What is duty of public authorities regarding waiver of notice issued U/S 80 of CPC or mandatory notice issued under Municipal Corporation Act?

Thereafter various Single Judges of this Court have taken similar views, but there seems to be a slight departure by this Court, in Mohamed Arif H. Modan v. Municipal Corporation of Greater Mumbai and Ors. 1999 (4) LJ 102 the issue of notice had come up for consideration and in the context of public authorities waiving notice, it was observed as under:-

"No public Authority/Officer can abdicate; his duties as a trustee and contend before the Court that if structures come up on public land, on public street on open spaces, they have left the discretion to the advocates appearing in the matter to waive notice or not. I am clearly of the opinion that considering the provisions of the Act and the Development Control Regulations, any area described aforesaid and after a hearing has been given under Section 351 of the Act, neither the Commissioner nor his delegate can waive notice as a matter of course. There will have to be a reason recorded in writing by the Commissioner or the delegate why he is waiving notice. That power cannot be left to the discretion of the Advocates of the Corporation even though they may be its employees."

In other words the exercise of waiving notice is subject to what is stated above.

 IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 1802 of 2002

Decided On: 26.02.2003

Sabira Aslam Sikwani Vs. Mohammed Yusuf Hussain and Ors.

Hon'ble Judges/Coram:

F.I. Rebello, J.

Citation:  MANU/MH/0221/2003.

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Whether high court Can Exercise Writ Jurisdiction Against a Private Party That Wrongly Benefits From Inaction Of Public Authorities In Discharge Of Public Duty?

 In Rustam Mehta v State of Maharashtra & Ors1, which arose out of similar set of facts, this Court held that in exercise of its inherent and wide powers under Article 226 of the Constitution of India, this Court has the jurisdiction to pass orders and/or directions against a private person if such reliefs are in aid of the final relief. Further, it was also held that it is within the extraordinary and inherent jurisdiction of this Court under Article 226 of the Constitution of India to protect the rights and interests of the Petitioners by granting interim reliefs even against a private party Respondent, that has wrongly benefitted from the inaction on the part of the public authorities in discharge of their public duty.{Para 9.1}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO. 444 OF 2022

 Sabhajit Ramyash Yadav, Vs State of Maharashtra,

Coram: ( PER S.J.KATHAWALLA & MILIND N. JADHAV, JJ.)

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Landmark Judgment on suspicious circumstances surrounding execution of will

    (a) In cases where the execution.of a
        will  is shrouded i.n.  suspicion  its  proof
        ceases to be a simple lis between  the  plain-
        tiff and the defendant.  What generally is  an
        adversary  proceeding becomes in such cases  a
        matter   of  the court's   conscience.  The
        presence of suspicious circumstances makes the
        initial onus heavier and, therefore, in  cases
        where  the  circumstances attendant  upon  the
        execution of the will excite the suspicion  of
        the  court  the  propounder  must  remove  all
        legitimate suspicions before the document  can
        he accepted as the last will of the  testator.
        [929 C-F, 930 C-D]
    (b) A will has to be proved like any  other
        document by  applying the usual test  of  the
        satisfaction of the prudent mind. [929 F]
    (c) Since section 63 of the Succession  Act
        requires a will to be attested it  cannot  be
        used as an evidence until at least one of  the
        attesting witnesses is examined, if available.
        [929 G]
        (d)  Unlike  other documents the will  speaks
        from the death of the testator and, therefore,
        the maker of the will is never available  for
        deposing as to the circumstances in which  the
        will  was executed. That circumstance  intro-
        duces  a certain amount of solemnity in  proof
        of testamentany instruments. [929 H, 930 A]
 R. Venkatachala lyengar v.B.N. Thimrnajamma & Others  [1959]
 Supp. 1 S.C.R. 426, followed.
 2. The testator was a man of property  and occupied a high
 position in society. A genuine will of such a person is  not
 likely to suffer from the loop-holes and infirmities  which
 may beset an humbler testamentany instrument.
           [931 D, H,932 A]
     3. The following circumstances throw a cloud of  suspi-
 cion on the making of the will by Gobinder Singh:
 926
     (i) The will is alleged to have been made
        in  1945 but it did not see the light  of  the
        day  till  1957. It is  unacceptable  that  a
        document by  which  property  worth  lacs  of
        rupees  was disposed of could have remained  a
        closely  guarded secret from intimate  friends
        and  relatives and from the sole legatee him-
        self for over 21/2- years after the testator's
        death. [932 A-B]
     (ii) The testator had left behind  him  a
        large property and along with it large  amount
        of  litigation  which makes it  impossible  to
        believe that upon his death no one bothered to
        go  through his papers.The explanation of  the
        defendant  that he stumbled upon the  will  by
        chance while going through some papers of  his
        grandfather is patently lame and unacceptable.
        [932 B-D]
    (iii) The  defendant came  out  with  the
        theory of will after the Hindu Succession Act
        of  1956 came into force as a result of  which
        the  plaintiff would become an absolute  owner
        of  the property that would fall to her  share
        as the heir of her husband.[932 G-H, 933 A-B]
    (iv)  The will was typed Out on both  sides
        of  a single foolscap.paper and was  obviously
        drafted  by a lawyer.  No evidence was led  as
        to who drafted the will and who typed it out.
        [933 B-C]
     (v) The will was attested by two  persons,
        both of whom were strangers to the  testator's
        family and neither of whom could give a proper
        account  of  the execution of the   will.   In
        fact they  contradicted each other. [933 C-H]
    (vi)  The  two persons who are  alleged  to
        have  been appointed executors were not  exam-
        ined, though available.  Normally, the  execu-
        tors  are not appointed without their  consent
        or consultation. [934 A-C]
        (vii)  The will is unnatural and unfair. [934
        C]
    (viii)  The will does not make  mention  of
        many of the near relations and descendants  of
        the testator. [934 D-F]
    (ix) The plaintiff was excluded as an heir
        of the testator for the supposed reasons that
        she  had brought disgrace to the Sibia  family
        and  that her behaviour was such as would  not
        even bear a mention in the will. No  evidence
        was led on the misconduct of the plaintiff.
        [934 F-G]
    (x)  The defendant in his evidence did  not
        offer  any explanation any of  the  suspicious
        circumstances. [934 G]

