Case: Sunil Sureshchandra Agarwal Vs. State of Maharashtra and ors

and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force. (emphasis supplied by us) 18. We, therefore, have no hesitation in holding that the challenge to the tender process based on new documents and grounds is barred by the principle of constructive res judicata. 19. The decision of the Apex Court in National Confederation of Officers Association of Central Public Sector Enterprises (supra) was rendered in completely different fact situation. In paragraph 34, Their Lordships have observed that while determining the applicability of the principle of res judicata under section 11 of the Code of Civil Procedure 1908, the Court must be conscious that grave issues of public interest are not lost in the woods merely because a petition was initially filed and dismissed, without a substantial adjudication on merits. It is observed that there is a trend of poorly pleaded public interest litigations being filed instantly following a disclosure in the media, with a conscious intention to obtain a dismissal from the Court and preclude genuine litigants from approaching the Court in public interest. The Court went on to hold that this Court must be alive to the contemporary reality of ambush Public Interest Litigations and interpret the principles of res judicata or constructive res judicata in a manner which does not debar access to justice. The jurisdiction under Article 32 is a fundamental right in and of itself. Noticeably, here, there has been a previous adjudication on merits on a challenge being mounted by the self-same petitioner and the earlier PIL petition cannot be labelled as an ambush Public Interest Litigation. Even otherwise, the Honble Supreme Court is seized of the challenge to the judgment and order on the petitioners earlier PIL petition. We, thus, are of the clear opinion that the decision in National Confederation of Officers Association of Central Public Sector Enterprises (supra) would not be of any assistance to the petitioner to hold that this PIL petition should be entertained. 20. Insofar as the reliefs prayed for in prayer clauses (a) to (e) are concerned, the same appear to be challenges based on alleged violation of environmental laws. Prayer clauses (f) to (g) are reliefs consequential to the decision on prayer clauses (a) to (e). This Court in Vanashakti and Anr. Vs. Union of India and ors. (PIL No.28 of 2021 Bombay High Court decided on October 8, 2021) in paragraphs 28, 31 and 32 held thus: - 28. The Tribunals jurisdiction to deal with environmental issues is so wide and expansive that literally speaking, everything under the sun raising substantial question relating to environment can be dealt with by it. It would matter little that in its pursuit to further the objects for which the Tribunal has been brought into existence as well as to ensure protection of environment and conservation of forests and other natural resources including enforcement of any legal right relating to environment, any other enactment is required to be considered. So long as the basic question remains the same, i.e., the Tribunal is either approached or is duty bound to secure proper implementation of the enactments specified in Schedule I of the NGT Act and a substantial question in relation thereto arises, and the decision of the Tribunal on such question would beneficially impact the environment, merely because in the process of decision making the Tribunal may be required to consider provisions of any other enactment would not denude it of its fundamental and predominant task of taking decisions that would advance the object of the Schedule I enactments as also to secure the ends of justice in any particular case. We may refer in this connection to rule 24 of the National Green Tribunal (Practice and Procedure) Rules, 2011 framed by the Central Government. 31. We are also minded to observe that no Court ought to interfere in respect of matters over which the Tribunal has jurisdiction, or else the very purpose for enactment of the NGT Act would stand defeated. The Tribunal, having regard to its constitution, would be better equipped to deal with all points of law and facts, which could be intricate, with the expert assistance that is available at its level. 32. The discussion must end by quoting paragraph 40 of the decision of the Supreme Court in Bhopal Gas Peedith Mahila Udyog Sangathan vs. Union of India, reported in (2012) 8 SCC 326, reading as follows: 40. Keeping in view the provisions and scheme of the National Green Tribunal Act, 2010 (for short the NGT Act) particularly Sections 14, 29, 30 and 38(5), it can safely be concluded that the environmental issues and matters covered under the NGT Act, Schedule I should be instituted and litigated before the National Green Tribunal (for short NGT). Such approach may be necessary to avoid likelihood of conflict of orders between the High Courts and NGT. Thus, in unambiguous terms, we direct that all the matters instituted after coming into force of the NGT Act and which are covered under the provisions of the NGT Act and/or in Schedule I to the NGT Act shall stand transferred and can be instituted only before NGT. This will help in rendering expeditious and specialised justice in the field of environment to all concerned. (emphasis supplied in original) 21. The decision of this Court in Vanashakti (supra) squarely applies to the present case.