Suits by or against the government or public officials in their official capacity is a type of special cases in the code of civil procedure. Such suits are of a special type because the procedures which are needed to be followed in the institution of the plaint are different from the procedures which are to be followed in the civil suits which consists of private parties. For filing a suit against the government or public official, the plaintiff needs to first serve a legal notice to the public officer or to the Secretary to the Government.

After the service, the plaintiff needs to wait or two months to file the plaint in the Court. A lot of formalities and procedures are needed to be taken care of to file the suit. However in certain situations, the Court may grant an exception, but it depends upon the facts and circumstances of the case.

Analysis of the Provisions of Law

Sections 79-82 and Order 27 of the Code of Civil Procedure, 1908[1], deal with the procedure which needs to be followed in the process of filing of a suit against the government or public officials. Code of civil procedures prescribes only the procedures. The rights and liabilities of the parties are dealt by the Constitution of India, 1950.

The first step in the process of filing of suit in this case is service of notice to the defendant. Section 80 of the Code of Civil Procedure, 1908[2] states that only after the expiry of two months from the date of service of notice to the government officials, a plaint can be filed in the Court of law.

In the case where the defendant is the Central Government the notice should be served to the Secretary to the Government, in case the defendant is the Railways the General Manager, in case of State Government the Secretary to that Government or to the Collector of the District, in case of public officer the notice should be served to him and in case the defendant is the State of Jammu and Kashmir the notice should be served to the Chief Secretary of the Government or any other officer authorized by the government.

The main intention of the Legislative in the insertion of this section and adding this process in the filing of suit is to make sure that the Government or the Public Officer knows the reasons, demands or the concern of the Plaintiff for which the suit shall be instituted. By knowing the distress of the Plaintiff, the Public official can act upon it and rectify the situation. The time period of two months is also provided for the same reason.

The main objective of government is to serve the public and protect their rights. By providing the notice along with the necessary time they can give more importance to the problem and settle the dispute by not approaching the Court. This shall not only save the time of the Court, but also of the government and the unnecessary legal expenses.

In the case of State of Madras v. C.P. Agency[3] the Court had also given this reasoning as well as the Supreme Court supported this by giving its own analysis in the case of Bihari Chowdhary v. State of Bihar[4]. This provision helps the Government, the Court of law as well as the public however misuse of this provision can also occur which would demolish the main objective of law i.e. to impart justice.

In the Fourteenth Law Commission Report, the commission witnessed how the Government and the Public Officials misused this provision and quashed the claims of the citizens by delaying the process and taking the technical defense. It was also seen that in other nations governed by the system of Anglo Saxon, no country has this kind of provision. In a democratic form of government this kind of statutes does not need to be in use. It is the right of the citizens to raise questions against the government for their in – efficiency and mal – feasance and if needed they have the right to sue the government.

The government is for the people, by the people and of the people. Hence it is essential that they should be accountable and they should serve to their best. However no amendment had come to amend this section and hence it is still in use.

Section 80 of the Code of Civil Procedure, 1908[5] also states the contents of the notice which should be served to the government of the public official. The most essential contents of the notice should have the name, description, place of residence of the plaintiff and the cause of action and the relief sought. The service of the notice should be delivered to the office of the concerned person or served directly to him.

After the expiry of two months if the aggrieved party wishes to file the suit in the Court of law, he or she would need to produce a written statement which should state the way in which the notice was served.  The service of the notice has a strict application and is mandatory process. It should be done expressly and not impliedly. The Supreme Court had held so in the case of State of A.P. v. Gundugola Venkata[6] and also expressed that if proper service of the notice does not happen then the suit would entail a dismissal.

However this statute should be reasonably construed and should be interpreted by looking at the objective of it. Mere error not affecting the objective of it should not result in dismissal of the plaint[7].

