Suits By or Against The Government under Code of Civil Procedure

Introduction:

Suits by or against the government or public officials in their official capacity are special cases as the procedures which have to be observed while instituting a plaint vary from the usual procedures which are carried out in accordance with civil suits for private individuals. They are enumerated in The Code of Civil Procedure, 1908 (Hereinafter referred to as “CPC”) u/s 79 to 82 and Order 27. Nonetheless, these provisions are concerned only with the procedural rights and liabilities that are enforceable against the government and public officers.

The Constitution provides for substantive rights and liabilities to be diligently observed. In order to institute a suit against the government or a public official, a legal notice must be served by the Plaintiff to the concerned public officer or to the Secretary to the Government. Subsequently, the plaintiff needs to wait for 2 months before filing the plaint in the Court which is coupled with a great deal of formalities and procedures.

Provisions

Public Officer has been defined u/s 2(17) of CPC and provides for the exhaustive list of public officers. Article 300 of the Constitution of India empowers the Indian government to sue any person or be sued by any person under the name of the Union. Thus, State governments can sue or be sued by any individual under the State’s name. This is a substantive provision and it only creates a right but does not explain the procedural working that requires strict adherence to with the intention of suing the government.

Section 79

This Section is a replica of Article 300. It defines the concept of suits when brought by or against the government. If a case is filed against or by the government in any matter, the plaintiff and the defendant will be termed as follows-

• Whenever legal proceedings are instituted by or against the Central Government, the Union of India will be represented or required to act as the plaintiff or defendant.
• Whenever legal proceedings are instituted by or against the State government, the State government will be represented or required to act as the plaintiff or the defendant.

The Supreme Court in Chief Conservator of Forests, Government of A.P. v. Collector, AIR 2003 SC 1805, ruled that the requirements listed in Section 79 and Order 27, Rule 1 of CPC are not just procedural formalities, but are matters of substance as well as substantial magnitude wherein special provisions have been laid regarding how the Central/State Government can sue or be sued.

In Santhanand v. Basu-devanand AIR 1930 All 225 (FB), the court remarked upon Section 79 and said that while it sets forth the procedure for instituting legal proceedings, it fails to establish any claims or liabilities enforceable against the government. Similarly, this section fails to mention any procedure pertaining to how proceedings can be commenced or how the cause of action arose. It only mentions the necessary parties in a matter when involving the government or a public officer.

In Dominion of India v. RCKC Nath & Co. AIR 1950 Cal 207, the Court was of the opinion that words like ‘dwell’ or ‘reside’ or ‘carry on business’ which are mentioned u/s 18, 19 and 20 of CPC cannot be applied when a suit involves the government.

In case of railways, in the landmark case of Union of India v. RC Jall, AIR 1958 MP 425, the Court held that if the railway is administered by the Union of India or a State, then any suit against administration of railways can be brought against the Union of India or State in order to enforce a claim, and this may not include making the railway administration a part of the suit. Alternatively, if a suit is bought forth for freight for carrying goods, then this suit may be instituted by the Union of India.

Section 80

This section deals with the concept of Notice. As per this section, until a notice for instituting a plaint against the government has been issued, there exists no obligation. This same rule applies when a suit is filed against a public officer in regard to any act committed by him in his official capacity only and not otherwise. Besides, the notice must be served 2 months prior to the institution of the suit and due care must be taken to ensure that such a notice is delivered at the office in the following instances:

• If a matter/ suit has been instituted against the Central government which does not pertain to the railways, then this notice should be furnished to the Secretary of the government.
• If a matter/ suit has been instituted against the Central government concerning the railways, then the notice should be furnished to the general manager of that railways.
• If a matter/ suit has been instituted against any of the State governments then, the notice is to be served either to the Secretary of the concerned government or to the District Collector.
• In matter/ suit has been instituted against a Public Officer, the notice is to be served to him/her u/s 80(1).

Notice u/s 80 should include the subsequent aspects: Name, Description, plaintiff’s residence, the cause of action and claimant of relief. There must be no vagueness or ambiguity in the notice. Yet negligible details like a misdescription of the recipient cannot make it an unacceptable notice. The requirements u/s 80 are express, clear, and compulsory with no exceptions. They are imperative in nature and must be stringently conformed with as they impose an absolute obligation on the court. Thus, no court can entertain a suit unless a notice is duly served u/s 80, sub-section (1).

In Union of India v. Shankar Stores AIR 1974 Ori 85, the Court concluded by declaring that if a notice is to be served, it should convey to its recipients, adequate information to help the authorities ascertain who exactly is serving the notice. A similar view was held by the Supreme Court in Sankar Mukherjee v. Union of India, AIR 1990 SC 532 by mentioning that a notice must convey to its recipient, enough information to let him consider the plaintiff’s claim.

In case the abovementioned requisites are not complied with or if there’s an important provision which is omitted in the plaint, it would result in the rejection of the plaint. In certain circumstances if a suit has been filed against a public official along with a private individual, and if a notice has not been served to the public officer, the plaint can be carried on but the name of the public officer is struck off.

As the obligation of a notice is procedural and not substantive, the government and public officers can object and waive the issuance of the notice if it thinks fit. In Vasant v. Bombay Muncipal Corporation, AIR 1981 Bom 394 (FB), the Court was of the view that the party for whose benefit the provision has been made has the final say or the ultimate decision if it wants to waive the compliance with the stipulations of such a provision.

