GUJARAT NATIONAL LAW UNIVERSITY ALTERNATIVE DISPUTE RESOLUTION SECTION 80 OF CIVIL PROCEDURE CODE ADR ANALYSIS

SUBMITTED TO Mr. VIKAS GANDHI

SUBMITTED BY SHUBHANG JOSHI 11B 142

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ABSTRACT This paper has been muffled with the essence of Section 80 of the Civil Procedure Code which deals with an opportunity to the government or a public officer to reconsider the matter in the light of the settled legal position and take an appropriate decision in accordance with law. Apart from all the legalese involved in the bare language the paper tries to bring out the actual intention of the section. The Law Commission Report has recommended for the removal of this section twice, but the section still persists. The reason for its survival has been explicated in a lucid and facile manner.

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RESEARCH METHODOLOGY The work undertaken is mainly doctrinal and analytical. The author has utilized the conventional method of using libraries and sourced information from various Law Journals which have published the Judgments passed by the Supreme Court and High courts. The study being doctrinal in nature, historical method is adopted because it is not possible to rely on purely experimental methods. The relevant material has been collected from legal sources like books on Code of Civil Procedure by eminent authors like Avtar Singh, D.D. Basu, Mulla, M.P. Jain and Justice C.K. Takwani. Material was also researched from print and electronic media. The information thus collected has helped the author to critically analyze the topic and reach the core aspects of the study.

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FUNDAMENTALS TO BEGIN WITH Preparatory to the existence of Section 89 of the Civil Procedure Code (CPC), there was a motley of other provisions which provided the competence to the courts to assign disputes to mediation, which have not actually been employed. Such provisions, inter alia, are mentioned under the Industrial Disputes Act, the Hindu Marriage Act and the Family Courts Act and is also present in a very embryonic form in Section 80, Order 32 A and Rule 5 B of Order 27 of the CPC. An inclination towards this line of thought has been seen in ONGC v. Western Co. of Northern America and ONGC v. Saw Pipes Ltd . Section 80(1) of Code of Civil Procedure lays down that no suit shall be instituted against government or public officer unless a notice has been delivered at the government office stating the cause of action, name, etc. The whole object of serving notice u/s 80 is to give the government sufficient warning of the case which is going to be instituted against it and that the government, if it so wished can settle the claim without litigation or afford restitution without recourse to the 3 court of law . It provides an opportunity to consider its or his legal position and if the course is justified to make amends or settle the 4 claim out of court . The object of the above section is to see to it that there is advancement of justice and also see to it that Public welfare is secured by avoiding unnecessary litigations. OBJECT OF NOTICE The primary object underlying Section 80 is to afford an opportunity to the Government or the public officer to consider the legal position and to settle the claim put forward by the prospective plaintiff if the
1 2

1 1987 SCR (1) 1024 2 (2003) 5 SCC 705 3 Ghanshyam Dass v. Domination of India, (1984) 3 SCC 46

4 Raghunath Das v. UOI, AIR 1969 SC 674

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same appears to be just and proper. The government, unlike private parties, is expected to consider the matter objectively and dispassionately and often obtaining proper legal advice, it can take an appropriate decision in the public interest within a period of two months allowed by the section by saving public time and money and without driving a person to avoidable litigation. The legislative intent behind the provision is that public money should not be wasted for unnecessary litigation. The Section has been intended to alter the government or a public officer to negotiate just claims and to settle them if well-founded without adopting an unreasonable attitude by inflicting wasteful expenditure on the public exchequer . In Bihari Chowdhary v. State of Bihar , the purpose behind the provision has been highlighted by the Apex Court thus: when we examine the scheme of the section it becomes obvious that the section has been enacted as a measure of public policy with the object of ensuring that before a suit is instituted against the government or a public officer, the government or the officer concerned is afforded an opportunity to scrutinize the claim in respect of which the suit is proposed to be filed and if it be found to be a just claim, to take immediate action and thereby avoid unnecessary litigation and save public time and money by settling the claim without driving the person, who has issued the notice, to institute the suit involving considerable expenditure and delay. The government, unlike private parties, is expected to consider a matter covered by the notice in a most objective manner, after obtaining such legal advice as they may think fit, and take a decision in public interest within the period of two months allowed by the section as to whether the claim is just and reasonable and the contemplated suit should, therefore, be avoided by speedy negotiations and
6 5

5 6

State of Madras v. C.P. Agencies , AIR 1960 SC 1309; Amar Nath v. Union of India, AIR 1963 SC 424; Raghunath Das v. Union of India, AIR 1969 SC 674;

State of Punjab v. Geeta Iron & Brass Works , (1978) 1

SCC 68. (1984) 2 SCC 627: AIR 1984 SC 1043.

