I

'

30!1

BIHARI CHOWDHARY.& ANR.

v.

STAT,E OF BIHAR & ORS ..

March 26, 1984

(A.P. SEN AND V. BALAKRISHNA ERADI,. H.)

Code of Civil Procedu;e 1908, Section 80;

· Suit against g~vernment-lnstitutiorr afttr expiry of statutory period of two

ft!Onths after 'notice has been delivere,d~NeCessity of.

Interpretation of Statl;tes.

A

B

c

Language of statute clear and unambiguous-Duty. of court to give effecrto D .

statute n~twithstanding hardship liktly to be Caused: .

·,

The appellants-plaintiffs instituted a suit for deClaration of titIO and deli­

very of possession of immovable properties. The first fespondent was thC State

-Oovernment. Prior to the institution of t~e suit the plaintiffs, had issued notice

to the 1st respondent under section 80 CPC, but Without waiting for the.statutory

period of two months to expire, the plaintiffs instituted the suit. Jn the written

'. .

statement filed on behalf of the State it was-contended that the suit was not

QJaintainable for want of proper notice under section 80 CPC. The Trial court

>Upheld the contention and dismissed the suit. The order was confirmed by the

lirst appellate .court and the second appeal preferred by the. appellants to the

High Court was dismissed in Iimine. .

'Dismissing

the

appeal to this Court',

HELD: 1. A suit against the Gov~rnment or a public officer, to which

the requirement .of a_ prior notice .. under section ·80 CPC iS attracted, cannot be

· validly instituted until the expiration ·of ihe period of two , months next after the

'·notice in writing has beep delivered to the authorities concerned· in the manner

prescribed in the said section and if filed before the expiry of the said period,

the suit has to ]Je dismissed as not maintainabl~. [314 A·Bl ·

2. The effect of section 80 CPC prior to its amendment by Act 104 of 1976

.js clearly to iinpose a· bar agains·t the institution of a s"Uit tlgainst the Govern·,

mentor a public officer in respect 6f any act purported to be done by him in his

Offidal capat.ity until the expiration .or two months after notice has been deli ..

.ered. There is clearly a public purpose underlying this manda.tory provision.

[312 C, Hi.

E

F

G

H

,

JI

.•

310 SUPRtMBCOURT REPORTS [1984] 3 S.C.R.'

3. The examination of the scheme-of the Section reveals that the section has;

been enaeted as a measure . of public policy "'.ith. the object "' ensuring that

·'":~re a· suit is-,,instituted against .-the &vermnent Or a '.public _officer, th~

Government or the officer concerned is afforded an opportunity to scrutinise_ ther­

cl3.im in respect of which the suit_ is proposed to be filed· and if it-be fouDd to be~

3.just·claim, to take immCdiate 13ction and thereby avoid unnecessary Iitigatibn1

and save public time and. money by settling the claim without driViog the~

pfrsOn wbo issued the notice, to institµte the :.uit . involving considerable

expenditure and delay. [312 El · ·

4. When the language used in the Statute iS clea-r_ and una_mbi_guous, it is.~

the p}au'.i duty of._the COurt to give effect tC? it and considerations of hardship ..

wnl not be a legitimate· ground for not faithfully implementing the mandate or

C · the legislMure. · [313 B]

D

•E

Jj'

G

H.

. "

Bhagchand Dagadusa v. Secretary of .. Statefor India, 54 IA 338 ; .Velfayan v:

Madras· Province,· 74 ·Irtd!an Appeals 223; a~nd SawaL?inghai Nirmal Chondv~

Union of Jndia [1966] 1 S.~.R. 956 referred to.

Nani Amma Nanninl Amnfa 'v . .State of Kerdla AIR 1963 Kerala 114,.

-overruled.

C!VrL APPELLATE JURISQICTION : Civil Appeal.Np. 1048 of.

1979 .

. From the Judgment and Order dated 15. 12. 1978 of Patna.

lligh Court in Second Appeal No. 215 of 1978

·'' '

• L.N. Sinha, B.P. Singh, Ranjit Kumar a11d Ravi Prakash for the'·

appeallants.

D.Goburefhan for the respondents.·

The Judgment

of the

Com;t was delivered by

. '

• BALAKRISHNA ERADI J. The s]1ort question that arsies foP,

c,onsideration in this appeal by special leave concerns the true scope,

and application of.Section 80 of the Civil Procedure Code.

