Suits by or against

Government
Suits by or against the Government or Public Officers in their Official
Capacity
Section 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.
Section 80 - Suits by or against Government

2 MONTHS
NOTICE SUIT
 Object of notice
• OBJECT OF NOTICE – “… to give the government or the public
officer concerned, an opportunity to reconsider the legal position
and to make amends or settle the claim, if so advised, without
litigation.

• When a statutory notice is issued to public authorities, they must

take the notice in all seriousness and they should not sit over it
and force the citizen to the vagaries of litigation.”
• “They are expected to let the claimant (who has given notice), know, what
stand to take, within the statutory period, or, in any case before the plaintiff
embarks upon litigation.

• The section has been enacted as a measure of public policy, with the object
of ensuring that before a suit is instituted against the government or a public
officer, the government or the officer concerned is afforded an opportunity
to scrutinise the claim and if it be found a just claim, to take immediate
action and thereby avoid unnecessary litigation and save public time and
money by settling the claim without driving the person who has issued the
notice to restitute the suit involving considerable expense and delay.
• “The Government, unlike the private parties, is expected to

consider the matter objectively and dispassionately and after

obtaining proper legal advice, it can take an appropriate decision in
the public interest within a period of two months allowed by the
section by saving public time and money and without driving a
person to avoidable litigation.”

• LEGISLATIVE INTENT – Public money should not be wasted for

unnecessary litigation.
Law Commission of India (14th and 27th reports)

• “did not favour in retaining the provision of issuing notice under Section
80 before filing a suit by the aggrieved party.

• …it noted that the section has worked hardship in a large number of cases
where immediate relief was needed

• The evidence disclosed that in a large majority of cases, the Government

or the public officer made no use of opportunity afforded by the section.

• In most cases, the notice remained unanswered.”

• Nevertheless, in spite of the recommendations of the Law
Commission, the said provision was retained supposedly “in public
interest.”
 Essential requirements under Section 80
• Contents of the notice u/s. 80, C.P.C.

(1) Name, description and place of residence of the person giving

notice;

(2) a statement of the cause of action; and

(3) relief claimed by him

 Questions as to ascertain essential requirements
(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?; and

(iv) Whether the suit has been instituted after the expiration of two
months after notice has been served, and the plaint contains a
statement that such notice has been so delivered or left?
Whether notice u/s. 80, C.P.C. is mandatory?
• Provisions of Section 80 are imperative in nature and must be strictly
complied with.

• They are express, explicit and mandatory in nature.

• “The section is imperative and most undoubtedly be strictly construed;

failure to serve a notice complying with the requirements of the

statute will entail dismissal of the suit.” (State of Andhra Pradesh v.
Gundugola Venkata AIR 1965 SC 11)
Construction of notice u/s. 80 C.P.C.

• Though, provisions of Section 80 must be strictly complied with,

nevertheless, it cannot be overlooked that it is a procedural provision,
a machinery which by which courts impart justice.

• A notice u/s. 80 should not be construed in a pedantic manner

divorced from common sense.
• ‘The provisions of Section 80 are not intended to be used a
bootstraps against ignorant and illiterate persons.’

• “The question has to be decided by reading the notice as a while in a

reasonable manner.

• If on such reading, the court is satisfied that the plaintiff has shown
to have given the necessary information which the stature requires
him to give to the defendants, inconsequential defect or error is
immaterial and it will not vitiate the notice.”
“act purporting to be done in official capacity”
• Expression, includes illegal omission.

TEST

Whether the officer can reasonably claim protection for his act or it
was performed by him purely in his private or individual capacity?
• In case of former, notice u/s. 80 is necessary and in case of latter, a
notice is not necessary.
“act purporting to be done in official capacity”
• Concise Oxford Dictionary –
to purport – to be intended to seem
• The words ‘any acts purporting to be done by such public officer in
his official capacity’
mean
any act ‘intended to seem’ to be done by him in his official capacity.
• “If the act was one such as is ordinarily done by the officer in the
course of his official duties, and he considered himself to be acting as
a public officer and desired other persons to consider that, he was so
acting, the act clearly ‘purports to be done in his official capacity.’
• …notice to a public officer is necessary in those cases only where the
suit is ‘in respect of any act purporting to be done by such public
officer in his official capacity.’

• So, this section would not apply where the suit does not relate to
any act or omission purporting to be done by a public officer in his
official capacity.
• So, a notice to a public officer is not necessary where the act done by
him is not within his sphere of authorities.
• Example
A public officer took possession of certain property.
He had no authority to seize such property.
He was sued for trespass.

Whether a notice has to be issued to the concerned officer in this case?

• “It was held that the suit was not against him in his official capacity
but as a private individual…”

• Therefore, no notice was necessary…

 Can notice u/s. 80, C.P.C. be waived?
• “It is settled proposition of law that the provision under Section 80,
Code of Civil Procedure is mandatory but the right can be waived by
the party for whose benefit it has been provided;

and no suit can be instituted without service of notice because such

service of notice either under Section 80 Code of Civil Procedure… is
required statutorily as a condition precedent.

