Dr. Sanjay G. Khemuka vs The State Of Maharashtra And Ors.
2004 Latest Caselaw 286 Bom

JUDGMENT

D.D. Sinha, J.

1. Rule made returnable forthwith by consent of the parties. Heard learned counsel for the parties.

2. Dr. Sanjay G. Khemuka, Petitioner in Writ Petition No. 4278 of 2003, has filed the present writ petition challenging the Notice, dated 3rd October, 2003, issued by Respondent No. 3-Sub-Divisional Officer, requiring the Petitioner to stop the alleged unauthorized user of Apartment No. 005-A of Vinayak Apartments, Dhantoli, Nagpur, by discontinuing the X-ray Clinic.

3. Mr. Deshpande, the learned Senior Counsel, states that Dr. Sanjay has purchased the above mentioned apartment in the year 1989. The Development Engineer of Respondent No. 2-Corporation, by a communication, dated 12th December, 1989, granted consent certificate to the Petitioner to start X-ray Clinic in the above mentioned apartment. The petitioner, pursuant to the above consent certificate started the X-ray Clinic in the apartment in the year 1989 and since then till this date, Dr. Sanjay is running the said X-ray Clinic. Mr. Deshpande. the learned Senior Counsel, states that writ petition No. 1119 of 1996 as well as Writ Petition No. 1909 of 1997 were filed before this Court by Mr. Vinayak Wasudeo Updeo and Smt. Prabha Shrikrishna Ghule, both residents of Vinayak Apartments, Nagpur, against the City of Nagpur Corporation, Dr. Vinod Gandhi and two others as well as the present petitioner Dr. Sanjay and Respondent Nos. 1 and 2 in the present writ petition No. 4278 of 2003, and others, respectively. The prayers made by the petitioners in the said writ petitions were as follows :--

"(1) Issue a suitable writ, order or direction, directing the respondent No. 1 to take effective measures promptly so as to stop all commercial activities being carried out by the respondent Nos. 3 to 5 in Vinayak Apartment, Lokmat Square, Nagpur and do all things necessary for securing the health, hygiene, peace, tranquillity of the petitioners, and the residential owners of the Vinayak Apartment.

(2) Issue a suitable writ, order or direction interim directing the Corporation to take immediate measures to stop the commercial activities of the respondent Nos. 3 to 5 in Vinayak Apartments, during the pendency of the petition;

(3) Grant any other relief deemed fit."

Mr. Deshpande, the learned senior counsel, contended that writ petition Nos. 1119 of 1996 and 1909 of 1997 were vehemently opposed by Respondent No. 2 Nagpur Municipal Corporation, on the ground that the registrations granted by Respondent No. 2-Corporation to the Clinics, Nursing Homes, Pathology Laboratories, Hospitals etc. were proper and there was no breach of any provision of law. It is contended that since the petitioners in both the said writ petitions were same and the prayers were also identical, this Court had heard both the said Writ Petitions together and disposed of the same by a common judgment, dated 25th February, 2002. This Court, after taking into consideration the contentions canvassed by the respective parties to the said writ petitions, concluded that there was no breach of any Rule or provision of law. It is contended by the learned senior counsel Mr. Deshpande that though this Court has held that there was no breach of Rule or provision of law committed by the present petitioner Dr. Sanjay, however, since both the above referred writ petitions were considered in the wider perspective, the Division Bench had issued following directions in the judgment, dated 25th February, 2002, which are as follows :--

"(1) Examine the commencement of Nursing Homes, Clinics, Dispensaries, Hospitals, Laboratories etc., in the Dhantoli and Ramdaspeth area of Nagpur City and ensure that none of them is misusing permissions granted to them;

(2) That, all these establishments have a valid permission from the requisite authorities;

(3) that they maintain high standards of hygiene and scrupulously keep clean the locality in which they are situate. They be directed to take care that the dirty disposals and useless material thrown by the said establishments and other institutions similarly situated are properly incarcerated or at least kept in covered receptacles and destroyed effectively at the earliest. Necessary steps may be required to be taken by these institutions by the Authorities like the Corporation."

4. The petitioners in writ petition No. 1119 of 1996 had filed a contempt petition bearing No. 140 of 2002 before this Court, contending that the above referred directions issued by this Court in the judgment, dated 25th February, 2002, delivered in writ petition No. 1119 of 1996, were not being followed by the Nagpur Municipal Corporation. The Municipal Commissioner of Respondent No. 2-Corporation and the present petitioner Dr. Sanjay were the Respondents in the above mentioned Contempt Petition. The Municipal Commissioner of Respondent No. 2-Corporation filed detailed submissions in the above mentioned Contempt Petition. It is contended that this Court considered the contentions canvassed by the respective parties to the contempt petition and vide judgment, dated 9th September. 2002, concluded that there was no wilful disobedience of the directions given by this Court in the judgment, dated 25th February, 2002 and, therefore, the contempt proceedings initiated against the present petitioner and the Commissioner, Municipal Corporation, Nagpur, were dropped.

5. It is contended by Mr. Deshpande, the learned Senior Counsel, that in Writ Petition No. 1909 of 1997, the petitioners had made a specific prayer that the activities carried out by the present petitioner Dr. Sanjay and other persons in Vinayak Apartments should be stopped, since the same are without requisite permission from the Corporation. The Division Bench of this Court did not grant that prayer and disposed of the said petition, vide Order, dated 25th February, 2002, and in the larger perspective, issued the above referred directions only. It is vehemently contended by the learned Senior Counsel that it is a settled law that the relief, which is claimed and not granted, is deemed to have been rejected. In order to substantiate this contention, reliance is placed on the judgment of the Apex Court reported in State Bank of India v. Ram Chandra Dubey (2001) 1 SCC 73 : AIR 2000 SC 3734.

6. Mr. Deshpande, the learned Senior Counsel, further contended that in the instant case, the doctrine of res judicata and principles of estoppel are attracted. It is submitted that though these two doctrines differ in some essential particulars, the rule of res judicata prevents parties to a judicial determination from litigating the same questions over again even though determination may even be demonstrably wrong. It is submitted that when the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action, nor can they litigate any issue, which was necessary for decision in the earlier litigation. Similarly, Mr. Deshpande, the learned Senior Counsel, contended that during the pendency of Writ Petition No. 1119 of 1996, the Division Bench of this Court had passed interim Order on 21st June, 1996. The said order was challenged by Dr. Vinod Durgadas Gandhi, the Respondent No. 2 in writ petition No. 1119 of 1996 : (Reported in 2002 (3) Mah LJ 210) before the Apex Court by filing a Special Leave Petition (Civil) No. 5616 of 1996. The Respondent No. 2 Corporation in the Present Writ Petition No. 4278 of 2003 had filed a Reply in the above mentioned Special Leave Petition, and in Paragraph 5 of the said Reply, the Corporation had stated thus :--

"This means that apart from the residential purpose, the apartment owner is entitled to have independent use of his apartment. It is further clear from Clause Eighteenth that the respective family unit shall not be rented or given on leave and licence or care taken basis by the apartment owners thereof for hotel purpose."

Mr. Deshpande, the learned Senior Counsel, therefore, states that even as per the stand of the Corporation taken in the affidavit filed before the Supreme Court, the prohibition is only with respect to the user of the premises for hotel purpose, and not for other purposes. In order to substantiate this contention, reliance is placed on the judgment of the Apex Court in Hope Plantations Ltd. v. Taluk Land Board, Peermade .

7. Mr. Deshpande, the learned Senior Counsel, contended that in view of the above settled legal position, the notices issued by Respondent No. 3-Sub-Divisional Officer on 3rd October, 2003 are illegal and unsustainable in the eye of law.

