Section 79 to 82 and Order 27 of the Code, lay down procedure where suits are brought by or against the Government or Public Officers. The provisions do not deal with rights and liabilities enforceable by or against the Government but merely prescribe procedure and machinery.
II) Title of Suit: Section 79
79. Suits by or against Government—
In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be—
(a) in the case of a suit by or against the Central Government, the Union of India, and
(b) in the case of a suit by or against a State Government, the State.
III) Requirement of Notice: Section 80
Save as otherwise provided in sub-section (2), no suits shall be instituted against the Government (including the Government of the State of Jammu & Kashmir) or against a public officer in respect of any act purporting to be done by such 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—
(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 railway, the General Manager of that railway;
(bb) 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;
(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district;
and, 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; and the plaint shall contain a statement that such notice has been so delivered or left.
(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State
of Jammu & Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his
official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section
(1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit :
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).
(3) No suit 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 shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice—
(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.
IV) Object of Notice
State of Punjab V. Geeta Iron and Brass Works Ltd (1978)
The provision of notice thus is intended to alert the Governtment or public officer too negotiate first settlement or atleast have the courtesy to tell the potential outsider why his claim is being resisted.
V) Notice whether mandatory
State of A.P. V. Gundugola Venkata (1965)
As the SC has observed, “ The section is imperative and must undoubtedly be strictly construed; failure to serve a notice complying with the requirements of the statue will entail dismissal of the suit.”
VI) Law Commission’s View
The Law Commission noted that the section has worked hardship in a large number of cases where immediate relief was needed and did not favour the provision
VII) Essentials of notice
A notice under section 80 must contain the following :
i) Name, description and place of residence of the person giving notice
ii) A statement of the cause of action
iii) Relief claimed by him
State of A.P. V. Gundugola Venkata (1965)
In considering whether the essential requirements of the section have been complied with, the court should ask the following questions:
i) Whether the name, description and residence of the plaintiff are given so as to enable the authorities to identify the person giving the notice?
ii) Whether the cause of action and the relief which the plaintiff claims have been set out with sufficient particulars?
iii) Whether such notice in writing has been delivered to or left at the office of the appropriate authority mentioned in the section?
iv) Whether the suit has been instituted after the expiration of two months after a notice has been served and the plaint contains a statement that such a notice has been so delivered or left?
VIII) Act purporting to be done in official capacity
Illegal omissions are also part of the expression "any act purporting to be done by such public officer in his official capacity". It covers past as well as future acts. However, acts outside the sphere of duties of the public officer are not covered in this expression.
X) Writ Petition
A writ under Article 32 or 226 of the Constitution does not amount to a “suit” within the meaning of section 80 of the code. Hence, prior notice to the Government or Public Officer is not mandatory before filing a petition in the Supreme Court or in a High Court.
XII) Appeal and Revision
An order passed under Section 80 is not a decree neither a appealable order and hence no appeal lies against such order.
If a court subordinate to the High Court makes an order which is patently illegal and suffers from jurisdictional error, it can be corrected by the High Court.
XIV) Parties Order 27, Rule 1
1 . Suits by or against Government—
In any suit by or against the Government the plaint or written statement shall be signed by such person as the Government may, by general or special order, appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case.
XV) Procedure: Order 27
2 . Persons authorised to act for Government—
Persons being ex officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be the recognised agents by whom appearances, act and applications under this Code may be made or done on behalf of the Government.
3 . Plaints in suits by or against Government—
In suits by or against the Government instead of inserting in the plaint the name and description and place of residence of the plaintiff or defendant, it shall be sufficient to insert the appropriate name as provided in section 79.
4 . Agent for Government to receive process—
The Government pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court.
5 . Fixing of day for appearance on behalf of Government—
The Court, in fixing the day for the Government to answer to the plaint, shall allow a reasonable time for the necessary communication with the Government through the proper channel, and for the issue of instructions to the Government pleader to appear and answer on behalf of the Government and may extend the time at its discretion but the time so extended shall not exceed two months in the aggregate.
5A . Government to be joined as a party in a suit against a public officer—
Where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit.
5B . Duty of Court in suits against the Government or a public officer to assist in arriving at a settlement—
(1) In every suit or proceeding to which the Government, or a public officer acting in his official capacity, is a party, it shall be the duty of the Court to make, in the first instance, every endeavour, where it is possible to do so consistently with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.
