An objection as to
jurisdiction of the Court to entertain and try the suit ought to be
taken at preliminary stage of the suit at or before settlement of
the issues. The submission is that the defect as to non-
compliance of Sec. 527 of the Act is not such a defect which
can absolutely take away inherent jurisdiction of the Court to
decide plea of waiver raised by the plaintiff and if finding as to
waiver is recorded in favour of the plaintiff the Civil Court may
proceed to try the suit on merits and pass the decree. The mere
absence of pre-suit statutory notice would not affect the
fundamental jurisdiction of the civil court to decide the
question of “waiver” as preliminary issue as to whether the
civil court can entertain the civil suit?
The preliminary issue
when raised ought to be dealt with urgently before the civil
court would cross the procedural statutory bar
arising from
the procedural lapse on the part of the plaintiff in order to
the decree.
proceed further with the suit to decide it on merits and pass
Since it is a procedural defect, in a given case, if
permitted by the Court the plaintiff may opt to withdraw from
the suit and cure the defect by offering to issue a pre-suit
statutory notice in writing in accordance with law and then to
file a suit. Such permission if sought by the plaintiff may be
appropriately considered by the civil Court when the objection
is raised at preliminary stage of the suit. Section 9-A of CPC
as applicable in State of Maharashtra which contemplate an
objection at preliminary stage of the suit.
Section 9A CPC reads thus:
"Where at the hearing of application relating to interim
relief in a suit, objection to jurisdiction is taken, such
issue to be decided by the Court as a preliminary issue :
Notwithstanding anything contained in this
Code or any other law for the time being in force, if, at the
hearing of any application for granting or setting aside an order
granting any interim relief, whether by way of stay, injunction,
appointment of a receiver or otherwise, made in any suit, an
objection to the jurisdiction of the Court to entertain such a suit
is taken by any of the parties to the suit, the Court shall proceed
to determine at the hearing of such application the issue as to
the jurisdiction as a preliminary issue before granting or setting
aside the order granting the interim relief. Any such application
shall be heard and disposed of by the Court as expeditiously as
possible and shall not in any case be adjourned to the hearing
of the suit."
The trial judge is expected by Section 9A C.P.
Code to take the earliest opportunity to dispose of the suit.
Any application under section 9A CPC is required to be heard
and disposed of by the Court as expeditiously as possible and
cannot be adjourned to the date of hearing of the suit.
Preliminary issue as to jurisdiction of the court to entertain the
suit for want of pre-suit statutory notice is required to be
decided by the Civil Court after giving full opportunity to the
parties to lead evidence because finding on the preliminary
issue framed may dispose of the suit.
APPELLATE SIDE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M/s. AKASH IMPEX V MUNICIPAL CORPORATION)
OF GREATER MUMBAI,
CORAM:-A. P. BHANGALE, J.
JUDGMENT PRONOUNCED
ON: 09/10/2013.
Citation: 2014(1) MHLJ 498 Bombay
The appeal is against the Judgment and order
dated 14-03-2011 in L.C Suit no 325 of 2011 passed by the
learned City Civil judge, Mumbai whereby the suit as well as
2797 of 2011 same prayer is made as in the
application
the Notice of Motion was dismissed in liminem. By civil
2
Appeal.
The facts stated are:-
appellant
The
(Original
plaintiffs
hereinafter as Plaintiff )claimed that it is
referred
a registered
partnership firm which had acquired suit property Gala
No.24/25 , CTS No. 240-C of village Kurla -1 at Khetani
Industrial Estate , Kurla , Mumbai, at auction Sale . According
to the appellant, the residents of the Society had filed Writ
petition no. 1763 of 2010 alleging the unauthorised additions,
alterations to the existing premises. The Municipal Corporation
of Greater Mumbai (hereinafter referred as MCGM) issued
notice under Section 354-A of the M.M.C.Act. This notice was
3
issued requiring the plaintiff-appellant to stop the unlawful
construction detected by the MCGM. The notice was
challenged in the Suit no. 2332 of 2010 which is still pending
before the Bombay City Civil Court, Mumbai. According to
the plaintiff-appellant the suit structure was protected by
3
interim order in the said Suit.
While the said suit remained pending, yet the
plaintiff applied to the Municipal Corporation of Greater
Mumbai for regularization of the internal partitions & repairs
to the existing roof and floor at Gala no 24 and 25
i.e.suit
structure at CTS no 240/C at Khetani Industrial Estate at Kurla
.It is averred that
by letter dated 29-01-2011 the MCGM
arbitrarily closed the file on the ground of non-compliance of
the requirements, which according to the plaintiff were
complied with. The plaintiff therefore prayed for the relief of
mandatory injunction against the MCGM for an order to
4
consider the proposal of the plaintiff for regularization of the
suit structure, which is subject of the notice in the previously
instituted suit. As also to restrain the MCGM from acting upon
the letter dated 11-01-2011, Served upon the plaintiff on 29-11-
2011. According to the plaintiff the manner in which the file of
the plaintiff was closed by the MCGM was amounting to
“waiver” on the part of the MCGM for the notice under Section
527 of the MMC Act. The suit was valued for the purposes of
the jurisdiction of the court and the court fees at Rs 1000/- only
citing Section 6(iv) J of the Bombay Court Fees Act.
4
Normally the plaintiff in such suit of mandatory
injunction is expected to state the market value of the
constructions sought to be protected from the proposed
demolition action so as to value the suit appropriately under the
Suit valuation Act for the purposes of the jurisdiction of the
Court and also to value the suit for the purposes of the payment
5
of court fees. The valuation clause in the plaint was vague and
evasive .Be that as it may, The suit was instituted admittedly
without issuance and service of the pre-suit statutory notice is
required under section 527 of the Mumbai Municipal
Corporation Act
Section 527 reads as under:-
527. Protection of persons
acting under this Act
against suits.
