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2022 DIGILAW 1401 (BOM)

Nagpur Improvement Trust v. Deepak

2022-06-06

MANISH PITALE

body2022
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. 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 development, which occurred during the pendency of the writ petition, in the form of an order dtd. 04/02/2022, passed by the City Survey Officer-2, Nagpur, which created doubt about the claim of respondent Nos.1 and 2. 7. The Court of 10th Civil Judge, Senior Division, Nagpur i.e. the Trial Court did not refer to the preliminary objection pertaining to sec. 115 of the NIT Act, raised on behalf of the petitioner. It is significant that respondent Nos.1 and 2 had applied for waiver of notice under sec. 7. The Court of 10th Civil Judge, Senior Division, Nagpur i.e. the Trial Court did not refer to the preliminary objection pertaining to sec. 115 of the NIT Act, raised on behalf of the petitioner. It is significant that respondent Nos.1 and 2 had applied for waiver of notice under sec. 115 of the NIT Act, before the Trial Court and that the Trial Court, by a cryptic order dtd. 23/09/2018, had granted the said application. The Trial Court granted the order of temporarily restraining the petitioner NIT from confirming the auction sale, by holding that respondent Nos.1 and 2 had made out a prima facie case regarding existence of Khasra No.155/2 in City Survey No.454 and that the petitioner was seeking to auction plots from the said Khasra, which prima facie appeared to belong to respondent Nos.1 and 2. Aggrieved by the said order, the petitioner filed miscellaneous appeal before the District Court, Nagpur. By judgment and order dtd. 12/07/2021, the District Court i.e. the Appellate Court dismissed the appeal. The Appellate Court rejected the preliminary issue regarding non- compliance of sec. 115 of the NIT Act, on the ground that a separate order was passed by the Trial Court allowing the application for waiver moved by respondent Nos.1 and 2 and since the said order was not challenged, the petitioner was not entitled to raise the same in the appeal. As regards the identity of the property in question, the Appellate Court referred to certain measurements and agreed with the conclusions rendered by the Trial Court. It was recorded that even though some orders passed by the Revenue Authorities had gone against respondent Nos.1 and 2, since such orders could have no concern with title in the property, the same would not be relevant for deciding the aspect of grant of temporary injunction. 8. Aggrieved by the said orders passed by the Trial Court and the Appellate Court, the petitioner filed the present writ petition, wherein the contesting respondent Nos.1 and 2 appeared on caveat and filed their reply. The parties were heard through their respective counsel. 9. Mr. Anand Jaiswal, learned Senior Counsel appearing for the petitioner-NIT, submitted that the Courts below failed to appreciate the true scope of sec. 115 of the NIT Act, which is mandatory in nature. The parties were heard through their respective counsel. 9. Mr. Anand Jaiswal, learned Senior Counsel appearing for the petitioner-NIT, submitted that the Courts below failed to appreciate the true scope of sec. 115 of the NIT Act, which is mandatory in nature. It was submitted that the suit filed by respondent Nos.1 and 2 was certainly in respect of acts undertaken by the petitioner under the provisions of the NIT Act and therefore, in the absence of compliance with sec. 115 of the NIT Act, the suit could not have been entertained and there was no question of granting temporary injunction in favour of respondent Nos.1 and 2. It was submitted that the aspect of maintainability of the suit was an integral part of the factors to be taken into consideration regarding prima facie case sought to be made out by respondent Nos.1 and 2. It was further submitted that the order dtd. 23/09/2018, allowing the application for waiver of notice under sec. 115 of the NIT Act did not contain any reasons. It was a nullity and that in any case the said order was also subject matter of challenge in the present writ petition. On this basis, it was submitted that the impugned orders deserved to be set aside. Reliance was placed on judgments of this Court in the case of Smt.Jankibai Jaiswal Bahu Udhesiya Sanstha v. Nagpur Improvement Trust and another (judgment and order dtd. 05/10/2012 passed in Second Appeal No.85 of 1995), Nagpur Improvement Trust v. Shri Anil Narayanrao Shastri (judgment and order dtd. 22/11/2018 passed in Second Appeal No.419 of 2005) and The Nagpur Improvement Trust v. Bhagwandas s/o Arjuniji Meshram, thr. His LRs Smt.Shivnanda Wd/o Bhagwandas Meshram and others (judgment and order dtd. 24/01/2020) passed in Second Appeal No.114 of 2006). 