Y. SAVARIMUTHU versus STATE OF TAMIL NADU & ORS.

[2019] 7 S.C.R. 947

Y. SAVARIMUTHU

STATE OF TAMIL NADU & ORS.

(Civil Appeal Nos. 4495-4496 of 2019)

APRIL 30, 2019

[R. F. NARIMAN AND VINEET SARAN, JJ.]

Code of Civil Procedure, 1908 – s.80 – Notice – Appellant-Government Contractor and respondent-State entered into anagreement for strengthening the two-line pavement of NH7 – Disputearose between the parties – Superintending Engineer partiallyterminated the contract on the ground that the appellant had notshown progress in the project – Writ petition filed by the appellantwas dismissed – Writ appeal was also dismissed – Appellant hadissued legal notice dated 14.01.2000 and two letters on differentdates to the respondents prior to the disposal of the writ appeal –After dismissal of the writ appeal, the appellant filed civil suitagainst the respondents – Trial Court found substantial complianceof s.80 CPC – However, the High Court found that provisions of s.80 CPC were not complied with – In appeal, the State contendedthat no notice was issued u/s. 80 CPC for the reason that none ofthe three notices/letters of the appellant had stated that they were u/s. 80 CPC – Held: The notice was duly served upon the authorities– Cause of Action was sufficiently set out in the said notice, whichwas the illegality of the partial termination of the contract – noticedoes not have to state the section under which it is made so long asthe ingredients of sub-section (3) of s.80 are met – It is admittedthat there was no need for any legal notice before filing the writappeal – The notice, therefore, that was sent on 14.01.2000, wasonly u/s. 80 CPC in the event the writ appeal failed and suit wouldhave to be filed – The judgment of the trial Court was correct –Thus, impugned judgment of the High Court set aside and matterremitted back to the High Court to dispose of appeals on merits.

Disposing of the appeals, the Court

HELD: 1. On perusal of the notice dated 14.01.2000, it isclear that this is legal notice sent by lawyer of the appellant tothe authorities concerned. It is not disputed that it was by

Aregistered A.D. and served upon the authorities. There is alsono dispute that the cause of action is sufficiently set out in thesaid notice, which is the illegality of the partial termination of thecontract on 16.12.1999. It was also made clear that though aWrit Appeal at that point of time was going to be filed against theWrit Petition dismissal, yet this would be notice to takeB“appropriate legal action” against the State. There is no doubt,whatsoever, that more than two months have elapsed from thedate of this notice, after which the Suit has been filed. In fact, theSuit was filed long after, on 12.09.2002. Quite apart from this, on29.01.2000 also, the letter of the appellant made it clear to theCDivisional Engineer that not only is the partial termination bad inlaw but that the payments due for work would have to be made.[Para 15] [960-E-G]2. It is clear, therefore, that there is sufficient compliancewith the provisions of Section 80 CPC as has been introduced byDthe Amendment Act introducing section 80(3) into the Statutebook. The respondents’ argument that section 80 is not expresslyreferred to and that the legal notice and letters were written priorto the disposal of the Writ Appeal have no legs to stand on. Thisis for the reason that notice does not have to state the sectionunder which it is made so long as the ingredients of sub-sectionE(3) of section 80 are met. It is admitted that there was no needfor any legal notice before filing the Writ Appeal. The notice,therefore, that was sent on 14.01.2000, was only under Section80 CPC in the event the Writ Appeal failed and Suit would haveto be filed. [Para 16] [960-H; 961-A-C]FDhian Singh Sobha Singh & Another v. Union of India[1958] SCR 781 ; Vithalbhai (P) Ltd. v. Union Bank ofIndia (2005) 4 SCC 315 : [2005] 2 SCR 680 ;Ghanshyam Dass and Others v. Dominion of India andOthers (1984) 3 SCC 46 : [1984] 3 SCR 229 ; State ofGA.P. and Others v. Pioneer Builders, A.P. (2006) 12 SCC119 : [2006] 6 Suppl. SCR 571 – relied on.

