Notice for instituting suits against the government under the code of civil procedure, act v of 1908

Sections 79 to 82 and Order 27 of the Civil Procedure Code has duly laid down the procedure for institution of suits by or against the Government. These are procedural provisions whereas Section 80 provides for a substantive right. This substantive right is provided to the government or the public officers whom the suit is against. The right is for making amends to the situation if possible, which has led to the institution of the suit.

Pollock Mulla in his commentary on the Code of Civil Procedure states that, “This section has been enacted by the legislature as a measure of public policy and the underlying purpose is for the advancement of justice and security of public good by avoidance of unnecessary litigation.”

In State of Punjab v. Geeta Iron & Brass Works Ltd., the Supreme Court had held that, “The sole intention underlying Section 80 is to alert the Government or a public by re-negotiating just claims and to settle them if well-founded without adopting and unreasonable attitude by inflicting wasteful expenditure on the public exchequer.”

In the Constitution of India, Article 300 provides for suing the government only when the Government acts under their legal title. If the government performs a sovereign function, it cannot be sued.

The article shall discuss the nature, scope and object of these provisions and also how these provisions can prove fatal to the legal process.

PROVISION OF NOTICE UNDER SECTION 80(1)

Under the Code of Civil Procedure, there is no requirement of serving a notice between two individuals. In cases of suits against the government, a notice is mandatory to be served to them. Section 80 explicitly states that no suit shall be instituted in the court unless and until a notice is not served to the Government.

In BhagabanKhatua&Ors. v. State of Orissa &Ors., the Supreme Court had held that, “The service of notice under Section 80 of the CPC is a condition precedent for the institution of a suit against the Government or a public officer.”

The notice which is to be served has a two-months expiry period. After the expiry period only, a suit shall be filed in the Court. M.P. Jain in his The Code of Civil Procedure, says, “A suit against the government or a public officer to which the requirement of a prior notice under Section 80 of the CPC is attracted, cannot validly be instituted until the expiration of a period of two months next after the notice in writing.”

Moreover, if a suit is filed before the expiration of the said period, then the suit is liable to be dismissed and shall not be maintainable.

The cause of action also needs to be mentioned in the notice.

In suits against the Government a notice has to be served necessarily whereas in cases of public officers, a notice needs to be served only when he is acting under his official name.

The notice needs to be sent or delivered at the office of:

  • in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;
  • in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway;
  • in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;
  • in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district;
  • in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims.

A suit can also be filed with the permission of the court if an urgent relief is required. It is on the complete discretion of the court to accept the application. If the court is not satisfied, it can return the plaint.

NATURE, SCOPE AND OBJECT OF THE NOTICE

Section 80 talks about two types of cases (1) suits against the government and (2) suits against the public officers.

In the case of State of Maharashtra v. Chander Kant, it was held by the Supreme Court that, “it was held that the notice has to be given compulsorily in all the cases regarding the first class of cases.”

The section needs to be strictly complied with. It is explicit in its meaning and does not admit of any exceptions. The language of the section is imperative and debars a court from entertaining a suit without compliance with its provisions.

As already stated, it is not merely a procedural provision but also a substantive one. It was held in Jaideep Dhillon v. State of Punjab, The rights under Section 80 of the Code are not merely procedural in nature but are substantive as well.

The sole purpose of this section is to bring an end to the litigation process or afford restitution without recourse to a court of law. When a notice has been issued to the government or the public officer, they should take up the notice with utmost seriousness.

The Government, unlike private parties, is expected to consider the matter covered by the notice in a most objective manner, after obtaining such legal advice as they may think fit, and take a decision in public interest within the period of two months allowed by the section as to whether the claim is just and reasonable and the contemplated suit should, therefore, be avoided by speedy negotiations and settlement or whether the claim should be resisted by fighting out the suit if and when it is instituted.

In Bihari Chowdhary v. State of Punjab, the Supreme Court has highlighted the object of Section 80(1) of the Code, “When we examine the scheme of the Section it becomes obvious that the Section has been enacted as a measure of public policy with the object of ensuring that before a suit is instituted against the Government or a public officer, the Government or the officer concerned is afforded an opportunity to scrutinize the claim in respect of which the suit is proposed to be filed and if it be found to be a just claim, to take immediate action and thereby avoid unnecessary litigation and save public time and money by settling the claim without driving the person, who has issued the notice, to institute the suit involving considerable expenditure and delay.