(1) No suit shall be instituted against the corporation or
against [the
Commissioner, the General Manager, or the
Director or a Deputy Municipal Commissioner, or against any
municipal officer ox servant, in respect of any act done in
pursuance or
execution or intended execution of this Act
or in respect of any alleged neglect or default in the execution
of this Act—
(a) until the expiration of one month next after notice in
6
writing has been, in the case of the corporation, left at the chief
municipal office and, in the case of [the Commissioner, the
General Manager] [or the Director] or of a Deputy Municipal
Commissioner or of a municipal officer or servant delivered to
ig
him or left at his office or place of abode, stating with
reasonable particularity the cause of action and the name and
place of abode of me intending plaintiff and of his attorney or
agent, if any, for the purpose of such suit ; nor
(b) unless it is commenced within six months next after
the accrual of the cause of action.
(2) At the trial of any such suit—
(c) the plaintiff shall not be permitted to go into evidence
of any cause of action except such as is set forth in the notice
delivered or left
by him as aforesaid;
(d) the claim, if it be for damages shall be dismissed if
tender of sufficient amends shall have been made before the
suit was instituted or if, after the institution of the suit, a
sufficient sum of money is paid into Court with costs.
(3) When the defendant in any such suit is a
municipal officer or servant, payment of the sum
or of any part of any sum payable by him in or in
consequence of the suit whether in respect of cost,
charges, expenses, compensation for damages or
otherwise, may be made, with the
[previous]
sanction of the standing committee [or the
Bombay
Electric
Supply
and
Transport
Committee, from the municipal fund or the
Bombay Electric Supply and Transport Fund, as
5
the case may be.
It is clear from the provision of Section 527of the
said Act that it is prohibitory in terms that no suit can be
instituted against a Municipal corporation or any of its officers
in respect of any act done good faith until pre-suit statutory
8
notice in writing has been duly served and delivered at the
office of the Municipal Corporation or left at it's office. The
suit must also commence within six months since accrual of
cause of action. It must state;
the cause of action for the proposed suit;
(ii) name, description and place of residence of the
ig
(i)
plaintiffs, who will sue.
the
relief
which
the
plaintiff
claims.
(iii)
Furthermore, the plaint shall contain a statement that
such notice has been so duly served, delivered or left.
Such notice though mandatory is capable of being
express or implied waiver.
The requirements stated above are mandatory and
for the benefit of Municipal Corporation or its Officers to be
sued in respect of any act done in good faith. In the present
stated as suitably registered
case the suit was instituted by the partnership firm which was
partnership firm M/s. Akash
Impex instituted against the MCGM, a public authority
requiring the pre-suit statutory notice, hence in view of the
provisions of Order 30 C.P. Code the plaintiff firm ought to
have at least disclosed the names of the Partners of the
registered partnership firm who were partners at the time of
accrual of cause of action and when suit is instituted. This fact
was not disclosed in the plaint. Section 69(2) of the Indian
partnership Act prescribes that no suit to enforce a right arising
from a contract shall be instituted in any Court by or on behalf
of a firm against any third party unless the firm is registered
and the persons suing are or have been shown in the Register of
Firms as partners in the firm. The plaintiff firm claimed that it
became entitled to the suit property under an Auction Sale
(Contract).
The suit was, therefore, to enforce right which
arose from the Contract of sale.
The mandatory requirements of Section 527 of the
said Act serves policy of law and a definite public purpose to
protect Municipal corporation from unnecessary, expensive;
avoidable and lengthy litigation initiated by means of a civil
suit. The object of pre-suit statutory notice is to put on alert the
noticee-MCGM and /or its officials concerned about the details
or particulars of the proposed suit so that it may through its
responsible officer actively and expeditiously reply to the
notice
from the prospective litigant with a view to avoid
litigation or to negotiate just settlement or, at least, have
courtesy to tell the prospective plaintiff as to why his claim is
being resisted. It is legitimate expectation that noticees when
public authority which is entitled to receive pre-suit statutory
notice as mandatory requirement according to law in such cases
shall be reasonably prompt to respond by reply to the notice
received.
The public authority MCGM in this case upon
acknowledgment of the pre-suit notice would have no
justification for failure to respond to the statutory notice issued
by any rate payer citizen in the modern days of communication
by quick messaging services of E-mail, fax, speed couriers,
mobile phone communications etc. The salutary provision is
often rendered futile and reduced to an empty ritual by sheer
inaction or dormancy which can only help disgruntled and
dishonest litigants seeking to protect illegal constructions to
buy time by means of long lasting civil suit resorting to pleas
such as “implied” or “deemed” waiver of the salutary and
mandatory requirement of the pre-suit statutory notice. Three
Judge Bench of the Apex Court in the case of Salem
Advocates Bar Association, Tamil Nadu vs. Union of India:
(2005) 6 SCC 344, while making observation about
requirement of pre-suit statutory notice under section 80 of C.P.
