This being a second appeal governed by section 100 of the Code of Civil Procedure, the substantial point for consideration before us is as follows: (1) Whether defendant No. 1 sued as Administrative Officer is a competent party defendant to suit in that capacity or not? {Para 6}
19. A bare glance at section 487 of the Bombay Provincial Municipal Corporation Act, 1949 makes it clear that the notice contemplated by that section must be a specific and definite notice which must comply with the provisions of that section. Section 487 of the said Act is as under:
“487(1) No suit shall be instituted against the Corporation or against the Commissioner, or the Transport Manager, or against municipal officer or servant, in respect of any act done or purported to be 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………”
20. The rest of this section is not be recited for the purpose of argument. This section has named and designated “the Corporation, Commissioner. Transport Manager and any other Municipal Officer”. When the section itself enumerates these authorities as distinct entities, it is difficult to accept the argument that the notice to one of them, in this case notice to the Commissioner, will be sufficient notice to the Corporation. The learned Counsel for the respondents herein pointed out and in my opinion rightly that section 4 of the Bombay Provincial Municipal Corporations Act, 1949 itself gives guidance to appreciate the distinct character of the various authorities. Section 4 finds place in Chapter II, which deals with constitution-Municipal authorities. Section 4 is as follows:
“4,(1) The municipal authorities charged with carrying out the provisions of this Act are for each City:—
(a) a Corporation;
(b) a Standing Committee;
(c) a Municipal Commissioner;
and in the event of the Corporation establishing or acquiring a Transport Undertaking;
(d) a Transport Committee;
(e) a Transport Manager.
21. All these sub-clause from (A) to (E) provide that the distinct authorities are charged with carrying out the provisions of the Act. It is not necessary, to refer to various sections which deal with different functions of the authorities. The Corporation under section 6 of the Act is itself a body corporate and have perpetual succession and a common seal and by such name may sue and be sued and by such a name. If sections 4 and 5 of the said Act are read together and bearing in mind the distinct authorities constituted under section 4 of the Act, it is not possible to accept the contention that the notice to the Commissioner can also said to be the notice to the Corporation within the meaning of section 487 of the Act.
22. As the words of the statute i.e. the provisions of section 487 of the said Act and section 4 as quoted above of the Act are in my opinion quite clear to express the intention of the Legislature, it is not possible to accept the contention that the notice given to the Commissioner should be treated as sufficient compliance of section 487 of the Bombay Provincial Municipal Corporation Act. In this view of the matter, I do not accept the contention of the learned Counsel for the appellant that the notice given to the Commissioner is a valid notice and the judgment of the Appellate Court is erroneous in that behalf.
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