Suits by and against the Government and Public Officers
Chapter Twenty-Five
Syllabus topic 2.8, "Special suits, Orders XXVII to XXXIV"
Pages 139 to 143 of 365
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.
Suits by and against the Government and Public Officers
The exception for urgent relief: section 80(2)
Section 80(2) provides that a suit to obtain urgent or immediate relief against the Government or a public officer in respect of an act purporting to be done in his official capacity may be instituted with the leave of the Court without serving any notice under sub-section (1).
But the concession is carefully fenced. The Court shall not grant relief in the suit, whether interim or otherwise, except after giving the Government or the public officer a reasonable opportunity of showing cause in respect of the relief prayed for. And the proviso requires that where the Court is satisfied, after hearing the parties, that no urgent or immediate relief need be granted, it shall return the plaint for presentation after complying with sub-section (1).
So sub-section (2) does not abolish the notice. It defers it, under the court's supervision, and only for genuine urgency. A plaintiff who obtains leave and then turns out not to need urgent relief gets his plaint back.
Section 82: execution against the Government
Section 82 provides that where a decree is passed against the Union of India, a State, or a public officer in respect of an act purporting to be done in his official capacity, execution shall not be issued on the decree unless it remains unsatisfied for the period of three months computed from the date of the decree.
The reason is the same as for the notice: the Government is given time to pay through its own machinery before its property is touched.
Order XXVII: how such suits are conducted
Order XXVII carries the procedure. The main points are these.
A plaint or written statement in a suit by or against the Government shall be signed by such person as the Government may appoint and verified by any person acquainted with the facts whom the Government authorises.
The Government Pleader in any court is the agent of the Government for the purpose of receiving processes against the Government in that court.
Where the defendant is a public officer sued in respect of an official act, the Court shall, in fixing the day for his appearance, allow a reasonable time for communicating with the Government and for making a reply.
Order XXVII also directs the Court to assist in settlement. Where in a suit by or against the Government it appears that there is a possibility of a settlement, the Court shall grant time to the parties to enable them to arrive at one. That is the same policy as section 80, appearing again at a later stage.
Suits by and against the Government and Public Officers
Note also section 2(7), which defines Government Pleader, and Order III, on recognised agents and pleaders generally. See [Definitions] and [Parties to a Suit].
A worked example
Ganesh's shop is demolished by an officer of a State authority acting, he says, under a statutory power. Ganesh wants damages, and he also wants an immediate injunction restraining further demolition.
Whom does he sue? Under section 79(b), the State by name, and where he sues the officer personally for an act purporting to be done in his official capacity, the officer as well.
Must he give notice? Yes, under section 80(1). Two months' written notice, delivered to or left at the office of a Secretary to that Government or the Collector of the district, and delivered to the officer or left at his office. It must state the cause of action, his name, description and place of residence, and the relief claimed.
And in the plaint? He must plead that the notice was so delivered or left. Giving the notice is not enough on its own.
But the demolition is continuing today. Then section 80(2) applies. He may seek the leave of the Court to institute the suit without notice, because he seeks urgent and immediate relief. The Court can grant no relief, interim or otherwise, until the State and the officer have had a reasonable opportunity of showing cause.
Suppose the Court, after hearing both sides, finds there was no real urgency. The proviso to sub-section (2) requires it to return the plaint for presentation after complying with sub-section (1). He has lost time, not the claim.
He wins and obtains a decree. Section 82: no execution may issue until the decree has remained unsatisfied for three months from its date.
Change one fact. Suppose the officer had demolished the shop out of a private grudge and not under any colour of office. The act would not be one "purporting to be done in his official capacity", so section 80 would not protect him and no notice would be needed to sue him personally.
What it does not mean
The notice is not a formality to be waived by consent. It is a statutory condition on instituting the suit.
Section 80(2) does not abolish the notice. It permits institution with leave in cases of genuine urgency, and the plaint goes back if the urgency is not made out.
Giving the notice is not enough. The plaint must state that it was given.
Not every act of a public officer attracts the section. It applies to acts purporting to be done in his official capacity.
A decree against the Government is not immediately executable. Section 82 requires three months.
Suits by and against the Government and Public Officers
The department is not the party. Section 79 names the Union of India or the State.
The public officer's two protections: section 81
Section 81: in a suit instituted against a public officer in respect of any act purporting to be done by him in his official capacity:
(a) the defendant shall not be liable to arrest, nor his property to attachment, otherwise than in execution of a decree; and (b) where the Court is satisfied that he cannot absent himself from his duty without detriment to the public service, it shall exempt him from appearing in person.
Both limbs are narrow and both are worth stating: the protection covers only an act purporting to be done in his official capacity, and the arrest protection falls away once there is a decree to execute. The exemption from personal appearance sits beside the general exemptions in [Affidavits and Exemption from Personal Appearance], and the protection from arrest beside sections 56, 135 and 135A in [Arrest and Detention in Execution].
Quick revision## Quick revision
Section 79: the party is the Union of India for the Central Government, and the State for a State Government.
Section 80(1): two months' written notice before suing the Government, or a public officer for an act purporting to be done in his official capacity. Delivered to or left at the office of a Secretary to the Central Government, the General Manager where it relates to a railway, or a Secretary or the Collector of the district for a State; and on a public officer, to him or at his office. It must state the cause of action, the plaintiff's name, description and place of residence, and the relief claimed. The plaint must state that the notice was given.
Section 80(2): a suit for urgent or immediate relief may be instituted with the leave of the Court without notice; but no relief, interim or otherwise, until the Government or officer has had a reasonable opportunity of showing cause; and if no urgent relief is needed, the plaint is returned for compliance with sub-section (1).
Section 82: no execution against the Union, a State or such a public officer until the decree has remained unsatisfied for three months from its date.
Order XXVII: pleadings signed by a person the Government appoints and verified by a person acquainted with the facts; the Government Pleader is the Government's agent for receiving process; reasonable time allowed to a public officer to communicate with the Government; and the Court is to allow time where a settlement appears possible.
Test yourself
1. Who is named as the party in a suit against the Central Government? The Union of India, under section 79(a). In a suit by or against a State Government, the State is named, under section 79(b).
Suits by and against the Government and Public Officers
2. What is the legal requirement regarding notice in suits against the Government? Under section 80(1) no suit may be instituted against the Government, or against a public officer in respect of an act purporting to be done in his official capacity, until two months after a written notice has been delivered to or left at the office of the prescribed authority. The notice must state the cause of action, the name, description and place of residence of the plaintiff, and the relief claimed, and the plaint must contain a statement that the notice was so delivered or left.
3. On whom is the notice served in a suit against a State Government? On a Secretary to that Government, or on the Collector of the district.
4. Can a suit against the Government ever be filed without notice? Yes, under section 80(2), where urgent or immediate relief is sought, with the leave of the Court. But the Court may grant no relief, interim or otherwise, until the Government or the public officer has had a reasonable opportunity of showing cause, and if satisfied after hearing the parties that no urgent or immediate relief need be granted, the Court shall return the plaint for presentation after complying with sub-section (1).
5. When can a decree against the Government be executed? Not until the decree has remained unsatisfied for three months computed from the date of the decree, under section 82.
6. Does section 80 protect a public officer for every act? No. It applies to an act purporting to be done by him in his official capacity. An act done outside any colour of office is not protected, and no notice is required to sue him personally for it.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.