INTRODUCTION
Suits filed by or against the ‘Government or public officers in their official capacity’ (hereinafter referred as ‘Public Officers’) is covered under part IV of the Code of Civil Procedure (hereinafter referred to as ‘CPC’). Part IV of the code covers suits in particular cases, thus by the very heading of this part, it is quite clear that the procedure which is required to file a suit against the public officials follows a different set of procedures and take a drift from normal procedures of filing a suit. The procedure of filing such a suit is covered under Section 79-82 of the code and Order 27 of the code.
Critical Analysis Of The Provisions With Case Laws:
Section 79 of the code:
Section 79 of the code[1]simply states that whenever there is a suit instituted by or against the Government the name of the parties must be diligently checked, If the case is by/against the state Government it shall have the party name the State of ‘the state name against whose Government it is filed’ and in case of Central Government should be filed in the name of ‘Union of India’ through the secretary of the department concerned. The importance of this section can be derived from the judgment in the case of BuluMuzumdar v. Department of Post offices[2] where the superior court set aside the lower court judgment just because of the fact the party name of the department of Post offices was not properly instituted. The court must check the party name irrespective of the fact whether it is been claimed or not in the written statement.
Section 80 of the act:
Section 80 of the act which talks about the 2 months’ notice to the concerned departments before the institution of the suit makes the procedure of filing a suit in case of public officers, a unique and complicated one. The period of notice is two months and the department /officers to whom it is supposed to be delivered has been covered in Section[3]. This provision of the code has been a long-debated one and there have been various perception given by Jurist, law commission reports, legislative assembly debates, precedents, etc. and still it is been a debatable topic as to whether such delay of 2 months be given for instituting a suit against the public officers
The report submitted by Law commissions on this topic:
The law commission while giving recommendation was not in the favour of retaining 2 months’ notice period as analyzing the mischief caused by it for the past 50 years. It was noted by the law commission that this provision has been grossly misused as it has been utilized as a “technical defense” for dismissing the claims[4]. In its next report[5], it stated that none of the other democratic countries have such provision as it only leads to the delay of justice and is detrimental to the public interest. Hence it is very clear that the law commission wanted to remove the notice period and abrogate Section 80 from the code.
The legislative intention behind enacting Section 80:
Inspite of the fact ,that such provision could necessarily cause delay in the process of obtaining justice, the legislative committee felt that such notice is of utmost importance because it gives an opportunity to the public officials to settle the claim if found to be true and also deny the same stating the reason for rejection. By enacting such provision they have not only saved the expenses and complication of a citizen but also have reduced the burden of the court by giving a chance of out of the court settlement. After the law commission sent their recommendations regarding the delay in the procedure due to the notice of 2 months period the legislative joint committee enacted an Code of Civil Procedure (amendment) Act of1976 in which clause 27 inserted a special provision which speaks about the elimination of notice period in case of emergency situations and such exemption will be provided in very few cases which will be discretionary for the court to accept the same or not. The objects and reasons as mentioned for not removing the 2 month notice period notice in case of general cases was the same reasoning as such notice would reduce the burden of court and would enable the parties to come to out of court settlement without bearing the expense[6]. Thus Section 80(2) and 80(3) were inserted by way of 1976 amendment. The other procedures relating to notice have been evolved through judicial precedents are as follows
Absence of notice:
In the landmark judgment of Sooraj v. S.D.O Delhi[7], it was explicitly stated by the court that the provision and procedure mention under Section 80 and 79 of the code is mandatory and not discretionary in nature and thus if a notice is not sent or if the Government is not impleaded as a party to the suit, such suit is liable to be dismissed and there shall be no hearing to that accord.
Contents of notice:
This provision was misused by the Government party dismissing the case on ground of technical defects in the notice, thus in the Supreme Court judgment of Amar Nath v. Union of India[8], the court clarified that notice under Section 80 is not to be construed on the lines of plaint but however it should have the following ingredients
- Name of the parties
- Address and description of the plaintiff
- Description of the suit property or so
- Cause of action
- Relief sought after.
It is an established principle that if a notice has these particulars, it cannot be dismissed on the ground technical defects[9].
Waiver of notice from the side of Government:
The delivery of notice is a procedural aspect and not a substantive one, its only motive is to benefit the public officers and afford them time to settle the claims if found true. However, the officers are under no obligation to avert for the notice and they can waive the notice as it is merely a right accorded to them[10]. Such rights need not be availed every time, thus Government officials are under liberty to waive such notice.
Section 80(2):
There was an amendment made in the year 1976 which added 80(2) and 80(3) which was amended to mitigate the effect of Section 80 (1), Section 80(2) of the code provides that if a case is instituted under this section then the trial court is under the obligation to hear the case at first instance and it acts as an exception to the former and has to be filed by the leave of the court[11]. The court will proceed with further hearing only if it is satisfied that there arises a need for urgent relief[12].
Section 80 (3):
This sub-clause was inserted as a relaxation in that a suit not be dismissed for any technical error or defect, if the ingredients of notice as mentioned above are present, then the court is under obligation to admit the plaint after 2 month period and cannot dismiss the same on technical ground.
