Putli Bai vs Municipal Corp. Gwalior

Shivdayal, J.—This second appeal arises out of a suit instituted by Putlibai appellant against (1) Municipal Corporation Gwalior and (2) Ramcharan respondent, alleging that her husband Tejumal was the tenant of the Municipal Corporation in respect of a stall No. 95 with its appertunent open space 6 ''x 3'' in the Victoria Market Lashkar. But the corporation unauthorisedly and without notice to her auctioned the stall on 31-5-60 in favour of Ram Charan. She gave a notice to the Corporation on 1-6-60 and instituted this suit on 30-7-60. In the meantime, on 29-7-60 the defendants threatened and attempted to dispossess her. The suit was dismissed by the trial Judge for want of notice to the Municipal Corporation as required by section 401 of the M. B. Municipal Corporation Act No. 23 of 1956. The plaintiff''s appeal has been dismissed by the Second Additional District Judge, Gwalior.

Defects pointed out by the Courts below in the notice dated 1-6-60 are two: (I) That it was addressed to the Municipal Commissioner and not to the Municipal Corporation; (2) That in respect of the cause of action which arose on 29 7-60 no separate notice was given and it could not have been mentioned in the notice dated 1-6-60.

Section 401(1) of the Corporation Act enacts as follows:

No suit shall be instituted against the Corporation the Standing Committee, or any Corporation Officer or servant or any person acting under the direction of the Corporation in respect of any act done or purporting to have been done in pursuance or execution or intended execution of this Act, or in respect of any alleged negligence of default in the execution of this Act until the expiration of one month next after notice in writhing has been delivered or left at the Chief Corporation Office or at the residence of such officer, servant or person stating....

All that this section requires is that in case a suit is to be instituted against a Corporation or the Standing Committee, a notice in writing must be delivered or left at the Chief Corporation Office. This section does not lay down to whom the notice should be addressed. This has to be emphasized because provisions requiring notice have to be strictly construed is now settled. It is not the defendants'' case that the notice dated 1-6-60 was not left at the Chief Corporation Office. In the written statement filed on behalf of the Corporation, the receipt of this notice is admitted. The only objection in the written statement which has been filed by the Municipal Commissioner on behalf of the Municipal Corporation is that the notice was addressed to the Commissioner and not to the Corporation.

u/s 400 of the said Act the Commissioner is empowered on behalf of the Corporation to institute defend or withdraw from legal proceedings under the Act and also to admit compromise or withdraw and claim made under the Act, and also to obtain such legal advice and assistance as he would from time to time think it necessary or expedient to obtain. The only fetters imposed are that the Commissioner cannot admit, compromise or withdraw any claim in a suit in which the whole amount claimed exceeds Rs. 500 without the previous sanction of the Standing Committee of where the total mount claimed exceeds Rs. 2000 without the previous sanction of the Corporation. The present suit has been valued at Rs. 200.

The written statement in this case has been filed by the Municipal Corporation through the Municipal Commissioner, who has signed and verified it.

The learned Courts below have relied on the decision in Nathu Bahal Vs. The Municipal Corporation Bombay, AIR 1949, Bombay, 323. (sic) notice u/s 527 of the Bombay Municipal Act (2 of 1888) to the Municipal Commissioner was held to be not sufficient as the Municipal Corporation under that (sic) body corporate. In that case reliance was placed on the observations in AIR 1927 176 (Privy Council) , that section 80 is to be strictly, complied with and is applicable to alt forms of action and all kinds of relief. Their Lordships of the Supreme Court observed in Dhian Singh Sobha Singh and Another Vs. The Union of India (UOI), .

We are constrained to observe that the approach of the High Court to this question was not well founded. The Privy Council no doubt laid down in AIR 1927 176 (Privy Council) ). that the terms of this Section should be strictly complied with. That does not however, mean that the terms of the notice should be scrutinised in a pedantic manner or in a manner completely divorced. from common sense. As was stated by Pollock C. B. in Jones Vs. Nicholla, (1844) 13 MNW 361 (363) : 153 ER 149 A1 p. l5, we must import a litte common sense into notice of this kind. Beaccment C.J.: also observed in chandulal Badri Lal Vs. Government of Bombay, ILR 1943 Bom. 128 (AIR 1943 Bom. 138), one must construe section 80 with some regard to common sense and to the object with which it appears to have been based.

This was followed in the The State of Madras Vs. C.P. Agencies and Another, . where it was further observed:

The object of S. 80 is manifestly to give the Government or the public officer sufficient notice of the case which is proposed to be brought against it or him so that it or he may consider the position and decide for itself or himself whether the claim of the plaintiff should be accepted or resisted. In order to enable the Government or the public officer to arrive at a decision it is necessary that it or he should be informed of the nature of the suit proposed to be filed against it or him and the facts on which the claim is founded and the precise relief''s asked for.

I Confess that on the basis of those observations I was at first of the opinion that there was substantial compliance with section 401 of the Corporation Act in the present case and the objection raised by the corporation was too technical. But I readily discovered that I was wrong in view of the (sic) S.N. Dutt Vs. Union of India (UOI), . That was a suit instituted by S. N. Dutta as sole proprietor carrying on business in the name and style ''S. N. Dutta and Company''. Notice was given by "Messsers S. N. Dutta and Company". Their Lordships observed:

It will be immediately obvious that the notice was in the name of Messers S. N. Dutta and Company while the suit was filed by S. N. Dutta claiming to be the sole proprietor of Messers. S N. Dutta and Company. It is urged on behalf of the appellant that the reason why the suit was filed in the name of S. N. Dutta as sole proprietor of Messers S. N. Dutta and Company was that no suit could have been filed in the name of Messers S. N. Dutta and Company as that was not a firm; that was merely the name and style in which an individual namely S. N. Dutta was carrying on the business. The question therefore that immediately arises is whether S. N. Dutta who filed the suit was the person who gave the notice and the answer is obvious that it is not so. It may be that S. N. Dutta is the sole proprietor of Messers S. N. Dutta and Company and is carrying on business in that name and style; but that does not mean that these notices were by S. N. Dutta. Any one reading these notice. Should not necessarily come to the conclusion that Messers S. N. Dutta and Company were merely the name and style in which an individual was carrying on business.

In the result, their Lordships upheld that decision of the High Court dismissing the suit for want of proper notice. Referring to the decisions in Dhian Singh Sobha Singh and Another Vs. The Union of India (UOI), (Supra), and The State of Madras Vs. C.P. Agencies and Another, , their Lordships have observed:

It must however be remembered that the defect with which this Court was dealing in this case was in the matter of cause of action and relief and this Court pointed out that it was necessary to use a little common sense in such circumstances. Where the matter (for example) concerns the relief or the cause of action, it may be necessary to use common sense to find out whether S. 80 has been complied with. But where it is a question of the name of the plaintiff, there is in our opinion little scope for the use of common sense, for either the name of the person suing is there in the notice or it is not. No amount of common sense will put the name of the plaintiff there, if it is not there.

These observations are emphatic and I am bound by them. Following them with the utmost respect, it must be said that a notice addressed to the ''Commissioner'' cannot be deemed to be notice to the ''Corporation.''

As regards the second objection that a notice was not given for action of Corporation which occurred on the 27th July, 1S60, Mr. Shah concedes that such notice was not necessary.

In the result, the appeal is dismissed, but having regard to the peculiar circumstances, of the case I direct that the Municipal Corporation should bear its own costs in all the Courts. Putlibal and Ramcharan shall also bear there own costs in both the appellate Courts. The cases hall now go back to the trial Judge as the trial of the suit is continuing there between Putlibai and Ramcharan.