Judgment · High Court

Smt. Vasanti A. Naik, J. Heard Shri Chhabra for the appellant, and Shri Dharmadhikari for the respondent no.1. By this appeal, the appellant challenges two concurrent judgments passed against the appellant- Nagpur Improvement Trust whereby the Courts held that the notice issued by the Nagpur Improvement Trust under the provisions of Section 286 of the City of Nagpur Corporation Act, 1948, was illegal and bad in law and the Nagpur Improvement Trust had no jurisdiction to issue the same to the plaintiff. The respondent no.1 is the original plaintiff. A suit was filed by the plaintiff for a declaration that the notice issued by the Nagpur Improvement Trust under the provisions of Section 286 of the City of Nagpur Corporation Act for demolition of the unauthorized construction was, inter alia, bad in law as the area where the property was located, was not under the 2 jurisdiction of the Nagpur Improvement Trust and was jurisdiction of the Nagpur Municipal Corporation.

Apart from the other pleas raised in the plaint, it was pleaded on behalf of the plaintiff that the Nagpur Improvement Trust did not have jurisdiction over the area in question in terms of the Abhyankar Road Widening and Buty Mahal Street Scheme. The defendant-N.I.T. denied the claim of the plaintiff and pleaded that the defendant- N.I.T. had jurisdiction over the area in question in view of the scheme which was framed in the year 1964. The defendant- N.I.T. further pleaded that the suit instituted by the plaintiff was not maintainable in view of the fact that the plaintiff had, admittedly, not issued any notice to the Nagpur Improvement Trust under the provisions of Section 115 of the Nagpur Improvement Trust Act, before instituting the suit against the defendant- N.I.T. Though the defendant pleaded that it had jurisdiction over the area in question and it was competent to issue the notice to the plaintiff under Section 286 of the City of Nagpur Corporation Act, 1948, in view of the Scheme of the year 1964, the Scheme was not placed by the defendant- N.I.T. before the trial Court.

In the absence of the Scheme, the Courts rightly came to the conclusion that defendant- N.I.T. had failed to prove that it had jurisdiction over the area where the property was situated and was, therefore, competent to issue the notice under Section 286 of the Act of 1948. Both the 3 Courts, therefore, concurrently held that it was not necessary for the plaintiff to issue a notice to the defendant- N.I.T. under the provisions of Section 115 of the Nagpur Improvement Trust Act as the action on the part of the N.I.T. of issuing the notice was beyond the scope, jurisdiction and authority of the defendant- N.I.T. and was clearly not an act which was purported to be done under the Nagpur Improvement Trust Act, 1936. Both the Courts, therefore, rightly followed the judgment of the Hon'ble Supreme Court in the case of Devi Singh Vs. Municipal Corporation, Hyderabad reported in A.I.R . 1972, Supreme Court page 2510 , to hold that the notice was not necessary when the act complained of, was not an act done or purported to be done in pursuance of execution or intended execution of any provision of the Corporation Act. The findings recorded by both the Courts are based on the legal provisions and well settled principles of law and they do not give rise to any substantial question of law. Second appeal is, therefore, dismissed with