2013 Supreme(Bom) 2046

High Court of Judicature at Bombay
A.P. BHANGALE, J.
M/s. Akash Impex
Versus
Municipal Corporation of Greater Mumbai
First Appeal No. 572 of 2013 With Civil Application No. 2797 of 2011
Decided On : 09-10-2013

Headnote:Mumbai Municipal Corporation Act, 1888 - Section 527 - Mandate under. - For filing a suit against Municipal Corporation, pre-suit statutory notice in writing is mandatory under Section 527 of Act. - 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 in good faith until pre-suit statutory 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 :

       (i) the cause of action for the proposed suit;

       (ii) name, description and place of residence of the plaintiffs, who will sue.

       (iii) the relief which the plaintiff claims. 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.

       The mandate under Section 527 of the MMC Act 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, unless the conditions precedents are complied with by the prospective plaintiff before the institution of the civil suit.

       Mumbai Municipal Corporation Act, 1888 - Section 527 - Pre-suit statutory notice. - Section 527 of Act casts an important and implied duty upon notice to send prompt reply to pre-suit statutory notice. - Wherever the statutory provision requires service of notice as a condition precedent for filing of the suit and observing prescribed period of limitation thereof, notice concerned is expected to deal with it receptively, so as to send prompt reply. The provision casts an important and implied duty upon the notice concerned to send an appropriate reactive reply to such notice.

       Mumbai Municipal Corporation Act, 1888 - Section 527 - Waiver of pre-suit statutory notice. - If mandatory requirement under Section 527 of Act of pre-suit statutory notice, serves public purpose, if cannot be waived. - If the mandatory requirement of law is for the benefit of individual concerned it may be waived by that person but if it serves public purpose to protect a public authority, it cannot be waived. Section 527 of the MMC Act, definitely related to public policy. It serves a public purpose to save the MCGM 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.

       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 case a 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.

       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. AIR 1981 Bom 394 - Held per incurium.

       Mumbai Municipal Corporation Act, 1888 - Section 527 - Waiver of pre-suit statutory notice. - Where plaintiff required to file suit pleading extreme urgency for grant of injunction therefore waiver of pre-suit statutory notice is implied. - 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. 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.

       Mumbai Municipal Corporation Act, 1888 - Section 527 - CPC, 1908, Section 9-A - Waiver of pre-suit statutory notice. - Issue as to waiver of pre-suit statutory notice, must be decided by Court as a preliminary issue urgently. - 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 proceed further with the suit to decide it on merits and pass the decree. 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. The trial judge is expected by Section 9-A, CPC to take the earliest opportunity to dispose of the suit. Any application under Section 9-A of 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.

       Mumbai Municipal Corporation Act, 1888 - Section 527 - Constitution of India, Articles 226 and 227 - Pre-suit statutory notice. - If civil suit cannot be filed without issuing pre-suit statutory notice under Section 527 of Act, plaintiff can avail of remedy under Article 226 of Constitution. - When constitutionality of the Amendment introduced under Section 515-A of the MMC Act was challenged and it is upheld by the Court by the ruling of Division Bench of the Court 2013 (6) All MR 297, Abdul Razzaq Sunesra v. MCGM and others, High Court has 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 Article 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.