Bombay High Court
Old Shukrawari vs Nagpur Improvement Trust on 5 October, 2012
Bench: Ravi K. Deshpande
1 sa85.95.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 85/1995
Smt. Jankibai Jaiswal Bahu Udhesiya
Sanstha, a Public Trust, registered
under the Bombay Public Trust Act,
Having Registration No. 432-83 (N)
Old Shukrawari, Nagpur-01 APPELLANT
ig Org.Pltff.
...VERSUS...
1. Nagpur Improvement Trust,
Nagpur, through its Chairman,
Sadar, Nagpur.
2. Nagpur Municipal Corporation,
Nagpur, through its Commissioner,
Civil Lines, Nagpur RESPONDENTS
Org. Defts.
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Shri S.P.Kshirsagar, Advocate, for appellant.
Shri R.O.Chhabra, Advocate, for respondents
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CORAM: R. K. DESHPANDE, J.
DATE : 05
OCTOBER, 2012.
th
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ORAL JUDGMENT
1] The appellant is the society registered under
the Societies Registration Act and it had filed Regular
Civil Suit No.604/1986, challenging the resolution passed
by the Nagpur Improvement Trust on 20.01.1985 for
allotment of the suit plot to the Nagpur Municipal
Corporation. The case of the plaintiff in the suit was that
on 20.02.1985, the Nagpur Improvement Trust passed a
Resolution No. 3(b), deciding to allot the plot in question
to the plaintiff and the proposal in respect of the same
was sent to the State Government for sanction on
03.05.1985. However, without cancelling the said
allotment, the plot was allotted to the Nagpur Municipal
Corporation on 15.03.1986, which is arbitrary and illegal.
2] The trial Court by its judgment and order
th
dated 8 September, 1989, dismissed the said suit
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holding that the plaintiff has failed to establish that the
resolution passed by the Nagpur Improvement Trust on
15.03.1986 allotting the plot to the Nagpur Municipal
Corporation was illegal. The trial Court has further held
that the suit was bad for want of notice under Section 115
of the Nagpur Improvement Trust Act.
3] In Regular Civil Appeal No. 328/1989
preferred by the plaintiff, the appellate Court has held that
the action of the Nagpur Improvement Trust in cancelling
the resolution dated 20.02.1985 allotting the plot in favour
of the plaintiff was arbitrary and nullity. However, the
appeal is dismissed by concurring with the finding of the
Trial Court that the suit was bad in law for want of notice
under Section 115 of the Nagpur Improvement Trust Act.
Hence, the plaintiff is the appellant and the defendants
are the respondents before this Court.
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4] On 06.03.1995 this Court admitted the appeal
and framed the following substantial question of law;
Whether in the facts and circumstances of the
case, notice under Section 115 of Nagpur
Improvement Trust Act was mandatory for filing
suit by the plaintiff against the N.I.T.?
5] The contention of Shri Kshirsagar, the
learned counsel appearing for the plaintiff is that,
the subject matter of the suit was the resolution dated
15.03.1986 passed by the Nagpur Improvement Trust,
allotting the plot in question to the Nagpur Municipal
Corporation. Hence, it is this act already done, which was
the subject matter of suit and not covered by the
phraseology "in respect of anything purporting to be done
under this Act" employed under sub-section (1) of
Section 115 of the Nagpur Improvement Trust Act. He
has further urged that the appellate Court has
categorically recorded the finding that the action of
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Nagpur Improvement Trust in cancelling the resolution of
allotment in favour of the plaintiff is arbitrary and nullity
and in view of this, it is his submission that such an act
cannot be one which is to be done under the Act. Hence,
the provision of Section 115 of the Nagpur Improvement
Trust is not attracted. He has relied upon the following
decisions of this Court and Hon'ble Apex Court.
(I) City of Nagpur Corporation, Nagpur vrs.
Indian Gymkhana, Nagpur, reported in
2010(3) Mh.L.J. 196
(II) Poona City Municipal Corporation;
Fulchand Purushottam Shah vrs.
Dattatyraya Nagesh Deodhar, reported
in AIR 1965 SC 555
(III) Girish Manohar Wazalwar vrs.
Purushottam Parasram Kotangale
reported in 1996 Mh.L.J. 673
6] Shri Chhabra, the learned counsel for the
defendants has relied upon the decision of this Court in
case of Abdul Jabbar Haji Mohammed Ibrahim vrs. The
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Chairman, Nagpur Improvement Trust, Nagpur and another,
delivered in Civil Revision Application No. 345/1993, on
nd
2 April, 1993, to urge that the provision of Section 115(1)
of the Nagpur Improvement Trust Act has been held to be
mandatory and for want of notice, the suit is liable to be
dismissed. He has also relied upon the another decision
of this Court in Civil Revision Application No. 937/1993 in
case of Akbar Karimuddin Malik vrs. Nagpur Improvement
th
Trust and another, decided on 25 September, 1995, for
the same proposition.
7] In order to appreciate the contentions raised,
the provision of Section 115 of the Nagpur Improvement
Trust Act, 1975, will have to be seen. Hence, the same is
reproduced below;
"115. Notice of suit against Trust etc.
(1) No suit shall be instituted against the Trust or any
Trustee, or any person associated with the Trust under
Section 17 or any member of a committee appointed
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under Section 18, or any officer or servant of the Trust, or
any person acting under the direction of the Trust or of the
Chairman or of any officer or servant of the Trust, in
respect of anything purporting to be done under this Act,
until the expiration of two months next after notice in
writing has been, in case of the Trust, left at its office, and
in any other case delivered to or left at the office or place
of abode of the person to be sued, stating the cause of
action, the nature of the relief sought, the amount of
compensation claimed and the name and place of abode
of the intending plaintiff; and the plaint shall contain a
statement that such notice has been so delivered or left.
