Notice :Section 80 (The Code of Civil Procedure, 1908)

Vidhi Agarwal

In principle, notice to defendants by the plaintiff before the institution of the proceedings is not required when the parties are individuals. 

However, section 80 of the Civil Procedure Code (CPC) provides that, before the commencement of a complaint against the government or against any public officer, any act purporting to be carried out in his official capacity by that public officer shall be brought before the expiry of the next two months after the written notice has been issued.

SECTION 80 OF CPC

[(1)] [Save as otherwise provided in sub-section (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 that Government.

(b) in the case of a suit against the Central Government where it relates to a railway, the 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 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; 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 EXPLAINED

Section 80 includes a code of procedure that makes it obligatory for a notice to be issued before a lawsuit is brought against the government or against a public official.

Therefore, this section defines two categories of cases:

  1. litigation against the government
  2. lawsuits against public officers in relation to actions committed or expected to be perpetrated in their official capacity by those public officers.

The central purpose of section 80 is to furnish the government or public officer with an ability to assess the legal situation and, if it happens to be fair and appropriate, to settle the argument forwarded by the prospective claimant.

Unlike private parties, the government is required to critically analyze the matter and make an informed decision in two months after receiving proper legal advice. It saves money and time for the public and is in the public interest.

The statutory aim behind this clause is that taxpayer funds for needless litigation should not be wasted. The section orders the government or a public officer to bargain and resolve just claims if well-founded without taking an irrational approach by inducing excessive public exchequer spending.

The requirements of section 80 are express and specific in themselves and make it obligatory to serve the notice by not allowing any repercussions or exceptions. In nature, they are imperative and must be strictly followed.

Note: If the first step in the litigation is under section 80.

Unless the notice is properly served to the public official in compliance with section 80, a court may not entertain any suit. If an injustice has been perpetrated by a section, it is a matter that can be corrected by the legislature and not by a judge.

For example: A petitioner filed a lawsuit to prohibit the tax officer from selling the property he bought from the defendant, who was in arrears of income tax, and the court held that the central government was a required party to the lawsuit. Therefore, unless a notice under Section 80 has been issued, the suit is not maintainable.

The section is imperative and must certainly be exclusively construed; failure to provide a notice that complies with the statute’s specifications would mean termination of the suit.

LAW COMMISSION

In its 14th report, the Law Commission of India noted that, in a large number of cases where prompt relief is required, section 80 has caused hardship. The government or the public officer made no use of the opportunity offered by the section in a significant number of cases; the provision was used by government and public officials as a technical defence and notice stayed unresolved.

The Commission again contemplated the issue in the 27th report and noted that there were no parallel provisions regulated by the Anglo-Saxon form of law in any other country. It further claimed that there should usually be no differentiation between the citizen and the state in a democratic country like ours, as envisioned in section 80.

ESSENTIALS OF THE SECTION

A notice pursuant to S. 80 shall contain the name, description, and place of residence of the notified person; a declaration of the cause of the action; and the relief sought by the person concerned.

The Court should ask the following questions in determining whether the basic provisions of the section have been complied with:

  1. Whether the name, description, and residence of the applicant are given in order to allow the authorities to recognise the notifier?
  2. If the cause of action and the relief sought by the plaintiff have been identified with adequate details?
  3. If that notice has been delivered in writing to or left at the office of the appropriate authority referred to in the section
  4. If the complaint was brought after the expiry of two months after the notice was served, and if the complaint includes a declaration that such a notice was delivered or left?

CASE LAWS

It was noted in State of Maharashtra v. Chander Kant that notice should be issued in all cases relating to the first class of cases. In second-class situations, however, notice is required only if the action relates to any act purporting to be carried out by such a public officer in discharge of his duties, and not otherwise.

It was stated in State of Madras v. Chitturi Venkata Durga Parasadrao that the act of speech purporting to be performed according to a purely grammatical meaning takes both partial and future actions. The other explanation based on the language’s idiomatic interpretation is that it will be limited to partial actions.

In the case Gopal Singh v. Swaran Singh & ors, the property of the suit was placed up for auction sale and the buyer sold the land in breach of the limitation imposed on the land being transferred. Consequently, an order was given for the cancellation of the selling of the auction and the transfer of the property of the suit to the appellant. The Respondent, aggrieved by the same, launched a complaint in which the State and its authorities became defendants.

In the case, the Appellate Court rejected the suit because no notice was given prior to the filing of the suit as needed under Section 80 of the Code of Civil Procedure and no application was filed to waive the obligation to give notice under Section 80 of the Code of Civil Procedure (Code) (2).

VIEW OF SUPREME COURT

The Supreme Court’s Two-Judge Bench has reiterated the settled rule that, without notice under Section 80 of the CPC, a complaint against the State and its authorities is not maintainable.

The Bench further observed that, as provided for in Section 80(2) of the CPC, there was nothing on record requesting leave from the Court to dispense with the issuance of a notice.

*Section 80 (bareactslive.com)

*Suits brought by or against Government or Public Officers (lawctopus.com)

*Suit against government without Notice(vakilno1.com)

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