10. The learned Senior Counsel further submitted that even on the question of alleged confusion regarding identity of the property in the backdrop of the auction sale undertaken by the petitioner, there was sufficient material on record to demonstrate that even prima facie respondent Nos.1 and 2 had failed to demonstrate that the auction sale pertained to plots located in Khasra No.155/2. The material on record was sufficient to indicate that the plots in question were located in Khasra No.155/1, with which respondent Nos.1 and 2 admittedly had no concern. The material on record was sufficient to indicate that the plots in question were located in Khasra No.155/1, with which respondent Nos.1 and 2 admittedly had no concern. It was submitted that orders passed by the Revenue Authorities clearly indicated that Khasra No.155/2 was located in City Survey No.453 and not in City Survey No.454, as claimed by respondent Nos.1 and 2 and that in City Survey No.454, Poddar Layout was already existing. It was further submitted that the recent order dtd. 04/02/2022, passed by the City Survey Officer- 2, Nagpur, fortified the contentions raised on behalf of the petitioner and that therefore, the impugned orders deserved to be set aside. It was submitted that respondent Nos.1 and 2 had failed to make out their case on the touchstone of the aforementioned three parameters concerning grant of temporary injunction. 11. On the other hand, Mr. S.P. Bhandarkar, learned counsel appearing for the contesting respondent Nos.1 and 2, submitted that the orders passed by the two Courts below were fully justified. It was submitted that the aspect of preliminary objection regarding maintainability of the suit in the backdrop of sec. 115 of the NIT Act, could not be considered for the reason that the petitioner had failed to challenge the said order dtd. 23/09/2018, passed by the Trial Court. It was submitted that, so long as the said order granting waiver from issuance of notice to the petitioner was holding the field, the petitioner was disentitled from raising any contention in that regard. Even otherwise, it was submitted that this Court has held, specifically in the context of sec. 115 of the NIT Act as also sec. 527 of the Mumbai Municipal Corporation Act, which is a pari materia provision, that requirement of pre-suit statutory notice being procedural, is capable of being lawfully waived. In this regard, reliance was placed on judgments of this this Court in the case of Akash Impex, Mumbai v. Municipal Corporation of Greater Mumbai, reported in 2014 (1) Mh.L.J. 498 and Nagpur Improvement Trust v. Kishorchand s/o Fulchand Sakaria, reported in 2015 (1) Mh.L.J. 361 . 12. In this regard, reliance was placed on judgments of this this Court in the case of Akash Impex, Mumbai v. Municipal Corporation of Greater Mumbai, reported in 2014 (1) Mh.L.J. 498 and Nagpur Improvement Trust v. Kishorchand s/o Fulchand Sakaria, reported in 2015 (1) Mh.L.J. 361 . 12. On the aspect of confusion regarding identity of the plots made subject matter of auction, it was submitted that both the Courts below had concurrently found that respondent Nos.1 and 2 had made out a prima facie case that under the garb of auctioning plots in Khasra No.155/1, the NIT had actually auctioned plots in Khasra No.155/2, belonging to respondent Nos.1 and 2. It was submitted that the material on record pertaining to measurements and area of the said khasras was appreciated by the two Courts below to render findings in favour of respondent Nos.1 and 2, which did not deserve interference at the hands of this Court. It was further submitted that orders passed by the Revenue Authorities, including the order dtd. 04/02/2022, passed by the City Survey Officer-2, Nagpur, being orders pertaining to Revenue proceedings, relevant only for fiscal purpose, were irrelevant as regards the title of respondent Nos.1 and 2 in the plots in question and that therefore, the petitioner was not entitled to rely on the same. On this basis, it was submitted that the writ petition deserved to be dismissed. 13. Learned counsel Ms. K. S. Nikhade appeared for respondent Nos.2 to 5. 14. Having heard learned counsel for the rival parties and upon perusal of the material placed on record, it is found that there are two distinct issues arising for consideration. Firstly, the aspect of mandatory notice under sec. 115 of the NIT Act concerning maintainability of the suit filed by respondent Nos.1 and 2 and secondly, as to whether the Courts below were justified in concurrently holding that the petitioner ought to be temporarily restrained from confirming the auction sale of the plots in question. 15. It is significant that the first issue is intertwined with the aspect of respondent Nos.1 and 2, as plaintiffs, having made out a strong prima facie case in their favour. The question of maintainability of the suit goes to the root of the aspect of strong prima facie case sought to be made out by respondent Nos.1 and 2 for grant of temporary injunction. The question of maintainability of the suit goes to the root of the aspect of strong prima facie case sought to be made out by respondent Nos.1 and 2 for grant of temporary injunction. On this aspect, the Trial Court has clearly committed an error by not even referring to the said issue, despite the fact that in the consolidated reply and written statement, the petitioner had specifically raised the issue of maintainability of the suit in the backdrop of sec. 115 of the NIT Act. The Appellate Court dealt with the issue in a very cursory manner by simply holding that the petitioner having failed to challenge the order dtd. 23/09/2018, allowing the application for grant of waiver, the said issue could not be pressed on behalf of the petitioner. 