Full Judgment Text
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PETITIONER:
FORWARD CONSTRUCTION CO. & ORS. ETC. ETC.
Vs.
RESPONDENT:
PRABHAT MANDAL (REGD.) ANDHERI & ORS. ETC. ETC.
DATE OF JUDGMENT26/11/1985
BENCH:
MISRA, R.B. (J)
BENCH:
MISRA, R.B. (J)
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)
CITATION:
1986 AIR 391 1985 SCR Supl. (3) 766
1986 SCC (1) 100 1985 SCALE (2)1123
CITATOR INFO :
R 1990 SC1607 (35)
RF 1991 SC1153 (15)
ACT:
Maharashtra Regional Town Planning Act & Building
Regulations - Regulation 3, Proviso - "Change of user" -
Meaning of.
Code of Civil Procedure, 1908, s.11, Explanations IV,
VI and s.91 - Principle of res-judicata - Applicability to
public interest litigation - "Public right" - Meaning of.
Public Interest Litigation - Res-judicata - Principle
of Applicability to such litigation.
Words & Phrases - "Change" and "Public right" - Meaning
of - S.11, Civil Procedure Code, 1908.
HEADNOTE:
Under the development plan for Bombay a plot of land
was reserved for a bus depot of the Bombay Electricity
Supply & Transport Undertaking. The BEST Committee passed a
Resolution on 18th January, 1982 approving a proposal under
which a part of the plot was to be used for construction of
two buildings that will augment the income of the
Corporation which could be used for the purpose of
construction of staff quarters. Under the proposal the BEST
would, on the one hand get a cash amount of Rs.99.0 lacs in
the forms of non-refundable premium from the builder in
addition to the regular income from the tenants of the two
buildings and on the other hand it would not be required to
make any capital expenditure for the construction of the
project. Thereafter, an advertisement came to be published
in newspapers inviting offers from the interested parties to
develop the property. In addition to the said advertisement,
notices were also forwarded to 22 well-known builders out of
whom 12 builders purchased the tender forms. Pursuant to the
advertisement and the notices, two tenders were received out
of which one was sent by respondent 7, Forward Construction
Company and another by Deep Construction. The tender of
respondent 7 being higher than that of Deep Construction,
was accepted by the BEST Committee on 31st March 1982.
One Mr. Thakkar filed writ petition before the Bombay
High Court challenging the right of the BEST to use the land
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for a purpose different from the one for which it had been
reserved and
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designated under the development plan as well as the town
planning scheme on the ground that it had no right to use it
for commercial purpose. The right of the BEST to enter into
a contract with the builder was also challenged. A single
Judge dismissed the petition holding: (1) that the
substantial portion of the acquired plot was being utilised
for a purpose for which it was acquired and the commercial
use to which the small portion was being put would
substantially augment the coffers of the Corporation for the
benefit of the public at large; (2) that the value charged
by the BEST for allowing use of its property was not grossly
inadequate and that sufficient publicity was given before
inviting offers; and after having rejected the various pleas
taken by the petitioner in the case, he observed that the
petitioner was not an independent-minded citizen solely
inspired by the laudable motive of protecting public
interest and that the allegations in the petition indicated
that he had been set up by a disgruntled builder who
purchased the tender document but did not give an offer. The
matter was taken up in appeal but the Division Bench
dismissed the same after hearing all the parties.
After the dismissal of the aforesaid appeal,
respondents Nos. 1 to 6 in civil appeal no. 2311, filed a
similar petition under Article 226 of the Constitution. The
writ petition was summarily dismissed by a Single Judge.
However, the appeal filed by the respondents was allowed by
a Division Bench which issued a writ of mandamus directing
appellants 1 to 4 in civil appeal No. 2311, not to use the
plot reserved for BEST bus depot for commercial purpose or
for any purpose other than the purpose for which the said
plot of land was reserved. The plea of res judicata was
rejected for two reasons, namely (1) that in the earlier
writ petition the validity of the permission granted under
Rule 4(a)(i) of the Development Control Rules was not in
issue; and (2) that the earlier writ petition filed by
Thakkar was not a bona fide one insomuch as he was put up by
some disgruntled builder. The appellant’s review petition
also failed.
Allowing the appeals and dismissing the special leave
petition,
^
HELD: 1(i) The High Court was not justified in allowing
the writ petition only on the basis of the proviso to
Building Regulation No.3. The proviso to Building Regulation
No.3 requires that the change of user of the sanctioned plan
can be made only after the modification of the development
plan. The key word in this regulation is ’change’. The
general meaning of the word
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’change’ is to make or become different, to transform or
cover. If the user was to be completely or substantially
changed only then the prior modification of the development
plan was necessary.
In the instant case, the user of the plot has not been
changed. It has been used for a bus depot combined with a
commercial use to augment the income of the Corporation for
public purpose. In this view of the connotation of the word
’change’ the proviso has no application to the present case.
