STATE OF MAHARASHTRAversusMAHADEO DEOMAN RAI ALIAS KALAL AND OTHERS

                           STATE OF MAHARASHTRA
                                                                                     A
                                            v.
        MAHADEO DEOMAN RAI ALIAS KALAL AND OTHERS

                                   APRIL 19, 1990

          [K. JAGANNATHA SHETTY, LAUT MOHAN SHARMA                                   B
                      AND P.B. SAWANT, JJ.)

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

             The respondent was permitted by the Municipal Council to
       construct a building on the disputed land. Later, the site was reserved
                                                                                     c
       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 damages. The Municipal Council, how-
       ever, by a resolution passed on February 13, 1967 decided to accord
       permission. The suit was thereafter withdrawn. The State Government           D
       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       aforesaid resolution was rescinded by the Municipal Council.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 petition before the High
       Court in 1969. During the pendency of the case, the Municipal Council         E
       passed a resolution on June 29, 1970 deciding to replan the scheme with
       respect to the area in qnestion 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.       F
>-     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      G
       was binding ·on the. parties 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 con-
       structive res judicata.

             In the appeal by special leave it was contended for the appellants      H

                                           533
    534                  SUPREME COURT REPORTS             [1990] 2 S.C.R.

A that the previous judgment contd not be interpreted as a direction
  commanding the Municipal Council to allow the 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,
B 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: J. The resolution dated February 13, 1967 was not bind-
C   ing 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 respondenf, it could be assumed that when
D the said resolution in bis favour was pa$S'ed 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 bad become immune from
  being utilised for any other pu!Jlic purpose for ever. [538B-C]

        2.2 The question as to whether a particular scheme framed in
E 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 alt
  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 another scheme. The
  requirements of the community do not remain static, they indeed, go on
F 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 situation
  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
G ~ould be needed for the proper circulation of traffic. [537H; 538; 537F-GI

          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 reconsidering and disposing of the application of
H   the respondent in accordance with law. [537G-H]
          STATE OF MAHARASHTRA v. M.D. RA! {SHARMA, J.]               535

       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 870                    A
 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. PatilandA.S. BhasmefortheAppellant.                   B

      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
                                                                             c
      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 · D
writ case.

      2. In 1955 the respondent purchased the land in question from
one Patwardhan and in 1957 obtained pennission to construct a build-
ing thereon. However, no construction was made and in March, 1962,
a notification under s. 4 of the Land Acquisition Act was issued for the E
purpose of establishing a Tonga Stand. The respondent made a fresh ·
application for permission to make construction. He was told not to do
so on the ground that the land was reserve<! for road widening under a
Town Planning Scheme which was being implemented. He however
started construction work and when prevented· from so doing, filed a
writ application in the High Court which was later withdrawn. Subse- F
quently 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 thereaftet withdrawn.

        3. The aforesaid development came to the notice of the State         G
, 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 resolution 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.       H
    536                    SUPREME COURT REPORTS              [1990] 2 S.C.R.

    Another writ petition being Special Civjl Application No. 993 of 1969
A
    was thereupon filed by the respondent in the High Court in 1969.
    While this case was pending, the Committee submitted its report and a           _..,-.   ~



    fresh resolution was passed on 29 .6.1970, a copy whereof is Ext. 'O',
    inter alia, deciding to re-plan the Scheme with respect to the area in
    question, in accordance with the recommendation of the Committee.
B   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              --I
    matter, the High Court directed that; "The petitioner's applicat10n to
c   Respondent No. 1 dated July 18, 1968, for construction permission
    shall be disposed of by Respondent No. l in accordance with law".
    The Municipal Council by its order dated the 21st of November, 1972
    rejected the respondent's application on the basis of the resolution
                                                                                   x
    dated the 29th of June, 1970, Ext. 'O', stating that the plots in question
D   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              ,.,.;,.
E
    the parties by reason of rule of res judicata. It was contended on behalf
    of the State of Maharashtra and the Municipal Council that the plea of
     res _iudicata was not available mainly for the reason that no final deci-
    sion was arrived at in the earlier case. It w_as_pointed out that_t!i<l 1970
     Resolution, Ext. 'O', was not even brought to the notice of the court
F    by any party, and the High Court without ~nsidering the merits of the             ~
     respondent's prayer merely directed the j\\unicipal Council to recon-
     sider his application dated the 18th of July;,. 1968 and dispose it of in     A
     accordance with law. The High Court was not impressed by this reply
     and allowed the writ application on the basis of the principle of con-
     structive res judicata. It has been observed,that it was for the State or
G    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 entertained. 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 interpreted as
     issuing a peremptory direction to accord permission for construction
H    without further consideration of the pray~r on merits.
          STATE OF MAHARASHTRA v. M.D. RAJ [SHARMA, J.)                537

       4. Mr. V.M. Tarkunde, the learned counsel for the respondent,
while supporting the above view of the High Court has contended that          A
the resolution of 13.2.1967 was passed by way of a compromise bet-
ween 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. recently and           B
suggested that if the present circumstances are taken into considera-
tion 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 ma/a 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              c
Court in the earlier case. Mr. Patil, the learned counsel for the appel-
lant, has reiterated the stand taken in the High Court that the judg-
ment 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         D
finally decide the question as to whether the objections to the pro-
posed scheme raised by the respondent have any substance or not.
They were invited by 1970 Resolution to place their case and to pre-
sent 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.                              E
       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 withdrawn his suit for damages could not by
itself indicate that the Municipality was bound by the said Resolution.       F
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 circulation of traffic. Equally we find that there is
no scope for application of the principles of res judicata. We agree with     G
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              H
    538                   SUPREME COURT REPORTS            [1990] 2 S.C.R.

A 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. A particular 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
  another scheme. The requirements of the community do not remain
B 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 acquisi-
  tion of the land was not so urgently essential so as to call for his
c 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 Resolution dated 13.2.1967
D was not binding on the Municipal Council so as to disable it to take a
  different decision later.

          7. So far the plea of ma/a /ides is concerned, the High Court has
    not recorded any finding; and we do not find any material to support
    the respondent's allegation.
E
          8. For the reasons mentioned above, the impugned judgment 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
F   same in accordance with law. The appeal is accordingly allowed, but
    the parties shall bear their own costs.

    P.S.S.                                                  Appeal allowed .




                                         •