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1 1987 SCR (1) 1024 2 (2003) 5 SCC 705 3 Ghanshyam Dass v. Domination of India, (1984) 3 SCC 46
5 6
State of Madras v. C.P. Agencies , AIR 1960 SC 1309; Amar Nath v. Union of India, AIR 1963 SC 424; Raghunath Das v. Union of India, AIR 1969 SC 674;
As the Supreme Court has observed: The section is imperative and must undoubtedly be strictly constructed; failure to serve a notice complying with the requirements of the statute will entail dismissal of the suit. STATUTORY NOTICE WHETHER AN EMPTY FORMALITY Statutory notice is not as empty a formality. The object is to afford an opportunity to the government or a public officer to reconsider the matter in the light of the settled legal position and take an appropriate decision in accordance with law. Such notice has, however become an empty formality. The administration is often
7 Bhagchand v. Secy. Of state, AIR 1927 PC 176; Dhian Singh v. Union of India, AIR 1958 SC 274; State of Madras v. C.P.
Agencies, AIR 1960 SC 1309; Amar Nath v. Union of India, AIR 1963 SC 424.
The evidence disclosed that, in large majority of cases, the government or the public officer made no use of the opportunity afforded by the section. In most cases the notice given under Section 80 remained unanswered till the expiry of the period of two months provided by the section. It was also clear that, in a large number of cases, government and public officer utilized the section merely to raise technical defence contending either that no notice had been given or that the notice actually given did not comply with the requirements of the section. These technical defences appeared to have succeeded in a number of cases defeating the just claims of citizens. In State of Punjab v. Geeta Iron & Brass Works , Krishna Iyer, J. also stated : we like to emphasize that government must be made accountable by parliamentary social audit for wasteful litigative expenditure inflicted on the community by inaction. A statutory notice of the proposed action under Section 80, CPC 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 Section 80 has become a ritual because the administration is often unresponsive and hardly lives up to Parliaments expectation in continuing Section 80 in the code despite the Central Law commissions recommendations for its deletion. An opportunity for settling the dispute through arbitration
11
Report of the Joint Committee, Gazette of India, dt. 1.4.1976, Part II, S. 2, Extra., pp. 804-09. See also Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46; Bihari Chowdhury v. State of Bihar, (1984) 2 SCC 627.
th
10 Law Commissions 14
Works , the Supreme Court noted that in a large majority of cases the government or the public officers concerned made no use of the opportunity afforded by the section, but utilized the section merely to raise technical defence with a view to defeat just claims of citizens. The Court, however, deprecated the practice of granting urgent relief in a suit filed without complying with the provisions of Section 80. Laying down the principle, A.P. Sen, J. stated: Before parting with the case we consider it necessary to refer to one more aspect. It has frequently come to our notice that the strict construction placed by the Privy Council In Bhagchand case , which was repeatedly reiterated in subsequent cases, has led to a peculiar practice in some courts. Where urgent relief is necessary, the practice adopted is to file a suit without notice under Section 80 and obtain interim relief and thereafter to serve a notice, withdraw
14
12 (1984) 3 SCC 46: AIR 1984 SC 1004. 13 (1978) 1 SCC 68 (69): AIR 1978 SC 1608 (1609).
14
and 27
th
Recommended for the deletion of section 80 from CPC in 14 th and the emphasis for the same we laid down in the 27 report. Reason The evidences disclosed in the large majority of cases of the government or the public officer made no use of the opportunity afforded by the section. In most cases the notice given under section 80 remained unanswered till the expiry of two months provided by the section. It was also clear that in a large number of cases, governments and public officers utilized the section merely to raised technical defences contending either no notice was given or the notice given was did not comply with the requirements of the sections and this technical defence appears to have been succeeded in a number of cases defeating the just claims of the citizens 54
th
Law Commission Report This report shows the process of incorporation of ADR into the section. It talks about speedy remedy and fast disposal of cases which is the milk stool on which ADR stands. In every suit where the party is the government or where the officer has acted in his official capacity it shall be the duty of the court to make all the efforts to assist the party in arriving a settlement. Also if in any suit it appears to the court that there is a chance of settlement between the parties then the court for the time being will adjourn the matter and make attempts to make such a settlement.
15
Law Commission Report The concept of prior notice needs to be given to the government or the officers acting in its official capacity needs to be repealed.
221 Law Commission Report Issuing of notice and the legislative intent behind the enactment of such a section is to give the Government & public official who has acted in its official capacity, the opportunity to reconsider the claim for which the suit would be filed against him. Also if possible, to see that the issue can be solved without any litigation because it would be unnecessary wastage 16 17 of time and money of the parties . Recommendations That as such notice of two months needs to be given but if the matter is urgent then with the prior permission of court one can institute the suit. The commission was of the view that a similar provision need to be introduced were it will be mandatory to give notice to the other party before institution of suit i.e. he must give a copy of plaint through registered post and thereafter he must file an affidavit along with his plaint stating the fact of service of notice along with a copy of plain. Amendment of Section 80 and order 5 of the Code of Civil procedure, 1908 and also the concerned court rules In order to shorten delays, it is necessary that provisions parallel to section 80 of Code of Civil Procedure 1908 be introduced to all kinds of civil suits and cases proposed to be filed by a litigant.
st
capacity-and-relevance-of-notice-under-section-80-of-the-code-of-civi4145132.html
(1)
[Save as otherwise provided in sub-section (2), no suits [shall be instituted] against the Government (including the Government of the State of Jammu & Kashmir)] or against a public officer in respect of any act purporting to be done by such 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]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 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;]
(a)
(b)
(bb)
(c)
Government], a Secretary to that Government or the Collector of the district; 10[***] 11[***] and, in the case of a public officer, delivered to him or left at this office, stating the cause of action, the name, description and place
(2)
A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu & 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.
(3)
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)
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)
RECOMMENDATION TO THE SECTION The Law Commission Report has requested for the deletion of the section twice. The reason being government taking technical
1. 2. 3. 4. 5.
ARTICLES
Aiyer,
P.
Ramnatha,
The
Law
Lexicon-
The
Encyclopedic Law Dictionary, Wadhwa, Nagpur, 2nd Edition, Reprint 2006. Edited by Rao, P.C., & Sheffield William, Alternative Dispute Resolution, Universal Law Publishing Co. Pvt. Ltd. Jhunjhunuwal, S. M., Justice; Saraf Dr. B. P., Justice, Law of Arbitration And Conciliation, Snow White, Fourth Edition, 2006.Publications Pvt. Ltd. Malhotra, O.P.; Malhotra, Indu, The Law And Practice of
Arbitration And Conciliation, Lexis Nexis, Butterworths, second Edition. Singh, Avtar, Law of Arbitration And Conciliation,
1. 2.
Sinha S.B., ADR and access to Justice: Issues and Perspectives' Balakrishna K.G., An overview of Indian Justice
Delivery Mechanism'.