1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION NO. 148 OF 2009 Viren Raichand Shah ..Petitioner. versus Maharashtra State Road Development Corporation Ltd. And Ors. ..Respondents Mr. M.M. Vashi with Mr. Vinod N. Solanki for the Petitioner. Mr. A.V. Joshi i/b Mr. Vishal Ghosalkar for Respondent No.1. Ms Kiran Bagalia for Respondent No.1. Mr. D.A. Nalawade, GP for Respondent No.3 Mrs. Shobha Ajitkumar for Respondent No.4, CORAM : F.I. REBELLO & A. A. SAYED , JJ. DATED : 31ST MARCH, 2010. P.C. 1 The petitioner herein has raised an issue of a vital public importance in the matter of use of pubic resources for construction of sky walks in the Mumbai Metropolitan Region. The learned Counsel for the petitioner draws our attention to sections 12 and 17 of the Mumbai Metropolitan Development Authority, Act, 1974 as also to section 14 of the MRTP Act 1966. It is their submission that in matters pertaining to sky walks that ought to have been so included in the Regional Development Plan. In absence of that it was not open to MMRDA-respondent No.2 to construct the said sky 2 walks. 2 A reply has been filed by respondent no.1. On behalf of respondent no. 2 objection has been raised by the leaned Counsel to the maintainability of the very petition itself on the ground that the issue of construction of sky walks by respondent no.2 is the subject matter of two earlier petitions decided by this Court being Writ Petition No. 158 of 2009 decided on 30th January, 2009 and Writ Petition No. 1449 of 2009 decided on 26th November, 2009. It is therefore, submitted that the very controversy having been in issue in the earlier petition is barred by the principles of resjudicata and consequently, this court could not interfere in the exercise of its extra ordinary jurisdiction. 3 It is no doubt true that the Supreme court has held that the principle of Resjudicata would also be be applicable in public interest litigation depending on issues which arises in those matters. 4 In the present petition, the issue of the policy is pertaining to construction of sky walks was in issue and was considered in both the petitions. In Writ Petition No.158 of 2009, this Court observed that we do not see any reason to interfere in such matters which are primarily policy matters. In Writ Petition 1449/2009 this Court held that this being the policy matter, this Court is not inclined to interfere in the matter. 3 4 The submission on behalf of the Counsel for the petitioner is that the issues raised by him were neither considered nor dealt with by the earlier two benches and in these circumstances, they could not be estopped from raising the issues as now raised. In our opinion, on a reading of section 17 and 12 of the MMRDA and section 14 of the MRTP Act, we do not find that there is any breach of the said provisions or any illegality committed. Those sky walks are coming on the same road, which is reserved or existing road and as such is an additional facility provided on the same road for the pedestrians. 5 However, we do find that there is some merit in the contentions raised on behalf of the petitioner that the public resources should not be misutilized. The authorities who are guardians of the public purse have to ensure that the monies are used for the public good and that the public at large would be benefited from such expenditure. In that context the MMRDA must bear that in mind that the resources be utilized for construction of sky walks for the benefit of the public. MMRDA, from the expenses of the Construction of sky walks should do a survey of the use of the sky walks by pedestrians and whether new sky walks are justified. That would be within their exercise of power. 6 Considering the fact that the issue of policy was earlier considered by 4 this Court, we are not inclined to exercise our extra ordinary jurisdiction. For the observations as aforementioned, the petition stands disposed of. Sd/- (F.I. REBELLO J.) Sd/- ( A. A. SAYED, J.)