Suits brought by or against

Government or Public Officers

February 6, 2015 by hariharan kumar Leave a Comment

By Shrikanth Bhaskar, Vinay Narayan & Vinayak Ojha, GNLU

Editors Note: Section 80 of the CPC provides for sending a notice to the
government or a public officer if one wants to institute a suit 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 until the expiration of two months. The object of the
notice is to give Secretary of State or the public officer an opportunity to reconsider
his legal position and to make amends or afford restitution without recourse to a
court of law.[i] This section has been enacted as a measure of public policy and the
underlying purpose is the advancement of justice and securing of public good by
avoidance of unnecessary litigation.[ii] Further, it has been intended to alert the
Government or a public officer to negotiate just claims and to settle them if well-
founded without adopting an unreasonable attitude by inflicting wasteful expenditure
on the public exchequer.[iii] The Supreme Court, in the landmark case of Bihari
Chowdhary v. State of Bihar[iv] has stated that, The object of the section is the
advancement of justice and the securing of public good by avoidance of
unnecessary litigation. This project analyses the position of the section as it stands
today and its applicability.

NOTICE UNDER SECTION 80(1)

Suits between individuals require no notice to be given to the defendant by the
plaintiff before filing of a suit. However as per Section 80 of the Code of Civil
Procedure, 1908, no suit will be instituted against the Government or against a public
officer with regards to any act done by such an officer in his official capacity, until the
expiration of two months after the notice in writing has been delivered to, or left at the
office of:

(a) in the case of a suit against the Central Government, 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 a railway,
the General Manager of that railway;
(c) 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;

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

(e) 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.[v]

AMENDMENT
The amendment to this section had made some changes in 1976.By the amending
act of 1976 section 80 has been extensively amended. Main changes consists of in
the insertion of sub section (2) and (3) which are totally new. Sub-section (2) has
been inserted to permit the institution of a suit without notice but subject to the
important restriction prohibiting the grant of relief in the suit whether interim or
otherwise except after giving a reasonable opportunity of showing cause in respect
of the relief prayed for in the suit. Sub section (3) prohibits dismissal of a suit where
the notice, has been given, but suffers from certain technical deficiencies.

It is expected from public authorities that they will let the plaintiff know their stand
within the statutory period or in any case if has chooses to take up litigation. In
certain cases the court may be obliged to draw an adverse presumption if the notice
is not acknowledged or telling the plaintiff of its stand and if no stand is taken during
trial it may be considered as an afterthought.[vi]

NATURE AND APPLICABILITY

Section 80 enumerates two types of cases i) suits against the government; and ii)
suits against public officers in respect of acts done or purporting to be done by such
public officers in their official capacity. Regarding the former, the notice is required to
be given in all cases. Regarding the latter, notice is necessary only when the suit is
in respect of any act Purporting to be done by the public officer in the discharge of
his duty, not in any other cases.[vii] Although it has been said that substantive rights
are to be determined in accordance with the provision of the Constitution[viii], Section
80 of the Code is not a procedural provision, but a substantive one.[ix]
A statutory body may be an instrumentality of the state within the meaning of Art. 12
of the Constitution[x], nevertheless, it would not answer the description of
government as it is understood in law and in the context of S. 80.[xi]

This section is explicit and mandatory and admits of no implications or exceptions.

[xii] The language of this section is imperative and absolutely debars a court from
entertaining a suit instituted without compliance with its provisions. If the provisions
of the section are not complied with, the plaint must be rejected under O. 7, r. 11(d)
[xiii].

Section 80 is mandatory and a suit filed before the expiry of the period of two
months, which does not necessarily mean 60 days but has to be calculated month-
wise[xiv], after the serving of notice as per S. 80(1) is not maintainable.[xv]

LAW COMMISSION OF INDIA

The Law Commission of India did not favour in retaining the provision of issuing
notice under S. 80 before filing a suit by the aggrieved party. It cited as a reason,
inter alia, the hardship involved in a large number of cases where immediate relief
was needed. The evidence disclosed that in a large majority of cases, the
Government or the public officer made no use of the opportunity afforded by the
section. In most cases the notice remained unanswered.[xvi] In large number of
cases, Government and public officers utilised the provision as a technical defence
and in a number of cases, the objection has been upheld by the Court defeating just
claims of the citizens.[xvii]

The matter was again considered by the third Law commission in the twenty-seventh
report where it noted that it was unable to find a parallel provision in any other
country governed by the Anglo-Saxon system of law. It opined that in a democratic
country like India there should ordinarily be no distinction, as is created by Section
80, between the citizen and the State.[xviii]

The Joint Committee of Parliament however has, in public interest[xix], favoured the
retention of the issuance of notice under S. 80, after having considered the reasoning
and recommendations of the Law Commissions.

