(1) Save as otherwise provided in sub-s. (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of
(a) In the case of a suit against the Central Government except where it relates to a railway, a Secretary to the Government;
(b) In the case of a suit against the Central Government where it relates to a railway. General Manager of that Railway;
(bb) 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;
(c) In the case of a suit against any other State Government a Secretary to that Government or the Collector of the District: and, in the case of 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; and the plaint shall contain a statement that such notice has been so delivered or left.
(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the court without serving any notice as required by sub-section (1); but the court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the court shall, if it is satisfied, after hearing the parties that no urgent or immediate relief need be granted in the suit return the plaint for presentation to it after complying with the requirements of sub-section (1).
(3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice
(a) The name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and
(b) The cause of action and the relief claimed by the plaintiff had been substantially indicated.
Section 80 deals with two things—first with the service of the notice in writing and the second with a rule of procedure as to what the plaint should contain. The object of the section 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.
The object of notice is to afford the Government—Central or State—an opportunity to reconsider the legal position, and to settle the claim without litigation, if so advised, or to afford restitution without recourse to a court of law. The section is explicit and mandatory and admits of no exceptions.
Section 80, C.P.C. is express and explicit and admits of no implications or exceptions, and it imposes statutory and unqualified obligation on the court to see that its terms are strictly complied with.
The suit challenging the legality of order passed by authorities declaring surplus land in absence of notice to State under S. 80, C.P.C. is not maintainable.
A notice given before the cause of action has arisen is invalid. Notice under S. 80 need not be practically a copy of the plaint. It should be such as to give substantial information to the Government as to the basis of the claim and the relief which the plaintiff seeks.
It need not set out all the details or facts of the case which the plaintiff intends to prove, nor is it incumbent upon the plaintiff to give in detail all the forms in which he would seek relief. 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 asked for.
Though the terms of this section are to be strictly complied with, that does not mean that the terms of the notice should be scrutinised in the pedantic manner or in manner completely divorced from common sense.
Essential Requirements:
The three essential requirements of S. 80 are: first, the addressee should be identified and must have received the communication; secondly, there should be no vagueness or indefiniteness about the person giving the notice, who must also be the person filing the suit and the notice must also give the details which are specified in S. 80; and, thirdly, the two months’ time allowed must expire before the suit is laid.
Once these requirements are fulfilled minor details like the misdescription of the person to whom the communication is addressed should not make it an improper notice which does not comply with the requirements of S. 80, C.P.C.
Beohar Rajendra Singh v. State of Madhya Pradesh:
The object of the notice under S. 80, C.P.C. is to give to the Government or the public servant concerned an opportunity to reconsider its or his legal position and if that course is justified to make amends or settle the claim out of court. The section is no doubt imperative; failure to serve notice complying with the requirements of the statute will entail dismissal of the suit.
But the notice must be reasonably construed. Any unimportant error or defect cannot be permitted to be treated as an excuse for defeating a just claim. In considering whether the provisions of the statute are complied with the court must take into consideration the following matters in each case:
(1) Whether the name, description and residence of the plaintiff are given so as to enable the authorities to identify the person serving the notice;
(2) Whether the cause of action and the relief which the plaintiff claims are set out with sufficient particularity;
(3) Whether a notice in writing has been delivered to or left at the office of the appropriate authority mentioned in the section; and
(4) Whether the suit is instituted after the expiration of two months next after notice has been served, and the plaint contains a statement that such a notice has been delivered or left.
In construing the notice the court cannot ignore the object of the Legislature, viz., to give to the Government or public servant concerned an opportunity to reconsider its or his legal position. If on a reasonable reading of the notice the plaintiff is shown to have given the information which the State requires him to give, any incidental defects or irregularities should be ignored. It is true that the terms of S. 80, C.P.C. must be strictly complied with but that does not mean that the terms of the notice should be scrutinised in an artificial or pedantic manner.
The effect of S. 80 is clearly to impose a bar against the institution of a suit against the Government or a public officer in respect of any act purported to be done by him in his official capacity until the expiration of two months next after the notice in writing has been delivered to or left at the office of the Secretary to Government or Collector of concerned district and in the case of a public officer delivered to him or left at his office, stating the particulars enumerated in the last part of sub-section (1) of the section.
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 scrutinise 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.
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.
There is clearly a public purpose underlying the mandatory provision contained in the section insisting on the issuance of a notice setting out the particulars of the proposed suit and giving two months’ time to Government or a public officer before a suit can be instituted against them. The object of the section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation.
