Which of the Following Is No Recoverable Agains Local Governments in a Section 1983 Suit

By Shrikanth Bhaskar, Vinay Narayan & Vinayak Ojha, GNLU

Editor'due south Note: Section 80 of the CPC provides for sending a notice to the government or a public officer if one wants to constitute a conform against the government or against a public officer in respect of whatever deed purporting to be done by such public officer in his official chapters until the expiration of ii months. The object of the notice is to give Secretary of State or the public officer an opportunity to reconsider his legal position and to brand amends or afford restitution without recourse to a courtroom of police.[i]

T his section has been enacted as a measure out of public policy and the underlying purpose is the advancement of justice and securing of public skilful by abstention of unnecessary litigation.[ii] Further, it has been intended to alert the Government or a public officer to negotiate just claims and to settle them if well-founded without adopting an unreasonable attitude past inflicting wasteful expenditure on the public exchequer.[3]

The Supreme Court, in the landmark case of Bihari Chowdhary v. State of Bihar[4] has stated that "The object of the section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation." This project analyses the position of the section equally it stands today and its applicability.

NOTICE Nether Section 80(i)

Suits between individuals require no notice to be given to the defendant by the plaintiff before the filing of a accommodate. Notwithstanding as per Section eighty of the Code of Civil Procedure, 1908, no suit volition exist instituted against the Government or against a public officer with regards to whatever act done by such an officer in his official capacity, until the expiration of 2 months after the observe in writing has been delivered to, or left at the role of:

(a) in the instance of a suit against the Central Authorities, except where it relates to a railway, a Secretary to that Government;

b) in the case of a suit confronting the Central Authorities where information technology relates to a railway, the Full general Managing director of that railway;

(c) in the instance of a suit against the Authorities of the Land of Jammu and Kashmir, the Primary Secretary to that Government or whatever other officer authorised by that Government in this behalf;

(d) in the example of a arrange against whatsoever other State Authorities, a Secretarial assistant to that Regime or the Collector of the commune;

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

AMENDMENT

The amendment to this department had made some changes in 1976. By the amending act of 1976 section 80 has been extensively amended. Chief changes consist of in the insertion of subsection (2) and (3) which are totally new. Sub-department (two) has been inserted to let the institution of a suit without notice simply field of study to the important restriction prohibiting the grant of 'relief in the adjust whether interim or otherwise' except afterwards giving a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. Subsection (3) prohibits dismissal of a arrange where the discover, has been given but suffers from certain technical deficiencies.

It is expected from public authorities that they will let the plaintiff know their stand within the statutory period or in whatsoever case if has chooses to accept upwardly litigation. In sure cases, the court may exist obliged to draw an adverse presumption if the observe is not acknowledged or telling the plaintiff of its stand up and if no stand up is taken during the trial it may be considered as an afterthought.[6]

NATURE AND APPLICABILITY

Department 80 enumerates two types of cases i) suits against the government, and ii) suits against public officers in respect of acts done or purporting to exist washed by such public officers in their official chapters. Regarding the onetime, the notice is required to be given in all cases. Regarding the latter, notice is necessary only when the suit is in respect of any human activity "Purporting to be done" by the public officeholder in the belch of his duty, not in any other cases.[vii] Although it has been said that substantive rights are to exist determined in accordance with the provision of the Constitution[viii], Department 80 of the Code is not a procedural provision, but a substantive one.[ix]

A statutory torso may exist an instrumentality of the land inside the meaning of Art. 12 of the Constitution[x], nevertheless, information technology would non answer the description of 'government' as it is understood in law and in the context of Southward. 80.[xi]

This department is explicit and mandatory and admits of no implications or exceptions.[xii] The language of this section is imperative and admittedly debars a courtroom from entertaining a adjust instituted without compliance with its provisions. If the provisions of the section are not complied with, the plaint must exist rejected nether O. 7, r. 11(d)[xiii].

