Sevadas Marutidas Gadhewal ... vs City Of Nagpur Corportion & ...
2017 Latest Caselaw 7210 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No. 313 of 2004


 Sevakdas son of Marutidas Gadhewal,
 since dead, through his
 legal heirs:-

 1.      Raju son of Sevakdas Gadhewal
         [Hedau],
         aged about 47 years,
         occupation - business,

 2.      Vijay son of Sevakdas Gadhewal
         [Hedau],
         aged about 45 years,
         occupation - service,

         both residents of C/o Bangalipanja,
         Ward No.44,
         Circle No. 13/19, Nagpur.           .....           Appellant.


                                   Versus


 1.     City of Nagpur Corporation,
        through Municipal Commissioner,
        Nagpur.

 2.     The Asstt. Building Engineer,
        Nagpur Municipal Corporation,
        Nagpur.                                 .....     Respondents.


                                   *****
 Mr. A. S. Sirsikar, Adv., for the appellant.

 None for the respondents.



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                                     *****


                                 CORAM :        A.S. CHANDURKAR, J.

                                 Date       :   15th September, 2017


 ORAL JUDGMENT:

01. This appeal has been filed by the original plaintiff who is

aggrieved by the judgment of the appellate Court confirming the

judgment of the trial Court dismissing the suit that was filed for a

declaration that the notice dated 4th May, 1991 issued by the

respondents under Section 286 (2) of the City of Nagpur Corporation

Act, 1948 [for short, "the said Act"] was illegal.

02. The appellant is the owner of House No. 112 situated in

Ward No. 43. According to the plaintiff, as the existing structure had

become dilapidated, he had sought to renovate the same by making

some alterations. The Asstt. Building Engineer - defendant no.2 issued

a notice dated 4th May, 1991 under Section 286 (2) of the said Act

calling upon the plaintiff to pull down said construction. Being

aggrieved, the plaintiff filed a suit for declaration that said notice was

illegal in view of the fact that what was undertaken was only a

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renovation of the dilapidated structure.

03. Along with the suit, the plaintiff filed an application for grant

of temporary injunction. He also filed an application below Exh.6

seeking permission to file the suit by dispensing with the statutory

notice under Section 384 of the said Act. The trial Court by order

dated 29th May, 1991 granted permission to file the said suit without

prejudice to the plea that could be raised by the defendants if they so

desired. The defendants filed reply to the application for temporary

injunction. However, no Written Statement was filed and the trial

Court by its order dated 13th November, 1992 directed the suit to

proceed without Written Statement. The plaintiff then led evidence by

filing his affidavit. The trial Court proceeded to dismiss the suit on

28th January, 1993 on the ground that the same had been filed without

serving the statutory notice on the defendants. Being aggrieved, the

plaintiff filed appeal. The appellate Court confirmed the findings of the

trial Court and dismissed the appeal. Being aggrieved, the present

appeal has been field.

04. Shri A.S. Sirsikar, learned counsel for the appellant,

submitted that as both the Courts committed an error in dismissing the

suit for want of statutory notice, ignoring the fact that despite liberty

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granted to raise this plea, no Written Statement was filed. It was

submitted that such statutory notice could be waived and this fact is

clear from non-filing of the Written Statement and raising this plea.

For said purpose, he placed reliance on the judgment of the Full Bench

in Vasant Ambadas Pandit Vs. Bombay Muicipal Corporation &

others [1981 Mh. L .J. 706]. It was further submitted that considering

the nature of construction undertaken by the plaintiff, the impugned

notice itself was in excess of powers conferred by the said Act. He

urged that the construction undertaken could have been easily

compounded and the same was not of such nature requiring it to be

pulled down. It was then submitted that considering passage of time,

the respondents could be directed to re-inspect the construction

undertaken, so that further steps by either of the parties could be

taken. He, therefore, submitted that the impugned judgment was

liable to be set aside.

05. The appeal was heard on 14th September, 2017; but there

was no appearance on behalf of the respondents. Today also, there is

no appearance on their behalf. With the assistance of learned counsel

for the appellant, I have perused the records of the case and I have

considered his submissions.

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06. The record indicates that after notice dated 4th May, 1991

was issued by the defendant no.2 the plaintiff filed aforesaid suit on

29th May, 1991. This suit was filed without giving any statutory notice

under Section 384 of the said Act. The appellant, therefore, filed an

application below Exh.6 praying that issuance of this statutory notice

be dispensed with. The trial Court by order dated 29th May, 1991

granted such permission with a liberty to the defendants to raise a

plea in that regard. This plea that non-issuance of the statutory notice

was fatal to the maintainability of the suit could have been raised in

the Written Statement as per the liberty granted. However, the

defendants failed to file their Written Statement and in view of order

dated 13th November, 1992, the suit proceeded without their Written

Statement.

07. The Full Bench of this Court in Vasnt Ambadas Pandit

[supra] has held that service of statutory notice being a procedural

requirement, the same does not go to the root of the jurisdiction in a

true sense of the term. This requirement is capable of being waived by

the defendants and on such waiver, the Court would get jurisdiction to

try the suit. I find merit in the submission made on behalf of the

appellant that failure to file the Written Statement and raise the

ground of breach on account of absence of the statutory notice would

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amount to waiver of this requirement. As noted earlier, it was

specifically observed by the trial Court that this plea could be raised by

the defendants in their pleadings. Having failed to file the Written

Statement, the defendants lost the opportunity to raise this plea and in

other words, the same stood waived. Both the Courts without

considering this aspect which is patent on record committed an error

by holding that though the defendants did not file their Written

Statement, it could not be said that they had waived the service of the

statutory notice. Said finding recorded by both the Courts is, thus

liable to be set aside.

08. Both the Courts did not consider the merits of the prayer as

made in the plaint. The suit was not entertained only on the ground

that it was not preceded by a statutory notice. I, therefore, find that

the suit was liable to be entertained on merits.

09. The impugned notice is dated 4th May, 1991. According to

the appellant, the structure in question is still standing and said notice

for demolition has not been acted upon. The said Act also stands

repealed and hence there would be no justification in remanding the

proceedings to the trial Court for deciding the same on merits.

Instead, the relief can be moulded by granting liberty to the

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respondents to again inspect the premises in question and if it is found

by them that the appellant's construction is in contravention of the

Building Permission, they would be at liberty to take further steps in

the matter in accordance with law. By passing such direction, the

unnecessary trial of the suit could be avoided.

The substantial question of law as framed is answered by

holding that the suit was not liable to be dismissed on account of

failure to issue the statutory notice. The defendants can instead be

directed to re-inspect the construction undertaken by the appellant.

10. Accordingly the following order is passed:-

ORDER

[a] It is held that the suit filed by the appellant was not liable to be dismissed for want of statutory notice under Section 384 of the said Act.

[b] In the facts of the case, the respondents are directed to re-inspect the premises of the appellant and thereafter take such further steps as are permissible in law, if it is found that the construction is not in accordance with the prescribed permission. The request for compounding the offending structure can

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also be taken into consideration if the same is permissible in law.

11. In view of these directions, nothing further is required to be

decided in the suit. Second Appeal is allowed in aforesaid terms with

no order as to costs.

Judge

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