The main legal point established in the judgment is the necessity for proper consideration of the waiver issue under sec. 115 of the NIT Act in the context of the maintainability of the suit and the grant of temporary injunction.

JUDGMENT

1. Heard.

2. Rule. Rule made returnable forthwith. The writ petition is heard finally with the consent of the learned counsel appearing for the rival parties. Though respondent No.6 is served, none has appeared on its behalf.

3. The Petitioner-Nagpur Improvement Trust (NIT) is aggrieved by concurrent orders passed by the two Courts below, whereby application for temporary injunction filed by respondent Nos.1 and 2 herein (original plaintiffs) stood granted and the petitioner has been temporarily restrained from confirming auction sale in favour of prospective leaseholders and also from making any development on the suit property. According to the petitioner, both the Courts below failed to properly analyze the material on record, while rendering findings on the well-known parameters for grant of temporary injunction i.e. strong prima facie case, grave and irreparable loss that the plaintiffs may suffer in the absence of an order of temporary injunction and the balance of convenience being in favour of the plaintiffs.

4. The facts in brief leading to filing of the present writ petition are that the petitioner as the Planning Authority initiated acquisition of land bearing Khasra No.155/1 in Mouza Nari, District Nagpur and framed a scheme for development called Indora Housing Accommodation Scheme. After acquisition of the land, possession was taken and compensation was paid to the original owners of the said land. In the process of development, advertisement was issued for auctioning plots located in the said Khasra No.155/1 and auction was completed in favour of the auction purchasers.

5. When further steps in the matter were to be undertaken, in October, 2018, respondent Nos.1 and 2 filed suit bearing Regular Civil Suit No.1112 of 2018 for permanent injunction against the petitioner and other defendants, seeking to permanently restrain the petitioner from auctioning specific plots mentioned in the prayer clause, claiming that the said plots were wrongly presumed to be in Khasra No.155/1, while such plots were actually located in Khasra No.155/2, allegedly belonging to respondent Nos.1 and 2. In the said suit, the aforesaid respondents moved an application for temporary injunction. There were further applications moved on behalf of respondent Nos.1 and 2 for ancillary reliefs in the light of subsequent developments in the matter. Essentially, respondent Nos.1 and 2 sought to restrain the petitioner from confirming the auction sale during the pendency of the suit.

6. The petitioner filed a consolidated reply and written statement to the aforesaid suit and the application for temporary injunction. At the outset, the petitioner raised a preliminary objection regarding maintainability of the suit, in view of the bar under sec. 115 of the Nagpur Improvement Trust Act, 1936, (hereinafter referred to as the NIT Act), which specifically provides that no suit can be instituted against the NIT until expiration of two months after issuing a notice in writing to the NIT. According to the petitioner-NIT, the suit itself was not maintainable in the absence of compliance with sec. 115 of the NIT Act. The petitioner NIT further stated that respondent Nos.1 and 2 were deliberately trying to create confusion as regards the identity of the plots that were subject matter of the auction sale and that certain orders were already passed by the Revenue Authorities regarding identity of the land against respondent Nos.1 and 2. It was specifically stated that the land in Khasra No.155/2 was known as Poddar Layout and that there was already a building constructed thereon, which was occupied. It was also stated that Khasra No.155/2 was clearly located in City Survey No.453 and that Khasra No.155/1 was located in City Survey No.454, thereby demonstrating that respondent Nos.1 and 2 were not justified in seeking temporary injunction against the petitioner-NIT. It is significant that before this Court the petitioner also placed on record a subsequent