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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: MAHADEO DEOMAN RAI ALIAS KALAL AND OTHERS

DATE OF JUDGMENT19/04/1990

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) SHETTY, K.J. (J) SAWANT, P.B.

CITATION:  1990 SCR  (2) 533        1990 SCC  (3) 579  JT 1990 (3)    48        1990 SCALE  (1)49

ACT:     Land  Acquisition  Act, 1894: S.  4--Land  reserved  for public purpose--Whether permissible to modify or  substitute the scheme.

HEADNOTE:     The respondent was permitted by the Municipal Council to construct  a building on the disputed land. Later, the  site was  reserved under s. 4 of the Land Acquisition Act  for  a town planning scheme. When the respondent was prevented from proceeding  with the construction he filed a suit  for  dam- ages. The Municipal Council, however, by a resolution passed on February 13, 1967 decided to accord permission. The  suit was  thereafter withdrawn. The State Government appointed  a high  power  committee  to examine the  entire  matter.  The aforesaid resolution was rescinded by the Municipal Council.     The  respondent made a fresh application in  July,  1968 which was kept in abeyance. He thereupon filed a writ  peti- tion  before the High Court in 1969. During the pendency  of the case, the Municipal Council passed a resolution on  June 29,  1970 deciding to replan the scheme with respect to  the area  in question in accordance with the recommendations  of the high power committee.     The  High  Court by its judgment dated  April  18,  1972 directed the Municipal Council to dispose of the application in  accordance with law. The latter, however, by  its  order dated November 21, 1972 rejected it on the basis of the 1970 resolution.     In  the writ application challenging the said  order  it was contended for the respondent that the disputed  question must be deemed to have been finally settled in his favour in view  of the earlier judgment which was binding on the  par- ties by reason of rule of res judicata. For the State it was contended  that  no  final decision was arrived  at  in  the earlier case. The High Court allowed the writ application on the basis of constructive res judicata. In  the  appeal by special leave it was  contended  for  the appellants 534 that  the  previous judgment could not be interpreted  as  a direction  commanding  the Municipal Council  to  allow  the

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proposed  construction,  and that the  plots  were  urgently needed  for  providing parking space for vehicles.  For  the respondent it was contended that the resolution of  February 13,  1967  was  passed by way of a  compromise  between  the parties  and acting thereupon he withdrew his suit. it  was, therefore,  binding on the Municipal Council, that the  1970 resolution  should be completely ignored and  the  Municipal Council should not be allowed to bypass the judgment of  the High Court. Allowing the appeal, this Court.     HELD: 1. The resolution dated February 13, 1967 was  not binding on the Municipal Council so as to disable it to take a  different  decision  later. It was not the  result  of  a compromise between the parties. [538D; 537E-F]     2.1 At the best for the respondent, it could be  assumed that  when the said resolution in his favour was passed  the acquisition of the land was not so urgently essential so  as to call for his dispossession. But for that reason it  could not  be  said that the plots had become  immune  from  being utilised for any other public purpose for ever. [538B-C]     2.2  The  question  as to whether  a  particular  scheme framed in exercise of statutory provisions is in the  public interest  or not has to be determined according to the  need of  the  time  and a final decision for all  times  to  come cannot be taken. Such a scheme may serve the public  purpose at a given point of time but due to change of  circumstances it may become essential to modify or substitute it by anoth- er  scheme. The requirements of the community do not  remain static, they indeed, go on varying with the evolving process of  social life. Accordingly, the State or a  body.like  the Municipal Council entrusted with a public duty to look after the  requirements of the community has to assess the  situa- tion  from time to time and vary the scheme periodically  to meet the changing needs of the public. In the instant  case, the high power committee appointed by the State had given  a report stating that the land in question would he needed for the proper circulation of traffic. [537H; 538; 537F-G]     3.  There was no scope for application of the  principle of  res judicata. By the judgment dated April 18, 1972,  the High  Court  did not finally decide the controversy  and  it remained open for the Municipal Council to decide, by recon- sidering and disposing of the application of the  respondent in accordance with law. [537G-H] 535