It must now be regarded as settled law that a suit against the Government or a public officer, to which the requirement of a prior notice under S. 80, C.P.C. is attracted, cannot be validly instituted until the expiration of the period of two months next after the notice in writing has been delivered to the authorities concerned in the manner prescribed for in the section and if filed before the expiry of the said period, the suit has to be dismissed as not maintainable.
Section 80, according to its plain meaning, requires that there should be identity of the person who issues the notice with the person who brings the suit. Where an individual carries on business in some name and style, the notice has to be given by the individual in his own name, for the suit can only be filed in the name of the individual. Where the notice under S. 80 was given by Messrs S.N. Dutt and Co. and the suit was filed by S.N.
Dutt, sole proprietor of a business carried on under the name and style of S.N. Dutt and Co., it has been held that the person giving the notice was not the same as the person suing and that, therefore, S. 80 was not complied with.
When notice was sent on behalf of an individual and the suit was brought by a firm the notice does not comply with the requirement of S. 80, C.P.C.
Registration of a firm is necessary for the institution of a suit.
The only requirement under S. 80, C.P.C. is to serve a notice on the State Government or public functionary. There is no requirement under S. 80, C.P.C. that a notice issued to a party should be filed along with the plaint.
The notice to a public officer is necessary only if the suit is in respect of an act done by the officer purporting to be done in his official capacity, but if the suit relates to an act done by him in his individual capacity no notice is required.
A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. If the act was one such as is ordinarily done by the officer in the course of his official duties, and he considers himself to be acting as a public officer and desired other persons to consider that he was so acting, the act clearly purports to be done in his official capacity. Two conditions are clearly necessary for the section to apply: (1) he must be a public officer; and (2) he must purport to act in his official capacity.
A public officer may, without such a notice, be made a defendant in a suit in which no act of his done in the course of his official duties is in question but he is made a party for some reason or the other. Notice is necessary only if the act was done in official capacity whether or not in good faith.
As said above, a public servant can only be said to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. A kick administered by him is not an act which lies within the sphere of his official duty.
The fact that the capital of a corporation was provided by the Central Government or that its working was supervised or directions were issued by the Central Government, does not make it a Government within the meaning of S. 80. Although the expression ‘government’ has not been defined in the Code, it cannot include a ‘corporation’ constituted under an Act of Parliament. Where the officers of such corporation are in its service and pay, they are not public officers within the meaning of S. 80, C.P.C.
In consonance with the opinion of the Joint Committee of both Houses of Parliament, some relaxations to the provisions of S. 80 have been made by the Amendment Act, 1976. It has been enacted that a suit may be instituted with the leave of the court, for obtaining an urgent or immediate relief against the Government or of any public officer in respect of any act purporting to have been done by such public officer in his official capacity without serving any notice under S. 80, C.P.C., but the court shall not grant relief in the suit, whether interim or otherwise, except after giving to the government or the public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit.
Further sub-s. (3) has been added to S. 80 with a view to seeing that the just claims of persons are not defeated on technical grounds, and it has been enacted that the suit against the Government or a public officer should not be dismissed merely by reason of any technical defect or error in the notice or any irregularity in the service of the notice if the name, description and residence of the plaintiff had been so given in the notice as to enable the appropriate authority or the public officer to identify the person serving the notice and the notice has been delivered or left at the office of the appropriate authority, and the cause of action and the relief claimed have been substantially indicated in the notice.
Suit for injunction:
Section 80 as it stands applies to all suits, whether they are suits for declaration or suits for injunction, mandatory or prohibitory, and suits for damages. The expression “act purporting to be done” takes in past as well as future acts.
The expression “in respect of” is of very wide amplitude as the contemplated suit may be for any relief which flowed from the allegations in the plaint, but the suit must have relation to or must have reference to an act purporting to be done by a public officer in his official capacity.
If the allegations in the plaint relate to acts purporting to be done by such public officer, whatever the relief may be that is prayed for, the section is attracted and the notice is mandatory. In the case of a threatened injury which is sought to be restrained by an injunction, it is difficult to imagine a plaint which does not contain allegations on which the fear of the threat complained of could be justified. Hence, in a suit where there is prayer for declaration and for injunction, a notice under S. 80 is necessary (A.I.R. 1957 Andh. Pra. 675).
