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Suit by or against government

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Adeeb ul hasan

A3256118044

Suits by or against Government:

Section 79 provides for suits by or against government. According to which, in a suit by or
against the Government, the authority to be named as plaintiff or defendant, shall be, in case
of suits against Central Government, the Union of India and in case of State Government, that
particular State.

Scope: Section 79 does not enlarge or affect the extent of the claims or liabilities enforceable
by or against the Government; they have to be determined under Articles 294-300 of the
Indian Constitution. This section simply provides the procedure where a suit is to be
instituted by or against the Government. The section gives no cause of action but only
declares the mode of procedure when a cause of action has arisen.1

The court should never extend indulgence to Government so as to give the impression to
public that it is a favoured litigant. It is equally necessary to insist that Government does its
duties efficiently so that public interest may not suffer.2

Suits when lie against Government?

Suits lie against the Government, when it acts under the colour of legal title and not as a
sovereign authority. The Government will be liable for torts committed by its servant in the
course of their employment, provided it is not connected with the sovereign powers of the
State.3

There is no provision of the statue under which President of India can be made a party in the
civil proceedings even though the contracts or agreements are executed on behalf of the
Union of India in the name of the President as provided under Art. 299 of the Constitution.
Impleading the President of India as a party is wrong and illegal and any notice served on
him is of no consequence.4

Distinction between S. 79 and S. 80:

Section 79 covers the subject of the authorities which are to be named in a suit filed by or
against the Central Government or State Government. Section 80, on the other hand, is not a
1
Jehangir v. Secretary of State, 6 Bom. L.R. 131
2
1970 Ker LJ 142
3
State of Rajasthan v. Vidyawati, AIR 1962 SC 933
4
Union of India v. Sh. Surinder Chand Mehra, AIR 1985 P. & H. 68
procedural provision but a substantive provision. It interdicts, inter alia, institution of suits
unless compliance is made with its provisions when the suits arise out of causes of action
against certain Governments. In Raghunath Das v. Union of India5 it was held by the
Supreme Court that, Sec. 80 must be strictly complied with but, it was added, strict
construction does not mean that it should be construed in a pedantic manner divorced from
common sense.6

Suit against Railway:

A suit against the Indian Railways administration has to be brought against and in the name
of the Union of India as it is owned by the Central Government. It can be sued in the Court
within whose territorial jurisdiction the headquarters of one of the railways run by the Union
is situated.7

Act of the State:

Act of State, includes two main classes of acts – acts which are capable of being done by a
private individual and acts which only the Government can perform, such as the making the
treaties and the declaration of war. The test whether an act is or not an act of State excluding
the jurisdiction of the Court is whether it is an act of the State in those external relations,
which municipal or positive law addressed, does not profess to regulate.

Acts of State, properly so called, are never justiciable in Courts of law or municipal Courts of
the country and the State is not answerable to them. There the immunity is absolute.

Jurisdiction: A suit against the Government can only be brought in Court in the jurisdiction of
which the cause of action arises.8

Section 80:

Object:

The object of the notice under Section 80, is to give to the Government or the public servant
concerned an opportunity to reconsider its or his legal position and if that course is justified

5
AIR 1969 SC 674
6
Kanhaiya Lal Oswal, Messer’s v. Government of India, AIR 1975 Guwahati 37
7
Union of India v. Sri Ladulal Jain, AIR 1963 SC 1683
8
Subbaraya Mudali v. Government, 1 M.H.C.R. 286
to make amends or settle the claim out of court 9 so that the parties may be saved from
unnecessary litigation.10

The legislative intention behind this section is that public money and time should not be
wasted on unnecessary litigation and the Government and the public officers should be given
a reasonable opportunity to examine the claim made against them lest they should be drawn
into avoidable litigations. The section is not intended to be an instrument of oppression
against the subject.11

The primary point for consideration is whether the notice gives sufficient information as to
the nature of the claim such as would enable the recipient to avoid litigation. So long as the
notice substantially informs the defendant of the nature of the suit and the grounds of
complaint, the legal requirement would stand satisfied.12

It is the duty of the State to receive the notice under Section 80 of the Code of Civil
Procedure and also any error or defect in such a notice could not be permitted to be treated as
an excuse for defeating a just claim.13

Section 80 has become a ritual because the administration is often unresponsive and hardly
lives up to the Parliament's expectation in continuing Section 80 in the Code despite the
Central Law Commission's recommendations for its deletion. Indeed it should be a directive
on the part of the State to empower its law officer to take steps to compose disputes rather
than continue them in Court. This exactly is the object and purpose of giving a notice before
suit.14

Scope:

The words used in Section 80 are wide and unambiguous; they are ‘express, explicit and
mandatory’.15 There are two parts of the section. One in regard to the institution of the suit
against the Government and the other against a public officer.