[784 D; 785 A-C]
1(ii) It cannot be said that the plot has been used for
a different purpose from the one for which it had been
acquired. All that can be said is that a part of the plot is
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being used for constructing two buildings which would
augment the income of Bombay Municipal Corporation that
could be utilised for the public purpose. The plot is being
substantially used for the purpose for which it had been
acquired. The additional use of the property will not make
the use of the property for altogether a different purpose.
The purpose for which the plot was earmarked remains intact,
that is, for the construction of a bus depot. The other
public interest sought to be achieved by the construction of
the two buildings in addition to the bus depot is equally
important. [781 D-E; G]
2(i) Explanation IV to s.11 C.P.C. provides that 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. An adjudication is conclusive and final not only
as to the actual matter determined but as to every other
matter which the parties might and ought to have litigated
and have had it decided as incidential to or essentially
connected with the subject matter of the litigation and
every matter coming within the legitimate purview of the
original action both in respect of the matters of claim or
defence. The principle underlying Explanation IV is that
where the parties have had an opportunity of controverting a
matter that should be taken to be the same thing as if the
matter had been actually controverted and decided. It is
true that where a matter has been constructively in issue,
it cannot be said to have been actually heard and decided.
It could only be deemed to have been heard and decided. The
High Court was therefore not right in holding that the
earlier judgment would not operate as res-judicata as one of
the ground taken in the present petition was conspicuous by
its absence in the earlier petition. [779 E-G]
769
2(ii) It is only when the conditions of Explanation VI
to s.11 are satisfied that a decision in the litigation will
bind all persons interested in the right litigated and the
onus of proving the want of bona fides in respect of the
previous litigation is on the party seeking to avoid the
decision. The words "public right" have been added in
Explanation VI in view of the new s.91 C.P.C. and to prevent
multiplicity of litigation in respect of public right. [780
C]
2(iii) It cannot be disputed that s.11 applies to
public interest litigation as well in view of Explanation VI
but it must be proved that the previous litigation was the
public interest litigation not by way of a private
grievance. It has to be a bona fide litigation in respect of
a right which is common and is agitated in common with
others. [780 C-D]
In the instant case, the High Court in the earlier writ
petition had recorded a finding that it was not a bona fide
litigation and that the petitioner in that case had been put
up by a disgruntled builder. Therefore, this finding,
excludes the application of s.11 C.P.C. [780 E]
3. Public interest law activities at times champion one
public interest which clashes with another public interest
thus benefiting one segment of public at another’s expense.
In the instant case, the avowed function of the
Corporation is the improvement of Greater Bombay. The plot
in question admittedly lies in a commercial zone and if any
facilities are given to the people of that locality
providing for commercial offices those facilities would go
towards the improvement of Bombay. It cannot, therefore, be
said that the transaction was outside the Bombay Corporation
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Act. [781 F; 782 C-D]
4. If commercial activities are to be pin-pointed in a
commercial zone and for that purpose the Municipal
Corporation takes a step to provide accommodation for
commercial purposes it cannot be said that the property of
the Corporation was being acquired or held for purposes
other than the purposes of the Act. [783 B]
Collins English Dictionary and Oxford Dictionary
referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2310-
2311 of 1984 etc.
From the Judgment and Order dated 14.11.1983 of the
Bombay High Court in A. No. 644 of 1982 and O.S.W.P. No.
2412 of 1982.
770
Parimal Shroff, Arun K. Sinha, K.K. Singhvi, P.H.
Parekh, M.K. Nesari and Miss Indu Malhotra for the
Appellants.
V.N. Ganpule, S. Naphade and Mrs. Urmila Sirur for the
Respondents.
The Judgment of the Court was delivered by
MISRA, J. The present connected appeals and the special
leave petition to appeal are sequel to a public interest
litigation and are directed against the judgment of the High
Court of Bombay dated 14th November 1983 allowing a petition
under Article 226 of the Constitution.
Public interest litigation is a comparatively recent
concept of litigation but it occupies an important status in
the new regime of pubic law in different legal systems. By
it very nature the concept of public interest litigation is
radically different from that off traditional private
litigation. Ordinary traditional litigation is essentially
of an adversary character where there is a dispute between
the two litigating parties, one making the claim of seeking
relief against the other and the other opposing such claim
or resisting such relief. While public interest litigation
is brought before the Court not for the purpose of enforcing
the right of one individual against another, as happens in
the case of ordinary litigation, it is intended to prosecute
and vindicate public interest which demands that violation
of constitutional or legal rights of a large number of
people, who are poor, ignorant or socially and economically
in disadvantaged position, should not go unnoticed,
unredressed for that would be destructive of the rule of
law. Rule of law does not mean protection to a fortunate few
or that it should be allowed to be prosecuted by vested
interest for protecting and upholding the status-quo. The
poor too have a civil and political right. Rule of standing
evolved by Anglo Saxon jurisprudence that only a person
wronged can sue for judicial redress may not hold good in
the present setting. Therefore, new strategy has to be
evolved so that justice become easily available to the lowly
and the lost. Law is not a closed shop. Even under the old
system it was permissible for the next friend to move the
court on behalf of a minor or a person under disability or a
person under detention or in restraint. Public interest
litigation seeks to further relax the rule on locus standi.