A perusal of sub-section (2) of S. 80, C.P.C. reveals clearly that the grant of leave is left to the judicial discretion of the trial court. The proviso to sub-section (2) clearly states that the court shall, if it is satisfied, after hearing the parties that no urgent or immediate relief need be granted in the suit return the plaint for presentation to it after complying with the requirements of sub-section (1). In the matter of grant of leave dispensing with the service of notice under S. 80 (1), C.P.C., therefore the trial court is competent to consider whether, on the ultimate analysis there is or not in existence urgency or likelihood of immediate relief being granted to the plaintiff.
Where the court considers that there is no such urgency existing or immediate relief cannot be granted, it is within its powers to decline to grant the leave. Clause (f) of the proviso to Order XXXIX, Rule 2 (2) provides that no temporary injunction shall be granted to restrain any auction intended to be made, or the effect of any auction made, by the Government.
Therefore, where from the averments of the plaint it appears that temporary injunction asked for amounts to restraining the holding of any auction or giving effect to the same, it would follow that no temporary injunction is grantable and where this is the position, the trial court would be perfectly within its competence to decline to grant dispensing with the notice required under S. 80 (1), C.P.C.
Even though there was no objection raised from the side of the State, respondent other than the State was not precluded from raising such objection in view of the provision of sub-section (1) of S. 80, C.P.C. which says that no suit shall ordinarily be instituted without such notice being given. This is the general rule and dispensing with of the notice under sub-section (1) is conditional upon the leave being granted on the conditions shown to exist as appearing from sub-section (2) of S. 80, C.P.C.
Contents of notice:
A notice under S. 80, C.P.C. imputing negligence on the part of the railway administration or its servants must state, in sufficient details, particulars of negligence, carelessness, or misconduct, to enable the administration to decide whether the plaintiff’s claim be accepted or resisted.
The furnishing of such particulars was all the more necessary when under the law the burden lay upon the plaintiff to prove that the loss was occasioned by negligence or misconduct on the part of the railway administration or its servants. A bare allegation of negligence or misconduct would not be sufficient.
Mandatory provisions:
Though S. 80 of the Code is mandatory, yet the court should not be hypercritical in examining the language used but should interpret the same in a free and liberal spirit. Where it is not denied that notice in accordance with S. 80 (b) was given by registered post and the notice was duly served; it was mentioned in the plaint that the notice had been given, and the acknowledgement due receipt duly signed on behalf of the defendant was filed in court, then the mere fact that the plaintiff mentioned that he had given notice instead of mentioning that the notice had been delivered cannot justify the dismissal of the plaint.
The notice under S. 80, C.P.C. was addressed to the Secretary of Central Government for Railway instead of being sent to the General Manager of the East India Railway as required by law. This notice, however, which was sent to the Secretary was sent by the Assistant Director, Railway Board, to the General Manager, East India Railway, and a letter was addressed by the Assistant Director to the plaintiff saying that the notice had been forwarded to the General Manager and it must be taken to have reached him in the ordinary course of official business. It was held that the suit could not be said to be defective for want of notice under S. 80 of the code of civil procedure.
A fresh notice under S. 80, C.P.C. is not necessary where a suit is instituted but that is withdrawn with liberty to file a fresh suit. If the plaint which is being considered by the court has been preceded by a notice which satisfies the requirements of S. 80, C.P.C. then the fact that before the plaint then under consideration, there had been another plaint which had been filed and withdrawn cannot, on any principle be held to have exhausted or extinguished the validity of the notice issued.
Where a suit was filed against the State impleading the concerned public authority, (viz. Block Development Officer) as State’s agency, it has been held by the Supreme Court that notice under S. 80 issued by the plaintiff to the State cannot be challenged in the suit on the ground of failure to issue notice to such authority.
Construction of notice:
Where there are several heads of claim of damages for the breach of contract against the Government, though they all arise out of a simple contract then on a reasonable and proper construction of S. 80, C.P.C., the authority on whom the notice of the claim is served has a right to be informed what the claim of the party is in respect of each of the several heads.
It is, no doubt, true that a notice under S. 80 is not a pleading and need not be a copy of the plaint and that no particular or technical form is prescribed for such a notice, still having regard to the object for which S. 80 has been enacted the details which it contains should be sufficient to inform the party on whom it is served of the nature and basis of the claim and the relief sought.
A notice has to be interpreted not pedantically but in the light of common-sense without one being hypercritical about the language; but the question to be considered is whether in the notice there is substantial information conveyed on the basis of which the recipient of the notice could consider the claim of the would be plaintiff and avert the suit.
In the ultimate analysis the question as to whether a notice under S. 80 of the Code is valid or not is a question of judicial construction. The Privy Council and the Supreme Court have applied the rule of strict compliance in dealing with the question of identity of the person who issues the notice with the person who brings the suit.