8. Mr. Deshpande, the learned Senior Counsel, submitted that the petitioner Dr. Sanjay was granted Consent Certificate by the Respondent No. 2-Corporation to run an X-ray Clinic in Vinayak Apartments. Dhantoli, Nagpur, in the year 1989 and. therefore, the submission of Respondent Nos. 2 and 3 that the petitioner was not granted permission to run an X-ray Clinic in Vinayak Apartments, Dhantoli, Nagpur, is per se not correct and the notice issued on that basis is illegal and needs to be quashed. It is submitted that the Draft Building Bye-laws and Development Control Rules provide for various building uses and occupancy and describe use of premises to be permitted in various zones. Appendix "M" to the above-mentioned Rules lays down land use, classification and uses permitted. It is contended that Clause M-1.1 of Appendix "M" provides different uses and accessory uses to the extent of 25% of the Principal Residential Use shall be permitted in the building or premises in the purely Residential Zone. It is submitted that the Petitioner Dr. Sanjay is carrying on the permitted user of the apartment as per Sub-clause (3) of Clause M-1.1. There is no provision other than this, which necessitates that the petitioner should seek a separate permission from the Building Department of Respondent No. 2-Corporatton. In fact, the petitioner Dr. Sanjay is granted permission by the Development Authority of Respondent No. 2-Corporation on 12th December, 1989 to start an X-ray Clinic in the Vinayak Apartment, Dhantoli.

9. The learned Senior Counsel Mr. Deshpande states that the notice issued by Respondent No. 3-Sub-Divisional Officer on 3rd October, 2003, states that the notice is issued in view of the directions given by the High Court in the judgment delivered in Writ Petition No. 1119 of 1996. There are no such directions given by this Court, which is evident from the facts placed hereinabove. It is contended that the Respondent No. 2-Corporation has specifically submitted before this Court in the Contempt Petition No. 140 of 2002 (referred to hereinabove) that the petitioner Dr. Sanjay is running X-ray Clinic legally and, therefore, there is no breach of any provision of law.

10. It is submitted by Mr. Deshpande that the petitioner moved Civil Application No. 6127 of 2002 in the disposed of Writ Petition No. 1119 of 1996 for clarification of the judgment, dated 25th February, 2002, and the Division Bench of this Court, vide Order, dated 6th October, 2003, disposed of the said Civil Application by observing thus:--

"We, accordingly, direct the Nagpur Municipal Corporation to complete the survey of the residential buildings being used for Dispensary, Nursing Home, Clinic, Hospitals, by the occupants without obtaining permission for change of permitted user within three months from today and submit the action taken report in the form of affidavit of the Assistant Director of Town Planning. Let the freshly instituted Public Interest Litigation, as noted above come up for further directions after three months. The Survey report shall be placed in the newly instituted P.I.L. Presently the Public Interest Litigation that is to be registered now shall contain:

(1) the copy of this Order;

(2) the copy of affidavit of Dr. Ramesh Ballal and Shri Prakash Bhukte; and

(3) the copy of Annexure 1 marked "X".

Before we close, we clarify that since the applicant appears in person insofar as her application being Civil Application No. 6127 of 2002 is concerned, that having been disposed of, she does not have to appear in the matter henceforth when freshly registered Public Interest Litigation come up for directions."

Mr. Deshpande, the learned Senior Counsel, contended that the Respondent-Corporation claims that impugned notice, dated 3rd October, 2003, is issued in view of the above referred directions given by the Division Bench of this Court in the Order, dated 6th October, 2003. It is contended that the order passed by the Division Bench is dated 6th October, 2003, whereas the Notice impugned is dated 3rd October, 2003 and therefore, the very basis of issuance of notice as claimed by Respondent Nos. 2 and 3-Corporation is completely misconceived and per se incorrect and the notice on this count alone may be quashed.

11. Mr. Manohar, learned Counsel appearing for the Indian Medical Association and others in Writ Petition No. 5108 of 2003, contended that the petitioners have approached this Court for challenging the notices issued by the Respondent-Corporation under Section 53(1) of the M.R.T.P.; Act, 1966, alleging that the use of the premises in residential, residential-cum-commercial and commercial buildings for running Clinics, Pathology Laboratories, Diagnostic Centres, Hospitals, Nursing Homes, Maternity Homes amounts to change of user and further alleging that in absence of permission for change of user, the said establishments are run in contravention of the M.R.T.P., Act.

12. Mr. Manohar, the learned Counsel, states that the petition is filed in the representative capacity by Petitioner No. 1-Association with Petitioner Nos. 2 and 5, who have received Notices under Section 51 of the Act to the effect that the activities carried on by them in the premises in question are unauthorised, since the same are without obtaining permission for change of user. It is submitted that the Petitioner No. 2 has a hospital in the Commercial Building --"Ashirvad Commercial Complex". Central Bazar Road, Ramdaspeth, Nagpur, and the Notice is issued by the Corporation is dated 3rd October, 2003. The Petitioner No. 3 is running a Hospital in Commercial-cum-Residential Building "Shriram Palace", Dhantoli, Nagpur. The Notice impugned is dated 2nd October, 2003. The Petitioner Nos. 4 and 5 have their hospitals in a residential building, independent bungalow. Plot No. 226, Dhantoli, Hampeyard Road, Nagpur. The impugned notice issued by the Corporation is dated 3rd October, 2003.

13. Mr. Manohar, the learned Counsel, states that though it is alleged in the notices that the notices are issued in view of the Orders, dated 8th September, 2003 and 6th October, 2003 passed by this Court in Civil Application No. 6127 of 2002 in Writ Petition No. 1119 of 1996, however, perusal of these Orders would demonstrate that there was no direction issued by this Court to the Nagpur Municipal Corporation for taking action of issuing notices. On the contrary, the Corporation had changed its earlier stand referred to hereinabove and alleged for the first time in the proceedings of the Civil Application that the action is required to be taken as the permission for change of user was not obtained by the petitioners. It is also necessary to emphasize that at no point of time, there was any controversy about the premises in Commercial Buildings. Even then, the Nagpur Municipal Corporation, in the most arbitrary fashion, has issued impugned notices to various owners of the premises located in the Commercial Buildings without any justification.

14. Mr. Manohar, learned Counsel, contended that the Respondent-Corporation was one of the contesting Respondents in Writ Petition No. 1119 of 1996 and Writ Petition No. 1909 of 1997. The Respondent-Corporation has filed various affidavits and replies in the Court in those proceedings and in the said affidavits, the Corporation had specifically taken a stand that the establishments of the petitioners are established and are being run without any violation of law and the Development Control Rules. The matter was decided before the Supreme Court and in those proceedings also, the Respondent-Corporation has taken a specific stand by filing an affidavit that the establishments are being run in compliance with the provisions of the Act and Rules and there was no violation of any of the provisions of the Act and Rules. It is contended that a similar specific stand was taken by the Respondent-Corporation in Contempt Petition No. 140 of 2002 referred to hereinabove and it is on the basis of this stand, this Court discharged the notice issued in the Contempt Petition and dropped the proceedings against the Corporation. It is submitted that the Respondent-Corporation, however, all of a sudden has changed its stand and issued notices to the petitioners under Section 53(1) of the M.R.T.P. Act for no apparent justification. It is contended that in view of the aforesaid consistent stand taken by the Corporation, it is not permissible for the Corporation to change the stand, since the Corporation is estopped from taking a contrary stand before this Court for no apparent reasons, and is bound by the order which is passed by this Court in the above referred Writ Petitions, Contempt Petition, on the basis of such stand. It is, therefore, submitted that it is not open for the Respondent-Corporation to issue notices under Section 53(1) of the M.R.T.P. Act.

15. Mr. Manohar, learned Counsel, states that it is an undisputed position on record that all the premises, in question, are situated in the buildings, which are constructed as per the building plans sanctioned by the Nagpur Municipal Corporation and Nagpur Improvement Trust, as the case may be. It is submitted that the Building Plans are validly sanctioned for (a) Commercial Buildings, (b) Commercial-cum-Residential Buildings, or (c) Residential Buildings. Hence, there is no quarrel on the question that all the buildings and the premises therein are constructed according to Building Plans sanctioned by the Nagpur Municipal Corporation or Nagpur Improvement Trust as per valid building permits and the construction is in accordance with the Building Bye-laws. Mr. Manohar, therefore, contended that the impugned Notices issued by the Corporation are invalid and bad in law in view of the doctrine of res judicata.

16. Mr. A. C. Dharmadhikari, learned Counsel for Petitioner in Writ Petition No. 5089 of 2003 and Mr. S. V. Akolkar, learned Counsel for Petitioners in Writ Petition No. 5109 of 2003 adopt the arguments advanced by Mr. K. H. Deshpande, learned Senior Counsel.

