Report No. 14

20. Suits Against Government

Suits against Government.- We may at this stage refer to a difficulty experienced by persons who wish to enforce a claim against the State.

Requirements of section 80 Civil Procedure Code.- Section 80 of the Civil Procedure Code provides 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 in the manner provided in the section has been given. The section is explicit and mandatory and admits of no exceptions. It is a prohibition against the institution of a civil suit without compliance with its provisions. The object of the prescribed notice is to give to the Government or to the public officer an opportunity to reconsider the legal position and to settle the claim, if so advised, without litigation.

The section has worked hardship in a large number of cases where immediate relief by way of injunction against Government or a public officer was necessary in the interests of justice. The question whether notice was necessary in suits for injunctions was at one time the subject of a conflict of judicial decisions. The Bombay view was that no notice was necessary in such a suit against Government or a public officer, when the act to be restrained might occasion serious or irreparable damage if the party was compelled to wait for two months after giving notice.1

The opposite view was taken by the Calcutta, Madras and Allahabad High Courts. These Courts held that the section should be strictly complied with and was applicable to all forms of actions and all kinds of reliefs. The conflict was set at rest by the decision of the Privy Council in the case of Bhagchand v. Secretary of State, ILR 51 Born 725. which over-ruled the Bombay decisions. So construed, the provision must inevitably work injustice by denying to the citizen the right of immediate preventive relief when needed.

1. Secretary of State v. Gajanand, ILR 35 Born 362.

Resulting Hardship.- The views expressed to us, except those of some Governments and Government officials, which were in general agreement, urged that the section needed modification so as to safeguard the rights of the citizens and at the same time give the State the necessary opportunity to consider its legal position. 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 utilized 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.

Requirement of notice to be dispensed with.- Having regard to these considerations, we are clearly of the view that the provision requiring notice in such cases should be omitted. There is no justification for placing Government and public officers in a different position from private parties in this respect. The interests of the State will, in our opinion, be sufficiently safeguarded by a provision to the effect that if a suit against the Government or a public officer is filed without reasonable notice, the plaintiff would be deprived of his costs in the event of a settlement of his claim by Government or the public officer before the date fixed for the settlement of issues.

We are also of the view that provisions similar to section 80 requiring notice in other Acts like the Cantonments Act, the Railways Act and the State Municipal Acts should also be omitted; and a provision inserted in regard to a party being deprived of his costs in the circumstances stated above.