Supreme Court of India

Jaswant Kaur vs Amrit Kaur & Ors on 25 October, 1976

Equivalent citations: 1977 AIR 74, 1977 SCR (1) 925



      
BENCH:
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
GUPTA, A.C.
Read full judgment here:Click here

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Whether legality of action taken by public authority would depend on elaborate pleadings made in plaint?

  Though Mrs. N. Alvares, learned counsel appearing for the
petitioners had attributed malafides and malice on the part of officers of 
the respondents but however the particulars of such allegations against
such officials have not been disclosed in the petition nor are they parties
to the above petition. But however, it is well settled that the pleadings
are not statute and to examine the legalism of an action taken by the
statutory authorities would not rest on elaborate pleadings averred in
the petition. 
IN THE HIGH COURT OF BOMBAY AT GOA
 WRIT PETITION NO. 333 OF 1993
 The Goa Foundation,

V e r s u s
 The North Goa Planning and Development
Authority,
 Coram:- F. M. REIS &
 K. L. WADANE, JJ

 Judgment pronounced on : 29.06.2015 
Citation; 2016 (2)MHLJ 566

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Principles to be followed by court in case of grant of Injunction against public authorities

What is public policy was considered by the Supreme Court in AIR 1959 SC 781 Ghernlal Parakh v. Mahadeodas Maiya). In paragraph 23 the Supreme Court pointed out as follows at page 795:

"The doctrine of public policy may be summarised thus : Public policy or the policy of the law is an illusive concept it has been described as "untrustworthy guide," "variable quality", "uncertain one" unruly horse", etc. the primary duty of a Court of Law is to enforce a promise which the parties have made and to uphold the sanctity of contracts which form the basis of society, but in certain, cases, the court may relieve them of their duty on a rule founded on what is called the public policy, for want of better words Lord Atkin describes that something done contrary to public policy is a harmful thing, but the doctrine is extended not only to harmful cases but also to harmful tendencies."

There is a judgment passed by the single Judge of this court in MA(F) No. 2 of 1991 (Azad Ali v. Housefed). The date of judgment is 3-2-1993 where this court pointed out that "in granting an injunction against the public authority, the court should be very cautious in considering the balance of convenience, the court should consider the matter regarding injunction in addition to other ingredients public interest is also to be looked into."

We approve this decision by the learned single Judge and we reiterate that when a question of granting injunction arises, not only the three ingredients for the grant of injunction should be considered, but in addition to it, the public interest and/or public policy also is to be considered. Otherwise, if the public interest or public policy is not considered, it will bring chaos to the society and cause distress to the public in general. The court cannot be used as an instrument/tool to cause injury to the society and/ or loss to the community, the requirement of the society, the demand of the society, must be considered, the court must be cautious if its order affects a large chunk of the society. By exercising equitable jurisdiction to give benefit to somebody a larger interest cannot be sacrificed. If injunction is granted, affecting the right of the community in general, it will be a dangerous precedent and court should not easily succumb to such prayer. The learned Judge relied on the passage of Halsbury's Laws of England, but he did not consider the passage in its entirety. The passage is quoted in page 926 and it reads as follows:

"926. Injury must be irreparable. Prima facie the court will not grant an injunction to restrain an actionable wrong for which dernages are an adequate remedy. Where the court interferes by way of injunction to prevent an injury in respect of which there is a legal remedy, it does so upon either of two distinct grounds,-first, that the injury is "irreparable, and second, that it is continuous. By "irreparable injury" is meant injury which is substantiate and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired. The fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages. Even where the injury is capable of compensation in damages an injunction may be granted if the act in respect of which relief is sought is likely to destroy the subject matter in question; and the mere fact that, in order to avoid litigation, a party has offered to take a sum of money as the price of his rights does not preclude him from asserting that he will suffer irreparable damage from the continuance of the aet complained of. However, if the plaintiff has himself shown by his conduct on a previous occasion, that the injury complained of is one which may in some way be compensated by money, the court may decline to grant an injunction."

Extracting a particular sentence from that passage to use in the cases of the plaintiff should not have been done by the learned Judge. The learned Judge should have considered the entire paragraph and should have decided the matter on the basis of the law enunciated in the paragraph.

Gauhati High Court

State Of Assam And Anr. vs M.S. Associates on 2 May, 1994

Bench: J Sarma, S Neelam

Citation: AIR1994Gau105, (1994)2GLR104

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