Nagpur Improvement Trust, Thr. ... vs Jain Kalar Samaj, Nagpur Through ...
2024 Latest Caselaw 26260 Bom

Bombay High Court

Nagpur Improvement Trust, Thr. ... vs Jain Kalar Samaj, Nagpur Through ... on 10 October, 2024

Author: M.W.Chandwani

Bench: M.W.Chandwani

2024:BHC-NAG:11350




              Judgment

                                                                        293 sa568.17

                                                  1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         NAGPUR BENCH, NAGPUR
                              SECOND APPEAL NO.568 OF 2017

              1. Nagpur Improvement Trust,
              through its Executive Officer,
              Kings Way, Sadar, Nagpur.

              2. The Divisional Officer (South)
              Division, Hanuman Nagar,
              Krida Chowk, Nagpur.                         ..... Appellants.

                                       :: V E R S U S ::

              Jain Kalar Samaj, a public trust
              registered under the Bombay Public
              Trust Act, 1950, having registration
              No.F-56(N), Reshimbagh, Umred
              Road, Nagpur, through its Secretary.     ..... Respondent.
              =================================
              Shri A.C.Dharmadhikari, Counsel with Ms.Ritu Jog, Advocate for
              Appellants.
              Shri S.V.Manohar, Senior Counsel assisted by Shri Atharva Manohar
              & Shri Tejas Patil, Advocates for Respondent No.1.
              Shri P.K.Mishra, Counsel for Intervenor.
              =================================

              CORAM : URMILA JOSHI-PHALKE & M.W.CHANDWANI, JJ.
              CLOSED ON : 02/09/2024
              PRONOUNCED ON : 10/10/2024


              JUDGMENT (Per : Urmila Joshi-Phalke, J.)

1. A Division Bench has been constituted to answer

following questions:

.....2/-

Judgment

293 sa568.17

1. Whether suit shall lie against the Nagpur Improvement Trust without issuing a Notice under Section 115 of the Nagpur Improvement Trust Act, 1936 if the action of the Trust is outside the purview of expression "in respect of anything purporting to be done under this Act" used in the said provision?

2. Whether the action of the Nagpur Improvement Trust in issuing a Notice for taking action in lesser time than as provided in Section 115 of the Nagpur Improvement Trust Act, 1936 thereby resulting in depriving aggrieved party in approaching the Court for want of compliance with requirement of the said Section, would amount to a waiver of the requirement of Section 115 of the said Act?

2. Need for formulating above questions arose on account

of inconsistent views taken by the Single Judge of this Court in

(Abdul Jabbar Haji Mohammed Ibrahim vs. The Chairman, Nagpur

Improvement Trust, Nagpur and another1) decided on 2.4.1993 as

also in the case of Smt.Jankibai Jaiswal Bahu Uddesiya Sanstha vs.

1 Civil Revision Application No.345/1993 decided on 2.4.1993.

.....3/-

Judgment

293 sa568.17

Nagpur Improvement Trust and another2 wherein it has been held

that the Civil Court cannot proceed to adjudicate over the issue

unless institution of civil proceeding is in compliance with Section

115 of the Nagpur Improvement Trust Act, 1936 (the NIT Act) and,

therefore, the suit filed without complying with the mandatory

provisions of Section 115 of the NIT Act is not maintainable.

Whereas, the Hon'ble Apex Court in the case of The Poona City

Municipal Corporation vs. Dattatraya Nagesh Deodhar3, while

considering Section 487 of the Maharashtra Municipal

Corporations Act, 1949 (the MMC Act), a pari materia provision

has rendered a finding as under:

"(21) There remains for consideration the appellant's plea of limitation. For this plea, the appellant relies on Section 487 of Act 59 of 1949.

The material part of the section runs thus :-

(1) No suit shall be instituted against the Corporation or against the Commissioner, or the Transport Manager, or against any municipal officer or servant in respect of any act done or purported to be done in pursuance 2 2013(1_) ALL MR 55 3 AIR 1965 SC 555

.....4/-

Judgment

293 sa568.17

or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act :-

(a) until the expiration of one month next after notice in writing has been, in the case of the Corporation, left at the chief municipal office and, in the case of the Commissioner or of the Transport Manager or of a municipal officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney, advocate, pleader or agent, if any, for the purpose of such suit, or

(b) unless it is commenced within six months next after the accrual of the cause of action.

The benefit of this section would be available to the Corporation only if it was held that this deduction of ten per cent was "an act done or purported to be done in pursuance or

.....5/-

Judgment

293 sa568.17

execution or intended execution of this Act". We have already held that this levy was not in pursuance or execution of the Act. It is equally clear that in view of the provisions of S. 127(4) (to which we have already referred) the levy could not be said to be "purported to be done in pursuance or execution or intended execution of the Act." For, what is plainly prohibited by the Act cannot be claimed to be purported to be done in pursuance or intended execution of the Act. Our conclusion is that the High Court has rightly held that the suit was not barred by limitation."

3. Thus, the Hon'ble Apex Court, while considering pari

materia provision, held that Section would be available to the

Corporation only in respect of an act done or purported to be done

in pursuance or execution or intended execution of the

Corporation Act. In other words, what follows is that this benefit

will not be available if the act done or purported to be done is not

in pursuance or execution of the said Act.

4. The above proposition laid down by the Hon'ble Apex

Court is followed by the Single Bench of this Court in the case of

.....6/-

Judgment

293 sa568.17

Shri Gorakshan Sanstha, Akola vs. Akola Municipal Corporation4

wherein an identical issue was involved. The observation in

paragraph No.7 of the said decision is reproduced as under:

"7. As per provisions of section 487 of the said Act a protection is granted with regard to any act done or purported to be done in pursuance or in execution or intended execution of the said Act. In that regard unless a notice is given by the plaintiff with duration of one month and a suit filed within six months of the accrual of the cause of action, such suit cannot be instituted. Having found that the plaintiff-Trust was entitled for exemption under section 132(1)(b) of the said Act it was clear that the Trust was not liable to be assessed for payment of tax. If that be the situation then issuance of the demand notice on 4-1-2011 cannot be said to be an act done in pursuance of or in execution of the provisions of the said Act. In other words there being an exemption from payment of taxes under section 132(1)(b) of the said Act, there would be no cause to demand such taxes by issuing any demand notice. Moreover, the said demand notice has been held to be illegal. It is thus clear that the demand notice was issued despite the fact that the plaintiff 4 2019(1) Mh.L.J. 776

.....7/-

Judgment

293 sa568.17

was exempted from payment of taxes. In such situation it will have to be held that the suit was not liable to be dismissed for failure to issue notice under section 487 of the said Act as present case such notice was not required to be issued. The decisions in Pune Municipal Corporation and anr., Namdev and Municipal Council, Washim (supra) apply to the facts of the present case and support the contentions of the appellant. The decision relied upon by the learned counsel for the respondent is clearly distinguishable."

5. Thus, the view has been taken in the light of the

Constitution Bench judgment in the case of The Poona City

Municipal Corporation supra. On the basis of the decision of the

Constitution Bench in the case of The Poona City Municipal

Corporation supra, the Single Bench of this Court in the case of

Shri Gorakshan Sanstha, Akola supra held in pari materia statute

that the benefit of the provision will be available only if the act is

purported to have been done under the NIT Act. Whereas, in cases

of Abdul Jabbar Haji Mohammed Ibrahim supra and Smt.Jankibai

Jaiswal Bahu Uddesiya Sanstha supra, the Single Bench of this

Court, while dealing with Section 115 of the NIT Act, has taken a

.....8/-

Judgment

293 sa568.17

different view that issuance of Notice under section 115 of the NIT

Act is mandatory and the Civil Courts cannot proceed to adjudicate

over the issue as to whether the act impugned is in conformity

with the provisions of the Act unless Notice under Section 115 of

the NIT Act is issued.

