ivil Appeal No 870 of 1975
From the Judgment and Order dated 2411975 of the Bombay High Court in Special Civil Application No 963 of 1973
VV Vaze VN Patil and AS Bhasme for the Appellant
VM Tarkunde VN Ganpule Ms Punam Kumari Suman B Rastogi Ms J Wad and AM 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
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 section 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started construction work and when pre vented from so doing filed a writ application in the High Court which was later withdrawn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The suit was thereafter withdrawn
The aforesaid development came to the notice of the State Government and the Municipal Council was asked to explain the circumstances and a highpower 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The aforesaid reso lution was thereafter rescinded by the Municipal Council and the respondent filed a fresh application for permission to construct which was kept in abeyance by the Council on the ground that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 2961970 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 1841972
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 SCA 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 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 VM Tarkunde the learned counsel for the re spondent while supporting the above view of the High Court has contended that the resolution of 1321967 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
Having regard to the sequence of events in this case we are unable to accept the contention that the Resolution dated 1321967 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
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 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 1321967 was not binding on the Municipal Coun cil so as to disable it to take a different decision later
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
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
PSS Appeal allowed


Summary:
The respondent claiming to be the beneficiary to the estate of deceased M  under a will executed by her filed an application in the Sub Court for Letters of Administra tion
The petitioner lodged a caveat and opposed the probate of the will on the ground that the will propounded by the respondent was a fictitious one intended to disentitle Z  daughter of M  from claiming interest in the estate of her mother M 
The petitioner based her caveatable interest on the basis of membership of the Trust a gift deed and a will executed by Z  which was subsequently probated in her favour
The Subordinate Judge struck off the petitioner s caveat on the ground that she has no caveatable interest
The petitioner filed a Civil Revision Petition in the High Court and a Single Judge of the High Court confirmed the order of the Subordinate Judge
In the special leave to this Court it was contended on behalf of the petitioner that the courts below have erred i in holding that she has no caveatable interest and in striking off her caveat ii that Z s will in her favour which was subsequently probated established her interest in the estate on the date of entering the caveat
487 Dismissing the petition this Court HELD 1
By granting a probate the Court does not decide the disputes to the title
A probate granted can be revoked under Section 263 of the 
492C 11 In the instant case the findings regarding the caveatable interest of the petitioner have a limited effect and are relevant only to the extent of granting of probate
But they cannot deprive her right to invoke section 263 of the Act
492D 2
The order of the Trial Court shows that admittedly neither the original nor a copy of the will said to have been executed by Z  was filed
Likewise the registered gift deed or a copy thereof was not filed
It is also evi dent that the Trust has come to an end and the same was not in existence
The Trial Court has considered both the docu mentary and oral evidence in this regard and has rightly held that the petitioner has no existing benefit from the trust
Accordingly it cannot be held that the petitioner has caveatable interest
490F G 491C 3
In the instant case it is not known whether the citations were issued to all the persons interested before the grant of the probate
The probate was also granted when the special leave petition was pending in this Court yet the respondent had no notice about this probate proceedings
Under these circumstances it is not expedient to acknowledge this probate proceeding and re open the matter
491 G H Nabin Chandra Guha vs Nibaren Chandra Biswas and Ors AIR 1932 Cal
734 Gourishankar Chattoraj vs Smt
Satyabati Debi AIR 1931 Cal
470 Shanti Devi Aggarwala vs Kusum Kumari Sarkar  Ors and Narayan Sah vs Smt
Devaki AIR 1978 Patna 220 referred to