sa431.07
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 431 of 2007
Rameshchand Khoobchand Jain,
aged 45 years,
occupation - business,
resident of Parwarpura,
Itwari, Nagpur. ..... Appellant
Org. Plff.
Versus
1. The Administrator of the
City of Nagpur Corporation,
Nagpur.
2. The City of Nagpur Corporation,
through its Commissioner,
Civil Lines,
Nagpur. ..... Respondents
Org. Defts.
*****
Mr. R. M. Bhangde, Adv., for the appellant.
Ms. S. S. Jachak, Adv., for respondents.
*****
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CORAM : A.S. CHANDURKAR, J.
Date when arguments
were heard : 11th September, 2017
Date when judgment
is pronounced : 12th October, 2017
JUDGMENT:
01. The appellant is the original plaintiff who has filed this appeal under Section 100 of the Code of Civil Procedure, 1908, being aggrieved by the judgment of the first appellate Court whereby the appeal filed by the respondents - defendants has been allowed and the decree passed by the trial Court has been set aside.
02. Facts relevant for deciding this appeal are that it is the case of the plaintiff that on 9th April, 1981, a notice was published by the Office of the Administrator of the Nagpur Municipal Corporation inviting applications from general public for allotment of shop blocks to be constructed at Daji Dispensary, Itwari, Nagpur. The said scheme under which the advertisement was issued was called "Advance License Fee Deposit Scheme." As per said advertisement, for eight shops, a deposit of Rs.75,000/- each was prescribed and for other eight shops, a ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:35:33 ::: sa431.07 3 deposit of Rs.40,000/- each was prescribed. These deposits were to be made by 22nd July, 1981. According to the plaintiff, he was informed that the deposit of Rs.75,000/- each was for the front side shop blocks and Rs.40,000/- each was for the back side shops. The allotment was to be made on a first-come, first-served basis. Initially, three persons had booked three front side blocks by depositing the prescribed amount. According to the plaintiff, he was allotted Block No.2. Thereafter, the defendants modified the offer, on the basis of which, other bookings were also received. As per the modification, the deposit of Rs.75,000/- was to be made in two installments . The plaintiff on the basis of this modification made another application on 1st April, 1982 by depositing a further amount of Rs.25,000/-. Thus, according to the plaintiff, he had made a total deposit of Rs.1,00,000/-
- being Rs.50,000/- each for two front side blocks. Thereafter, on the basis of the intimation received, further amount of Rs.50,000/- was deposited on 19th November, 1986. It was further learnt by the plaintiff that a deposit was also accepted from one Shri Mahendrakumar Jain. As there was delay in delivering the possession, the plaintiff issued a notice on 27th April, 1988 and called upon the defendants to perform their part of the contract. On that basis, he filed a suit seeking specific performance of the contract with regard to two front side shop blocks along with claim for damages.
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03. The defendants filed their Written Statement and raised a preliminary objection that in view of provisions of Section 384 (1) of the City of Nagpur Corporation Act, 1948 [for short, "the said Act"], the suit could not have been instituted without serving a notice as contemplated by said provision. The claim as made in the suit was denied. It was pleaded that the right of allotment or rejection of any application vested with the Municipal Corporation. It was denied that by virtue of the deposits as made, the plaintiff was entitled for two front side shop blocks. The deposit as made of Rs.75,000/- was treated as deposit for one shop block only. It was, thus, pleaded that the suit was liable to be dismissed.
04. During pendency of the suit, the plaintiff was allotted Shop Block No. 6 on the front side on 25th January, 1990. He, therefore, amended the plaint and sought relief with regard to one shop block on the front side, being Shop Block No.2.
The Written Statement was consequentially amended and it was pleaded that said Shri Mahendrakumar Jain had filed a Civil Suit against the Corporation seeking allotment of one front side shop. After considering his case, the Corporation placed him in possession of Shop Block No.2 and, therefore, the claim as amended by the plaintiff was ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:35:33 ::: sa431.07 5 not liable to be granted.
