Smt. Jankibai Jaiswal Bahu Udhesiya Sanstha Vs. Nagpur Improvement Trust and Another - Court Judgment

Excerpt:
nagpur improvement trust act – section 115 – second appeal is filed against the order – trial court held that the plaintiff has failed to establish the resolution passed by the respondent allotting the plot to the corporation was illegal – suit was bad for want of notice – appellate authority also confirmed the decision – contention against the order is cancelling the resolution allotting the plot in favour of the plaintiff is arbitrary and nullity. (para 1, 2 and 3). nagpur improvement trust act – section 115 – no suit shall be instituted against the trust or any officer or servant of the trust until the expiration of two months notice – plaint shall contain a statement that such notice has been go delivered – the very suit shall be dismissed unless it is instituted within six months from the date of the accrual of alleged cause of action. (para 7). court held – civil court cannot proceed to adjudicate over the issues unless the institution of civil proceedings is in compliance with section 115 of the said act – suit filed without complying the mandatory provision is not maintainable – relied decision of the petitioner is not applicable to this case – second appeal is dismissed. (para 8, 9 and 10). cases referred: 1. city of nagpur corporation, nagpur vrs. indian gymkhana, nagpur, reported in 2010(3) mh.l.j. 196 2. poona city municipal corporation; fulchand purushottam shah vrs. dattatyraya nagesh deodhar, reported in air 1965 sc 555 3. girish manohar wazalwar vrs. purushottam parasram kotangale reported in 1996 mh.l.j. 673 4. state of maharashtra and another vrs. shri chander kant, reported in (1977) 1 scc 257 comparative citations: 2013 (1) mah.l.j 229, 2013 (1) all mr 55oral judgment: 1] the appellant is the society registered under the societies registration act and it had filed regular civil suit no.604/1986, challenging the resolution passed by the nagpur improvement trust on 20.01.1985 for allotment of the suit plot to the nagpur municipal corporation. the case of the plaintiff in the suit was that on 20.02.1985, the nagpur improvement trust passed a resolution no. 3(b), deciding to allot the plot in question to the plaintiff and the proposal in respect of the same was sent to the state government for sanction on 03.05.1985. however, without cancelling the said allotment, the plot was allotted to the nagpur municipal corporation on 15.03.1986, which is arbitrary and illegal. 2] the trial court by its judgment and order dated 8th september, 1989, dismissed the said suit holding that the plaintiff has failed to establish that the resolution passed by the nagpur improvement trust on 15.03.1986 allotting the plot to the nagpur municipal corporation was illegal. the trial court has further held that the suit was bad for want of notice under section 115 of the nagpur improvement trust act. 3] in regular civil appeal no. 328/1989 preferred by the plaintiff, the appellate court has held that the action of the nagpur improvement trust in cancelling the resolution dated 20.02.1985 allotting the plot in favour of the plaintiff was arbitrary and nullity. however, the appeal is dismissed by concurring with the finding of the trial court that the suit was bad in law for want of notice under section 115 of the nagpur improvement trust act. hence, the plaintiff is the appellant and the defendants are the respondents before this court. 4] on 06.03.1995 this court admitted the appeal and framed the following substantial question of law; whether in the facts and circumstances of the case, notice under section 115 of nagpur improvement trust act was mandatory for filing suit by the plaintiff against the n.i.t.? 5] the contention of shri kshirsagar, the learned counsel appearing for the plaintiff is that, the subject matter of the suit was the resolution dated 15.03.1986 passed by the nagpur improvement trust, allotting the plot in question to the nagpur municipal corporation. hence, it is this act already done, which was the subject matter of suit and not covered by the phraseology “in respect of anything purporting to be done under this act” employed under sub-section (1) of section 115 of the nagpur improvement trust act. he has further urged that the appellate court has categorically recorded the finding that the action of nagpur improvement trust in cancelling the resolution of allotment in favour of the plaintiff is arbitrary and nullity and in view of this, it is his submission that such an act cannot be one which is to be done under the act. hence, the provision of section 115 of the nagpur improvement trust is not attracted. he has relied upon the following decisions of this court and hon'ble apex court. (i) city of nagpur corporation, nagpur vrs. indian gymkhana, nagpur, reported in 2010(3) mh.l.j. 196 (ii) poona city municipal corporation; fulchand purushottam shah vrs. dattatyraya nagesh deodhar, reported in air 1965 sc 555 (iii) girishmanohar wazalwar vrs. purushottam parasram kotangale reported in 1996 mh.l.j. 673 6] shri chhabra, the learned counsel for the defendants has relied upon the decision of this court in case of abdul jabbar haji mohammed ibrahim vrs. the chairman, nagpur improvement trust, nagpur and another, delivered in civil revision application no. 345/1993, on 2nd april, 1993, to urge that the provision of section 115(1) of the nagpur improvement trust act has been held to be mandatory and for want of notice, the suit is liable to be dismissed. he has also relied upon the another decision of this court in civil revision application no. 937/1993 in case of akbar karimuddin malik vrs. nagpur improvement trust and another, decided on 25th september, 1995, for the same proposition. 