Suits By and Against Government

Sections 79 to 82 and Order 27 of the Code lay down the procedure where suits are brought by or against the Government or public officers. The provisions, however, prescribe procedure and machinery and do not deal with rights and liabilities enforceable by or against the Government. Substantive rights are to be determined in accordance with the provisions of the Constitution. [1]

In ordinary suits, ie, suits between individuals and individuals, notice need not be given to the defendant by the plaintiff before filing a suit. Section 80 of the Code however, declares that no suit shall be 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, until the expiration of two months next after notice in writing has been delivered to, or left at the office of concerned department of the Government.

Section 80 of the Code enacts a rule of procedure and clarifies that no suit shall be instituted against the Government or against a public officer until a statutory notice required by the section is served. The section enumerates two types of cases:

Suits against the Government; and

Suits against public officers in respect of acts done or purporting to be done by such public officers in their official capacity.

Regarding the first class of cases, the notice must be given in all cases. Regarding the second class of cases, however, notice is necessary only where the suit is in respect of any act ‘purporting to be done’ by such public officer in the discharge of his duty, and not otherwise. [2]

The expression “any act purporting to be done by such public officer in his official capacity” takes within its sweep acts as also illegal omissions. 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. [3] If the allegations in the plaint relate to an act purporting to be done by a public officer, whatever the relief prayed for, the section is attracted and a notice is mandatory. [4] Again, act does not mean any particular specific or instantaneous act of a person but denotes a series of acts. [5] Such acts must be bona fide and they must have some nexus with the duty of the officer. [6] The expression “any act purporting to be done by such public officer in his official capacity” connotes that the act must be such as could ordinarily be done by a person in the ordinary course of his official duties. It does not cover acts outside the sphere of his duties. [7] “There must be something in the nature of the act complained of which attaches to the official character of the person doing it”. [8]

The primary object underlying Section 80 is to afford an opportunity to the Government or the public officer to consider the legal position and to settle the claim put forward by the prospective plaintiff if the same appears to be just and proper. The Government, unlike private parties, is expected to consider the matter objectively and dispassionately and after obtaining proper legal advice, it can take an appropriate decision in the public interest within a period of two months allowed by the section by saving public time and money and without driving a person to avoidable litigation. The legislative intent behind the provision is that public money should not be wasted for unnecessary litigation. The section has been intended to alert the Government or 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. [9]

ESSENTIALS

A notice under Section 80 must contain i. name, description and place of residence of the person giving notice; ii. a statement of the cause of action; and iii. Relief claimed by him.

In considering whether the essential requirements of the section have been complied with, the court should ask the following questions: [10]

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

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

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 deliever of left?

Statutory notice is not an empty formality. The object is to afford an opportunity to the Government or a public officer to reconsider the matter in the light of the settled legal position and take an appropriate decision in accordance with law. Such notice has, however, become an empty formality. The administration is often unresponsive and shows no courtesy even to intimate the aggrieved party why his claim is not accepted. [11]

The provisions of Section 80 are express, explicit and mandatory and admit no implications or exceptions. They are imperative in nature and must be strictly complied with. They impose absolute and unqualified obligation on the court. No court can entertain a suit unless the notice is duly served under sub-section (1) of Section 80. If the section has done injustice, it is a matter which can be rectified by a Legislature and not by a court. [12]

The provisions of Section 80 of the Code must be strictly complied with. But it cannot be overlooked that it is a procedural provision, a machinery by which courts impart justice A notice under this section, therefore, should not be construed in a pedantic manner divorced from common sense. [13]

The question has to be decided by reading the notice as a whole in a reasonable manner. If on such reading, the court is satisfied that the plaintiff has shown to have given the necessary information which the statute requires him to give to the defendants, inconsequential defect or error is immaterial and it will not vitiate the notice. As observed by the Supreme Court, the provisions of the section are not intended to be used as boobytraps against ignorant and illiterate persons. [14]

Sub-section (2) of Section 80 is inserted by the Code of Civil Procedure (Amendment) Act, 1976 enables the plaintiff to institute a suit against the Government or public officer for obtaining urgent or immediate relief with the leave of the court even without serving notice to the Government or public officer. This sub-section, thus, engrafts an exception to the rule laid down in sub-section (1) of Section 80 and allows the plaintiff to obtain urgent relief in grave cases even without issuing notice.

CONCLUSION

Due to widespread misuse and abuse by the Government and Public officers of this section to dispose of litigation on grounds of technicalities, sub-section (3) to Section was inserted by the Code of Civil Procedure (Amendment) Act, 1976. It clarifies that not suit instituted against the Government or public officer shall be dismissed merely on the ground of error or defect in the notice, if, in such notice, the name, description and residence of plaintiff had been so given as to enable the authority or public officer to identify the person serving the notice and such notice has been delivered or left the officer of authority or public officer concerned.