Notice, underlying principles

Section 80: Notice

(1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir)] or against 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 has been delivered to, or left at the office of-

(a) in the case of a suit against the Central Government, ¹³² [except where it relates to a railway], a Secretary to that Government;

(b)] in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway;

(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;]

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

and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:

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

(3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of 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 had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice has been delivered or left at the office of the appropriate authority specified in sub-section (1), and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.

The Apex Court In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India [(2005) 6 SCC 344] the SC has ruled that all public authorities / public officials must make a reasoned reply to the Notices received by it. The Apex Court, among other things, have observed and directed –

“…The Governments, government departments or statutory authorities are defendants in a large number of Cases pending in various courts in the country. Judicial notice can be taken of the fact that in a large number of cases either the notice is not replied to or in the few cases where a reply is sent, it is generally vague and evasive. It not only gives rise to avoidable litigation but also results in heavy expenses and costs to the exchequer as well.

A proper reply can result in reduction of litigation between the State and the citizens. In case a proper reply is sent, either the claim in the notice may be admitted or the area of controversy curtailed, or the citizen may be satisfied on knowing the stand of the State.

Having regard to the existing state of affairs, we direct all Governments, Central or State or other authorities concerned, whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against it, to nominate, within a period of three months, an officer who shall be made responsible to ensure that replies to notices under Section 80 or similar provisions are sent within the period stipulated in a particular legislation.

The replies shall be sent after due application of mind. Despite, if the court finds that either the notice has not been replied to or the reply is evasive and vague and has been sent without proper application of mind, the court shall ordinarily award heavy costs against the Government and direct it to take appropriate action against the officer concerned including recovery of costs from him.”.

Disposal of File within 7 working days – An Office Memorandum was issued by Ministry of Personnel, PG and Pension, Dept of Administrative Reforms and Public Grievances, No. 46013 / 7 / 2000 / O & M, dated 08.09.2000 /, inter alia, states that, as a general rule no official shall keep a case / file pending with him / her for more than 7 working days, unless higher time limit is prescribed for specific types of cases.

The Central Secretariat Manual of Office Procedures, Thirteenth Edition, Ministry of Personnel, Public Grievances and Pensions, Department of Administrative Reforms and Public Grievances. September, 2010 mandates on Page 39, paragraph 66. (www.darpg.gov.in) that proper replies to all communications from citizens should be sent within 30 days.

In a case before it, the Hon’ble Bombay High Court, whilst dealing with section 527 of MMC Act, 1888 and Section 164 of MCS Act, 1960, and whilst referring to observations of Apex Court in the case of Bharat Steel Tubes Ltd. V/s State of Haryana - [(1988) 3 S.C.C., 478], found the occasion to emphasize the significance of issuing Notice before filing of Suit. BHC – Noor Mohd. Shami Shaikh Versus Maharashtra Housing & Development Board - 2014 (1) BCR 860

Para 8 Pre-suit statutory notice as required under Section 527 of MMC Act, as also under Section 164 of MCS Act, 1960, required to be addressed to the Registrar before initiating suit clearly served public purpose underlying the mandatory provisions. When such notices are issued and served upon public authorities, they get reasonable opportunity to avoid unnecessary litigation and also to avoid unnecessary expenses which may have to be spent in a long drawn out legal battle.

Object of pre-suit statutory notice is to furnish an opportunity to the Public Authority to know before hand about the prospective plaintiff, particulars of his name, address, grievance, cause of action etc., so that Public Authority can reconsider its legal position and may resolve to take steps to settle the claim at pre-litigation stage. The provision is therefore intended to save the valuable public time and money.

Bombay High Court – Failure to decide on representation – judicial notice of the fact – paras 1, 4, 5; WP (C) 6731 / 2012 – date of decision – 21.12.2012.

Para 1: The grievance made in this Petition is that the Collector, Pune has failed to decide the representation made by the Petitioner on 28th June, 2011. We are appalled to notice the laxity and indifference of the Collector in not expediting the process of deciding the subject representation even after the service of present Writ Petition. Admittedly, no decision has been communicated to the Petitioner till date. Institution or pendency of this Petition was certainly not an impediment for taking the decision. As a matter of fact, any prudent officer would expedite the process as soon as he is served with the copy of the Petition making grievance against him about his inaction. The attitude of the officer in not deciding the representation, even after service of this Writ Petition, is to say the least deplorable.