(2) If, in any such suit or proceeding, at any stage, it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit, to enable attempts to be made to effect such a settlement.
(3) The power conferred under sub-rule (2) is in addition to any other power of the Court to adjourn proceedings.
6 . Attendance of person able to answer questions relating to suit against Government—
The Court may also in any case in which the Government pleader is not accompanied by any person on the part of the Government who may be able to answer any material questions relating to the suit, direct the attendance of such a person.
7 . Extension of time to enable public officer to make reference to Government—
(1)Where the defended is a public officer and, on receiving the summons, considers it proper to make a reference to the Government before answering the plaint, he may apply to the Court to grant such extension of the time fixed in the summons as may necessary to enable him to make such reference and to receive orders thereon through the proper channel.
(2) Upon such application the Court shall extend the time for so long as appears to it to be necessary.
8 . Procedure in suits against public officer—
(1) Where the Government undertakes the defence of a suit against a public officer, the Government pleader, upon being furnished with authority to appear and answer the plaint, shall apply to the Court, and upon such application the Court shall cause a note of his authority to be entered in the register of civil suits.
(2) Where no application under sub-rule (1) is made by the Government pleader on or before the day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit between private parties:
Provided that the defendant shall not be liable to arrest, nor his property to attachment, otherwise than in execution of a decree.
8A . No security to be required from Government or a public officer in certain cases—
No such security as is mentioned in rules 5 and 6 of Order XLI shall be required from the Government or, where the Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity.
8B . Definitions of "Government" and "Government pleader"— In this Order [unless otherwise expressly,
provided "Government" and "Government pleader" mean respectively—
(a) in relation to any suit by or against the Central Government, or against a public officer in the service of that Government, the Central Government and such pleader as that Government may appoint whether generally or specially for the purposes of this Order;
(c) in relation to any suit by or against a State Government or against a public officer in the service of a State, the State Government and the Government pleader as defined in clause (7) of section 2, or such other pleader as the State Government may appoint, whether generally or specially, for the purposes of this Order.
ORDER XXVIIA : SUITS INVOLVING A SUBSTANTIAL QUESTION OF LAW AS TO THE INTERPRETATION OF THE CONSTITUTION OR AS TO THE VALIDITY OF ANY STATUTORY INSTRUMENT
1 . Notice to the Attorney General or the Advocate- General—
In any suit in which it appears to the Court that any such question as is referred to in clause (1) of Article 132, read with Article 147 of the Constitution is involved, the Court shall not proceed to determine that question until after notice has been given to the Attorney General for India if the question of law concerns the Central Government and to the AdvocateGeneral of the State if the question of law concerns a State Government.
1A . Procedure in suits involving validity of any statutory instrument—
In any suit in which it appears to
the Court that any question as to the validity of any statutory instrument, not being a question of the nature
mentioned in rule 1, is involved, the Court shall not proceed to determine that question except after giving
(a) to the Government pleader, if the question concerns the Government, or
(b) to the authority which issued the statutory instrument, if the question concerns an authority other than Government.
2 . Court may add Government as party—
The Court may at any stage of the proceedings order that the Central Government or a State Government shall be added as a defendant in any suit involving any such question as it referred to in clause (1) of Article 132 read with Article 147, of the Constitution, if the Attorney General for India or the Advocate-General of the State, as the case may be, whether upon receipt of notice under rule 1, or otherwise, applies for such addition and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question of law involved.
2A . Power of Court to add Government or other authority as a defendant in a suit relating to the validity
of any statutory instrument—
The Court may, at any stage of the proceedings in any suit involving any such question as is referred to in rule 1A, order that the Government or other authority shall be added as a defendant if the Government pleader or the pleader appearing in the case for the authority which issued the instrument, as the case may be, whether upon receipt of notice under rule 1A or otherwise, applies for such addition, and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question
3 . Costs—
Where, under rule 2 or rule 2A the Government or any other authority is added as a defendant in a suit, the Attorney-General, Advocate-General or Government Pleader or Government or other authority shall not be entitled to, or liable for, costs in the Court which ordered the addition unless the Court, having regard to all the circumstances of the case for any special reason, otherwise orders.
4 . Application or Order to appeals—
In application of this Order to appeals the word "defendant" shall be held to include a respondent and the word "suit" an appeal.
In this Order, "statutory instrument" means a rule, notification, bye-law order, scheme or form made as specified under any enactment.