Suits by or against government or Public officers in their official capacity
Suits by or against government or Public officers in their official capacity: Under the Civil Procedure Code, 1908. Section 79 to 82 and Order 27 lay down procedure where cases are brought by or against the government or public officials. The provisions provide for the procedure only not about rights and liabilities. Substantive right has to be found accordance with the provisions of the Constitution. Second, it should be noted that Section 79 of the CPC is a procedural provision and, thus, it does not deal with enforceable rights and liabilities by or against the government. But at the same time, it declares a mode of procedure when the cause of action occurs. CPC Section-80 on the other hand is not a procedural rule but a substantive provision. The rules it covers and the workings of Section 80 will be further explored. Lastly, Order 27 includes various rules and subjects such as that of known officers, attorney general and the protocol to be followed while the case is being filed by or against the government or officials in their official capacity. This article aims to examine three section, and to provide an overview of the same.
To know the difference
Sections 79 and 80 are defined are defined under the procedure of Civil Code:
Section 79 of Civil Procedure Code, 1908 –
This section describes the definition of suits by or against the government. Whenever a lawsu it is brought against a government, or if it is filed by the government, the plaintiff and the def endant mentioned in the case shall be as provided for in:
- Whenever the case is instituted by or against the central government, then the suit must be represented as Union of India.
- Whenever the suit is filed by or against the state government, then the suit must be represented as State.
An important observation was made which was that section 79 gives no cause of action but only declares the mode of the procedure when the cause of action arises . In Chief Conservator of forests, Government of A.P. V. Collector , Supreme Court observed that the requirement of provision inherent in Section 79 CPC is not merely a matter of procedural formality, but is basically a matter of substance and significant significance whereby a special provision has been made as to how the Central Government or the Government of the State may sue or be sued, an authority to be appointed as a complainant or a defendant, as the case may be;
- in the case of a suit by or against the Central Government, the Union of India,
- in the case of a suit by or against a State Government, the State.
Section 80 of Civil Procedure Code, 1908-
This section deals with the concept of Notice.
In suits between individuals, notice must not be given by the plaintiff to the defendant before filing a suit, but it is provided under Section 80 that notice must be given in a suit against the government or public officer in respect of any act that such public officer may take in his official capacity.
According to this Section, no suit shall be instituted against the government without issuing a notice. In respect to the institution of a suit against a public official in relation to the act done by him in his official capacity, there is again a need to give notice concerning the same. The notice should also be given two months before the action is launched and it should be ensured that such notice is delivered or left at the office of:
- Whenever the case is against the central government, and it does not relate to the railways then, the notice should be delivered to the secretary of the government.
- Whenever the case is instituted against any of the state governments then, the notice is to be served either to the secretary to that government or to the collector of the district.
- Whenever a case has been instituted against the central government and it relates to the railways then, the notice is to be served to the general manager of that railways.
It further provides that a suit may be instituted without serving the notice if urgent or immediate relief is required with the permission of the Court. Provided that Court returns the plaint if it finds that immediate or urgent relief is not required.
The three fundamental elements of S. 80 are: firstly, the addressee should be identified and the communication should have been received; secondly, there should be no vagueness or indefinites about the person giving the notice, who should also be the person filing the complaint, and the notice should also provide the information set out in S. 80; and thirdly, the allowable two-month period must expire before the claim is filed. Once these criteria have been met, minor details such as the person to whom the correspondence is addressed should not make it an unacceptable notification that does not meet requirements. 80. Also, the notice is required to convey to its recipients, sufficient information to enable him to consider the claim, which was held in Union of India v Shankar Stores.
Compliance with this Section’s requirements or any omission to the complaint that is required would result in plaint being rejected under Order 7, Rule 11. If the suit is against a public official and a private individual and no notice is served on the public officer, the plaint shall not be dismissed but the suit shall be carried on with the name of the struck off public officer.