This Court in S.P. Gupta v. Union of India, [1982] 2 S.C.R.
365, dealing with the question of public interest litigation
observed :
771
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"It may therefore now be taken as well established
that where a legal injury is caused to a person or
to a determinate class of persons by reason of
violation of any constitutional or legal right or
any burden is imposed in contravention of any
constitutional or legal provision or without
authority of law or any such legal wrong or legal
injury or illegal burden is threatened and such
person or determinate class of persons is by
reason of poverty, helplessness or disability or
socially or economically disadvantaged position,
unable to approach the Court for relief, any
member of public can maintain an application for
an appropriate direction, order or writ in the
High Court under Article 226 and in case of breach
of any fundamental right of such person or
determinate class of persons, in this Court under
Article 32 seeking judicial redress for the legal
wrong or injury caused to such person or
determinate class of persons."
The present is a typical case of public interest litigation
and arises in the following circumstances.
The development plan for Bombay was sanctioned by the
State Government on 8th August 1966 and the verified Andheri
Town Planning Scheme framed under the Maharashtra Regional
Town Planning Act, came into force, after the repeal of the
Bombay Town Planning Act, this effect from 7th January 1967
and the Scheme was finally sanctioned on 11th June 1970.
Under the development plan final plot No. 14 was reserved
for a bus depot of the Bombay Electricity Supply and
Transport Undertaking (hereinafter referred to as the
’BEST’), owned and run by the Bombay Municipal Corporation
(hereinafter referred to as ’BMC’).
The said plot originally belonged to one Amarsi and
after a prolonged litigation the said land admeasuring
4657.10 sq. mtrs. was acquired under the provisions of the
Land Acquisition Act, 1894 and the BMC through the BEST had
to pay a sum of Rs. 35,00,000 as compensation pursuant to
the award given by an arbitrator appointed by consent of the
parties and the BEST took possession of the same on 18th
February, 1978.
It appears that the General Manager of the BEST
Undertaking laid before the BEST Committee a proposal in his
letter dated 4th August, 1981. In his opinion of the BEST
provided only a bus depot on the said plot the total
investment would be Rs.45,00,000 inclusive of the cost of
the land and the return from the
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investment would be nothing except the rent from the canteen
vendor. The General Manager, therefore, proposed to the said
committee that if an additional investment of Rs.50,00,000
on the construction of two buildings was made, the BEST
would get a return to the tune of Rs.8,50,000 per annum. He
referred to the two buildings as ’A’ and ’B’ on the plan
which was annexed with his letter. The ’A’ building was to
have five floors with the ground floor on stilts and
building ’B’ was to have a ground and two upper floors with
a mezzanine floor and the first floor. Building ’B’ was also
partly to be on stilts to provide for car parking. The
calculation made by the General Manager was on the footing
that a carpet area of 22,500 sq.ft. could be spared after
meeting the needs of the BEST bus depot and that space could
be let out for offices and show rooms etc. from which the
BEST could expect an overall minimum rent of Rs.3 per Sq.
ft. exclusive of taxes resulting in a net profit of Rs.8.50
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lacs per annum.
It, however, appears that the Best Committee referred
back the proposal of the 4th August, 1981 to the General
Manager and he, in the light of discussions with the members
of the BEST Committee, put up two alternative proposals vide
his letter dated 17th September, 1981. The salient features
of the first proposal were that offers from builders were to
be invited by public advertisements for construction of the
entire complex as per BEST plans and specifications by the
builder at his own cost which was estimated at Rs.60.0 lacs.
Under the said proposal the builder was to make his own
arrangements for finance and materials including steel,
cement etc. The proposal further indicated that as the
builder’s maximum investment would amount to Rs.159.0 lacs
he may in lieu thereof be given a right to dispose of the
property to the users of his own choice. Under that proposal
the builder was to make an annual payment to the BEST to
cover repairs, maintenance and other costs. The builder
making the highest payment was to be selected and the
premium was put at the rate of Rs.200 to Rs.250 per sq. ft.
of the available F.S.I. On that basis it was estimated that
the floor space available being 39,592 sq.ft., at the rate
of Rs.200 to Rs.250 per sq.ft. a sum between Rs.79.0 lacs to
Rs.99.0 lacs could be received by BEST, in addition to
making a full-fledged bus depot free of cost. The General
Manager in the said letter, however, also pointed out the
draw-backs of his proposal and therefore an alternative
suggestion was also made by him whereunder the BEST may
invite offers directly from the prospective tenants for a
period of 30 years at a time and after the expiry of 30
years the tenants were to have an option of renewal for a
further period of 30 years but at
773
a revised rate to be fixed by the BEST taking into
consideration the prevailing market price. Under the
alternative proposal a premium of Rs.99.0 lacs was to be
received directly from the tenants and after deducting the
cost of the whole complex, which was expected to be Rs.60.0
lacs the BEST would get a net amount of Rs. 39.0 lacs in
addition to the revenue of Rs.8.46 lacs per annum by way of
rent or compensation from the tenants.
