Democracy, as popularly described by the great Abraham Lincoln, is a “Government of the people, for the people, by the people.[1]“ This means that it is the people, i.e. citizens, in a democracy, who are in-charge of the functioning of the country and its affairs. There is a definite accountability which is imposed on the Government, as it is expected to do what is best for the country. Such is the mandate of the popular support of the masses. However, no form of accountability is of any use if it cannot be enforced, or is suppressed. Accountability, if suppressed, will make a democracy no less than a dictatorial regime.”
“Enforcement of accountability in cases where the Government
is in the wrong, should be done legally, and preferably through the courts of
law. Enforcement in the form of a coup, or by demanding resignation from the
party in power, is against the very definition of democracy. Such methods also
result in hefty costs to the public exchequer and are further, disproportionate
to the spirit of accountability, as the Government cannot be expected to
give up power for every small error on their part. This only contributes
to instability of a Government.”
“In India, under the Code of Civil Procedure, 1908, Sections
79 to 82 and Order XXVII lay down the procedure where suits are brought by or
against the Government or public officers. These provisions, however, prescribe
only the procedure and machinery. They do not deal with the rights and
liabilities enforceable by or against the Government.”
“Additionally, Article 300 of the Constitution of
India deals with legal proceedings by or against the Union of India or the
States, and provides that in a suit by or against the Government, the authority
to be named as plaintiff or defendant, as the case may be; in the case of the
Central Government, the Union of India and in the case of State Government, the
State, which is suing or is being sued.”[2]
GOVERNMENT SUITS V. REGULAR SUITS
“The first and most basic difference between Government
Suits and Regular Suits is that the concept of the Government being
a “party” to the suit is an abstract concept since there is no-one
person who can be expected to replace “Government” while a suit is being
heard. Most of the other differences are purely procedural in nature. Thus,
these sections are basically a conversion tool, to make the process friendly to
a “non-person” party. They aid in defining the responsibility of
those individuals who shall be representing the Government in such suits and
the capacity in which they may do so. The rest of the differences are merely
procedural in nature.”
“In ordinary suits, there is no requirement of serving a
notice to the defendant by the plaintiff before filing a suit. However, section
80(1) of the Code provides that no suit shall be instituted against the
Government or against a public officer in respect of any act purported to be
done by such public officer, in his official capacity, until the two months expire
after notice is served to the officer , or left at the office of concerned
department of the Government, in writing.[3] Further,
no suit against the Government or a public officer can be instituted until such
a statutory notice is served as specified under the section. This leads to the
creation of two types of suits:”
a) Suits against the
Government; and
b) Suits against a public
officer acting in his official capacity
A notice under S. 80 must contain –
1. “The name,
description and place of residence of the person giving notice”;
2. “a statement
of the cause of action”; and
3. “the relief
claimed by him.””
“The essential features of service of notice under section
80(1) are as follows, as analysed through various case laws:”
1. “A notice must be
adhered to by both the parties because it provides them with all the specifics
of a claim or else, the entire exercise is futile.”[4]
2. “It is mandatory to be
served before every case. Failure in the service of a notice in compliance with
the requirements of the statute may result in dismissal of the suit.”[5]
3. “In cases where a
public officer is to be a party, all acts done and which could have been done
in their official capacity in the ordinary course of their official duties may
be included in the claim.”[6]
“The section encapsulates 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 scrutinise the claim and if it is found to be a just claim, to
take immediate action to avoid any unnecessary litigation. This saves the time
and money of the people, by settling the claim without driving the person, who
has issued the notice, to institute the suit which may involve considerable
expenditure and delay.”[7]
“An exception to the aforesaid rule is laid down in section
80(2) of the Code, which allows a plaintiff to institute a suit against the
Government or public officer for obtaining urgent or immediate relief with the
leave of the court even without serving notice to the Government or public officer.
In a case of dispossession of land, it was held that such a matter was of
urgent nature and no prejudice would be caused to the Government authorities in
the institution of such suit.”[8]
“Section 80(3) clearly states that the provisions of section
80 are purely procedural in nature.[9] Thus,
a notice under section 80 cannot be held to be invalid on the ground of any
technical defect or error in the service of the notice.”[10]
LATEST CASE LAWS ON SECTION 80
“In the case decided by the Supreme Court of India in Chaman
Lal v. State of Punjab and Ors.[11],
a suit was filed against the State with relief sought to be enforced, but
ironically, the State was not impleaded as a party. The suit was not held
maintainable on this ground alone. Further, it was also held that the decree
passed in such suit, even if it attained finality, would not bind the State,
keeping in mind the provisions of Section 79 of the Code, as well as Article
300 of the Constitution of India.”
The Supreme Court of India, in the case of Y.
Savarimuthu v. State of Tamil Nadu, held that even though the notice
did not explicitly state that is was served under section 80 of the Code, but
all the ingredients of the notice were met, it was a valid notice under the
provisions of section 80 of the code.[12]
“In a case before the Madras High Court in Mugilan
Enterprises v. The Chief Engineers, Chennai Metropolitan Development Scheme
& Ors.[13], the
case pertained to non-joinder of a necessary party, which in this case was the
State Government. The plaintiff, instead of impleading the State as a party,
impleaded the officials in their personal capacity which resulted in misjoinder
as well. The Court referred to Section 79 of the Code and held that when
compensation is claimed, against the state, it is essential that the State
Government is impleaded as the defendant or respondent. The suit was dismissed
as non-joinder of necessary party is fatal.”