17. Mr. Kaptan, the learned Counsel, states that on 27th May, 1996, Writ Petition No. 1119 of 1996 was filed before this Court by V. W. Updeo and Smt. P. S. Ghule, both residents of Vinayak Apartments, alleging that the activities of the Petitioners in Writ Petition Nos. 4278 of 2003, 4969 of 2003 and 5109 of 2003 are commercial activities and hence the same are not permissible in the Residential Zone. On 25th February, 2002, the said Writ Petition was dismissed. However, while dismissing the Writ Petition, certain directions were issued to the Corporation. Contempt Petition No. 140 of 2002 was filed before this Court for contempt of Court by the Petitioners in Writ Petition No. 1119 of 1996 against the present Respondent-Corporation as well as other, which was dismissed on 9th September, 2002. On 4th October, 2002, the Petitioners in Writ Petition No. 1119 of 1996 moved an application for clarification of the judgment. On 8th September, 2003, this Court directed the Municipal Corporation to examine the issue from the point of view of change of user and file affidavit. It is contended by Mr. Kaptan that after examining the issue from that point of view, the Corporation issued impugned notices under Section 53 of the M.R.T.P. Act, which are the subject-matter of challenge in these petitions.

18. Mr. Kaptan, learned Counsel for the Corporation, lastly contended that the doctrine of res judicata or estoppel is not attracted in the present case. It is submitted that in the earlier Writ Petitions, referred to hereinabove, the Corporation has merely stated that the petitioners were holding premises for carrying on their activities and, therefore, it was legal for them to carry on such activities. It is further contended that initially Writ Petition No. 1119 of 1996 was filed, in which it was alleged that the activity of running of dispensaries, clinics, X-ray Clinics, hospitals, Maternity Homes etc., undertaken by the respondents-doctors in the said Writ Petition was not permissible in the Residential Zone, because it was a commercial activity. In the said Writ Petition, the reply, which was filed and the stand, which was taken in the said Writ Petition is in view of these facts and, therefore, similar stand was taken in the contempt proceedings. However, on 10th January, 2002, the petitioners in Writ Petition No. 1119 of 1996 filed Civil Application No. 6127 of 2002 and this Court directed the Respondent-Corporation to examine the issue from the point of view of change of user. This direction was given by this Court on 8th September, 2003 as well as vide Order, dated 6th October, 2003. In view of these orders, the action is initiated against the medical practitioners in Dhantoli, Ramdaspeth and Dharampeth localities by issuing impugned notices. It is contended that since the Corporation is acting under the directions of this Court, question of estoppel or res judicata does not arise. Similarly, some of the petitioners are not even parties to the earlier petitions and, therefore, as against them, the question of res judicata as well as estoppel does not arise. Mr. Kaptan, therefore, contended that the contentions canvassed by the counsel for the petitioners in this regard are bad in law. It is submitted that the action taken by the Respondent-Corporation is perfectly legal and the notices impugned are sustainable in law and, therefore, Writ Petitions are liable to be dismissed.

19. We have given our anxious thought to various contentions canvassed by learned Counsel for the respective parties. We have also considered the judgments cited by learned counsel for the respective parties in support of their contentions. In view of the facts and circumstances as well as the law involved in the controversy in question, following questions arise for consideration of this Court:--

(a) Whether Respondent No. 2 -- Corporation is prohibited from taking an altogether different stand in the proceedings initiated by Ms. Prabha Shrikrishna Ghule by filing Civil Application No. 6127 of 2002 for clarification of the judgment, dated 25th February, 2002, passed by this Court in the disposed of Writ Petition No. 1119 of 1996, whereby both the above referred Writ Petitions were disposed of, than the one taken in the earlier proceedings initiated by Mr. Vinayak Wasudeo Updeo and Ms. Prabha Shrikrishna Ghule in Writ Petition No. 1119 of 1996 as well as Writ Petition No. 1909 of 1997 filed against the present petitioners in Writ Petition Nos. 4278 of 2003, 4969 of 2003 as also against the Corporation, wherein the Corporation had taken a positive stand on affidavits filed in those Writ Petitions as well as Contempt Petition No. 140 of 2002 and in the proceedings before the Apex Court in a Special Leave Petition that the establishments of the petitioners are established and are being run without any violation of law and Development Control Rules, in view of the doctrines of 'estoppel' and 'res judicata'?

Before, we consider the purport of doctrines of estoppel and res judicata as well as its application, it will be appropriate to consider certain relevant undisputed facts which are as follows:--

20. Mr. Vinayak Wasudeo Updeo and Smt. Prabha Shrikrishna Ghule, both residents of Vinayak Apartments, Nagpur, filed Writ Petition Nos. 1119 of 1996 and 1909 of 1997 against the City of Nagpur Municipal Corporation, Dr. Vinod Gandhi, Dr. Sanjay and others. The Prayers made in the said Writ Petition No. 1119 of 1996 are as follows:--

(a) issue a suitable writ, order or direction against the respondent No. 1 directing it to take effective measures so as to prevent the establishment of Nursing Home and Clinic in the Vinayak Apartments, Lokmat Square, Nagpur, and do all acts necessary for preventing commercial being taken up in the residential premises;

(a-1) issue a suitable writ, order or direction against the respondent No. 1 quashing Certificate of Registration granted by the Corporation to the respondent No. 2 (Dr. Vinod Gandhi) dated 23-5-1996;

(b) issue a suitable writ, order or direction interim directing the respondent No. 1 to see that no commercial activity or nursing home is started by the respondent No. 2 in residential apartments 1 and 2 of Vinayak Apartments, Lokmat Square, Nagpur during the pendency of the present petition;

(b-1) issue suitable writ, order or direction interim staying the effect and operation of the registration certificate during the pendency of present petition;

(c) issue a suitable writ, order or direction interim restraining the respondents 1 and 2 from starting any commercial activity and nursing home in the Vinayak Apartments, Lokmat Square, Dhantoli, Nagpur during the pendency of present petition and restraining the respondent No. 2 from sanctioning any commercial activity during the pendency of present petition;

(g) grant any other relief deemed fit in the facts and circumstances of the case.

21. So far as Writ Petition No. 1909 of 1997 is concerned, the Prayers made were thus:--

"(1) issue a suitable writ, order or direction, directing the respondent No. 1 to take effective measures promptly so as to stop all commercial activities, being carried out by the respondent Nos. 3 to 5 in Vinayak Apartment, Lokmat Square, Nagpur and do all things necessary for securing the health, hygiene, peace, tranquillity of the petitioner and the residential owners of the Vinayak Apartment.

(2) issue a suitable writ, order or direction interim directing the Corporation to take immediate measures to stop the commercial activities of the Respondents 3 to 5 in Vinayak Apartments during the pendency of the petition;

(3) Grant any other relief deemed fit."

22. This Court, in view of identical prayers made in the above referred Writ Petitions, heard and disposed of both these petitions by a common judgment, dated 25th February, 2002.

23. The Corporation took a specific stand before this Court in the above referred Writ Petitions that the Registration granted by Respondent No. 2-Corporation to the Clinics, Nursing Homes, Pathology Laboratories, Hospitals etc., were proper and there was no breach of any provisions of the Act, law. Regulations or Bye-laws and on the basis of this stand, this Court in Paragraph 7 of the judgment, dated 25th February, 2002, observed thus:--

"7. We have given serious consideration to the allegations as made by the petitioners and inconveniences as put forward by the respondents. The respondents have demonstrated before us that there has not been any illegal sanction or grant of Registration by the Corporation of City of Nagpur. There is no illegality in commencing nursing homes, clinics etc., or the commercial activity, as it is called by the petitioners, in the residential areas. The petitioners, according to the respondents, have failed to prove any statutory requirement in existence and to show the breach thereof on the part of respondents requiring issuance of the writs as claimed by petitioners."

Similarly, the last observation in Paragraph 7 is thus :--

"In our opinion, there cannot be a dispute on the proposition of law that construction activity or taking up user of any property, permissible in accordance with law. If the activity undertaken in violation of law, it is the duty of the Corporation, the Nagpur Improvement Trust and all other Civic Authorities, as the case may be, to prevent such infraction of law."

The Division Bench finally concluded the issue by observing in Paragraph 8 thus :--

"8. We are at the same time confident that by and large in majority of cases, the Nagpur Municipal Corporation and the Nagpur Improvement Trust or the concerned authorities are functioning properly and carrying out their duties to their utmost capacity. Again, infraction in execution of their duties may be justiciable individually, but it cannot be a ground for issuing general fiat requiring them to follow provisions of law when there is no evidence before the Court that the infraction is the rule, provisions of law flouted more than obeyed requiring issuance of such fiat. In our opinion, these petitions can be disposed of by directing the respondents to do the following:--

(1) Examine the commencement of Nursing Homes, Clinics, Dispensaries, Hospitals, Laboratories etc., in the Dhantoli and Ramdaspeth area of Nagpur City and ensure that none of them is misusing permissions granted to them.