The final proposal which, however, emerged as a result
of discussion with the BEST Committee was the one contained
in the letter of the General Manager to the BEST Committee
dated 14th January, 1982. Under this proposal the builder
was to pay to the BEST non-refundable premium at the rate of
Rs.250 per sq.ft. of ’FSI’ allowed to be used. The builder
was to construct at his cost two buildings including the bus
depot, yard concreting, lighting etc. and hand them over
free of cost to the BEST within two years after entering
into the contract and the plans and specifications were to
be given by the BEST. The builder was to recommend tenants
for 23500 sq.ft. carpet area and the BEST was to grant lease
to the tenants nominated by the builder subject to approval
by the General Manager at the rate of Rs.1 per sq.ft. of the
carpet area. The lease was renewable for a further period of
30 years and that the rent was to be at the rate of Rs.2 per
sq.ft. The user was to be such as was allowed under the
development control rules. The builder was to pay the
premium in two instalments, the first instalment of 50 per
cent before signing the agreement and the remaining 50 per
cent within 18 months after the first payment but before the
completion of the project.
The effect of this proposal was that the BEST would on
the one hand get a cash amount of Rs.99.0 lacs in the form
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of non-refundable premium and on the other hand would not be
required to make any capital expenditure for the
construction of the project. A net income of Rs.2.82 lacs
per year for 30 years amounting to Rs.84.60 lacs, and for
the next 30 years at the rate of Rs.5.64 lacs per year
amounting to Rs.169.20 lacs would be earned by the BEST.
Under the said project the BMC or the BEST would gain in the
first 60 years period about Rs.412.0 lacs as against Rs.159
lacs and would not be required to supply any cement for the
project. This proposal was approved by the BEST Committee by
its resolution dated 18th January, 1982.
The follow up proceedings started thereafter and an
advertisement came to be published in the Times of India and
774
various other newspapers on 10th February 1982 inviting
offers from the interested parties to develop the BEST
property on certain terms and conditions contained in a
document which could be obtained from the Engineer-in-Charge
(Civil) of the BEST. In addition to the said advertisement
in the newspapers, notices were also forwarded to 22 well-
known builders out of whom 12 builders purchased the tender
forms on payment of Rs.1000 each.
The parties hereinafter are referred to in accordance
with their position in C.A. No. 2311 of 1984.
Pursuant to the advertisement and the said notices two
tenders were received, one was sent by M/s. Forward
Construction Co., respondent No.7, a partnership firm, and
the other by M/s. Deep Construction. As the tender of
Forward Construction Co. was higher than that of M/s. Deep
Construction it was accepted by the BEST Committee on 31st
March 1982. The BEST Committee also recorded its approval to
General Manager entering into the contract with the highest
bidder for development of the BEST’s property at Andheri.
The approval further stated that the amount so earned would
be used for constructing staff quarters. The possession of
the plot was handed over to Forward Construction Company for
the purpose of putting up the construction for and on behalf
of the BEST on 18th April 1982.
It appears that soon after one Subhash Vasant Thakkar
on 20th April, 1982 filed a petition in his capacity as a
rate-payer in the High Court of Judicature at Bombay under
Article 226 of the Constitution, being writ petition No.921
of 1982. He challenged the right of the BEST to use the land
for a purpose different from one for which it had been
reserved and designated under the development plan as well
as the town planning scheme and that it had no right to use
it for commercial purpose. He also challenged the right of
the BEST to enter into a contract with the builder. The
petition was dismissed by a learned Single Judge on 28th
May, 1982 after having heard all parties concerned and after
giving opportunity to file replies. The learned Judge found
that the substantial portion of the acquired plot was being
utilised for a purpose for which it was acquired and the
commercial use to which the small portion was being put
would substantially argument the coffers of the Corporation
for the benefit of the public at large. The learned Judge
also rejected the contention that the value charged by the
BEST for allowing use of its property was grossly inadequate
and that no sufficient publicity was given before inviting
offers.
775
The court after having rejected the various pleas taken by
the petitioner in the case also observed that the petitioner
was not an independent-minded citizen solely inspired by the
laudable motive of protecting public interest but the
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allegations in the petition indicated that he had been set
up by a disgruntled builder who purchased the tender
document but did not give an offer. The matter was taken up
in appeal but the Division Bench dismissed the same after
hearing all the parties.
After the dismissal of the appeal the present
respondents 1 to 6 in civil appeal no. 2311 filed a similar
petition under Article 226 of the Constitution in the Bombay
High Court which gives rise to the present appeals and the
special leave petition seeking almost the same relief as was
claimed in the earlier petition filed by Thakkar. The
learned Single Judge summarily dismissed the writ petition
by his order dated 23rd November, 1982.