'The appellants. her~in · ar~ the plaintiffs in a. suit instituted in

t)le i\iunsiff's Court, Bihar S'harif, seeking the reliefs of dedaration

of title and deliver¥ of possession with mesne profits in respect ot:.

the properties descdbed in the plaint. The State of Bihar-the 1st

respondent herein is the main defendant in the suit. Prior to the·

institution of the suit, the plah1tiffs had issued a uotice to the 1st

-)';: '

...

)',

•

B. CHOWDHARY v. Bll!AR (V.B. Eradi, J.) 311

vespondent-State_:...under section 80 C.P.C. on 18.2.1969 and Exhi­

t>it 2 is a copy ofthe said notice. How·ever; without waiting for

othe statutory period of two ~ >n.ths, the plaintiffs instituted the.suit

-0n 2.4.1969. In the written statement filed on behalf of the State.

of Bihar, it was contended.; inter a!ia, that the suit was not maintain­

~ble for want of proper notice under Section 80 C.P.C .. This

·contentiOn was uphelJ by the trial court which also recorded find­

ings against the pblntiff; on the remaining issues concerning the ·

·title to the property and their erititlemwt to reliefs of declaration. ·

:.and delivery of p'3session. The first appellate. court to which the

·.matter was ca.rried. in appral by 'the plaintiffs dismissed the appeal

-on the ground that the plaintiffs' suit was not maintainable inas­

much· as due .notice under Section 80 C.P.C. liad not been given. A

,gecond appeal preferred by the appellants to the High Court at

Patna did not meet with any success and it was dismissed in limine,

.Hence this appeal

by the plaintiffs.

A

B

We· are concerned 'in this case with Section 80 C.P.C. as it D

cStood prior to its amendment, by Act 104 of 1976 (Even under the .

.amended provisiop, the position remains unaltered insofar as a suit

of this nature is concerned). We s.hall extract the Section as it

.stood at the matcr.ial ti me :

"so: No suit shall be instituted against the Govern­

ment (inclu(ling the Government of the State of Jammu and

Kashmir) or against a public officer .in ·respect of any act

• lil

· purporting·to be done by such public officer in his official

·capacity, until the expiration of two months next after notice

in writing has been dtlivered to, or left at the office of-

fa) in the cas.e-of a suit against the Central Govern­

ment, except where it ·relates to a railway, a

:Secretary to that Gover~_ment ;

((b)' in the case of a suit against the Central Govern'

ment where it relates to a railway, the General

Mana_ger of thatrailway ;

'

{(c) in the (:ase of a suit against the Government

of the S~ate ·ofJammu and Kashmir, the Secre-

1at"y , to 'that Governme11t or any other officer

authorised by that Government

in this behalf;

•

p

H

B

c

D

•

• •

•

,

3.H SUPRE}.!E CQUl\T. REPORTS (1984} 3 ~.C.R.

(d) in. the case of a suit against any-0ther Govern,

. inent,. a Secretary to that Government or the

Collector of the district ; '

*'

*

*

and, in

t4e case of a public offlcer, delivered to him

or lfet at liis office, stating the cause of action, the nami:,

description and place of residence of the plaintiff and relief

wl1ich be ·claims ; and plaint shall contai\1 a statement that

such notice bas been so delivered ot left."

The effect of the Section is clearly to impose a bar against the·

institution of a. suit against the Government or a public officer in

·respect of any act purported to be dohe by him in his official capa-

. city until the expiration of two months after. ~otice in writing has

.been delivered to or left.at the office of the Secretary to Govern­

ment or Collector of· the poncerned district and' in the case of a·

public officer delivered to him or left at his office, stating the

particulars enumerated in the last part of sub-section (I) of the

Section. When we examine the' sch. eme" 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

6r the . officer concerned is afforded an opportunity to scrutinise 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. wi.thout driving the person, _who has issued the

11otice, to institute the suit involving considerable expenditure and

delay. The Government, unlike ·private parties, is expected to

consider tlte matter, covered by the n.otice in a most objective

manner, after obtaining such legal advice

as they may think fit, and

take a decision in public inierest within the period of

. two months

allowed by the Section as to whether the claim is just and reason­

able and the contemplated suit should, . t!<ereforc, be avoided by

speedy negotiations a:nd settlement.or whether the claim shouJ.d be

1esisted by fighting out the suit if and when it is instituted. There,

is' clearly a. public purpose underlying. the mandatory provision

o<intained in the Section insisting on the issuance of a notice setting

eat the particulars or the ,proposed suit. and giving two months'

tillle ·to Government, or a public officer before a suit can be insti-.

