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

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. 

Background

In 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. 

Findings

The 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 include illegal action or any action not contemplated by the Act.

“In our considered opinion, the impression in respect of anything purporting to be done under this Act, has to relate to an action, which is not only legal, but is also corroborated under the power conferred by any provision therein on any authority and cannot be stretched to elude on illegal action or something not contemplated by the Act/Statute. Such an opinion would make act illegally done by misuse of the provision of an Act/Statute which is not warranted in law," the bench said. 

The high court further observed that as per Section 115 if the Trust's action falls within purview of expression “in respect of anything purporting to be done under this Act” then Notice under the provision is "mandatory" and the person who is aggrieved by the Trust's action will have to wait for filing the suit after issuing Notice in terms of the provision. 

The bench then considered whether the action of NIT amounted to "waiving" the requirement on aggrieved persons under Section 115 NIT Act. 

The Court noted that 'waiver' is when one party by words or conduct made a promise to other party which was intended to affect the legal relations between them and once the other party has acted on it, the one who gave the promise cannot claim that no such promise was made.

The bench said that it is well settled that waiver cannot always be inferred merely from a party's failure to take the objection. For applying the principle of waiver, it has to be established that though a party was aware about the relevant facts, it had neglected to take such an objection or chose not to take an objection, the bench said. 

Further, it noted that an aggrieved person could always file a civil suit in a civil court unless it is expressly or impliedly barred. It stated that the presumption is always in favour of the jurisdiction of the Civil Courts and exclusion of the jurisdiction of the Civil Courts should not to be readily inferred. While referring to judgments the bench further observed that "waiver is an intentional relinquishment of rights" involving a "conscious abandonment" of an existing legal right, advantage, benefit, claim, or privilege. 

The bench also said that the jurisdiction of the Civil Courts is not expressly or impliedly excluded under the NIT Act.

It remarked, “Thus, so far as the NIT Act is concerned, the jurisdiction of the Civil Courts is not expressly or impliedly excluded. On the contrary, the very fact that a provision has been made for giving two months notice before filing of the suit would show that the Civil Courts have jurisdiction and its jurisdiction is not excluded or ousted.”

The court thereafter concluded that NIT's conduct amounted to waiver of the requirement of Section 115 of the NIT Act.

Case title: Nagpur Improvement Trust vs. Jain Kalar Samaj (SECOND APPEAL NO.568 OF 2017)

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