Section 80 is mandatory and a adapt filed before the expiry of the period of two months, which does not necessarily mean 60 days but has to exist calculated calendar month-wise[xiv], subsequently the serving of notice as per S. 80(1) is not maintainable.[xv]

Police force Committee OF INDIA

The Police Commission of Republic of india did not favor in retaining the provision of issuing notice nether S. fourscore earlier filing a suit past the aggrieved party. It cited as a reason, inter alia, the hardship involved in a large number of cases where firsthand relief was needed. The evidence disclosed that in a large majority of cases, the Authorities or the public officeholder made no utilise of the opportunity afforded by the section. In near cases, the notice remained unanswered.[xvi] In large number of cases, Government and public officers utilized the provision as a "technical defence" and in a number of cases, the objection has been upheld past the Courtroom defeating just claims of the citizens.[xvii]

The affair was again considered past the tertiary Law commission in the 20-7th report where it noted that it was unable to find a parallel provision in any other country governed past the Anglo-Saxon system of constabulary. It opined that in a democratic state similar Bharat there should ordinarily be no distinction, as is created by Section 80, between the citizen and the Land.[18]

The Joint Committee of Parliament, however, has, in "public interest"[xix], favored the retention of the issuance of notice under S. 80, later on having considered the reasoning and recommendations of the Police Commissions.

ESSENTIALS

A find under South. eighty must contain

proper noun, clarification, and place of residence of the person giving notice;
a statement of the crusade of activity; and
the relief claimed past him.

In because whether the essential requirements of the department take been complied with, the Court should ask the post-obit questions:[xx]

Whether the name, description, and residence of the plaintiff are given and so as to enable the authorities to identify the person giving the notice?
Whether the cause of action and the relief which the plaintiff claims have been set out with sufficient particulars?
Whether such notice in writing has been delivered to or left at the office of the appropriate authorization mentioned in the department? ; and
Whether the suit has been instituted after the expiration of two months after find has been served, and the plaint contains a argument that such a notice has been so delivered or left?

NOTICE WHETHER EMPTY FORMALITY?

The statutory discover served in pursuance of section 80, serves the objective of providing an opportunity to the government or a public officer to take the matter in the reconsideration and take an advisable determination which is in accordance with police force. The detect past itself was not intended to exist an empty formality but it has become ane.

The administration is often unresponsive and shows no courtesy even to intimate the aggrieved political party why his merits is non accepted[xxi]. The reason behind the enactment of this department was as a measure of public policy, the purpose was the advancement of justice and securing of the good of the people by avoiding unnecessary litigation.

Krishna Iyer J. has stated " Nosotros like to emphasize that Governments must be made answerable by Parliamentary social inspect for wasteful litigation expenditure inflicted on the community by inaction. A statutory notice of the proposed action under S. lxxx C.P.C. is intended to alarm the Country to negotiate a merely settlement or at to the lowest degree have the courtesy to tell the potential outsider why the claim is being resisted.

Now South. 80 has become a ritual considering the assistants is often unresponsive and inappreciably lives up to the Parliament's expectation in continuing s. 80 in the Code despite the Key Law Commission's recommendations for its deletion"[xxii]

The police committee was in fact against the provision of issuing a notice under section 80, before more than fifty years it has noticed that the section had inflicted hardship in cases where firsthand relief was needed and in nigh of the cases the notice remained unanswered.

Detect WHETHER MANDATORY?

The provisions in department fourscore are express and explicit by themselves and make the serving of notice mandatory by not admitting any implications or exceptions. They are imperative in nature and must exist strictly complied with. Notice whether under section 80 is the showtime stride in the litigation.[xxiii]A courtroom cannot entertain whatsoever suit unless the find is duly served to the public official under department fourscore(1). If a section had washed injustice, it is a thing which can be rectified by the legislature and not by a courtroom.[xxiv]

A plaintiff filed a adapt to end the tax officer from selling the adjust property he purchased from the defendant, who was in arrears of income tax, it was held by the courtroom that the key government was a necessary party to the conform. Hence unless a notice has been served under Section 80, the suit will not be maintainable[xxv]