9
Beohar Rajendra Sinha v. State of Madhya Pradesh, AIR 1960 SC 1256
10
New India Assurance Co. v. D. D. Authority, AIR 1991 Del 298 at 281
11
Lady Dinbai Dinshaw Petit v. The Dominion of India, AIR1951Bom72.
12
Union of India v. Jiwan Ram, AIR 1958 SC 905
13
Jesraj Subhachand v. Union of India, AIR 1978 Cal 536.
14
Karnataka Board of Wakfs, Bangalore v. B.C. Nagaraja Rao, AIR 1991 Kant 400
15
Sawai Singhai v. Union of India, AIR 1966 S.C. 1068
No suit can be instituted against the Government or, as a matter of that, against the State or
the Union until the expiration of two months next after notice in writing has been given to the
proper authority. It matters little whether the suit relates to the past action of the Government
or is in relation to the threatened action or injury. But if the suit is to be filed against a public
Officer, notice is mandatory only when it is in respect of any act purporting to be done by
such public officer in his official capacity. If the act is not one purporting to be done by the
officer in his official capacity, no notice is necessary. 16 In view of the provisions of the
General Clauses Act, the expression 'act' also includes illegal omissions. Therefore if the suit
does not relate to any 'act' or 'illegal omission' purporting to be done by a public officer in his
official capacity, Section 80 will not have any application.17

Section 80 does not define the rights of parties or confer any rights on the parties. It only
provides a mode of procedure for getting the relief in respect of a cause of action. A notice
under Section should be given before the institution of the suit.18

Where, a suit is filed before the expiration of the period of notice contemplated by Section
80, there is no alternative to the Court but to reject the plaint under Order VII, Rule 11(d) of
the Code. Similarly where the notice has not been served as required under the section the
Court has no jurisdiction to stay the proceedings, instead the plaint should be rejected under
Rule 11 of Order VII.19

The section can obviously have no application to the continuation of a suit properly instituted
when at the time of the institution the Government was not a necessary party. If the
Government was a necessary party against whom the plaintiff sought relief or must be
deemed to have sought relief, then, the fact that the Government was not made at the
inception a party, but was subsequently added as a party would not make any difference in
principle. In such cases, the suit must be deemed to have been instituted against the
Government only when the Government is made a party, and obviously Section 80 would
apply to such a case and the Government would be entitled to the two months' notice. But in a
case where on the date of the institution of the suit, the plaintiff could not have claimed, and
did not claim, any relief against the Government and therefore no notice under Section 80
was necessary, but if it transpires during the pendency of the suit that the interest of the

16
State of Bihar v. Jiwan Das Arya, AIR 1971 Pat 141.
17
Amalgamated Electricity Co v. Municipal Committee Ajmer, AIR 1969 SC 227
18
Sabhu v. Ramsa, AIR 1953 HP 123
19
State of A.P. v. G.V. Surya Narayana, AIR 1965 SC 11
defendant has devolved on the Government, either by voluntary act of the Government or by
operation of law, there is no fresh institution of the suit as against the Government. The
Government only steps into the shoes of the party whose interest has devolved on it. Because
in such a case there is no institution of a suit against the Government at the time when it is
brought on record in the pending suit, Section 80 cannot have any application.20

The notice must be reasonably construed. Any unimportant error or defect cannot be
permitted to be treated as an excuse for defeating a just claim. In considering whether the
provisions of the statute are complied with, the Court must take into account the following
matters in each case (1) whether the name, description and residence of the Plaintiff are given
so as to enable the authorities to identify the person serving the notice; (2) whether the cause
of action and the relief which the Plaintiff claims are not set out with sufficient particularity:
(3) whether a notice in writing has been delivered to or left at the office of the appropriate
authority mentioned in the section: and (4) whether the suit is instituted after the expiration of
two months next after notice has been served, and the plaint contains a statement that such a
notice has been so delivered or left.21

No doubt it would be open to a Court not to decide all the issues which may arise on the
pleadings before it if it finds that the plaint on the face of it is barred by any law for instance
the plaint does not show that notice under Section 80 of the Code of Civil Procedure claiming
relief was served in terms of the said section, it would be the duty of the court to reject the
plaint recording an Order to that effect with reason for the order. In such a case the court
should not embark upon a trial of all the issues involved and such rejection would not
preclude the Plaintiff from presenting a fresh plaint in respect of the same cause of action.
But, where the plaint on the face of it does not show that any relief envisaged by Section 80
of the Code is being claimed, it would be the duty of the court to go into all the issues which
may arise on the pleadings including the question as to whether notice under Section 80 was
necessary. If the court decides the various issues raised on the pleadings, it is difficult to see
why the adjudication of the rights of the parties, apart from the question as to the applicability
of Section 80 of the Code and absence of notice there under should not operate as res judicata
in a subsequent suit where the identical questions arise for determination between same
parties.22