(2) That, all these establishments have a valid permission from the requisite authorities.

(3) That, they maintain high standards of hygiene and scrupulously keep clean the locality in which they are situated. They be directed to take care that the dirty disposals and useless material thrown by the said establishments and other institutions similarly situated are property incarcerated or at least kept in covered receptacles and destroyed effectively at the earliest. Necessary steps may be required to be taken by these institutions by the authorities like the Corporation.

We hope that if these directions are followed hereafter, there may not be grievance of the kind made by the petitioners and even the grievances expressed by the petitioners would stand redressed to a great extent. With these observations, petitions are disposed of."

24. The petitioner Ku. Prabha Shrikrishna Ghule filed Contempt Petition No. 140 of 2002 in this Court against the Corporation as well as present petitioners, on the ground that though the Corporation has not issued any permission to the Respondents in Writ Petition No. 1119 of 1996 to run their Nursing Homes, the Respondent-Corporation has not taken any steps as directed by this Court vide judgment, dated 25th February, 2002, to examine that the Clinics, Dispensaries, Hospitals, Laboratories etc., in Dhantoli and Ramdaspeth areas were being run in contravention of the permission granted to them and, therefore, wilfully disobeyed the Order, dated 25th February, 2002, passed by this Court.

25. In Paragraph 3 of the Submissions filed by the Corporation in Contempt Petition No. 140 of 2002, the Corporation took a specific stand which reads thus :--

"3. The answering respondent submits that the allegations made in Para 4 of the petition are false to the knowledge of the petitioner. It may be seen that immediately after the judgment on 13th March, 2002, the responsible Medical Officer visited the site and made inspection. It is specifically denied that Dr. Pimpalgaonkar gave evasive replies to the petitioner. Dr. Pimpalgaonkar is Assistant Director of Health Services in the Corporation and he is very responsible Officer. The allegations made by the petitioner are therefore false and denied."

26. Similarly, in Paragraph 4 of the Submissions, the Corporation has taken the following stand:--

"4. The allegation in para 7 of the petition that the respondents are carrying their establishments illegally and unauthorizedly are denied. It is stated that after the judgment of the Hon'ble Court permission was granted to the respondent No. 4. The respondent No. 5 is running X-ray clinic for which NOC/registration under Nursing Home Act is not necessary. The respondent No. 6 is running Pathology Laboratory, which is also not governed by Nursing Home Act. The Respondent No. 8 is running Blood Bank for which licence is granted by the Food and Drug Authority. It is therefore submitted that the allegations made in the para are baseless. The respondent submits that similar allegations are made in the original petition and did not find favour with the Hon'ble Court."

27. In the last portion of Paragraph 4 of the Submissions of the Corporation, it is stated thus :--

"The allegations in para 8 of the petition were made in the writ petition also and the Hon'ble Court after considering the same passed the judgment. The petition cannot reagitate the same. The allegations made in para 9 of the petition are baseless and misleading. The petition is based on misinformation and it amounts to abuse of process of law. It appears to have been filed to harass the respondents. The petition is therefore liable to be dismissed."

28. On the basis of the above referred specific stand taken by the Corporation that the Nursing Homes, Clinics, Hospitals etc., were not in breach of any law, the learned single Judge discharged the notice issued against the Corporation as well as other respondents in the contempt proceedings initiated under the provisions of Contempt of Courts Act in Contempt Petition No. 140 of 2002 and dropped the proceedings vide Order, dated 9th September, 2002.

29. On 4th October, 2002, Ms. Prabha Ghule (Petitioner in Writ Petition No. 1119 of 1996) once again filed Civil Application No. 6127 of 2002 in the disposed of Writ Petition No. 1119 of 1996 for clarification of the judgment, dated 25th February, 2002, passed by the Division Bench of this Court in Writ Petition No. 1119 of 1996, and the Assistant Director of Town Planning, Nagpur Municipal Corporation, for the first time, in this proceeding, took an altogether different stand by filing an affidavit, dated 28th September, 2003, and raised the following ground which reads thus :--

"I further state that, during the course of enquiry, it was found that in some of the cases the buildings are being used for dispensary, nursing home, clinic, hospital etc., by the occupants without obtaining permission for change of permitted user."

and in the last paragraph of the submissions, the Corporation has stated thus :--

"I say that in view of the direction of the Hon'ble Court further door to door survey is being undertaken in both the localities. This shall require at least 8 weeks to obtain original sanction record and to verify it with the actual user at the site. The respondent states that it shall take action for violation of the change of user as per the provisions of Maharashtra Regional and Town Planning Act, 1966."

30. On the basis of this altogether different stand taken by the Corporation, the Division Bench of this Court passed the Order, dated 6th October, 2003, on Civil Application No. 6127 of 2002.

31. It will be appropriate for us at this stage to consider as to whether in view of the doctrine of 'estoppel', it was legally permissible for the Corporation to deviate totally from the stand which was taken by the Corporation in the earlier proceedings and the findings recorded in the judgment, dated 25th February, 2002, by the Division Bench of this Court in Writ Petition Nos. 1119 of 1996 and 1909 of 1997 are conclusive and building on the parties and by virtue of the doctrine of 'res judicata', it was not legally permissible for respondent-Corporation to reagitate the same issue in the subsequent proceedings without getting those findings altered, modified or changed by the appellate Court.

32. Before we consider the effect of above referred undisputed facts on the issue in question, it will be appropriate for us, at this stage, to consider the concept and purport of doctrine of res judicata in order to find out as to whether the proceedings initiated by Ms. Prabha Ghule by filing Civil Application No. 6127 of 2002 as well as the Order, dated 6th October, 2003, as well as 8th Sept. 2003 passed by Division Bench of this Court are barred by the doctrine of res judicata.

33. The basic principle of rule of res judicata is that cause of action for second suit being merged in the judgment of the first, it does not any more survive. Res judicata is sometimes treated as estoppel. In other words, rule of res judicata is a rule of public policy for giving finality to orders passed by judicial authorities and for avoiding multifarious litigations. As per doctrine of res judicata, it is not open for any authority, except the appellate authority having jurisdiction to consider such order in appropriate proceedings, to sit over the judgment of the judicial Courts by sidelining it on the ground that Court has not given its findings, after considering the same on merits. It is also well settled that the Court once arrives at the finding rightly or wrongly, if it has attained finality, it is binding on the parties and parties cannot resile from it and in the subsequent proceedings, the authorities before whom any proceedings take place have also to treat this finding as binding on the parties and are required to give effect to it. In this regard observations of the Apex Court in para (26) of its judgment in Hope Plantations Ltd. v. Taluk Land Board, Peermade, are relevant, which read thus:-- "It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are "cause of action estoppel" and "issue estoppel". These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue sarises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice."

34. In the present case, composite reading of prayers made in Writ Petition No. 1119 of 1996 as well as 1909 of 1997 makes it evident that the Petitioners specifically prayed for directions against the Nagpur Municipal Corporation to take effective measures promptly so as to prevent the establishment of Nursing Home and Clinic in Vinayak Apartments, Lokmat Square, Nagpur, and do all acts necessary for preventing commercial activity being taken up in the residential premises. In other words, the grievance of the petitioners was that the activity which was carried on by the petitioners of running Nursing Homes, Clinics, Dispensaries, Maternity Homes in the buildings situated in the residential locality are activities other than the activities permitted under the relevant provisions of the Act, namely M. R. T. P. Act, 1966, as well as Building Bye-laws and Development Control Rules made under the said Act and, therefore, it was prayed that this Court should issue directions to the Nagpur Municipal Corporation to prevent these activities since the same are being carried unauthorisedly without any valid permission from the Corporation. The stand taken by the Corporation before this court in the above referred Writ Petitions was very specific that the Registrations granted by Respondent No. 2 --Corporation to the Clinics, Nursing Homes, Pathology Laboratories, Hospitals etc., were proper and there was no breach of any provisions of the Act, Law, Regulations or Byelaws. It is, therefore, evident that it is the clear stand of the Corporation before this Court that the Nursing Homes, Clinics, Pathology Laboratories, Hospitals run by the respective petitioners were not in breach of any law, Regulations or Bye-laws of the Corporation and the activities were perfectly legal and valid and, therefore, the activities were not unauthorised or invalid. It is evident that as per the stand of the Corporation, activities were proper and they were not in breach of any provisions of the M. R. T. P. Act, 1966, which makes provisions for planning and development arid use of land in regions established for that purpose as well as for making better provisions for the preparation of Development Plans with a view to ensure that the Town Planning Schemes are made in proper manner and their execution is made effective, to provide for the creation of new towns by means of Development Authorities, to make provision for compulsory acquisitions of land required for public purposes in respect of the plans and for purposes connected with the matters aforesaid. Similarly, Regulations or Byelaws mean the Building Bye-laws and Development Control Rules framed by the Corporation under Sections 21 and 22 of Chapter-III of the M. R. T. P. Act. It is, therefore, crystal clear that as per the specific and clear stand taken by the Corporation, the running of Clinics, Nursing Homes, Pathology Laboratories, Hospitals in the buildings situated in the Residential Zone was not at all in breach of any of the provisions of the above referred Act as well as building Byelaws and Development Control Rules.