The respondents Nos. 1 to 6 took up the matter in
appeal. The Division Bench admitted the appeal and disposed
of the same finally on the same day setting aside the order
of the learned Single Judge. It admitted the writ petition
and transferred the same to be finally disposed of by a
Division Bench. The Division Bench eventually allowed the
petition and issued a writ of mandamus directing appellants
1 to 4 in civil appeal no. 2311, their officers,
subordinates, servants and agents not to use plot no. 14 in
the Town Planning Scheme, Andheri No.1 (2nd Variation)
reserved for BEST bus depot for commercial purpose or for
any purpose other than the purpose for which the said plot
of land was reserved. The court, however, clarified that its
decision did not prevent the planning authority, that is,
the BMC, form taking such steps as it may be advised to have
the plan modified in accordance with s. 37 of the said Act.
The appellants feeling aggrieved by the judgment of the
High Court filed a detailed review petition mainly on the
ground that the respondents 1 to 6 had not taken any plea
based on regulation 3 of the Building Regulations and it was
only during the course of arguments that this plea was
advanced before the court and certain papers were filed
before the court. The appellants had no opportunity to
produce documents in rebuttal and it was only when the
decision was given by the court that the appellants have
been able to trace and collect a number of documents, which
according to them have great bearing on the interpretation
of the said building regulations contained in the Town
Planning Scheme
776
Andheri I (2nd Variation) finally sanctioned by the State
Government on 17th July, 1976. They filed the following
documents along with the review petition:
1. Town Planning Scheme Andheri No. I (Final) which
came into force on 15th November, 1919 vide Government
notification No. GP-8388-A dated 7th October 1919 in the
Bombay Government Gazette Part I No. 2404 dated 9th October,
1919.
2. Notification No. TPS-2963-30714-R dated 29th
October, 1963 issued by the State Government sanctioning the
T.P. Scheme Andheri I (1st Variation) (Final) with effect
from 1st January, 1964.
3. The T.P. Scheme Andheri I (1st Variation) containing
Building Regulations which inter alia state that no plot
within the area of the Scheme shall be permitted to be used
for any purpose other than residential.
4. Resolution of the Bombay Municipal Corporation No.
539 dated 24th August 1967 declaring their intention under
Section 92 read with Section 59(a) of the MRTP Act 1966 to
make second variation Town Planning Scheme Andheri No. I
with a view :
(a) to certify the discrepancies in the areas of the
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plots, if any, to regularise the boundaries wherever
necessary, and to make other consequential changes in the
re-distribution of Valuation Statement ;
(b) to change some of the residential and/or shopping
plots into commercial plots as per final Development Plan;
(c) to make such other variation as deemed necessary,
supplementary to and consequential to the Variations stated
above.
5. Notification dated 6th September 1968 issued by the
Municipal Commissioner for Greater Bombay informing the
public that the Draft Variation Scheme for Andheri Town
prepared and approved by the Corporation for publication
under Resolution No.399 of 19th August, 1968 was upon for
inspection and any person who had been affected by the draft
variation scheme should communicate in writing to the
Executive Engineer, Town Planning any objection or
suggestion within 30 days from the publication of the said
notification.
777
6. Government notification in Urban Development, Public
Health 6 Housing Department TPS 2969/11752 dated 30th May
1970 sanctioning the draft scheme (2nd variation).
7. Notification dated 15th May 1973 issued by Shri K.S.
Keswani, Arbitrator, announcing that he had done all that
was required of him regarding Town Planning Scheme, Andheri
I (2nd Variation) (Final) under Section 72(3) of the MRTP
Act 1966 and the rules framed under the Bombay Town Planning
Act 1954 and had drawn up the Final Scheme as required under
section 72(3) (xviii) of the said Act.
8. Decision given by the Tribunal of Appeals presided
by Shri G.H. Guttal dated 7.4.1975 regarding Town Planning
Scheme, Andheri I, (2nd Variation)(Final) wherein paragraph
No.16 deals with Appeal No.3 relating to Final Plot No.14.
9. Notice dated 16th January 1976 issued by Shri K.S.
Keswani, Arbitrator, announcing that he had drawn up the
Final Scheme, Andheri No.1 (2nd Variation) as required under
section 72(3) (xviii) read with section 82(2) of the MRTP
Act, 1966.
10. Final Scheme drawn by Shri K.S. Keswani, Arbitrator
on 16th January 1976 showing that the Scheme involved 27
plots which had fallen in Commercial Zone under the Final
Development Plan and the Original Plot Nos.1 to 27 remained
as Final Plot Nos.1 to 27.
11. Notification dated 17th July 1976 issued by the
Government of Maharashtra sanctioning Town Planning Scheme,
Andheri No.1 (2nd Variation)(Final) published in the
Maharshtra Government Gazette Extraordinary dated 17th July
1976.
These documents according to the appellants proved that:
(a) The Town Planning Scheme Andheri No.1 (Final) known
as the principal scheme, came into force on 15th November
1919.