The section is imperative and must undoubtedly be strictly construed; failure to serve a notice complying with the requirements of the statute will entail dismissal of the suit.[xxvi]

Construction of Notice: As mentioned before the compliance with department eighty by serving a discover is mandatory. Simply information technology is a procedural provision, a means past which the court impart justice. A find under this department must non be construed in a pedantic style divorced from common sense[xxvii]

Pollock has stated that Nosotros must import a footling common sense into the notice of this kind. A statutory notice must be reasonably construed, keeping in heed the ultimate objective that an interpretation should non lead to injustice.Every venial defect or mistake not going to the root of the affair cannot exist allowed to defeat justice or to afford an alibi to the government or a public officer to deny but claim of an aggrieved party"[xxviii]

The question has to exist decided past reading the whole notice in totality and in a reasonable way. If the discover on such a reading the courtroom is satisfied that the information which was necessary to be provided to the defendants past the plaintiff was in fact provided, inconsequential defects or fault is immaterial and will not vitiate the notice. The provisions of the department are non intended to exist used equally booby-traps against ignorant and illiterate persons.[xxix]

ACT PURPORTING TO BE IN OFFICIAL Capacity

The expression "whatsoever human activity to be washed by such public officer in his official capacity" takes within its sweep acts as likewise illegal omission. Likewise, it also covers the past as well every bit time to come acts. All acts washed or which could have been washed under the color or guise by an officer in the ordinary course of his official duties would be included therein[xxx].If the allegations in the plaint relate to an act which was purported to exist done by a public officer in his official capacity means that the said act must be such that it could be washed ordinarily by a person in the ordinary form of his official duties. It does non encompass acts outside the sphere of his duties [xxxi]There must exist something in the very nature of the act complained of which attaches to the official graphic symbol of the person doing information technology.[xxxii]

The test to be applied in these cases is whether the officer tin can reasonably claim protection for the acts that he commits or that it was performed by him purely in his individual or individual capacity. In the instance of him claiming protection discover nether Section lxxx is necessary, and in case it was performed by him purely in his private or private capacity it is not.[xxxiii]

WAIVER OF NOTICE

Although, Under Section fourscore of the civil procedure code mandates issuance of a notice for the institution of detect, it is considered to exist a mere procedural requirement and not a noun demand. This is because the issuance of a find does not necessarily touch on the jurisdiction of the court in question. In the case of Dhina Singh v. Matrimony Of Bharat, It was held that this notice is for the benefit of the regime or the public officer, it is the prerogative of the authorities to cull to waive the right[xxxiv]. Furthermore in the case, Commr. Of taxes v. Golak Nath , it was held past the courts that the facts of the particular instance were vital to run across if the right could exist waivered or non. [xxxv]

FORM OF NOTICE

No particular has been prescribed under the code. Due to the in a higher place, at that place is no need to give it in any particular form to give a detect under Section fourscore. The mere satisfaction of all conditions prescribed in this section is sufficient. Also, in the Amar Nath v. Union of Republic of india, it was held that the notice must merely inform the contrary party about the nature and the footing of the claim and relief sought.[xxxvi]

MODE OF SERVICE

A observe submitted under section lxxx of the ceremonious process lawmaking must be given to, or left at the office of, the appropriate authorization specified. This was held in the State of A.P V. Gundugola Venkata [xxxvii] . It has been specified in the code as to who the appropriate authorization is under section 80. As per the section, information technology must be given to the secretary of the department or the collector of the district. Nether this section, personal delivery of the observe is not necessary, thus making the words "left at the office" redundant. The section, however, does non prohibit the personal commitment of the notice. It further allows the detect to exist sent through registered mail service.

