Nagpur Improvement Trust Asking To Vacate Land In 30 Days 'Waives' 2 Month Notice Allottee Has To Give Before Filing Lawsuit: Bombay HC

In a case concerning the interpretation of Section 115 of Nagpur Improvement Trust (NIT) Act wherein a person can sue the authority only after two months from the expiry of his notice to the authority, the Nagpur Bench of the Bombay High Court said that NIT's conduct in asking a party to vacate a land in 30 days in turn amounted to a waiver of Section 115's mandate. For context, Section 115 of the NIT Act provides that no suit shall be filed against the NIT in respect of anything 'purporting to be done under the NIT Act' unless a Notice has been given and two months have expired from the date of receipt of such notice. Notably, the NIT is a Local Planning Authority constituted Under Urban Development Department of the Maharashtra government. After referring to various pronouncements on the principle of waiver, a division bench of Justice Urmila Joshi Phalke and Justice M.W Chandwani said, “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”.The bench observed that in every case when 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. Therefore, the court said, in such circumstances, if the action is intended to be taken within a given time frame, which would make the aggrieved person unable to comply with the requirement of giving the statutory notice under Section 115 NIT Act to the authority, then such an action on NIT's part would amount to a waiver of the requirement of Section 115 notice. This would thereby enable the civil court to entertain and decide the suit. BackgroundIn 1960, NIT allotted a land in favour of one Jain Kalar Samaj (respondent trust) for construction of Hostel Building and in 1966 the NIT executed a lease deed in favour of the respondent trust which was till 1991 and was further renewed for the next 30 years. Thereafter NIT claimed that the respondent trust breached the terms of lease deed and through its 2005 notice cancelled the allotment letter/Lease Deed . It also called upon the respondent trust to remove its belongings and structure over the allotted land within 30 days of receipt of its notice and to 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 division bench was constituted due to inconsistent views taken by the single judge bench of the high court in Abdul Jabbar Haji Mohammed Ibrahim vs. The Chairman, Nagpur Improvement Trust, Nagpur and another (1993) and in Smt. Jankibai Jaiswal Bahu Uddesiya Sanstha vs. Nagpur Improvement Trust and another (2013) wherein it was held that a Civil Court cannot proceed to adjudicate over the issue unless institution of civil proceeding complies with Section 115 NIT Act. Thus a suit filed without complying with the mandatory provisions of Section 115 NIT Act is not maintainable. The division bench was constituted to answer: 1. Whether a suit can lie against NIT without issuing a Notice under Section 115 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” used in the provision?2. Whether the action of the NIT 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? In other words would NIT's action of asking the respondent to vacate the land within one month, amount to NIT waiving the requirement of the mandatory two month notice to it by an aggrieved person under Section 115, before the aggrieved person can sue NIT in a civil court. FindingsThe bench first discussed the meaning of the words 'purporting to be done under the Act' provided in Section 115 NIT Act. After referring to various cases, the observed that an act purported to be done under the provisions of the NIT 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.Here, it stated that the 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 i.e., for any alleged neglect or default in the execution of the Act. It noted that anything "purporting to be done" under the NIT Act should not only be legal but also corroborated by the power conferred on any authority. It noted that it cannot...

Nagpur Improvement Trust Asking To Vacate Land In 30 Days 'Waives' 2 Month Notice Allottee Has To Give Before Filing Lawsuit: Bombay HC

Sanjana Dadmi

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