Suits by and against the Government and Public Officers

In one line

Before you sue the Government, or a public officer for something done in his official capacity, you must give two months' written notice, and your plaint must say that you did.

Why the Code requires it

The purpose is to give the Government a chance to look at the claim and settle it without litigation. A department served with a proper notice can examine the file, take advice, and pay or explain, which is cheaper for everyone than a suit. It also protects a public officer from being sued at once for an act done in the course of his duty.

That purpose is worth stating in an answer, because it explains the shape of the section: two months to consider, a notice that contains enough to be considered, and an exception where waiting would defeat the claim.

Who is named: section 79

Section 79 provides that in a suit by or against the Government the authority to be named as plaintiff or defendant 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.

So the party is the Union of India or the State by name, not a Ministry, not a department, and not a Secretary. Naming the wrong entity is a common and easily avoided error.

The notice: section 80(1)

Section 80(1) provides that, save as otherwise provided in sub-section (2), no suit shall be instituted against the Government, or against a public officer in respect of any act purporting to be done by him 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, the proper authority.

Who gets the notice:

(a) for a suit against the Central Government, except where it relates to a railway, a Secretary to that Government (b) where it relates to a railway, the General Manager of that railway (c) for 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, the notice is delivered to him or left at his office.

What the notice must state, and this is the part exam answers must reproduce:

• the cause of action
• the name, description and place of residence of the plaintiff
• the relief which he claims

And the plaint shall contain a statement that such notice has been so delivered or left. That last requirement is a pleading requirement and it is separate from the notice itself. A plaintiff who gave a perfect notice and forgot to plead it has still not complied with the section.