. .

.,

'(._ .

; .

~

B. CHOWDHARY v. BIHAR (V.B. EraJi, J.) .313

tuted' against them. T!)e object of the Section is the advancement

of justice and the securing of public good by avoidance of un-.

necessary litigation.

When the language used in the.Statute is clear and unambi­

guous, if is the plain duty of tlie 'Court to give effect to it ahd

considerations of liardship will. not be a legitimate ground for not

faithfully implementing the mandate of the legisiature:

A

The· Judici .. al Committee of the Privy Council had occ.asion to

consider the scope and. effect

of Section

80 C.P.C. in an almost

similar situation in

Bhagchand Dagadusa and ors. v. Secretary of

C­

State for India in Council & Ors. l

1

) In that case, though a

notice had been issued by the plaintiffs under Section 'so C.P.C.

on 26th June 1922, the suit was insitituted before the expiry of

the period of two montl1s from the said date. It was contended

before the Privy Co~ncil, relying on some early decisions o_f

High Court of Bombay, that because one of t.he r~licfs claimed

in the .suit was the grant of a perpetual injunction and the

claim for the said relief would have become infrucluous if

the

plaintiffs were to wait for

the· statutory period of two months

• prescribed in Section 80 C.P:C. before they filed the suit, the rigour

of the Section should be relaxed by implication of a suita\Jle excep-E:

tion of a qualification in respect of a suit for emergent relief, such

as one for injunction.· That contention did not find favour with

the Privy Council ~nd it \Vas held that Section 80 is express, expli-

cit and mand~ory and it admits no implicati.ons or exception's. The

Judicial Committee observed :

"To argue as appellants did, that the plaintiffs had a

right urgently calling for a remedy, while s. 80 is mere pro­

cedure, is fallacious, for s. 80 -imposes a statutory and ur;qua­

lified obligation upon the Court.''

F.

This decision "was subsequently followed by the Judicial G.

Committee in Ve//ayan v. Madras Prol'iF?ce.<"') }'he dictum la'id down

.

by the Judicial Committee in Bhagchand Dagadusa

v; Secre~qry of

State.for India:<•) was cited with approval and followed by a Bench

•

(I) 54 I.A. 338

(2) 74 I.A. 223

(3) S4 I.A. 333

•

H

. ,

·.

•

A

E

'

;

(1984] 3 S.C.R j ~

of five Judge_s of this Court in Sawai Singlrai Nirnial Chand v. Union

314 SUPREME COURT REPORTS

of India.(') ·

. It must now be regarded as settled law that a suit against the

Government ·or a public officer, to whic4 the requirement of a

prioi: notice under. Section 80 C.P.C. is attracted, ·can not be

validly ihstituted until the expir>ttion of the period of two months )-'

next after ·the notice in writing has been delivered to t_he autho-•

rities concerned in the manner prescrib~d for in the Section and

if filed before the expiry of tile said period, the suit has to be

dismissed as not maintainable .

. On behalf of the appellaf1,ts, strong reliance ·was placed on.

the decision of.a learned•Single Judge of the High Court of Kerala

in Nani Amnia Nannini Amma v. State of Kera/a.(•) Therein the

learned Judge has expressed the view that Sec. 80 is not a provision "1f

. of public policy .and there is no\hing in the Section expressly

affecting the jurisdiction

of the

·court to try a suit" instituted before

the expiry of the period prescribei! _therein. , The reasons 'stated by

the learned Judge in justification of his taking.lite said.view despite

the clear pronouncement of the Judicial Committee of the Privy

Council in Blzagchand's case do not appeal to us as correct or sound."

'In the light of the conclusion expressed by us in the f~regoing. ,

paragraphs about the true .scope and effect of Section 80 C. P.C., the -+­

afore cited decision of the learned Single Judge of the Ketala High

·Court cannot be accepted as laying down good law. •

IIi the result, we confirm the judgment and decree of the

:F High Court and·· dismiss this appeal. The parties will bear the

respective costs in this appeat

N.V.K. Appeal dismissed

•

••

H

(I) Jl966](1) SCR 9'56

(2) A.I R .. 1969 Kerala 114

•