35. The Division Bench of this Court by a common judgment, dated 25th February, 2002, disposed of Writ Petition Nos. 1119 of 1996 and 1909 of 1997 after taking into consideration the contentions canvassed by respective counsel for the petitioners and respondent-Corporation in those Writ Petitions as well as the stand of the Corporation by observing in paragraph 7 (the whole paragraph is already incorporated hereinabove). However, the relevant portion is reproduced hereinbelow :--

"7. We have given serious consideration to the allegations as made by the petitioners and inconveniences as put forward by the respondents. The respondents have demonstrated before us that there has not been any illegal sanction or grant of Registration by the Corporation of City of Nagpur. There is no illegality in commencing nursing homes, clinics etc., or the commercial activity, as it is called by the petitioners, in the residential areas. The petitioners, according to the respondents, have failed to prove any statutory requirement in existence and to show the breach thereof on the part of respondents requiring issuance of the writs as claimed by petitioners."

The above referred finding recorded by the Division Bench not only concludes that the activity of running the Clinics, Nursing Homes, Pathology Laboratories, Hospitals in the buildings situated in the residential areas/Zones is a legal and valid activity and there is no breach, whatsoever, committed by the Petitioners-Doctors, who are carrying on this activity in regard to any of the provisions of M. R. T. P. Act, 1966 or Building Bye-laws and Development Control Rules for the Nagpur City; but the said finding is totally binding on the parties to the above referred Writ Petitions and the Corporation being Respondent No. 2 in the said Writ Petitions is also abide by the said finding. In view of the doctrine of res judicata, it is well settled that the Court once arrives at a finding and if such finding has attained finality, it is binding on the parties and parties cannot deviate from it either in the same proceedings or in the subsequent proceedings. The observations of the Apex Court in case of Hope Plantations Ltd. v. Taluka Land Board (supra) clearly mandate that the rule of res judicata prevents the parties to the judicial determination from litigating the same question over and again when the proceedings have attained finality. Consequently, parties are bound by the Judgment and are estopped from questioning it. It is, therefore, evident that the above referred finding recorded by the Division Bench in the Judgment, dated 25th February, 2002, in the circumstances, has attained finality and was binding on the parties to the said Writ Petitions and none of them was legally entitled to raise the same issue, which is concluded, once again in the subsequent proceedings in view of the doctrine of res judicata.

36. The petitioner Ms. Prabha Ghule filed Contempt Petition No. 140 of 2002 referred to hereinabove against the Corporation for non-compliance of certain directions issued by the Division Bench vide Judgment 25th February, 2002. In the said contempt Petition, in Paragraph 2 of the submissions filed by the corporation, the Corporation has taken a specific stand, which reads thus :--

"2. The respondent submits that the petitioner filed Writ Petition No. 1119 of 1996 before the Hon'ble Court alleging that the respondents Nos. 4 to 8 were undertaking highly commercial activity like nursing home, blood bank etc., in the building where she resides. The petitioner therefore sought writ of mandamus from the Hon'ble Court to restrain the respondents Nos. 4 to 8 from carrying out these activities. The Hon'ble Court heard the matter at length and passed order on 25th February, 2002. The copy of the judgment is placed on record at Annexure P 10. A bare perusal of the judgment would show that the Hon'ble Court has held that there was no illegality in commencing nursing home, clinics etc., or the commercial activity as is called by the petitioner in the residential premises. The Hon'ble Court therefore dismissed the petition with certain directions. The respondent has accordingly taken steps to obey the directions of the Hon'ble Court."

In Paragraph 3 of its submissions, the corporation took a specific stand, which reads thus :--

"3. The answering respondent submits that the allegations made in Para 4 of the petition are false to the knowledge of the petitioner. It may be seen that immediately after the judgment on 13th March, 2002, the responsible Medical Officer visited the site and made inspection. It is specifically denied that Dr. Pimpalgaonkar gave evasive replies to the petitioner. Dr. Pimpalgaonkar is Assistant Director of Health Services in the corporation and he is very responsible Officer. The allegations made by the petitioner are therefore false and denied."

and finally in Paragraph 4 of its submissions, the Corporation took a specific stand which reads thus :--

"4. The allegation in para 7 of the petition that the respondents are carrying their establishments illegally and unauthorizedly are denied. It is stated that after the Judgment of the Hon'ble Court permission was granted to the respondent No. 4. The respondent No. 5 is running X ray clinic for which NOC/registration under Nursing Home Act is not necessary. The respondent No. 6 is running Pathology Laboratory, which is also not governed by Nursing Home Act. The Respondent No. 8 is running blood bank for which licence is granted by the Food and Drug Authority. It is therefore submitted that the allegations made in the para are baseless. The respondent submits that similar allegations are made in the original petition and did not find favour with the Hon'ble Court."

and in the last portion of Paragraph 4 of the submissions of the Corporation it is stated thus :--

"The allegations in para 8 of the petition were made in the writ petition also and the Hon'ble Court after considering the same passed the Judgment. The petition cannot re-agitate the same. The allegations made in para 9 of the petition are baseless and misleading. The petition is based on misinformation and it amounts to abuse of process of law. It appears to have been filed to harass the respondents. The petition is therefore liable to be dismissed."

It is, therefore, evident that the corporation once again reiterated its earlier stand taken before this Court in the above referred Writ Petitions and made it clear that on 13th March, 2002 a responsible Medical Officer visited the site and made inspection of the premises in the building situated in the Residential Areas/Zones where the activity of running Clinics, Nursing Homes, Maternity Homes etc., was going on, and found that the doctors were carrying on this activity legally and validly. Not only that, but it is specifically stated in the submissions of the Corporation filed in the contempt Petition referred to hereinabove that the allegations made in the Contempt Petition by the petitioner that the hospitals, clinics, nursing homes, pathology laboratories, dispensaries are established in the Residential Zones where the apartments are only meant for residential purpose, were considered by the earlier Division Bench and after due consideration, these allegations were rejected by the Division Bench while passing the Judgment and Order, dated 25th February, 2002 and, therefore, the Petitioners cannot re-agitate the same in the Contempt Petition No. 140 of 2002. The Corporation also specifically mentioned in the submissions filed in the Contempt Petition that the contempt Petition is based on misinformation and it amounts to abuse of process of law and was filed to harass the Respondent and prayed for dismissal of the Contempt Petition.

37. Apart from the stand taken by the corporation in the above referred submissions filed in Contempt Petition, the specific stand taken by the learned Counsel for the Corporation appearing before learned single Judge in contempt proceedings is reflected in Paragraph 5 of the order, dated 9th September, 2002, which reads thus :--

"5) Mr. Kaptan, learned counsel for the respondent No. 1, on the other hand, contended that as far as the first contention canvassed by the counsel for the petitioner is concerned, the same was considered by the Division Bench itself and the Division Bench has not held that the respondents failed to observe, or breached the statutory provisions of the Act or Rules, Bye-laws or a Circular. On the other hand, the purport of the entire judgment would show that the petitioner, in fact, failed to point out to the Division Bench any provision or rule, statutory or otherwise, which has not been complied with by the respondents or breached by the respondents. It is further contended that in view of the above referred directions given by the Division Bench of this Court, it is submitted that the respondents 4 to 8 are carrying on their establishments legally and under necessary authorization. It is contended that after the Judgment of the Division Bench, permission was granted to the respondent No. 4. The respondent No. 5 is running an X-ray clinic, for which No Objection Certificate/Registration under Nursing Home Act is not necessary. The respondent No. 6 is running a Pathology Laboratory, which is also not governed by Nursing Home Act. The respondent No. 8 is running a Blood Bank for which a licence is granted by Food & Drugs Authority. It is, therefore, submitted by Mr. Kaptan that the allegations made in this regard are baseless. It is further contended that as regards the maintenance of hygiene and cleanliness, the Municipal Corporation has taken care to keep the City as clean as possible."

