1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Second Appeal No. 249 of 2010 Smt Chandrabhagabai and ors v. NIT and ors -------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Mr S.D. Deshpande, Adv for appellants Coram : A.P. Bhangale, J Dated : 7.7.2010 1. Heard learned counsel for the appellant and perused judgments of the Courts below. This appeal challenges concurrent findings of facts of the two Courts below. 2. Respondent no.1 Nagpur Improvement Trust demolished some portion of the house of plaintiffs since it was found to be unauthorised one. Plaintiffs effected repairs. Thereafter defendant NIT issued notice to them on 6.3.1998 for unauthorised construction and for removal of encroachment. Plaintiffs then filed suit for declaration that the construction carried out by them was legal and for perpetual injunction restraining the defendants from interfering with their possession. It was claimed by the plaintiffs that they had served the NIT with statutory notice under Section 115 of the NIT Act, 1936. 3. The trial Court dismissed the suit and appeal carried by 2 them also came to be dismissed by the lower Appellate Court. 4. Respondents no. 1 & 2Defendants no. 1 & 2 denied the claim of plaintiffs and contended that encroachment and unauthorised construction was rightly removed initially and notice was given for demolition of reconstruction made by plaintiffs and for removal of encroachment. It was also contended that statutory notice under Section 115 of the NIT Act was not issued by the plaintiffs before filing suit. 5. Section 115 of the NIT Act provides that no suit shall be instituted, inter-alia, against the Trust until the expiration of two months next after notice in writing has been given to it. Notice is required to contain cause of action, the nature of relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff and the plaint shall contain a statement that such notice has been so delivered or left. When a particular enactment provides for statutory notice, it cannot be treated as an empty formality. Both the Courts below have concurrently held that the suit was bad for want of statutory notice. Learned counsel for the appellants could not establish before this Court that the statutory notice was given and findings of the Courts below are erroneous. Construction made by the plaintiffs was legal and within their right, was the burden to be discharged by the plaintiffs and both the Courts below have again found as a matter of fact that the plaintiffs could not muster out the onus lying on them. Before me also, Mr Deshpande could not substantiate the claim of the plaintiffs that their construction was within their right and they had not made 3 encroachment on any land. 6. No substantial question of law is involved in the present second appeal and the same is, therefore, dismissed in limine. Judge. joshi