Suits by or against Government or Public Officers in their official capacity

Abstract

The Civil Procedure Code has provided a comprehensive mechanism for every stage of a civil proceeding right from the institution of the suit to its conclusion. Sections 79 to 82 and Order 27 of the Code lay down the procedure of filing suits by or against the Government or Public Officers.

Section 79 of CPC is a procedural provision and thus, it does not deal with the rights and liabilities enforceable by or against the government. But at the same time, it declares a mode of the procedure when the cause of action arises. However, Section-80 of CPC is not a procedural provision but a substantive one, the rules involved in it and working of Section 80 will be discussed further. Order 27 includes under its purview various rules and subjects like that of recognized agents, attorney general and the procedure to be followed while the suit is being instituted by or against the government or public officers in their official capacity. The provisions regarding the same are analyzed and discussed below.

Analysis

Section 79 defines the concept of suits by or against the government: Whenever a case is filed against or by a government, the plaintiff and the defendant will be named in the case as follows:

• Whenever the case is instituted by or against the central government, the Union of India will be represented as the plaintiff or defendant as the case may be.
• Whenever the suit is filed by or against the state government, the state government will be represented as the plaintiff or defendant as the case may be.

By virtue of its procedural nature, mere compliance with the provision is sufficient. The Supreme Court laid down that the provision mandatorily requires the Government to be a party in such cases and that it is a settled principle that if the Government is not a party to such suits, then the litigation cannot be proceeded[1]. In the case of Chief Conservator of Forests, Government of A.P. v. Collector[2], Supreme Court has observed that the Section 79 of the Code is not merely a procedural formality, but more essentially a matter of substance and of considerable significance attached to how the Central or the State Government may sue or be sued as the case may be. In the case of Jehangir v. Secretary of State[3], it was observed that this section gives no cause of action but only declares the mode of the procedure to be followed when the cause of action arises.

Under Section 79, only the court within whose local limits, the cause of action arose, has the jurisdiction to try the suit and otherwise it cannot. In the case of Dominion of India v. RCKC Nath & Co.[4], it was held that words like ‘dwell’ or ‘reside’ or ‘carry on business’ which are mentioned in Section 18, 19 and 20 of code, do not apply to the government.

Section 80 with the concept of Notice. As per this Section, the institution of a suit against the government has no purpose if there has been no prior notice issued. In the case of an institution of a suit against a public officer in respect of an act done by him in his official capacity, notice has to be issued accordingly. The notice must be served two months prior to the institution of the suit and it has to be made sure by the party issuing it, that such a notice was delivered or left at the office of:

• Whenever the case is filed against the central government, and if the department of railways is not concerned, the notice should be delivered to the secretary of the government.
• Whenever a case has been instituted against the central government and it relates to the railway’s department, the notice is to be served to the general manager of that railways.
• Whenever the case is filed against any of the state governments then, the notice has to be served either to the secretary to that government or to the collector of the district, or any other officer authorized by that Government.
• in the case of instituting a suit against a public officer, notice must be served upon such a public officer.

The object of this Section is that there should be ample opportunity conferred on the part of the Secretary of the State or the Public officer to reconsider his legal position and the alleged wrong committed by such officer in order to make amends or settle the claim[5]. This may reduce the burden upon courts if the parties mutually sort it out, without any recourse to the courts. When a statutory notice is issued to public authorities, they are required to further take the notice in seriously. They cannot unreasonably force the citizen to the cumbersome process of litigation.

Notice, under the section, is required to contain the following details: name and residence of the plaintiff, description, the cause of action and the relief sought by the plaintiff. The notice is required to convey to its recipients, sufficient information to enable him to consider the claim[6]. These particulars should be given in such a way that it enables the authorities to identify the person giving the notice. In the cases of suits against public officers, 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[7].

The three essential requirements of the Section are:

• The addressee must be identified and should have received the communication.
• There should be no vagueness or indefiniteness about the person issuing the notice, who must also be the person filing the suit. The notice must contain the details specified in the Section.
• The two months’ period allowed must have expired before the suit is initiated.

A notice given prior to the arising of a cause of action is invalid[8]. Issuance of a notice is a condition precedent to the institution of a suit but it does not become a part of the cause of action itself. Whether or not it forms an integral part of the cause of action against the government will depend upon the scheme of the concerned statue and no rule of universal application can be laid down[9].

Section 81 of the Code provides for exemption from arrest and personal appearance for the public officers. They have an exemption from arrest and from the attachment of his property until the execution of the decree passed. Further if the defendant, a public officer cannot absent himself from his duty, then he can be exempted from personally appearing to the ongoing suit. Section 81 is, thus, considered as an important privilege given to a public servant. This can happen only if the Court believes that the person absenting himself from his duty will cause a loss to the public.

