RAJIV GANDHI SCHOOL OF INTELLECUAL PROPERTY LAW, IIT KHARAGPUR

Section 80 of the Civil

Procedure Code
Suits against the Government

Aniruddha Bhatnagar 17IP63004

As a part of the Internal Evaluation for IInd Semester, 2018

Submitted to:- Prof. S.R. Subramanian

Section 80 of the Civil Procedure Code, 1908 provides for the mechanism in case of a
person wanting to institute a suit against the government or a public officer. In case of a suit
against a public officer, the scope of Section 80 is limited to suits related to acts done by the
public servant in their official capacity or acts purporting to be done in their official capacity.
Section 80 furnishes that a notice is to be given to the concerned authorities if a suit has to be
instituted, and the only after the expiration of this notice, which is a period of two months,
can a suit be admitted under normal circumstances.

Section 80 is divided into three subsections, the first of which has been the code since its
inception and the second and the third were brought in the 1976 amendment. The first
subsection clearly lays down that no suit is allowed till the expiration of the two months, after
a written notice is served. Further the section gives that this written notice may be delivered
to, or left at the office of the concerned authorities. ‘Left at the office’ is now an archaic
concept, where a person is required only to leave the notice at the office of the authority. This
practice was prevalent when the offices were taken care of by limited personnel, and the
parties wanting to institute the suit had to personally go and deliver the notices. The nature
and the content of this notice shall be discussed further in this document. It is to be noted that
Section 80 needs a special place in the code because no such notice is required to institute a
suit against an individual.

Several court decisions over the years have tried to explain the purpose and the utility of this
notice provision and its applicability in various situations. A host of judicial decisions can be
cited for this purpose, and some of them are noted ahead. The Supreme Court in 1978, in the
case of State of Punjab vs. Geeta Iron & Brass Works Ltd[i]. gave that the aim of this notice
is to give the public authorities a chance to “negotiate just claims with the aggrieved party
without inflicting wasteful expenditure on the public exchequer.” The notice period is
intended at providing a window of opportunity for the same. Further, in 1984, in
Ghanshyam Das vs. Union of India[ii], the Delhi High Court opined that “The object of this
notice under Section 80 is to give Secretary of the State or the public officer to reconsider his
legal position and to afford restitution without the recourse of law.” From the academia, the
18th edition of Mulla on CPC explains that Section 80 is a measure of public policy, and it is
placed in the code for advancement of justice without unnecessary litigation. The current
settled position, and the most detailed explanation comes from the landmark judgment of the
Supreme Court in Bihari Chowdhary vs. State of Bihar[iii], where the court stated that “The
object of the section is the advancement of justice and securing of public good by avoidance
of unnecessary litigation”.

Subsection 1 of Section 80 also gives the authorities, to which the notice is to be served. The
following are the authorities, verbatim as in the section :-
(a) in the case of a suit against the Central Government, except where it relates to railway, a
Secretary to that Government;

(b) in the case of a suit against the Central Government where it relates to a railway, the
General Manager of that railway;

(c) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief
Secretary to that Government or any other officer authorised by that Government in this
behalf;

(d) in the case of a suit against any other State Government, a Secretary to that Government
or the Collector of the district;

(e) in the case of a public officer, delivered to him or left at his office, stating the cause of
action, the name, description and place of residence of the plaintiff and the relief which he
claims.

The Law Commission of India has been at loggerheads with the legislature when it comes to
Section 80. The Law Commission has not favoured the retention of this section in any of its
reports. What the Law Commission mentioned in its Fourteenth Report was that the notice
created a lot of hardship in a large number of cases where immediate relief is required. The
evidence of their study disclosed that in a large majority of cases, the public officials did not
make use of this window of opportunity provided to them. The Law Commission also found
that Section 80 was used as “technical defence” by the government in a large number of
cases, and hence absolving them of their immediate liability. Section 80 came under the
scanner again in the Twenty Seventh Report of the Law Commission, where is put across the
point that there was no such parallel provision in any other country governed by the Anglo-
Saxon system, and there was no place for any such distinction in a democratic country. After
consideration of the reasoning and suggestions given by the Law Commission, the Joint
Committee of Parliament still favoured the retention of the law and reasoned its retention
under “public Interest”.