ESSENTIALS
A notice under S. 80 must contain

1. name, description and place of residence of the person giving notice;

 2. a statement of the cause of action; and

relief claimed by him.

In considering whether the essential requirements of the section have been complied
with, the Court should ask the following questions:[xx]

1. Whether the name, description and residence of the plaintiff are given so as to
enable the authorities to identify the person giving the notice?

2. Whether the cause of action and the relief which the plaintiff claims have been
set out with sufficient particulars?

Whether such notice in writing has been delivered to or left at the office of the
appropriate authority mentioned in the section? ; and

1. Whether the suit has been instituted after the expiration of two months after
notice has been served, and the plaint contains a statement that such a notice
has been so delivered or left?

NOTICE WHETHER EMPTY

FORMALITY?
The statutory notice served in pursuance of section 80, serves the objective of
providing an opportunity to the government or a public officer to take the matter in the
reconsideration and take an appropriate decision which is in accordance with law.
The notice by itself was not intended to be an empty formality but it has become one.
The administration is often unresponsive and shows no courtesy even to intimate the
aggrieved party why his claim is not accepted[xxi].The reason behind enactment of
this section was as a measure of public policy, the purpose was the advancement of
justice and securing of good of the people by avoiding unnecessary litigation.

Krishna Iyer J. has stated We like to emphasize that Governments must be made
accountable by Parliamentary social audit for wasteful litigation expenditure inflicted
on the community by inaction. A statutory notice of the proposed action under S. 80
C.P.C. is intended to alert the State to negotiate a just settlement or at least have the
courtesy to tell the potential outsider why the claim is being resisted. Now S. 80 has
become a ritual because the administration is often unresponsive and hardly lives up
to the Parliaments expectation in continuing s. 80 in the Code despite the Central
Law Commissions recommendations for its deletion[xxii]
The law commission was in fact against the provision of issuing a notice under
section 80, before more than fifty years it has noticed that the section had inflicted
hardship in cases where immediate relief was needed and in most of cases the
notice remained unanswered.

NOTICE WHETHER MANDATORY?

The provisions in section 80 are express and explicit by themselves and make the
serving of notice mandatory by not admitting any implications or exceptions. They
are imperative in nature and must be strictly complied with. Notice whether under
section 80 is the first step in the litigation.[xxiii]A court cannot entertain any suit
unless the notice is duly served to the public official under section 80(1). If a section
had done injustice, it is a matter which can be rectified by the legislature and not by a
court.[xxiv]

A plaintiff filed a suit to stop the tax officer from selling the suit property he purchased
from the defendant, who was in arrears of income tax, it was held by the court that
the central government was a necessary party to the suit. Hence unless a notice has
been served under section 80,the suit will not be maintainable[xxv]

The section is imperative and must undoubtbly be strictly construed; failure to serve
a notice complying with the requirements of the statute will entail dismissal of the
suit[xxvi]

Construction of Notice: As mentioned before the compliance with section 80 by

serving a notice is mandatory. But it is a procedural provision, a means by which the
court impart justice. A notice under this section must should not be construed in a
pedantic manner divorced from common sense[xxvii]

Pollock has stated that We must import a little common sense into notice of this kind.
A statutory notice must be reasonably construed, keeping in mind the ultimate
objective that an interpretation should not lead to injustice .Every venial defect or
error not going to the root of the matter cannot be allowed to defeat justice or to
afford an excuse to the government or a public officer to deny just claim of an
aggrieved party[xxviii]

The question has to be decided by reading the whole notice in totality and in a
reasonable manner. If the notice on such a reading the court is satisfied that the
information which was necessarily to be provided to the defendants by the plaintiff
was in fact provided, inconsequential defects or error is immaterial and will not vitiate
the notice. The provisions of the section are not intended to be use as booby-traps
against ignorant and illiterate persons.[xxix]

ACT PURPORTING TO BE IN OFFICIAL

CAPACITY
The expression any act to be done by such public officer in his official capacity
takes within its sweep acts as also illegal omission .Likewise, it also covers past as
well as future acts .All acts done or which could have been done under the colour or
guise by an officer in the ordinary course of his official duties would be included
therein[xxx].If the allegations in the plaint relate to an act which was purported to be
done by a public officer in his official capacity means that the said act must be such
that it could be done ordinarily by a person in the ordinary course of his official
duties .It does not cover acts outside the sphere of his duties [xxxi]There must be
something in the very nature of the act complained of which attaches to the official
character of the person doing it.[xxxii]