(b) The Bombay Municipal Corporation declared its
intention to vary that scheme on 18th November 1957 to
enable the plot holders in the scheme area to effect
development on par with the area outside the scheme wherein
the built up area upto 1/3rd of the plot and the structures
for ground and two upper floors were permissible and also to
provide underground sewers and storm water drains.
778
(c) The Town Planning Scheme, Andheri No.1 (1st
Variation) (Final) was sanctioned by the Government on 29th
October, 1963 with effect from 1st January, 1964. Under the
Building Regulations made under the said scheme, Regulation
No.6 stated that no plot within the area of the scheme shall
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be permitted to be used for any purpose other than
residential, provided that professional offices of doctors,
lawyers, engineers and the like as also buildings required
for educational, recreational, religious or cultural
purposes, community centres, dispensaries, hospitals and any
other buildings the use of which is, in the opinion of the
Local Authority, not likely to affect detrimentally the
residential character of the locality, may be permitted. In
short, all the plots in the area of the scheme were
permitted to be used for residential purposes.
(d) Final Development Plan of ’K’ Ward which includes
Andheri came into force with effect from 8.8.1966 and the
Development Control Rules for the entire Greater Bombay came
into force from 9th February 1967. Under the Final
Development Plan the plots which had been included in Town
Planning Scheme Andheri No.1 (1st Variation) (Final) were
included in ’Commercial Zone’.
In short, the entire purpose of varying the Town Planning
Scheme Andheri No.1 was to bring the scheme in conformity
with the Development Plan.
The High Court, however, dismissed the review petition
on 22nd December, 1983 by the following order:
"Heard Mr. Singhvi. We have interpreted Regulation
3 and the proviso in its plain terms. The number
of documents now produced do not effect the
construction which we have placed on Regulation 3
and the proviso. Review Petition rejected."
All the contesting parties have now come up in appeal
against the judgment of the High Court dated 14th November
1983 to the extent it want against them. The result is that
all the questions which were before the High Court are again
up for consideration by this Court.
To start with, the respondents 1 to 6 had taken a plea
that the Municipal Commissioner had not obtained the
approval of the Bombay Municipal Corporation under r.4(a)(i)
of the Development Control Rules for change of user. The
counsel for the BMC, however, informed the court that he had
already sought the
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sanction of the Bombay Municipal Corporation and the
proposal would soon come up before the Corporation for
discussion and on that ground he sought an adjournment of
the case to enable the Corporation to approve the said
proposal. On 6th January 1983 the BMC by its resolution
accorded sanction under r.4(a)(i) of the Development Control
Rules for the change of present user of BEST bus depot to a
combined user of BEST bus depot with commercial offices
proposed by the Municipal Commissioner. The court thereafter
allowed respondents 1 to 6 to amend their writ petition as
the plea taken by them had lost its force after the
sanction.
The second question for consideration is whether the
present writ petition is barred by res judicata. This plea
has been negatived by the High Court for two reasons: (1)
that in the earlier writ petition the validity of the
permission granted under r.4(a)(i) of the Development
Control Rules was not in issue; and (2) that the earlier
writ petition filed by Shri Thakkar was not a bona fide one
in as much as he was put up by some disgruntled builder,
namely, of M/s. Western Builders.
So far as the first reason is concerned, the High Court
in our opinion was not right in holding that the earlier
judgment would not operate as res judicata as one of the
grounds taken in the present petition was conspicuous by its
absence in the earlier petition. Explanation IV to s.11
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C.P.C. provides that 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. An adjudication is
conclusive and final not only as to the actual matter
determined but as to every other matter which the parties
might and ought to have litigated and have had it decided as
incidental to or essentially connected with the subject
matter of the litigation and every matter coming with the
legitimate purview of the original action both in respect of
the matters of claim or defence. The principle underlying
Explanation IV is that where the parties have had an
opportunity of controverting a matter that should be taken
to be the same thing as if the matter had been actually
controverted and decided. It is true that where a matter has
been constructively in issue it cannot be said to have been
actually heard and decided. It could only be deemed to have
been heard and decided. The first reason, therefore, has
absolutely no force.
The second reason given by the High Court however,
holds good. Explanation VI to s.11 provides :
780
"Where persons litigate bona fide in respect of a
public right or of a private right claimed in
common for themselves and others, all persons
interested in such right shall, for the purposes
of this section be deemed to claim under the
persons so litigating."
But it is only when the conditions of Explanation VI are
satisfied that a decision in the litigation will bind all
persons interested in the right litigated and the onus of
proving the want of bona fides in respect of the previous
litigation is on the party seeking to avoid the decision.
The words "public right" have been added in Explanation VI
in view of the new s.91 C.P.C. and to prevent multiplicity
of litigation in respect of public right. In view of
Explanation VI it cannot be disputed that s. 11 applies to
public interest litigation as well but it must be proved
that the previous litigation was the public interest
litigation not by way of a private grievance. It has to be a
bonafide litigation in respect of a right which is common
and is agitated in common with others.