05. The parties thereafter led evidence. The plaintiff examined himself as well two more witnesses. The defendants examined one witness. The trial Court by its judgment dated 17 th September, 1994 held that the plaintiff had proved his case of depositing Rs.75,000/- for allotment of a front side shop. After holding the suit to be maintainable, it was decreed. The defendants were directed to hand over possession of Shop No.2 to the plaintiff. The plaintiff was permitted to recover interest on the advance amount of Rs.75,000/- at the rate of sixteen per cent per annum.
06. The defendants filed an appeal under Section 96 of the Code. The appellate Court by its judgment dated 22 nd December, 2006 held that the suit itself was bad for want of statutory notice under Section 384 of the said Act. The suit was held to be barred by limitation and it was further held that the plaintiff was not entitled for allotment of Shop No.2 on the front side, as pleaded. Accordingly, after allowing the appeal, the suit came to be dismissed. Being aggrieved, the plaintiff has filed this appeal.
07. The following substantial questions of law were framed while ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:35:33 ::: sa431.07 6 admitting the appeal :-
"1. Whether the present suit could be said to be based on a contract?
2. If the suit was based on a contract, whether the provisions of Section 384 of the Nagpur Municipal Corporation Act applied to the suit?"
After further hearing the learned counsel, an additional substantial question of law was also framed. The same reads thus:-
"3. If the suit as filed by the plaintiff without complying with provisions of Section 384 of the City of Nagpur Corporation Act, 1948, is held to be maintainable, whether the plaintiff has proved that he is entitled for possession of Shop No.2?"
08. Shri R. M. Bhangde, learned counsel for the appellant- plaintiff placed on record note of arguments and made the following submissions:-
[a] The appellate Court committed an error by holding that the suit was bad for want of notice under Section 384 of the said Act. According to him, such notice under Section 384 of the said Act was necessary only if the grievance was with regard to any act done in pursuance of or execution or intended execution of the provisions of the said Act or in respect of any alleged neglect or default in the execution of the said Act or ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:35:33 ::: sa431.07 7 any rules or bye-laws made thereunder. It was submitted that considering the nature of reliefs sought in the plaint, it was clear that the suit was based on a contract and, therefore, there was no necessity of issuance of any prior notice under Section 384 of the said Act. It was urged that it was a settled legal position that such statutory notice was not required to be issued when the suit was based on a contract. In that regard, the learned counsel placed reliance on the decisions in [1] Vishwanath Sadashiv Natu Vs. The Municipal Corporation of The.... [1938 (40) BOMLR 685], [2] S. Mandlik Vs. The Borough Municipality [(1943) 45 BOMLR 1059], [3] Municipal Borough of Ahmedabai Vs. Jayantilal Chhotalal Patel [ (1947) 49 BOMLR 724], [4] Ram Kumar & another Vs. State of Rajasthan & others [ (2008) 10 SCC 73], and [5] City of Nagpur Corporation, Nagpur Vs. Indian Gymkhana, Nagpur [ 2010 (3) Mh.L.J. 196].
[b] That, the appellate Court was not justified in reversing the decree passed by the trial Court. It was submitted that in terms of both the advertisements, the plaintiff had sought allotment of two front shop blocks by depositing the requisite amounts. While accepting the application at Exh.103, a front shop block had been duly allotted to the plaintiff. Only the photo copies of Exhs.98 and 106 came to be produced by the defendants. Though a notice to produce the original ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:35:33 ::: sa431.07 8 documents was given at Exh.56 and the trial Court on 29th October, 1996 had directed the production of these documents, the same were not produced. An adverse inference was rightly drawn by the trial Court against the defendants for not examining Shri R.C. Neema. As it was the case of the defendants that said Shri R.C. Neema had no authority to allot any shop blocks, the burden was on them to prove said stand. Even the map at Exh.164 clearly indicated that the plaintiff had been allotted shop block no.2 on the front side. The plaintiff's name as shown in the map was struck off and the same shop was allotted to Shri Mahendrakumar Jain. According to the learned counsel, the plaintiff had complied with all the requirements as stipulated in the advertisements at Exhs.177 and 178 and was, thus, entitled to the allotment of Shop Block No.2. The first appellate Court, however, erred in reversing the decree passed by the trial Court. It proceeded on the basis of surmises and conjectures while doing so. It was, therefore, submitted that the judgment of the trial Court was liable to be restored by allowing the appeal.