38. The learned single Judge, after considering the rival contentions as well as reply filed by the Corporation in the Contempt Petition No. 140 of 2002, in Paragraph 7 of the Order, dated 9th September, 2002, observed thus :--

"7) The reply, which is filed by the Corporation and the contentions, which were canvassed by Mr. Kaptan, show that the Corporation has examined the cases of the respondents in order to find out whether the nursing homes, clinics, dispensaries, hospitals, laboratories, which are established in Dhantoli and Ramdaspeth areas of the city of Nagpur, are having requisite permission from the concerned authority and it is contend that each one of them is running the clinic or nursing home or dispensary and hospital as per the provisions of law and rules applicable in this regard."

It is, therefore, evident that the learned single Judge, in view of the specific stand taken by the corporation in the submissions as well as the contentions canvassed by learned counsel for the Corporation before the learned single Judge, once again finally concluded that the Nursing Homes, Clinics, dispensaries, Hospitals, Pathology Laboratories, which are established in Dharampeth, Ramdaspeth and Dhantoli areas of the City of Nagpur are having requisite permissions from the concerned Authority and each one of them is running the Clinic, Nursing Home, Dispensary, Hospital etc., as per the provisions of law and rules applicable in this regard and finally discharged the notice issued against the Corporation and others under the Contempt of Courts Act and dropped the contempt proceedings against the Corporation as well as other respondents vide Order, dated 9th September, 2002. In view of the above finding recorded by the learned single Judge, it is crystal clear that the Nursing Homes, Clinics, Dispensaries, Hospitals and Pathology Laboratories, which are established in the entire Dhantoli and Ramdaspeth areas of the city are having requisite permissions from the concerned Authority and each one of them is running the Clinic, Nursing Home. Dispensary as well as Hospital as per the provisions of law and rules applicable in this regard. This finding is not binding only in respect of the parties to the Contempt Petition or Writ Petition No. 1119 of 1996 or Writ Petition No. 1909 of 1997, but so far as the Corporation is concerned, it is also binding in respect of other doctors who are running their Nursing Homes, Clinics, Dispensaries, Hospitals, Pathology Laboratories in the whole of area of Dhantoli and Ramdaspeth of the City of Nagpur and by virtue of doctrine of res judicata, it is not open for the corporation to resile or deviate from the specific stand taken by the Corporation before this Court in the above referred proceedings in the subsequent proceedings initiated by the Petitioner Ms. Prabha ghule in Civil Application No. 6127 of 2002. Since the finding recorded by the Division Bench in the above referred Writ Petitions as well as learned single Judge in the Contempt Petition attained finality and were binding on the Corporation.

39. At this stage, we want to express that it is not necessary that the decision rendered by the Competent Court should be legally sound and sustainable in law. Even the erroneous orders or decisions in the earlier case or proceedings operate as res judicata. The Apex Court laid down proposition of law in this regard way back in 1953 in case of Mohanlal Goenka v. Benoy Kishna Mukherjee, of its Judgment, the Apex Court has observed thus :--

"There is ample authority for the proposition that even an erroneous decision on a question of law operates as 'res judicata' between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as 'res judicta'. A decision in the previous execution case between the parties that the matter was not within the competence of the executing Court even though erroneous, is binding on the parties.'

It is, therefore, evident that even the decision may be erroneous in nature in the earlier proceedings operates as res judicata, whereas in the present case the Judgment, dated 25th February, 2002, rendered by the Division Bench as well as the Order, dated 9th September, 2002, passed by learned single Judge in the Contempt Petition are the decisions rendered by the competent Court and are valid and sustainable in law till such time they are either set aside, altered or reversed by the Appellate Court and, therefore, the said decisions are binding on the Corporation till such time they are reversed by the Appellate Court and the Corporation, in view of the doctrine of res judicata, is totally prohibited from taking a different stand or from re-agitating the issue in the subsequent proceedings initiated by Ms. Prabha Ghule by way of Civil Application No. 6127 of 2002.

40. It is also well settled that the principles of res judicata applies with equal force to the decisions of the High Courts rendered in earlier Writ Petitions on all questions, which are expressly decided and the questions which must be deemed to have been decided by necessary implication. The observation of the Apex Court in Paragraph 8 of the Judgment in Sobhag Singh v. Jai Singh, are relevant which read thus :--

"All questions which had been expressly decided by the High Court on contest between the parties and other questions which must be deemed by necessary implication to have been decided were res judicata and could not be re-opened before the Board of Revenue. In this appeal it is therefore not open to the appellant to contend that the decision of the High Court on the questions decided in the writ petition was erroneous."

The law laid down by the Apex Court clearly mandates that not only the questions on which the decision is rendered by the High Court, but such other questions in the Writ Petition in view of the decision rendered must be by necessary implication stand decided and operate as res judicata and cannot be re-opened by the parties. In the instant case, by virtue of the decision rendered by the Division Bench vide judgment, dated 25th February, 2002, the Division Bench not only concluded that there is no illegality in commencing Nursing Homes, Clinics etc., or a commercial activity, as it is called by the petitioners in the said Petitions, in the residential area, but by necessary implication, the other issues raised by the Petitioners in Writ Petition Nos. 1119 of 1996 as well as 1909 of 1997 also stand concluded and disposed of accordingly and the decision in this regard is binding on the parties and, therefore, in view of the doctrine of res judicata, neither the petitioners, nor the Corporation or anybody else can re-agitate the same issue by initiating subsequent proceedings till such time the decision is set aside by the Appellate Court. Similar analogy is applicable in respect of the decision rendered by the learned single Judge in the contempt proceedings referred to hereinabove.

41. In the instant case, in spite of the fact that the subsequent proceedings are barred on the ground of res judicata, Ms. Prabha Ghule (Petitioner in Writ Petition No. 1119 of 1996) on 4th October, 2002 tiled Civil Application No. 6127 of 2002 in the disposed of Writ Petition No. 1119 of 1996, for clarification of the Judgment, dated 25th February, 2002, wherein once again the same issues were re-agitated by the Petitioner Ms. Prabha Ghule, which were concluded by the earlier decisions of this Court referred to hereinabove. It is pertinent to note that the principles of res judicata apply also to two stages of the same proceeding to the extent that the Court having at an earlier stage decided the matter in one way will not allow the parties to re-agitate the matter again at the subsequent stage of the same proceedings. The Apex Court in case of Arjun Singh v. Mohindra Kumar, , relying on the observations made by the Apex Court in Satyadhyan Ghosal v. Smt. Deorajin Debi observed in Paragraph (11) thus :

"Similarly, as stated already, though Section 11 of the Civil Procedure Code clearly contemplates the existence of two suits and the findings in the first being res judicata in the later suit, it is well established that the principle underlying it is equally applicable to the case of decisions rendered at successive stages of the same suit for proceeding. But where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable."

It is, therefore, evident that for application of principles of res judicata, it is not necessary that there should be two suits. However, the principle of res judicata can also be invoked in cases of different stages of the same proceedings. While applying this analogy to the present case, Civil Application No. 6127 of 2002 is nothing but the petitioner Ms. Prabha Ghule is re-agitating once again the same issue concluded by the Judgments and orders of this Court at a subsequent stage of the same, proceeding which are already concluded vide Judgment, dated 25th February, 2002 and, therefore, is barred by the principles of res judicata. Civil Application No. 6127 of 2002 itself is not maintainable in law since the same is barred by the doctrine of res judicata. The doctrine of res judicata, therefore, is attracted even in the successive stages of the same proceedings where the decision is reached and rendered. Giving finality to the issue would act, as res judicata for the parties to the said proceedings to re-agitate the same issue once again at the subsequent stage of the same proceeding. It is implicit that the issue in which the matter directly and substantially in issue in the earlier stages of the proceedings between the same parties and the decision, which is rendered on that issue by the Competent Court shall not only be binding, but also would be res judicata to the parties to such proceedings to re-agitate the same in the successive stages of the same proceedings. It is, therefore, not correct to suggest that the scope of the principles of res judicata is only confined to what is contained in Section 11, of the Civil Procedure Code in view of the law laid down by the Apex Court in the case of Arjun Singh (supra). Consequently, Civil Application No. 6127 of 2002 itself is not maintainable and barred by the doctrine of res judicata.

