Rameshchand Khoobchand Jain vs The Admn. Of The City Of Nagpur ...
2017 Latest Caselaw 8094 Bom

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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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