(2) Every such suit shall be dismissed unless it is
instituted within six months from the date of the accrual of
the alleged cause of action.
(3) If the Trust or other person referred to in
sub-section (1) shall have tendered sufficient amends to
the plaintiff before the institution of such suit, the plaintiff
shall not recovery any sum in excess of the amount so
tendered and shall also pay all costs incurred by the
defendant after such tender.
The expression "in respect of anything
purporting to be done under this Act" employed in
sub-section(1) of Section 115 of the Act is comprehensive
enough to include all such acts which are already done
and the acts which are to be done. What is conveyed by
this expression is that the act whether done or to be done,
is purporting to be done under the Act by the Nagpur
Improvement Trust. Hence, the argument that the
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provision is not attracted in case of the acts which are
already done, cannot be accepted.
8] The second contention that the appellate
Court has already recorded the categorical finding that
the action of Nagpur Improvement Trust in cancelling the
resolution of allotment in favour of the plaintiff is arbitrary
and nullity, clearly takes out the case from the ambit of
sub-section (1) of Section 115 of the Act also cannot be
accepted. The point is concluded by the decision of this
Court in case of Abdul Jabbar Haji Mohammed Ibrahim, cited
supra, against the plaintiff. Para 5 of the said judgment
being relevant, the same is reproduced below;
5. Unequivocally, it issues a prohibitory writ against the
Court from institution of any suit, questioning the act of the
Trust, its authorities, officers or servants unless the
condition laid down therein is fully complied with.
Undisputedly, as discussed, notice under the said provision
was issued on 30.12.1987 whereas the suit was filed on
22.01.1987 before the expiry of the period as stipulated, on
28.01.1987. The provision expressly prohibit the institution of
the suit itself unless the period as mentioned, is expired. It
is tried to urge by Mr. P.K.Mishra that these provisions would
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not be applicable if the act of the authority is contrary either
to the provisions or they are without any authority. Hence,
according to Mr. P.K.Mishra, even without complying with the
provisions of Section 115 of the Nagpur Improvement Trust
Act, he can institute the suit. The argument as advanced is
completely misconceived. On the averments as made in the
plaint, the question to be adjudicated by the court would be,
as to whether the act impugned is in conformity with the
provisions of the Act. The Civil Court cannot proceed to
adjudicate over the issue unless the institution of civil
proceeding is in compliance with Section 115 of the Act.
Mandate of Section 115 is clear and unambiguous. The suit
filed as sue without complying with the mandatory
provisions of Section 115 of the Act is not maintainable and
is liable to be dismissed."
This court has thus taken a view that the
question to be adjudicated by the court would be as to
whether the act impugned is in conformity with the
provisions of the Act. The Civil Court cannot, therefore,
proceed to adjudicate over the issue unless the institution
of civil proceeding is in compliance with Section 115 of the
said Act. It has been held that the suit filed without
complying with the mandatory provisions of Section 115 of
the said Act is not maintainable and is liable to be
dismissed. Apart from this, the requirement of issuance
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of notice under Section 115 of the said Act would not
depend upon the finding recorded by the Civil Court
holding that the action of the Nagpur Improvement Trust
impugned in the suit is arbitrary and nullity. The
maintainability of the suit has to be decided at the very
threshold.
9] In case of State of Maharashtra and another vrs.
Shri Chander Kant, reported in (1977) 1 SCC 257, the
Apex Court has construed the expression "act purporting
to be done in official capacity" employed under Section
80 of Code of Civil Procedure to include the acts of
nonfeasance as well as misfeasance. It has been held
that the word "act" extends to illegal omissions also and
no distinction can be made between acts done illegally
and in bad faith and the acts done bona fide in official
capacity. In view of this, all sorts of acts are covered by
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the expression "in respect of anything purporting to be
done under this Act" employed under sub-section (1) of
Section 115 of the said Act.
10] The decisions relied upon by Shri Kshirsgar,
the learned counsel for the appellant/plaintiff are not on
the interpretation of Section 115 of the Nagpur
Improvement Trust Act. He has, however, urged that the
same phraseology, as has been used under Section
115(1) of the said Act, has been construed in those
judgments. The judgment of the Apex Court in Poona City
Municipal Corporation, and of this Court in case of Girish
Manohar Wazalwar, cited supra, relied upon by Shri
Kshirasagar does not deal with the requirement of
issuance of notice before filing of the suit. The decision of
this Court in City of Nagpur Corporation, Nagpur's case, cited
supra, is based upon the apprehended injury. The
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present case complains about the act which is already
done and hence, the said decision is also not applicable.
11] In the result, the substantial question of law
is answered accordingly and the second appeal is
dismissed. No orders as to costs.
12] The learned counsel appearing for the
appellant at this stage prays for stay of the effect and
operation of this judgment for a period of 8 weeks on the
ground that the appellant/plaintiff is in possession of the
suit property and in view of the dismissal of the second
appeal, the respondent Nagpur Improvement Trust is
likely to take possession of the suit property. The learned
counsel appearing for the Nagpur Improvement Trust
disputes this position and submits that the possession is
that of the Nagpur Improvement Trust. In view of this,
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the parties are directed to maintain status quo for further
period of eight weeks. The order of status quo shall
stand automatically vacated after expiry of eight weeks.
JUDGE
Rvjalit