The Supreme Court has however adopted the rule of substantial compliance in dealing with the requirement that there must be identity between the cause of action and the reliefs claimed in the notice as well as in the plaint. Notice under S. 80 should be held to be sufficient if it substantially fulfils its object of informing the parties concerned of the nature of the suit to be filed.
On this principle, it has been held that though the terms of the section have to be strictly complied with, that does not mean that the notice should be scrutinized in a pedantic manner divorced from common sense. The point to be considered is whether the notice gives sufficient information as to the nature of the claim such as would enable the recipient to avert the litigation.
Where therefore a notice under S. 80 given by the plaintiff’s father reached the concerned department of the Dominion of India and it was replied by not accepting the claim of the father of the plaintiff, but before instituting the suit the plaintiff’s father died, the suit by the legal heirs of the deceased without giving fresh notice under S. 80, C.P.C. is maintainable and the notice by the deceased will enure for the benefit of his legal heirs.
Sub-section (3) of S. 80 as inserted by S. 27 of the Code of Civil Procedure (Amendment) Act, 1976, is also in consonance with the aforesaid views of the Supreme Court in the case referred to above. By sub-section (3) Parliament has brought in the rule of substantial compliance.
The present suit would be directly covered by sub-s. (3) Of S. 80 so introduced if the suit had been brought after February 1, 1977. Unfortunately for the plaintiffs section 97 of the Amendment Act provides that the amendment shall not apply to pending suits and the suits pending on February 1, 1977, have to be dealt with as if such amendment had not been made.
Nevertheless the courts must have due regard to the change in law brought about by sub-s. (3) Of S. 80 of the Code introduced by the Amendment Act, w.e.f. February 1, 1977. Such a change has a legislative acceptance of the rule of substantial compliance laid down by the Supreme Court in Dhian Singh Sobha Singh v. Union of India.
Their lordships of the Supreme Court construed S. 80 with some regard to common-sense and to the object with which it appeared to have been enacted. The decision in S.N. Dutt v. Union of India, did not accord with the view expressed by their lordships in the above case and was therefore overruled.
In any suit by or against the Government, the plaint or written statement shall be signed by such person as the Government may, by general or special order, appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case (Order XXVII, Rule 1).
In suits by or against the Government, instead of inserting in the plaint the name and description and place of residence of the plaintiff or defendant, it shall be sufficient to insert the appropriate name as provided in S. 79. (Order XXVII, Rule 3).
The Government pleader in any court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such court. (Order XXVII, Rule 4).
The court, in fixing the day for the Government to answer to the plaint, shall allow a reasonable time for the necessary communication with the Government through the proper channel, and for the issue of instruction to the Government pleader to appear and answer on behalf of the Government, and may extend the time at its discretion but the time so extended shall not exceed two months in the aggregate. (Order XXVII, Rule 5).
Where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit. (Order XXVII, Rule 5-A).
Duty of court in suits against the Government or a public officer to assist in arriving at a settlement:
In every suit or proceeding to which the Government, or a public officer acting in his official capacity, is a party, it shall be the duty of the court to make, in the first instance, every endeavour, where it is possible to do so consistently with the nature and circumstances of the case, to assist the parties in arriving at a settlement, in respect of the subject-matter of the suit.
If in any such suit or proceeding at any stage, it appears to the court that there is a reasonable possibility of a settlement between the parties, the court may adjourn the proceeding for such period as it thinks fit, to enable attempts to be made to effect such a settlement. (Order XXVII, Rule 5-B).
Suit by plaintiff for declaration that she was legally married wife of deceased railway employee:
Where Union of India was also made party and decree claimed against it for permanent injunction restraining it from making payment of any portion of dues from Railway Administration on account of her husband in favour of defendant or anyone else, it was held that proper notice under Section 80 to Union of India or to obtain leave under Section 80(2) was essential.
Suit against Government—Dismissal of suit for wants of notice under Section 80 (1) improper:
Where application for grant of suit against Government for grant of leave under Section 80 (2) was dismissed due to want of notice under Section 80 (1). Held, that it was improper because once Court was seized of application under Section 80 (2), it ought to have disposed of that application first either by granting leave or refusing it.
When applicant’s suit was already registered by Court and ex parte interim order was also passed, it could not be presumed that Court had impliedly granted leave to institute suit or that notice stood waived. Held, that suit could not be dismissed for want of notice.
No comments:
Post a Comment