The test to be applied in these cases is that whether the officer can reasonably claim
protection for the acts that he commits or that it was performed by him purely in his
private or individual capacity. In the case of him claiming protection a notice under
section 80 is necessary, and in case it was performed by him purely in his private or
individual capacity it is not.[xxxiii]

WAIVER OF NOTICE
Although, Under Section 80 of the civil procedure code mandates issuance of a
notice for the institution of notice, it is considered to be a mere procedural
requirement and not a substantive need. This is because the issuance of a notice
does not necessarily affect the jurisdiction of the court in question. In the case
of Dhina Singh v. Union Of India, It was held that this notice is for the benefit of the
government or the public officer, it is the prerogative of the government to choose to
waive the right[xxxiv]. Furthermore in the case, Commr. Of taxes v. Golak Nath, it
was held by the courts that the facts of the particular case was vital to see if the right
could be waivered or not. [xxxv]

FORM OF NOTICE
No particular has been prescribed under the code. Due to the above, there is no
need to give it in any particular form to give a notice under Section 80. The mere
satisfaction of all conditions prescribed in this section is sufficient. Also, in the Amar
Nath v. Union of India, it was held that the notice must merely inform the opposite
party about the nature and the basis of the claim and relief sought.[xxxvi]

MODE OF SERVICE
A notice submitted under section 80 of the civil procedure code must be given to, or
left at the office of, the appropriate authority specified. This was held in the State of
A.P V. Gundugola Venkata[xxxvii] . IT has been specified in the code as to who the
appropriate authority is under section 80. As per the section, it must be given to the
secretary of the department or the collector of the district. Under this section,
personal delivery of the notice is not necessary, thus making the words left at the
office redundant. The section, however does not prohibit the personal deliver of the
notice. It further allows the notice to be sent through registered post.

TECHNICAL DEFECT IN NOTICE:

SECTION 80(3)
The Code of Civil Procedure (amendment) act, 1976 gives a lot of clarity on a suit
issued against the government if there is a defect in the notice issued. The
Amendment added Subsection 3 to section 80 whereby it has been explicitly stated
that no suit against the government has be dismissed merely on the ground of a
defective notice. It also adds that in such a case the name, residence or the
residence of the plaintiff is specified in the notice, allowing for the identification of the
plaintiff in the notice delivered or left at the authority or public officer and the cause of
action and the relief claimed by the plaintiff had been substantially indicated therein.
This means that if the notice contained basic details, it would be sufficient.

The above amendment to the code was made with the intention that justice is not
denied to the aggravated parties on the grounds of technical defects. Therefore, a
notice under section 80 cannot be held to be invalid and no suit can be dismissed on
the grounds that there has been a certain technical defect or error in the notice
delivered or on the ground that such notice was served in an improper way.[xxxviii]

Also, the joint committee stated the following

The committee also feels that with a view to seeing that the just claims of many
persons are not defeated on technical grounds, the suit against the government or
the public officer should not be dismissed merely by reason of any technical defect or
error in the notice or any irregularity in the service of the notice if the name,
description and residence of the plaintiff have been so given in the notice as to
enable the appropriate authority or public officer to identify the person serving the
notice, and the notice had been delivered or left in the appropriate authority, and the
cause of action and the relief claimed has been properly indicated in the
notice.[xxxix] In copulating the period of limitation for instituting a suit against the
government or public officer, the period of notice has to be excluded. [xl]

LEAVE OF COURT:SECTION 80(2)

Through the amendment made to the civil procedure code in 1976, subsection 2 was
added to section 80. As per this, the aggrieved party can institute a suit against the
government for obtaining urgent or immediate relief with the leave of the court even
without serving the notice to the government or public office.[xli]This subsection,
thus, engrafts an exception to the rule laid down in subsection (1) of section 80 and
allows the plaintiff to obtain urgent relief in grave cases even without issuing notice.
[xlii]

The main objective of this is to prevent any failure or miscarriage of injustice in

urgent cases. It is the urgency and immediate relief which would weigh with the court
while dealing with a prayer to dispense with the requirement of a notice and not the
merits of the case.[xliii]Subsection (2) however, is enacted in such a way that in this
type of case, the court will not have any authority to grant a relief, interim or
otherwise, unless a reasonable opportunity has been given to the government to
show cause in respect of the relief prayed for in the suit.