20
S.S.Velayudham Pillai v. The Governor General in Council, AIR 1952 Mad 783.
21
Beohar Rajendra Sinha v. State of M. P., AIR 1960 SC 1256
22
Gangappa Gurupadappa Gugwad Gulbarga v. Respondent: Rachawwa, Widow of Lochanappa Gugwad, AIR
1971 SC 442
Public sector undertakings are not Government e.g. State Electricity Board is not Government
for the purposes of this section or its officers are public servants.23

Contents of notice:

Notice under Section 80 must contain the following facts (i) Name, and sufficient address to
identify the Plaintiff (ii) reasonably sufficient particulars disclosing cause of action and (iii)
all reliefs claimed. With regard to the requirement (ii) and (iii) it must be admitted that the
notice under Section 80, Code of Civil Procedure is not a pleading and need not be a verbatim
copy of the plaint, but having regard to the object for which Section 80 is enacted, it must
contain such details of facts which will be sufficient to inform the parties regarding the nature
and basis of the claim and the relief sought. If the notice is not in full compliance with the
requirement of Section 80, Code of Civil Procedure it becomes invalid. The position then
would be as if no notice under Section 80, Code of Civil Procedure had at all been issued and
consequently, the suit is bound to fail.

'Cause of action' in the context of Section 80 Civil Procedure Code must be given a "popular"
meaning, namely, that it is that act by doing which or by not doing which the defendant
furnishes the Plaintiff, so to speak, the motive to file a suit.24

Section 80 requires to state the cause of action and the plaint is to contain a statement that
notice has been delivered or left. The service of notice may form a part of the cause of action
for the purpose of jurisdiction. However, if the delivery of the notice was part of the cause of
action then how the whole cause of action could be stated in the notice because it would have
to be stated before the notice was sent.25

Section 80 does not require that the name or any other particular of the Defendant should be
furnished. It only requires that the notice must be delivered to the proper authority or person
mentioned in the section. Apart from this notice must be served to the proper person at his
appropriate office.

Section 80, according to its plain meaning requires that there should be identity of the person
who issues the notice with the person who brings the suit. Where an individual carries on

23
V. Padmanabhan v. Kerala S. E. B., AIR 1989 Ker 86.
24
Dominion of India v. L. Badu Lal, AIR 1962 All 461
25
Jaharlal Pagalia v. Union of India, AIR 1959 Cal 273
business in some name and style the notice has to be given by the individual in his own name,
for the suit can only be filed in the name of the individual.26

In case it is not necessary for the Plaintiff to give particulars of negligence or misconduct in
the plaint, it would not be necessary to give such particulars in the notice, and a mere
allegation of negligence or misconduct shall be sufficient and the notice under Section 80,
Code of Civil Procedure not containing particulars thereof shall be valid. When it is not
necessary for the Plaintiff to give particulars of negligence or misconduct in the notice, the
giving of incomplete or insufficient particulars shall not invalidate the notice.27

Waiver of notice:

Notice under Section 80 can be waived by the party for whose benefit it is intended. There is
no doubt that even though the provisions of Section 80 are mandatory, the provisions are
made for the benefit of the party, namely, the State or the public officer, as the case may be,
and in a given case it is open to the party for whose benefit the provision has been made to
waive the compliance with the requirements of such a provision.28

The plea of want of notice under Section 80 Code of Civil Procedure, must be taken at the
earliest possible opportunity and must be specifically pleaded. Where such a plea is taken by
the defendant at a very late stage of the suit and at a time when the Plaintiff would be
precluded by the law of limitation from bringing a further suit against the defendant, the
Defendant must be deemed to have waived the privilege of notice. 29 However, it has been
observed by the Privy Council that merely because an objection with regard to non-
compliance with the provisions of Section 80 has been taken late an inference to waiver
cannot be drawn.30

Act done in official capacity:

It is clear that the words "purporting to be done by such public officer" in Section 80, of Code
of Civil Procedure, refer to some act already done by the public officer. The word 'purporting'
also makes it clear that that section refers to an act done by a public officer.31

26
S.N. Dutt v. Union of India, AIR 1961 SC 1449
27
Sahu Vanaspati Traders v. Union of India (UOI), AIR 1966 All 333
28
Paleti Sivaramkrishnaiah v. Executive Engineer, AIR 1978 AP 389
29
Purna Chandra Sarkar v. Radharani Dassya, AIR 1931 Cal 175.
30
Vallayan Chettiar v. Government of the Province of Madras, AIR 1947 PC 197
31
Bai Jilekhabai Aderman v. Competent officer, AIR 1961 Guj 85
If a public officer has jurisdiction to do certain things and in exercise of that jurisdiction, he
does a thing wrongly or even with mala fides, Section 80 will apply to his case whereas, if he
has at all no jurisdiction to do the thing, there is no room for application of the section even
though he pretends to be doing certain act in his capacity as a public officer.32

When an officer does certain act within his jurisdiction but he exceeds his jurisdiction or acts
irregularly or maliciously, a notice under Section 80 is necessary.