Case Law Reference

[1984] 3 SCR 229relied onPara 13[2006] 6 Suppl. SCR 571relied onPara 14

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4495-4496 of 2019.

From the Judgment and Order dated 17.06.2015 of the MaduraiBench of Madras High Court in A.S. (MD) No. 141 of 2007 and CrossAppeal (MD) No. 56 of 2009.

Dr. A. Rajeev B. Masodkar, Ms. Anuradha Mutatkar, Advs. forthe Appellant.

Kishor Lambat, M/s. Lambat And Associates, Advs. for theRespondents.

The Judgment of the Court was delivered by

R. F. NARIMAN, J. 1. Leave granted.

2. The present appeals relate to whether notice under Section80 of the Code of Civil Procedure (CPC) has been given to the State ofTamil Nadu in terms of the Section or in substantial compliance thereof.

3. The appellant is Government Contractor who has executedvarious works in the National Highways, P.W.D. and Electricity Board.On 15.10.1997, the appellant and respondent No.2 entered into anagreement for strengthening the existing two-lane pavement of NH7from particular kilometer point from Madurai to Kanyakumari. As perthe agreement, the work ought to have been completed in 18 months.The site was handed over to the appellant on 20.10.1997, but, in thecourse of the progress of work, the appellant stated that due to delaycaused by the respondents, he was not able to progress and completethe work in time. The immediate reason why the appellant had to knockat the doors of the High Court was an order dated 16.12.1999 passed bythe Superintending Engineer partially terminating the contract on theground that the plaintiff-appellant has not shown sufficient progress inthe execution of the said work. The plaintiff-appellant first filed WritPetition before the Madras High Court, which, by judgment dated24.12.1999, rejected the Writ Petition, stating that an adequate alternativeremedy existed in terms of filing of Civil Suit. This was appealedagainst by the appellant, which appeal substantially met the same fate

Aby the order dated 10.07.2000, by which the Writ Appeal was dismissed,and it was stated that an adequate alternative remedy existed by way ofarbitration.

4. In between the learned Single Judge’s judgment and the DivisionBench judgment dismissing the Writ Appeal, the appellant sent legalBnotice dated 14.01.2000 in which the appellant made it clear that he hadcompleted the work to the extent of Rs.1,25,00,000/- in spite of delay inapproving the pre-level work and fitness of the plant. He also mentionedthat the original period of 18 months was extended up to 30.03.2000 forthe reason that there was delay on the part of the Department. Despitethis, an order of 16.12.1999 was made even before the said extensionCcame to an end, by which the contract was partially terminated. It wasfor this reason that he stated that it was necessary for him to have goneto the High Court by way of Writ Petition. It is further stated that theWrit Petition was dismissed on 24.12.1999 and that the appellant haddecided to file Writ Appeal against the said order. Despite this, however,Dthe appellant made it clear that the part-termination, even before theexpiry of the extended time, is arbitrary and equally arbitrary is the freshtender that had been called for without issuing any notice to the appellantfor which he would take “appropriate legal actions” as available in law,holding the State liable for all costs and consequences. This legal noticewas followed by two other letters, one dated 25.01.2000, and the otherEdated 29.01.2000. The letter dated 29.01.2000 went on to state that heis challenging the partial termination of the contract and enclosing listof payments due for the work, which, at that point of time, amounted toa sum of Rs.88.06 lakhs.

5. Since the Writ Appeal had also been dismissed and since theFremedy of arbitration could not be availed of as claims of above Rs.2lakhs were not arbitrable, but ought to be decided in Civil Suit, theappellant filed O.S. No. 2/2002 on 12.09.2002 in the Court of the SpecialJudge at Virudhunagar. After setting out the fact that the partialtermination was bad in law, the appellant prayed for declaration thatGthe partial termination order dated 16.12.1999 is illegal and void and thata sum of Rs.3.30 crores with interest of 15 per cent per annum begranted to him as these were the amounts owing to him by the State.

