 1955 was so protected. It was held by the Chief Justice Chandrachud, speaking for the majority, that Article 31-B of the Constitution merely provides constitutional immunity to the Acts and Regulations specified in the Ninth Schedule and that such immunity did not extend to orders and notifications issued under the Act incorporated in the Ninth Schedule. 8. The learned Counsel for the petitioners referred to the judgment of Chief Justice Hidayatulla in the case of (Ramanlal Gulabchand Shah v. The State of Gujarat and others)4, A.I.R. 1969 S.C. 168, in order to explain the reasons for taking the view by the Division Bench of this Court that section 80-A of the Act was ultra vires in the case of Dr. Gulabrao. Prior to the above-referred Division Bench judgment, the Hon'ble Supreme Court had already held in the above-referred case of Ramanlal Gulabchand Shah v. State of Gujarat and others, (cited supra) that the amendment of section 65 of the Bombay Tenancy and Agricultural Lands (Vidharbha Region) Act, 1958, providing for assumption of management on the ground of there being no full and efficient use of land, was ultra vires Part III of the Constitution. In my humble opinion, the above-referred aspects are now merely matters of history and have no impact on the subject-matter of this petition. The fact remains that the order for restoration of possession of the lands has become final and conclusive by reason of dismissal of Writ Petition No. 4005 of 1976 passed on 16th February 1979. The fact remains that in any event, inclusion of the Act in the Ninth Schedule of the Constitution as a result of the Constitution (Fortieth Amendment) Act does not wipe out the rights already accrued and the orders already passed by the tribunals and courts. As a matter of fact, these questions do not directly arise in this writ petition. However, I have dealt with these questions with a view to prevent the third round of litigation as far as possible. 9. In the result, the petition is dismissed. Rule is discharged. As a matter of fact, these questions do not directly arise in this writ petition. However, I have dealt with these questions with a view to prevent the third round of litigation as far as possible. 9. In the result, the petition is dismissed. Rule is discharged. The petitioners were able to prolong their unlawful possession over the suit lands by filing this petition and persuading this Court to grant stay of dispossession. In my judgment, it is the need of the hour that respondent Nos. 2 to 6 must get possession of these lands without any further delay. In my opinion, the respondent Nos. 2 to 6 have already suffered injustice for almost two decades. 10. As a consequential order, I direct the Tahsildar to take immediate steps to restore the possession of the lands described in para 1 of the petition to respondent Nos. 2 to 6 without any default within eight weeks from to-day and submit a compliance report to this Court. If the said order is required to be executed through Mamlatdar, the Mamlatdar is directed to execute the order and restore possession of the said lands to respondent Nos. 2 to 6. Even if the copy of the said order is not traceable on the record, the Tahsildar as well as the Mamlatdar are directed to restore possession of the said lands to respondent Nos. 2 to 6 in view of the facts clearly set out in the impugned order passed by the Maharashtra Revenue Tribunal on 7th April 1988, a copy whereof is Annexure C. It is the responsibility of the State Government to direct all its instrumentalities to restore possession of the said lands to respondent Nos. 2 to 6. The authorities below may act suo motu and implement the writ of this Court as directed above. The petitioners are restrained by an injunction of this Court from causing any obstruction in respect of restoration of possession of these lands to respondent Nos. 2 to 6. 11. Having regard to the facts and circumstances of the case, the petitioners are directed to pay a sum of Rs. 1,000/- as compensatory costs to respondent Nos. 2 to 6 and a sum of Rs. 500/- as costs of the petition to respondent No. 1. Order accordingly. *****