NOTICE UNDER SECTION 79 & 80 OF THE CODE OF CIVIL PROCEDURE ,1908

To Whom Notice is to be delievered :

As per section 80 of the Notice is to be delivered to, or left at the office of :-

1. In case of the suit against the Central Govt., except where it relates to a railway, a Secretary to that Govt;
2. In the case of a suit against the Central Govt. where it relates to a railway, the General manager to that railway;
3. In the case of a suit against the Govt. of the State of Jammu and Kashmir, the Chief Secretary to that Govt. or any other officer authorized by that Govt. in that behalf;
4. In the case of a suit against any other state Government, a Secretary to that Govt. or the Collector of the district; and
5. In the case of a public officer, such public officer. Further it provides that with the permission of the Court, a suit can be instituted without serving the notice where an urgent or immediate relief is needed. Provided that Court shall return the Plaint if found that there is no need of immediate or urgent relief.

CASE LAWS:

Kanhaiya Lal vs Government of India 1975 

It was held in the case that In the case of UTs notice is to be served as per the provision of UT Act. Section 55 of the Union Territory Act, 1963 makes it clear that all suits and proceedings in connection with administration of Union territory are to be instituted against the Government of India. The expression “Government of India” cannot refer anything other than the Central Government and as such a notice under Section 80 of the Code of Civil Procedure must be given through its Chief Secretary to the Government of the union territory against whom the suit is filed by impleading Union of India as the defendant.

Exclusion of period of notice: In computing the period of limitation for instituting a suit against the Government or public officer, the period of notice has to be excluded.

Leave of court: Urgent relief Section 80(2): Sub­section (2) of Section 80 as inserted by the Code of Civil Procedure (Amendment) Act, 1976 enables the plaintiff to institute a suit against the Government or public officer for obtaining urgent or immediate relief with the leave of the court even without serving notice to the Government or public officer.36 This sub­ section, thus, engrafts an exception to the rule laid down in sub­section (1) of Section 80 and allows the plaintiff to obtain urgent relief in grave cases even without issuing notice.

CASE LAWS :

Himachal Steel Rerollers and Fabrication v. Union of India, AIR 1988 :  A plaintiff intending to institute a suit against the Govt. has two options before him, either he may file a suit after serving two months’ notice under Section 80 C.P.C. or he may file the suit without serving the notice but in that event he must satisfy the court that an urgent and immediate relief is required and also obtain previous leave of the court.

Effect of error or technical defect in the notice : Sec. 80(3) inserted by CPC(Amendment) Act, 1976 – If the cause of action and relief claimed is substantially indicated, then suit cannot be dismissed on the ground of error in name, description or residence of plaintiff or on technical grounds.

CASE LAWS :

State of A.P v. Gundugola Venkata, 1965 Supreme Court : Notice under section 80 cannot be held to be invalid and no suit can be dismissed on the grounds that there has been a certain technical defect or error in the notice delivered or on the ground that such notice was served in an improper way.

Object of Notice:

Underlying object of section 80 is to provide:

• An opportunity to the Government or public officer to consider the legal position and to settle the claim forwarded by the prospective plaintiff if it appears to be just and proper.
• It is expected from the government unlike private parties to consider the matter objectively and make an appropriate decision in two months after obtaining proper legal advice. It saves public money and time and is in public interest.
• The legislative intent behind this provision is that public money not be wasted for unnecessary litigation. The section guides the Government or a public officer to negotiate just claims and to settle them if well‐founded without adopting an unreasonable attitude by inflicting wasteful expenditure on public exchequer.

Case Laws :

In Bihari Chowdhary v. State of Bihar 1984:

The purpose behind the provision has been highlighted by the Supreme Court observed ” 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 a 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 itis 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.

Law Commission’s view :

The Law Commission did not favour in retaining the provision of issuing notice under Section 80 before filing a suit by the aggrieved party. Before more than fifty years, it noted that the section has worked hardship in a large number of cases where immediate relief was needed. The evidence disclosed that in large majority of cases, the Government or the public officer made no use of opportunity afforded by the section. In most cases the notice remained unanswered. In large number of cases, Government and public officers utilised the provision as a “technical defence” and in a number of cases, the objection had been upheld by the court defeating just claims of the citizens. The Commission again considered the question. It noted that it was unable to find a parallel provision in any other country governed by the Anglo­ Saxon system of law. It opined that in a democratic country like ours there should ordinarily be no distinction of the kind envisaged by Section 80 between the citizen and the State. In spite of the above well ­considered reasoning and recommendation, the Joint Committee of Parliament favoured retention of the provision in “public interest”.

It is, however, submitted that the suggestion of the Law Commission should have been accepted and the provision as to notice ought to have been deleted as virtually it has not achieved the object for which it had been introduced. Moreover, even in absence of such a provision, it is always open to a court of law to issue notice and call upon the Authorities before granting any relief or without causing administrative inconvenience which can be seen from the exercise of extraordinary jurisdiction by the Supreme Court under Article 32 or by the High Courts under Article 226 of the Constitution.

It is also to be noted in urgency of matter it is up to the court to entertain the suit without serving notice. However, such power of court is discretionary pondering over the urgency of issue.

Conclusion

In this article we have defined the process of suit by or against a government and public officer acting in purporting to his official duty. We have explained the provisions in detail about the litigation against and by government and public officer acting in purporting to his official duty. After examining there provision as mentioned we have understand that for any suit against a government first of all it is necessary that party should be name according to section 79 of CPC. Further to institutive a suit against govt. or public officer acting in purporting to his official duty it is mandatory to give prior notice of 2 month. The only exception to this rule is provided by addition of 80(2) after the amendment of 1976. The amendment is helping hand so that justice can be done as early as possible. After concluding the above topics, this Article attempts to elucidate about the various aspects of these types of suits. It speaks about whether rights granted under this can be waived, the forms in which notices can be served and also the modes in which these have to be served