6. The learned Additional District Judge by his judgment dated29.06.2007 found that there was substantial compliance of section 80

CPC, given the fact that the notice dated 14.01.2000 was clearly sent tothe three authorities in question and served on them. Further, the causeof action and reliefs claimed were also substantially set out both in thenotice as well as in the letter dated 29.01.2000 already referred tohereinabove.

7. After citing case law, the learned Additional District Judge foundthat there was substantial compliance with the provisions of section 80CPC. On merits, ultimately, the appellant was awarded sum ofRs.87,01,200/- together with interest at the rate of 6 per cent per annum.

8. Being dissatisfied with the judgment of the learned AdditionalDistrict Judge, both the appellant as well as the State filed appeals. Theseappeals were disposed of by the High Court in which the High Courtfound that the provision of Section 80 CPC was mandatory and that “fullparticulars” as mentioned by the said provision was not given in the so-called notices that were sent under section 80, and, therefore, allowedthe appeal of the State on the preliminary ground itself and stated thatthe Suit as filed would not be maintainable as it was filed without complyingwith the provisions of section 80 CPC.9. Learned counsel appearing on behalf of the appellant hassubmitted, based on the legal notice together with the letters sent by theappellant, that substantial compliance with section 80 CPC has beenmade in the present case as was correctly found by the learned AdditionalDistrict Judge. The High Court went in error in not adverting to substantialcompliance of Section 80 but acted as if section 80 was rigid provisionwhich, like the Laws of the Medes and Persians, could not be bent at all.He cited certain judgments to show that, by the 1976 amendment to theCode of Civil Procedure, section 80(3) was added making it clear thatso long as the State was put on notice and properly served, and so longas the cause of action and the prayer in the Suit was substantiallycommunicated, this must be held to be sufficient compliance with theprovision.

10. On the other hand, learned counsel appearing on behalf of theState has argued before us that it is clear that there was no notice at allissued under Section 80 CPC for the reason that none of the three notices/letters relied upon by the appellant had stated that they were underSection 80 CPC. He has also argued that these notices were issuedprior to the disposal of the Writ Appeal which was still pending, as

Aresult of which, the object of giving notice, that is for the Governmentto settle the claim, could not have taken place as it is well-known thatthe Government can never settle claims which are sub-judice. He hasalso argued that none of the notices were issued after the Writ Appealwas dismissed, which alone could have qualified as notices, if at all,before filing the present Suit. He has also buttressed his submissionsBwith reference to certain decisions of this Court.

Section 80 CPC is set out as follows:

“80.Notice.-

(1) Save as otherwise provided in sub-section (2), no suits shallCbe instituted against the Government(including the Governmentof the State of Jammu & Kashmir) or against public officer inrespect of any act purporting to be done by such officer in hisofficial capacity, until the expiration of two months next after noticein writing has been delivered to, or left at the office of-

D(a) in the case of suit against the Central Government, exceptwhere it relates to railway, Secretary to that Government;

(b) in the case of suit against the Central Government where itrelates to railway, the General Manager of that railway;

(bb) in the case of suit against the Government of the State ofEJammu and Kashmir the Chief Secretary to that Government orany other officer authorised by that Government in this behalf;

(c) in the case of suit against any other State Government, aSecretary to that Government or the Collector of the district;

and, in the case of public officer, delivered to him or left at thisoffice, stating the cause of action, the name, description and placeof residence of the plaintiff and the relief which he claims; andthe plaint shall contain statement that such notice has been sodelivered or left.”

(2) suit to obtain an urgent or immediate relief agianst theGovernment (including the Government of the State of Jammu &Kashmir) or any public officer in respect of any act purporting tobe done by such public officer in his official capacity, may beinstituted, with the leave of the Court, without serving any noticeas required by sub-section (1); but the Court shall not grant relief

in the suit, whether interim or otherwise, except after giving to theGovernment or public officer, as the caes may be, resaonableopportunity of showing cause in respect of the relief prayed for inthe suit:

Provided that the Court shall, if it is satisfied, after heairng theparties, that no urgent or immediate relief need be granted in thesuit, return the plaint for presentation to it after complying withthe requirements of sub-section (1).