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. The project in question was initiated by CIDCO by inviting tenders in what is termed as Request for Proposal on October 18, 2002. One of the unsuccessful bidders, viz. Makhija Developers Private Limited challenged the award of tender in favour of Mistry Construction Company Private Limited. This Court by a judgment and order dated January 28, 2010 allowed the petition and held the entire tender process as vitiated and the letter of allotment dated March 12 2009 issued by CIDCO in favour of Mistry Construction Company Private Limited was declared illegal, and void ab- initio. CIDCO was directed to invite fresh tenders for the project.11. We are afraid that it is not possible for us to accept this contention of learned counsel for the petitioner. In this context, it would be apposite to reproduce the order dated February 25, 2014 passed by the Honble Supreme Court, which reads thus: -M/s Makhija Developers Pvt. Ltd.-respondent No. 1 herein filed a writ petition before the High Court inter alia impugning the decision of City and Industrial Development Corporation (CIDCO for short) allotting land to the appellant-Mistry Construction Co. Pvt. Ltd. for development of 18 Holes International Standard Golf Course and Country Club and to invite fresh bids with liberty to the writ petitioner to participate in that. The High Court by the impugned Order quashed the allotment made in favour of M/s Mistry Construction Co. Pvt. Ltd.-respondent No. 4 in the said writ petition and directed the CIDCO to invite fresh bids with liberty to the writ petitioner and other respondents to participate in the same.M/s Mistry Constructions Co. Pvt. Ltd. assails this order in the present appeals with the leave of the Court.When the matter is taken up, Mr. Senthil Jagadeesan, learned counsel appearing on behalf of the writ petitioner prays for withdrawal of the writ petition unconditionally. It is not opposed either by the appellant herein or the other respondents.We permit the writ petitioner to withdraw the writ petition.In view of the aforesaid, the impugned order passed by the High Court is rendered non est and, therefore, set aside on that ground alone. As the Project is old and the appellant has spent huge amount, we direct the CIDCO to provide necessary assistance to the appellant to complete the Project without unnecessary delay.In the light of the above, these civil appeals are allowed, the impugned order is set aside with the observation aforesaid but without any order as to costs.12. A reading of the order dated February 25, 2014 reveals that not only did Their Lordships permit withdrawal of the writ petition filed in this Court, but after recording briefly the controversy involved, observed that the order passed by the High Court is rendered non-est and therefore was set aside. It further observed that as the project is old, the CIDCO was directed to provide necessary assistance to Mistry Construction Company Private Limited to complete the project without unnecessary delay. All the material facts were before the Honble Supreme Court. In these circumstances, it is not possible for this Court to accept the contention of the petitioner that the order has been obtained by practicing fraud. This order was passed as far back as on February 25, 2014 and it is now that the petitioner wants us to hold that the order dated February 25, 2014 has been obtained by practicing fraud. This contention cannot be taken up for consideration in this PIL petition. It is for the petitioner to avail of any other remedy permissible in law to canvas his case based on fraud.14. We have gone through the decision dated November 1, 2018 rendered by this Court in PIL No.58 of 2018. Paragraphs 2, 3 and 4 of the said decision substantially cover the matters raised in this PIL petition. Even the prayer for taking action, both civil and criminal, against Mistry Construction Company Private Limited and the officials of CIDCO was subject matter of consideration in the said PIL. Paragraph 2 of the judgment and order refers to various pockets on which the development activities are to be carried on. The project was challenged on the ground that it is violative of environmental laws. The challenge to the decision rendered by this Court in PIL No. 58 