6. Though the facts which gives rise to these questions are

not material to decide these questions which are referred, these

facts are referred only for the purpose of reference. The NIT vide

letter dated 22.11.1960 allotted a land admeasuring 43,687.5

square feet, situated at Reshimbagh, Umrer Road, Nagpur to "Jain

Kalar Samaj", a public trust for construction of Hostel Building and

purposes ancillary thereto and accordingly on 29.3.1966, the

parties executed Lease Deed initially for a period upto 31.3.1991

and later renewed for a term of next 30 years. The NIT has come

with a case that the respondent has breached the terms of the

Lease Deed and therefore, by issuing notice dated 19.3.2005

cancelled the allotment letter/Lease Deed and called upon the

respondent to remove its belongings and structure over the

allotted land within a period of 30 days of receipt of Notice and to

.....9/-

Judgment

293 sa568.17

hand over the possession of the premises to the Divisional Officer,

failing which the NIT informed the respondent that it shall take the

possession of the land in question.

The principles enunciated by the Hon'ble Supreme Court in

the case of The Poona City Municipal Corporation supra will be

determinative to interpret the provision under Section 115 of the

NIT Act, which is pari materia Section 487 of the MMC Act.

7. Learned Senior Counsel Shri S.V.Manohar for the

respondent, submitted that before answering questions referred, it

is necessary to see Section 9 of the Civil Procedure Code which

states the Courts to try all civil suits unless barred. Thus, Section 9

deals with the question of Civil Court's jurisdiction to entertain a

cause. Thus, the Civil Courts have jurisdiction to entertain suits of

civil nature except when its cognizance is expressly or impliedly

barred by necessary implication. Thus, for entertaining suits by

Civil Courts, it must be of civil nature and not barred expressly or

impliedly under any statute. To illustrate this, he cited an example

of Section 321 of the Maharashtra Land Revenue Code, Section 80

of the Civil Procedure Code, and Section 197 of the Criminal

.....10/-

Judgment

293 sa568.17

Procedure Code, which gives protection to both the sides and

contended on the above circumstances, it can be ascertained that

there is no complete bar. The same principle according to him, is

also applicable as far as Section 115 of the NIT Act is concerned. It

is only a condition precedent to issue a Notice and not complete

bar.

If a suit is filed against the NIT, what would be nature of

enquiry?

The nature of enquiry would be, whether notice is given

and whether act done is purporting to be done under the Act?

The purpose of notice is to avoid litigation. If the action is

mala fide, no notice is required. While interpreting the provisions,

word "done" assumes importance. If the act is not in pursuance of

the provisions of the NIT Act, notice is not required. The basic

right of the citizen is to invoke the law and the citizen cannot be

deprived from invoking the said law. He further submitted that

observations of the Single Bench of this Court in the case of Abdul

.....11/-

Judgment

293 sa568.17

Jabbar Haji Mohammed Ibrahim supra and Smt.Jankibai Jaiswal

Bahu Uddesiya Sanstha supra are erroneous.

8. Learned Senior Counsel Shri Manohar further adds that

issuance of Notice by the NIT asking to remove structure by giving

lesser period itself is a waiver by the NIT by conduct. Statutory

Notice can be waived as it is only a procedural requirement. He

submitted that the act of the NIT in issuing Notice granting less

period than which is mentioned in Section 115 of the NIT Act itself

is sufficient to infer that the NIT has waived the mandatory notice.

9. In support of his contentions, learned Senior Counsel

Shri Manohar placed reliance on following decisions:

1. Union of India vs. Tarachand Gupta and Bros5;

(jurisdiction of Civil Courts)

2. Kishan Lal vs. State of J & K6;

(jurisdiction of Civil Courts)

3. The Poona City Municipal Corporation vs. Dattatraya supra;

4. Devi Singh vs. Municipal Corporation, Hyderabad7;

5 1971(1) SCC 486 6 (1994)4 SCC 422 7 (1973)4 SCC 66

.....12/-

Judgment

293 sa568.17

5. Bombay Housing Board (now the Maharani Housing Board) vs. M/s.Karbhase Naik and Co., Sholapur8;

6. Firm Surajmal Banshidhar and others vs. Municipal Board, Ganganagar9;

7. Municipal Corporation of Delhi vs. Sushila Devi (Smt) and others;10

8. Pune Municipal Corporation and another vs. Mohan Shrikrishna Asava11;

9. Deoram Tulshiram Patil vs. Zilla Parishad, Nasik and others12;

10. Shri Gorakshan Sanstha, Akola vs. Akola Municipal Corporation supra;

11. State of U.P. and others vs. Maharaja Dharmander Prasad Singh and others13;

12. Mahendra Builders vs. Brihan Mumbai Municipal Corporation of Greater Mumbai and ors14;

13. Sri Amar Chand Inani vs. The Union of India15;

14. General Manager, Sri Siddeshwara Cooperative Bank Limited and another vs. Ikbal and others16;

15. Vasant Ambadas Pandit vs. Bombay Municipal Corporation and others17, and

8 (1975)1 SCC 828 9 (1979)1 SCC 303 10 (1999)4 SCC 317 11 1992 Mh.L.J. 1468 12 1993 Mh.L.J. 1392 13 (1989)2 SCC 505 14 2019(3) Bom.C.R.339 15 (1973)1 SCC 115 16 (2013)10 SCC 83 17 1981 SCC OnLine Bom 75

.....13/-

Judgment

293 sa568.17

16. Chief Executive Officer, Zilla Parishad, Parbhani and another vs. Shrimantrao s/o Tukaram Yadav and others18.

10. Per contra, learned Counsel Shri A.C.Dharmadhikari for

appellants submitted that statements and objects of the NIT have

to be taken into consideration. The NIT is a public trust

constituted for public benefits. By the provisions of the NIT Act,

lands are to be allotted by the Authorities for the specific purposes.

He invited our attention towards definition part and submitted

that Section 2(i) of the NIT Act states "Rule" means a rule made

under this Act. Section 2(m) states all references to anything

done, required, authorized, permitted, forbidden or punishable, or

to any power vested under this Act, shall include anything done,

required, authorized, permitted, forbidden, or punishable or any

power vested - (i) by provisions of this Act; or (ii) by any Rule,

Regulation, or Scheme made under the provisions of this Act or

(iii) under provisions of (City of Nagpur Corporation Act 1948)

which the Trust has by virtue of this Act has power to enforce.

Whereas, Section 76 of the NIT Act deals with powers to dispose of

lands. He interpreted word "purport" and submitted that 18 2024(1) Mh.L.J. 582

.....14/-

Judgment

293 sa568.17

purporting includes present or future acts. It is not merely a

condition precedent, but it is a mandatory requirement. The

object behind the provision of Section 115 to issue a pre-suit notice

is to protect public interests. The consistent view is taken by this

Court that notice is mandatory and, therefore, reference is not at

all required to be answered.

11. He further submitted that so far as decision in the case of

The Poona City Municipal Corporation supra is concerned, the

same is not helpful as facts are not identical. He invited our

attention to paragraph No.17 of the order under which reference is

made and submitted that it is required to be taken into

consideration why waiver is not included in the provisions. The

Section is to be read as it is. Even, wrongful acts are covered

under the said provisions. There is no waiver as far as public

bodies are concerned. Lastly, he submitted that there was no

occasion for the Court to make reference as there is a consistent

view that the Notice is mandatory and it cannot be waived.

12. Thus, relevant question which arises for consideration is,

whether the suit would lie against the NIT and Notice is

.....15/-

Judgment

293 sa568.17

mandatory under Section 115 of the NIT Act if the action of the

Trust is outside the purview of "in respect of anything purporting

to be done under this Act".

Question No.1 :

13. Before answering question, whether the act done is in

purport of the Act, it is required to see the relevant provisions of

the Code of Civil Procedure which deal with when civil suits are

barred in Civil Courts. Section 9 of the Code of Civil Procedure

reads as under:

Section 9 : Courts to try all civil suits unless barred

- the Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation (I) : A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

.....16/-

Judgment

293 sa568.17

Explanation (II) : For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation (I) or whether or not such office is attached to a particular place.