09. On the other hand, Ms. S.S. Jachak, learned counsel for the respondents, supported the impugned judgment. She placed on record notes of arguments and made the following submissions:- [a] The suit was rightly held to be bad on account of ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:35:33 ::: sa431.07 9 failure to issue notice under Section 384 of the said Act. The properties in question those were sought to be allotted on license belong to the defendants. It was on the basis of the advertisements issued by the Corporation that the plaintiff had sought allotment of the same. As those advertisements were issued by virtue of the powers conferred under the said Act and the plaintiff was aggrieved by the action of the Corporation in not allotting him Shop Block No.2, the statutory notice was required to be issued. The learned counsel relied upon the judgment of the Full Bench in Vasant Ambadas Pandit Vs. Bombay Municipal Corporation & others [ 1981 Mh.L.J. 706] and the decisions in [1] Coal Mines P.F. Commr. through Board of Trustee Vs. Ramesh Chandra Jha [ (2012) 2 SCR 887] [2] Sadu Vithal Joshi Vs. Municipal Corporation & another [1986 (3) Bom.C.R. 628] in support of the aforesaid submissions. [b] That, the appellate Court was justified in reversing the decree passed by the trial Court. The Receipts at Exhs.103 and 106 were manipulated at the instance of the plaintiff. This was evident from the fact that on the other Receipts at Exhs.109 to 129, there was no endorsement made that a shop block either on the front side or on the back side was being allotted. She referred to the deposition of the witness examined on behalf of the Corporation at Exh.176 to urge that even the document at Exh.115 was not without doubt. The ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:35:33 ::: sa431.07 10 plaintiff did not implead the allottee of Shop Block No.2 despite knowledge of such allotment. As the allotment with regard to Shop Block No.2 was not challenged, it was not now permissible to cancel that allotment and grant relief to the plaintiff. It was, therefore, submitted that the appeal was liable to be dismissed.
10. I have heard the learned counsel for the parties at length and with their assistance I have gone through the records of the case. I have also give due consideration to the respective submissions.
11. As substantial question of law nos. 1 and 2 deal with the aspect of requirement of notice under Section 384 of the said Act, these questions can be answered first. As per provisions of Section 384 of the said Act, if a suit is filed with regard to any act done in pursuance of execution or intended execution of the said Act or in respect of any alleged neglect or default in the execution of the said Act or any Rules or Bye-laws, then such suit can be instituted only after expiry of one month after notice in writing has been delivered at the office of the Corporation by giving various details stipulated therein. The reliefs sought in the suit are with regard to specific performance of the contract for allotment of Shop Block No.2 with a further prayer for grant of damages.
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12. It is not necessary to delve very deep for answering this question, as the legal position in that regard stands settled by various decisions. The Full Bench of this Court in Municipal Borough of Ahmedabad [supra] while answering a reference on the question that when a municipality had obtained powers from a Municipal Act to enter into a contract, whether the exercise of that power to enforce the contract would be an act done in pursuance of the Municipal Act. After considering various decisions, the Full Bench held that if the Municipality was purporting to exercise its power to enforce the contract, then any act done would not be in pursuance of the Act, but in pursuance of the contract. Similarly, in Vishwanath Sadashiv Natu [supra] while considering provisions of Section 527 of the City of Bombay Municipal Act, it was held that if an act was done under some contract which the Corporation entered into under the powers conferred by this Act, but which it was not compelled to enter into, there was no need of any such notice.
