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 1
procedure when a cause of action has arisen.
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 3
course of their employment, provided it is not connected with the sovereign powers po wers of the State.
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 4
consequence.
1
Jehangir v. Secretary of State, 6 Bom. L.R. 131 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 2
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 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 5
Governments. In Raghunath Das v. Union of India 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 6
should be construed in a pedantic manner divorced from common sense. 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 7
situated.
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 abs olute. Jurisdiction: A suit against the Government can only be brought in Court in the jurisdiction of 8
which the cause of action arises.
5
AIR 1969 SC 674 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 6
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 to 9
make amends or settle the claim out of court so that the parties may be saved from unnecessary 10
litigation.
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 11
subject.
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 12
legal requirement would stand satisfied.
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 14
Court. This exactly is the object and purpose of giving a notice before suit.
9
Beohar Rajendra Sinha v. State of Madhya Pradesh, AIR 1960 SC 1256 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 10
Scope: The words used in Section 80 are wide and unambiguous; they are ‘express, explicit and 15
mandatory’. 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. 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 16
official capacity, no notice is necessary. 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 17
80 will not have any application.
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 18
Section should be given before the institution of the suit.
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
15
Sawai Singhai v. Union of India, AIR 1966 S.C. 1068 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 16
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 c ase 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 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 20
application.
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 21
left.
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
20
S.S.Velayudham Pillai v. The Governor General in Council, AIR 1952 Mad 783. Beohar Rajendra Sinha v. State of M. P., AIR 1960 SC 1256
21
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 22
identical questions arise for determination between same parties.
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 24
the Plaintiff, so to speak, the motive to file a suit.
22
Gangappa Gurupadappa Gugwad Gulbarga v. Respondent: Rachawwa, Widow of Lochanappa Gugwad, AIR 1971 SC 442 23 V. Padmanabhan v. Kerala S. E. B., AIR 1989 Ker 86. 24 Dominion of India v. L. Badu Lal, AIR 1962 All 461
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 25
before the notice was sent.
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 business in some name and style the notice has to be given by the individual in his own name, for 26
the suit can only be filed in the name of the individual.
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 27
insufficient particulars shall not invalidate the notice. 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 28
compliance with the requirements of such a provision.
25
Jaharlal Pagalia v. Union of India, AIR 1959 Cal 273 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 26
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 29
deemed to have waived the privilege of notice. However, it has been observed by the Privy Council that merely because an objection with regard to non-compliance with the provisions of 30
Section 80 has been taken late an inference to waiver cannot be drawn. 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 31
makes it clear that that section refers to an act done by a public officer.
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 32
pretends to be doing certain act in his capacity as a public officer.
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: 29
Purna Chandra Sarkar v. Radharani Dassya, AIR 1931 Cal 175. Vallayan Chettiar v. Government of the Province of Madras, AIR 1947 PC 197 31 Bai Jilekhabai Aderman v. Competent officer, AIR 1961 Guj 85 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 30
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 34
under Section 80 is not maintainable and must be dismissed in limine.
35
While computing the 'expiration of two months' b oth the terminal dates are to be excluded
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 36
against the private individual also. 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 37
arisen.
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, 34
Bihar v. Kamakshya Narain Singh, AIR 1950 Pat 360 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 37 State of U. P. v. Raja Ram Lal, AIR 1966 All 159 at 161 35
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 38
complying with the requirement of Sub-section (1).
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 39
need not be served by the plaintiff.
The suit may be proceeded with if notice has been given, but the fact of delivery of notice has 40
not been pleaded, if, subsequently, the plaint is amended by pleading that fact. Also where some pleas are deleted by way of amendment it is not necessary to serve a fresh notice on the 41
Government or public officer.
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 42
becomes not maintainable 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 43
concerned railway.
Requirement of notice in case of UT’s:
38
K.K. Sharma v. Punjab State, AIR 1989 P & H 7 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. 42 Smt. Sooraj v. S.D.O., Delhi, AIR 1995 SC 872 at 873. 43 State v. Southern Railways, AIR 1976 SC 2538 39
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 44
filed by impleading Union of India as the defendant.
44
Kanhaiya Lal v. Government of India, AIR 1975 Gau 37