The offence alleged to have been committed must have something to do, or must be related to
some manner, with the discharge of official duty. It must not matter even if the act exceeds
what is strictly necessary for the discharge of the duty, as this question will arise only at a
later stage when the trial proceeds on the merits. What the court must find out is whether the
act and the official duty are so inter-related that one can postulate reasonably that it was done
by the accused in the performance of the official duty, though possibly in excess of the needs
and requirements of the situation.33

Period of two months:

The bar under Section 80 is against the institution of the suit itself. Section 80 specifies the
period after which a suit to which Section 80 applies can be instituted. The words "until the
expiration of two months next after notice in writing has been delivered to or left at” are not
without significance. The effect of these words in Section 80, therefore, clearly is that unless
the period of two months next after the delivery of the notice either to the Government or to
the public officer concerned expires, the section prohibits the institution of the suit.

Thus, it is well-settled that a suit against the Government instituted during the currency of
notice under Section 80 is not maintainable and must be dismissed in limine.34

While computing the 'expiration of two months' both the terminal dates are to be excluded35

Where in a suit the Government as well as private individuals are parties, period of two
months' time for notice under Section 80, would be excluded in computing the period of
limitation against the private individual also.36

32
Mohanta Raghabananda Das v. D.V.A. Naidu, AIR 1961 Ori 31
33
Matajog Dobey v. H.C. Bhari, (S), AIR 1956 SC 44
34
Bihar v. Kamakshya Narain Singh, AIR 1950 Pat 360
35
Jai Charan v. State of U.P., AIR 1968 SC 5
36
T. P. K. Nair v. Union of India, AIR 1991 Ker 80 at 82
Service of notice:

Personal service is not a condition precedent for the purposes of compliance of provisions of
Section 80 (1). The notice under the section can be delivered at the office of the defendant
Government. Also, in view of the provisions of Section 27 of the General Clauses Act, the
notice can be served by getting it delivered through registered post. When the service is being
made through the Collector, it should be done to the Collector of the district where cause of
action has arisen.37

Leave of Court:

Sub-section (2) provides that a suit to obtain an urgent or immediate relief against the
Government or any public officer 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 the public officer,
as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed
for in the suit. It is, however, 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 requirement of Sub-section (1).38

Amendment of plaint after notice U/s 80 being issued:

Where the plaint is amended by the plaintiff on account of new facts coming to his
knowledge, fresh notice to defendant under Section 80 is not required or where a plaint is
amended owing to facts which have arisen subsequent to the institution of the suit a fresh
notice under Section 80 need not be served by the plaintiff.39

The suit may be proceeded with if notice has been given, but the fact of delivery of notice has
not been pleaded, if, subsequently, the plaint is amended by pleading that fact. 40 Also where
some pleas are deleted by way of amendment it is not necessary to serve a fresh notice on the
Government or public officer.41

37
State of U. P. v. Raja Ram Lal, AIR 1966 All 159 at 161
38
K.K. Sharma v. Punjab State, AIR 1989 P & H 7
39
Lalchand Chowdhury v. Union of India, AIR 1960 Cal 270
40
Bholaram Chowdhury v. Administrator General, 8 Cal WN 913
41
State of Rajasthan v. Associated Stone & Co., AIR 1971 Raj 128.
However, when a State Government or public officer is impleaded as party during the
pendency of suit the plaintiff must serve on him two months' notice under Section 80
otherwise the suit becomes not maintainable42

Notice in railway claims:

In railway claim matters, the disputes which are covered under the Railway Claims Tribunals
Act, 1987, there is no necessity of serving notice under Section 80 of the Code as the
application before the tribunal constituted under said Act is not a suit. However, in other suits
before Court's notice under Section 77 of the Railways Act and under Section 80 of the Code
of Civil Procedure are mandatory and must be given to Union of India through the General
Manager of the concerned railway.43

Requirement of notice in case of UT’s:

Section 55 of the Union Territory Act, 1963 makes it clear that all suits and proceedings in
connection with administration of Union territory are to be instituted against the Government
of India. The expression "Government of India" cannot refer anything other than the Central
Government and as such a notice under Section 80 of the Code of Civil Procedure must be
given through its Chief Secretary to the Government of the union territory against whom the
suit is filed by impleading Union of India as the defendant.44

42
Smt. Sooraj v. S.D.O., Delhi, AIR 1995 SC 872 at 873.
43
State v. Southern Railways, AIR 1976 SC 2538
44
Kanhaiya Lal v. Government of India, AIR 1975 Gau 37