42. In the instant case, the Asstt. Director of Town Planning, Nagpur Municipal Corporation, filed an Affidavit, dated 28th September, 2003, in reply to the Civil Application No. 6127 of 2002 and for the first time took an altogether different stand which reads thus :--

"I further state that, during the course of enquiry, it was found that in some of the cases the buildings are being used for dispensary, nursing home, clinic, hospital etc., by the occupants without obtaining permission for change of permitted user."

The said stand, which was taken for the first time by the Corporation is barred by the doctrine of res judicata, since the Division Bench of this Court has finally concluded in its Judgment, dated 25th February, 2002 referred to hereinabove on the basis of the stand then taken by the Corporation that there is no illegality in commencement of Nursing Homes, Clinics, Dispensaries etc., or a commercial activity as it is called by the Petitioner in the Residential Areas. The said finding is binding on the Corporation and the Corporation cannot resile from it in the subsequent proceedings initiated by way of Civil Application No. 6127 of 2002. Similarly, the Corporation, in view of principles of estoppel, is estopped from either re-agitating the same issue or taking a different stand than the one taken in the earlier proceedings on the basis of which binding decisions are rendered by this Court in the earlier proceedings, as well as the petitioners in Writ Petition No. 1119 of 1996 to initiate another proceeding by way of Civil Application No. 6127 of 2002 to re-open the same issue.

43. The Division Bench, on the basis of altogether different stand taken by the Corporation, passed an Order, dated 6th October, 2002 on Civil Application No. 6127 of 2002 and in the said Order, the following observations, which are relevant for the controversy in the present case, are thus :--

"We, accordingly, direct the Nagpur Municipal Corporation to complete the survey of the residential building being used for Dispensary, Nursing Home, Clinic, Hospitals, by the occupants without obtaining permission for change of permitted user within three months from today and submit the action taken report in the form of affidavit of the Assistant Director of Town Planning. Let the freshly instituted Public Interest Litigation, as noted above come up for further directions after three months. The Survey report shall be placed in the newly instituted P. I. L.

As we have already observed hereinabove, since the Division Bench of this Court vide Order, dated 25th February, 2002, passed in Writ Petition No. 1119 of 1996 as well as Writ Petition No. 1909 of 1997 concluded the issue in this regard and rendered a positive finding on the basis of the stand taken by the Corporation that there is no illegality in commencement of Nursing Homes, Clinics, Dispensaries etc., or the commercial activity as it is called by the Petitioner in the Residential Area, which is binding on the Corporation. Again the initiation of proceedings in regard to the same issue by filing Civil Application No. 6127 of 2002 itself is not maintainable in view of the doctrine of res judicata and, therefore, the above referred directions issued by this Court on such application vide Order, dated 6th October, 2003 as well as 8 Sept. 2003 are of no consequence.

44. It is not in dispute that the Notices, dated 3rd October, 2003, are issued by the Nagpur Municipal Corporation under Section 53 (1) of the M. R. T. P. Act, 1966, alleging the use of premises in the Residential, Residential -cum-Commercial and Commercial Buildings for running clinics, Pathology Laboratories, Diagnostic Centres, Hospitals, Nursing Homes, Maternity Homes etc., amounts to change of user and in absence of permission for such change of user, the running of said establishments is in contravention of the M. R., T. P. Act. It is also not in dispute that it is the stand of the Corporation that these Notices are issued to the said establishments on the basis of the Order passed by the Division Bench of this Court, dated 6th October, 2003, on Civil Application No, 6127 of 2002. In order to appreciate this aspect, we have perused the order, dated 6th October, 2003. Apart from the fact that we have already recorded that in the facts and circumstances of the present case referred to hereinabove, the Order, dated 6th October, 2003, as well as 8th Sept., 2003 are of no consequence, since the same are passed on the application which itself is barred by the doctrine of res judicata. However, even otherwise, the said Orders neither directs the Respondent-Corporation to issue such notices under Section 53 (1) of the M. R. T. P. Act, nor the Corporation is expected to do so in view of the said Orders vide Order, dated 6th October, 2003, the Division Bench has merely directed the Nagpur Municipal Corporation to complete the survey of residential buildings being used for dispensaries, Nursing Homes, Clinics, Hospitals by the occupants without obtaining permission for change of permitted user within three months from the date of order and submit an Action-taken Report in this Court. It is, therefore, evident that the very foundation on which the notices are based is misconceived and devoid of substance and, therefore, the notices impugned are bad in law.

45. Similarly, the Division Bench of this Court, while considering Civil Application No. 6127 of 2002, without considering the validity of the Order dated 25th February, 2002, passed in Writ Petition Nos. 1119 of 1996 and 1909 of 1997, wherein it is categorically held that there is no illegality in commencing Nursing Homes and Clinics or a commercial activity as it is called by the Petitioners in the residential area, in our view, cannot re-open or re-consider the same issue once again, since it is barred by the doctrine of res judicata and, therefore, the observations made by the Division Bench in the Order, dated 6th October, 2003. passed on Civil Application No. 6127 of 2002 are of no consequence and in any case cannot be relied on by the Corporation to issue the impugned notices under Section 53 (1) of the M. R. T. P. Act.

46. It is not in dispute that the Division Bench of this Court had passed an interim order on 21st June, 1996 in Writ Petition No. 1119 of 1996. Since the said Order was adverse to the present Petitioners, one of the Petitioners, i.e., Dr. Vinod Durgadas Gandhi in Writ Petition No. 1119 of 1996, who was one of the Respondents in the said Writ Petition No. 1119 of 1996 challenged the said interim order before the Apex Court by filing a Special Leave Petition (Civil) No. 5616 of 1996 and the Nagpur Municipal Corporation had filed a Reply in the said Special Leave Petition and in Paragraph 5 of the said Reply, the Corporation had stated thus :--

"This means that apart from the residential purpose, the apartment owner is entitled to have independent use of his apartment. It is further clear from Clause Eighteenth that the respective family unit shall not be rented or given on leave and licence or care taken basis by the apartment owners thereof for hotel purpose."

In view of the specific statement made in the Affidavit filed before the Apex Court by the corporation, it is evident that the apartment owner in a building situated in the residential area is entitled to use the apartment for independent purpose other than the residential one. However, the only restriction in this regard is for establishment of hotel. The Corporation, therefore, in our considered view, is completely prohibited from taking a different stand than the one taken before this Court in the proceedings referred to hereinabove as well as before the Apex Court, for the first time in the proceedings initiated by filing Civil Application No. 6127 of 2002, on the ground of res judicata as well as principles of estoppel and, therefore, the Order, dated 6th October, 2003, passed by the Division Bench of this Court on such application which itself is not maintainable, undoubtedly, is of no consequence and cannot be a basis for issuance of notices under Section 53 (1) of the M. R. T. P. Act.

47. Another aspect, which, requires consideration while deciding the applicability of doctrine of res judicata and principles of estoppel so far as the issue, in question, is concerned, it is necessary for us to consider the nature of directions given by the Division bench of this Court in its Judgment, dated 25th February, 2002, and the scope of enquiry expected to be undertaken by the Respondent-Corporation. The Division Bench of this Court in the Judgment, dated 25th February, 2002, no doubt, concluded the issue by observing in Paragraph 7 thus :--

"The respondents have demonstrated before us that there has not been any illegal sanction or grant of Registration by the corporation of city of Nagpur. There is no illegality in commencing nursing homes, clinics etc., or the commercial activity, as it is called by the petitioners, in the residential areas. The petitioners, according to the respondents, have failed to prove any statutory requirement in existence and to show the breach thereof on the part of the respondents requiring issuance of the writs as claimed by petitioners."