14. The scope of Section 9 of the Code of Civil Procedure

primarily deals with the questions of Civil Court's jurisdiction to

entertain a cause. There is a strong presumption that Civil Courts

have jurisdiction to decide all questions of civil nature. The

exclusion of jurisdiction of Civil Courts is, therefore, not to be

readily inferred and such exclusion must either be "explicitly

expressed or clearly implied." The "Rule" that exclusion of

jurisdiction of Civil Courts is not to be readily inferred is based on

the theory that Civil Courts are Court of general jurisdiction and

the people have right, unless expressly or impliedly barred. The

object behind is that the citizens have right to access to the Court

of law for redressal of their just grievances.

15. The test adopted in examining such questions is, (i)

whether legislative intent to exclude arises explicitly or by

necessary implications and (ii) whether statute in question

.....17/-

Judgment

293 sa568.17

provides for adequate and satisfactory alternative remedy to a

party aggrieved by an order made under it.

16. In the case of Swamy Atmananda and ors vs. Sri

Ramakrishna Tapovanam and ors19, the Hon'ble Apex Court held

that a person having a grievance as against other must have a

remedy. The maxim 'ubi jus ibi remedium' is not an empty

formality. The jurisdiction of the Civil Court exemplifies the said

doctrine. The jurisdiction of the Civil Court cannot be held to have

been ousted unless it is so, expressly or by necessary implication,

stated in the statute. It is further held that a statute, as is well-

known, must be read in such a manner so as to give effect to the

provisions thereof. It must be read reasonably. A statute must be

construed in such a manner so as to make it workable.

17. The principles, regarding "exclusion of jurisdiction of

Civil Courts", have been laid down by the Constitution Bench of

the Hon'ble Apex Court in the case of Dhulabhai and others vs. The

State of Madhya Pradesh and another20, as under:

19 (2005)10 SCC 51 20 (1966)3 SCR 362

.....18/-

Judgment

293 sa568.17

(1) where the statute gives a finality to the orders of the special tribunals the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure;

(2) where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and

.....19/-

Judgment

293 sa568.17

whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not;

(3) challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals;

(4) when a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit;

(5) where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies;

(6) questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or

.....20/-

Judgment

293 sa568.17

there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry, and

(7) an exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.

18. The Hon'ble Apex Court, in the case of Union of India vs.

Tarachand Gupta and Bros supra, relied by learned Senior Counsel

Shri Manohar, in paragraph No.22, observed that the principle is

that exclusion of the jurisdiction of the Civil Courts is not to be

readily inferred. Such exclusion, however, is inferred where the

statute gives finality to the order of the tribunal on which it confers

jurisdiction and provides for adequate remedy to do what the

Courts would normally do in such a proceeding before it. Even

where a statute gives finality, such a provision does not exclude

cases where the provisions of the particular statute have not been

complied with or the tribunal has not acted in conformity with the

fundamental principles of judicial procedure. The word

"jurisdiction" has both a narrow and a wider meaning. In the sense

.....21/-

Judgment

293 sa568.17

of the former, it means the authority to embark upon an enquiry;

in the sense of the latter it is used in several aspects, one of such

aspects being that the decision of the tribunal is in non-compliance

with the provisions of the Act. Accordingly, a determination by a

tribunal of a question other than the one which the statute directs

it to decide would be a decision not under the provisions of the

Act, and therefore, in excess of its jurisdiction.

19. The Hon'ble Apex Court, in the case of Kishan Lal vs.

State of J & K supra, relied upon by learned Senior Counsel Shri

Manohar, Firm Seth Radha Kishan vs. The Administrator, Municipal

Committee, Ludhiana21 and Provincial Government of Madras vs.

J.S.Basappa22, held that Section 9 of the Code of Civil Procedure

lays down inter alia that the Courts shall have jurisdiction to try all

suits of civil nature, excepting suits of which cognizance is either

expressly or impliedly barred. It is now firmly settled that in

construing these provisions, the fundamental principle of law that

a person having grievance of a civil nature has independently of

any statute, a right to institute a suit in some Court must be

21 ILR 1947 Nagpur 719 22 AIR 1947 Privy Council 1978

.....22/-

Judgment

293 sa568.17

remembered, and every presumption must be made in favour of

the jurisdiction of Civil Courts and exclusion of the jurisdiction of a

Civil Court is not to be readily inferred. The cognizance of a suit of

a civil nature must be expressly and impliedly barred and the

provisions of law ousting the jurisdiction of the Civil Courts must

be strictly construed. In Provincial Government of Madras supra,

while construing effect of Section 18A of the Madras General Sales

Tax Act, the Hon'ble Apex Court observed that "under that

provision, the jurisdiction of the Civil Courts would not be taken

away where action of the authorities is wholly outside the law and

is not a mere error in exercise of jurisdiction."

20. The question referred for determination is, whether the

suit shall lie against the NIT without issuing Notice as

contemplated under Section 115 of the NIT Act, if the action of the

Trust is outside the purview of expression "in respect of anything

purporting to be done under this Act".

21. Section 115 of the NIT Act is reproduced, as under, for

reference:

.....23/-

Judgment

293 sa568.17

115. (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 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 the 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 recover any sum in excess of the amount so tendered and shall also pay all costs incurred by the defendant after such tender.

.....24/-

Judgment

293 sa568.17

22. Before adverting to the issue, it is necessary to

understand meaning of word "purport".

23. "The Law Lexicon" defines word "purport", as used in

speaking of the purport of an instrument, means the substance

thereof as it appears on the face thereof to every eye that reads it,

which means to have as it purports, to profess or claim by its tenor,

substance. "Purport" imports what appears on the face of the

instrument. It is usually intended to express the substance and

effect as appears from the face of the instrument."

"Black's Law dictionary" defines word "purport", as "the

idea or meaning that is conveyed or expressed, especially by a

formal document."

"Concise Oxford Dictionary" defines word "purport" as the

meaning or substance of a document or a speech, the purpose of a

person or a thing: as substance, tenor, to mean, to have as its

purport, to profess or claim by its tenor.

.....25/-

Judgment

293 sa568.17

In Marathi, word "purport" can be expressed as "vfHkizsr

vlysys fdaok gsrw vlysys".

24. A bare perusal of Section 115 of the NIT Act indicates

that no suit shall lie against the Trust or the persons described

under the provisions "in respect of anything purporting to be done

under this Act", until the expiration of two months next after

notice in writing has been left at the office of the Trust or delivered

to or left at the office or place of abode of the person to be sued.

25. Thus, if the action of the Trust falls within the purview of

expression "in respect of anything purporting to be done under this

Act", notice would be essential.

26. The pari materia provision as laid down in other

statutes also, need to be considered.

27. Section 487 of the Bombay Municipal Corporation Act,

reads thus:

(1) No suit shall be instituted against the Corporation or against the Commissioner, or the Transport Manager, or against any municipal officer

.....26/-

Judgment

293 sa568.17

or servant, in respect of any act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act:-

(a)until the expiration of one month next after notice in writing has been, in the case of the Corporation, left at the chief municipal office and, in the case of the Commissioner or of the Transport Manager or of a municipal officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney, advocate, pleader or agent, if any for the purpose of such suit, for

(b) unless it is commenced within six months next after the accrual of the cause of action.

28. Section 64 of the Bombay Housing Board provides "No

person shall commence any suit against the Board or against any

officer or servant of the Board or any person acting under the

orders of the Board for anything done or purporting to have been

done in pursuance of this Act, without giving to the Board, officer

.....27/-

Judgment

293 sa568.17

or servant or person two months previous notice in writing of the

intended suit and of the cause thereof, nor after six months from

the date of the act complained of and, in case of any such suits for

damages, if tender of sufficient amends shall have been made

before the action was brought, the plaintiff shall not recover more

than amounts so tender and shall pay all costs incurred by the

defendant after such tender.

29. Section 179 of the Rajasthan Town Municipalities Act,

reads as follows:

"179. Limitation of suits, etc. -(1) No suit shall be instituted against any municipal board, president, member, officer, servant or any person acting under the direction of such municipal board, chairman, member, officer or servant for anything done or purporting to be done under this Act, until the expiration of two months next after notice in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims, has been, in the case of a municipal board, delivered or left at its office, and, in case of a chairman, member, officer, or servant, or person as aforesaid, delivered to him or left at his

.....28/-

Judgment

293 sa568.17

office or usual place of abode; and the plaint shall contain a statement that such notice has been so delivered or left.