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  870  of 1975.     From  the  Judgment  and Order dated  24.1.1975  of  the Bombay  High Court in Special Civil Application No.  963  of 1973. V.V. Vaze, V.N. Patil and A.S. Bhasme for the Appellant.     V.M. Tarkunde, V.N. Ganpule, Ms. Punam Kumari, Suman  B. Rastogi, Ms. J. Wad and A.M. Khanwilkar for the Respondents. The Judgment of the Court was delivered by     SHARMA,  J.  This appeal by special  leave  is  directed against  the  decision of the Bombay High Court  on  a  writ petition filed by the respondent No. 1, hereinafter referred to as the respondent. The application of the respondent  for permitting construction on the land in question described as plots No. 29 and 30 in the town of Nasik was rejected by the Nasik Municipal Council, which led to the filing of the writ case.

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   2. In 1955 the respondent purchased the land in question from  one  Patwardhan  and in 1957  obtained  permission  to construct  a building thereon. However, no construction  was made  and in March, 1962, a notification under s. 4  of  the Land  Acquisition Act was issued for the purpose  of  estab- lishing a Tonga Stand. The respondent made a fresh  applica- tion for permission to make construction. He was told not to do  so  on the ground that the land was  reserved  for  road widening under a Town Planning Scheme which was being imple- mented.  He however started construction work and when  pre- vented  from so doing, filed a writ application in the  High Court  which  was later withdrawn. Subsequently he  filed  a suit  in the civil court inter alia claiming  damages.  Soon thereafter a resolution was passed by the Municipal  Council on February 13, 1967 whereby a decision was taken to  accord permission  to  the respondent as asked for.  The  suit  was thereafter withdrawn.     3.  The aforesaid development came to the notice of  the State  Government,  and the Municipal Council was  asked  to explain  the circumstances, and a high.power  Committee  was appointed to examine the entire matter. The aforesaid  reso- lution  was thereafter rescinded by the  Municipal  Council, and the respondent filed a fresh application for  permission to  construct, which was kept in abeyance by the Council  on the  ground that the matter was under consideration  by  the Committee. 536 Another  writ petition being Special Civil  Application  No. 993  of  1969 was thereupon filed by the respondent  in  the High Court in 1969. While this case was pending, the Commit- tee  submitted its report and a fresh resolution was  passed on 29.6.1970, a copy whereof is Ext. ’O’, inter alia, decid- ing to re-plan the Scheme with respect to the area in  ques- tion,  in accordance with the recommendation of the  Commit- tee.  Consequently the matter was re-opened  and  objections from  the affected persons were invited and  the  respondent filed  his objection petition. However these facts were  not placed  before the High Court in Special  Civil  Application No.  993 of 1969 and, without taking them in  consideration, the  case was disposed of by the judgment contained in  Ext. ’A’  dated 18.4.1972. Without going into the merits  of  the matter,  the  High Court directed  that;  "The  petitioner’s application  to  Respondent No. 1 dated July 18,  1968,  for construction  permission shall be disposed of by  Respondent No. 1 in accordance with law". The Municipal Council by  its order dated the 21st of November, 1972 rejected the respond- ent’s  application on the basis of the resolution dated  the 29th  of  June, 1970, Ext. ’0’, stating that  the  plots  in question  were  required  for road widening,  and  the  Town Planning  Scheme was being modified accordingly. This  order was  challenged before the High Court by a writ  application out  of  which the present appeal arises. On behalf  of  the respondent it was urged before the High Court in support  of the writ petition that the disputed question must be  deemed to  have been finally settled in his favour in view  of  the earlier  judgment, Ext. ’A’ in S.C.A. No. 993 of 1969  which was binding on the parties by reason of rule of res  judica- ta.  It was contended on behalf of the State of  Maharashtra and the Municipal Council that the plea of res judicata  was not  available mainly for the reason that no final  decision was arrived at in the earlier case. It was pointed out  that tlie 1970 Resolution, Ext. ’O’, was not even brought to  the notice of the court by any party, and the High Court without considering  the  merits of the respondent’s  prayer  merely directed the Municipal Council to reconsider his application