The reason behind this proviso is that there ought to be an opportunity conferred upon the Secretary of the State or the Public officer to reconsider his legal standing and proceed to absolve their mistakes or amicably reach a mutual agreement if so advised. Whenever a statutory notice is issued to public officers, they are required to further take notice in all seriousness, and not mock the judicial system by ignoring the notice. The Government must deliberate objectively within 2 months and come to a decision in the interest of public by deciding if the claim is reasonable or not. In this way, vexatious litigation proceedings can be avoided entirely.

Alternatively, Section 80 (2) specifies that only after seeking the Court’s permission can a suit be instituted without serving the notice but only in cases where a crucial or instant relief is essential. The Court shall return the plaint if it finds that the relief is not urgent and the matter will be dealt as per the procedure and requirements laid down in this section.

Section 81

Section 81 of CPC is a privilege given to Public Officers. This is because it exempts public officers from personally appearing in the Court when the case has been instituted against him. This exception can only be availed if the Court is satisfied that the officer is working at his official duty linked to public service. Furthermore, u/s 81, if any suit has been instituted against a public officer for any act committed during his official duty, he is granted protection from being arrested and also from attaching his property unless a decree is executed.

Section 82

Furthermore, even if a decree has been passed against the Union of India/ State/ Public officer, it will not be executed unless it has remained unsatisfied for 3 months from the date of the passing of the decree. This period of 3 months is merely to allow the government or the public officer to fulfil the specifications of the decree and rectify or amend their mistakes.

Order 27

Order 27 under CPC has 8 rules that regulate procedural matters in suits by or against the Government or Public Officers acting in official duty. The rules are –

• Rule 1 states that in any suit by or against the Government, the plaint or written statement shall be signed by someone that the Government may, by passing a general or special order, elect on their behalf, and the same shall be confirmed by a person whom the Government may retain and who is familiar with the case at hand. In State of Rajasthan v. Jaipur Hosiery Mills AIR 1997 Raj 10, the Court held that the sanction to sign must be prior to the institution of a suit, and if it is not acted in accordance with the same, the signing shall be executed by an incompetent person, and issuing a retrospective sanction will not preserve the defect.
• Rule 2 specifies that any person who is ex officio and entitled to speak for the government in judicial proceedings or is duly authorized by the government must be the official agent who must make appearances/applications and act on the government’s behalf.
• Rule 3 prescribes inserting the suitable name u/s 79 instead of inserting in the plaint, the name, description, address of the plaintiff or defendant.
• Rule 4 mentions that a Government pleader acts as an official agent who is in-charge of receiving processes issued against the government. Likewise, only he can intimate the court that he is representing the government. Stamped power of attorney or vakalatnama is not needed here. In Lutfar Rahman v. State of West Bengal AIR 1954 Cal 455, it was decided that when any person barring the government pleader wants to act as an agent, it is possible but only when the government agent informs the Court that the said person is acting under his directions.
• Rule 5 mandates Courts to allow the government, a reasonable time of 2 months to reply to the plaint in order to facilitate necessary communication between government and their pleader.
• Rule 5A specifies that if a suit is instituted against a public officer for an act committed by him during his official capacity, the government shall be a party to the said suit. Whereas Rule 5B states that it is a Court’s duty to try and reach a mutual settlement in cases involving the government or public officers. Further if the Court finds that there might be a remote possibility to mutually settle, the case can be adjourned until an attempt to resolve the dispute has been tried.
• Rule 6 prescribes getting direct attendance of any person who is familiar with the case and can aid the Court by answering any material questions in regard to the suit against a govt. This view was held by the Court in State of Punjab vs Amar Chand Walia, AIR 1980 P&H 318.
• Rule 7 specifies that a public officer who has been served a summon can seek extension from the Court to discuss the matter with the government first. The Court can grant an extension for as long as it deems necessary.
• Rule 8 states that in instances wherein the government undertakes a defense of suit against a public officer, the appointed pleader will apply to the Court and his authority must be entered in the register of civil court. In case no application is made by an appointed government pleader, the Court will treat the case as a suit between private individuals.
• Rule 8A declares that no security as cited in Rule 5 and 6 of Order XLI is required in a case against government or public officer. Conversely, Rule 8B specifies the definition of government and government pleader. Concerning central government, it means any pleader as that government may appoint.

Conclusion

The purpose behind this article is to elucidate the process that one has to undergo when filing a suit against the government or a public officer by taking into consideration numerous aspects. Instituting a suit against a public officer who may have committed any act in his official capacity or against the government is tedious process, involving a series of formalities.

The above provisions also comprise of defenses that the government as well as public officers can take up. In the 14^th Law Commission Report, the commission highlighted how these provisions were blatantly misused by the Government and the Public Officials and rejected the claims of the citizens by delaying the judicial proceedings or by pleading under the technical defense. This has proved to be a hurdle in many cases considering the fact that in the end, justice has to prevail. Utmost importance and care must be taken to ensure that the government or public officials are brought up to task if they have committed any wrongdoing. By doing so, nobody will be held above the law.

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References:

1. Ashish Agarwal, Filing of Suit by or against the Government or Public Officers under CPC,1908, (Oct. 23, 2020), https://www.legalbites.in/filing-of-suit-by-or-against-the-government-or-public-officers/#_ftn1
2. Namrata Kandankovi, Suits by or against the Government or Public Officers in their official capacity, (Oct. 24, 2020), https://blog.ipleaders.in/suits-government-public-officers-official-capacity/
3. “Suits by and Against Government.” All Answers Ltd. lawteacher.net, November 2018. ( Oct. 24, 2020), https://www.lawteacher.net/free-law-essays/administrative-law/suits-by-and-against-government-administrative-law-essay.php?vref=1