Issuance of a notice is a condition precedent for the institution of a suit but it does not become part of the cause of action. In Jones v. Nicholls, Justice Pollock had stated that, “We must import a little common sense into notice of this kind. A statutory notice must be reasonably construed, keeping in mind the ultimate objective that an interpretation should not lead to injustice. Every venial defect or error not going to the root of the matter cannot be allowed to defeat justice or to afford an excuse to the government or a public officer to deny just claim of an aggrieved party.

The question needs to be decided by reading the whole notice in totality and in a reasonable manner. A plaintiff who gives notice under Section 80 and institutes a suit before two months, but is allowed to withdraw the same with liberty to file a fresh suit, is entitled to institute a fresh suit without a fresh notice.

VIEW OF THE LAW COMMISSION

The Law Commission was not in favour of this provision. The reason behind this unsatisfaction were the hardships involved in a large number of cases where an urgent relief was needed. There was evidence which revealed that in a number of cases the Government or the public officer made no use of the opportunity provided to them.

In Law Commission’s 14th Report, on page numbers 475-476, in various cases, public officers or the Government has utilized this provision as a technical defence in a number of cases, this objection has been upheld by the court defeating the just claims of the citizens.

The notices also go unanswered. The matter was again considered by the Third Law Commission in the 27th Report where it was duly noted that it was unable to find a parallel provision in any other country which is governed by the Anglo-Saxon system of law.

The Law Commission has made submissions to bring amends to this section in order to benefit a party which seeks urgent relief,

However, if any matter is urgent and notice will frustrate the purpose, the Court can dispense with the notice and hear the plaintiff or petitioner, giving reasons for urgency. If the urgency is not found, 17 the plaint/petition can be returned for filing, if necessary, after giving notice and serving a copy of the plaint/petition. This will necessitate amendment of section 80 and Order V of the Civil Procedure Code and also the concerned Court’s Rules. This may also encourage pre-litigation mediation and settlement of disputes.”

These amendments are still in consideration and have not been accepted yet by the Parliament.

ESSENTIALS OF A NOTICE

A notice under Section 80 must have:

  1. name, description and place of residence of other person giving notice;
  2. a statement of the cause of action;
  3. the relief claimed by him.

In Amar Nath Dogra v. Union of India, In respect of suits under Section 80, compliance with such is necessary otherwise the suit is liable to be set aside.

WHETHER THE NOTICE IS JUST A FORMALITY OR IS MANDATORY?

The serving of notice to the government or the public officer is not merely an empty formality but is mandatory. The sole purpose of serving the notice is to afford a chance to the government or a public officer to take the matter in reconsideration and make amends to the situation if possible. This is done to avoid unnecessary litigation. Such a notice however has become just a formality these days.

The administration is often unresponsive and shows no courtesy to intimate the aggrieved party why his claim is not being accepted. In State of Punjab v. Geeta Iron and Brass Works Ltd., Krishna Iyer J. had stated that, “We like to emphasize that Governments must be made accountable by Parliamentary social audit for wasteful litigation expenditure inflicted on the community by inaction. A statutory notice of the proposed action under S. 80 C.P.C. is intended to alert the State to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the claim is being resisted.

Now S. 80 has become a ritual because the administration is often unresponsive and hardly lives up to the Parliament’s expectation in continuing s. 80 in the Code despite the Central Law Commission’s recommendations for its deletion.”

Thus, the Courts should award heavy cost against the Government if no replies or evasive replies are given despite nomination. Appropriate action should be taken against the nominated officer.

In State of A.P. v. Gundugola Venkata, the Supreme Court had observed that, “The section is imperative and must undoubtedly be strictly construed: failure to serve a notice complying with the requirements of the statute will entail dismissal of suit.

ACT TO BE DONE SHOULD BE IN AN OFFICIAL CAPACITY

The expression, “any act to be done by such public officer in his official capacity” takes within its sweep acts as also illegal omissions. It also covers all the future acts. In SamanthalalKoti v. Pothuri Subbiah, it was held that, “All acts done or which could have been done under the colour or guise by an officer in the ordinary course of his official duties would be included therein.

There must be something in the very nature of the act complained of which attaches to the official character of the person doing it.

CONCLUSION

After examining the provisions, one should understand that for any suit against the government or the public officer, the serving of notice is necessary. A prior notice of 2 months has to be properly given before the institution of a suit. The only exception to this rule has been given under Section 80(2) of the Code which was added after the Amendment Act of 1976. This was done with the purpose of benefitting those parties which sought urgent relief regarding their matters. Thus, section 80 needs a lot of improvement as the notices go unanswered, and cases get piled up above each other. 

By: NAVIN KUMAR JAGGI &  SURYANSH VERMA

 

Published in Civil Law
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