(2) Every such suit shall, unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be dismissed if it is not instituted within six months after the accrual of the alleged cause of action."

30. Section 478 of the Delhi Municipal Corporation Act has a

similar provision.

31. Section 280 of the Maharashtra Zilla Parishads and

Panchayat Samitis Act, reads as under:

280. Limitation of suits, etc.. (1) No suit shall be commenced against any Zilla Parishad or against any officer or servant of, or working under, a Zilla Parishad or any person acting under the orders of a Zilla Parishad or Panchayat Samiti for anything done, or purporting to have been done, in pursuance of this Act, without giving to such Zilla Parishad officer, servant, or person one month's previous notice in writing of the intended suit nor

.....29/-

Judgment

293 sa568.17

after three months from the date of the act complained of. The notice shall state the cause of action, the nature of the relief sought, the amount of compensation claimed and the name of place of abode of the person who intends to bring the action.

(2) In the case of any such suit for damages, if tender of sufficient amends shall have been made before the action was brought, the plaintiff shall not recover more than the amount so tendered, and shall pay all costs incurred by the defendant after such tender.

32. There are two sets of judgments, which interpret

expression "any act done or purported to be done".

33. In The Poona City Municipal Corporation supra wherein

the Hon'ble Apex Court, in the light of Section 487 of the Bombay

Provincial Municipal Corporation Act which is pari materia to

provision as Section 115 of the NIT Act, while interpreting phrase

"purported to be done in pursuance or execution or intended

execution of the Act", interpreted that what is plainly prohibited by

.....30/-

Judgment

293 sa568.17

the Act cannot be claimed "to be purported to be done in

pursuance or intended execution of the Act".

34. In the case of Devi Singh supra, the Hon'ble Apex Court,

while interpreting expression of "any act done or purporting to be

done in pursuance of execution or intended execution of the Act",

held that the question whether a notice under the aforesaid section

was necessary has to be decided on the averments made. It was

never the case of the plaintiff that the defendant Corporation was

acting or purported to act under the provisions of the Act. The

dispute raised related to the ownership of the property as also its

possession, the Court noted that it had not been shown any

provision in the Corporation Act by which the Corporation or its

officers were entitled to either take possession of another person's

property or retain its possession or dispossess a person who was

already in possession without having recourse to the ordinary

remedies under the law, and expressed that it was wholly unable

to understand how Section 56 of the Corporation Act could be of

any avail to the Corporation in the matter of notice under Section

447 of the Act. It also noted that the whole controversy between

.....31/-

Judgment

293 sa568.17

the parties centered on the question whether the Bazaar was the

property of the plaintiff and was in his possession at the time of the

institution of the suit, which had nothing to do with any act done

or purported to be done in pursuance of execution or intended

execution of any provision of the Corporation Act. It was also held

that learned Counsel for the Corporation had not been able to

show how the suit as laid and framed attracted the applicability of

Section 447 of the Corporation Act and thus held that under the

aforesaid section no notice was necessary before the institution of

the suit.

35. In the case of Bombay Housing Board (now the Maharani

Housing Board) supra, in paragraph No.31, the Hon'ble Apex

Court held that an act which is prima facie illegal is not within the

category of acts done or purported to have been done in pursuance

of that Act, and that it is only an act done under a vestige or

semblance of authority or with some show of a right that would fall

within the category. Bhagwati, J. in the course of his judgment said

that the acts which would fall within the category of those done or

purported to have been done in pursuance of the Act could only be

.....32/-

Judgment

293 sa568.17

those which were done under a vestige or semblance of authority,

or with some show of a right and that the distinction between ultra

vires and illegal acts on the one hand and wrongful acts on the

other hand in the sense that they purport to have been done in

pursuance of the Act is that they are intended to have been done in

pursuance of the Act and are done with a vestige or, semblance of

authority or sort of a right invested in the party doing those acts.

36. In the case of Firm Surajmal Banshidhar and others

supra, considering the provisions under the Rajasthan Town

Municipalities Act, 1951, while interpreting legal terminology

"done or purported to be done under the Act", the Hon'ble Apex

Court held that the question, was whether illegal levy of terminal

tax (assuming that it was illegal as held by the High Court) could

be said to be a thing "done or purported to be done" under Act and

held that a similar question arose for consideration of this Court in

the case of The Poona City Municipal Corporation with reference

to the provisions of Section 127(4) of the Bombay Provincial

Municipal Corporation Act, 1949 and it was held that if levy of the

tax was prohibited by the Act concerned and was not in pursuance

.....33/-

Judgment

293 sa568.17

of it, it could not be said to be "purported to be done in pursuance

or execution or intended execution of the Act." It was observed

that what is plainly prohibited by the Act cannot be claimed to be

"purported to be done in pursuance or intended execution of the

Act". It was observed that what was plainly prohibited by the Act

could not be "claimed to be purported to be done in pursuance or

intended execution of the Act." It was therefore held that the suit

was outside the purview of the section 127(4) and was not barred

by limitation.

37. In the case of J.N.Ganatra vs. Morvi Municipality,

Morvi23, while considering the terminology "an act done or

purported to be done in pursuance or execution or intended

execution of this Act" it was held that a power under a statute has

to be exercised in accordance with the provisions of the statute and

in no other manner.

38. In the case of Municipal Corporation of Delhi supra, the

Hon'ble Apex Court, in paragraph No.7, while considering Section

478 of the Delhi Municipal Corporation Act, 1957, held that the

23 AIR 1965 SC 555

.....34/-

Judgment

293 sa568.17

bundle of facts constituting the cause of action which has accrued

to the claimants were the ownership and possession of the tree

vesting in the Corporation, its maintenance by the Corporation, fall

of the branch of the tree over the deceased and the death

consequent to the injury sustained. The causa proxima, i.e., the

immediate cause of action was the fall of the branch of the tree

over the head of the deceased. The fall of the branch of the tree

cannot be attributed to any act done or purporting to have been

done in pursuance of the Act etc. by the Municipal Corporation or

any officer or employee thereof.

39. In the case of Pune Municipal Corporation and another

supra, the Division Bench of this Court, while referring

terminology "any act done or purported to be done in pursuance of

or execution or intended execution of the Act or in respect of any

alleged neglect or default in the execution of the Act", observed

that Section 487 of the Bombay Provincial Municipal Corporation

Act requires a Notice as a condition precedent to the institution of

the suit; but only in respect of "any act done or purported to be

done in pursuance of or execution or intended execution of the Act

.....35/-

Judgment

293 sa568.17

or in respect of any alleged neglect or default in the execution of

this Act." As said earlier, neither the Act nor the rules or the

Standing Order enable the detention of a truck beyond the period

required for making of an assessment. Dogged resistance to the

plaintiff's attempt to secure the release of the truck, was, therefore,

held not to be an act in pursuance or execution or intended

execution of the Act or any neglect of default in the execution of

the Act.

40. A Single Bench of this Court in the case of Nagpur

Municipal Corporation vs. Bhaurao s/o Marotrao Mohod (D) thr.

Legal Heirs24 while considering the phrase has held that the reason

stated by the Courts below for rejecting the objection was that

notice under Section 384 was required to be issued only when the

suit that was filed was in respect of any act done in pursuance or

execution of the provisions of the Act or in respect of any alleged

neglect or default in the execution of the Act or any rule or any

bye-law made under the Act and since the notice dated

18/08/1984 was not issued in pursuance or execution of the Act or

any alleged neglect or default in the execution of the Act, the suit 24 2015(1)Mh.L.J. 596

.....36/-

Judgment

293 sa568.17

as filed by the respondent was not hit by Section 384 of the said

Act. It must be noted here that the notice threatened forcible

eviction of respondent by granting him just 3 days time to vacate

the suit shop, and, therefore, the notice was in clear violation of

Section 106 of the Transfer of Property Act, with the agreement

between the appellant and the respondent being one of lease and

not a licence. It noted that the Act did not confer any special

power on the Corporation to forcibly evict the tenants or lessees

facing a situation as in the present case, bypassing the provisions

of the Transfer of Property Act and powers of Civil Court, and,

therefore, the rejection of its objection by both the Courts below

was held to be legal and proper and was not interfered with.

