Report No. 14
Note By Shri V.K.T. Chari
Section 80 of the Civil Procedure Code serves a useful purpose. Even from the point of view of the citizen, by giving a suit notice, he gets a valuable chance of his claim being considered by competent authority and possibly complied with without having to file a suit. It is true that many State Governments do not scrutinise notices carefully, but the remedy lies in enjoining State Governments to pay proper attention to suit notices and give a proper reply to the party. In this connection the provisions of the Board's Standing Orders in Madras are as follows:
(Standing Orders of the Board of Revenue, Madras Vol. III, Chapter VIII, Government Press Publication, 1958 Edition).
"S.O. No. 92: Preliminary notice of suits: How dealt with: The Government have laid down the following rules for the guidance of Collectors when they receive 'notices of suits under section 80 of the Code of Civil Procedure, 1908.
(1) Notice of suits solely concerning departments not under the Collector's control:-
(i) The Collector should transfer the notice to the head of the department concerned and need take no further action. When a notice of suit is received concerning any land which is in the occupation or under the active control of the Military Authorities or of any Cantonment Authority, it should at once be communicated to the Military Estate Officer of the area in which the land is situated. A list of the Military Estates Officers and the areas in their respective jurisdictions so far as the Madras State is concerned is given in Appendix I.
Collectors may also reply direct to Military Estates Officers in cases where their advice and assistance are sought with regard to suits in connection with lands in cantonments (except those classed B2) and lands outside cantonments which were in the effective possession of the military authorities on 1st April, 1921 and have since continued to be so. Where, however, any claim is involved which might be to the prejudice of the State Government the Collector should refer the matter for the orders of the Government through the Board of Revenue.
(ii) Notice of suits primarily concerning a department not under the Collector's control but which affects or is likely to affect the interests of any department under his control:-
The Collector should send a copy of the notice to the chief local officer of the department primarily concerned. The Collector must see that all points necessary for the defence of the suit as far as the departments under his control are concerned are carefully investigated. If necessary, he should address the Board regarding any such notice.
(iii) Notice of suit which primarily concerns some department under the Collector's control, but in which the interests of another department not under his control are also involved:-
The Collector should communicate a copy of the suit notice to the department immediately concerned.
(iv) Notice of suits relating to forest matters:-
The Collector should receive notice of such suits and take action thereon in the manner prescribed in the Forest Code.
(2) Notice of suits to receive careful attention.
(a) In the case of notice of suits solely concerning a department under the Collector's control and in cases (ii) and (iii) above, the Collector should give immediate and careful attention to the complaint, the complainant being desired, if his statements are vague or unintelligible, either to explain his grievances orally or to set them forth succinctly and clearly in writing as the most effectual means towards obtaining such relief as may properly be given. If the proceedings complained of are found to have been wholly indefensible, the Collector should immediately grant redress, if it is in his power to do so, or refer the matter for the orders of the Board. If the complaint is plainly groundless, no action is necessary beyond collecting the information required to defend the threatened action. Legal advice need not be taken merely because notice of suit is received, though in important or doubtful cases it may be desirable for the Collector to obtain such advice.
(b) These instructions should be most carefully attended to, for neglect to follow them frequently leads to delay in the reporting of suits after their institution, for the orders of the Board, which is thus left without sufficient time for their proper consideration before the dates fixed for the filing of answers.
2. The Union Government has also issued similar instructions. Much complaint will be removed and the Governments will benefit if all State Governments would frame similar instructions and observe them. It is only if the matter is examined at the earlier stage that the Government can file its written statement in time if and when a suit is filed.
3. I therefore think that section 80 C.P.C. should not be deleted. However parties have a reasonable grievance in suits where interlocutory relief by way of injunction etc. is required. Provision may be made for this class of suits by adding a clause to section 80 on some such lines as follows:-
"Any Court may entertain a suit notwithstanding that no notice has been served as required by this section if the plaint out the reason why the delay caused by the requirement would prejudice the plaintiff with respect the relief sought. An order admitting the plaint shall operate as an exemption from the requirement of the notice and notwithstanding that it is ex parte and shall be final and shall not be liable to be questioned by the defendant in the suit."
It may be noted that such exemption is now required only in a smaller class of suits than before, such as suits on contractual rights, as the procedure of Writ Petition under Article 226 is available in the case of ultra vires executive action.
4. As regards section 77 of the Railways Act the object in providing for notice within six months is to enable the administration to trace the transaction and make an enquiry at an early stage before the relative documents are lost or destroyed and the evidence disappears. The trouble now arises because the State is working the railways. The cumulative requirement of a notice under section 80, C.P.C. may be dispensed with by adding a proviso to section 77 of the Railways Act that where a claim has been preferred thereunder a notice under section 80, C.P.C. shall not be required. Technical defences are now being raised under section 140 of the Railways Act and these should be avoided. Section 140 may be suitably amended providing also that a notice to any one administration should be enough.
Note By Dr. N.C. Sen Gupta
I have read the draft copy of the Report. The report is a lengthy one and the points upon which I disagree also require some extensive treatment. But I shall only refer briefly to the points of difference.