WRIT PETITION
As per Section 80 of the code, it can be stated that a writ petition filed under article
32 and article 226 of the constitution does not constitute a suit as per the definition
and scope of this section. Hence, prior notice to the government or public officer is
not necessary before filing a petition in the Supreme Court or in a high court[xliv]

Computation of Suit:

In computing the period of limitation for filing a suit, the period of notice should be
excluded.[xlv]

Premature Suit:

A suit instituted before the expiry of two months of notice as required by section 80 of
the code is liable to be dismissed only on that ground[xlvi]
Appeal:

An order passed under section 80 is neither a decree nor an appealable order, and
hence, no appeal lies against the order. [xlvii]

Revision:

Under Section 115 of the code, an order given under Section 80 is revisable as it
considered as a case decided. If a court subordinate to the High Court makes an
order which is patently illegal and suffers from jurisdictional error, then it can be
rectified by the High Court.[xlviii]

Title of Suit: Section 79:

In any suit filed against the Government, The Government or the authority against
whom the case is filed shall be named as a party in the following manner

1. In case of a suit by or against the central government, the Union of India

2. In the case of a suit by or against the state government, the State.[xlix]

Statement in Plaint:

Even after the expiration of two months, a plaint can be presented before the court.
This must contain a statement which, under section 80 of the code, has a statutory
notice which has been delivered or left as per subsection (1) of section 80. An
omission to make such a statement is fatal, and in its absence, the plaint will be
rejected by the court.[l]

Parties:

Where a suit is filed against a public officer in respect of any act purporting to be
done in his official capacity, the government should be joined as a party to the suit.[li]

PROCEDURE: RULE 27
In the case where there is a suit filed by or against the Government, then such a
plaint will have to be signed by any authorized person appointed by the Government.
It is also necessary that this person is well versed with facts of the case. If such a
person is authorized by the government, then he shall be deemed to be a recognized
agent of the Government as per the Civil procedure code. It has also been given in
the code that multiple summons may be issued to a government pleader. There is no
need for the state counsel to file a Vakalatnama. Reasonable time should be granted
to the government for filing a written statement.[lii] The courts, in all cases must
assist the Government to arrive at a settlement in all cases where it is a party. This is
considered as one of the main duties of the court. There are instances where the suit
filed may have a substantial question of law or that it may require the interpretation of
law or the constitution. In such cases, the court will need to send a notice to the
attorney General, if the question is regarding a central law or it will need to send a
notice to the advocate general if the suit deals with a state law. This has been given
in Order 27-A of the Code.

OTHER PRIVILEGES
In the case where a suit has been brought up against any public officer, then it has
been dictated by Rule 5-A that the Government must be a joined party to the suit. An
obligation has been bestowed on the courts by Rule 5-B to assist the government or
the public officer in question in coming to a settlement. Whenever the public servant
is the defendant, then rule 7 ensures that there is a reasonable amount of time given
to the public servant to make a reference to the government. Rule 8-A protects all
those official against whom suits have been filed when they were discharging their
duty or acting in an official capacity.

Section 81 is also considered as an important privilege given to a public servant. It

allows the court to exempt the public servant form appearing before the court. It can
do this only if believes that by making the person absenting himself from his duty,
there is a loss caused to the public. It has also been stated under section 82 that no
execution will be entertained by any court against any decree passed by the
government is a public officer. The only condition that must be fulfilled for seeking
this is that it must be unsatisfied for three months since the date the decree was
passed.[liii]

CONCLUSION
This project has explained what suits against the government and public officials are.
The project starts off by saying what exactly is stated in Section 80(1) which explains
how a suit must be filed. After this, it was felt that there had to be a special emphasis
given to the amendment and how it changed the whole sections pertinent to the
above topic. There is also a mention about the nature and applicability of such suits
with a mention about the various essentials mentioned under Section 80. This project
also tries to answer some of the questions with respect to this topic such as whether
notices in this matter is just a mere formality or if they are mandatory. As this is with
respect to government and public officers, this project also speaks about what
happens to acts that are conducted in an official capacity. After concluding the above
topics, this project attempts to elucidate about the various aspects of these types of
suits. It speaks about whether rights granted under this can be waived, the forms in
which notices can be served and also the modes in which these have to be served.
As Justice Sen stated laws can survive only on technicality. Keeping in view with it,
this project speaks about some of the technicality of law, like what happens when
there is a technical defection in the notice, or about the exclusion period of the notice
or when there is a need for a judgment on an urgent basis. Additionally, this project
talks about the procedure when writs are files, or when there is a premature suit, on
appeal or if there is a revision. In conclusion, this project speaks about procedure
given under rule 27 and other privileges given to parties.