As mentioned, the content and the nature of this notice shall be discussed henceforth. A
notice served under Section 80 must contain the name, description and place of residence of
the person serving the notice along with a statement for case of action and the subsequent
relief claimed by him or her. This is done so as to facilitate effective identification of the
aggrieved party. The SC in State of A.P. Vs. Gundogola Venkata[iv], gave the questions
which the Court must ask in deciding the fulfilment of the essential requirements of the
notice. The description should be as such that it enabled the authorities to identify the person
and the exact nature of the relief claimed by him, and after that if the suit has been instituted
after the expiration of the two months of the serving of the notice. It is also mandatory that
the plaint must contain a statement of notice.
In one of the most significant amendments to The Civil Procedure Code as a whole,
amendments were brought to Section 80 as well. Subsection (2) and (3) were introduced, and
they were completely new and fresh in nature. The introduction of these subsections in the
code was done to eliminate some of the very basic roadblocks that the application of Section
80 brought to the system. Subsection (2) provided for the institution of a suit without serving
a notice in case of urgent matters, but was subject to a very important restriction. According
to this Section 80(2), the courts could not provide any relief, interim or otherwise, without
giving a reasonable opportunity to the government or the public official to show cause. And
Subsection (3) prohibited the dismissal of a suit, in which a notice has been served, but the
notice suffered from technical deficiencies.

The notice in modern practice has become a mere element of formality, as opposed to what
was intended by the legislature when this section was introduced. In the Bihari Chowdhary
case, the court admitted that the administration is more often than not, unresponsive and show
absolutely no courtesy even to inform the aggrieved party on why is the claim not accepted,
or relief not provided. In the Geeta Brass Works case discussed earlier, Krishna Iyer J. stated
that the section is intended to alert the state to settle a just claim or negotiate a just settlement
or at the very least have the courtesy to tell the citizen on why the claim is being resisted.
Notice for all modern purposes has just become a ritual, completely failing the Parliament’s
expectation. Still, a notice is absolutely mandatory in the suits that have been covered under
Section 80, without any implied exceptions. The provisions in the section are explicit in
themselves, and by not admitting any implications or exceptions make the serving of the
notice unreservedly mandatory.

Subsection (2) was introduced in 1976 to provide circumvention around the mandatory nature
of the notice in cases where immediate action was required. A suit could be instituted without
serving the notice, with the leave of the court. The adequacy of the urgency shall be the
court’s prerogative to decide and whether to allow the suit without notice or not. The main
objective of the same was to prevent any miscarriage of justice. The provisions of this
subsection are best explained in Ghanshyam Dass v. Dominion of India[v] where the court
said that ” The aggrieved party can institute a suit against the government for obtaining
urgent or immediate relief with the leave of the court even without serving the notice to the
government or public office.” But, it is important to note that, even though the court can
admit the suit, it will not have any power or authority to grant a relief of any nature, interim
or otherwise, unless a reasonable opportunity has been given to the state and its officials to
show cause in respect to the relief that is being sought.

Subsection (3) of this section provides directions in case of there being defects in the notice,
and how courts are to approach such situations. This subsection clearly states that no suit
against a government shall be dismissed merely on the grounds of faulty or deficient notice.
If the notice contains basic details so as to fulfilling the basic requirements, it would be a
sufficient notice. This subsection was brought in to ensure that the aggrieved parties are not
denied justice purely on the ground of technical defects. This was done after the Joint
Committee took cognisance of the Law Commission’s recommendations on suits being
dismissed on technical grounds.

A question lingers that is Section 80 applicable to writ petitions as they are effectively suits
against the government as well. The answer for that is in the negative. The writ petitions filed
in the higher courts under Article 32 or article 226 of The Constitution of India, they do not
constitute a suit as per this code and lies outside the scope of this section. This position was
made amply clear in Province of Bombay v. Khushaldas S Advan[vi] where the court
directed firmly that no notice is required in case of a writ petition. Also, it was made very
clear that instrumentalities of state, as read under Article 12 of the Constitution, do not
constitute as the government or public officials for the purpose of this section. This was done
in the case of Minakshi Patra v. Secretary, Irrigation and Power, Govt. of Orissa[vii]. And
in the cases in which a suit has been brought up against a public officer, Rule 5-A of Order
XVII dictates that Government must necessarily be joined as a party to the suit.

Order XVII lays down the procedure for all such suits that come under the ambit of Section
80. It gives that such a plaint has to be signed by an authorised person appointed by the
Government and it is necessary that the authorised person is well versed with the facts of the
case. Additionally, there is no requirement for the state counsel to file a Vakaltnama, and
reasonable time is to be given to the government for filing of a written reply as given is
Northern Sub-division v. Comunidade of Bombolim[viii]. The judicial convention clearly
demands that the court is all cases must assist the government to arrive at all cases in which it
is a party, and hence all suits under Section 80. If the suit filed has a substantial question of
law or demands the interpretation of law or the Constitution, the court will need to send a
notice to the Attorney General.

All in all, Section 80, defended under the public policy guise, could have actually been a
useful tool and reduced the burden on the public exchequer, but has ended up becoming a
mere formality and roadblock in the means of justice.
References :-

[i] (1978) 1 SCC 68

[ii] (1984) 3 SCC Del 298

[iii] AIR 1984 SC 1043

[iv] 1964 SCR (4) 945

[v] AIR 1984 SC 1004

[vi] AIR 1950 SC 222

[vii] AIR 1999 Ori 137

[viii] (1995) 5 SCC 333