41. In the case of Shri Gorakshan Sanstha, Akola supra also,

Section 487 of the Municipal Corporation Act was considered and

it has been held that as per provisions of Section 487 of the said

Act protection is granted with regard to any act done or purported

to be done in pursuance or in execution or intended execution of

the said Act. In that regard it was held that unless a notice is given

by the plaintiff with duration of one month and a suit filed within

.....37/-

Judgment

293 sa568.17

six months of the accrual of the cause of action, such suit cannot be

instituted. Having found that the plaintiff-Trust was entitled for

exemption under Section 132(1)(b) of the said Act, it was held

that it was clear that the Trust was not liable to be assessed for

payment of tax, and if that be the situation then issuance of the

demand notice on 04/01/2011 cannot be said to be an act done in

pursuance of or in execution of the provisions of the said Act.

42. In the case of Chief Executive Officer, Zilla Parishad,

Parbhani and another supra also, the Single Bench of this Court,

while considering pari materia provision under Section 280 of the

Zilla Parishads and Panchayat Samitis Act and under Section 180 of

the Bombay Village Panchayats Act, held that from the wording of

Section 180(2) it is clear that Notice is required before institution

of the suit only in cases where action is brought for the act while

acting under anything done or purporting to have done by or

under the said Act.

43. In the light of the above decisions, one more decision is

required to be referred dealing with the meaning of the word

"purport".

.....38/-

Judgment

293 sa568.17

44. In the case of Azimunissa and others vs. The Deputy

Custodian, Evacuee Properties, District Deoria25, it is observed that

"the word "purport" has many shades of meaning. It means

fictitious, what appears on the face of the instrument, the apparent

and not the legal import and therefore any act which purports to

be done in exercise of a power is to be deemed to be done within

that power notwithstanding that the power is not exercisable;

Dicker v. Angerstein(2). Purporting is therefore indicative of what

appears on the face of it or, is apparent even though in law it may

not be so".

45. Thus, the Hon'ble Apex Court held that in regards to the

provision that was before them for consideration, the word

"purport" meant the meaning given to it by them. The very first

sentence shows that the word "purport" has many shades of

meaning which itself sufficiently shows that for purposes of some

statutes, the word "purport" can have a different shade of meaning

than that given to it by the Hon'ble Apex Court in Azimunissa's

case and that the expression "purported to be done under the Act"

25 AIR 1961 SC 365 (V 48 C 59)

.....39/-

Judgment

293 sa568.17

will not include an Act which is wholly outside the provisions of

the Act.

46. Thus, in the catena of decisions, the Hon'ble Apex Court

held that "an act purported to be done under the provisions of the

Act should be in pursuance of execution or intended execution of

the Act or in respect of any alleged neglect or default in the

execution of the Act".

47. Though learned counsel Shri A.C.Dharmadhikari relied

upon the decision in Smt.Jankibai Jaiswal Bahu Uddesiya Sanstha

supra to contend that the expression "in respect of anything

purporting to be done under this Act" employed under sub-section

(1) of section 115 of the NIT Act is comprehensive enough to

include all such acts which are already done and the acts which are

to be done, however, what is conveyed by this expression is that

the act whether done or to be done, has to be purporting to be

done under the Act/Statute.

48. In the case of State of Maharashtra and another vs. Shri

Chander Kant26, relied upon by learned counsel Shri

26 1977(1) SCC 257

.....40/-

Judgment

293 sa568.17

A.C.Dharmadhikari though it has been held that the words "Act

purporting to be done in official capacity" apply to non-feasance

as well as to misfeasance and the word "act" extends to illegal

omissions and no distinction can be made between acts done

illegally and in bad faith and acts done bona fide in official

capacity on account of which it has been held that Section 80 of

the Code of Civil Procedure therefore is attracted when any suit is

filed against a Public Officer in respect of any act purporting to be

done by such Public Officer in his official capacity.

In our considered opinion, the impression in respect of

anything purporting to be done under this Act, has to relate to an

action, which is not only legal, but is also corroborated under the

power conferred by any provision therein on any authority and

cannot be stretched to elude on illegal action or something not

contemplated by the Act/Statute. Such an opinion would make act

illegally done by misuse of the provision of an Act/Statute which

is not warranted in law. Apart from which it would be contrary to

what has been expressed by the Hon'ble Apex Court in the cases of

Devi Singh supra and Bombay Housing Board supra.

.....41/-

Judgment

293 sa568.17

49. In the case of Ram Kumar and ors vs. State of Rajasthan

and ors27, as relied upon by learned counsel Shri

A.C.Dharmadhikari, it has been held that no notice under Section

80 of the Code of Civil Procedure is required before filing suit if the

act done by the public officer is not in discharge of his official

duties, which in fact supports the proposition canvassed by learned

Senior Counsel Shri Manohar.

50. In the case of Nagpur Improvement Trust, through

Chairman vs. Anil Narayanrao Shastri28, law laid down in the case

of Smt.Jankibai Jaiswal Bahu Uddesiya Sanstha supra, is only

reiterated and thus what has been said for Smt.Jankibai Jaiswal

Bahu Uddesiya Sanstha supra would be equally applicable.

51. In the case of The Nagpur Improvement Trust vs.

Bhagwandas29 it is 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 and therefore, all sorts of acts are covered by the

expression "in respect of anything purporting to be done under this 27 MANU/SC/4259/2008 28 (Second Appeal No.419/2005 decided by this court on 22.11.2018) 29 MANU/MH/2245/2020

.....42/-

Judgment

293 sa568.17

Act" employed under sub-section (1) of the NIT Act. This however

militates against what has been held in Bombay Housing Board

supra and Devi Singh supra by the Hon'ble Apex Court.

52. Though further reliance is placed on the decision in the

case of Nagpur Improvement Trust vs. Ashabai30 wherein it is held

that Civil Courts cannot adjudicate the issue about legality and

illegality of the suit without compliance of Notice under Section

115 of the NIT Act, it is equally trite that a person cannot be

rendered remediless, and if the Civil Court cannot adjudicate upon

the issue about legality and illegality for a suit without compliance

with the requirement of a notice under Section 115 of the NIT Act

that would be the situation, as the NIT Act does not then provide

for any other remedy to a person aggrieved by such illegal notice.

53. Thus, learned counsel Shri A.C.Dharmadhikari submitted

that the above decisions clearly indicate that any action taken by

the NIT including cancellation of the allotment falls within the

purview and definition of the Act "purported to be done under the

Act," and, therefore, issuance of Notice and the waiting period

30 MANU/MH/3787/2023

.....43/-

Judgment

293 sa568.17

prescribed that is two months is mandatory. He further submitted

that in view of the settled legal position, the reference to the

Division Bench was not at all necessary and in support of his

contentions, he placed reliance on the decision in the case of Dr.

Parthsarthi S/o Mukund Shukla vs. The Maharashtra Medical

Council, Mumbai31 wherein it is held that Reference is to be made

to the Larger Bench after framing a question germane to the

controversy and when the cause is live and in existence. For

academic purpose, a reference can be made to the Larger Bench,

only if the issue, though not live, is of national importance and in

order to avoid prospective litigation.

54. The question, whether notice was necessary, has to be

decided on the facts and circumstances of each case, wherein the

question regarding taking of possession or retaining of the

possession or dispossessing person, who is already in possession in

question, any authority cannot take the possession without having

recourse to the ordinary remedies under the law. The notice under

Section 115 of the NIT Act is required to be issued only when the

suit filed is in respect of any act done in pursuance or execution of 31 2002(1)Mh.L.J. 737

.....44/-

Judgment

293 sa568.17

the provisions of the Act or in respect of any alleged neglect or

default in the execution of the Act or any Rule or any bylaws made

under the Act. It must be noted that the very act of issuing, even

for eviction, Notice indicating granting of a lesser period than

mentioned in Section 115 of the NIT Act itself is a clear violation of

Section 106 of the Transfer of Property Act and the said act does

not cover under the act purporting to be done under the said Act.