Code held that the notice period of two months have been
provided so that Government shall examine the claim put up in
the notice and has sufficient time to send a suitable reply. The
underlying object is to curtail the litigation; scope of dispute
and controversy. Wherever the statutory provision requires
service of notice as a condition precedent for filing of the suit
and observing prescribed period of limitation thereof, noticee
concerned is expected to deal with it receptively, so as to send
prompt reply. The provision casts an important and implied
duty upon the noticee concerned to send an appropriate reactive
reply to such notice. The Apex Court in Salem Bar
Association's case ( supra ) directed thus:
"Having regard to the existing state of affairs, we direct
all concerned Governments, Central or State or other
authorities whenever any statute requires service of
notice against it, to as a condition precedent for filing
of suit or other proceedings nominate within a period of
three months, an officer who shall be made responsible
to ensure that replies to notices under section 80 or
similar provisions are sent within a period stipulated in
a particular legislation. The replies shall be sent after
due application of mind. Despite such nomination, if
the Court
finds that either the notice has not been
replied or reply is evasive and vague and has been sent
without proper application of mind, the Court shall
ordinarily award heavy cost against Government and
direct it to take appropriate action against concerned
Officer including recovery of costs from him".
The MCGM and the official concerned must note
the above directions from the Honourable Supreme Court of
India to make amends otherwise courts would perform
unpleasant task in such cases to impose heavy costs and to
direct appropriate
disciplinary action against the public
officials concerned found negligent or lax in performing their
official duty and /or failure to respond to the pre-suit statutory
notice received by them.
The full Bench of the Bombay High Court in
Vasant Ambadas Pandit vs. Bombay Municipal Corporation
and others: AIR 1981 Bombay 394, held that;
.... " in our opinion, the true legal position in this
behalf is that no suit can be instituted without service
of the notice if such service of the notice is required
statutorily as a condition precedent. The giving of
notice is a condition precedent to the exercise of
jurisdiction."
Pre-suit statutory notice is held mandatory but the
question would arise as to what must be the consequence if the
MCGM for whose benefit the protection of pre-suit statutory
notice is granted fails to respond to the statutory notice within
reasonable period or threatens an action to demolish the suit
structure and by its conduct compel the plaintiff to institute the
suit for an injunction order in quia timet nature, full Bench
observed further that the requirement of the pre-suit statutory
notice being procedural is capable of being lawfully waived by
the party-defendant, but then undoubtedly, the waiver has to be
established by the plaintiff and once the preliminary plea of
“waiver” raised by the plaintiff is tried and proved, then upon
such waiver the civil court gets jurisdiction to entertain and try
the suit. A party defending such suit which is instituted without
service of pre-suit statutory notice has right to object at earliest
opportunity that the civil suit could not have been instituted
without the mandatory compliance of statutory requirements of
the pre-suit notice. On this premise, it is urged that it is choice
of the defendant public authority to raise preliminary objection
as to jurisdiction of the civil court to entertain the suit or to
waive the objection of procedural requirement by continuing to
participate in the suit by filing written statement, making
adjournment applications etc. and otherwise participating in the
further continuation of proceedings in the suit. It is urged that
if the defendant public authority in such suit continue to
participate in the suit without enforcing its right to object to the
institution of the civil suit filed without compliance of
requirements of the pre-suit statutory notice, the defendant's
conduct of continued participation in the suit without raising
the preliminary issue as to the jurisdiction of the civil Court to
entertain and try the civil suit and participation therein may be
established as "deemed waiver" of procedural requirement of
the pre-suit statutory notice and, on that basis, when the
"waiver" is established by the plaintiff, the trial Court may have
to proceed further to decide the suit on merits. It is well
known that due to an ever- increasing pendency of the litigation
a Civil Suit in its routine course takes long years for its final
decision on merits. In such case, the plaintiff may be left
remediless and even if remedy is available, may have to start
litigation/ suit afresh if rigid view is taken. It would also result
Therefore, the
in huge waste of energy, time and money.
argument is that Section 527 of the MMC Act may be
construed as derogable provision if the party defendant in such
suit by its conduct of continuance of participation in the suit
allow the plaintiff to plead and establish "deemed waiver" of
pre-suit statutory notice, then Civil Court may have to record
finding as to its jurisdiction to entertain suit and proceed
further to decide the suit on merits because civil court can try
all suits unless the suits are barred by law expressly or by
implication. The basic rule is Ouster of jurisdiction is not to be
readily inferred. Even in case jurisdiction is barred by any
statutory provision court of plenary jurisdiction has power to
decide its own jurisdiction by recording a finding as to
jurisdictional fact.
In this regard, in Dwarka Prasad
Agrawal (D) by LRs and another vs. Ramesh Chander
Agrawal and others: (2003) 6 SCC 220, the Apex Court
observed,
“..... ....The dispute between the parties was
eminently a civil dispute and not a dispute under the
provisions of Companies Act. Section 9 of the Code
of Civil Procedure confers jurisdiction upon all civil
disputes
of
civil
courts to determine all
statute,
either
unless the same is barred under a
nature
expressly or by necessary implication. Bar of
jurisdiction of Civil Court is not to be readily
inferred.
A provision seeking to bar jurisdiction of
a Civil Court requires strict interpretation.
The
Court, it is well-settled, would normally lean in
favour of construction, which would uphold retention
of jurisdiction of the Civil Court ..."
In United India Insurance Co. Ltd. vs. Ajay
Sinha and another, (2008) 7 SCC 454, in para 32 Apex Court
observed thus;
Division Bench of the High Court.
"This aspect of the matter had not been argued before the
The counsel appearing
were remiss in bringing the same to the notice of the Court the
binding precedents, as regards the jurisdictional aspect of the
civil court in the light of Section 9 of the Code of Civil
Therefore, it is fundamental presumption in
Procedure. "
statutory interpretation that ordinary Civil Courts have
jurisdiction to decide all matters of a civil nature. As a
corollary: (a) provisions excluding jurisdiction of civil
court should receive strict
construction
(see:
Bhagwat Singh vs. State of Rajasthan AIR 1964 SC 444,
Raichand vs Union of India, AIR 1964 SC 1268 and; (b)
Provisions conferring jurisdiction on authorities and Tribunals
other than Civil Courts ( see Kasturi and Sons vs
Salivateswaran AIR 1958 SC 507; Upper Doab Sugar Mills vs.