13. The decision of the Full Bench in Vasant Ambadas Pandit [supra] is on the question as to waiver of the statutory notice prescribed by statute. In Sadu Vithal Joshi [supra], it was held that in a suit challenging validity of a notice issued under Section 351 of the ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:35:33 ::: sa431.07 12 Bombay Municipal Corporation Act, 1888, a notice under Section 527 of that Act before filing the suit was mandatory. These decisions do not support the stand of the defendants.
14. Considering the legal position referred to herein above, I find that the suit as filed was based on contract. The dispute was with regard to allotment of a shop block. The defendants were not compelled by any statutory provision to enter into such contract and, therefore, as the suit was based on contract, it did not require any such notice to be issued under Section 384 of the said Act before the suit was filed. The first appellate Court by misconstruing the aforesaid legal position held otherwise. Accordingly, substantial question of law nos. 1 and 2 are answered by holding that the suit as filed was based on contract and, therefore, there was no question of provisions of Section 384 of the said Act being applied to the suit.
15. Before considering substantial question of law no.3, it would be necessary to refer to certain aspects that have transpired during pendency of the proceedings. The suit came to be filed on 30th April, 1988. Along with the suit, the plaintiff filed an application for grant of temporary injunction and on 30th April, 1988, the trial Court directed the parties to maintain status quo as was prevailing on said date. The ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:35:33 ::: sa431.07 13 trial Court after hearing both parties rejected the application for temporary injunction on 31st July, 1989. The plaintiff then filed an appeal against that order being Appeal from Order No. 59 of 1989. This appeal was dismissed in default on 18th November, 1989. However, subsequently, the appeal was restored. After hearing learned counsel, this Court on 18th December, 1989 upheld the order of the trial Court by which it refused to grant temporary injunction in favour of the plaintiff.
One Mahendrakumar Jain on 5th September, 1988 filed Regular Civil Suit No. 1889 of 1988 seeking allotment of Shop Block No.2. The present defendants contested that suit. However, the suit was withdrawn unconditionally on 19th December, 1989 and on the same day, Shop Block No.2 was allotted to said Mehandrakumar Jain. Thereafter, on 25th January, 1990, Shop Block No.6 came to be allotted to the plaintiff. The paint accordingly was amended as per application below Exh.33. The relief was restricted to Shop Block No.2. Said amendment was allowed on 6th March, 1990.
From the aforesaid, it can be seen that Shop Block No.2 which is the subject-matter of the present proceedings was also the subject-matter of another suit filed by another applicant. The initial relief sought in the present proceedings was with regard to allotment of two front side shop blocks. After Shop Block No.2 was allotted to ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:35:33 ::: sa431.07 14 another applicant and Shop Block No.6 was allotted to the plaintiff, he amended the plaint and sought specific relief with regard to Shop Block No.2 as per the amendment granted on 6th March, 1990.
16. The plaintiff examined himself at Exh.97. According to him, as per the advertisement at Exh.177, an amount of Rs.75,000/- was deposited by him on 14th July, 1981. On the application form at Exh.98, the Development Engineer had put his endorsement "Permitted." Pursuant to the second advertisement at Exh. 178, he deposited further amount of Rs.25,000/-. On the application form at Exh.102, the Development Engineer put the endorsement "Permitted to Shop No.6." The plaintiff has then referred to further deposit of Rs. 50,000/- on 19th November, 1986 and he also placed on record various receipts at Exhs. 109 to 129 that were issued by the defendants. In his cross-examination, he admitted that the amounts deposited were without interest and that it was not mentioned in the second advertisement that the amount deposited as per the first advertisement would be adjusted. It was suggested to him that the endorsements on Exhs. 98 and 102 as to allotment of a particular shop had not been put there. Said suggestion was, however, denied. The plaintiff also examined his brother-in-law as Witness No.2. ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:35:33 :::
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17. The defendants examined the Development Engineer - Shri Goraknath Thakre. According to him, the endorsement on Exh.115 was manipulated. The powers of allotment of the shops were with the Municipal Commissioner and Shri Nema was not having those powers. In his cross-examination, he was confronted with the endorsements on Exhs.98 and 102. According to this witness, the words "front side" on Exh.103 were written by a Clerk who did not have any authority in that regard. Similar stand was taken with regard to Exh.106. He admitted that Shop No. 10 was allotted to one Mahendrakumar; but he was subsequently allotted Shop No.2 on 19th December, 1989 by Shri Nema. He admitted that the powers of allotment of shops were delegated to Shri Nema.