55. In the decisions, on which learned counsel Shri

A.C.Dharmadhikari placed reliance, especially the decision in the

case of Smt.Jankibai Jaiswal Bahu Uddesiya Sanstha supra and

Abdul Jabbar Haji Mohammed Ibrahim supra, the law settled by

the Hon'ble Apex Court was not considered in view of which it was

held that notice under Section 115 of the NIT Act is mandatory,

which in fact will have to be held to be per incuriam.

56. Section 115 of the NIT Act, mandates that no such suit

shall be instituted against the trust or any trustees associated with

the trust or any officer or servant of the trust in respect of anything

purporting to be done under the NIT Act unless Notice in writing

has been given and two months have expired from the date of

.....45/-

Judgment

293 sa568.17

receipt of such notice. There is no other provision in the NIT Act

barring the jurisdiction of the Civil Courts. What is required under

Section 115 of the NIT Act is that before filing of the suit by any

aggrieved person against the trust or its trustees or any person

associated with the trust or any officer or servant of the trust, two

months notice should be given.

57. Thus, so far as the NIT Act is concerned, the jurisdiction of

the Civil Courts is not expressly or impliedly excluded. On the

contrary, the very fact that a provision has been made for giving

two months notice before filing of the suit would show that the

Civil Courts have jurisdiction and its jurisdiction is not excluded or

ousted.

58. A look at the Corporation Act and the NIT Act would

clearly reveal that the provisions of the said Act even if assumed to

have created right or liabilities do not provide any remedy for its

enforcement, entirely. The averments made by the plaintiff in the

plaint if clearly make out a case for infringement of civil right then

jurisdiction of the Civil Courts is clearly attracted more so when

the notice issued is without following due process of law, which is

.....46/-

Judgment

293 sa568.17

not an act purported to be an act/action done under the Act, on

account of which, no such notice is required. Thus, in view of

catena of decisions, levying of tax which is prohibited, levying

excess tax than permitted and dispossessing a person without

following a due process of law, denying compensation on

negligence, forcible possession, are held to be the acts outside the

purview of expression in respect of "anything purporting to be

done under this Act".

59. The Single Bench of this Court, in the cases of

Smt.Jankibai Jaiswal Bahu Uddesiya Sanstha supra and Abdul

Jabbar Haji Mohammed Ibrahim supra , has not considered these

aspects and concluded that notice is mandatory which is not good

law and contrary to the law laid down by the Hon'ble Apex Court.

60. It is well settled that a statute creating a special jurisdiction

must be strictly construed, especially when it has the effect of

depriving the subject of a common law right. As soon as the

powers which are given under the provisions of the Act are

exceeded or transgressed by the authority, the Civil Courts acquire

jurisdiction and such acts would not be covered under the

.....47/-

Judgment

293 sa568.17

expression of "purporting to be done under the Act", so as to afford

a plea of lack of jurisdiction for want of notice.

61. In view of the Hon'ble Apex Court decision, in the case of

Azimunissa and others supra, the expression "purporting to be

done under the Act" will not include an act which is wholly outside

the provisions of Act. The acts like levying of the tax, which are

prohibited or levying excess tax or dispossessing a person without

following a due process of law, are held to be acts outside the

purview of the Act "purporting to be done or to be done under the

Act".

Question No.1 is, therefore, being answered accordingly.

Question No.2

62. The second question which comes for our consideration is,

whether the action of the NIT in issuing the Notice for taking

action in lesser time than as provided in Section 115 of the NIT Act

thereby resulting in depriving the aggrieved party in approaching

the Court for want of compliance with requirement of Section 115

.....48/-

Judgment

293 sa568.17

of the NIT Act would amount to a waiver of the requirement of the

said Section.

63. A bare perusal of Section 115 of the NIT Act, indicates

that no suit shall lie against the Trust or the persons described

under the provisions 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 the 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. Thus, if the action of the Trust falls within

purview of expression "in respect of anything purporting to be

done under this Act" Notice under Section 115 of the said Act

would be mandatory and the person who is aggrieved by the

action of the Trust or the persons described under Section 115 of

the said Act will have to wait for filing of suit after issuing Notice

in terms of the aforesaid provisions.

64. Now, question remains, if the NIT proposes to take action

like removing of structure, Notice to evict lease premises on the

ground of breach of conditions within a period of less than 60 days

would that amount to denial of right of other side to file suit or

.....49/-

Judgment

293 sa568.17

deprivation of right to file suit against the NIT. By such act,

whether the NIT is waiving requirement of Section 115 of the NIT

Act.

65. Before answering the above said questions, let us

understand the expression "waiver".

66. The word "waiver" has been described in Halsbury's Laws

of England, 4th Edition, paragraph No.1471, which is reproduced

for reference as under:

"1471. Waiver - Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted and is either express or implied from conduct. A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or of a statutory provision may waive it, and allow the contract or transaction to proceed as though the stipulation or provision does not exist. Waiver of this kind depends upon concern, and the fact that the other party has acted upon it is sufficient consideration...... It seems that, in general, where one party has by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on

.....50/-

Judgment

293 sa568.17

accordingly, then, once the other party has taken him at his word and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the question which he has himself so introduced, even though it is not supported in point of law by any consideration."

In Halsbury's Laws of England, Vol.16(2), 4th Edition,

paragraph No.901, which is reproduced for reference as under:

901. "The expression 'waiver' may, in law, bear different meanings. The primary meaning has been said to be the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may arise from a party making an election, for example whether or not to exercise a contractual right... Waiver may also be by virtue of equitable or promissory estoppel; unlike waiver arising from an election, no question arises of any particular knowledge on the part of the person making the representation, and the estoppel may be suspensory only...

Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the

.....51/-

Judgment

293 sa568.17

right, without the need for writing or for consideration moving from, or detriment to, the party who benefits by the waiver, but mere acts of indulgence will not amount to waiver; nor may a party benefit from the waiver unless he has altered his position in reliance on it."

67. In general, "waiver" is, when one party has by his words

or conduct made to the other a promise or assurance which was

intended to affect the legal relations between them and to be acted

on accordingly, then, once the other party has taken him at his

word and acted on it, the one who gave the promise or assurance

cannot afterwards be allowed to revert to their previous legal

relations as if no such promise or assurance had been made by

him.

68. The Hon'ble Apex Court in the case of Kalpraj Dharamshi

vs. Kotak Investment Advisors Limited and another 32, observed in

paragraph No.104 that for considering, as to whether a party has

waived its rights or not, it will be relevant to consider the conduct

of a party. For establishing waiver, it will have to be established,

that a party expressly or by its conduct acted in a manner, which is

32 AIR OnLine 2021 Sc 206

.....52/-

Judgment

293 sa568.17

inconsistent with the continuance of its rights. However, the mere

acts of indulgence will not amount to waiver. A party claiming

waiver would also not be entitled to claim the benefit of waiver,

unless it has altered its position in reliance on the same.

69. The Hon'ble Apex Court, in the case of Manaklal vs.

Dr.Prem Chand33, observed that, "it is true that waiver cannot

always and in every case be inferred merely from the failure of the

party to take the objections. Waiver can be inferred only if and

after it is shown that the party knew about the relevant facts and

was aware of his right to take the objection in question. As Sir

John Romilly M. R. has observed in Vyvyan v. Vyvyan34, 'waiver or

acquiescence, like election, presupposes that the person to be

bound is fully cognizant of his rights, and, that being so, he

neglects to enforce them, or chooses one benefit instead of

another, either, but not both, of which he might claim".