It is competent for the government to waive notice.”

• “The right under Section 80 can be waived by the party for whose
benefit it is provided.”
 Form of Notice
• “A notice under Section 80 need not be in a particular form.”

• No form prescribed by the Code of Civil Procedure in that regard.

• ‘It is sufficient if the notice complies with the requirements of Section

80.’

• “It should contain details sufficient to inform the party of the nature
and basis of the claim and the relief sought.”
 Mode of service
• ‘A notice under Section 80 of C.P.C. should be delivered to or left at
the office of, the appropriate authority specified in Section 80.

• Notice can either be served personally or be sent by registered post.’

Law Commission’s Report (14th), 1958

“The Section has worked hardship in a large number of cases where

immediate relief by way of injunction against Government or a public

officer was necessary in the interests of justice…”

 Section 80(2)

“A suit to obtain an urgent or immediate relief against the Government

(including the Government of the State of Jammu and 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 (I);

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).
• OBJECT –

“To prevent failure or miscarriage of justice in urgent cases.

 If the leave is refused by the original court

• “The language of Section 80(2) of the Code leads us to hold that if leave is
refused by the original court, it is open to the superior courts to grant
such leave as otherwise in an emergent situation a litigant may be left
without remedy once such leave is refused and he is required to wait out
the statutory period of two months after giving notice.” [BAJAJ
HINDUSTAN SUGAR AND Industries Ltd. V. Balrampur Chini Mills Ltd. And
Ors. (2007) 9 SCC 43
State of A.P. and Ors. v. Pioneer Builders, A.P. AIR 2007 SC 113

• “Thus, from a conjoint reading of Sub-sections (1) and ( 2) of Section

80, the legislative intent is clear, namely, service of notice under Sub-
section (1) is imperative except where urgent and immediate relief is
to be granted by the Court, in which case a suit against the
Government or a public officer may be instituted, but with the leave
of the Court.

• Leave of the Court is a condition precedent.

• Such leave must precede the institution of a suit without serving notice.

• Even though Section 80(2) does not specify how the leave is to be sought
for or given yet the order granting leave must indicate the ground(s)
pleaded and application of mind thereon.

• A restriction on the exercise of power by the Court has been imposed,

namely, the Court cannot grant relief, whether interim or otherwise,
except after giving the Government or a public officer a reasonable
opportunity of showing cause in respect of relief prayed for in the suit.
 Section 80(3) - Technical defect in the notice

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 (I), 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.
• Object –

‘This sub-section has been added with a view to ensuring that just
claims of aggrieved parties will not be defeated on technical grounds.’
Law Commission Report (14th)

“It was also clear that in a large number of cases, Governments and
public offices utilized the section merely to raise technical defences
contending either that no notice had been given or that the notice
actually given did not comply with the requirements of the section.
These technical defences appeared to have succeeded in a number of
cases defeating the just claims of the citizens.”
• Report of the Joint Committee (01.04.1976)

“The Committee also feel that with a view to seeing that the just claims of many
persons are not defeated on technical grounds, the suit against the Government or
the public officer should not be dismissed merely by reason of any technical defect
or error in the notice or any irregularity in the service of the notice if the name,
description and residence of the plaintiff have been so given in the notice as to
enable the appropriate authority or public officer to identify the person serving the
notice, and the notice had been delivered or left at the office of the appropriate
authority, and the cause of action and the relief claimed have been substantially
indicated in the notice.”
 Writ petition and Suit: Notice

• “ A Writ Petition under Articles 32 or 226 of the Constitution cannot

be said to be a “suit” within the meaning of Section 80 of C.P.C.

• Hence, giving of prior notice to the Government or public officer is

not necessary before filing a petition in the Supreme Court or in a
High Court.”
Exclusion of period of notice/Computation of limitation

• “In computing the period of limitation for instituting a suit against

the Government or public officer, the period of notice has to be
excluded.”
 Section 81 - Exemption from arrest and personal appearance.—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 the defendant cannot absent
himself from his duty without detriment to the public service, it shall
exempt him from appearing in person.
• Section 82 – Execution of decree

(I) Where, in a suit by or against the Government or by or against a

public officer in respect of any act purporting to be done by him in his
official capacity, a decree is passed against the Union of India or a
State or, as the case may be, the public officer, such decree shall not
be executed except in accordance with the provisions of sub-section
(2)
 (2) Execution shall not be issued on any such decree unless it
remains unsatisfied for the period of three months computed from
the date of such decree.
• (3) The provisions of sub-sections (1) and (2) shall apply in relation to
an order or award as they apply in relation to a decree, if the order or
award—
(a) is passed or made against the Union of India or a State or a
public officer in respect of any such act as aforesaid, whether by a
Court or by any other authority; and
(b) is capable of being executed under the provisions of this Code or
of any other law for the time being in force as if it were a decree.
• Object – “The object of the section is to allow time and opportunity
to the Government or public officer to satisfy the decree amicably
before execution proceedings are started against them.”