Editor’s Note: This article “Suits by or against government or Public officers in their official capacity” provides a comprehensive overview of Sections 79 and 80 and Order 27 of the Civil Procedure Code, 1908, focusing on suits involving public officers and government entities. It delves into procedural requirements, notice provisions, and key case law. Designed for law students and practitioners, this piece aims to clarify the intricacies of litigation involving the government.
Vaibhav Anand
Advocate
Lucknow and Jhansi
Introduction
The procedural and substantive provisions governing suits by or against the government and public officers in India are laid down in Sections 79, 80, and Order XXVII of the Civil Procedure Code (CPC), 1908. These sections provide a legal mechanism for ensuring that the government and its officers, while discharging public duties, remain accountable under the rule of law.
Section 79 primarily addresses the parties involved in such suits, Section 80 deals with mandatory notice requirements before suing the government or its officers, and Order XXVII specifies the procedure for these suits, including representation by government pleaders. This article provides an in-depth analysis of these provisions, examining key judicial interpretations and procedural nuances relevant to law students, academicians, and legal professionals.
Contents of Article
Section 79: Suits by or Against the Government
Section 79 CPC sets forth the procedure for instituting suits by or against the government. The section mandates that any suit filed by or against the government must be instituted in the name of the Union of India if the central government is involved or in the name of the respective state government if it pertains to a state.
Scope and Nature of Section 79
Section 79 is procedural in nature and does not confer or alter substantive rights. The primary function of this section is to regulate the naming of parties in suits involving the government. It does not address the enforceability of rights or liabilities, which are governed by the substantive laws applicable to the case. In Jehangir v. Secretary of State [(1904) ILR 27 Bom 122], it was held that Section 79 does not create a cause of action but merely prescribes the method of bringing such actions.
This section ensures that when the government is sued, it is sued in its legal persona, i.e., “Union of India” or “State Government,” thereby avoiding ambiguity regarding the party responsible for the public action being questioned.
Jurisdiction Under Section 79
The question of jurisdiction in suits involving the government under Section 79 has been addressed by courts in several judgments. It has been consistently held that the appropriate court for such suits is the one within whose local jurisdiction the cause of action arises. In Dominion of India v. RCKC Nath & Co. [AIR 1950 Cal 207], the Calcutta High Court clarified that certain jurisdictional requirements, such as those in Sections 18, 19, and 20 of the CPC, relating to where a defendant “dwells” or “carries on business” do not apply to the government. The cause of action itself determines the jurisdiction.
Suits Involving Railways
A significant area under Section 79 concerns the administration of railways. If a railway is administered by the Union or State government, a suit to enforce a claim against the railway administration can be brought directly against the Union of India or the State, depending on the case. In Union of India v. R.C. Jall [AIR 1962 SC 1281], the Supreme Court clarified that in cases involving railway freight and the transport of goods, the suit can be directly instituted against the Union of India without making the railway administration a separate party.
In Secretary of State v. Rustom Khan [68 IA 109, AIR 1941 PC 64], it was observed that no suit could lie against the East India Company for acts of sovereignty, and by analogy, suits against the State for sovereign acts of the government would be similarly barred.
Section 80: Mandatory Notice Before Suing the Government or Public Officers
Section 80 of the CPC mandates that no suit shall be instituted against the government or a public officer in respect of any act purporting to be done in an official capacity unless a two-month notice is served in advance. This notice requirement applies to both central and state governments, as well as public officers acting in their official capacity.
Objective and Importance of Section 80
The purpose of Section 80 is to give the government or public officers an opportunity to settle the matter amicably, without the need for litigation. The notice period allows the government time to review the legal claims, negotiate a settlement, or take corrective action if necessary. The Supreme Court, in State of Madras v. C.P. Agencies [AIR 1960 SC 1309], emphasized the need for strict compliance with the notice requirement, stating that it is intended to enable the government to reconsider its legal position and settle legitimate claims without recourse to court proceedings.
The provision also serves as a filter against frivolous or vexatious claims by ensuring that only genuine grievances proceed to litigation.
Contents of the Notice Under Section 80
The notice under Section 80 must include:
- The name, description, and residence of the plaintiff.
- The cause of action, with sufficient detail for the government or public officer to understand the claim.
- The relief sought by the plaintiff.
In Union of India v. Shankar Stores [AIR 1974 Ori 85], the Orissa High Court ruled that the notice must convey adequate information to the government or officer to consider the claim seriously and attempt an out-of-court resolution. Non-compliance with these requirements can result in the dismissal of the suit.
Effect of Non-Compliance
Failure to comply with the notice requirement under Section 80 typically leads to the dismissal of the plaint. Under Order VII Rule 11 of the CPC, a court can reject a plaint for failure to comply with statutory requirements. However, if the suit involves both a public officer and a private individual, non-service of notice on the public officer may lead to the officer’s name being struck off, but the suit will proceed against the private party.
The courts have also held that certain technical defects in the notice do not invalidate it. For instance, in Lalchand v. Union of India [AIR 1960 Cal 270], the Calcutta High Court observed that the requirement of notice is procedural, and if the government or public officer waives the notice requirement, the suit can proceed without it.
Amendments to Section 80
The 1976 amendment to Section 80 introduced two significant provisions:
- Subsection (2): This allows the institution of a suit without notice in urgent matters where the plaintiff seeks interim relief. However, the court must grant the defendant an opportunity to show cause regarding the relief sought before proceeding with the case.