Para 4: Copy of this order be forwarded to the Chief Secretary, with a hope that the Chief Secretary would cause to issue instructions/circular, before 19th January, 2013, to all concerned departments and officers that, if any representation is made, the same should be considered and final decision thereon must be taken within the period specified in the earlier Government Circular No. SKN – 02/2010/P. No. 29/A2 dated 16th February, 2010 and the decision so taken should be communicated to the party concerned within the same time.

Further, if any Petition is filed before the Court, making grievance about the inaction of the Authority, at least upon service of copy of such Petition, the concerned officer must dispose of the representation within four weeks from receipt of notice of such proceedings and communicate the decision to the concerned party as well as report that fact to the office of the Government Pleader for bringing it to the notice of the Court whenever the matter is taken up for hearing. It must be made amply clear that failure to comply with this condition may entail in initiating departmental action against the concerned officer and serious view may be taken in the matter.

Para 5: This we are required to observe because, on any given Court working day, the Court is called upon to deal with substantial number of Writ Petitions, in respect of the subject assigned to the concerned Division Bench, directing the Authorities to dispose of the representations within specified time. This litigation is certainly avoidable, if the representations were to be decided in a time bound manner by the Authority and including to communicate the decision so taken to the concerned parties soon thereafter.

Bombay High Court: Deciding the representation within a reasonable time – directed the Chief Secretary to issue Dept. Instructions Circular to all the govt. depts. – and if WP is filed in respect of the concerned subject matter, and copy is served, the concerned Authority must decide the representation within 4 weeks. Circular No. SKN-02/2010 //PK-29/A-2 dated 16.02.2010. Also GR dated 18.01.2013. Prescribed time limit is 90 days. WP (C) No. 8348 / 2009 – date of judgment – 25.01.2010.

We have come across several writ petitions in which similar relief is claimed not only in respect of inaction of the authority dealing with land acquisition proceedings, but even other departments, such as Cooperative Department, Caste Scrutiny Committee, Education Department, Social Welfare Department, Zilla Parishads and the like. We find that substantial number of writ petitions, such as the present petition, which are filed in this Court, are avoidable, if the officials of the State were to discharge their statutory obligation of deciding the representation within a reasonable time. In the present case, petitioner has submitted her application almost one year back i.e. 5^th January, 2009.

It is unnecessary to underscore that the applicant would have legitimate expectation of early redressal of her grievance. Indubitably, expeditious decision on the representation or application is a right ingrained in Article 21 of the Constitution of India. Even when no period of limitation to dispose of representation / application is prescribed under statute, it has to be done expeditiously within a reasonable time (see Bharat Steel Tubes Ltd. V/s State of Haryana - [ (1988) 3 S.C.C., 478 ]. That is the duty cast upon the officials, for, existence of power to decide such application / representation is coupled with duty to decide the same expeditiously.

It will not be out of place to restate the legal position expounded by the Division Bench of this Court in a recent decision in the case of Vaishali Atmaram Suryawanshi V/s the State of Maharashtra in Writ Petition No.7055/2009 decided on 16th December, 2009. Notably, due to the inaction of the Authority (officials), not only the citizen has to suffer the agony of uncertainty and delayed justice, but at the same time the State exchequer is incurred on legal proceedings, which is wholly avoidable.

In our view, the Chief Secretary of the State of Maharashtra should issue appropriate instructions or circular to all the concerned officials of the respective departments, not only to one referred to above, but a general circular, instructing all the Departments that if the officials are required to dispose of any application or representation under the provisions of law, they shall do so within a reasonable time and in any case not later than the time specified in the said circular, failing which the concerned official will be held personally responsible and may be proceeded for appropriate Departmental action including for dereliction of duty. The Government Pleader assures to convey the sentiments of the Court to the Chief Secretary for taking appropriate action, as may be advised, and report compliance to the Court within four weeks from today.

Bombay High Court: Citizen Charter – the Court directed to affix Citizen Charter on the Notice Board of all govt. depts., in compliance to the mandate of section 8 of the Maharashtra Govt. Servants Regulation of Transfers and Prevention of delay in discharge of official duties Act, 2005. Para 7; PIL No.50 / 2011 – date of judgment – 21.12.2011.