Shabdara (Delhi) Saharanpur Light Railway : AIR 1963 SC
217, have to be strictly construed. An objection as to
jurisdiction of the Court to entertain and try the suit ought to be
taken at preliminary stage of the suit at or before settlement of
the issues. The submission is that the defect as to non-
compliance of Sec. 527 of the Act is not such a defect which
can absolutely take away inherent jurisdiction of the Court to
decide plea of waiver raised by the plaintiff and if finding as to
waiver is recorded in favour of the plaintiff the Civil Court may
proceed to try the suit on merits and pass the decree. The mere
absence of pre-suit statutory notice would not affect the
fundamental jurisdiction of the civil court to decide the
question of “waiver” as preliminary issue as to whether the
civil court can entertain the civil suit?
The preliminary issue
when raised ought to be dealt with urgently before the civil
court would cross the procedural statutory bar
arising from
the procedural lapse on the part of the plaintiff in order to
the decree.
proceed further with the suit to decide it on merits and pass
Since it is a procedural defect, in a given case, if
permitted by the Court the plaintiff may opt to withdraw from
the suit and cure the defect by offering to issue a pre-suit
statutory notice in writing in accordance with law and then to
file a suit. Such permission if sought by the plaintiff may be
appropriately considered by the civil Court when the objection
is raised at preliminary stage of the suit. Section 9-A of CPC
as applicable in State of Maharashtra which contemplate an
objection at preliminary stage of the suit.
Section 9A CPC reads thus:
"Where at the hearing of application relating to interim
relief in a suit, objection to jurisdiction is taken, such
issue to be decided by the Court as a preliminary issue :
Notwithstanding anything contained in this
Code or any other law for the time being in force, if, at the
hearing of any application for granting or setting aside an order
granting any interim relief, whether by way of stay, injunction,
appointment of a receiver or otherwise, made in any suit, an
ig
objection to the jurisdiction of the Court to entertain such a suit
is taken by any of the parties to the suit, the Court shall proceed
to determine at the hearing of such application the issue as to
the jurisdiction as a preliminary issue before granting or setting
aside the order granting the interim relief. Any such application
shall be heard and disposed of by the Court as expeditiously as
possible and shall not in any case be adjourned to the hearing
of the suit."
The trial judge is expected by Section 9A C.P.
Code to take the earliest opportunity to dispose of the suit.
Any application under section 9A CPC is required to be heard
and disposed of by the Court as expeditiously as possible and
23
cannot be adjourned to the date of hearing of the suit.
Preliminary issue as to jurisdiction of the court to entertain the
suit for want of pre-suit statutory notice is required to be
decided by the Civil Court after giving full opportunity to the
parties to lead evidence because finding on the preliminary
issue framed may dispose of the suit. If the suit is capable of
being disposed of on the issue of jurisdiction it should be so
disposed in an expeditious manner according to law instead of
allowing it to remain in docket for years together added to
arrears. When the language of the provision is clear and
umabiguous, it is duty of the Court to faithfully implement the
mandate of the legislature.
Considerations of hardship to
the plaintiff are irrelevant in the absence of waiver of pre- suit
statutory notice; waiver may be express or implied. But mere
delay in raising objection as to the jurisdiction of the Court
would not justify an inference of waiver. It is necessarily a
question of inference to be drawn by Court based on the
established facts and circumstances as to conduct of the
defendant before and after the institution of the suit. To
illustrate: A Municipal Corporation entitled to a pre-suit
statutory notice otherwise; but threatens to immediately
demolish a house or building constructed by the plaintiff, in
such case of apprehended injury the plaintiff is not expected to
wait until pre-suit statutory notice is issued and served as per
statutory requirements of Section 527 of the Act as Municipal
Corporation by its conduct is estopped from contending that
pre-suit statutory notice was not given before the institution of
the suit. This is example of preventive injunction in the nature
of “quia timet” relief. The waiver of pre-suit statutory notice is
implied only in such exceptional case where plaintiff may be
required to rush urgently with a civil suit to the Court pleading
extreme urgency to pray for injunction to protect his residence
/house or building likely to be demolished highhandedly by the
defendant. In Krishan Lal Vs State of J & K reported in
25
(1994) 4 SCC 422, Honourable Supreme Court observed thus:-
“26. Let it now be seen whether the requirement of
giving copy of the proceeding of the inquiry
mandated by section 17(5) of the Act is one which is
for the benefit of the individual concerned or serves a
public purpose. If it be former, it is apparent, in view
of the aforesaid legal position, that the same can be
waived; if it be latter, it cannot be. Though Shri
Mehta has urged that this requirement serves a public
purpose, we do not agree. According to us, the
requirement is for the benefit of the person concerned
which is to enable him to know as to what had taken
place during the course of the proceedings so that he
is better situated to show his cause as to why the
proposed penalty should not be imposed. Such a
requirement cannot be said to relatable to public
policy or one concerned with public interest, or to
serve a public purpose. “
The above observation by the Apex court clarify
that, if the mandatory requirement of law is for the benefit of
individual concerned it may be waived by that person but if it
waived.
serves public purpose to protect a public authority, it can not be
Section 527 of the MMC Act, definitely related to
It serves a public purpose to save the MCGM
public policy.
from avoidable, expensive and lengthy litigation.