Similarly, in the end of Paragraph 7, the Division Bench has finally observed thus :--

"In our opinion, there cannot be a dispute on the proposition of law that construction activity or taking up user of any property, permissible in accordance with law."

However, in the larger interest of the society, the Division Bench observed in the said Judgment that if the activity is undertaken by anybody in violation of law, it is the duty of the corporation, the Nagpur Improvement Trust and all other Civic Authorities, as the case may be, to prevent such infraction of law, and while disposing of Writ Petition Nos. 1119 of 1996 as well 1909 of 1997, vide Judgment, dated 25th February, 2002, issued the same directions. The relevant direction for our purpose is thus :--

(1) Examine the commencement of Nursing Homes, Clinics, Dispensaries, Hospitals, Laboratories etc., in the Dhantoli and Ramdaspeth area of Nagpur City and ensure that none of them is misusing permissions granted to them.

The above referred direction, undoubtedly, presupposes that the Nursing Homes, Clinics, Dispensaries, Hospitals, Laboratories etc., in Dhantoli and Ramdaspeth areas of the city are being run with the permission of the Corporation necessary under the Act and Rules. However, the Corporation was only expected to ensure that these establishments should not be allowed to misuse the permission granted to them. It is an admitted position that there is no material on record to show that any breach of condition of permission granted to them by the Municipal Corporation is committed by the owners of these Nursing Homes, Clinics, Dispensaries, Hospitals, Laboratories situated in Dhantoli and Ramdaspeth areas of the City of Nagpur and, therefore, the Respondent-Corporation cannot be allowed to take a different stand altogether that the running of Nursing Homes, Clinics, Dispensaries, Hospitals and Pathology Laboratories established in Dhantoli and Ramdaspeth areas amounts to change of user by them in absence of permission for change of user of such establishments and, therefore, are run in contravention of the M. R. T. P. Act in view of the doctrine of res judicata as well as principles of estoppel, since the issue in this regard is concluded in the above referred Judgments and Orders passed by this Court.

48. The doctrine of res judicata needs to be considered from another point of view keeping in view that where the relief is claimed in the petition, the same must be deemed to have been denied when it is not granted by the Court and it shall not be open for the parties to such proceedings to re-agitate or re-open the said issue in another proceedings before the same Court, since the subsequent proceedings are barred by doctrine of res judicata. The observations of the Apex Court in paragraph 8 of the Judgment delivered by the Apex Court in State Bank of India v. Ram Chandra Dubey (2001) 1 SCC 73 are relevant, which read thus :--

"It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed but not granted necessarily gets denied in judicial or quasi-judicial proceeding."

While considering the above referred law in respect of the controversy in issue, it is evident that the Petitioners in Writ Petition No. 1119 of 1996 prayed in Prayer Clause (a) for issuance of a suitable writ, order or direction against the Respondent-Corporation to take effective measures so as to prevent the establishment of Nursing Homes and Clinics and do all acts necessary for preventing commercial activities being taken up in the residential premises being inconsistent with the provisions of law, similar prayer is made by the Petitioners in Writ Petition No. 1909 of 1997. However, this court, while disposing of both the Writ Petitions vide Order, dated 25th February, 2002, denied both these prayers to the Petitioners and, therefore, by necessary implication, these establishments, such as Nursing Homes, Hospitals etc., are deemed to have been established as per the provisions of law and, therefore, to re-open this issue once again by filing Civil Application No. 6127 of 2002 is impermissible in view of doctrine of res judicata and by necessary implication, the Orders, dated 6th October, 2003 as well as 8th Sept. 2003 on such Civil Application will be of no consequence. At any rate, the said Order cannot be the basis for issuance of notices under Section 53 (1) of the M. R. T. P. Act by the Corporation.

49. There is another important aspect, which we cannot afford to ignore that the principles of estoppel and doctrine of res judicata are based on public policy. The rationale behind the said doctrines is that if the controversy in issue is finally determined or decided by the competent Court and if such decision attains finality, then it will be illogical to allow the parties to such proceedings to re-open the same issue again and again which, in our considered view, would not only destroy the binding nature of judicial pronouncement, but also render such decisions nugatory. The relevant observations of the Apex Court in this regard are made in Paragraph 26 of the Judgment in Hope Plantations Ltd. v. Taluk Land Board, Peormade and Anr. (cited supra) .

50. In the present Writ Petitions, the Petitioners are the Doctors, who are running their Clinics, Pathology Laboratories, Diagnostic Centres, Hospitals, Nursing Homes, Maternity Homes etc., in the Residential, Residential-cum-commercial and Commercial buildings situated in Dhantoli, Ramdaspeth and Dharampeth localities and as per the stand taken by the Corporation in the above referred proceedings and by virtue of the Order, dated 25th February, 2002, passed by the Division Bench of this Court in Writ Petition Nos. 1119 of 1996 and 1909 of 1997 as well as the Order, dated 9th September, 2002, passed by this Court in Contempt Petition No. 140 of 2002, it is evident that these establishments are not run by the respective Doctors in violation of any of the provisions of the Act and Rules and, therefore, the action of issuing the impugned Notices, dated 3rd October, 2003, by the Corporation under Section 53 (1) of the M. R. T. P., Act to the Petitioners before us in the present Writ Petitions as under Section 53 (1) of the M. R. T. P., Act to the Petitioners before us in the present Writ Petitions as well as to those Doctors whose Clinics, Hospitals etc., are located in Dhantoli, Ramdaspeth and Dharampeth areas of Nagpur city is invalid on the ground of res judicata and, therefore, the same are quashed and set aside and consequently the orders of rejection, if any, passed on the applications/replies given by the petitioners as well as other Doctors, whose Clinics, dispensaries, Maternity Homes etc., are situated in Dhantoli, Ramdaspeth and Dharampeth areas pursuant to the said Show cause Notices, by necessary implication, are also of no consequence.

51. In the instant case, after we heard arguments of the learned counsel for the Petitioners as well learned Counsel for the Corporation on the issues of res judicata and estoppel, Mr. Kaptan, learned counsel for the Corporation, requested the Court for grant of two days' time to obtain instructions from the Corporation as to whether the Corporation, in the circumstances, would like to approach the Appellate Court against the Judgment of the Division Bench rendered on 25th February, 2002 in Writ Petition Nos. 1119 of 1996 and 1909 of 1997 as well as the Order, dated 9th September, 2002, passed in Contempt Petition No. 140 of 2002. We accordingly gave time for this purpose to the learned Counsel for the corporation. However, on instructions from the corporation, Mr. Kaptan, learned counsel, stated that the Corporation decided to contest the issue before us and, therefore, we have considered and adjudicated upon the issue in question and delivered the present Judgment.

52. So far as the contention canvassed by Mr. Kaptan, learned counsel for the corporation, that the Indian Medical Association cannot file Writ Petition No. 5108 of 2003 in a representative capacity on behalf of its Members is concerned, we do not agree with this contention canvassed by Mr. Kaptan, since the Notices, dated 3rd October, 2003, are issued by the Corporation, under Section 53 (1) of the M. R. T. P., Act in view of the Order, dated 6th October, 2003, passed by the Division Bench of this Court on Civil Application No. 6127 of 2002. The stand, which was taken by the corporation before this Court in the above referred Writ Petitions as well as contempt Petition, was one and the same as against the establishments, such as Nursing Homes, Clinics, Hospitals, Maternity Homes etc., situated in Dhantoli, Ramdaspeth and Dharampeth localities and, therefore, though individual notices are issued by the Corporation to the Doctors, who are running these establishments, however, the cause of action is one and the same. Hence the objection raised by learned Counsel for the Corporation in respect of locus is rejected. However, the doctors, who are the Members of Indian Medical Association, Nagpur, and whose Clinics, Nursing Homes, Hospitals, Maternity Homes etc., are located in Dhantoli, Ramdaspeth and Dharampeth areas of Nagpur city, are directed to pay separate requisite court fees individually within a period of two weeks from the date of pronouncement of the Judgment. On failure to comply with this direction by anyone of them, he/she shall not get advantage of this Judgment.

53. Other issues raised in the Writ Petitions and contentions canvassed before us on those grounds are kept open, since the impugned Notices are quashed and set aside only on the ground of doctrine of principles of estoppel and res judicata. For the reasons stated hereinabove, we answer the legal question framed by us in affirmative. Writ Petitions are allowed. Rule is made absolute in above terms. No order as to costs.