Judgment

SHARMA, J.- This appeal by special leave is directed against the decision of the Bombay High Court on a writ petition filed by respondent 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.

2. 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 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 reserved 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started construction work and when prevented from so doing, filed a writ application in the High Court which was later withdrawn. Subsequently he filed a suit in the civil court inter alia claiming damages. Soon there-after 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 The suit was thereafter withdrawn.

3. The aforesaid development came to the notice of the State Government, and the Municipal Council was asked to explain the circumstances, and the 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 The aforesaid resolution was thereafter rescinded by the Municipal Council, and the respondent filed a fresh application for permission to construct, which was kept in abeyance by the Council on the ground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. 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 Committee submitted its report and a fresh resolution was passed on June 29, 1970, a copy whereof is Ex. O, inter alia, deciding to re-plan the scheme with respect to the area in question, in accordance with the recommendation of the Committee. Consequently the matter was reopened 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 Ex. A dated April 18, 1972. Without going into the merits of the matter, the High Court directed that: "The petitioners application to respondent 1 dated July 18, 1968, for construction permission shall be disposed of by respondent 1 in accordance with law". The Municipal Council by its order dated November 21, 1972 rejected the respondents application on the basis of the resolution dated June 29, 1970, Ex. O, 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, Ex. A in S.C.A. No. 993 of 1969 which was binding on the parties by reason of rule or res judicata. 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 the 1970 Resolution, Ex.O, was not even brought to the notice of the court by any party, and the High Court without considering the merits of the respondents prayer merely directed the Municipal Counc