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settlement or whether the claim should be resisted by fighting out the suit if and when it is instituted. There is clearly a public purpose underlying the mandatory provision contained in the section insisting on the issuance of a notice setting out the particulars of the proposed suit and giving two months time to government or a public officer before a suit can be instituted against them. The object of the section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation. STATUTORY NOTICE WHETHER MANDATORY The provisions of Section 80 are express, explicit and mandatory and admit no implications or exceptions. They are imperative in nature and must be strictly complied with. They impose absolute and unqualified obligation on the court. No court can entertain a suit unless the notice is duly served under sub-section (1) of Section 80. If the section has done injustice, it is a matter which can be rectified by a legislature and not by a court.
7 8

As the Supreme Court has observed: The section is imperative and must undoubtedly be strictly constructed; failure to serve a notice complying with the requirements of the statute will entail dismissal of the suit. STATUTORY NOTICE WHETHER AN EMPTY FORMALITY Statutory notice is not as empty a formality. The object is to afford an opportunity to the government or a public officer to reconsider the matter in the light of the settled legal position and take an appropriate decision in accordance with law. Such notice has, however become an empty formality. The administration is often

7 Bhagchand v. Secy. Of state, AIR 1927 PC 176; Dhian Singh v. Union of India, AIR 1958 SC 274; State of Madras v. C.P.

Agencies, AIR 1960 SC 1309; Amar Nath v. Union of India, AIR 1963 SC 424.

8 State of A.P. v. Suryanarayana, AIR 1965 SC 11 (15).

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unresponsive and shows no courtesy even to intimate the aggrieved party why his claim is not accepted. The Law Commission, Section 80 It stated:
10 9

therefore, recommended for the deletion of

The evidence disclosed that, in 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, government and public officer utilized the section merely to raise technical defence 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 citizens. In State of Punjab v. Geeta Iron & Brass Works , Krishna Iyer, J. also stated : we like to emphasize that government must be made accountable by parliamentary social audit for wasteful litigative expenditure inflicted on the community by inaction. A statutory notice of the proposed action under Section 80, CPC is intended to alert the State to Negotiate a just settlement or at least have the courtesy to tell the potential outsider why the claim is being resisted. Now Section 80 has become a ritual because the administration is often unresponsive and hardly lives up to Parliaments expectation in continuing Section 80 in the code despite the Central Law commissions recommendations for its deletion. An opportunity for settling the dispute through arbitration
11

Report of the Joint Committee, Gazette of India, dt. 1.4.1976, Part II, S. 2, Extra., pp. 804-09. See also Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46; Bihari Chowdhury v. State of Bihar, (1984) 2 SCC 627.
th

10 Law Commissions 14

Report, Vol. I, pp. 475-76.

11 (1978) 1 SCC 68 (69): AIR 1978 SC 1608 (1609).

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was thrown away by sheer inaction. A litigative policy for the state involves settlement of governmental disputes with citizens in a sense of conciliation rather than in a fighting mood. Indeed, it should be a directive on the part of the state to empower its law officer to take step to compose disputes rather than continue them in court. We are constrained to make these observations because much of the litigation in courts for which governments are involved adds to the caseload accumulation in courts for which there is public criticism. We hope that a more responsive spirit will be brought to bear upon governmental litigation so as to avoid waste of public money and promote expeditious work in courts of cases which deserve to be attended to. In Ghanshyam Das
13 12

also, without referring to Geeta Iron & Brass

Works , the Supreme Court noted that in a large majority of cases the government or the public officers concerned made no use of the opportunity afforded by the section, but utilized the section merely to raise technical defence with a view to defeat just claims of citizens. The Court, however, deprecated the practice of granting urgent relief in a suit filed without complying with the provisions of Section 80. Laying down the principle, A.P. Sen, J. stated: Before parting with the case we consider it necessary to refer to one more aspect. It has frequently come to our notice that the strict construction placed by the Privy Council In Bhagchand case , which was repeatedly reiterated in subsequent cases, has led to a peculiar practice in some courts. Where urgent relief is necessary, the practice adopted is to file a suit without notice under Section 80 and obtain interim relief and thereafter to serve a notice, withdraw
14

12 (1984) 3 SCC 46: AIR 1984 SC 1004. 13 (1978) 1 SCC 68 (69): AIR 1978 SC 1608 (1609).

14

AIR 1927 PC 176: 104 IC 257.

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the suit and institute a second suit after expiry of the period of the notice. We have to express our strong condemnation of this highly objectionable practice. We expect that the High court will take necessary steps to put a stop to such practice.
15

CONSOLIDATION OF ALL THE LAW COMMISSION REPORTS ON THE SECTION 14

th

and 27

th

Law Commission Report th

Recommended for the deletion of section 80 from CPC in 14 th and the emphasis for the same we laid down in the 27 report. Reason The evidences disclosed in the large majority of cases of 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 two months provided by the section. It was also clear that in a large number of cases, governments and public officers utilized the section merely to raised technical defences contending either no notice was given or the notice given was did not comply with the requirements of the sections and this technical defence appears to have been succeeded in a number of cases defeating the just claims of the citizens 54
th

Law Commission Report This report shows the process of incorporation of ADR into the section. It talks about speedy remedy and fast disposal of cases which is the milk stool on which ADR stands. In every suit where the party is the government or where the officer has acted in his official capacity it shall be the duty of the court to make all the efforts to assist the party in arriving a settlement. Also if in any suit it appears to the court that there is a chance of settlement between the parties then the court for the time being will adjourn the matter and make attempts to make such a settlement.