- Subsection (3): This prevents the dismissal of a suit solely due to technical defects in the notice. The court is required to overlook minor errors, provided the notice has substantially fulfilled its purpose.
These amendments reflect the judiciary’s attempt to prevent the misuse of the notice requirement by public officials as a tool for delaying or avoiding litigation.
Order XXVII: Procedure for Suits by or Against the Government and Public Officers
Order XXVII of the CPC outlines the procedure to be followed in suits involving the government or public officers. It provides specific rules regarding how the government is to be represented, how notices are to be served, and how the litigation process should unfold in such cases.
Representation of the Government
Under Order XXVII Rule 2, the government is represented by a government pleader, who acts as the agent of the government for the purpose of receiving legal processes. No stamped power of attorney or vakalatnama is required for the government pleader to represent the government. In Lutfar Rahman v. State of West Bengal [AIR 1954 Cal 455], it was held that a government pleader is competent to represent the government without submitting any additional documents, as his authority stems from his official position.
Signing of Pleadings
One of the key procedural requirements under Order XXVII is that the plaint or written statement in a suit by or against the government must be signed by an officer appointed by the government through a general or special order. In State of Rajasthan v. Jaipur Hosiery Mills [AIR 1997 Raj 10], it was held that if the signing authority is not properly sanctioned before the suit is filed, the pleadings may be considered defective. The court further clarified that issuing a retrospective sanction would not cure such a defect.
Attendance of Government Officers
Order XXVII Rule 5 empowers the court to direct the attendance of a government officer who is able to answer questions related to the suit. This ensures that any factual or legal issues requiring clarification can be directly addressed by a knowledgeable officer, rather than through written submissions alone.
Judicial Interpretation of Key Provisions
Several landmark judgments have provided clarity on the interpretation of Sections 79, 80, and Order XXVII:
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Jehangir v. Secretary of State [(1904) ILR 27 Bom 122]: Established that Section 79 is purely procedural and does not confer substantive rights.
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Union of India v. R.C. Jall [AIR 1962 SC 1281]: Clarified the procedure for suits involving railway freight and the necessity of naming the Union of India as a party in such cases.
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Lalchand v. Union of India [AIR 1960 Cal 270]: Held that the requirement for notice under Section 80 can be waived by the government or public officer if they choose not to raise the issue.
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State of Madras v. C.P. Agencies [AIR 1960 SC 1309]: Emphasized the purpose of Section 80 notice as providing the government an opportunity to resolve disputes without resorting to litigation.
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Lutfar Rahman v. State of West Bengal [AIR 1954 Cal 455]: Clarified that the government pleader represents the government without the need for formal documentation like a vakalatnama.
Commentary and Observations
The framework laid out in Sections 79 and 80 and Order XXVII strikes a delicate balance between ensuring that the government and public officers are held accountable for their actions while protecting them from frivolous or ill-considered suits. The 1976 amendments to Section 80 introduced significant flexibility, allowing courts to overlook minor technical defects and enabling urgent cases to proceed without notice. These changes have helped modernize the legal framework and prevent procedural abuse by public officials seeking to delay justice.
At the same time, judicial interpretation has ensured that government agencies and public officers do not misuse procedural requirements to avoid litigation. For example, the waiver of notice under Section 80 demonstrates the judiciary’s commitment to substantive justice over mere procedural technicalities. However, courts have also stressed the importance of complying with these provisions to avoid unnecessary delays in litigation.
Conclusion
The provisions of Sections 79, 80, and Order XXVII of the Civil Procedure Code, 1908, provide a structured approach to litigating against the government and public officers, ensuring transparency and accountability. By mandating specific procedural requirements, such as the notice under Section 80 and the representation of the government by a pleader under Order XXVII, the law balances the interests of justice and public administration.
As the judiciary continues to interpret these provisions, a more nuanced understanding of public litigation will emerge, helping to ensure that the government remains accountable while not being overwhelmed by unnecessary or frivolous lawsuits. Understanding these procedural nuances is essential for legal practitioners, scholars, and students, as they reflect the interaction between governance and the rule of law.
– Aryan Rakesh
References
- Bagchand v. Secy. Of State, AIR 1927 PC 176
- Sawai Singhai Nirmal Chand v. Union of India, AIR 1966
- Jehangir v. Secretary of State. , (1903) ILR 27 Bom 189
- Government of A.P. V. Collector
- Santanu Dey, Legal Provisions of Section 80 of Code of Civil Procedure 1908
- Union of India v. Shankar Stores, AIR 1974 Ori 85.
- Lalchand v. Union of India, AIR 1960 Cal 270.
- State v. Abdur Rahman, AIR 1960 J & K
- Mulla, Code of Civil Procedure (Abridged) 390-406 (ed 523)
- Lutfar Rahman v. State of West Bengal, AIR 1954 Cal 455
- State of Punjab vs Amar Chand Walia, AIR 1980
- Civil Procedure with Limitation Act 1963 by C K Takwani (One of the best book for CPC)
- Ratanlal and Dhirajlal’s the Code of Criminal Procedure
- Union of India v. R.C. Jall [AIR 1962 SC 1281].
- State of Madras v. C.P. Agencies [AIR 1960 SC 1309].
- Lalchand v. Union of India [AIR 1960 Cal 270].
- Lutfar Rahman v. State of West Bengal [AIR 1954 Cal 455].
- State of Rajasthan v. Jaipur Hosiery Mills [AIR 1997 Raj 10].