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Privileges and Immunities of the Administration in Suits

Though the equality clause of the Constitution envisages absence of any special privileges to
anyone including government, but since government is a contradistinction to a private
individual, law allows certain privileges to the government as a litigant. From among the
numerous privileges available to the government under various statutes, a few important one
may be discussed here.

1.) Privilege of Notice

Section 80 (I) of the Civil Procedure Code, 1908 (CPC) provides that no suit shall be
instituted against the government or a public officer, in respect of any act purporting to be
done by such public officer in his official capacity, until the expiration of two months next
after notice in writing in the manner provided in the section has been given the requirement
of notice is mandatory and admits of no exception. However, if the public officer has acted
without jurisdiction, the courts have held that the requirement of notice is not mandatory.
Therefore, if a public officer seizes property without authority or assaults a witness, no notice
is necessary for filing a suit against him in his official capacity. The Allahabad and Calcutta
High courts have further held that notice is unnecessary when a public officer though acts
within jurisdiction but in a malafide manner. The requirement of notice may also be waived
either expressly or impliedly by the government1.

The requirement of notice applies to all kind of relief forms of action whether injunctive or
otherwise. Whatever else may be the merit of the rule; it certainly creates hardships for the
litigants seeking injunctive relief against the government. The plight of the litigant is well
illustrated instead of State of Orissa v. Madan Gopal2. In this case, the government notified
to the lessees of mines, Madan Gopal and others, that their leases had become void and they
should remove their assets within a fortnight. The lessees wanted to file a suit for injunction
against the government, but the two months’ notice rule of Section 80 proved to be an
insurmountable hurdle. Therefore, they moved the High Court for the writ of mandamus. The
High Court granted the writ on the ground that under the circumstances, the alternative
remedy was inadequate, and restrained the state Government form disturbing the possession
for three months during which the suit could be filed by the petitioners after complying with
the requirement of notice. The Supreme Court reversed the decision of the High Court in
appeal. Keeping in view this hardship the Law Commission recommended the abolition of
the requirement of notice as it causes great inconvenience to the litigants, of the especially
when they seek immediate relief against the government.

Keeping in view this hardship, especially, in cases where the person needs immediate and
urgent relief, the civil procedure Code Amendment Act, 1976 added clause (2) to section 80

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P. Sivaramakrishnaiah v. N.C. Canals Sathenapalli, AIR 1978 AP 389
2
AIR 1952 SC I2: 1952 SCR 28
which provides that the court may grant leave to a person to file a suit against the government
or a public officer without two months’ notice in cases where relief claimed is immediate or
urgent. But before granting the exemption, the court must satisfy itself about the immediate
or urgent need. After this amendment, the hardship caused to the litigant in cases like Madan
Gopal should not recur.

The real purpose behind the privilege of notice to the government is to alert the government
is to alert the government to negotiate a just settlement or at least have the courtesy to tell the
person why the claim is being resisted. If the government does not act to lessen the hardship
of the individual and save wasteful litigative expenditure of public money on long drawn out
litigative, there seems to be no justification in allowing this privilege to the government.

However, the reality test shows that in large number of cases either the notice is not replied or
where replied, it is generally vague and evasive, but certainly no effort is made to settle the
matter outside the court. This defeats not only the purpose of notice but also puts heavy cost
on the exchequer, besides adding to the misery of litigants. Therefore, in Salem Advocate
Bar Assn. (2) v. Union of India3, the Supreme Court issued directive for the appointment of
special Officer who shall be responsible for sending replies to notices within time and after
due application of mind, and must be held responsible if reply is not sent or is vague or
evasive or has been sent without due application of mind. The Supreme Court also directed
the courts to impose heavy cost which may be calculated after taking into consideration the
cost of time spent , all fees, incident cost, including lodging and transportation expenditure.
This will certainly make administration responsive, besides reducing the heavy burden on
public exchequer and the misery of litigants.

It is common to find in the common law world that government bodies are entitled to special
notice before legal action is taken against them. A fairly typical example is Section 580 of the
New South Wales Local Government Act, 1919. The notice must state

1.) The clause of action;

2.) The time and place at which the damage or injury was sustained; and
3.) The name and place of abode or business of the intended plaintiff and his attorney (if
any) in the case.

After the notice, a representative of the Council must be permitted to inspect the damaged
property and an authorised medical practitioner must be permitted to examine any person
injured. A plaintiff will not be permitted to go into evidence of any cause of action not
stated in the notice or to proceed at all unless the notice is served. However, a judge may
permit an amendment of a notice and allow its non-compliance if he deems it “just or
reasonable in the circumstances” In Victoria, the Limitation of Actions Act, 1998 requires
six months” notice of similar nature.”2

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(2005) 6 SCC 344: AIR 2005 SC 3353