TECHNICAL DEFECT IN NOTICE: SECTION 80(3)

The Lawmaking of Civil Procedure (Subpoena) Human action, 1976 gives a lot of clarity on a suit issued against the government if there is a defect in the notice issued. The Amendment added Subsection 3 to section 80 whereby it has been explicitly stated that no suit against the government has been dismissed simply on the basis of defective notice. Information technology besides adds that in such a instance the name, residence or the residence of the plaintiff is specified in the notice, assuasive for the identification of the plaintiff in the notice delivered or left at the authorisation or public officer and the crusade of action and the relief claimed by the plaintiff had been essentially indicated therein. This means that if the notice contained basic details, information technology would exist sufficient.

The higher up subpoena to the code was fabricated with the intention that justice is not denied to the aggravated parties on the grounds of technical defects. Therefore, a find nether section 80 cannot be held to be invalid and no suit tin exist dismissed on the grounds that there has been a certain technical defect or error in the notice delivered or on the footing that such notice was served in an improper style.[xxxviii]

Too, the joint committee stated the following"

"The committee besides feels that with a view to seeing that the merely claims of many persons are not defeated on technical grounds, the accommodate confronting the authorities or the public officer should not be dismissed merely by reason of any technical defect or error in the notice or any irregularity in the service of the detect if the proper name, description and residence of the plaintiff accept been so given in the notice as to enable the advisable authorization or public officer to place the person serving the find, and the discover had been delivered or left in the appropriate authority, and the cause of action and the relief claimed has been properly indicated in the notice."[xxxix]

In copulating the period of limitation for instituting a adapt against the government or public officer, the period of notice has to be excluded. [xl]

Leave OF COURT: Department 80(2)

Through the amendment made to the civil process code in 1976, subsection 2 was added to department 80. Every bit per this, the aggrieved party tin can institute a adapt confronting the regime for obtaining urgent or immediate relief with the leave of the court even without serving the notice to the regime or public office.[xli]This subsection, thus, engrafts an exception to the rule laid down in subsection (i) of section 80 and allows the plaintiff to obtain urgent relief in grave cases fifty-fifty without issuing the notice.[xlii]

The master objective of this is to prevent any failure or miscarriage of injustice in urgent cases. It is the urgency and immediate relief which would counterbalance with the court while dealing with a prayer to dispense with the requirement of notice and non the merits of the case.[xliii] Subsection (2) nevertheless, is enacted in such a way that in this type of case, the court will not have any authority to grant relief, interim or otherwise, unless a reasonable opportunity has been given to the government to show crusade in respect of the relief prayed for in the suit.

WRIT PETITION

As per Section fourscore of the code, information technology can exist stated that a writ petition filed under commodity 32 and article 226 of the constitution does not found a suit as per the definition and scope of this department. Hence, prior observe to the regime or public officer is not necessary before filing a petition in the Supreme Courtroom or in a loftier court[xliv]

Computation of Suit:

In computing the menstruum of limitation for filing a suit, the period of notice should be excluded.[xlv]

Premature Adapt:

A conform instituted earlier the decease of two months of notice as required by section fourscore of the code is liable to exist dismissed just on that ground[xlvi]

Appeal:

An order passed under section fourscore is neither a decree nor an appealable lodge, and hence, no appeal lies confronting the order. [xlvii]

Revision:

Nether Section 115 of the code, an club given nether Section 80 is revisable as it considered as a "case decided". If a court subordinate to the High Courtroom makes an guild which is patently illegal and suffers from jurisdictional mistake, then information technology can be rectified by the High Courtroom.[xlviii]

Championship of Adapt: Department 79:

In whatever arrange filed against the Government, The Government or the authority against whom the instance is filed shall be named equally a party in the following mode

In instance of a suit past or against the cardinal government, the Union of India
In the instance of a suit by or confronting the state authorities, the State.[xlix]

The statement in Plaint:

Fifty-fifty later on the expiration of two months, a plaint can be presented earlier the court. This must contain a statement which, under section 80 of the code, has a statutory notice which has been delivered or left as per subsection (1) of section 80. An omission to brand such a statement is fatal, and in its absence, the plaint will be rejected by the court.[fifty]

Parties:

Where a adapt is filed against a public officer in respect of any act purporting to be done in his official capacity, the regime should be joined as a party to the adapt.[li]

PROCEDURE: RULE 27

In the case where there is a suit filed by or against the Regime, so such a plaint volition have to be signed by any authorized person appointed by the Government. It is as well necessary that this person is well versed with facts of the case. If such a person is authorized by the regime, so he shall be deemed to be a recognized amanuensis of the Government as per the Civil procedure code. It has likewise been given in the code that multiple summons may be issued to a government pleader.