Section 81
Section 81 saves a public officer from being arrested or his properties being attached unless and until adjudged by the court in way of decree. The rationale behind this section being that a Government official must be prone to a lot of litigations as he is serving more number of people and thus either by vexation motive or personal vengeance, people may sue such public officials and hence to safeguard them from being subjected to humiliation, such savior clause was added.
Section 82 of the act speaks about the execution of the decree passed against the Governmentand the procedures thereto.
Order 27 contains 8 rules and deals with the procedure and appointment of Government pleaders, signing authority, appearances, dates in case of a suit filed against the Government, and deals with the requisites procedures to be followed by Government pleaders ought to be followed in such case.
Analysis And Opinion On Special Procedure Against Government Suits:
There has been the contrary view taken by the law commission and legislative committee in this issue and the claims and intention of both the reports have bona fide interest for both public as well as the Government but such demarcation in the procedure for a suit against Government official according to me is a necessary step as Government caters the need of the whole public and there always is a chance that there is some kind of discontent among public and if such issues are directly bought before the court, it will increase the burden of the court manifold times. The various confusion regarding the same has been well established through subsequent amendments, reports, judicial precedents, and all the aspects related to Section 80 stand addressed now. Since it’s a period where alternative dispute resolution is taking a boom, by serving such notice there is a high chance that the dispute gets resolved by negotiation between both the parties and such a scenario will be ideal for both Government and the citizen and by including Section 80(2) and 80(3), the legislation has majorly curbed the defects which were there in the provision as there is an opportunity to the public if it is an urgent case and also no suit will be dismissed on the bare ground of ‘Technical defects’.In the whole scenario, the only drawback which I find and also vividly captured in the case of Bihari Chaudry v. State of Bihar[13]. The scheme of the act is a measure of public policy as it would save time and money of citizen and in turn will allow arriving at a mutual decision and Government officials, unlike private parties,are expected to look into legal notices more objectively and take steps accordingly which will eventually pave way for speedy negotiations and settlement and as held in the above case “The object of the section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation”. Thus if thoroughly analysed if this provision is properly utilized by the Government officials can lead to a positive change and reduction in litigation and a peaceful settlement can be arrived with ease, but there is no mandate on Government officials and neither do they take these provisions seriously, hence the object of such notice is defeated at the first hand. Hence if this procedure is followed diligently by both parties it is supposed to yield positive results only.
Recommendation And Suggestion:
- The provision of waiver of notice by Government officials should be removed and responding to the notice must be a mandatory procedure like delivering the notice. Such strict provision will enable to achieve the objective of sending notice and may pave for Government officers to reach to a conclusion.
- There must have been guidelines provided by the act as to what qualifies as an urgent case and by rendering such discretionary power to the court to decide urgent cases subjectively, it may lead to the defeat of the object of the amendment.
Conclusion:
The procedure to file a case against the Government or public officials in their official capacity has been exhaustively covered under Order 27 and from Section 79 to 82 of the code. There have been various controversies related to the special procedure of 2 months’ notice but the legislation and judiciary have addressed the issue and the evolution of procedure related to notice has taken a long way and the same has been discussed in detail in the above article.
References And Bibliographies:
- The Code of Civil Procedure, 1908
- http://lawcommissionofindia.nic.in/1-50/Report14Vol1.pdf
- https://blog.ipleaders.in/suits-Government-public-officers-official-capacity/
- Mulla Code of Civil Procedure (14thediton) Volume 1
- The Code of Civil Procedure authored by Avtar Singh
- BuluMuzumdar vs. Department of Post offices, 2007 (58) AIC 799 (Gau)
- Sooraj vs. S.D.O Relhi A.I.R 1995 SC 872
- Amar Nathv. Union of India AIR 1963 SC 424
- SurendraNath v. State of West Bengal AIR 1985 Cal 53
- Dhian Singh vs. Union of India AIR 1958 SC 274
- Prakash industries Ltd. v. Maitri Shukla AIR 1998 Ori 45
- KK Sharma vs. State of Punjab AIR 1989 P & H 117
- Bihari Chaudry vs. State of Bihar AIR 1984 2 SCC 1967
- Report of Joint Committee-Gazette of India, extdt. 1.4.1976, Pt.II Section 2, p. 804-09
[1] Section 79 of The Code of Civil Procedure
[2]BuluMuzumdar vs. Department of Post offices, 2007 (58) AIC 799 (Gau)
[3] Section 80 of The Code of Civil Procedure
[4] 14th Law Commission Report pg. no. 475-476
[5] 27th Law commission report Pg. No. 21-22
[6] Report of Joint Committee-Gazette of India, extdt. 1.4.1976, Pt.II Section 2, p. 804-09
[7]Sooraj vs. S.D.O Relhi A.I.R 1995 SC 872
[8] Amar Nath vs. Union of India AIR 1963 SC 424
[9]SurendraNath vs. State of West Bengal AIR 1985 Cal 53
[10]Dhian Singh v. Union of India [AIR 1958 SC 274].
[11] Prakash industries Ltd. v. Maitri Shukla [AIR 1998 Ori 45].
[12] KK Sharma v. State of Punjab [AIR 1989 P & H 117].
[13]AIR 1984 2 SCC 1967.
By-
V. Pulkit Rathi
( Symbiosis Law School, Pune)
Previous post: https://desikanoon.in/1st-national-movie-review-writing-competition-2020-by-law-laboratory-our-legal-world/