The High Court in the earlier writ petition had
recorded a finding that it was not a bona fide litigation
and that Shri Thakkar, the petitioner in that case, had been
put up by M/s. Western Builders. This finding excludes the
application of s.11 C.P.C. in the present case. The
possibility of litigation to foreclose any further enquiry
into a matter in which an enquiry is necessary in the
interest of public cannot be overruled. In view of the
finding of the High Court that the previous writ petition
was not a bona fide one, the present writ petition would not
be barred by s.11 of the C.P.C. and the High Court was
justified in so holding but not because of the first reason
but because of the second reason.
This leads us to the third point that a valuable public
property was being disposed of at a gross undervalue in a
highly secretive manner only to oblige respondent No. 7.
This plea in our opinion was rightly negatived by the High
Court. Consequent upon the resolution of 18th January 1982
approving the proposal of the General Manager, an
advertisement came to be published in the Times of India and
various other newspapers on 10th February 1982 inviting
offers from the interested parties to develop BEST’s
property on certain terms and conditions contained in a
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document which could be obtained from the Engineer-in-Chief
(Civil) in the BEST. In addition to the said advertisement
in the newspapers notices were also forwarded to 22 well-
known builders
781
out of whom 12 builders purchased the tender forms on
payment of Rs.1000 each. In view of these circumstances it
cannot be said that the whole thing was done in a secretive
manner.
Pursuant to the advertisement and the said notices two
tenders were received out of which one was sent by
respondent 7 which is a partnership firm and another by Deep
Construction. The tender of respondent 7 being higher than
that of Deep Construction, was accepted by the BEST
Committee on 31st March 1982. In the facts and circumstances
of this case as established, it cannot be said that the
property of the Corporation has been disposed of for a
wholly inadequate consideration
The fourth point raised is that the plot No. 14
acquired for a public purpose of constructing a bus station
was being used for a commercial purpose which was not
permissible. This plea had been rejected by the High Court
holding that a very substantial portion of the acquired plot
was being utilised for the purpose for which it was acquired
and the commercial use to which a small portion was being
put would substantially augment the coffered of the
Corporation for the benefit of the public at large without
spending any further amount on the development. It cannot be
said that the plot has been used for a different purpose
from the one for which it had been acquired. All that can be
said is that a part of the plot is being used for
constructing two buildings which would augment the income of
B.M.C. that could be utilised for the public purpose. The
plot is being substantially used for the purpose for which
it had been acquired. The additional use of the property
will not make the use of the property for altogether a
different purpose.
Public interest law activities at time champion one
public interest which clashes with another public interest
thus benefiting one segment of public at another’s expense.
As disclosed in the earlier part of the judgment, the
General Manager had sent up a proposal whereunder a part of
plot No. 14 was to be used for construction of two buildings
that will augment the income of the Corporation which could
be used for the purpose of construction of staff quarters.
The purpose for which the plot was earmarked remains intact,
that is, for the construction of bus depot. In our opinion
the other public interest sought to be achieved by the
construction of the two buildings in addition to the bus
depot is equally important.
This leads us to the question of mala fides of the
officers of the Corporation in accepting the tender of M/s.
Forward Construction. This plea was based on various
circumstances which
782
had been taken into consideration by the High Court and
repelled. Indeed, no specific plea had been taken against
any officer of the Corporation to show that the officers
were acting with any ulterior or improper motive. All the
same, the High Court did consider this plea and rejected the
same for congent reasons with which we agree and it is not
necessary to repeat them here.
As a second limb to the plea of mala fides it was
contended that even assuming that no mental guilt on the
part of the officer of the Corporation is proved, the
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transaction suffered from legal mala fides or mala fides in
law in as much as the transaction was outside the Bombay
Corporation Act as it was intended to make financial gain.
The avowed function of the Corporation is the
improvement of Greater Bombay. Section 61 of the Municipal
Corporation Act enumerates the obligatory and discretionary
duties of the Corporation Section 61(t) refer to the
improvement of Greater Bombay. Section 63(k) authorises the
Corporation to take any measures to promote public safety
health, convenience. The plot in question admittedly lies in
a commercial zone and if any facilities are given to the
people of that locality providing for commercial offices
those facilities would go towards the improvement of Bombay.
It cannot, therefore, be said that the transaction was
outside the Bombay Corporation Act.
The resolution of the BEST Committee dated 18th January
1982 approving the proposal of the General Manager dated
14th January 1982 clearly provided that the amount of non-
refundable premium payable by the builder at the rate of
Rs.250 per sq.ft. of F.S.I. would be utilised for the
construction of the Undertaking’s quarters and tenements
under hire-purchase scheme. The BEST had, therefore, clearly
earmarked the non-refundable premium for the purpose of
construction of quarters and tenements under the hire-
purchase scheme.
Section 87 of the Bombay Municipal Corporation Act
provides that the Corporation shall be for the purposes of
this Act have powers to acquire and hold movable and
immovable property whether within or without the limits of
Greater Bombay. As the property is being utilised for
augmentation of the revenues of the Corporation it is sought
to be contended that it is not for the purpose of the Act.
