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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 767 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 768 ’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 772 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 779 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. 784           (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