of 2018 is pending consideration in the SLP filed by Mistry Construction Company Private Limited and CIDCO before the Honble Supreme Court.15. The present PIL is filed mainly on the ground that the documentary evidence which was available with the petitioner and which came in his possession recently entitles the petitioner to challenge the actions of CIDCO on grounds which are different than those urged in PIL No. 58 of 2018. We are inclined to uphold the preliminary objection raised by learned senior advocate for Mistry Construction Company Private Limited that the present PIL petition is not maintainable on salutary principles traceable in the Code of Civil Procedure. Prayer clause (a) of the present petition relates to a challenge to the project as being violative of CRZ; prayer clause (b) relatable to a challenge to the tender process which commenced pursuant to inviting RFP; prayer clauses (c), (d) and (e) relate to challenges to the various sanctions/permissions granted in favour of Mistry Construction Company Private Limited as violative of the environmental laws; prayer clauses (f) to (g) seek initiation of civil and criminal actions against the project proponent, i.e,., Mistry Construction Company Private Limited, and the statutory authorities involved who granted various permissions. Not only the issues involved in the present PIL petition were directly and substantially involved in PIL No.58 of 2018 and dealt with by this Court by a detailed judgment and order, we find that PIL No.58 of 2018 was filed by the present petitioner himself. The judgment and order passed by this Court in PIL No.58 of 2018 reveals that there has been a substantial adjudication of the matter on merits. Merely because, some additional documents are now in possession of the petitioner would not give cause to the petitioner to raise the very same challenge in PIL No. 58 of 2018 by filing a fresh PIL in the present form. It is for the petitioner to adopt such remedies as are permissible on the basis of additional materials/documents before the appropriate forum. Additionally, even the judgment and order passed in PIL No. 58 of 2018 is under challenge before the Honble Supreme Court; and, on this count too, we ought to be loath to entertain the present PIL petition. On the basis of certain documents which have later come in his possession, the petitioner is not entitled to raise the same challenge as in PIL No. 58 of 2018 but on different grounds by way of the present PIL petition. From the submission of learned counsel for the petitioner and upon reference to the new documents, we are satisfied that the petitioner at the highest is trying to make out the case of discovery of new and important matter or evidence which was not within his knowledge or could not be produced by him at the time when the judgment and order was passed in PIL No. 58 of 2018. In our opinion, remedy of the petitioner is elsewhere but certainly not by way of the present PIL petition. It is not possible for us to conclude that failure to produce the documents which the petitioner alleges to have recently come in possession of, would tantamount to practicing fraud on the Court. The decision of the Honble Supreme Court in S.P Chengalvaraya Naidu (supra) will not have any application in the given set of facts and circumstances emerging from this PIL petition, in view of the above.16. So far as the challenge to the tender process is concerned, we find that the tender process was subject matter of challenge before this Court in Writ Petition No. 539 of 2005 and thereafter before the Honble Supreme Court which has now attained finality in view of the order passed by such Court on February 25, 2014.17. Learned senior advocate for Mistry Construction Company Private Limited is justified in placing reliance on the decision of the Honble Supreme Court in the case of Forward Construction Co. and others vs. Prabhat Mandal (Regd.) Andheri and others (1986) 1 SCC 100 . We make a profitable reference to paragraphs 19 and 20 of the said decision where Their Lordships held thus: -19. 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 Rule 4(a)(i) of the Development Control Rules was not in issue; and ***.20. 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 Section 11 CPC 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 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 within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force.