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dated the 18th of July, 1968 and dispose it of in accordance with law. The High Court was not impressed by this reply and allowed  the writ application on the basis of the  principle of  constructive res judicata. It has been observed that  it was  for the State or the Municipal Council to  have  relied upon the 1970 Resolution and since this was not done,  their answer  based upon the said resolution cannot now be  enter- tained. By the impugned judgment it has also been said  that having  regard  to the circumstances in  which  the  earlier judgment Ext. ’A’ was delivered, the same must be interpret- ed  as issuing a peremptory direction to  accord  permission for construction without further consideration of the prayer on merits. 537     4.  Mr. V.M. Tarkunde, the learned counsel for  the  re- spondent, while supporting the above view of the High  Court has contended that the resolution of 13.2.1967 was passed by way of a compromise between the parties, and acting upon the same  the respondent withdrew his suit which he had  earlier filed  in  the civil court, and,  therefore,  the  Municipal Council cannot be permitted to wriggle out of the situation. He  also relied upon an affidavit which has been  filed  re- cently  and suggested that if the present circumstances  are taken  into consideration the conclusion would be  that  the disputed  land is not required either for widening the  road or  for any other public purpose, and the  authorities  have been acting mala fide at the behest of the respondents No. 4 and 5. So far the 1970 Resolution is concerned, it is  urged that the same should be completely ignored and the Municipal Council should not be allowed to bypass the judgment of  the High  Court  in  the earlier case. Mr.  Patil,  the  learned counsel for the appellant, has reiterated the stand taken in the High Court that the judgment Ext. ’A’ did not decide any issue,  and cannot be interpreted as a direction  commanding the Municipal Council to allow the proposed construction. He said that at the present stage it is not possible to finally decide  the  question as to whether the  objections  to  the proposed scheme raised by the respondent have any  substance or not. They were invited by 1970 Resolution to place  their case and to present their point of view before the Municipal Council.  It  is stated on behalf of the  Municipal  Council that the plots in question are urgently needed for providing parking space for vehicles.     5. Having regard to the sequence of events in this case, we  are unable to accept the contention that the  Resolution dated  13.2.1967  was  the result of  a  binding  compromise between the parties. The fact that the respondent has  with- drawn his suit for damages could not by itself indicate that the  Municipality  was  bound by the  said  Resolution.  The Municipality  was  equally answerable  to  State  Government which  restrained  the respondent from proceeding  with  the construction and appointed a high power Committee to go into the entire matter. The Committee gave a report stating  that the land in question would be needed for the proper circula- tion of traffic. Equally we find that there is no scope  for application of the principles of res judicata. We agree with the appellants that by the judgment Ext. ’A’ the High  Court did not finally decide the controversy and it remained  open for  the Municipal Council to decide, by  reconsidering  and disposing of the application of the respondent in accordance with law. 6. Besides, the question as to whether a particular Scheme 538 framed in exercise of statutory provisions is in the  public interest  or not has to be determined according to the  need

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of  the  time  and a final decision for all  times  to  come cannot  be taken. A particular scheme may serve  the  public purpose  at a given point of time but due to change of  cir- cumstances  it may become essential to modify or  substitute it  by another scheme. The requirements of the community  do not  remain  static;  they indeed, go on  varying  with  the evolving process of social life. Accordingly, there must  be creative response from the public authority, and the  public scheme  must  be varied to meet the changing  needs  of  the public.  At the best for the respondent, it can  be  assumed that  in 1967 when the resolution in his favour was  passed, the acquisition of the land was not so urgently essential so as  to  call for his dispossession. But for that  reason  it cannot  be  held  that the plots became  immune  from  being utilised for any other public purpose for ever. The State or a  body like the Municipal Council entrusted with  a  public duty to look after the requirements of the community has  to assess  the situation from time to time and  take  necessary decision periodically. We, therefore, hold that the  Resolu- tion dated 13.2.1967 was not binding on the Municipal  Coun- cil so as to disable it to take a different decision later.     7. So far the plea of mala fides is concerned, the  High Court  has not recorded any finding; and we do not find  any material to support the respondent’s allegation.     8.  For the reasons mentioned above, the impugned  judg- ment of the High Court is set aside and the writ petition of the  respondent  filed in the High Court is  dismissed.  The respondent  may even now avail the opportunity given by  the 1970  Resolution, and press his objections promptly  and  in that  case the Municipal Council may dispose of the same  in accordance with law. The appeal is accordingly allowed,  but the parties shall bear their own costs. P.S.S.                                                Appeal allowed. 539