Nagpur Improvement Trust, through the Chairman, Civil Lines vs Kishorchand

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(Bom) 1011

In the High Court of Bombay at Nagpur
A.P. BHANGALE, J.
Nagpur Improvement Trust, through the Chairman, Civil Lines
Versus
Kishorchand
Second Appeal No. 558 of 2007
Decided on: 29-04-2014

Advocates Appeared:
For the Appellant:R.O. Chhabra, Advocate.
For the Respondent:D.G. Paunikar, Advocate.

Headnote:Nagpur Improvement Trust Act, 1936 - Section 115 - Issuance of pre-suit statutory notice under. - Non- compliance of mandatory provision of Section 115 of Act, in absence of any exceptional ground, renders civil suit not maintainable. - If the pre-suit statutory notice is required to be issued and served by the mandate of law before the institution of the civil suit it has to be so issued and served upon the opposite party, unless any exceptional ground is made out as a valid acceptable excuse for non-compliance of the mandatory provision in the fact and circumstances of the particular case. The valid excuse may be upon the plea of the "deemed waiver" on the part of the opposite party. When the suit is instituted for apprehended cause of action i.e. threatened action of demolition, in such a case, the plaintiff not being able to issue and serve the pre-suit; statutory notice, as required under the law is compelled in the facts and circumstances to approach the Civil Court. In a given case, the plaintiff may plead such exception requiring him to immediately approach the Civil Court after having received the notice from the planning/Municipal authority apprehending the urgent demolition of the suit property; when notice of urgent and likely demolition is given by the Municipal Authority or planning authority, public authority as the case may be, it leaves no sufficient notice period for the plaintiff to wait until the expiry of the statutory notice period for the issuance and service of the pre-suit statutory notice according to law as he is apprehending the urgent action by or on behalf of the public/local planning authority to demolish the suit house/structure.
       The suit on the basis of an imminent apprehension of the demolition/loss of suit house or structure so as to restrain the local planning authority from demolishing the suit house/structure has been held tenable in such a "Quia timet" injunction suits wherein the plaintiff had no any period of time left for to issue and serve the pre-suit statutory notice and then to wait until the expiry of the statutory notice period. "Quia timet" injunction is granted in a suit for injunction against the defendant in respect of an act threatened but not yet committed. In such a suit, it cannot be possible for the plaintiff to issue and serve pre-suit statutory notice as required under law as act is not yet committed, though threatened.
       If the plaintiff could not have issued and served written pre-suit statutory notice and could not have waited as required under the law, the Civil Court may hold the suit tenable on the principle of the "deemed waiver" by the defendant of the pre-suit statutory notice as the defendants by their conduct of threatening action of early demolition prevented the plaintiff from issuing and serving pre-suit statutory written notice as required by law. There is no substantial question of law requiring answer in this regard. The relevant law is clear.

JUDGMENT

1. This appeal is filed by the appellant/Nagpur Improvement Trust (Original Defendant) (hereinafter for brevity referred to as “ the NIT”), against the Judgment and Order, dated 16.1.2006 passed by the 3rd Additional District Judge, Nagpur in Regular Civil Appeal No. 111 of 1999, which was disposed of on the ground that it became infructuous. The said appeal arose from the Judgment and Order, dated 19.12.1998 passed by the Joint Civil Judge(J.D.), Nagpur in Regular Civil Suit No.1699 of 1996. The suit was decreed for declaration that the notice No. DO (West) 251, dated 18.6.1996 and notice No.DO (west) 252, dated 4.7.1996 issued by the defendants to the plaintiff are illegal, null and void.

2. Brief facts are:

That the respondent/plaintiff claimed that he is owner of the ground floor of the two storied house no. 569, Nazul plot no.106/5, City Survey no. 405/1 in ward no.3, Joshiwadi, Sitabuldi, Nagpur. The plaintiff also claimed that he was in possession of the first floor and one room situated on the second floor. The respondent (Original plaintiff) had filed the suit for declaration and permanent injunction against the then Planning Authority/the NIT challenging the notices dated 18.6.1996 and 4.7.1996 issued by the appellant/the NIT calling upon the plaintiff that the construction carried out by the plaintiff is unauthorised and liable to be removed or demolished. The notices were challenged as illegal and mala fide. Respondent/plaintiff had carried out the repairs which were required in respect of the premise occupied by him after obtaining the sanction from the Nagpur Municipal Corporation (hereinafter referred to as “the NMC”) to carry out the minor repairs. The appellant (Original defendant) had carried out the inspection and then issued the notices which were impugned by the plaintiff as illegal and void. The trial Court accepted case of the plaintiff and declared the notices impugned as illegal.

3. The Government of Maharashtra had permitted the Nagpur improvement Trust, (NIT) being a local authority to exercise powers under the Maharashtra Regional and Town Planning Act. 1966 (hereinafter referred as “ the MRTP Act”) as the planning authority under the said Act, pursuant to the notification issued by the Government in Urban Development, Public Health and Housing Department bearing no. TPS-2467-19866-M, dated 6th October 1967. State of Maharashtra by notification bearing no. TPS. 2401-855-CR-76-UD-9 issued on dated 27th February, 2002 and published on 11th March, 2002 in the Official Gazette decided to permit the Nagpur Municipal Corporation (NMC) to exercise the power of a planning authority under the MATP Act in the entire area under its jurisdiction except with limited number of seven exceptions namely:

(a) 1. Eastern Industrial area street scheme covering area of H320.60 R

2. Itwara Station Road street Scheme H 4.77R

3. Sitabuldi (west) improvement scheme H6.15R

4. Abhyankar Road & Buti Mahal street scheme H3.24R

5. Wathoda extension Housing accommodation Scheme (New scheme) H170.00R

6. Shivangaon –Jaitala Township (New scheme) H 257 .00R

7. Green Belt control scheme H 6447.00R

Total in Hectares : 7208.76 R

The State Government of Maharashtra notified that notwithstanding provision (a) above, in areas which come under the purview of Nagpur Municipal Corporation as planning authority, NIT will not be required to secure development permission from the Nagpur Municipal Corporation with regard to developments undertaken by it in its capacity as development agency, and for limited purpose, it shall function as planning authority for such developments. This notification became operative since it was published by notification in the official Gazette on 11 March 2002.

4. The appeal was admitted upon the substantial question of law stated as under:

Whether pending appeal filed by the Nagpur Improvement Trust becomes infructuous in view of the notification issued by the Government of Maharashtra on 27.2.2002 transfer

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2014 Supreme(Bom) 1011

In the High Court of Bombay at NagpurA.P. BHANGALE, J.Nagpur Improvement Trust, through the Chairman, Civil Lines Versus KishorchandSecond Appeal No. 558 of 2007 Decided on: 29-04-2014

In the High Court of Bombay at Nagpur
A.P. BHANGALE, J.
Nagpur Improvement Trust, through the Chairman, Civil Lines
Versus
Kishorchand
Second Appeal No. 558 of 2007
Decided on: 29-04-2014