Section 82 provides if a decree is passed against such government or public officer in the suit, it will not be executed unless it remains unsatisfied for the period of three months computed from the date of passing such decree. The provision regarding the execution of decree will apply to an order or award passed by any court or authority or if it was capable of being executed under this Code or under any other law in force. The section has been amended so as to avoid certain cumbersome processes. Before the amendment, a court had to send a report to the state government before ordering[10]. The decree cannot be executed unless all the conditions are complied with[11].

Order 27 – Rule 1 provides that in a suit by or against the government, a plaint or written statement shall be signed by a person who has been appointed by the government. Further, it shall be verified by a person who is acquainted with the facts and appointed by the government for verification. A retrospective sanction cannot cure the defect[12]. The term acquainted is wide enough to mean acquainted with facts of the case with information received from others[13]. Rule 2 provides that the person authorized to act for the Government in respect of judicial proceedings shall be deemed to be the recognized agent by whom appearance, acts, and applications under the Code may be done on behalf of Government Order 27. The Government may authorize any person to act on its behalf[14]. Rule 3 provides that it is sufficient to insert the appropriate name as provided in section 79 of CPC, 1908 rather than providing all details[15].

Rule 4 provides that the government pleader appointed shall be the agent of Government for the purpose of receiving processes against the Government by Court. The term government pleader is an inclusive definition read with Order 27, Rule 4, Rule 8B(c)[16]. Rule 5 provides that the court must allow a reasonable time[17] not exceeding more than 2 months to the government to answer the plaint and make necessary communication between government and government pleader.

Rule 5A provides that in a suit against a public officer in respect of an act alleged to have been done by him in an official capacity, the government shall be joined as a party to the suit. Rule 5B provides that it is a duty of a court, in a case against the government or public officer acting in an official capacity, to make an attempt at first instance to settle disputes between parties[18].  Rule 6 provides that the court can direct a person who is able to answer any material question relating to the suit against a government to attend the proceedings. Rule 7 provides that public officers can apply to the court to grant an extension of time upon receiving the summons. The court can extend the time to the extent it appears to be necessary[19]. Rule 8 states that where the government decides to defend the acts done by a public official, the government pleader authorized in this regard shall make an application to the court and the court shall cause his name to be entered into the register of civil suits. If no such application is made by the government pleader on or before the date of hearing as fixed by the notice, the proceedings shall be deemed to be as between private parties. In the matter of State of Rajasthan v. Chiranji Lal Agrawal[20], it was held by the Court that the provisions of Rule 8, being in nature of derogation of the ordinary law, should be limited to the purposes expressly or impliedly indicated and cannot be extended beyond those purposes. 

Conclusion and Suggestions

All these provisions which bring to light the various procedures and rules involved in the suit by or against the government or a public officer have been discussed and analyzed in detail. The suggestions pertaining to it are discussed below.

The amendment of 1976 made in Section 80 is a significant one. Sub Clause (2) has been inserted to permit the institution of the suit without notice, but it must be allowed only after conferring a reasonable opportunity of exhibiting cause in respect of relief claimed. Sub-section (3) on the other hand prohibits the dismissal of a suit where the notice has been issued but suffers from technical deficiencies. It should also be taken into consideration that there exist various instances where there were widespread abuse and misuse of the powers under the section by the government and public officials in order to dispose of the litigation on basis of a technicality, and this aspect of the provision should be given more attention in order to overcome the negative aspects which are inherent in it. Moreover, subsection (3) was included in the Section in order to offer a better clarification that no suit against the government or a public officer can be dismissed merely on the grounds of existence of some defect in the notice.

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[1] Yogesh Chandra Das v. Chief Secretary of Assam, AIR 1990 Gau 74.

[2] Chief Conservator of Forests, Government of A.P. v. Collector, AIR 2003 SC 1805.

[3] Jehangir v. Secretary of State, (1903) ILR 27 Bom 189.

[4] Dominion of India v. RCKC Nath & Co., AIR 1950 Cal 207.

[5] Bihari Chowdhary v. State Of Bihar, AIR 1984 SC 1043.

[6] Union of India v. Shankar Stores, AIR 1974 Ori 85.

[7] State of Bihar v. Jiwas das, AIR 1971 Pat 1971;

[8] 9 Brahm Dutt v. E Punjab Province, AIR 1958 ILR Punj 351.

[9] State of Seraikella v. Union of India, AIR 1951 SC 253.

[10] Union of India v. K. Khadelwala, AIR 1970 Ori 13.

[11] State v. Abdur Rahman, AIR 1960 J&K 59.

[12] Collector v. Bagathi Krishna Rao, (2010) 6 SCC 427.

[13] AIR 1935 HP 95.

[14] State of J&K v. N Bhat, AIR 2003 J&K 555N.

[15] N.K. Sharma v. K.G.Arya, AIR 2004 Del 25.

[16] AIR 1979 SC 1871.

[17] AIR 1982 Ori. 245

[18] (1985) 26 Guj. LR 1293.

[19] Mahadevamma v. Mahadevamma, AIR 2006 Kant 119 (1210).

[20] State of Rajasthan v. Chiranji Lal Agrawal, 1970 Raj LW 111.