Forward Construction Co. v. Prabhat Mandal
Supreme Court of India, 26 November 1985, 3 judges, 1986 AIR 391, 1985 SCR Supl. (3) 766, 1986 SCC (1) 100
Section 11 CPC, through Explanation VI, applies to public interest litigation, but only where the earlier litigation was bona fide; on the merits, combining a bus depot with commercial buildings was not a change of user, and the appeals succeeded.
Facts
Final plot No. 14 in Andheri was reserved under the Bombay development plan for a BEST bus depot and acquired for that purpose. In 1982 the BEST Committee approved a scheme under which a builder would build two buildings including the bus depot, hand them over free of cost, pay a non-refundable premium, and nominate tenants for the commercial space. After newspaper advertisement and notice to 22 builders, Forward Construction Co.'s higher tender was accepted. A ratepayer, Thakkar, challenged the use of the plot under Article 226; the Single Judge dismissed the petition, finding he had been set up by a disgruntled builder, and the appeal failed. Prabhat Mandal and others then filed a similar petition. A Single Judge dismissed it summarily, but a Division Bench allowed it on the proviso to Building Regulation 3 and barred commercial use of the plot. All the contesting parties appealed.
Questions before the Court
- Was the second writ petition barred by res judicata under Section 11 CPC, read with Explanations IV and VI, because of the earlier public interest petition?
- Was the public property disposed of at a gross undervalue, in secret, for a purpose outside the Bombay Municipal Corporation Act, or with mala fides?
- Did the combined bus depot and commercial use amount to a 'change' of user requiring prior modification of the development plan under the proviso to Building Regulation 3?
What the Court held
- Under Explanation IV to Section 11, an adjudication is final as to every matter the parties might and ought to have litigated. The High Court was wrong to hold the earlier judgment inoperative merely because a ground in the second petition was absent from the first.
- Because of Explanation VI, Section 11 applies to public interest litigation, but only where the earlier litigation was bona fide and concerned a right held in common with others; the onus of proving want of bona fides is on the party seeking to avoid the decision.
- As the earlier petition had been found not bona fide, the present petition was not barred by Section 11. The High Court's conclusion was upheld on this reason alone.
- The tender was advertised and the highest offer accepted, so there was no secret sale at undervalue; no mala fides was shown; the plot remained substantially in use for the bus depot; and providing commercial accommodation in a commercial zone fell within the Corporation's purposes under the Act.
- 'Change' of user means making the use completely or substantially different. A bus depot combined with commercial use to raise income for a public purpose was not a change, so the proviso to Regulation 3 did not apply. The appeals were allowed and the Single Judge's dismissal restored.
Why it matters
The judgment holds that Section 11 CPC, through Explanation VI, applies to public interest litigation, so that a bona fide earlier public interest action binds all persons interested in the public right, while an earlier action that was not bona fide does not bar a fresh one. It also explains constructive res judicata under Explanation IV and gives 'change' of user its ordinary meaning of a complete or substantial alteration.
In the Court's words
Copied from the official judgment; each passage links to its page.
“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.”
“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.”
“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.”
Provisions interpreted
- Section 11, Explanations IV and VI, Code of Civil Procedure, 1908
- Building Regulation 3 (proviso), Town Planning Scheme Andheri No. I (2nd Variation)
- Rule 3, Development Control Rules for Greater Bombay
- Sections 61, 63(k) and 87, Bombay Municipal Corporation Act
Case and bench
- Parties
- Forward Construction Co. v. Prabhat Mandal (Regd.) Andheri
- Case
- Civil Appeal Nos. 2310-2311 of 1984 etc.
- Decided
- 26 November 1985
- Bench
- Misra, R.B., Pathak, R.S., Reddy, O. Chinnappa
- Opinions
- The Judgment of the Court was delivered by Misra, J. No separate opinion appears in the file.
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