The notice should comply with the minimum requirements according to the statute.  If the case is against a public officer and the relief is prayed for an act which the officer will have to do in near future, proper service of notice becomes mandatory[8]. The sentence act to be done by the Public Officer includes those acts which can be done in his Official capacity. It does not include acts which are beyond his or her official capacity[9].

The service of notice is of a procedural form and it is not a substantive statute. The object of the service of notice is to make sure that the government is aware of the problems of the Plaintiff and the course of action which he intends for. The service of notice is for the benefit of the government and it is upon the government to take support of it. If the government does not require the service and expresses it, the Court may allow the plaint without the service of notice. However this totally depends upon the facts and circumstances of the case[10].

Section 80(2) of the Code of Civil Procedure, 1970[11] allows private individuals to file a suit against the government without serving the notice to the public officer if the matter is of an urgent nature[12]. This section acts as an exception for sub-section 1 of Section 80 of the Act. The main objective of inserting this exception is to make sure that miscarriage of justice does not happen in urgent cases by delay in the proceedings. The urgency of the matter is judged by the Court by considering the facts and circumstances. The Court should hear both the private individual and the government in judging whether the matter is of an urgent nature.

Writ Petitions against the Government is exempted from the service of notice under Section 80 of CPC as writ petitions do not fall under the category of suits. Writ Petitions are filed under Article 32 and 226 to the Supreme Court and High Court respectively.

After filing of suit against the government, the plaint and the written statement should be signed by a person appointed by the government. The person should be authorized and be a recognized agent according to the Code. The agent shall have the power to receive summons and the government does not need to attach the Vakalatnama.

A proper and reasonable time is given to the Government to file the Written Statement and in every suit against the government the court needs to assist the government in coming to a settlement with the private individual. The procedure under Order 27 of the Code of Civil Procedure, 1908[13] applies to only government and not to other agents or instruments which falls under the category of State according to Article 12 of the Constitution of India, 1950[14]. If the suit proved a substantial question of law related to the interpretation of the Constitution, the Court needs to issue a notice to the Attorney General of India if the question related to the Central Government and to the Attorney General of the concerned State if it relates to a State Government.

Section 81 of the Code of Civil Procedure, 1908[15] exempts the public officer to appear in person in the Court against whom the case has been filed. This exception is acceptable only if the Court is satisfied if the Court is convinced to the need of the Officer to be present in his duty related to Public Service. The code also grants protection from arrest and from attachment of his property in execution of the decree.

Conclusion
Suits by or against government or public officers constitutes a lot of formalities and also provides a lot of protection and defenses to the Government. These protections allow the government to take actions in providing remedies to the private individual and save the Court’s time.

However at the same time these protections become a great problem and hurdle in the process of imparting justice. Hence, in my point of view, instead of bringing in amendments to the Statute for example, totally exempting the process of servicing notice to the government, the Court should judge the facts and circumstances of the case and come to the conclusion to whether the service of notice is a necessity in the case.

End-Notes:

1. Code of Civil Procedure, 1908, Section 79 – 82, Order 21
2. Code of Civil Procedure, 1908, Section 80
3. State of Madras v. C.P. Agency [AIR 1960 SC 1309]
4. Bihari Chowdhary v. State of Bihar [AIR 1984 SC 1043]
5. Supranote 2
6. State of A.P. v. Gundugola Venkata [AIR 1965 SC 11]
7. Ghanshyam Dass v. Dominion of India [AIR 1984 SC 1004]
8. State of Madras v. Chitturi Venkata [AIR 1957 AP 675]
9. State of Maharashtra v. Chander Kant [AIR 1977 SC 148]
10. Vasant Ambadas v. Bombay Municipal Corpn. [ AIR 1981 Bom 394]
11. Code of Civil Procedure, 1908, Section 80(2)
12. State of Kerela v. Sudhir Kumar Sharma [(2013) 10 SCC 178
13. Code of Civil Procedure, 1908, Order 27
14. Constitution of India, 1950, Article 12
15. Code of Civil Procedure, 1908, Section 81