(3) No suit instituted agianst the Government or against publicofficer in respect of any act purporting to be done by such publicofficer in his official capacity shall be dismissed merely by reasonof 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 hadbeen so given as to enable the appropriate authority or the publicofficer to identify the person serving the notice and such noticehad been delivered or left at the office of the appropriate authorityspecified in sub-section (1), and

(b) the cause of action and the relief claimed by the plaintiff hadbeen substantially indicated.”

11. Even at time when Section 80(3) was not available, thisCourt in Dhian Singh Sobha Singh & Another v. Union of India,(1958) SCR 781 made it clear that Section 80, which must be strictlycomplied with, cannot be construed in pedantic manner completelydivorced from common sense.

“We are constrained to observe that the approach of the HighCourt to this question was not well founded. The Privy Council nodoubt laid down in Bhagchand Dagadusa v. Secretary of State[(1927) L.R.54 I.A. 338] that the terms of this section should bestrictly complied with. That does not however mean that the termsof the notice should be scrutinized in pedantic manner or in amanner completely divorced from common sense. As was statedby Pollock C. B. in Jones v. Nicholls [(1844) 13 M.&W. 361,363; 153 E.R. 149, 150] “We must import little common senseinto notices of this kind.” Beaumont C.J. also observed in ChanduLal Vadilal v. Government of Bombay [I.L.R. [1943] Bom.128]: “One must construe section 80 with some regard to common

sense and to the object with which it appears to have beenpassed...........” If the terms of the notice in question be scrutinizedin this manner it is abundantly clear that the relief claimed by theappellant was the re-delivery of the said two trucks or in thealternative payment of Rs.3,500 being the value thereof. The valuewhich was placed by the appellants on the trucks was the thenvalue according to them - value as on August 1, 1942, the dateon which the delivery of the trucks ought to have been given bythe respondent to the appellants. The appellants could only havedemanded that sum as on the date of that notice. They could notsensibly enough have demanded any other sum. If the respondenthad complied with the terms of that notice then and there and re-delivered the trucks to the appellant, nothing further needed to bedone. If on the other hand instead of re-delivering the trucks itpaid to the appellant the value thereof then also it need not havepaid anything more than Rs.3,500 to the appellant, on thatalternative. If, however, the respondent failed and neglected tocomply with the requisitions contained in that notice the appellantswould certainly be entitled to recover from the respondent thevalue of the said trucks in the alternative on the failure of therespondent to re-deliver the same to the appellants in accordancewith the terms of the decree ultimately passed by the Court intheir favour. That date could certainly not be foreseen by theappellants and it is contrary to all reason and common sense toexpect the appellants to have made claim for the alternativevalue of the said two trucks as of that date. The respondent wasand ought to have been well aware of the situation as it woulddevelop as result of its non-compliance with the terms of thatnotice and if on January 8, 1943, the appellants in the suit whichthey filed for wrongful detention of the said trucks claimed re-delivery of the said trucks or in the alternative Rs.3,500 as theirvalue and reserved their right to claim the further appreciation inthe value of the trucks by reason of the rise in prices thereof up tothe date of the decree by paying additional court-fee in that behalf,it could not be laid at their door that they had not made the specificdemand in their notice to the respondent under s.80 of the Codeof Civil Procedure and that therefore their claim to recoveranything beyond Rs.3,500 was barred under that section. Acommon sense reading of the notice under s.80 would lead any

Court to the conclusion that the strict requirements of that sectionhad been complied with and that there was no defect in the samesuch as to disentitle the appellants from recovering from therespondent the appreciated value of the said two trucks as at thedate of the judgment. It is relevant to note that neither was thispoint taken by the respondent in the written statement which itfiled in answer to the appellants’ claim nor was any issue framedin that behalf by the Trial Court and this may justify the inferencethat the objection under s.80 had been waived. The point appearsto have been taken for the first time before the High Court whichnegatived the claim of the appellants for the appreciated value ofthe said trucks.”