15

(1984) 3 SCC 46 (58): AIR 1984 SC 1004 (1011).

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100
th

Law Commission Report The concept of prior notice needs to be given to the government or the officers acting in its official capacity needs to be repealed.

221 Law Commission Report Issuing of notice and the legislative intent behind the enactment of such a section is to give the Government & public official who has acted in its official capacity, the opportunity to reconsider the claim for which the suit would be filed against him. Also if possible, to see that the issue can be solved without any litigation because it would be unnecessary wastage 16 17 of time and money of the parties . Recommendations That as such notice of two months needs to be given but if the matter is urgent then with the prior permission of court one can institute the suit. The commission was of the view that a similar provision need to be introduced were it will be mandatory to give notice to the other party before institution of suit i.e. he must give a copy of plaint through registered post and thereafter he must file an affidavit along with his plaint stating the fact of service of notice along with a copy of plain. Amendment of Section 80 and order 5 of the Code of Civil procedure, 1908 and also the concerned court rules In order to shorten delays, it is necessary that provisions parallel to section 80 of Code of Civil Procedure 1908 be introduced to all kinds of civil suits and cases proposed to be filed by a litigant.

st

16 http://www.articlesbase.com/national-state-localarticles/judicial-exposition-of-the-expression-acts-done-under-official17 Government of India, Law commission of India , Report number 221

capacity-and-relevance-of-notice-under-section-80-of-the-code-of-civi4145132.html

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CONCLUSION ADR MECHANISM IMBIBED IN THE SECTION In the above section, the concept of ADR was incepted. They used the concept of immunity and a parallel provision of mediation & conciliation was generated through it. It is a litigative policy for the state which involves settlement of governmental disputes with citizens in a sense of conciliation rather than in a fighting mood. Indeed, it should be a directive on the part of the state to empower its law officer to take step to compose disputes rather than continue them in court. Much of the litigation in courts for which governments are involved adds to the caseload accumulation in courts for which there is public criticism. An opportunity for settling the dispute through arbitration has been given to the government and they should not take this opportunity and use perverted ways to avoid the same on technical terms. SECTION 80 AS OF NOW -

(1)

[Save as otherwise provided in sub-section (2), no suits [shall be instituted] against the Government (including the Government of the State of Jammu & Kashmir)] or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been [delivered to, or left at the office of]in the case of a suit against the Central Government, [except where it relates to a railway], a Secretary to that Government; in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway]; 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;]

(a)

(b)

(bb)

(c)

in the case of a suit against 9[any other State

Government], a Secretary to that Government or the Collector of the district; 10[***] 11[***] and, in the case of a public officer, delivered to him or left at this office, stating the cause of action, the name, description and place

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of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

(2)

A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu & Kashmir) 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); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:

Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section.

(3)

No suit 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 shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice-

(a)

the name, description and the residence of the plaintiff

had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and

(b)

the cause of action and the relief claimed by the plaintiff

had been substantially indicated.]

RECOMMENDATION TO THE SECTION The Law Commission Report has requested for the deletion of the section twice. The reason being government taking technical

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grounds and waiving the matter. So proper measure must be taken and the law makers must incorporate a separate provision under the same section to make the settlement obligatory on the part of the government to make efforts to settle the dispute within the prescribed two months. The section must also comprise of another sub - section in the following order (4) As under sub - section (1), after receiving the notice, it must be the responsibility of the government or the official to take steps for settling the disputes within two months through alternative dispute mechanism. In case of non - compliance by the government or the official a negative inference must be drawn against them.

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1. 2. 3. 4. 5.
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Encyclopedic Law Dictionary, Wadhwa, Nagpur, 2nd Edition, Reprint 2006. Edited by Rao, P.C., & Sheffield William, Alternative Dispute Resolution, Universal Law Publishing Co. Pvt. Ltd. Jhunjhunuwal, S. M., Justice; Saraf Dr. B. P., Justice, Law of Arbitration And Conciliation, Snow White, Fourth Edition, 2006.Publications Pvt. Ltd. Malhotra, O.P.; Malhotra, Indu, The Law And Practice of

Arbitration And Conciliation, Lexis Nexis, Butterworths, second Edition. Singh, Avtar, Law of Arbitration And Conciliation,

Eastern Book Company, Lucknow, Eighth Edition, 2007.

1. 2.

Sinha S.B., ADR and access to Justice: Issues and Perspectives' Balakrishna K.G., An overview of Indian Justice

Delivery Mechanism'.