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Report No. 27

50. Section 80.-Section 80 of the Code enacts that no suit shall be 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 until the expiration of two months after a notice in writing has been given. We have tried to trace the history of this section. The Code of 1859 or its later amendments did not contain this section. The section was for the first time introduced in the Code of 1877 by the Select Committee. The Select Committee, while recommending the insertion of such a provision, made the following observations:-

"We have provided (section 424) that no suit shall be brought against Government or against a public officer as such until two months next after delivery of a notice in writing, stating the cause of action and the name and residence of the intending plaintiff. We have also provided that every suit against a public officer must be commenced within six months next after the accrual of the cause of action. Similar provisions are contained in the Police Act (V of 1861), section 42 and in the various Municipal Acts."

The period of limitation of six months proposed by the Select Committee seems to have been omitted when the Code of 1877 was finally enacted. The provisions of section 424 of the Code of 1877 were re-enacted in the Code of 1882, and now find a place in section 80 of the Code of 1908.

51. The object of section 80 is to give to the Government or the public officer an opportunity to examine the legal position and to settle the claim, if so advised, without litigation. The Law Commission in the Fourteenth Report stated as follows1:-

"The evidence disclosed that in a 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, Governments and public offices utilised the section merely to raise technical defences 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 the citizens."

1. 14th Report, Vol. I.

52. The Fourteenth Report accordingly contains a recommendation that section 80 should be omitted. We have been unable to find a parallel provision in any other country in which the Anglo-Saxon system of law prevails. We think, that in a democratic country like ours there should, ordinarily, be no distinction of the kind envisaged in section 80 between the citizen and the State.

When section 80 was originally enacted, India was a dependency under foreign rule and the main function of the Government was the maintenance of law and order. India is now a free country and a welfare State. It engages in trade and business like any other individual. A welfare State should have no such privileges in the matter of litigation as against a citizen, and should have no higher status than an ordinary litigant in this respect. Experience has also shown that the provision of this section has worked great hardship, particularly in suits relating to injunctions. For these reasons, we have recommended omission of the section. While recommending the omission of the section, the Fourteenth Report suggested the insertion of a provision in the Code to the effect that if a suit against the Government or a public officer is filed without reasonable notice, the plaintiff should be deprived of his costs in the event of a settlement of the claim by the Government or public officer before the date fixed for the settlement of issue. We do not think that such a statutory provision is necessary. In another place the Fourteenth Report contains the following passage1:-

"Generally the filing of suit is preceded by an advocate's or a solicitor's notice demanding redress, and these notices form the foundation of the suit which is filed subsequently.

To rush to court without sending a lawyer's notice in advance is to invite a disallowance by the court of the costs incurred in the suit."

Costs are always in the discretion of the court, and where a suit is instituted against the Government without adequate notice, the courts will no doubt deal with the question of costs in a proper and just manner. If any provision regarding costs is to be made, it should not only deprive the plaintiff of his costs, but also provide for costs being paid" to the Government irrespective of the result of the suit. In this connection we may invite attention to section 1(d) of the Public Authorities Protection Act, 1893 (56 and 57 Vict. c. 61) which was in the following words:-

"(d) If, in the opinion of the court, the plaintiff has not given the defendant a sufficient opportunity of tendering amends. before the commencement of the proceeding, the court may award to the defendant costs to be taxed as between solicitor and client;"

The Act has, however, been repealed by section 1(a), Law Reform (Limitation etc.) Act, 1954 (2 and 3 Eliz. c. 36).

1. 14th Report, Vol. I.

53. Section 87B.-Section 87B extends to Rulers of former Indian States, in respect of institution of suits against them, the same protection that has been conferred by certain other provisions of the Code on Rulers of foreign States. The constitutional validity of this section came up for consideration in a recent decision of the Supreme Court1. In that decision the Supreme Court, while upholding the validity of the section with reference to Article 14 of the Constitution in the light of the historical considerations that led to its enactment, expressed the opinion, that with the passage of time those historical considerations may lose their validity, and the continuance of this section may then become open to serious challenge. The Supreme Court has suggested, that the Central Government may examine the question whether, in respect of transactions subsequent to the 26th January, 1950, this protection need or should be continued. Since the constitutionality of the section, in the circumstances existing at present, has been upheld, we are not suggesting any change in the section.2

1. Narottam Kishore Deb v. Union of India, AIR 1964 SC 1590 (October, 1964).

2. For a detailed discussion, see Appendix II, notes on clauses, section 87B.

Code of Civil Procedure, 1908 Back

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