LexFORWARD CONSTRUCTION CO. & ORS. ETC. ETC. versus PRABHAT MANDAL. (REGD.) ANDHERI & ORS. ETC. ETC.
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A B c D 766 FORWARD CONSTRUCTION CO. & ORS. ETC. ETC. v. PRABHAT MANDA!. (REGD.) ANDliERI & ORS. ETC. ETC, NOVEMBER 26, 1985 [R.S.PATHAK, O. CHINNAPPA REDDY AND R.B. MISRA, JJ.] Maharashtra Regional Town Planning Act & Building Regula- tions - 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 11 - Meaning of - S.11, Civil Procedure Code, 1908. 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 Collllllittee 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 E augment the income of the Corporation which could be used for the purpose ot 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 premilllll 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 F 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 G were received out of which one wss 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 Collllllittee on 31st March 1982. One Mr. Thakkar filed writ petition before the Bombay High H Court challenging the right of the BEST to use the land for a purpose different from the one for which it had been reserved and FORWARD CONST, CO, v. PRABHAT MANDAL 767 desiguated under the development plan as well as the town planning scheme on the ground that it had no right. to use it for co11111ercial 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 co11111ercial 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 heari"!1 all the parties. After the dismissal of the aforesaid appeal, respondents Nos. l to 6 in civil appeal no. 2311, filed a similar petition under Article 226 of the Constitution. The writ petition was s111111111rily dismissed by a Single Judge. However, the appeal filed by the respondents was allowed by a Division Bench which issued a writ of mandanus directing appellants l to 4 in civil appeal No. 23ll, not to use the plot reserved for BEST bus depot for co11111ercial purpoae 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 permis~ion granted under Rule 4(a)(i) of the Development Control Rules was not in issue; and (2) that the earlier writ petition £iled by Thakkar was not a bona fide one inaslllllch as he w.:._ put up by some disgruntled builder. The appellant's review petition also failed. Allowing the appeals
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