70. Thus, it is well settled that a waiver cannot always and in

every case be inferred merely from the failure of the party to take

the objection. Waiver can be inferred, only if and after it is shown

33 1957 SCR 575 34 (1861)30 Beavv. 54

.....53/-

Judgment

293 sa568.17

that the party knew about his right and he neglects to enforce

them or chooses one benefit instead of another. Thus, for applying

principle of "waiver", it will have to be established, that though a

party was aware about the relevant facts, it has neglected to take

such an objection or chose not to take an objection.

71. The Hon'ble Apex Court, in the case of Krishna Bahadur vs.

M/s.Purna Theater and ors35, observed that a right can be waived

by the party for whose benefit certain requirements or conditions

had been provided for by a statute, subject to the condition that no

public interest is involved therein. Whenever waiver is pleaded it is

for the party pleading the same to show that an agreement waiving

the right in consideration of some compromise came into being.

Statutory right, however, may also be waived by his conduct.

72. In the cases of Dawsons Bank Limited vs. Nippon Menkwa

Kabushiki Kaisha36, Basheshar Nath vs. The Commissioner of

Income Tax, Delhi and Rajasthan and anr37, Associated Hotels of

India Limited, Delhi vs. S.B.Sardar Ranjit Singh38, Jaswant Singh

35 (2004)8 SCC 229 36 AIR 1935 PC 79 37 AIR 1959 SC 149 38 AIR 1968 SC 933

.....54/-

Judgment

293 sa568.17

Mathura Singh and anr vs. Ahmedabad Municipal Corporation and

ors39, the Hon'ble Apex Court summarizes term "waiver", as under:

"Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. In fact, it is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them."

73. Thus, the Hon'ble Apex Court by various pronouncements

settles the principles of "waiver" as for constituting "waiver", it

must be established that though a party knows the material facts

and is conscious of his legal rights, in a given matter, but fails to

assert its right at the earliest possible opportunity, it creates an

effective bar of waiver against him. Waiver is an intentional

relinquishment of rights. It involves conscious abandonment of an

existing legal right, advantage, benefit, claim, or privilege. It is an

agreement, not to assert a right. There can be no waiver unless

39 (1992) Suppl. (1) SCC 5

.....55/-

Judgment

293 sa568.17

the person who is said to have waived, is fully informed as to his

rights and with full knowledge about the same, he intentionally

abandons them.

74. In the background of this legal position, we will have to

examine as to whether the Notice of lesser period by the NIT

depriving the other party from approaching the Court amounts to a

waiver of right stipulated in favour of the NIT in view of Section

115 of the NIT Act.

75. In the case of General Manager, Sri Siddeshwara

Cooperative Bank Ltd. & anr. vs. Sri Ikbal & ors. 40, while

considering the plea of waiver vis-a-vis a statutory provision, it is

held that no doubt that Rule 9(1) is mandatory but this provision is

definitely for the benefit of the borrower. Similarly, Rule 9(3) and

Rule 9(4) are for the benefit of the secured creditor (or in any case

for the benefit of the borrower). It is settled position in law that

even if a provision is mandatory, it can always be waived by a party

(or parties) for whose benefit such provision has been made. The

provision in Rule 9(1) being for the benefit of the borrower and

40 (2013)10 SCC 83

.....56/-

Judgment

293 sa568.17

the provisions contained in Rule 9(3) and Rule 9(4) being for the

benefit of the secured creditor (or for that matter for the benefit of

the borrower), the secured creditor and the borrower can lawfully

waive their rights. These provisions neither expressly nor

contextually indicate otherwise. Obviously, the question whether

there is waiver or not, depends on facts of each case and no hard

and fast rule can be laid down in this regard.

76. The Full Bench Judgment of this Court in the case of Vasant

Ambadas Pandit supra has held that the true legal position in this

behalf is that no suit can be instituted without service of the notice

if such service of the notice is required statutorily as a condition

precedent. The giving of the notice is a condition precedent to the

exercise of jurisdiction. But, this being a mere procedural

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

true sense of the term. The same is capable of being waived by the

defendants and on such waiver, the Court gets jurisdiction to

entertain and try the suit. The plea of waiver can always be tried

by the Civil Court. In fact, it is not suggested who else can try. The

question, whether, in fact, there was waiver or not, would

.....57/-

Judgment

293 sa568.17

necessarily depend on facts of each case and would be liable to be

tried by the same Court if raised. The order of rejection of plaint,

therefore, by the Principal Judge of the City Civil Court was

incorrect and liable to be set aside.

The reference was made before the Full Bench as the suit

was instituted by the plaintiff on 1.7.1970 in City Civil Court,

Mumbai against the Bombay Municipal Corporation seeking

declaration that the Notice of the Corporation, Section 351 of the

Act, dated 29.3.1969 was illegal, void, bad in law and

unenforceable. By the said suit, the plaintiff also claimed the

injunction restraining the defendant from enforcing the said

Notice. The defendant No.1 raised a plea that the suit is bad for

want of statutory Notice under Section 527 of the Bombay

Municipal Corporation Act. While answering this reference, the

Full Bench held what has been stated above.

77. Though learned counsel Shri A.C.Dharmadhikari strongly

opposes the above contention by submitting that Section is to be

read as it is, there cannot be waiver when public body is involved,

and the expression, "anything to be done or purporting to be done

.....58/-

Judgment

293 sa568.17

under the Act" even covers wrongful act and, therefore, the Notice

of lesser period cannot be treated as "waiver", for which he places

reliance on the decision of the Hon'ble Apex Court in the case of

Commissioner of Customs, Mumbai vs. Virgo Steels, Bombay and

anr41, what is necessary to note that by referring the earlier

decision in the case of S.Raghbir Singh Gill vs. Gurcharan Singh

Tohra and ors42, Court negatived an argument that the requirement

of Section 94 of the Representation of the People Act, 1951 cannot

be waived. This argument was based on the principle that public

policy cannot be waived. Rejecting the said argument, the Court

held that the privilege conferred or a right created by a Statute, if

it is solely for the benefit of an individual, he can waive it. It also

held that where a prohibition enacted is founded on public policy,

Courts should be slow to apply the doctrine of waiver but if such

privilege granted under the Act is for the sole benefit of an

individual as is the case under Section 94 of the Representation of

the People Act, the person in whose benefit the privilege was

enacted has a right to waive it because the very concept of

privilege inheres a right to waiver. The Hon'ble Apex Court further 41 (2004)4 SCC 316 42 1980 Supp SCC 53

.....59/-

Judgment

293 sa568.17

observed, in paragraph No.14 that from the ratio laid down by the

Privy Council and followed by this Court in the above-cited

judgments, it is clear that even though a provision of law is

mandatory in its operation, if such provision is one which deals

with the individual rights of person concerned and is for his

benefit, the said person can always waive such a right. In

paragraph No.15, the Hon'ble Apex Court considered the

mandatory requirement of issuance of Notice and held that bearing

in mind the above decided principle in law, if the mandatory

requirement of issuance of notice under Section 28 of the Act is

considered, it will be seen that requirement as provided by the

Statute is solely for the benefit of the individual concerned,

therefore, he can waive that right. In other words, though the

section casts a duty on the Officer to issue notice to the person

concerned of the proposed action to be taken, this was not in the

nature of a public notice nor any person other than the person

against whom the proceedings are initiated has any right for such a

notice, thus, this right of notice being personal to the person

concerned, the same can be waived by that person.

.....60/-

Judgment

293 sa568.17

78. Thus, the expression "waiver" is extensively dealt with by

various pronouncements of the Hon'ble Apex Court and this Court

also, which clearly show that "waiver" is an intentional

relinquishment of a right. It is an agreement between the parties

under which the party fully knowing of its right has agreed not to

assert a right and that party expressly or by its conduct has acted

in such a manner which is inconsistent with the continuance of its

right and thus has chosen not to exercise such right.

79. As observed earlier, Section 115 of the NIT Act mandates

that no suit shall be instituted against the Trust or its trustee or any

person associated with the Trust or against any office bearer

servant of the Trust in respect of anything purported to be done

under the NIT Act, unless a Notice in writing has been given and

two months have been expired. It is well settled that right of a

aggrieved person to file a suit affecting his civil right or rights

under common law could always be agitated by filing a civil suit in

the Civil Court, unless the jurisdiction of the Civil Court is

expressly or impliedly barred. The presumption is always in

.....61/-

Judgment

293 sa568.17

favour of the jurisdiction of the Civil Courts and exclusion of the

jurisdiction of the Civil Courts is not to be readily inferred.

