Report No. 56

33A. Comments of Ministries concerned.-

We had, before finalising the recommendation, invited the views of the Ministries concerned. One of the Ministries has offered the following comments1 with reference to section 273, Cantonments Act:-

"It is considered that the provision of giving 2 months notice in section 273 affords protection to the Cantonment Board and its officials and an opportunity to make amends, if necessary. It does not appear to cause any undue hardship and injustice to anybody."

In the circumstances, the Ministry favours retention of the provision for notice. We may, in this connection, reiterate what we have already stated2, that mandatory notice does not lead to any practical advantage and that in practice, if notice is not given, the Court can award costs. In the comment received from the Ministry' concerned with the Major Port Trust3 Act, it is stated that the provision in that Act, (and similar provisions in the Acts relating to Bombay and Madras Port Trust)4-5 are helpful and necessary for the purpose of obtaining the relevant information and documents from various quarters in order to settle the cases, if possible, out of court. In the absence of this provision, it is stated, it would also not be possible for the Port Trust to gather the required information or material in time for defending the suit, if a suit is ultimately filed.

It has been conceded that in some quarters this provision may not have been properly utilised; but the real remedy (it is stated) lies in making it obligatory for the concerned officer of the Department to give a proper reply within the statutory period or to seek extension of the time. It is, lastly, stated that the contention that in a democratic country observance of the distinctions of the kind envisaged by section 80, Code of Civil Procedure between the citizens and the State will be invidious, "is only partly true", as "the State has to be supreme in order to keep the welfare of the citizens before it in everything it does. If this be so, the inclusion or retention of the special provision cannot be assailed."

We have given our anxious thought to these points, but we regret that we are unable to agree. We do not, in the first place, regard a statutory provision for notice (as a condition precedent to litigation) as indispensable or necessary in order to enable Department concerned to collect the material for defending the suit. In practice, as is well known, the prospective plaintiff does not usually rush to court without calling upon the Department to redress the alleged illegality; if he dares to do so, he runs the risk of being denied the costs of the suit. Settling the claim can be done even after the suit is filed. Secondly, under the Civil Procedure Code, reasonable time is allowed to every defendant to file his defence; and if within that time, he makes a reasonable offer of settlement, the court is not precluded from taking that into account in exercising its discretion as to costs.

Thirdly, as regards the suggested alternative remedy of requiring the appropriate officer to send a proper reply to the notice within the specified time, or to seek extension, we think that it would hardly be workable. If the officer concerned does not send a reply, the question of consequences of non-compliance will arise. Controversies are also bound to arise as to whether the reply sent was adequate, and so on. The suggested alternative would hardly be an improvement on the present position. Finally, as regards the point made about the supreme position of the State and its duty to secure the welfare of the citizens, we may state that what we are recommending does not, in any way, come in the way of the performance of that duty.

1. Ministry of Defence, letter No. 793-C/D (Q&C), dated 18th April, 1973.

2. Paras. 32-33, supra.

4. Comment of the Ministry of Shipping and Transport dated 3rd May, 1973.

(a) Section 85, Bombay Port Trusts Act, 1897; (b)Section 110, Madras Port Trust Act, 1905.

5. Cf. para. 18, supra.