12. In Vithalbhai (P) Ltd. v. Union Bank of India, (2005) 4SCC 315, this Court, in paragraph 10, cited certain judgments whichmade it clear that the object of the said Section is the advancement ofjustice and the securing of public good by avoidance of unnecessarylitigation.

“10.Under Section 80 CPC no suit shall be instituted against theGovernment or public officer until the expiration of two monthsnext after service of notice in writing in the manner set out in theprovision and if filed before the expiry of said period, the suit isnot maintainable because there is clearly public purpose underlyingthe provision. “The object of the section is the advancement ofjustice and the securing of public good by avoidance ofunnecessary litigation” (See Bihari Chowdhary v. State of Bihar(1984) 2 SCC 627). In Butchiraju (Vaddadi) v. DoddiSeetharamayya (AIR 1926 Mad 377) the suit was for sum ofmoney which had not become payable on the date of the suit butbecame payable since. Viswanatha Sastri, J. (as His Lordshipthen was) held that the Court could pass decree for the recoveryof money. Reliance was placed on Full Bench decision in A.T.Raghava Chariar v. O.M. Srinivasa Raghava Chariar (ILR(1917) 40 Mad 308) and few other cases. Here, in all fairness,it may be mentioned that in Rangayya Naidu (Mylavarapu) v.Basana Simon (AIR 1926 Mad 594), Spencer, J. has held that ifa suit is premature at the date of institution, though not at the dateof decision, decree cannot be granted and the only course insuch cases is to dismiss the suit with liberty to bring fresh suit

upon proper cause of action. It is pertinent to note thatButchiraju case was decided on 5-10-1925 while RangayyaNaidu case was decided on 7-10-1925 but the former decisionthough of prior date was not brought to the notice of the Courtdeciding the latter case.”

13. In Ghanshyam Dass and Others v. Dominion of India andOthers, (1984) 3 SCC 46, this Court went into the amendment made bythe Law Commission and stated:

“17. Section 80 of the Code is but part of the Procedure Codepassed to provide the regulation and machinery, by means of whichthe courts may do justice between the parties. It is thereforemerely part of the adjective law and deals with procedure aloneand must be interpreted in manner so as to subserve and advancethe cause of justice rather than to defeat it. In Sangram Singh v.Election Tribunal, Kotah (1955) 2 SCR 1 Vivian Bose, J. in hisilluminating language dealing with the Code of Civil Proceduresaid :

It is procedure, something designed to facilitate justice andfurther its ends: not penal enactment for punishment andpenalties; not thing designed to trip people up. Too technicala construction of sections that leaves no room for reasonableelasticity of interpretation should therefore be guarded against(provided always that justice is done to both sides) lest thevery means designed for the furtherance of justice be used tofrustrate it.

18. Our laws of procedure are based on the principle that “as faras possible, no proceeding in court of law should be allowed tobe defeated on mere technicalities”. Here, all the requirementsof Section 80 of the Code were fulfilled. Before the suit wasbrought, the Dominion of India received notice of claim fromSeth Lachman Dass. The whole object of serving notice underSection 80 is to give the Government sufficient warning of thecase which is going to be instituted against it (sic so) that theGovernment, if it so wished, (sic can) settle the claim withoutlitigation or afford restitution without recourse to court of law.That requirement of Section 80 was clearly fulfilled in the factsand circumstances of the present case.19. It is matter of common experience that in large majority ofcases the Government or the public officer concerned make nouse of the opportunity afforded by the section. In most cases thenotice given under Section 80 remains unanswered till the expirationof two months provided by the section. It is also clear that in alarge number of cases, as here, the Government or the publicofficer utilised the section merely to raise technical defencescontending either that no notice had been given or that the noticeactually given did not comply with the requirements of the section.It is unfortunate that the defendants came forward with atechnical plea that the suit was not maintainable at the instance ofthe plaintiffs, the legal heirs of Seth Lachman Dass, on the groundthat no fresh notice had been given by them. This was obviouslya technical plea calculated to defeat the just claim. Unfortunately,the technical plea so raised prevailed with the High Court withthe result that the plaintiffs have been deprived of their legitimatedues for the last 35 years.

