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.
1. The Revision is directed against the order dated 3rd August, 2002 whereby the preliminary objection raised by defendant No. 3 were rejected. The objection was as to the maintainability of the suit filed without issuing notice under Section 527 of the B.M.C. Act. On a Motion being taken out for injunction defendant No. 3 raised preliminary objection holding that the suit was not maintainable considering that the statutory notice under Section 527 of the B.M.C. Act had not been served on defendant Nos. 1 and 2. the record would show that appearance was put up on behalf of defendant Nos. 1 and 2. However, the matter seems to have been argued at length by Counsel appearing on behalf of the plaintiff and defendant No. 3 before the trial Court. There is nothing on record to show participation by defendant Nos. 1 and 2 either in support or opposition to the objection raised by the defendant No. 3 which objection was heard as a preliminary issue under Section 9A of the Code of Civil Procedure 1908 as amended in the State of Maharashtra. The issue before this Court would be whether the finding recorded by the trial court holding that the objection can be raised by defendant No. 1 alone and consequently rejecting the preliminary issue of jurisdiction under Section 9A can be upheld.
The contentions, therefore, which will have to be examined are whether the notice under Section 527 is mandatory or not; secondly whether the notice can be waived by the authorities to whom the notice has to be given and thirdly whether there is any such provision by which the authorities are restricted in raising objection for want of notice.
It may be mentioned that there are various judgments of this Court on the issue of Notice and jurisdiction of Single Judges, Division Bench as also the Judgement of the Full Bench of this Court. The matter, therefore, appear to be no longer res integra. However, objections are still being raised and suits and being filed and entertained at considerable costs to the public exchequer. It is in the context that this judgment was reserved for consideration of the law.
2. Let me first, therefore, deal with the issue as to whether the notice is mandatory. 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 Commissioner, or against any municipal officer or 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 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 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 the 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."
Before going into the issue whether the requirement of notice is mandatory or directory, let us also consider some provisions, more specifically Section 80 of the Code of Civil Procedure before its amendment in 1976 to find out how the issue has been dealt with. The first judgment on Section 80 is in the case of Bhagchand Dagdusa Gujrathi and Ors. v. Secretary of State for India MANU/PR/0026/1927 the Privy Council was considering the issue in the context of there being conflict of opinion amongst the High Courts more specifically on the one hand the judgment of this Court and on the other hand the view taken by other High Courts in India regarding the true scope and extent of Section 80. It was sought to be argued that the Section is but a part of the Procedural Code. A construction which may lead to injustice is one which ought not to be adopted since it would be repugnant to the whole tenor and purpose of the Act and the implication of a suitable exception or qualification is, therefore ,justifiable and even necessary. Answering the issue the Privy Council observed as under:--
"The Act albeit a Procedure Code, must be read in accordance with the Material meaning of its words. Section 80 is express, explicit and mandatory and it admits of no implications or exceptions. A suit in which inter alia an injunction is prayed is still "a suit" within the words of the Section and to read any qualification into it is an encroachment on the function of legislation "
It was also sought to be contended that Section 80 is ultra vires and this is how the issue was answered:-
"As for the suggestion that Section 80 in such a case as this, is itself ultra vires, it arises from a misapprehension of Secretary of State v. Moment (2). The regulation for civil procedure has nothing to do with the obligations formerly vesting in the East India Company at a trading Corporation, for it is incidental to the duties of the ruling power and cannot be said to be subject to the Government of India Act, 1958, Section 65."
This judgment came up for consideration before the Apex Court in Bihari Chowdhary and Anr. v. State of Bihar and Ors, MANU/SC/0004/1984 : [1984]3SCR309 . Answering the issue as to the nature of the power conferred by Section 80 and considering the judgment in Bhagchand Dagadusa v. Secretary of State of India (supra) the Apex Court observed as under:-
"It must now be regarded as settled law that a suit against the Government or a public officer to which the requirement of a prior notice under Section 80, C.P.C. is attracted, cannot be validly instituted until the expiration of the period of two months next after the notice in writing has been delivered to the authorities 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 "
In Beohar Rajendra Singh and Ors. v. The State of Madhya Pradesh, MANU/SC/0284/1969 : [1969]3SCR955 the Apex Court reiterated that Section 80 is no doubt imperative; failure to serve notice complying with the requirements of the statute will entail dismissal of the suit. But the notice must be reasonably construed.
These authorities, therefore, lay down a proposition that it was mandatory before filing a suit to serve a notice under Section 80. However, at the same time it was noticed that parties or persons for whose benefit the notice was to be issued could waive the notice. In Vellayan Chettiar and Ors. v. The Government of the Province of Madras and Anr., AIR (34) 1947 PC 197 the Privy Council observed as under:--
"On the other hand, there appears to their Lordships to be no reason why the notice required to be given under Section 80, should not be waived if the authority concerned thinks fit to waive it. It is for his protection that notice is required; if in the particular case he does not require that protection and says so, he can lawfully waive his right."