There is no demand for the state counsel to file a Vakalatnama. Reasonable fourth dimension should be granted to the government for filing a written statement.[lii] The courts, in all cases, must assist the Government to get in at a settlement in all cases where information technology is a party. This is considered as ane of the main duties of the court. There are instances where the suit filed may take a substantial question of constabulary or that information technology may require the estimation of the constabulary or the constitution.

In such cases, the court will need to transport a detect to the Attorney General, if the question is regarding a central law or it will need to send a discover to the advocate general if the suit deals with state constabulary. This has been given in Order 27-A of the Code.

OTHER PRIVILEGES

In the case where a adapt has been brought up confronting any public officer, and so information technology has been dictated past Rule 5-A that the Regime must be a joined party to the conform. An obligation has been bestowed on the courts by Dominion v-B to aid the government or the public officer in question is coming to a settlement. Whenever the public retainer is the accused, and then rule seven ensures that there is a reasonable amount of time given to the public retainer to make a reference to the government. Rule 8-A protects all those official against whom suits have been filed when they were discharging their duty or acting in an official chapters.

Section 81 is also considered as an important privilege given to a public servant. Information technology allows the court to exempt the public servant from actualization earlier the court. It can practise this only if believes that by making the person absenting himself from his duty, there is a loss caused to the public. Information technology has likewise been stated under section 82 that no execution volition exist entertained past any court against any decree passed past the government is a public officeholder. The only status that must exist fulfilled for seeking this is that it must be unsatisfied for iii months since the date the decree was passed.[liii]

CONCLUSION

This projection has explained what suits confronting the regime and public officials are. The project starts off by saying what exactly is stated in Department 80(ane) which explains how a suit must be filed. Later this, it was felt that there had to be a special accent given to the amendment and how it changed the whole sections pertinent to the higher up topic.

There is also a mention about the nature and applicability of such suits with a mention about the various essentials mentioned nether Section eighty. This project also tries to answer some of the questions with respect to this topic such every bit whether notices in this matter is but a mere formality or if they are mandatory. As this is with respect to government and public officers, this project as well speaks about what happens to acts that are conducted in an official capacity.

After concluding the above topics, this projection attempts to elucidate the various aspects of these types of suits. Information technology speaks almost whether rights granted under this can be waived, the forms in which notices can be served and as well the modes in which these have to be served. Every bit Justice Sen stated, "laws can survive but on a technicality." Keeping in view with it, this projection speaks about some of the technicality of police, like what happens when there is a technical defection in the observe, or almost the exclusion period of the notice or when at that place is a need for a judgment on an urgent basis.

Additionally, this project talks about the procedure when writs are files, or when there is a premature suit, on entreatment or if there is a revision. In conclusion, this project speaks about procedure given under rule 27 and other privileges given to parties.

Formatted on March 21st, 2019.

REFERENCES:

[i] Ghanshyam Das v. Matrimony of India, (1984) 3 SCC Del 298.-

[2] Mulla on the Code of Civil Procedure, J.Grand. Shelat, 18^thursday edn., LexisNexis Butterworths

[iii] State of Punjab v. Geeta Atomic number 26 & Brass Works Ltd., (1978) i SCC 68.

