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Report No. 126

3.7. Today it is almost a universally accepted view that notice under section 80 has become a trap for the unwary.1 The constitutional validity of section 80 was upheld on the ground that Government is a class by itself. But the criticism against the misuse of section 80 had become so pungent at the hands of court that an amendment was introduced to section 80 in the year 1976 to the effect that a suit to obtain an urgent or immediate relief against the Government 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) of section 80.

This amendment was necessitated by the unsavoury practice hereinabove referred to. To what ridiculous length the defence based on section 80 can be carried can be illustrated by pointing out that a suitor served notice under section 80, CPC for the intended suit but on the last day of the expiry of the notice he died and his heirs and legal representatives brought the suit basing the claim on the same notice. The Union of India contended that as the plaintiff and legal representatives themselves had not served the notice under section 80, the suit is not maintainable.

And unfortunately, this contention found favour with the High Court. Reversing the decision, the Supreme Court pointed out that the whole object of the notice contemplated by section 80 is to give to the concerned Government and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised, without litigation.

The legislative intention behind that section is that public money and time should not be wasted on unnecessary litigation and the Government and the public officer should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigation. The purpose of law is advancement of justice,2 In spite of this, this contention is vigorously pursued. The court was compelled to point out that as far as possible no proceedings in a court of law should be allowed to be defeated on mere technicalities.3

The court, after referring to the recommendation of the Law Commission4 for deletion of section 80 on the ground that it has practically outlived its utility and, instead of advancing justice, has become a trap for the unwary, reiterated the view that the section requires to be deleted.5 Having reviewed all this case law, the Law Commission again recalled and reiterated its earlier recommendation to delete section 80.6

1. State of Punjab v. Gita Iron & Brass Works Ltd., (1978) 1 SCC 68.

2. Raghunath Das v. Union of India, AIR 1969 SC 674.

3. Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46.

4. LCI, 54th Report on the Code of Civil Procedure, 1908.

5. D.R. Jerry v. Union of India, AIR 1974, SC 130 (135-136).

6. LCI, 100th Report, Chapter II, para. 2.15.

3.8. It appears that this recommendation of the Law Commission and the comments of the Court on the utter futility of a provision like section 80 of the Code of Civil Procedure have not found favour with the Government because at the time of making the amendment of Code of Civil Procedure in 1976, section 80 was not deleted: only a provision was added to avoid repetition of the unsavoury practice referred to hereinbefore.

It is, therefore, appropriate to surmise that from the point of view of the Government, the provision has some use and its retention on the statute book is considered necessary in public interest. If that is the view, it would be futile at this stage to examine the question of deletion of section 80 which adds one more limb to the armoury of unsustainable defences advanced on behalf of the Government. Assuming that its retention from the point of view of the Government has some utility, still it is necessary to denude it of some of its ugly features which can be dealt with here.

3.9. Before dealing with these features, a review of the steps taken by the Government for improving the existing system of handling complaints and grievances may be briefly referred to. Somewhere in June 1964, detailed instructions were issued to Central Ministries and Departments for initiating review of the prevalent system in vogue of handling complaints and grievances of people vis-a-vis the Departments and Ministries of the Government. Part of it may be extracted:-

"It is the basic proposition that the prime responsibility of dealing with the complaints from the public lies with the Government organisation whose activity, or lack of activity, gives rise to the complaint. Thus, the higher levels of hierarchical structure of an organisation are expected to look into complaints against the lower levels. If the internal arrangements within each organisation are effective enough, there should be no need for special 'outside' machinery to deal with the complaints.

The fact that there has been growing demand for special machinery indicates that the present arrangements within the Departments are not good enough from the point of view of giving satisfaction to the public. It is, therefore, necessary to devise measures that will give substantial satisfaction to the public in the matter of grievances against the administration.".

3.10. The instructions have the flavour of a policy statement for avoiding conflict which carries the germ of litigation. The approach appears to be not to raise untenable and improper defences merely with a view to perpetuate litigation. The policy ought to be to avoid taking decisions which have the inbuilt tendency to force the outsider dealing with Government/public sector undertaking to litigation.

When the Government/public sector undertaking indulges into litigation which can be styled as frivolous, the litigation can be traced back to either irresponsible decision or improper motivation for the decision which is likely to be stigmatised as governmental lawlessness. 'Everyday governmental lawlessness has to be checked by proper mechanisms and procedures at the governmental level. For example, an official whose action has been invalidated on the ground of violation of natural justice may be sanctioned through many processes inclusive of some kind of disciplinary action.

Other procedures, with incentives rather than sanctions, may also be thought of. The point is that such procedures will decrease the incidence of governmental lawlessness: it is important to do this both in terms of expedition and equity. In terms of expedition, surveillance by State over its agencies for their compliance with law, will tend to increase officials' responsiveness to law and decrease citizens' grievances, and thereby judicial workload'.1

1. Dr. Upendra Baxi The Crisis of Indian Legal System, pp. 82-83.

3.11. If section 80 of CPC is still to retain its place in the statute book, the approach to the notice on behalf of the Government, public officer or public sector undertaking has to undergo a total and basic change. On the receipt of the notice, the party serving the notice must forthwith be informed that the point raised by him is under consideration and a decision will be taken as early as possible.

This should be done keeping in view the injunction of the Supreme Court that: 'the legislative intention behind that section, in our opinion, is that public money and time should not be wasted on unnecessary litigation and the Government and the public officer should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigation. The purpose of law is advancement of justice.

The provisions in section 80, Civil Procedure Code, are not intended to be used as booby traps against the ignorant and illiterate persons.1 If this warning is not heeded, the fate that might befall section 80 is not in doubt. For the time being, as the previous recommendation that the section deserves to be deleted appears not to have met with the approval of the Government as deducted from its continued retention on the statute book, it would be better to denude it of some of its undesirable features.

1. Raghunath Das v. union of India, AIR 1969 SC 674 (677).

3.12. Those in favour of deletion of the section were actuated by the belief that section 80, instead of providing Government an opportunity to avoid avoidable litigation, has become a trap for the unwary when it is insisted that the suit should be dismissed for want of notice. The approach requires to undergo a total change.

3.13. When a defence is taken that the statutory notice is not served or that the notice is defective in form, the court should inquire into the conduct of the concerned department and the concerned officer to ascertain what steps they took before the initiation of the legal action to avoid the litigation. If it is contended that the suit is bad for want of notice, which comprehends that the notice given is invalid, before non-suiting the suitor by upholding the defence, a detailed inquiry be made that if the defective notice was shown to have been served, what steps were taken by the Government to remedy them.

If no notice was given, a further inquiry should be made as to whether absence of notice has worked any hardship to the Government. This can be easily deduced from the conduct of the Government/public sector undertaking/public servant in the litigation itself. What sort of defences have been taken? Whether the action was defendable at all?

Ordinarily, the party should not be non-suited on the ground of absence or defective notice but the best that could be done is to award costs to the Government or public sector undertaking irrespective of the decision of the suit. Such, discretion should only be extended if the conduct of the Government/ public sector undertaking/public officer is fair and just in the prosecution of the litigation.

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