Since the requirement of the notice is simply procedural and not substantive, and since it is for the benefit of the public official or the community, it is open to government and public officials to waive it. If the defendant wants to rely on the invalidity of the notice, it is for him to raise a specific issue on the point, this was held in the case of Lalchand v. Union of India. Section 81 of CPC, 1908 (Exemption from arrest and personal appearance) It provides that, in a lawsuit against a public officer, he has an exemption from arrest and attachment of his property until the execution of a decree from any act which is intended to be done in his official capacity, i.e. act of public officer as mentioned above. Furthermore, if the defendant who is a public officer cannot absent himself from his duty, during the ongoing suit he will be exempted from personal appearance.
To know the difference between Order and Decree visit here
Order XXVII of CPC, 1908-
Rule 1 of CPC- Suits by or against the government, provides that if any suit by or against the government, the plaint or the written statement should be signed by a person, as the government by general or special order, appoint in this behalf. In the case, it was held that the sanction to sign must be prior to the institution, and if not complied with this, the signing shall be by an incompetent person, and further, issuing of a retrospective sanction will not preserve the defect. Government pleader is an agent under order 27 of CPC ,1908. The pleader for government acts as an agent to receive proceedings issued against government. He is also the only person to report the court that he represents the government and that no stamped lawyer or vakalatnama is necessary for the same. In the aforementioned case, it was held that when a person other than the pleader of the government wishes to act as an agent, it is only possible when the agent of the government informs the Court that the former acts under his direction.
Order 27 Rule 2 lays down the person who is allowed to act for the Govt. In respect of any judicial proceeding, it shall be deemed to be a recognized agent by whom, on behalf of Govt, appearance, acts and applications may be made under this Code.
Rule 5 of Order 27 states that the court must give a reasonable time to govt. To address the plaint in order to make contact between government and government pleader. The time shall not exceed 2 months.
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The benefit of Rule 5 is available to the government as:
Rule 5A states that if the suit is against a public official in respect of any act claimed to have been performed by him in his official capacity. shall be joined as a party to a suit. Rule 5B provides that any case against a govt is a duty of a court. Or public official acting in his official capacity to attempt the settlement of disputes between the parties at first instance. Therefore, if, at any point of the trial, it appears that there is a reasonable possibility of resolution between the parties’ court, the case will be adjourned for such a period as to allow attempts to resolve a dispute.
Comments and Suggestions-
The provision introduced in Section 80 is considered to be a significant addition, since it served as an added advantage in dealing with the case, clauses (2) and (3) were added to Section 80 by the 1976 amendment. Subclause (2) has been inserted for the purpose of allowing the suit to be launched without warning, but it must be approved only after providing a reasonable opportunity for relief of showing cause in respect of relief claimed. Sub-section (3) on the other hand prohibits the dismissal of a suit where the notice has been served but suffers from certain technical deficiencies.
It should also be taken into account that there are multiple instances where the government and public officials have widespread abuse and misuse of the section concerned to dispose of the lawsuit on the grounds of technicality, and this aspect of the law should be given more attention in order to address the negative aspects therein. Moreover, sub-section (3) was included in the Section in order to offer a better clarification that no suit against the government or a public officer can be dismissed merely on the grounds of existence of defect or error in the notice.
The Article has explained the provisions in detail about the litigation against and by govt. and
public officer acting in purporting to his official duty. After reviewing the provision as stated,
we understand that for any suit against a govt. first of all it is necessary that party should be name according to section 79 of CPC. The project starts off by saying what exactly is stated in Section 80(1) which explains how a suit must be filed.
In addition to instituting a lawsuit against govt. Or public official acting in the exercise of his official duty is obliged to give 2 months prior notice. The only exception to this rule is provided in 80(2) after the amendment of 1976. The amendment is helping hand so that justice can be done as early as possible.
After concluding the above topics, this Article 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. Moreover, Article has provided us about procedure given under rule 27 and other privileges given to parties i.e. under Section 81 & 82 of the code.
– Aryan Rakesh
- 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