SABIRA ASLAM SIKWANI Vs. MOHAMMED YUSUF HUSSAIN

JUDGEMENT

(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 note under Section 527 of the B. M. C. Act had not been served on defendant Nos. l and 2: The record would show that appearance was put up on behalf of defendant Nos. l 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. l 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 Judgment of the Full Bench of this Court. The matter, therefore, appears to be no longer res integra. However, o`bjections are still being raised and suits are being filed and entertained at considerable costs to the public exchequer. It is in that 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 Gujrathiand Ors. v. Secretary of State for India, AIR 1927 Privy Council 176 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 :-

(3.) THE issue of notice under the provisions of the Municipalities Act had come up for considering before the Full Bench of this Court in Vasant 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 :-