CENTRAL UNIVERSITY OF SOUTH BIHAR

PROJECT-TOPIC

“Suits by or against Government”

Submitted To Course Instructor Submitted By Student

Mr. Deep Narayan Mayank Shekhar
(Assistant Proffessor) CUSB1613125029
School of Law and Governance C.P.C, 1908
 ACKNOWLEDGEMENT
At this point of time I would like to express my gratitude to all those who gave me their
support to complete this project.

I am grateful to my Civil Procedure Code,1908 teacher who is Mr. Deep Narayan for
giving me permission to commence this project in the first instance and to do necessary
study and research. I want to thank law faculty members and other faculty members for
all their professional advice, value added time, effort and enterprise help, support, interest
and valuable hints that encouraged me to go ahead with my project.

I am deeply indebted to my colleagues for their meticulous planning, layout, presentation

and above all for their consideration and time.

My heartfelt appreciation also goes to seniors and my classmate for their stimulating
suggestions and encouragement which helped me at each level of my research and in
writing of this project.

Especially, I would like to give my special thanks to my parents, family members and
god whose patient love enabled me to complete this project.

I have tried my best to enclose practical approach of Civil Procedure Code, 1908 and also
theoretical approach to my project.

(Signature of the Student)

 PREFACE
The objective of the project was to study the concept of suit by or against the government
in a democracy like India. The objective of the study was to critically examine the
applicability of the same in today’s perspectives.

The project was started on 4th of October 2018 after knowing relevant information
regarding the project, under the guidance of my Civil Procedure Code, 1908 teacher Mr.
Deep Narayan.

The first part of my project involves the study of need and background of suit filing by a
person under c.p.c provisions in India . For this I used books as a primary source and
secondary source are reports of various commissions, journals.

Since, the next part of my project involves the study of various cases and the
judgement”. For this I used books as a primary source and a secondary source are reports
of various commissions, journals.

Most important part of my project was analysing the information with regard to Indian
Judicial Activism against government.

Mayank Shekhar
 INTRODUCTION

Sections 79 to 82 and Order 27 of the Code lay down the procedure where suits are brought by or
against the Government or public officers. The provisions, however, prescribe procedure and
machinery and do not deal with rights and liabilities enforceable by or against the Government.
Substantive rights are to be determined in accordance with the provisions of the Constitution

In ordinary suits, ie, suits between individuals and individuals, notice need not be given to the
defendant by the plaintiff before filing a suit. Section 80 of the Code however, declares that no
suit shall be 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, until the expiration of two
months next after notice in writing has been delivered to, or left at the office of concerned
department of the Government.

Section 80 of the Code enacts a rule of procedure and clarifies that no suit shall be instituted
against the Government or against a public officer until a statutory notice required by the section
is served. The section enumerates two types of cases:

Suits against the Government; and suits against public officers in respect of acts done or
purporting to be done by such public officers in their official capacity.

Regarding the first class of cases, the notice must be given in all cases. Regarding the second
class of cases, however, notice is necessary only where the suit is in respect of any act
‘purporting to be done’ by such public officer in the discharge of his duty, and not otherwise

The expression “any act purporting to be done by such public officer in his official capacity"
takes within its sweep acts as also illegal omissions. Likewise, it also covers past as well as
future acts. All acts done or which could have been done under the colour or guise by an officer
in the ordinary course of his official duties would be included therein. If the allegations in the
plaint relate to an act purporting to be done by a public officer, whatever the relief prayed for, the
section is attracted and a notice is mandatory. Again, act does not mean any particular specific
or instantaneous act of a person but denotes a series of acts. Such acts must be bona fide and they
must have some nexus with the duty of the officer. The expression “any act purporting to be
done by such public officer in his official capacity" connotes that the act must be such as could
ordinarily be done by a person in the ordinary course of his official duties. It does not cover acts
outside the sphere of his duties. “There must be something in the nature of the act complained of
which attaches to the official character of the person doing it

The primary object underlying Section 80 is to afford an opportunity to the Government or the
public officer to consider the legal position and to settle the claim put forward by the prospective
plaintiff if the same appears to be just and proper. The Government, unlike 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. The legislative intent behind the provision is that public money should not
be wasted for unnecessary litigation. The section has been intended to alert the Government or
public officer to negotiate just claims and to settle them if well-founded without adopting an
unreasonable attitude by inflicting wasteful expenditure on the public exchequer.
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

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
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
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

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
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
make amends or settle the claim out of court9 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

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, AIR1978Cal536.
14
Karnataka Board of Wakfs, Bangalore v. B.C. Nagaraja Rao, AIR 1991 Kant 400
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.

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.16In 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

15
Sawai Singhai v. Union of India, AIR 1966 S.C. 1068
16
State of Bihar v. Jiwan Das Arya, AIR1971Pat141.
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
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 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

20
S.S.Velayudham Pillai v. The Governor General in Council, AIR1952Mad783.
21
Beohar Rajendra Sinha v. State of M. P., AIR 1960 SC 1256
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

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

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
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
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

25
Jaharlal Pagalia v. Union of India, AIR1959Cal273
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
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

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 sectioneven 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 80is 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.
30
Vallayan Chettiar v. Government of the Province of Madras, AIR 1947 PC 197
31
Bai Jilekhabai Aderman v. Competent officer, AIR1961Guj85
32
Mohanta Raghabananda Das v. D.V.A. Naidu, AIR1961Ori31
33
Matajog Dobey v. H.C. Bhari, (S), AIR 1956 SC 44
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

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,

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
37
State of U. P. v. Raja Ram Lal, AIR 1966 All 159 at 161
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

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:

38
K.K. Sharma v. Punjab State, AIR1989P&H7
39
Lalchand Chowdhury v. Union of India, AIR1960Cal270
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
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

44
Kanhaiya Lal v. Government of India, AIR 1975 Gau 37
 CONCLUSION

Due to widespread misuse and abuse by the Government and Public officers of this section to
dispose of litigation on grounds of technicalities, sub-section (3) to Section was inserted by the
Code of Civil Procedure (Amendment) Act, 1976. It clarifies that not suit instituted against the
Government or public officer shall be dismissed merely on the ground of error or defect in the
notice, if, in such notice, the name, description and residence of plaintiff had been so given as to
enable the authority or public officer to identify the person serving the notice and such notice has
been delivered or left the officer of authority or public officer concerned.

The Article has defined the process of suit by or against a govt. and public officer acting in
purporting to his official duty. Article has explained the provisions in detail about the litigation
against and by govt. and public officer acting in purporting to his official duty. After examining
there provision as mentioned we have understand that for any suit against a govt. first of all it is
necessary that party should be name according to section 79 of CPC. Further to institutive a suit
against govt. or public officer acting in purporting to his official duty it is mandatory to give
prior notice of 2 month. The only exception to this rule is provided by addition of 80(2) after the
amendment of 1976. The amendment is helping hand so that justice can be done as early as
possible. After concluding the above topics, this Article attempts to elucidate about the various
aspects of these types of suits. It speaks about whether rights granted under this can be waived,
the forms in which notices can be served and also the modes in which these have to be served.
Moreover Article has provided us about procedure given under rule 27 and other privileges given
to parties i.e. under Section 81 & 82 of the code.