The
provision was conceived in public interest to prohibit the
prospective plaintiffs from filing the civil suit without issuance
and service of the mandatory pre-suit statutory notice as
prescribed under the law.
The provision do not admit any
exception on the ground of urgency or waiver as an excuse for
the plaintiff-appellant's failure/avoidance to comply with the
mandatory requirement. Thus when the language of the legal
provision is clear and unambiguous, it is plain duty of the court
to give effect to it and considerations of hardship will not be a
legitimate ground for not to faithfully implement mandate of
the legislature when it serves public purpose, except of course
to save someone's residence/house only means of livelihood
like shop from highhanded threatened prima facie illegal action
by or on behalf of Municipal Corporation, as an interim
preventive relief on humanitarian ground, subject to final
decision in suit.
15
In the present case, the suit was instituted in
February 2011.
Learned Advocate for the MCGM had
objected the suit on the ground of want of cause of action to
file the suit. The suit no. 2332 of 2010 instituted earlier was
pending in the City Civil Court on the ground that the stop
work notice was given by the MCGM under Section 354-A of
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FA-572.13
the MMC Act and an ad-interim protection was also obtained
28
to protect the suit structure pending the suit, but without
waiting for further decision in that suit or without amending the
plaint the Plaintiff ventured to file another suit to obtain
mandatory injunction against the MCGM to get the suit
It is the same suit structure which is the
ig
structure regularized.
MCGM had asked
subject matter of the suit instituted earlier.
to stop the construction work detected. It is case of the MCGM
that the plaintiff under the shield of the ad-interim relief of
injunction obtained in suit no. 2332 of 2010 went on to
complete the unauthorized construction work and instituted
fresh suit for mandatory injunction against the MCGM to
regularize the suit construction, without issuance and service of
the mandatory pre-suit statutory notice to the MCGM as
required under Section 527 of the MMC Act. The suit was
objected at its preliminary stage by or on behalf of the MCGM
for want of the valid cause of action to file the suit. The
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FA-572.13
plaintiff had remedy to amend the plaint in the suit no. 2332 of
29
2010 instituted earlier challenging the stop work notice, to
inform the court that the plaintiff went on to complete the
unauthorized construction and could have prayed for
consequential relief of direction as to regularization in the
ig
pending suit itself in stead of resorting to multiplicity of suits.
Thus there was no valid cause of action to institute the new suit
in respect of the regularization of the same subject matter of the
suit between the same parties, which was pending, without
issuance and service of pre-suit statutory notice as required
upon the MCGM. Therefore Learned City Civil Judge rightly
observed from the record that it was abuse of the process of
law. The facts indicate that the plaintiff went on to complete
the construction despite notice under Section 354A of the
MMC Act, under the shield of ad-interim order in the pending
suit and
innovated an idea of a new suit for mandatory
injunction against the MCGM to get the suit structure
regularized, that too without giving mandatory pre-suit
statutory notice under Section 527 of the MMC Act. Prevention
of multiplicity of the legal proceedings is policy of the law
which prohibit the institution of the suit without issuance of
pre-suit statutory notice mandatorily required to be issued and
served in the manner as prescribed. Prior notice of the suit as
required to be served legally give opportunity to the MCGM
to know before hand the full name and address of the
prospective plaintiff and the grievance of the plaintiff and the
cause of action and other particulars of the proposed civil suit.
MCGM upon receipt of the statutory notice under Section 527
of the MMC Act can reconsider the legal position so as to
make amendments or to settle the claim at prelitigation stage.
The provision of mandatory pre-suit statutory notice is
intended to save precious public time and money, while it
would also pin down the plaintiff to the stated cause of action
of the proposed civil suit. Equitable considerations of hardship
are out of place for implementing mandatory provisions of law
which limit the time period for filing the civil suit. If any act of
the MCGM is challenged as done in pursuance of the MMC
Act, it is duty of the court to faithfully implement the mandate
of the legislature to serve public purpose under section 527. In
my opinion, no court can encourage the agreement to “waive”
the mandatory legal requirements of pre-suit statutory notice
which in clear terms prohibit the institution of the suit itself
without the statutory compliance of pre-suit notice. Because
such an agreement to “waive” something prohibited by law is
one offending public policy and would be contrary to section
23 of the Indian Contract Act.
Section 23. reads thus :-
What considerations and objects are lawful and what not.- The
consideration or object of an agreement is lawful, unless-
it is forbidden by law or is of such a nature that, if permitted, it
would defeat the provisions of any law; or is fraudulent; or
involves or implies injury to the person or property of another
or; the Court regards it as immoral, or opposed to public
policy. In each of these cases, the consideration or object of an
agreement is said to be unlawful. Every agreement of which
the object or consideration is unlawful is void.
The ruling in Vasant Ambadas (Supra) appears
per incuriam in this regard. It, therefore, follows that waiver of
the breach of the procedural mandate under Section 527 of the
MMC Act would defeat the provision and policy of law which
clearly serves public purpose to protect MCGM from avoidable
litigations.
The new legislative policy under Section 515A of
the MMC Act is to prevent institution of civil suits challenging
notices issued by the MCGM requiring the noticee to stop and
remove the unauthorized, unlawful construction detected by the
MCGM through its officials. Amended Mumbai Municipal
Corporation Act, 1888 (the MMC Act") and has come into
.
