Acts 'Wholly Outside' Nagpur Improvement Trust Act Don't Mandate S.115 Notice; Short Notice by NIT Constitutes Waiver: Bombay High Court (Nagpur Bench) - 2025-05-14

Bombay High Court Clarifies Scope of S.115 NIT Act: Notice Not Mandatory for Acts "Wholly Outside" the Act, Short Notice by NIT Amounts to Waiver

Nagpur, Maharashtra - In a significant ruling, the Nagpur Bench of the Bombay High Court, comprising Justices Urmila Joshi-Phalke and M.W. Chandwani, has clarified the applicability of Section 115 of the Nagpur Improvement Trust Act, 1936 (NIT Act), which mandates a pre-suit notice to the Trust. The Division Bench held that a suit can be filed against the Nagpur Improvement Trust (NIT) without such notice if the Trust's action is "wholly outside the purview" of acts "purporting to be done under this Act." Furthermore, if the NIT issues a notice demanding action in a period shorter than that prescribed in Section 115, thereby preventing the aggrieved party from complying with the statutory notice requirement, it amounts to a waiver of said requirement by the NIT.

The judgment, pronounced on October 10, 2024, in Second Appeal No.568 of 2017 (Nagpur Improvement Trust vs. Jain Kalar Samaj), addressed two critical questions referred to the Division Bench due to inconsistent views previously taken by Single Judges of the Court.

Background of the Reference

The need for these questions arose from differing interpretations of Section 115 of the NIT Act. Some earlier judgments held that the pre-suit notice was mandatory for civil courts to adjudicate any issue against the NIT. Conversely, the Supreme Court, in The Poona City Municipal Corporation vs. Dattatraya Nagesh Deodhar (interpreting a similar provision), had ruled that such protection is available only for acts genuinely done or purported to be done under the relevant statute, not for acts plainly prohibited by it.

The factual context, though not directly material to the referred questions, involved the NIT allotting land to Jain Kalar Samaj, a public trust. The NIT later issued a notice on March 19, 2005, cancelling the lease and demanding removal of structures within 30 days, alleging breach of lease terms.

The two questions before the Division Bench were: 1. Whether a suit shall lie against the NIT without issuing a notice under Section 115 of the NIT Act if the Trust's action is outside the purview of "in respect of anything purporting to be done under this Act"? 2. Whether NIT issuing a notice for taking action in lesser time than provided in Section 115, thereby depriving the aggrieved party from approaching the Court for want of compliance, would amount to a waiver of the requirement of Section 115?

Arguments Presented

Shri S.V. Manohar, Senior Counsel for the respondent (Jain Kalar Samaj), argued that Section 9 of the Civil Procedure Code (CPC) grants civil courts jurisdiction unless expressly barred. Section 115 NIT Act is a condition precedent, not a complete bar. If an action is mala fide or not in pursuance of the NIT Act, no notice is required. He contended that NIT issuing a shorter notice period amounts to waiver by conduct.

Shri A.C. Dharmadhikari, counsel for the appellants (NIT), submitted that Section 115 is mandatory to protect public interests. The phrase "purporting to be done under this Act" is comprehensive, covering even wrongful acts. He argued against waiver for public bodies and asserted that previous court views supported the mandatory nature of the notice.

Court's Analysis and Reasoning

Question 1: Necessity of Notice for Acts "Outside the Purview"

The Court began by affirming the strong presumption of jurisdiction for civil courts under Section 9 CPC, which can only be excluded explicitly or by necessary implication. It emphasized the citizen's right to access courts for redressal.

The Bench meticulously analyzed the term "purport," referencing various legal dictionaries. It concluded that "purporting to be done under this Act" implies an action that bears some connection to the powers and functions conferred by the Act.

Crucially, the Court relied on the Supreme Court's decision in The Poona City Municipal Corporation , which held 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 also cited Azimunissa and others vs. The Deputy Custodian , stating: > "the expression 'purported to be done under the Act' will not include an act which is wholly outside the provisions of the Act."

The Court observed that previous Single Bench decisions holding the notice under Section 115 NIT Act as invariably mandatory (e.g., Smt. Jankibai Jaiswal Bahu Uddesiya Sanstha ) had not considered the Apex Court's settled law and were thus per incuriam.

The judgment clarified: > "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." (Para 48)

Acts such as levying prohibited taxes, illegal dispossession, or actions taken without due process are considered outside the purview of "anything purporting to be done under this Act."

Question 2: Waiver of Notice Requirement by NIT's Conduct

Addressing the second question, the Court delved into the legal concept of "waiver," defined as an intentional relinquishment of a known right, which can be express or implied from conduct. The Court referred to Halsbury’s Laws of England and several Supreme Court judgments, including Kalpraj Dharamshi vs. Kotak Investment Advisors Limited .

It cited the Full Bench judgment of the Bombay High Court in Vasant Ambadas Pandit vs. Bombay Municipal Corporation , which held that a statutory notice requirement, being a procedural one for the defendant's benefit, can be waived.

Applying this to the NIT Act, the Court reasoned that Section 115 provides a two-month notice period primarily for the benefit of the Trust, allowing it an opportunity to rectify its actions and avoid litigation. However, if the NIT itself issues a notice demanding action (like demolition or eviction) within a period shorter than these two months, it effectively prevents the aggrieved party from complying with the Section 115 notice requirement before seeking legal recourse.

The Court stated: > "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." (Para 84)

And further: > "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." (Para 86)

Final Decision and Implications

The Division Bench answered the referred questions as follows:

Regarding the necessity of notice : The expression "purporting to be done under the Act" will not include an act wholly outside the Act's provisions. Actions like demolition, eviction with lesser notice, or forcible eviction depriving the other party of legal challenge are not considered in pursuance or execution of the Act. Therefore, the two-month notice under Section 115 NIT Act is not mandatory in such situations.

Regarding waiver : If the NIT, being aware of its rights under Section 115 (which is for its benefit), issues a notice for action in a lesser period, thereby depriving the other party of its right to approach the court after due notice, this conduct amounts to a waiver of the Section 115 notice requirement by the NIT.

This landmark judgment significantly clarifies the procedural hurdles faced by citizens seeking to challenge actions of the Nagpur Improvement Trust. It reinforces the principle that statutory protections for public bodies do not extend to actions that are ultra vires or arbitrarily curtail the common law rights of individuals to seek justice.