The mere fact that the Corporation was to make a gain
of the nonrefundable premium did not mean that was the only
purpose which was in view. The purpose obviously was the
best utilisation
783
of the available space. If in a commercial zone the
Corporation was able to make available accommodation for
commercial purposes we do not see why such a venture cannot
be one either for the purpose of promoting public safety,
convenience or in the nature of facilities being made
available as a part of the improvement of the city, If
commercial activities are to be pin-pointed in a commercial
zone and for that purposes the Municipal Corporation takes a
step to provide accommodation for commercial purposes it
cannot be said that the property of the Corporation was
being acquired or held for purposes other than the purposes
of the Act.
This leads us to the last but not the least in
importance the plea based on Building Regulation No. 3. In
order to appreciate the contention it will be proper to read
the regulation:
"The user of the following final plots will be as
under, as per the sanctioned development plan :
Final Plot No. User
-------------- ----
10 Public Wall
12 Part Parking lot
14 Best Bus Depot
Provided that the above users may be changed by
the Local Authority after modification of the
Development Plan.
It was this plea which prevailed with the High Court and the
writ petition was allowed only on this score. The precise
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contention of the counsel for the respondents was that
Building Regulation No.3 will override the Development
Control Rules for Greater Bombay. Rule 3 of the Development
Control Rules for Greater Bombay reads :
"3.(a)(i) All development work shall conform to
the respective provisions made under these Rules.
If there is a conflict between the requirement of
these rules and the requirements of bye-laws in
force the requirements of these rules shall
prevail;
Provided however that in respect of areas included
in a finally sanctioned Town Planning Scheme, the
scheme regulations shall prevail if there is a
conflict between the requirements of these rules
and of the Scheme regulations.
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(ii) The development work when completed shall not
be used for any purpose except for the sanctioned
use or such use as can be permitted under these
rules.
(b) Change of use; No building or premises shall
be changed or converted to a use not in conformity
with the provisions of these rules."
If the contention of the respondents that proviso to
Building Regulation No. 3 overrides the Development Control
Rules in accepted then the user of the plot as per
sanctioned development plan can be changed by the local
authority after modification of the development plan and as
in the instant case there has been no modification of the
development plan the change of user cannot be permitted.
This is the crucial point on which the writ petition has
been allowed. The other pleas taken by the respondents, as
stated above, had been negatived by the High Court. What the
proviso to Building Regulation No.3 requires is that the
change of user of the sanctioned plan can be made only after
the modification of the development plan. The key word in
this regulation is ’change’. What does the word ’change’
mean? Collins English Dictionary gives the following meaning
to the word ’change’ :
"1. to make or become different, alter, 2. to
replace with or exchange for another, 3. to
transform or convert, 4. to give or receive
something in return, interchange, 5. to give or
receive money in exchange for the equivalent sum
in small denomination or different currency, 6. to
remove or replace the covering of, 7. to put on
other clothes, 8. to pass from one phase to the
following one, 9. to alight from and board
another, 10. a variation, deviation or
modification, 11. the substitution of one thing
for another, exchange, 12. anything that is or
may be substituted for something else, 13. a
different or fresh set."
The meaning of the word ’change’ in the Oxford Dictionary
reads :
"1. take another instead of, 2. resign, get rid
of, 3. give or get money change for, 4. put on
different clothes, 5. go from one to another, 6.
pass to different owner, 7. make or become
different, 8. take new position in argument, 9.
adopt new plan or opinion."
785
So, the general meaning of the word ’change’ in the two
dictionaries is "to make or become different, to transform
or convert." If the user was to be completely or
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substantially changed only then the prior modification of
the development plan was necessary. But in the instant case
the user of the plot has not been changed. It has been used
for a bus depot combined with a commercial use to augment
the income of the Corporation for public purpose. In this
view of the connotation of the word ’change’ the proviso has
no application to the present case and the High Court in our
opinion was not quite justified in allowing the writ
petition only on the basis of the proviso to Building
Regulation No.3.
It may further be pointed out even at the cost of
repetition that this plea had not been taken in the original
writ petition nor in the amended writ petition, and had been
taken for the first time in the course of argument. The
appellants had no opportunity to produce documents in
rebuttal and it was only when the judgment was pronounced
that the appellants could lay their hands on certain
notifications and certain other documents to show that was
a minor adjustment and could be rectified. Therefore, the
appellants filed a review petition along with those
documents which has been enumerated in the earlier part of
the judgment. The court described those papers as irrelevant
for the purpose of construction of the proviso to Building
Regulation No. 3. But in our opinion those documents would
go a long way to solve the problem.
For the foregoing discussion, the appeals must succeed.
They are accordingly allowed, the judgment and order dated
14th November, 1983 of the Division Bench of the High Court
are set aside, and the judgment and order dated 23rd
November 1982 of the learned Single Judge of the High Court
dismissing the writ petition are restored. The special leave
petition filed by Prabhat Mandal and others is dismissed. In
the circumstances of the case, however, the parties shall
bear their own costs.
M.L.A. Appeals allowed.
786