In a suit, the Central Government may sue or be sued as the Union of India and a State Government as the State.
Section 80 provides that where a suit is to be instituted against the Government or any public official for any act purported to be done in his official capacity, the person filing the suit must give a notice of at least 2 months before filing the suit. The difference in the case of a public official is that the suit must be instituted for acts purported to be done by him in his official capacity. It means a series of acts and is applicable even in cases of misfeasance or non-feasance. The act must be such as is done or would have been done in the normal course of his official duties. The notice must either be served on the person concerned or left at their office.
The person entitled to receive the notice in such cases is –
- Where a suit is instituted against the Central Government but not the Railway department, a Secretary to the Government
- Where a suit is instituted against the Central Government and it relates to the Railway, the General Manager of Railways
- Where a suit is instituted against the Government of Jammu and Kashmir, the Chief Secretary to the Government
- Where a suit is instituted against any other State Government, a Secretary to such Government or the Collector
Where a suit is instituted against any public official, such public official.
The notice must state the cause of action, the name, description, and place of residence of the plaintiff and the relief sought by him. It must be stated in the plaint that such a notice has been sent.
The notice is not a mere formality.
It is sent so that the government is given ample opportunity to decide on the legality of the issue with the help of its advisors and public money is not wasted. The provision of S.80 as regards notice is mandatory and no exception must be made. Where however immediate relief is sought, the suit may be instituted without giving such notice and with the leave of the court. But, no relief shall be granted without giving the government or public official an opportunity to be heard. The Government or public official concerned may even waive the requirement of notice.
Section 81 provides that where a suit is instituted against a public official for an act(s) purported to be done in his official capacity, he shall not be arrested and his property shall not be attached unless the same is in the execution of a decree.
Section 82 provides that where a decree is passed against the Government or a public official, the same shall not be executed except where it remains unsatisfied for a period of 3 months from the date of passing of the decree.
Provisions under Order 27
- Rule 1 provides that in case of a suit by or against the government, the plaint or written statement shall be signed by any person appointed by the government in this regard by way of a general or special order. The plaint or written statement shall be verified by a person appointed by the government and who is aware of the facts of the case.
- Rule 2 provides that any person who is ex officio entitled to represent the government in judicial proceedings or is authorized by the government in this regard shall be the recognized agent who shall make appearances, applications and do acts on behalf of the government.
- The government pleader shall be the agent of the government for receiving all court processes. (Rule 4)
- In fixing the date for the hearing, the court must have due to regard to the communications made to the government, issue of instructions to the government pleader to appear, etc. (Rule 5) Such time limit may be extended by the court but not beyond 2 months in aggregate.
- An extension may also be granted where a public official is a defendant and he takes leave from the court to make a reference to the government before he answers the allegations in the plaint. (Rule 7). This is also because, in every suit against a public officer, the government is deemed to have been joined as a party. (Rule 5-A)
- Where the government decides to take defense for acts done by a public official, the government pleader after having been 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. (Rule 8) Where 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. However, the public official in such case cannot be arrested or his property cannot be attached, except where it is for execution of a decree.
- The court also has the duty to assist the parties in arriving at a settlement where it is of the opinion that such settlement is possible. It may also grant an adjournment for such purpose. (Rule 5-B)
- The court may even direct the attendance of any person who may be able to answer material questions as regards the matter on behalf of the government where such person doesn’t appear in court without the government pleader. (Rule 6) No security is required to be furnished by the government or the public official.
Submitted By – Ankit Vardhan
Symbiosis Law School
(Editor @ Legal Bites)