GOVERNMENT SUITS VIS-À-VIS ARBITRATION
The Arbitration and Conciliation Act, 1996 recognises
Arbitration as an alternate method for resolving disputes. Section 18 of the
Arbitration and Conciliation Act demands that all parties to any arbitration
proceedings must be treated equally. On the other hand, as mentioned above, the
Code of Civil Procedure demands that the Government, when it is a party to a
suit, must be treated differently that any other individual, as a matter of
public policy.
This controversy was dealt with by the Supreme Court, very
recently, in the case of Pam Developments Pvt. Ltd. v. State of West
Bengal & Ors.[14]. The
court discussed Section 80 of the Code and Section 18 of the Arbitration Act in
detail, and stated that while the Code of Civil Procedure provides for
differential treatment of the Government as a party to a suit, the Arbitration
Act contains no such special provision. Further, there is no requirement of a
notice to be served 2 months prior to institution of proceedings under the
Arbitration Act. The Supreme Court finally held that since the purpose behind
the Arbitration Act is to provide a method for speedy resolution of disputes,
the requirement of notice or any special treatment of the Government, as
provided for under the Code, will not apply to Arbitration proceedings.
In doing so, the Supreme Court has set a precedent to
promote Arbitration as a method of dispute resolution, while also clearing the
air with regard to application of the provisions of the Code to Arbitration
Proceedings.
REPORTS AND SUGGESTIONS BY LAW COMMISSION OF INDIA
“The Law Commission of India has not been in favour of
retaining the provision of issuing notice under S. 80 before filing a suit by
the aggrieved party as the hardship involved in a large number of cases where
immediate relief was needed. Further, statistics show that no use of the
opportunity provided under section 80 is made.”[15]
“The matter was considered by the 3rd Law
commission in the 27th report, where it noted that a parallel
provision did not exist in any other country governed by the Anglo-Saxon system
of law. The commission was of the opinion that a democratic country like India
should not, ordinarily, differentiate between the citizens and the State.”[16]
“A Joint Committee of Parliament has, however, in “public
interest”, favoured the retention of the issuance of notice under S. 80,
despite the reasoning and recommendations of the Law Commissions.”[17]
CONCLUSION
As can be seen from the provisions and cases mentioned
above, there exist arguments, both, for and against differential treatment of
the Government when it is a party to a suit. There may be situations where it
is imperative that a matter be heard urgently, and an exception for that has
been carved out in the Code. The Government, unlike private parties, is
expected to take decisions in public interest and whether the contemplated suit
can be avoided by speedy negotiations and settlement or not.[18]
Thus, the existence of an exception as carved out under
section 80(2) sets off the disadvantage that seems to be caused by sub-sections
(1). Further, as has been seen above, such differential treatment does not
apply to Arbitration proceedings, which is a speedier method for dispute
resolution. Keeping all these factors in mind, while the system followed in
India may be different from any other country, it is certainly better and more
beneficial for the citizens.
[1] University
of Chicago Law School, 2011
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2260&context=journal_articles,
last accessed Feb. 08, 2020.
[2] Art.
300, Constitution of India, 1950.
[3] Section
80(1), Code of Civil Procedure, 1908
[4] State
of Punjab v. M/S. Geeta Iron & Brass Works Ltd, 1978 AIR 1608
[5] Ghanshyam
Dass v.Dominion of India, (1984) 3 SCC 46
[6] Samanthalal
Koti v. Pothuri Subbiah, AIR 1918 Mad 62
[7] Bihari
Chowdhary v. State of Bihar, (1984) 2 SCC 627
[8] Hemant
Sharma v. State of Himachal Pradesh, 2019 SCC OnLine HP 1094
[9] Section
80(3), Code of Civil Procedure, 1908.
[10] Section
80(3), added by The Code of Civil Procedure (Amendment) Act, 1976
[11] Chaman
Lal v. State of Punjab and Ors., (2014) 15 SCC 715.
[12] Y.
Savarimuthu v. State of Tamil Nadu & Ors., 2019 (8) SCALE 104.
[13] Mugilan
Enterprises v. The Chief Engineers, Chennai Metropolitan Development Scheme
& Ors, 2016 SCC OnLine Mad 32322.
[14] Pam
Developments Pvt. Ltd. v. State of West Bengal & Ors., AIR 2019 SC 3937, at
para 25.
[15] Civil
Procedure, Justice C. K. Thakker (Takwani), 7th edn., Eastern Book Company,
Lucknow, p. 428.
[16] Law
Commission of India Twenty-seventh Report on Code of Civil Procedure,
1908, December, 1964, pp. 21-22.
[17] Report
of the Joint Committee on the Code of Civil Procedure (Amendment) Bill, 1974
[18] Ratan
Lal v. Union of India, (1989) 3 SCC 68
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