7] in order to appreciate the contentions raised, the provision of section 115 of the nagpur improvement trust act, 1975, will have to be seen. hence, the same is reproduced below; “115. notice of suit against trust etc. (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 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 recovery any sum in excess of the amount so tendered and shall also pay all costs incurred by the defendant after such tender. the expression “in respect of anything purporting to be done under this act” employed in sub-section (1) of section 115 of the act is comprehensive enough to include all such acts which are already done and the acts which are to be done. what is conveyed by this expression is that the act whether done or to be done, is purporting to be done under the act by the nagpur improvement trust. hence, the argument that the provision is not attracted in case of the acts which are already done, cannot be accepted. 8] the second contention that the appellate court has already recorded the categorical finding that the action of nagpur improvement trust in cancelling the resolution of allotment in favour of the plaintiff is arbitrary and nullity, clearly takes out the case from the ambit of sub-section (1) of section 115 of the act also cannot be accepted. the point is concluded by the decision of this court in case of abdul jabbar haji mohammed ibrahim, cited supra, against the plaintiff. para 5 of the said judgment being relevant, the same is reproduced below; “5. unequivocally, it issues a prohibitory writ against the court from institution of any suit, questioning the act of the trust, its authorities, officers or servants unless the condition laid down therein is fully complied with. undisputedly, as discussed, notice under the said provision was issued on 30.12.1987 whereas the suit was filed on 22.01.1987 before the expiry of the period as stipulated, on 28.01.1987. the provision expressly prohibit the institution of the suit itself unless the period as mentioned, is expired. it is tried to urge by mr. p.k.mishra that these provisions would not be applicable if the act of the authority is contrary either to the provisions or they are without any authority. hence, according to mr. p.k.mishra, even without complying with the provisions of section 115 of the nagpur improvement trust act, he can institute the suit. the argument as advanced is completely misconceived. on the averments as made in the plaint, the question to be adjudicated by the court would be, as to whether the act impugned is in conformity with the provisions of the act. the civil court cannot proceed to adjudicate over the issue unless the institution of civil proceeding is in compliance with section 115 of the act. mandate of section 115 is clear and unambiguous. the suit filed as sue without complying with the mandatory provisions of section 115 of the act is not maintainable and is liable to be dismissed.” this court has thus taken a view that the question to be adjudicated by the court would be as to whether the act impugned is in conformity with the provisions of the act. the civil court cannot, therefore, proceed to adjudicate over the issue unless the institution of civil proceeding is in compliance with section 115 of the said act. it has been held that the suit filed without complying with the mandatory provisions of section 115 of the said act is not maintainable and is liable to be dismissed. apart from this, the requirement of issuance of notice under section 115 of the said act would not depend upon the finding recorded by the civil court holding that the action of the nagpur improvement trust impugned in the suit is arbitrary and nullity. the maintainability of the suit has to be decided at the very threshold. 9] in case of state of maharashtra and another vrs. shri chander kant, reported in (1977) 1 scc 257, the apex court has construed the expression “act purporting to be done in official capacity” employed under section 80 of code of civil procedure to include the acts of nonfeasance as well as misfeasance. it has been 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. in view of this, all sorts of acts are covered by the expression “in respect of anything purporting to be done under this act” employed under sub-section (1) of section 115 of the said act. 10] the decisions relied upon by shri kshirsgar, the learned counsel for the appellant/plaintiff are not on the interpretation of section 115 of the nagpur improvement trust act. he has, however, urged that the same phraseology, as has been used under section 115(1) of the said act, has been construed in those judgments. the judgment of the apex court in poona city municipal corporation, and of this court in case of girishmanohar wazalwar, cited supra, relied upon by shri kshirasagar does not deal with the requirement of issuance of notice before filing of the suit. the decision of this court in city of nagpur corporation, nagpur's case, cited supra, is based upon the apprehended injury. the present case complains about the act which is already done and hence, the said decision is also not applicable. 11] in the result, the substantial question of law is answered accordingly and the second appeal is dismissed. no orders as to costs. 12] the learned counsel appearing for the appellant at this stage prays for stay of the effect and operation of this judgment for a period of 8 weeks on the ground that the appellant/plaintiff is in possession of the suit property and in view of the dismissal of the second appeal, the respondent nagpur improvement trust is likely to take possession of the suit property. the learned counsel appearing for the nagpur improvement trust disputes this position and submits that the possession is that of the nagpur improvement trust. in view of this, the parties are directed to maintain status quo for further period of eight weeks. the order of status quo shall stand automatically vacated after expiry of eight weeks.