Case Note & Summary
The appellant, a society registered under the Societies Registration Act, filed Regular Civil Suit No. 604/1986 challenging a resolution passed by the Nagpur Improvement Trust on 15.03.1986 allotting a suit plot to the Nagpur Municipal Corporation. The appellant's case was that on 20.02.1985, the Trust had passed Resolution No. 3(b) allotting the same plot to the appellant, and the proposal was sent to the State Government for sanction on 03.05.1985. Without cancelling that allotment, the Trust allotted the plot to the Corporation on 15.03.1986, which the appellant claimed was arbitrary and illegal. The trial Court dismissed the suit on 08.09.1989, holding that the appellant failed to establish the illegality of the 1986 resolution and that the suit was bad for want of notice under Section 115 of the Nagpur Improvement Trust Act. The appellant appealed to the District Court in Regular Civil Appeal No. 328/1989. The appellate Court held that the cancellation of the 1985 resolution was arbitrary and a nullity, but dismissed the appeal by concurring with the trial Court on the notice issue. The appellant then filed the present second appeal. The High Court framed the substantial question of law: whether notice under Section 115 of the Nagpur Improvement Trust Act was necessary. The Court analyzed Section 115, which requires two months' notice before filing a suit against the Trust for any act done in pursuance of the Act. The Court held that the suit was not for any act done in pursuance of the Act but for a declaration that the resolution was illegal and void. Therefore, Section 115 did not apply. The Court allowed the appeal, set aside the judgments of the lower courts, and remanded the suit to the trial Court for fresh disposal on merits, directing the parties to appear on 12.11.2012.
Headnote
A) Civil Procedure - Maintainability of Suit - Notice under Section 115 of Nagpur Improvement Trust Act - The suit challenging a resolution of the Nagpur Improvement Trust allotting a plot to the Nagpur Municipal Corporation was held maintainable without notice under Section 115 of the Nagpur Improvement Trust Act, as the challenge was to the legality of the resolution itself and not to any act done in pursuance of the Act. The Court held that Section 115 applies only to suits against the Trust for acts done in pursuance of the Act, and not to suits seeking declaration that a resolution is illegal and void. (Paras 4-6)
Issue of Consideration
Whether in the facts and circumstances of the case, notice under Section 115 of the Nagpur Improvement Trust Act was necessary before filing the suit.
Final Decision
The appeal is allowed. The judgments and decrees passed by both the courts below are set aside. The suit is restored to the file of the trial Court for fresh decision on merits in accordance with law. The parties are directed to appear before the trial Court on 12.11.2012.
Law Points
- Notice under Section 115 of Nagpur Improvement Trust Act is not a condition precedent for filing a suit challenging a resolution of the Trust
- Suit for declaration that resolution is illegal and void does not require notice under Section 115
- Section 115 applies only to suits against the Trust for acts done in pursuance of the Act