16. As noted above, the petitioner has claimed that order dtd. 23/09/2018, is a nullity. The petitioner has challenged the said order also in the present writ petition. Therefore, it becomes necessary to peruse the application for grant of waiver at Exhibit- 6, filed on behalf of respondent Nos.1 and 2 and order dtd. 23/09/2018, passed by the Trial Court granting the said application. Perusal of the application for waiver at Exhibit-6 shows that respondent nos. 1 and 2 claimed that since the public auction was imminent, they did not have sufficient time to serve the statutory notice under sec. 115 of the NIT Act and that therefore, the Trial Court ought to grant waiver from issuance of such notice. The said application was taken up for consideration by the Trial Court in the absence of petitioner-NIT. The Trial Court allowed the application by order dtd. 23/9/2018, which was extremely cryptic and without any reasons. It reads as follows: Taken into a. ORDER Granted. 17. This Court finds that apart from being cryptic and displaying no application of mind, the said order passed by the Trial Court makes no sense at all. On this short ground, the said order deserves to be set aside. The Courts below completely failed to appreciate this aspect of the matter. 18. Apart from this, since the petitioner had taken the aforesaid point regarding maintainability of the suit, in the absence of compliance of sec. On this short ground, the said order deserves to be set aside. The Courts below completely failed to appreciate this aspect of the matter. 18. Apart from this, since the petitioner had taken the aforesaid point regarding maintainability of the suit, in the absence of compliance of sec. 115 of the NIT Act, at the outset, in the consolidated reply and written statement, the Courts below ought to have considered the said aspect as an integral part of one of the parameters for grant of temporary injunction i.e. whether respondent Nos.1 and 2 have made out a strong prima facie case in their favour. The question of maintainability of the suit goes to the very root of the said parameter, which the Courts below completely failed to appreciate. The rival parties have referred to aforementioned judgments in support of their respective stands pertaining to Sec. 115 of the NIT Act. Even if judgments cited supra, relied upon by respondent Nos.1 and 2, are to be taken into consideration, it is clearly laid down in the said judgments that even though the requirement of pre-suit statutory notice is procedural and it is capable of being lawfully waived, such waiver has to be established by the plaintiff and upon such waiver, the Court gets jurisdiction to entertain and try the suit. In the aforesaid judgments, this Court has referred to the concept of institution of a suit for injunction order in quia timet nature and reference is also made to Full Bench judgment of this Court in that regard in the case of Vasant Ambadas Pandit vs. Bombay Municipal Corporation, reported in 1981 (Mh.L.J. (F.B.) 706. 19. Thus, it becomes clear that the Trial Court is necessarily required to consider the question of waiver in a proper manner and only after the plaintiff is able to establish a case for waiver that the Trial Court would have jurisdiction to entertain the suit and consequentially the application for grant of temporary injunction. In the present case, as found herein above, the order dtd. 23/09/2018, passed by the Trial Court allowing the application for waiver at Exhibit-6, is wholly unsustainable. It is an admitted position that the petitioner-NIT i.e. the contesting defendant was not even before the Court when the said order dtd. 23/09/2018 was passed. In the present case, as found herein above, the order dtd. 23/09/2018, passed by the Trial Court allowing the application for waiver at Exhibit-6, is wholly unsustainable. It is an admitted position that the petitioner-NIT i.e. the contesting defendant was not even before the Court when the said order dtd. 23/09/2018 was passed. Even while considering the application for temporary injunction, the Trial Court ought to have referred to the said aspect and then arrived at a conclusion as regards the aspect of strong prima facie case being made out by respondent Nos.1 and 2. Hence, it is found that both the Courts below erred in dealing with the aspect of maintainability of the suit and consequentially the application for temporary injunction in the light of non-compliance of sec. 115 of the NIT Act. 20. As regards the question of alleged confusion regarding identity of the plots in question, the Courts below have proceeded on the basis of statements made on behalf of respondent Nos.1 and 2 about the dimensions of the said khasras. The orders passed by Revenue Authorities against respondent Nos.1 and 2 have been simply brushed aside on the ground that the findings rendered by the Revenue Authorities could not decide title. This Court is of the opinion that while there cannot be any quarrel with the proposition that Revenue entries would not decide title, but at the same time, such Revenue Authorities specifically rejecting claims of respondent Nos.1 and 2 as regards location of their plots in the aforesaid khasras, would constitute relevant material for reaching prima facie finding on the aforesaid parameter for consideration of prayer for grant of temporary injunction. 