IMPORTANT POINT
The words “The Secretary” appearing in Sec.80 (1)(c) CPC takes within its sweep “Secretary” as well. Thus, when a notice is issued to the Chief Secretary of the State, the same is substantial compliance of Sec.80 (1) CPC.

Dr. A.K. Rath, J.—This petition challenges the order dated 22.11.2017 passed by the learned Civil Judge (Sr.Division), Bhubaneswar in C.S.No.2413 of 2016, whereby and whereunder, the learned trial court has returned the plaint to the plaintiffs-petitioners for non-compliance of notice under Section 80 (1) CPC on the Collector, Khurda.

2. The dispute lies in a narrow compass. The facts need not be recounted in details. Suffice it to say that the plaintiffs-petitioners instituted the suit for declaration of title. The plaintiffs issued notice under Section 80(1) CPC to the Chief Secretary of the State. The suit has been instituted against the State of Odisha represented by its Chief Secretary. The learned trial court came to hold that notice will not fall within the ambit of notice delivered to the officer himself who is being sued or at his office. Further the Collector, Khurda is a necessary party to the lis. Notice has not been served on him. Held so, it returned the plaint.

3. Heard Mr.S.S.K.Nayak-2, learned Advocate for the petitioners and Ms.Samapika Mishra, learned A.S.C. for the opposite party.

4. Mr.Nayak-2, learned Advocate for the petitioners submits that the land has been leased out by the General Administration Department of the Government. The property situates at Bhubaneswar. In view of the same, notice has been issued to the Chief Secretary of the State under Section 80(1) CPC. The learned trial court travelled beyond its jurisdiction in returning the plaint to the petitioners. He further submits that the Collector is neither necessary nor proper party to the lis.

5. Ms. Mishra, learned A.S.C. submits that issuance of notice on the Secretary to the State or the Collector of the district is a sine qua non for institution of the suit against the State. In the instant case, no notice was issued either to the Secretary of the State or the Collector, Khurda. Notice issued to the Chief Secretary to the Government cannot be termed as sufficient compliance of Sec.80 CPC. She further submits that in the case of a suit against the Government of the State of Jammu and Kashmir, the Code provides issuance of notice to the Chief Secretary to that Government or any other officer authorized by that Government in this behalf. The word Chief Secretary is not there in clause (c). Secretary to the Government means Secretary of the concerned department of the State.

6. Before adverting into the contentions raised by the counsel for both parties, it will be necessary to set out clause (c) of sub-section (1) of Section 80 CPC, which is hub of the issue, is quoted hereunder:—

“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

xxx xxx xxx

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

7. Sec.80 (1) CPC contains a saving clause. On a bare perusal of the aforesaid provision, it is crystal clear that save as otherwise provided in sub-sec. (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 the Secretary to the Government or the Collector of the district. Sub-sec.(2) of Sec.80 CPC deals with waiver of notice. (Emphasis laid)

8. The apex Court in the case of the State of Madras v. C.P. Agencies and another, AIR 1960 SC 1309 held that Sec.80 CPC is express, explicit and mandatory and admits of no implications or exceptions. Sec.80