1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 841 OF 2009 The Aurangabad Municipal Corporation Aurangabad (Through its Commissioner). ....Petitioner. Versus Rajendra s/o. Shivsing Shevgan and others ....Respondents. Smt. Manjusha Deshpande, Advocate for the petitioner. Shri. C.V. Korhalkar Advocate h/f. Shri. S.V. Advant, Advocate for the respondent No. 2. CORAM : R.M. BORDE, J. DATE : 31st March, 2010 PER COURT : 1. An application was tendered by the respondent Corporation in a pending suit, praying for rejection of plaint on account of non compliance of provisions of Section 487 of B.P.M.C. Act and the Trial Court, after considering the rival contentions raised by the parties, rejected the same in view of the order passed on 20th September 2008 and the said order is impugned in this petition. 2. The respondent/original plaintiff presented a suit against a private individual as well as the Maharashtra State Electricity 2 Distribution Company and the Municipal Corporation, Aurangabad, claiming a direction essentially against the defendant No. 1, who is a private individual to restore the electricity and water supply or to give no objection for securing a new connection from defendant Nos. 2 and 3. Defendant No. 3 is Aurangabad Municipal Corporation. An alternative relief is also sought against defendant Nos. 2 and 3 that in the event of failure to give no objection by defendant No. 1, defendant Nos. 2 and 3 be directed to give new connection to the plaintiff. An objection came to be presented at the instance of original plaintiff No. 2/ petitioner herein, requesting the Court to reject the plaint on account of failure to issue mandatory notice as contemplated by Section 487 of the B.P.M.C. Act before presentation of the suit. The Trial Court on considering the relevant aspects rejected the application. 3. On perusal of the plaint, it transpires that essentially, relief is claimed against the private individual in respect of restoration of electricity and water supply. A relief is also claimed against a private individual in the mandatory form requiring him to issue no objection certificate for securing new connection from the public authorities. In the form of alternative relief, on the failure of private individual/ defendant No. 1 to comply with the directions, relief is sought against the defendant Nos. 2 and 3/ the public authorities, to extend new connection for supply of electric energy and in respect of water. Even if it is considered that a notice for securing alternative relief as against 3 defendant No. 3 is warranted, in the facts and circumstances of the case, plaint itself cannot be thrown out, as essentially and primarily relief is sought against the defendant No. 1, private individual. The failure of instituting an action against the public authority without complying with the mandatory provision, if at all it is warranted, would result in refusal to secure relief by the plaintiff in that behalf. However, for non compliance of the condition in respect of issuance of notice, the plaint itself is not liable to be rejected. The question of necessity of notice can be adjudicated and considered by the Trial Court, if the Trial Court deems it necessary to consider the alternate prayer made by the plaintiff to the plaint in respect of direction to the public authority. The issue in respect of want of notice can be considered at the time of final disposal of the suit. The Trial Court was, therefore, justified in turning down the application presented by the public body i.e. defendant No. 3. 4. I do not find any error, necessitating interference by this Court in exercise of extraordinary jurisdiction conferred on this Court under Article 227 of the Constitution of India. The petition is devoid of substance, hence, stands rejected. [ R.M. BORDE, J. ] ssc/wp841.10