80. The Hon'ble Apex Court, in the case of Ramprasad Narayan

Sahi and anr vs. The State of Bihar and ors 43, held that the meanest

of citizens has a right of access to a Court of law for the redress of

his just grievances.

81. Romer, L.J. in Lee vs. Showmen's Guild of Great Britain

[(1952)2 QB 239 (CA)] holds "the Courts jealously uphold and

safeguard the prima facie privilege of every man who take resort to

them for determination and enforcement of his legal rights".

82. In the light of the above well settled legal principles, while

considering rights of the parties by taking into consideration the

provisions under Section 115 of the NIT Act, what is required is

that before filing a suit by an aggrieved person against the Trust or

its trustees or its office bearers or servants, two months Notice

should be given.

43 AIR 1953 SC 215

.....62/-

Judgment

293 sa568.17

83. Thus, so far as the NIT Act is concerned, the jurisdiction of

the Civil Courts is not expressly or impliedly excluded. On the

contrary, it is only interdicted for giving two months notice before

filing of the suit, whereupon the Civil Courts acquire jurisdiction.

The object behind the said notice is to curtail the litigation. The

intention behind the Notice is to make aware the officers that the

act committed by them is illegal act and to give an opportunity to

rectify the same or correct the same, otherwise the action would be

taken against them. But, if the action itself is mala fide or illegal,

then in view of the catena of decisions, the said Notice is not

required. The Full Bench of this Court, while interpreting the pari

materia provision by referring the Apex Court's judgment in the

case of Dhirendra Nath Gorai and Subal Chandrashaw and ors vs.

Sudhir Chandra Ghosh and ors44, observed that in our opinion, the

true legal position in this behalf is that no suit can be instituted

without service of the notice if such service of the notice is

required statutorily as a condition precedent. The giving of the

Notice is a condition precedent to the exercise of the jurisdiction,

but this being the mere procedural requirement, the same does not

44 (1964)6 SCR 1001

.....63/-

Judgment

293 sa568.17

go to the root of jurisdiction in a true sense of the term. The same

is capable of being waived by the defendants and on such waiver,

the Court gets jurisdiction to entertain and try the suit. The plea of

waiver can always be tried by the Civil Courts. In fact, it is not

suggested who else can try. The question whether in fact there is a

waiver or not would necessarily depend on the facts of each case

and is liable to be tried by the same Court, if raised.

84. Thus, from the interpretation laid down in catena of

decisions, while considering the pari materia provisions under the

different Acts, it is apparent that Notice under Section 115 of the

NIT Act would be required to be issued only when the action is in

respect of any act done in pursuance or execution of the provisions

of the Act in respect of any alleged neglect or default in the

execution of the Act or any Rule or any bye-law made under the

Act. The preamble of the Act or purport of the Act is to properly

plan all types of construction, regular housing scheme, maintaining

city streets, drainage, sanction, and other city improvement

scheme. If the Notice is issued for demolition of structure for

eviction mentioning lesser time than what is given under Section

.....64/-

Judgment

293 sa568.17

115 of the NIT Act as a result of which the other party is deprived

from approaching the Civil Courts in violation of Section 106 of the

Transport of Property Act, when the act does not confer any special

power on the NIT to either forcible demolition of the structure or

evict tenants or lessees which is not the act in pursuance or

execution or within purport of the Act, no notice would be

required. There is no provision in the NIT Act by which the NIT or

its officers are either entitled to take possession of the property of

other person or retain its possession or dispossess a person who is

already in possession without having recourse to the ordinary

remedies under the law. This would not be an act done or

purported to be done in pursuance of execution or intended

execution of any provision of the Corporation Act. Therefore,

issuing a Notice mentioning a lesser period than mentioned in

Section 115 of the NIT Act and depriving the other party to

approach the Civil Courts and depriving him from asserting his

right under the common law by ignoring the provisions which is

for the benefit of the Trust and the Trust has chosen not to act as

per the provisions amounts to "waiver". Such "waiver" can be

ascertained from the conduct of the parties. In every case when the

.....65/-

Judgment

293 sa568.17

NIT, initiates an action or intends to do so, it is aware of what its

rights are and of the party too, to whom notice has been given. In

such circumstances, if the action is intended to be taken within a

time frame, which would make the person against whom such

action is to be or intended to be taken, unable to comply with the

requirement of giving the statutory notice under Section 115 of the

NIT Act, then such action on part of the NIT would amount to a

waiver of the requirement of such notice, thereby, permitting the

Civil Court to entertain and decide the suit. Thus, in a given case,

if the Trust knows the material facts and is also conscious about its

legal rights, but fails to observe or assert the said legal right and

issues a Notice of intending action of a lesser period affecting the

right of the other side is an intentional relinquishment of right, it is

conscious abandonment of an existing legal right amounts to

"waiver".

85. Recently, the Hon'ble Apex Court, in the case of Kalpraj

Dharamshi supra, by referring the catena of decisions, observed

that for constituting acquiescence or waiver, it must be established

that though a party knows a material facts and is conscious of legal

.....66/-

Judgment

293 sa568.17

rights in a given matter, but fails to assert its right at the earliest

possible opportunity, it creates an effective bar of waiver against

him. Whereas, acquiescence would be a conduct where a party is

sitting by, when another is invading his rights. The acquiescence

must be such as to lead to the inference of a licence sufficient to

create a new right in the defendant. Waiver is an intentional

relinquishment of a right. It involves conscious abandonment of

an existing legal right, advantage, benefit, claim, or privilege and it

is an agreement not to assert a right. There can be no waiver,

unless the person who is said to have waived, is fully informed as

to his rights and with full knowledge about the same, he

intentionally abandons them.

86. In view of that, the act of issuing the Notice of a lesser

period than mentioned in the provision is abandonment of a right

or it is a choice of the NIT not to exercise the right and, thus,

amounts to "waiver" by conduct.

87. In the light of the above discussion, the questions,

therefore, are answered as under:

.....67/-

Judgment

293 sa568.17

1. Whether suit shall lie against the Nagpur

Improvement Trust without issuing a Notice under

Section 115 of the Nagpur Improvement Trust Act,

1936 if the action of the Trust is outside the

purview of expression "in respect of anything

purporting to be done under this Act" used in the

said provision?

Answer: The word "purport" has many shades of

meaning. The expression "purporting to be done

under the Act" will not include an act which is

wholly outside the provisions of the Act. It cannot

be gainsaid that the actions, like demolition of

structure, eviction of tenants, retaining the

possession or forcible eviction by granting him

lesser period and depriving the other party from

challenging the action, are not in pursuance or

execution of the Act.

In the light of the observations of the Hon'ble Apex

Court in Azimunissa's case supra, the expression

.....68/-

Judgment

293 sa568.17

"purporting to be done under the Act" will not

include an act which is wholly outside the

provisions of the Act, therefore, the Notice of two

months is not mandatory in such a situation.

2. Whether the action of the Nagpur Improvement

Trust in issuing a Notice for taking action in lesser

time than as provided in Section 115 of the Nagpur

Improvement Trust Act, 1936 thereby resulting in

depriving aggrieved party in approaching the Court

for want of compliance with requirement of the said

Section, would amount to a waiver of the

requirement of Section 115 of the said Act?

Answer: The Trust is fully aware about its rights

enshrined under Section 115 of the NIT Act. The

requirement or condition is included for the benefit

of the Trust. The Trust is fully cognizant of its

rights, but neglecting so, chooses one benefit

instead of another. The action of the NIT in issuing

Notice of a lesser period deprives the right of other

.....69/-

Judgment

293 sa568.17

party by its own conduct acted in a manner which is

inconsistent with the continuance of its right and

amounts to waiver of the right.

(M.W.CHANDWANI, J.) (URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 11/10/2024 16:38:17