20. The Law Commission in the Fourteenth Report, Volume 1 onthe Code of Civil Procedure, 1908 at p. 475 made recommendationthat Section 80 of the Code should be deleted. It was stated asfollows:

The evidence disclosed that in large majority of cases,the Government or the public officer made no use of theopportunity afforded by the section. In most cases the noticegiven under Section 80 remained unanswered till the expiry ofthe period of two months provided by the section. It was alsoclear that in large number of cases, governments and publicoffices utilised the section merely to raise technical defencescontending either that no notice had been given or that thenotice actually given did not comply with the requirements ofthe section. These technical defences appeared to havesucceeded in number of cases defeating the just claims ofthe citizens.

21. The Law Commission in the Twenty-Seventh Report on theCode at pp.21-22 reiterated its earlier recommendation for deletionof Section 80 and in the Fifty-Fourth Report at p.56 fully concurredwith the recommendation made earlier. In conformity with therecommendation of the Law Commission, Section 80 has

undergone substantial changes. By Section 27 of the Code ofCivil Procedure (Amendment) Act, 1976 which was brought intoeffect from February 1, 1977, the existing Section 80 has beenrenumbered as Section 80(1) and sub-sections(2) and (3) havebeen inserted. Sub-section (2) as inserted has been designed togive an urgent and immediate relief against the Government orthe public officer with the leave of the court. But the court shallnot grant relief in the suit, whether interim or otherwise, exceptafter giving to the Government or public officer, as the case maybe, reasonable opportunity of showing cause in respect of therelief prayed for in the suit. Proviso to sub-section (2) enjoinsthat the court shall, if it is satisfied, after hearing the parties thatno urgent or immediate relief need be granted in the suit, returnthe plaint for presentation to it after complying with therequirements of sub-section (1).

xxx xxx xxx

23. By sub-section (3), Parliament has brought in the rule ofsubstantial compliance. The present suit would be directly coveredby sub-section (3) of Section 80 so introduced if the suit had beenbrought after February 1, 1977. Unfortunately for the plaintiffs,Section 97 of the Amendment Act provides that the amendmentshall not apply to pending suits and the suits pending on February1, 1977 have to be dealt with as if such amendment had not beenmade. Nevertheless the courts must have due regard to the changein law brought about by sub-section (3) of Section 80 of the Codeintroduced by the Amendment Act w.e.f. February 1, 1977. Sucha change has legislative acceptance of the rule of substantialcompliance laid down by this Court in Dhian Singh Sobha Singh(1958) SCR 781 and Raghunath Dass (1969) 1 SCR 450. Asobserved in Dhian Singh Sobha Singh case, one must construeSection 80 with some regard to common sense and to the objectwith which it appears to have been enacted. The decision in S.N.Dutt v. Union of India case (1962) 1 SCR 560, does not accordwith the view expressed by us and is therefore overruled.”

14. In another recent judgment in State of A.P. and Others v.Pioneer Builders, A.P., (2006) 12 SCC 119, this Court again referred tothe Law Commission Report and held as follows:

“14. From bare reading of sub-section (1) of Section 80, it isplain that subject to what is provided in sub-section (2) thereof, nosuit can be filed against the Government or public officer unlessrequisite notice under the said provision has been served on suchGovernment or public officer, as the case may be. It is well-settledthat before the amendment of Section 80 the provisions ofunamended Section 80 admitted of no implications and exceptionswhatsoever and are express, explicit and mandatory. The Sectionimposes statutory and unqualified obligation upon the Court andin the absence of compliance with Section 80, the suit is notmaintainable. (See: Bhagchand Dagadusa v. Secretary of Statefor India in Council AIR 1927 P.C. 176; Sawai Singhai NirmalChand v. Union of India (1966) 1 SCR 986 and BihariChowdhary v. State of Bihar (1984) 2 SCC 627). The service ofnotice under Section 80 is, thus, condition precedent for theinstitution of suit against the Government or public officer.The legislative intent of the Section is to give the Governmentsufficient notice of the suit, which is proposed to be filed against itso that it may reconsider the decision and decide for itself whetherthe claim made could be accepted or not. As observed in BihariChowdhary, the object of the Section is the advancement of justiceand the securing of public good by avoidance of unnecessarylitigation.