Noteworthy amendment to the
effect from 22 March 2012
MMC Act is the insertion of Section 515A which now bars the
jurisdiction of civil courts to entertain any suit or any other
legal proceeding against any notice issued, order passed or
direction issued by the Designated Officer, under section 351
or 354A of the MMC Act. The text of the newly inserted
Section 515A reads as under:
515A. Bar of jurisdiction. - Save as otherwise
provided in this Act, any notice issued, order passed
or direction issued by the Designated Officer, under
section 351 or 354A shall not be questioned in any
suit or other legal proceedings.
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Division Bench of this Court
upheld the
18
34
constitutional validity of Section 515A of the MMC Act, vide
its judgment dated 17th July 2013 in
Writ Petition (L)
NO.1709 OF 2013 in Abdul Razzaq Sunesra
versus
The intention of the legislature is to prevent
1.
ig
mainly for the following reasons:
Municipal Corporation of Greater Mumbai and others,
inordinately long delays that were occasioned in the
taking of steps against illegal structures and
constructions due to the pendency of suits before the
civil courts. The legislature was entitled to take
cognizance of these delays and to enact a suitable
statutory provision and hence the same cannot be
regarded as being arbitrary.
2.
There is nothing uncommon in a competent
legislature barring the jurisdiction of a civil court to
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entertain a civil suit of a specified nature. Adequacy
35
or sufficiency of the remedies provided under the Act
may be relevant but not decisive.
3.
The absence of an appellate remedy against the
decision of an administrative officer does not render a
Division Bench of this Court held that Sections
19
ig
statutory provision unconstitutional.
351 and 354A of the MMC Act, contain adequate safeguards to
ensure that the determination by the decision making authority
is subject to the observance of statutory parameters. Without
approaching the decision making authority on behalf of the
MCGM and without inviting the reasoned and speaking order
the tendency is to rush to the Civil Court; file a civil suit
usually pleading made up or invented urgency for securing an
order in the nature of ex parte injunction from the court for
staying the implementation and execution of the notice or
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direction issued or the order passed by the Designated Officer.
36
Thus the builder/developer/owner would continue to stultify
the municipal action or action by the planning authority having
insulated himself by an protection order granted at ad-interim
The Supreme Court has repeatedly cautioned
ig
constructions.
or interim stage of the suit against the demolition of the
the State against the dangers of unauthorized construction and
encroachments. With the introduction of section 515A in the
MMC Act, access to the civil courts by civil suit is now barred
except as otherwise provided under MMC Act. But the litigant
is not remediless as he can invoke writ jurisdiction of the High
Court against such a notice, direction and/or order passed by
the Designated Officer under Sections 351 or 354A of the
MMC Act, because
the Designated Officer i.e. decision
making authority on behalf of the MCGM is duty bound to
exercise its discretion judiciously and not arbitrarily. The
Designated Officer is required to observe the principles of
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natural justice and pass a speaking order recording reasons
37
considering the relevant material. Such decision is liable for
scrutiny and challenge under Article 226 of Constitution of
India. The legislative object of introducing Section 515A and
Section 527 of the MMC Act is to ensure that recourse to
ig
normal long lasting remedy of civil suit is not utilized by an
unscrupulous litigant with a view to abuse the process of law as
would generally result in obvious procrastination for a planning
authority to espouse the action against
offending persons
responsible for unauthorized constructions.
The offending
litigant would use every potential means to ensure that the
inordinate delay occur in the disposal of the suit, once a stay or
ad-interim injunction order is obtained. The suit lingers on for
many years in Bombay City Civil Court and in upper courts
due to mounting arrears of
Civil suits.
The legislative
intention is to act as early as possible in public interest to
ensure that the urgent, expeditious action is taken against
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Carrying
unauthorized constructions to nip them in the bud.
38
on and completing the construction without having obtained
any sanctioned plan is construed as not only illegal but also
continuing offence and an injunction order which in essence is
equitable relief cannot be granted to perpetuate the illegality
ig
committed. Nobody is entitled to claim injunction as a matter
of right or course to carry on and complete the unauthorized
construction and then to apply for mandatory injunction
against the MCGM to seek regularization of unauthorized
construction. The trial courts can and shall at the earliest
opportunity non-suit the unscrupulous litigants in frivolous and
unlawful claims, instead of adding the suits to the list of
ongoing pendency of the suits lasting for years for paucity of
adequate judges and want of time. Wrong-doer cannot be
allowed to reap unfair advantages out of our current civil
procedure and practices only in order to buy time for
safeguarding and perpetuating illegality.
Normal drawn out
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course of the civil suit is time consuming right from the date of
39
the institution of the suit, various steps are required in the suits
including filing written statement, discovery, inspection of
documents, admissions and denials of documents, framing
issues, recording of evidence etc. till the final decision by
ig
pronouncement of judgment; Precious judicial time and Tax
payer's hard earned public money are primarily meant for the
prima facie bonafide litigants allowed to pursue normal course
of the suits to get justice according to law, but not for frivolous,
opportunist litigants indulging in illegalities, misusing and
abusing the long drawn out process of law.
20
Under these circumstances, it is contended on
behalf of the MCGM that in this case considering the want of
any urgency to institute the suit in the present case, pre-suit
statutory notice as mandatorily required under section 527 of
the MMC Act was necessary before institution of the suit.