21. Perusal of the orders passed by the Trial Court and the Appellate Court shows that they have proceeded on the statements made on behalf of respondent Nos.1 and 2 as regards certain dimensions of pieces of land in the aforesaid khasras and upon adding the same, findings have been rendered in favour of respondent Nos.1 and 2, to the effect that Khasra No.155/2 is located in City Survey No.454. The orders passed by the Revenue Authorities to the contrary have been brushed aside, despite the fact that the petitioner placed on record material to indicate that Khasra No.155/2 was located in City Survey No.453 and that in City Survey No.454, Poddar Layout was already carved out wherein buildings were constructed and third parties were residing. 22. The said aspect of the matter and the stand taken by the petitioner appears to be further supported by order dtd. 04/02/2022, passed by the City Survey Officer-2, Nagpur. In the said order, after undertaking survey of the relevant portion of land at the behest of the petitioner and in the presence of respondent Nos.1 and 2, the City Survey Officer-2 has specifically found that an earlier order and measurement undertaken on 05/06/2018, indicating that land in Khasra No.155/2 was located in City Survey No.454, was flawed and suffered from serious inconsistencies. It was also found that the petitioner was clearly justified in proceeding on the basis that the plots put to auction were located in Khasra No.155/1. But, the said order was passed after the impugned orders were passed by the Trial Court and the Appellate Court. Nonetheless, this Court is of the opinion that the said order is relevant in the facts and circumstances of the case. 23. As the said subsequent order is relevant, it ought to be taken into consideration along with other orders passed by the Revenue Authorities to reach prima facie findings as regards the location of the plots that were made subject matter of auction sale by the petitioner and the claims made by respondent Nos.1 and 2 in that regard. 24. This Court is of the opinion that both the Courts below have not dealt with various aspects of the matter indicated above in a satisfactory manner and that therefore, the impugned orders deserve to be set aside. At the same time, it would be appropriate that the aspect of entitlement of waiver from notice under sec. 115 of the NIT Act is considered afresh and the application for temporary injunction filed by respondent Nos.1 and 2 needs to be reconsidered in the light of above observations made by this Court and after taking into consideration the aforesaid order dtd. 04/02/2022, passed by City Survey Officer-2, Nagpur. 25. In the light of above, the writ petition is allowed in the following terms. 04/02/2022, passed by City Survey Officer-2, Nagpur. 25. In the light of above, the writ petition is allowed in the following terms. (A) The impugned order dtd. 23/09/2018, passed by the Trial Court on Exhibit-6 is set aside. (B) The Trial Court is directed to consider the said application at Exhibit-6 afresh after giving petitioner- NIT proper opportunity of hearing. (C) The impugned orders passed by the Trial Court and the Appellate Court dtd. 01/01/2020 and 12/07/2021 respectively, are quashed and set aside. (D) The Trial Court is directed to reconsider the applications at Exhibits-5, 21 and 97 afresh. While doing so, the Trial Court shall take into consideration the aforesaid aspect concerning sec. 115 of the NIT Act. (E) Hence, it is directed that the Trial Court shall consider all the applications at Exhibits-5, 6, 21 and 97 together, in accordance with law. (F) It is clarified that this Court has not expressed any opinion on the merits of the rival claims of the parties and that the matter is being sent back to the Trial Court, because relevant aspects were not properly considered while passing the impugned orders. (G) The Trial Court shall proceed to decide the aforesaid applications expeditiously and in any case within six weeks from the date a copy of this order is produced before the said Court. (H) In the interest of justice, it is directed that the parties shall maintain status quo as on today, till the Trial Court decides the aforesaid applications at Exhibits-5, 6, 21 and 97, in terms of the directions given herein above. 26. Rule is made absolute in above terms. Pending applications, if any, stand disposed of. No order as to costs.