15. It seems that the provision did not achieve the desired resultsinasmuch as it is matter of common experience that hardly anymatter is settled by the Government or the public officer concernedby making use of the opportunity afforded by said provisions. Inmost of the cases, notice given under Section 80 remainsunanswered. In its 14th report (reiterated in the 27th and 54thReports), the Law Commission, while noting that the provisionsof this section had worked great hardship in large number ofcases where immediate relief by way of injunction against theGovernment or public officer was necessary in the interests ofjustice, had recommended omission of the Section. However, theJoint Committee of Parliament, to which the Amendment Bill 1974was referred, did not agree with the Law Commission andrecommended retention of Section 80 with necessarymodifications/relaxations.

CDE

A16. Thus, in conformity therewith, by the Code of Civil Procedure(Amendment) Act, 1976 the existing Section 80 was renumberedas Section 80(1) and sub-sections (2) and (3) were inserted witheffect from 1-2-1977. Sub-section (2) carved out an exception tothe mandatory rule that no suit can be filed against the Governmentor public officer unless two months’ notice has been served onBsuch Government or public officer. The provision mitigates therigours of sub-section (1) and empowers the Court to allow aperson to institute suit without serving any notice under sub-section (1) in case it finds that the suit is for the purpose of obtainingan urgent and immediate relief against the Government or publicCofficer. But, the Court cannot grant relief under the sub- sectionunless reasonable opportunity is given to the Government orpublic officer to show cause in respect of the relief prayed for.The proviso to the said sub-section enjoins that in case the Courtis of the opinion that no urgent and immediate relief should begranted, it shall return the plaint for presentation to it after complyingDwith the requirements of sub-section (1). Sub-section (3), thoughnot relevant for the present case, seeks to bring in the rule ofsubstantial compliance and tends to relax the rigour of sub-section(1).”

15. On perusal of the notice dated 14.01.2000, it is clear thatEthis is legal notice sent by lawyer of the appellant to the authoritiesconcerned. It is not disputed that it was by registered A.D. and servedupon the authorities. There is also no dispute that the cause of action issufficiently set out in the said notice, which is the illegality of the partialtermination of the contract on 16.12.1999. It was also made clear thatFthough Writ Appeal at that point of time was going to be filed againstthe Writ Petition dismissal, yet this would be notice to take “appropriatelegal action” against the State. There is no doubt, whatsoever, thatmore than two months have elapsed from the date of this notice, afterwhich the Suit has been filed. In fact, the Suit was filed long after, on12.09.2002. Quite apart from this, on 29.01.2000 also, the letter of theGappellant made it clear to the Divisional Engineer that not only is thepartial termination bad in law but that the payments due for work wouldhave to be made.

16. It is clear, therefore, that there is sufficient compliance withthe provisions of Section 80 CPC as has been introduced by theH

Amendment Act introducing section 80(3) into the Statute book. Therespondents’ argument that section 80 is not expressly referred to andthat the legal notice and letters were written prior to the disposal of theWrit Appeal have no legs to stand on. This is for the reason that noticedoes not have to state the section under which it is made so long as theingredients of sub-section (3) of section 80 are met. It is admitted thatthere was no need for any legal notice before filing the Writ Appeal.The notice, therefore, that was sent on 14.01.2000, was only under Section80 CPC in the event the Writ Appeal failed and Suit would have to befiled.

17. We are, therefore, of the view that the learned AdditionalDistrict Judge’s judgment was correct. In this view of the matter, weset aside the impugned judgment of the High Court and remit the matterto the High Court to dispose of the two appeals on merits. Further,considering this is Suit of the year 2002, we request the High Court totake up these appeals and dispose of the same at the earliest.

18. The appeals stand disposed of accordingly.

Ankit Gyan

Appeals disposed of.