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.

Print Page

Whether a party other than Municipal Corporation can raise the issue of maintainability of the suit on the ground of non-issuance of statutory notice?

 Considering the above judgments 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 Vs. Municipal Corporation of Greater Mumbai & 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.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

F.I. REBELLO, J.

Smt. Sabira Aslam Sikwani Vs. Mohammed Yusuf Hussain & Ors.

Civil Revision Application No.1802 of 2002

26th February, 2003

Citation:2003(3) ALL MR 536,2003(3) MHLJ 974

Print Page

Whether suit for declaration against municipalities is maintainable without issuing statutory notice?

 Respondent No.1-plaintiff filed the suit for declaration of title and
permanent injunction. In view of bar of suit for declaration of title in absence
of notice under Section 319 the suit was not maintainable. The Courts below

wrongly held that the suit was perpetual injunction though the respondent
No.1-plaintiff filed the suit for declaration of title and for permanent injunction.
9. Respondent No.1-plaintiff cannot derive advantage of sub Section (3)
of Section 319 which stipulates non-application of the Section 319 when the
suit was instituted under Section 54 of the Specific Relief Act, 1877 (old
provision) equivalent to Section 38 of the Specific Relief Act, 1963 and reads
as follows:
“Section 38.Perpetual injunction when granted.-
(1)Subject to the other provisions contained in or referred to
by this Chapter, a perpetual injunction may be granted to
the plaintiff to prevent the breach of an obligation existing in
his favour, whether expressly or by implication.
(2)When any such obligation arises from contract, the Court
shall be guided by the rules and provisions contained in
Chapter-II.
(3)When the defendant invades or threatens to invade the
plaintiff’s right to, or enjoyment of, property, the Court may
grant a perpetual injunction in the following cases, namely:
(a)where the defendant is trustee of the property
for the plaintiff;
(b)where there exists no standard for ascertaining
the actual damage caused, or likely to be causes,
by the invasion;
(c)where the invasion in such , that compensation
in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a
multiplicity of judicial proceedings.”
The benefit aforesaid cannot derive by Respondent No.1-plaintiff as the
suit was filed for declaration of title coupled with permanent injunction.
Respondent No.1 having claimed title, the suit cannot be termed to be suit for
perpetual injunction alone.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4454 OF 2014
(arising out of SLP(C)No.30146 of 2012)
NAGAR PALIKA PARISHAD,
MIHONA AND ANR
V
RAMNATH AND ANR.
Citation: 2014(4) ALLMR 405 SC

Print Page

Whether objection based on want of statutory Notice can be raised by defendants other than municipal corporation?

 It would be, thus, clear that the language of Section 289 is also mandatory in nature as subsection (1) of Section 289 of the Municipalities Act clearly provides that no suit shall lie against the Council or against Committee constituted under the Act in respect of any act done in pursuance of, or in execution or intended execution of the act or in respect of any alleged neglect or default in the execution of the act. In my considered view, in the face of the language as used, it would be for the Court to look into whether the suit would be maintainable for want of notice under Section 289 of the Municipalities Act. Thus, once the fact about absence of a statutory notice under Section 289 of the Municipalities Act is brought to the notice of the Court, the same cannot be brushed aside on the ground that the concerned statutory body, namely Municipal Council has not raised the issue, but is raised by some other defendant. If we were to draw an analogy, the same can be found in Section 3 of the Limitation Act, wherein notwithstanding the fact that any of the parties raise the issue, the Court is obliged and is entitled to look into and ascertain whether the suit is filed within limitation. In view of the language as used in Section 289 of the Act and the observations in the case of Syed Abdul Razzak (supra), with which I am in respectful agreement, the objection that the issue of absence of notice under Section 289 is not raised by the statutory body i.e. the Municipal Council, but by a private defendant, cannot be accepted. I also find that non-raising of the said objection by Municipal Council cannot tantamount to waiver as there is a statutory bar in entertaining the suit in the absence of the notice.

IN THE HIGH COURT OF BOMBAY AT GOA

Civil Revision Application Nos. 21 and 23 of 2015

Decided On: 16.09.2015

 Boshan Developers Pvt. Ltd. and Ors.
Vs.
 Communidade of Bordem and Ors.

Hon'ble Judges/Coram:C.V. Bhadang, J.

Citation: 2015(6) ALLMR 868

Print Page

Whether it is mandatory to issue statutory notice to municipal corporation if urgent relief is required?

It was firstly contended by the advocate for the appellant that the suit should not have been dismissed for want of notice under section 527 of the BMC Act i.e. the statutory notice before institution of a suit, because the suit had to be filed in urgency. According to the plaintiff, on 25th or 26th May 1979 one Shridharkar, officer of the BMC threatened them that they would demolish the house and take forcible possession. Therefore the suit had to file in hurry to prevent the threat from being executed or materialised. The suit was infact filed on 25th May 1979 and therefore in the circumstances it was not necessary and obligatory on the part of the plaintiff to serve statutory notice under section 527. I find considerable force in this argument and submissions. There are rulings on this point that when the plaintiff wants to seek immediate relief from the court in the form of injunction, it is not necessary for him to issue statutory notice or wait till the statutory notice is served and the period prescribed under section 527 of the Act is over. (to verify) Therefore the dismissal of the suit by the court on that count and with reference to that issue is not proper. The finding in that regard is required to be set aside.

Bombay High Court

Motillal Mahadev Sharma (Since ... vs The Municipal Corporation Of ... on 1 April, 2005

Equivalent citations: AIR 2005 Bom 344, 2006 (2) BomCR 409; 2005 (3) ALL MR869

D.G. Deshpande, J.

Print Page