This express submission also overrules the possibility of
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“waiver” by the party for whose benefit Section 527 of the
40
MMC Act was introduced assuming for the sake of argument
that waiver is permissible. An useful reference can also be
made to the ruling in AIR 1984 SC 1043, in the case of Bihari
Chowdhary and another vs. State of Bihar and others,
ig
wherein it has been held that a suit against the Government or
a public officer to which the requirement of a prior notice
under Sec. 80 CPC is attracted cannot be validly instituted until
the expiration of the period of two months next after the notice
in writing concerned in the manner prescribed for in the section
and if filed before the expiry of the said period, the suit has to
be dismissed as not maintainable. Under Order VII, Rule 11
(d) of the Code of Civil Procedure if upon meaningful reading
of the plaint the Court is satisfied that the suit is barred under
any law then it has power to non-suit the plaintiff-appellants
irrespective of any plea made in the written statement if Such a
conclusion is drawn from the averments made in the plaint
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relevant provision reads thus:-
O. 7. R.11. Rejection of plaint
itself. Under Order VII Rule 11, the plaint can be rejected. The
41
The plaint shall be rejected in the following cases:
(a) Where it does not disclose a cause of action:
ig
(b) Where the relief claimed is undervalued, and the
plaintiff, on being required by the Court to correct
the valuation within a time to be fixed by the Court,
fails to do so :
(c) Where the relief claimed is properly valued, but
the plaint is written upon paper insufficiently
stamped, and the plaintiff, on being required by the
Court to supply the requisite stamp-paper within a
time to be fixed by the Court, fails to do so :
(d) Where the suit appears from the statement in the
plaint to be barred by any law:
(e) where it is not filed in duplicate :
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(f) where the plaintiff fails to comply with the
42
provisions of rule 9.
Provided that the time fixed by the Court for the
correction of the valuation or supplying of the
requisite Stamp-papers shall not be extended unless
ig
the Court, for reasons to be recorded, is satisfied that
the plaintiff was prevented by any cause of an
exceptional nature from correcting the valuation or
supplying the requisite stamp-papers, as the case may
be, within the time fixed by the Court and that refusal
to extend such time would cause grave injustice to
the plaintiff.
21
In the case in hand there were reasons for the court
to consider the suit as barred by law and also that it did not
disclose the valid cause of action to institute the suit.
The
court has power to reject the plaint at any stage of the suit for
any of the reasons mentioned above.
If
by reading the
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avermentsthe plaint is written upon paper insufficiently
stamped, and the plaintiff, on being required by the
Court to supply the requisite stamp-paper within a
time to be fixed by the Court, fails to do so :
(d) Where the suit appears from the statement in the
plaint to be barred by any law:
(e) where it is not filed in duplicate :
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(f) where the plaintiff fails to comply with the
42
provisions of rule 9.
Provided that the time fixed by the Court for the
correction of the valuation or supplying of the
requisite Stamp-papers shall not be extended unless
ig
the Court, for reasons to be recorded, is satisfied that
the plaintiff was prevented by any cause of an
exceptional nature from correcting the valuation or
supplying the requisite stamp-papers, as the case may
be, within the time fixed by the Court and that refusal
to extend such time would cause grave injustice to
the plaintiff.
21
In the case in the plaint, the court is satisfied that the suit is
43
without valid cause of action or if it is barred by law, the court
is not obliged to consider the pleas in the written statement for
passing an order rejecting the plaint. Order VII Rule 7 Civil
procedure Code enable the Court to exercise power to non-suit
ig
the plaintiff and reject the plaint finding that the suit was barred
by any provision of law. In the ruling in Sadu Vithal Vs
Bombay Municipal Corporation reported in 1986 (3) Bom.
C. R. 628, this Court had observed thus:-
“5. It is true that the suit was not fixed for hearing or
for deciding any issue about maintainability of the
suit, but the suit appeared, from the statements in the
plaint itself, to be barred by the provisions contained
in section 527 and hence the learned trial Judge was
competent to reject the plaint under Order 7, Rule 11.
It is well settled that this rule can be applied at any
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stage of the suit and hence the order dismissing the
44
suit cannot be styled as illegal merely because the
suit was not fixed for hearing or for determination of
the issue of maintainability.
ig
6. Moreover, as rightly urged by Shri Trivedi the
absence of notice under section 527 relates to the
jurisdiction of the trial Court to entertain and try the
suit and hence the learned trial Judge was bound to
dismiss the suit once he came to the conclusion that
no notice under section 527 was given by the
appellant before filing the suit.
In support of his
contention Shri Carlos placed reliance on the decision
of the Full Bench in Vasant Ambadas v. Bombay
Municipality. No doubt the question involved in that
matter was whether the procedural requirement of
giving a notice under section 527 of the Bombay
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Municipal Corporation Act can be waived or not. But
45
the learned Judges proceeded to consider that
question on the premise that no suit can be instituted
without service of notice if such service of notice is
required statutorily as a condition precedent to the
ig
exercise of jurisdiction, and proceeded to lay down
that the procedural requirement of giving such a
notice can be waived and on such waiver the Court
gets jurisdiction to entertain and try the suit.
As
rightly held by the learned trial Judge no valid notice
under section 527 of the Bombay Municipal
Corporation Act was given by the appellant before
filing the suit and hence the trial Court had no
jurisdiction to entertain and try the suit, which was
rightly dismissed.
As the suit, itself was dismissed
no question of granting temporary injunction arose.”
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The mandate under Section 527 of the MMC Act
22
46
is clear and undeniable creating prohibition for the institution
of the civil suit without compliance of conditions precedents
stated therein. The civil suit cannot be entertained against the
MCGM or its officials for performing their duty in good faith,
ig
unless the conditions precedents are complied with by the
23
prospective plaintiff before the institution of the civil suit.
In these days trial courts are heavily burdened by
huge dockets of pending suits, there is nothing wrong if the
trial judge at the earliest possible opportunity on meaningful
reading of the plaint record his satisfaction that the suit can not
be entertained as it is barred by law and reject the plaint. Larger
public interest would require the court to free itself from the
heavy burden of dockets of the plaints lodged which are prima
facie contrary to law, sometimes ill-motivated attempt only to
buy time for sustaining illegality for lifetime of the suit.