Para 7: It is important to note that provisions of Citizens Charter by the Administrative Departments of the Government must be made known to the common man for whom it is meant. It is no doubt true that Citizens Charter which was published, though put on the website, however, in order to apprise the common man about the Citizens Charter, we direct each Administrative Department of the State Government to affix copy of Citizens Charter prepared by that Department on the notice board to be placed on the front lobby of the Department or at such a place which is easily visible to members of public who visit the Department. The entire exercise must be completed by each Department within a period of two months from today. We also expect the State Government to finalize the Rules to carry out purpose of the Act without further delay and notify the same in the official gazette.

Bombay High Court: Online Publication of Approved Plans – the Court directed the State to cause online publication of Approved Plans before allowing construction activity – Para 30 – BHC – WP 4045 / 2005 – date of judgment – 10.12.2013.

AIR 1975 SC 538

Para 6: It was pointed out that the petition of K. N. Kapur and others did not even disclose a demand made to the opposite parties to do justice, followed by its refusal by the opposite parties, so that a condition precedent to the issue of a writ of Mandamus was also wanting here.

Para 25: Hence, the rule recognised by this Court in Kamini Kumar Das V/s. State of West Bengal, AIR 1972 SC 2060 at p. 2065 that a demand for justice and its refusal must precede the filing of a petition asking for direction or Writ of Mandamus, would also operate against the petitioners.

AIR 1975 SC 460

Para 24: As the appeals fail on merits we need not discuss the technical difficulty which an application for a writ of certiorari would encounter when no quasi-judicial proceeding was before the High Court. The powers of the High Court under Art. 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well-recognised rule that no writ or order in the nature of a Mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general role, which is subject to certain exceptions, applied by us, as it is in England, when a writ of Mandamus is asked for, could be stated as we find it set out in Halsbury's Laws of England (3rd edition, Vol. 13, p. 106):

"As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply and it must be shown by evidence that there was a distinct demand of that which the party seeking the: mandamus desires to enforce, and that that demand was met by a refusal."

Transfer of Property Act, 1882

Section3: Interpretation Clause:

"a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it.

Explanation I. Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, '[where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908, from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated] :

Provided that

(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908, and the rules made thereunder,

(2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and

(3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.

Explanation II. Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.

Explanation III. A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material :

Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.

Notice to Agent is Notice to Principal

Section 3 of TOP Act

AIR 1983 Cut 438

AIR 1933 Oudh 333 (340)

Kettlewal V Watson – 21 Ch D 685 (706) *****

Chabildas versus DayalMowji – 31 Bom 566 PC : 34 IC 179 : s.229 of Contract Act, illustration (b)

(1903) 30 Cal 539 : 30 IA 114 (121)

Wyllie versus Pollen – (1863) 32 LJ Ch782 : 46 ER 767

BhagwanKaur versus Land versus Land Acq – (2012-4) Punj LR 563 (P & H)

Wella versus Smith – (1914) 3 KB 722

National Bolivian versus Wilson – (1880) 5 AC 176 (209)

Re. David Payne & Co. (1904) 2 Ch.608

Saffon Walden versus Raymer – (1880) 14 Ch D 406

(1904) ILR 25 All 1 *****

The test is –

·         During his agency;

·         In his capacity as an agent;

·         In the course of an agency;

·         And in the matter material to his agency business, that is, the knowledge derived from the Notice must be material to his business for which the agent was employed;

·         It would be the duty of the Agent to communicate the fact to the Principal.

Few basic Points about Notice:

·         Notice must be given by a person who is legally entitled to issue issue.

·         Notice must be given to a person who is legally entitled to receive & is directly responsible to address the issue raised in the Notice.

·         It is desirable to give notice by Regd AD, by Speed Post AD.

·         Check if any statutory conditions are to be complied with while giving Notice.

It is very important to inform the readers that if a person knowingly issues a Notice for any claim to which he is not entitled to under the law, and if by the Notice he is going to cause mental harassment or mental alarm to the recipient of the Notice, he may be alleged to have committed the offence of criminal intimidation under section 503 of IPC 1860.

Sandeep Jalan

Advocate

Law Referencer: https://www.vakeelkanumber.com/