Kishor Limbraj Shinde vs Amar Baburao Kamble on 1 February, 2012
12. Thus, the tender notice for allotment of plot No.GP 66/1 and GP
66/2 was under challenge in Writ Petition No.6654 of 2012. That Writ
Petition was filed by petitioner on 10th July 2012, by which date
petitioner had not only participated in the tender process but the
financial bids were opened on 11th June 2012. By the time Writ Petition
No.6654 of 2012 was filed on 10th July 2012, MIDC had taken a decision
to allot the plot to respondent No.6. The file noting initiated on 11 th June
2012 was approved on 18th June 2012. Petitioner had in the meantime
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Kishor V. Kamble 10/15 WP 2305 of 15.as-2.doc
submitted the e-mail on 12th June 2012 and letter on 13th June 2012
communicating exercise of right of first refusal by offering rate of the
highest bidder. Petitioner however did not include the prayer for
allotment of plot in exercise of right of first refusal in Writ Petition
No.6654 of 2012. He chose to restrict Writ Petition No.6654 of 2012 to
prayer for allotment of the plot at industrial rates prevailing in October
2006 as per resolution passed by the Land Allotment Committee dated
22nd February 2010. By not raising the prayer for allotment of plot No. GP
66/2 as per right of first refusal (which was already exercised by
petitioner on 12th June 2012) petitioner is deemed to have given up the
said prayer. Here, the provisions of explanation IV to Section 11 of the
Code of Civil Procedure, 1908 would apply. Petitioner had sought
allotment of Plot No. GP 66/2 in Writ Petition No.6654 of 2012, albeit on
the ground of resolution of the Land Allotment Committee dated 22 nd
February 2010. On the date of filing of Writ Petition No.6654 of 2012, the
other ground of seeking allotment as per right of first refusal was
available to petitioner. He however himself did not include that ground in
Writ Petition No.6654 of 2012. The ground of right of first refusal thus
would be covered by explanation IV of Section 11 of the Civil Procedure
Code. Therefore, the prayer made in the present petition for allotment of
plot No. GP 66/2 on the ground of right of first refusal would be barred
by principles of constructive res judicata.