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24
When
constitutionality
introduced under Section
of
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47
the
Amendment
515 A of the MMC Act was
challenged and it is upheld by this Court by the ruling of
ig
Division Bench of this Court in W.P. (L) 1709 of 2013 dated
17-07-2013 in Abdul Razzaq sunesra Vs MCGM and others
this court have left the litigant to avail of the remedy of
invoking writ jurisdiction under article 226 of the Constitution
of India when the civil suit is barred by law. In the same
manner, if the civil suit cannot be filed /instituted without the
issuance and service of the pre-suit statutory notice as
mandatorily required under section 527 of the MMC Act, the
plaintiff should avail of the remedy under Art. 226 of the
Constitution of India. Thus plaintiff-appellant is not rendered
remediless even if civil suit is rejected as barred by law by the
court below.
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Recently in the ruling of Abdul Karim Ahmed
25
48
Mansoori vs. The Municipal Corporation of Greater Mumbai
and another, in Writ Petition (Lodging) No.2237 of 2013, a writ
petition was filed under Article 226 of the Constitution of India
in order to challenge the notice issued under Section 354A of
ig
the Mumbai Municipal Act, 1988. A Division Bench of this
court after considering the ruling in Secretary of State V/s.
Mask & Company, reported in AIR 1943 P.C. 105, and the
ruling in Shiv Kumar Chadha V/s. Municipal Corporation
of Delhi reported in 1993 (3) SCC 161, as also Dhulabhai and
Others V/s. State of Madhya Pradesh and Another reported
in AIR 1969 S.C. 78, and Commissioner, Akola Municipal
Corporation V/s. Bhalchandra s.p Govind Mahashabde
reported in 2013(4) Mh.L.J.45, considered the consistent trend
and opinion of the courts which leans in favour of entertaining
a civil suit subject to legal bar so as to apply the legal bar as
and when invoked. Division Bench expressed its view thus :
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“It is not as if by our clarification and
49
enabling parties to file a Civil Suit, that we
have observed that the bar should be ignored
or should not be taken note of. The Civil
Court is obliged to take note of the provision
and the statutory bar whenever that plea is
raised by the Corporation before it. In such
circumstances, no further clarification is
needed. All that we state and observe is that
we have not expressed any opinion on the
rival contentions including on the point of
jurisdiction of the Civil Court in this matter.
Even if the Petitioner seeks to revive the Suit
as it is still pending and seek interim relief
therein, the Corporation can raise the plea of
jurisdiction and the learned Judge should
consider and decide in accordance with law.”
To sum up discussion therefore, there cannot be a blanket bar
for plaintiff to file a civil suit but the plaintiff do incur risk by
approaching the civil court particularly when there is express or
implied bar by any law because it is open for the civil court
before entertaining the suit to go through averments in the
plaint and if upon meaningful reading of the plaint, the court
finds that there is legal bar to entertain the suit, it may reject
the plaint irrespective of any contention on behalf of the
defendant, who may have been served.
Alternatively, if
defendant has appeared before the court and raised a
preliminary issue as to jurisdiction of the court to entertain the
suit, in view of the legal bar, civil court shall try the
preliminary issue and decide the same, in view of Section 9A
of the Code of Civil Procedure, as applicable in State of
Maharashtra. In case the plaintiff's civil suit is not entertained
or dismissed in liminen or for any reason as above, then even
appeal may not be entertained and ultimately due to legal bar to
the suit, the plaintiff will have to invoke writ jurisdiction
available under Article 226 of Constitution of India.
In my opinion, a citizen can lodge his civic
complaint to the ward officer or the complaint authority
concerned of the MCGM. Furthermore, according to law, the
building has to be constructed in accordance with the
sanctioned plan. Since building construction or development is
in substance an immensely technical and specialized branch of
the Municipal Corporation as planning authority, MCGM is
adequately invested with statutory powers to grant ,revoke or
cancel building permissions, to stop illegal constructions and/or
to remove it and under the statutory obligation to prosecute the
offenders, to enforce the the provisions of the MMC Act,
Rules, Bye laws, D.C. Regulations, policy decisions and
circulars etc. When grievances are allowed to be made by
citizens, the MCGM may prevent plethora of avoidable suits if
it sets up a “Grievance Redressal Forum” in public interest at
its principal office for its tax payers to approach it so that many
grievances of prospective litigants/Plaintiffs can be settled and
remedied amicably on merits and in accordance with law at
This forum need to be established
pre-litigation stage itself.
for benefit of prospective litigants when civil suits are now
sought to be prevented by a legal bar. I am sure it would save
the MCGM of lot of expenditure and precious time spent by it
to pursue suits in courts.
Of course any aggrieved
or
dissatisfied citizen may then invoke Writ jurisdiction to compel
Municipal Corporation to perform its statutory obligation if
grievance remains unredressed despite complaint made to the
ward officer or the decision making authority concerned
designated to decide grievances by the rate payers on behalf of
the MCGM.
27
In sequel to legal position stated and discussion as
above, following order is passed.
ORDER
The impugned order of dismissal of the Notice of
Motion and the civil suit is sustainable according to law and
cannot be blamed. The Civil application 2797 of 2011 and the
appeal is found without merits. Both are dismissed with costs.
Copy of this Judgment and order be sent to the
Director of the Municipal Administration, State of Maharashtra
and to the Municipal Commissioner and Principal Secretary,
Law and Judiciary Department in the State of Maharashtra for
their information and necessary action.
(A.P. BHANGALE, J.)
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