(emphasis supplied by us)18. We, therefore, have no hesitation in holding that the challenge to the tender process based on new documents and grounds is barred by the principle of constructive res judicata.19. The decision of the Apex Court in National Confederation of Officers Association of Central Public Sector Enterprises (supra) was rendered in completely different fact situation. In paragraph 34, Their Lordships have observed that while determining the applicability of the principle of res judicata under section 11 of the Code of Civil Procedure 1908, the Court must be conscious that grave issues of public interest are not lost in the woods merely because a petition was initially filed and dismissed, without a substantial adjudication on merits. It is observed that there is a trend of poorly pleaded public interest litigations being filed instantly following a disclosure in the media, with a conscious intention to obtain a dismissal from the Court and preclude genuine litigants from approaching the Court in public interest. The Court went on to hold that this Court must be alive to the contemporary reality of ambush Public Interest Litigations and interpret the principles of res judicata or constructive res judicata in a manner which does not debar access to justice. The jurisdiction under Article 32 is a fundamental right in and of itself. Noticeably, here, there has been a previous adjudication on merits on a challenge being mounted by the self-same petitioner and the earlier PIL petition cannot be labelled as an ambush Public Interest Litigation. Even otherwise, the Honble Supreme Court is seized of the challenge to the judgment and order on the petitioners earlier PIL petition. We, thus, are of the clear opinion that the decision in National Confederation of Officers Association of Central Public Sector Enterprises (supra) would not be of any assistance to the petitioner to hold that this PIL petition should be entertained.20. Insofar as the reliefs prayed for in prayer clauses (a) to (e) are concerned, the same appear to be challenges based on alleged violation of environmental laws. Prayer clauses (f) to (g) are reliefs consequential to the decision on prayer clauses (a) to (e). This Court in Vanashakti and Anr. Vs. Union of India and ors. (PIL No.28 of 2021 Bombay High Court decided on October 8, 2021) in paragraphs 28, 31 and 32 held thus: -28. The Tribunals jurisdiction to deal with environmental issues is so wide and expansive that literally speaking, everything under the sun raising substantial question relating to environment can be dealt with by it. It would matter little that in its pursuit to further the objects for which the Tribunal has been brought into existence as well as to ensure protection of environment and conservation of forests and other natural resources including enforcement of any legal right relating to environment, any other enactment is required to be considered. So long as the basic question remains the same, i.e., the Tribunal is either approached or is duty bound to secure proper implementation of the enactments specified in Schedule I of the NGT Act and a substantial question in relation thereto arises, and the decision of the Tribunal on such question would beneficially impact the environment, merely because in the process of decision making the Tribunal may be required to consider provisions of any other enactment would not denude it of its fundamental and predominant task of taking decisions that would advance the object of the Schedule I enactments as also to secure the ends of justice in any particular case. We may refer in this connection to rule 24 of the National Green Tribunal (Practice and Procedure) Rules, 2011 framed by the Central Government.31. We are also minded to observe that no Court ought to interfere in respect of matters over which the Tribunal has jurisdiction, or else the very purpose for enactment of the NGT Act would stand defeated. The Tribunal, having regard to its constitution, would be better equipped to deal with all points of law and facts, which could be intricate, with the expert assistance that is available at its level.32. The discussion must end by quoting paragraph 40 of the decision of the Supreme Court in Bhopal Gas Peedith Mahila Udyog Sangathan vs. Union of India, reported in (2012) 8 SCC 326,  reading as follows:40. Keeping in view the provisions and scheme of the National Green Tribunal Act, 2010 (for short the NGT Act) particularly Sections 14, 29, 30 and 38(5), it can safely be concluded that the environmental issues and matters covered under the NGT Act, Schedule I should be instituted and litigated before the National Green Tribunal (for short NGT). Such approach may be necessary to avoid likelihood of conflict of orders between the High Courts and NGT. Thus, in unambiguous terms, we direct that all the matters instituted after coming into force of the NGT Act and which are covered under the provisions of the NGT Act and/or in Schedule I to the NGT Act shall stand transferred and can be instituted only before NGT. This will help in rendering expeditious and specialised justice in the field of environment to all concerned.(emphasis supplied in original)21. The decision of this Court in Vanashakti (supra) squarely applies to the present case.