In Hirachand Himatlal Marwari v. Kashinath Thakurji Jadhav, MANU/MH/0042/1942 : AIR1942Bom339 while considering the provisions of Section 80 it was observed that it is open to the party protected by Section 80 to waive his right to a notice and his waiver binds the rest of the parties But only he can waive notice, and a party who has himself no right to notice cannot challenge a suit on the ground of want of notice to the only party entitled to receive it. The judgment in Vellyan Chettiar v. Government of Madras (supra) has been approved by the Apex Court in Dhirendra Nath Gorai and Ors. v. Sudhir Chandra Ghosh and Ors., MANU/SC/0018/1964 : [1964]6SCR1001 in that judgment it was also observed that a waiver is an intentional relinquishment of a known right, but obviously an objection to jurisdiction cannot be waived, for consent cannot give a court jurisdiction where there is none. In Vellayan Chettiar (supra) the Privy Council also noted that there could be no estopped and the issue of notice could be raised at any stage.
3. The issue of notice under the provisions of the Municipalities Act had come up for consideration before the Full Bench of this Court in Vasamt Ambadas Pandit v. Bombay Municipal Corporation and Ors. 1981 Bom.C.R. 793. Considering the mandatory character of the notice and at the same time the fact that a notice could be waived the Full Bench observed that:-
"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 the notice is a condition precedent to the exercise of jurisdiction to entertain and try the suit. The plea of waiver can always be tried by the Civil Court. In fact, it is not suggested who else can try. The question whether, in fact, there is waiver or not would necessarily depend on facts of each case, and is liable to be tried by the same Court if raised. Order of rejection of plaints, therefore, by the Principal Judge of the City Civil Court was incorrect and liable to be set aside.
The Court, therefore, held that it was no longer permissible to reject the plaint under Order 7 Rule 11 as the requirement of notice could be waived and as such the issue then would be decided as an issue of jurisdiction considering the facts and circumstances on record. This view of the Full Bench of this Court was a departure from the Law earlier taken in Ebrahimbhai v. State of Mahrashtra and Ors., MANU/MH/0175/1975 : AIR1975Bom13 where the Division Bench had taken a view that under Order VII Rule 11(d) it is obligatory on the Court to reject the plaint where the suit appears from the settlement of the plaint to be barred by any law. 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."
Dealing with the private properties it was observed as under:-
"In so far as private properties are concerned, where new material is shown which were not placed before the Commissioner or his delegate or have subsequently came to the knowledge of the parties the Authorities may waive notice if they so desire. On failure to waive notice it is not as if the party is left without a remedy. The extra ordinary jurisdiction of this Court is always available in such cases where in cases of palpable injustice being occasioned or in a cases where the construction could be regularised in terms of the Act and the Development Control Regulations....."
In other words the exercise of waiving notice is subject to what is stated above.
4. Considering the above judgements both under Section 80 of C.P.C. and Section 527 of the B.M.C. Act the law as laid down can be summarised as under:-
(a) That no suit can be filed without complying with the mandatory requirement of serving a notice under Section 527 of the B.M.C. Act.
(b) Though the notice is mandatory yet the authorities on whom the notice has to be given before filing a suit can waive the notice. Considering that the plaint cannot be rejected under Order 7 Rule 11 of C.P.C. but the issue can be decided as an issue of jurisdiction and in the State of Maharashtra considering Section 9A if there be an interim application, otherwise on framing an issue and deciding the same as preliminary issue.
(c) Want of notice cannot be raised by a defendant other than the public authority to whom the notice is required to be given. If an objection is raised by a person other than public authority then the suit cannot be dismissed on the ground of want of jurisdiction.
(d) In so far as public authorities are concerned in the matter of waiver of notice they are bound to follow and comply with the order of this Court passed in Mohamed Arif H. Modan v. Municipal Corporation of Greater Mumbai and Ors. 1999 (4) L.J. 109.
(e) The public authorities, however, cannot be estopped if at the threshold they have not raised objection of non-service of notice to raise such an objection at a later stage atleast till the filing of written statement. If objection is raised after the filing of the written statement it will be open to the Court to consider whether failure to raise the objection in the written statement amounts to waiver.
4. Having said so in so far as this Revision Application is concerned no doubt it would be entertainable as if the issue is answered in favour of the petitioners the suit itself would be dismissed. Even after amendment the revision as filed is maintainable. However, considering that the objection was not raised by defendant Nos. 1 and 2, but was raised by defendant No. 3 a private defendant who could not have raised the issue as to jurisdiction the trial Court was right in rejecting the said contention.
5. For the reasons aforesaid I find no reason to interfere with the impugned order. Civil Revision Application accordingly disposed of.
Registry to send a copy of this judgment to the Chief Secretary, State of Maharashtra and the Municipal Commissioner, Mumbai, to be circulated and acted upon by all local authorities where there is a requirement for giving notice before filing a suit.
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