TMI Blog1985 (11) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EST 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 ₹ 45,00,000 inclusive of the cost of the land and the return from the 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 ₹ 50,00,000 on the construction of two buildings was made, the BEST would get a return to the tune of ₹ 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 need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 39.0 lacs in addition to the revenue of ₹ 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 ₹ 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 ₹ 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 ₹ 2 per sq.ft. The user was to be such as was allowed under the development control rules. The builder was to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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. (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 be permitted to be used for any purpose other than residential, provided that professional offices of doctors, lawyers, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 out of whom 12 builders purchased the tender forms on payment of ₹ 1000 each. In view of these circumstances it cannot be said that the whole thing was done in a secretive manner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 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 loca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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