Bihari Chowdhary & ANR Vs. State of
Bihar & Ors [1984] INSC 66 (26 March 1984)
ERADI, V. BALAKRISHNA (J) ERADI, V.
BALAKRISHNA (J) SEN, A.P. (J)
CITATION: 1984 AIR 1043 1984 SCR (3) 309 1984
SCC (2) 627 1984 SCALE (1)536
ACT:
Code of Civil Procedure 1908, Section 80.
Suit against government-Institution after
expiry of statutory period of two months after notice has been
delivered-Necessity of.
Interpretation of Statutes.
Language of statute clear and
unambiguous-Duty of court to give effect to statute notwithstanding hardship
likely to be caused.
HEADNOTE:
The appellants-plaintiffs instituted a suit
for declaration of title and delivery of possession of immovable properties.
The first respondent was the State Government.
Prior to the institution of the suit the
plaintiffs, had issued notice to the 1st respondent under section 80 CPC, but
without waiting for the statutory period of two months to expire, the
plaintiffs instituted the suit. In the written statement filed on behalf of the
State it was contended that the suit was not maintainable for want of proper
notice under section 80 CPC. The Trial court upheld the contention and
dismissed the suit. The order was confirmed by the first appellate court and
the second appeal preferred by the appellants to the High Court was dismissed
in limine.
Dismissing the appeal to this Court,
HELD: 1. A suit against the Government or a
public officer, to which the requirement of a prior notice under section 80 CPC
is attracted, cannot be validly instituted until the expiration of the period
of two months next after the notice in the writing has been delivered to the
authorities concerned in the manner prescribed in the said section and if filed
before the expiry of the said period, the suit has to be dismissed as not
maintainable. [314 A-B]
2. The effect of section 80 CPC prior to its
amendment by Act 104 of 1976 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 after notice has been delivered. There is clearly a public purpose
underlying this mandatory provision.
3. The examination of the scheme of the
Section reveals 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 issued the notice, to
institute the suit involving considerable expenditure and delay. [312 E]
4. When the language used in the Statute is
clear and unambiguous it is the plain duty of the Court to give effect to it
and considerations of hardship will not be a legitimate ground for not faithfully
implementing the mandate of the legislature. [313 B] Bhagchand Dagadusa v.
Secretary of State for India, 54 IA 338; Vellayan v. Madras Province; 74 Indian
Appeals 223; and Sawai Singhai Nirmal Chand v. Union of India [1966] 1 S.C.R.
956 referred to.
Nani Amma Nannini Amma v. State of Kerala AIR
1963 Kerala 114, overruled.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1048 of 1979.
From the Judgment and order dated 15.12. 1978
of Patna High Court in Second Appeal No. 215 of 1978 L.N. Sinha, B.P. Singh,
Ranjit Kumar and Ravi Prakash for the appellants.
D. Goburdhan for the respondents.
The Judgment of the Court was delivered by
BALAKRISHNA ERADI J. The short question that arises for consideration in this
appeal by special leave concerns the true scope and application of Section 80
of the Civil Procedure Code.
The appellants herein are the plaintiffs in a
suit instituted in the Munsiff's Court, Bihar Sharif, seeking the reliefs of
declaration of title and delivery of possession with mesne profits in respect
of the properties described in the plaint. The State of Bihar-the 1st
respondent herein is the main defendant in the suit. Prior to the institution
of the suit, the plaintiffs had issued a notice to the 1st 311
respondent-State-under section 80 C.P.C. on 18.2.1969 and Exhibit 2 is a copy
of the said notice. However, without waiting for the statutory period of two
months, the plaintiffs instituted the suit on 2.4.1969. In the written
statement filed on behalf of the State of Bihar, it was contended, inter alia,
that the suit was not maintainable for want of proper notice under Section 80
C.P.C. This contention was upheld by the trial court which also recorded
findings against the plaintiffs on the remaining issues concerning the title to
the property and their entitlement to reliefs of declaration and delivery of
possession. The first appellate court which the matter was carried in appeal by
the plaintiffs dismissed the appeal on the ground that the plaintiffs' suit was
not maintainable inasmuch as due notice under Section 80 C.P.C. had not been
given. A second appeal preferred by the appellants to the High Court at Patna
did not meet with any success and it was dismissed in limine. Hence this appeal
by the plaintiffs.
We are concerned in this case with Section 80
C.P.C. as it stood prior to its amendment, by Act 104 of 1976 (Even under the
amended provision, the position remains unaltered insofar as a suit of this
nature is concerned). We shall extract the Section as it stood at the material
time:
"80. 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;
(c) in the case of a suit against the
Government of the State of Jammu and Kashmir, the Secretary to that Government
or any other officer authorised by that Government in this behalf;
312 (d) in the case of a suit against any
other 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 relief which
he claims; and plaint shall contain a statement that such notice has been so
delivered or left." The effect of the Section 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 after notice in writing has been delivered to or
left at the office of the Secretary to Government or Collector of the 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.
When the language used in the Statute is
clear and unambiguous, it is the plain duty of the Court to give effect to it
and considerations of hardship will not be a legitimate ground for not
faithfully implementing the mandate of the legislature.
The Judicial Committee of the Privy Council
had occasion to consider the scope and effect of Section 80 C.P.C. in an almost
similar situation in Bhagchand Dagadusa and ors. v. Secretary of State for
India in Council & Ors.(1) In that case, though a notice had been issued by
the plaintiffs under Section 80 C.P.C. on 26th June 1922, the suit was
instituted before the expiry of the period of two months from the said date. It
was contended before the Privy Council, relying on some early decisions of
before the Privy Council, relying on some early decisions of High Court of
Bombay, that because one of the reliefs claimed in the suit was the grant of a
perpetual injunction and the claim for the said relief would have become
infructuous if the plaintiffs were to wait for the statutory period of two
months prescribed in Section 80 C.P.C. before they filed the suit, the rigour
of the Section should be relaxed by implication of a suitable exception or a
qualification in respect of a suit for emergent relief, such as one for
injunction. That contention did not find favour with the Privy Council and it
was held that Section 80 is express, explicit and mandatory and it admits no
implications or exceptions. The Judicial Committee observed:
"To argue as appellants did, that the
plaintiffs had a right urgently calling for a remedy, while s. 80 is mere
procedure, is fallacious, for s. 80 imposes a statutory and unqualified
obligation upon the Court." This decision was subsequently followed by the
Judicial Committee in Vellayan v. Madras Proince.(7) The dictum laid down by
the Judicial Committee in Bhagchand Dagadusa v. Secretary of State for
India.(3) was cited with approval and followed by a Bench 314 of five Judges of
this Court in Sawai Singhai Nirmal Chand v. Union of India.(1) 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 Section 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.
On behalf of the appellants, strong reliance
was placed on the decision of a learned Single Judge of the High Court of
Kerala in Nani Amma Nannini Amma v. State of Kerala.(2) Therein the learned
Judge has expressed the view that Sec. 80 is not a provision of public policy
and there is nothing in the Section expressly affecting the jurisdiction of the
Court to try a suit instituted before the expiry of the period prescribed
therein. The reasons stated by the learned Judge in justification of his taking
the said view despite the clear pronouncement of the Judicial Committee of the
Privy Council in Bhagchand's case do not appeal to us as correct or sound. In
the light of the conclusion expressed by us in the foregoing paragraphs about
the true scope and effect of Section 80 C.P.C., the afore cited decision of the
learned Single Judge of the Kerala High Court cannot be accepted as laying down
good law.
In the result, we confirm the judgment and
decree of the High Court and dismiss this appeal. The parties will bear the
respective costs in this appeal.
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