[iv] AIR 1984 SC 1043

[v] Ceremonious Procedure, Justice C. K. Thakker (Takwani), vii^th edn., Eastern Volume Company, Lucknow

[vi] New India Balls Co. Ltd v. Delhi Development authority A 1991 Del 298,301

[vii] Country of Maharashtra v. Chander Kant, (1977) 1 SCC 257

[eight] Nirmal Chand 5. Wedlock of Republic of india, AIR 1966 SC 1068

[ix] Kanhayalal Osawl v. Govt. of India, AIR 1974 Guj 37

[10] Sukhdev Singh v. Bhagat Ram, AIR 1975 SC 1331.

[xi] Minakshi Patra v. Secretary, Irrigation and Ability, Court of Orissa, AIR 1999 Ori 137.

[xii] Ramabrahma v. Rule of India AIR 1958 Cal 183.

[xiii] Jagadish Chandra 5. Debendraprasad AIR 1931 Cal 503.

[xiv] Laxmi Narain five. State AIR 1977 Pat 73.

[fifteen] Bihari Chowdhry v. Land of Bihar AIR 1984 SC 1043.

[16] Civil Procedure, Justice C. K. Thakker (Takwani), 7^th edn., Eastern Volume Company, Lucknow, p. 428.

[xvii] Law Committee's Fourteenth Report, pp. 475-476.

[xviii] Law Commission's Twenty-seventh Report, pp. 21-22.

[xix] Report of the Joint Commission.

[20] State of A.P. 5. Gundugola Venkata, AIR 1965 SC eleven.

[xxi] Bihari Chowdhary 5. State of Bihar ,(1984) 2 SCC 627

[xxii] Country Of Punjab v. M/S. Geeta Iron & Brass Works Ltd, 1978 AIR 1608

[xxiii] State of Seraikella five. Union of Bharat 1951 SCR 474

[xxiv] Bhagchand five. Secy. Of Country AIR 1927 PC 176

[xxv] Prakash textiles v.Tax recovery Officer AIR (1983) kant 174.

[xxvi] Ghanshyam Dass v.Dominion of India 1984 3 SCC 46.

[xxvii] State of Madras v. C.P. Agencies AIR 1960 SC 1309

[xxviii] Jones v.Nicholls, (1844) xiii 1000 & Westward 361:153 ER 149

[xxix] Raghunath Das v. Union of India AIR 1969 SC 674;

[thirty] Samanthalal Koti v. Pothuri Subbiah AIR 1918 Mad 62

[xxxi] Ibid.

[xxxii] State of Maharastra five. Chander Kant (1977) 1 SCC 257 at p.260

[xxxiii] Amalgamated Electricity co.(Belagaum) Ltd. v Municipal commission Ajmer AIR 1969 SC 227

[xxxiv] AIR 1958 SC 274

[xxxv] AIR 1979 Gau ten

[xxxvi] AIR 1963 SC 424

[xxxvii] AIR 1965 SC 11

[xxxviii] Section 80 of the Indian Procedure Code

[xxxix] Written report of the joint committee, gazette on India dt. one-4-1976

[twoscore] S.15, Limitation Act, 1963. Too in Jai Chand v Union of India (1969) 3 SCC 642

[xli] Ghanshyam Das v. Dominion of India AIR 1984 SC 1004

[xlii] Ibid.

[xliii] Ceremonious Procedure, Justice C. Yard. Thakker (Takwani), seven^th edn., Eastern Book Visitor, Lucknow

[xliv] Province of Bombay v. Khushaldas South Advani AIR 1950 SC 222

[xlv] Southward.15(2) Limitation human action,1963

[xlvi] Bihari Chowdhary 5. Land of Bihar AIR 1984 SC 1043

[xlvii] Kailash Chandra v. State of MP AIR 1992 MP 242

[xlviii] Muktarei Devi v Country of Manipur AIR 1978 Gau 17

[xlix] Country of A.P 5. Gundugola Venkata AIR 1965 SC 11

[50] Department 79, Ceremonious Procedure code,1908

[li] Society 27 rule 1

[lii] Northern Sub-division five. Comunidade of Bombolim , (1995) 5 SCC 333

[liii] Section 84 , Civil Procedure Code, 1908

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