What are the exceptions wherein the...rule of Notice may be...Section 80 of the Code of Civil Procedure, 1908?

Question: What are the exceptions wherein the general rule of Notice may be waived under Section 80 of the Code of Civil Procedure, 1908? [HPJS 2019]

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Answer

Section 80 of the Code of Civil Procedure (CPC), 1908, mandates that prior notice of two months must be served before instituting a suit against the government or a public officer in respect of any act done in their official capacity. However, there are certain exceptions where this requirement may be waived.

These exceptions are as follows:

1. Waiver by the Government or Public Officer: The requirement of notice can be expressly or impliedly waived by the government or the concerned public officer. If the government or public officer, after being made aware of the intended litigation, does not object to non-service of notice at the appropriate stage, they are deemed to have waived their right to insist on prior notice.

2. Urgency and Interim Relief [Section 80(2) CPC]: Under Section 80(2) of CPC, if urgent relief is required, a plaintiff may institute a suit against the government or a public officer without serving prior notice, provided that:

• The court grants permission to do so.
• The plaintiff satisfies the court that urgent and immediate relief is necessary.
• However, in such cases, the court must notify the defendant (government or public officer) about the suit before proceeding further.

3. Violation of Fundamental Rights: If the suit involves the enforcement of fundamental rights under Part III of the Constitution of India, the requirement of prior notice under Section 80 CPC may be dispensed with. Courts have held that procedural laws like Section 80 should not impede the protection of fundamental rights.

4. Cases of Injunction and Preventive Relief: Where the plaintiff seeks an injunction or preventive relief against the government or a public officer to prevent an irreparable injury or violation of legal rights, courts may allow the institution of the suit without prior notice.

5. Writ Jurisdiction Under Articles 32 and 226 of the Constitution: The requirement of Section 80 CPC does not apply to writ petitions filed under Article 32 or Article 226 of the Constitution. Since writ petitions are not regular civil suits but rather constitutional remedies, prior notice under CPC is not required.

6. Challenge to Government Orders or Legislative Actions: If the suit directly challenges the validity of a government order, policy, or legislation, courts may allow the suit to proceed without strict compliance with Section 80 CPC, especially if the delay in filing the suit would result in injustice.

While Section 80 CPC aims to allow the government to settle disputes before litigation, its procedural requirement is not absolute. Courts have the discretion to waive the notice requirement in cases of urgency, constitutional rights violations, or where such a requirement would lead to injustice. These exceptions ensure that procedural formalities do not hinder the pursuit of justice.