A PERSON WITH AN AFFECTED RIGHT, EVEN IF NOT A PROPRIETARY OR FIDUCIARY RIGHT, CAN MAINTAIN A WRIT PETITION.

( 1 ) THE appellants have impugned in this appeal the order dated 11th september, 2006, passed by the learned Single Judge. This impugned order was passed on an application for modification being CAN No. 6823 of 2006, made by the appellants. In this appeal an application has been taken out for appropriate interim relief in this matter.

( 2 ) MR. Kapoor, learned Counsel appearing for the appellants contends that the learned Trial Judge ought not to have entertained the writ petition at all as the writ petitioner, Iftekar Khan has no locus to file the same. If the writ petition is gone through minutely then it will appear that no affectation of right has been made out by Iftekar Khan in order to maintain the writ petition. There has been no case of any nature, either contractual or otherwise, as against the Port authority having been made out. As such, at the very first instance, the writ petition should have been dismissed. Of course it is admitted that at the initial stage, this point was not taken, but that does not mean that the point of jurisdiction cannot be agitated at a subsequent stage, as it goes to the very root of the matter. Iftekar Khan is not the owner of the goods which are lying in the premises; admittedly belonging to the Port authority. Several parties have come forward to claim the ownership. Mr. Kapoor submits that when the writ petitioner has no proprietary right or interest at all, how he can maintain the writ petition, is the first question which ought to have been decided by the learned Trial Judge.

( 3 ) SINCE this is a question of jurisdiction, we thought that this issue should be resolved at first. It will be apposite to record that this was not agitated earlier and being urged for the first time now. At an earlier stage, the learned trial Judge passed interim order on 20th February, 2006. At that time too it does not appear from the order itself that the point of jurisdiction was taken.

( 4 ) MR. Jayanta Kumar Mitra, learned Counsel for the writ petitioner Iftekar khan contends that the Port authorities are estopped from raising this plea of jurisdiction at this stage after having submitted to the jurisdiction and abandoning the point of jurisdiction by making an application for modification. Appeal was preferred by his client Iftekar Khan against earlier interim order dated 20th February, 2007 and Port authority had filed cross-objection against the same order. In cross-objection, point of jurisdiction was taken. But neither the appeal nor the cross-objection was pressed.

( 5 ) IT is stated that in view of dismissal of the appeal, cross-objection was also dismissed. We are unable to accept this plea as in case of dismissal of the appeal, the cross-objection could be proceeded with separately and independently. We are of the view that this plea of maintainability is, accordingly, hit by the principle of constructive res judicata if not expressed point of res judicata, because of dismissal of cross-objection.

( 6 ) IT is settled position of the law that any decision rendered in the interlocutory stage, operates as res judicata at the subsequent stage of the same proceedings. Even if for argument's sake, Mr. Kapoor's contention that such a plea can be raised at any stage and every stage, because it really concerns with the lack of inherent jurisdiction is accepted, then we are to consider the contention of Mr. J. K. Mitra on this point also. For our assistance he has drawn our attention to the following decisions of the Supreme Court, reported in AIR 1966 SC page 828 (paragraph 8), 1976 (1) SCC page 671 and 2000 (7)SCC page 552.

( 7 ) BEFORE we consider the decisions cited by Mr. Mitra, we are to examine the relevant statements and averments made in the writ petition as to how the writ petitioner's affectation of right is pleaded.

( 8 ) IN paragraphs 3, 4, 6, 8 and 10 of the writ petition it has been stated as follows: paragra