18. As per the application at Exh.98 that was submitted by the plaintiff, there was an endorsement "permitted" which was marked as portion 'A'. "Shop No.2" was marked as Portion 'B'. Similarly, on Exh. 102 which was also the plaintiff's application form, such endorsements in relation to Shop No.6 were found. Exh. 103 is a receipt issued by the defendants dated 1st April, 1982 which bears the words "front side." Same is the position with regard to Exh.106 again issued to the plaintiff. Exh.115 is another receipt dated 1st April, 1982 issued by the defendants with the endorsement "front side." Exh.103 is the original ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:35:33 ::: sa431.07 16 receipt while Exh.115 is its photo copy. Besides these receipts, there are other receipts at Exh. 109 to Exh. 129 in relation to other applicants. However, except receipt at Exh.127, none of these receipts bear any endorsement that a shop on the particular side is being allotted to the applicants therein. According to the witness examined by the defendants, the endorsement on Exh.115 which is a photo copy of the receipt at Exh.103, the words "front side" were written by a Clerk without any authority.
19. The appellate Court after noticing that the receipts at Exhs. 103 and 106 were dissimilar from the receipts at Exhs. 109 to 129 which were issued to other applicants has disbelieved the case of the plaintiff. There is no evidence led to indicate as to in what manner the words "front side" were put on the documents at Exhs. 103 and 106.
The plaintiff had moved an application below Exh.56 seeking production of documents, namely the application forms dated 14th July, 1981 and 1st April, 1982. The trial Court on 29th October, 1990 allowed that application. What was placed on record were the photo copies of these two applications which are at Exhs. 98 and 102. The defendants did not examine the Development Engineer - Shri R. C. Nema. Despite this, I find that the evidence brought on record by the plaintiff is insufficient to hold that a front side shop being Shop No.2 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:35:33 ::: sa431.07 17 was, in fact, allotted to the plaintiff pursuant to the application at Exh.98. The receipts at Exhs. 109 to 129, except Exh.127, as noted above, do not bear any such endorsement as to allotment of shops on a particular side. All these documents are merely carbon copies of receipts produced by the plaintiff. The first appellate Court after considering the entire evidence on record has found that the receipts at Exhs. 103 and 106 were contradictory to other receipts placed on record. The map at Exh.164 cannot be the basis for holding the plaintiff's entitlement to Shop No.2. This conclusion recorded by the first appellate Court cannot be said to be perverse as it is based on the evidence available on record. The finding arrived at by the appellate Court is by taking a possible view of the matter and this exercise cannot be termed to be an illegal exercise so as to upset its findings.
19. Though it was strenuously urged that the concerned Development Engineer ought to have been examined by the defendants, considering the overall nature of evidence on record, I do not find that said aspect can be held against the defendants. Considering the entire documentary evidence on record, it is not possible to draw an adverse inference against the defendants on this count. As held in Union of India Vs. Ibrahimuddin [ (2012 8 SCC 148], the presumption as to drawing adverse inference is permissible if ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:35:33 ::: sa431.07 18 the other larger evidence is shown to the contrary. I, therefore, find that the appellate Court has rightly found that the plaintiff had not proved that he is entitled for possession of Shop No.2. Substantial question of law no.3 is answered by holding that though the suit as filed is maintainable without complying with the provisions of Section 384 of the City of Nagpur Corporation Act, 1948, the plaintiff has failed to prove that he is entitled for possession of Shop No.2.
20. As a result of the foregoing discussion, the judgment of the appellate Court is liable to be affirmed. Accordingly, the Second Appeal stands dismissed.
Judge
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