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Revaluation of Section 80 CPC pertaining to suit against Govt. of India

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Published on: February 9, 2013

Courts in India are governed by procedural laws which govern the trails and the proceedings before them. While there are one sets of rulings which hold that procedure is only a hand-maid of justice and thus should not come into play to preclude a court from ensuring substantive justice, there are equal other sets of rulings which decree that parties not following procedures of the court are not entitled to relief.

It is in the respect of the second line of decisions there is a recent decision of the Supreme Court which declares that a suit/claim would not be entertained in which Government was required to be made a party to the dispute and not having so done. Holding that it was essential to ensure that Government was made aware of the litigation by making it a party, the Supreme Court declared that procedural law clearly specifies the situation in which Government is required to be made a party and the law to this regard is settled that if the Government is not made a party, the litigation cannot be proceeded. The Court was dealing with a situation wherein an appeal was filed by the Government officials without making Government a party. In this scenario the Court declared that the appeal could not have been decided without the Government being a party.

The Bench explained the law in the following terms;

1. Section 79 of the Code of Civil Procedure (hereinafter ‘CPC’) specifically deals with suits by and against the Government and provides that in suits by and against the Government, the authority to be impleaded as the plaintiff or defendant, would be the Union of India or Central Government or the State or State Government. Proviso to Rule 9 of Order 1 provides that non-joinder of necessary party is fatal.

2.  Rule 1 of Order XXVII CPC deals with suits by or against the Government or by officers in their official capacity. It provides that in any suit by or against the Government, the plaint or the written statement shall be signed by such person as the Government may like by general or special order authorize in that behalf and shall be verified by any person whom the Government may so appoint.

3. Article 300 of the Constitution deals with legal proceedings by or against the Union of India or State and provides that in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be; in the case of the Central Government, the Union of India and in the case of State Government, the State, which is suing or is being sued.

4. A Constitution Bench of this Court in The State of Punjab Vs. The Okara Grain Buyers Syndicate Ltd., Okara & Anr.[1] held that if relief is sought against the State, suit lies only against the State, but, it may be filed against the Government if the Government acts under colour of the legal title and not as a Sovereign Authority e.g. in a case where the property comes to it under a decree of the Court.

5. In Ranjeet Mal Vs. General Manager, Northern Railway, New Delhi & Anr.[2], this Court considered a case where the writ petition had been filed challenging the order of termination from service against the General Manager of the Northern Railways without impleading the Union of India. The Court held as under :-

“The Union of India represents the Railway Administration. The Union carries administration through different servants. These servants all represent the Union in regard to activities whether in the matter of appointment or in the matter of removal. It cannot be denied that any order which will be passed on an application under Article 226 which will have the effect of setting aside the removal will fasten liability on the Union of India, and not on any servant of the Union. Therefore, from all points of view, the Union of India was rightly held by the High Court to be a necessary party. The petition was rightly rejected by the High Court.” [see also The State of Kerala v. The General Manager, Southern Railway, Madras[3]]

6. In Kali Prasad Agarwala (Dead by L.Rs.) & Ors. v. M/s. Bharat Coking Coal Limited & Ors. [4], while considering an issue whether the suit lands had vested, free from encumbrance in the State consequent upon the issuance of Notification under Section 3 of the Bihar Land Reforms Act, this Court did not entertain the case observing as under :-

“In our opinion, it is unnecessary to consider the first question and indeed it is not proper also to consider the question in the absence of the State which is a necessary party for adjudication of that dispute. The State of Bihar is not impleaded as a party to the suit and we, therefore, refrain from expressing any opinion on the first question.”

7. In Sangamesh Printing Press v. Chief Executive Officer, Taluk Development Board[5], the State was not impleaded as a party before the Trial Court in a money recovery suit. The same was dismissed on the ground of non-impleadment of necessary party. During appeal, an application was made under O. 1 R. 10 praying for impleadment of the State, however the High Court decided the matter on merits without considering the same. This Court observed as under :

“Keeping in view the facts and circumstances of the case, we are of the opinion that the High Court should have decided the appellant’s application under Order 1 Rule 10 C.P.C. and, thereafter, proceeded to hear the appeal in question. Not having disposed of the application under Order 1 Rule 10 has caused serious prejudice to the appellant. We, therefore, set aside the judgment of the High Court and restore Regular First Appeal No 29 of 1987 to its file. The High Court should first deal with the application under Order 1 Rule 10 C.P.C. which is pending before it and then proceed to dispose of the appeal in accordance with law.”

8. While considering the similar case in Chief Conservator of Forests, Government of A.P. Vs. Collector & Ors [6] ; this Court accepted the submission that writ cannot be entertained without impleading the State if relief is sought against the State. This Court had drawn the analogy from Section 79 CPC, which directs that the State shall be the authority to be named as plaintiff or defendant in a suit by or against the Government and Section 80 thereof directs notice to the Secretary of that State or the Collector of the district before the institution of the suit and Rule 1 of Order XXVII lays down as to who should sign the pleadings. No individual officer of the Government under the scheme of the constitution nor under the CPC, can file a suit nor initiate any proceeding in the name and the post he is holding, who is not a juristic person.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Relevant  Sections under Code of Civil Procedure

Section 79 to 82 and Order XXVII of the Civil Procedure Code, 1908 deal with procedure for investigation of suits by or against the government and public officers. However, these provisions only deal with the procedural rights and liabilities that are enforceable against the government and such persons. The substantive rights and liabilities to be followed are those as are provided by the Constitution of India.

Section79 –  Suits by or against Government

In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be-

 

(a) in the case of a suit by or against the Central Government, the Union of India, and

 

(b) in the case of a suit by or against a State Government, the State.

 

Scope of the section

 

This section does not enlarge or in any way affect the extent of the claims or liabilities enforceable by or against the government which formally depended on the provisions of the government of India Act 1915 [section 65 of the Government of India Act 1858, Section 32 of the Government of India Act 1915, and then section176 (1) of the Government of India Act 1935] and now depends on the Article 300 of the Constitution of India. This section gives no cause of action but only declares the mode of procedure when a cause of action has arisen.[7]

 

Where a member of the public claims to use certain land as a public road, and the owner of the land sues for a declaration alleging hat his title is thereby endangered, the secretary of the state (now the Government ) is not the necessary party.[8]

 
Section 80 – Notice

 (1) Save as otherwise provided in sub-section (2), no suits shall be instituted against the Government (including the Government of the State of Jammu & Kashmir) or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of-

 

(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;

(b) in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway;

 

(bb) in the case of a suit against the Government of the State of Jammu and Kashmir the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;

 

(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district;

 

and, in the case of a public officer, delivered to him or left at this office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

 

(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu & Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:

 

Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).

 

(3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice-

 

(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and

 

(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.

 

 

STATE AMENDMENTS

 

Madhya Pradesh -(i) After sub-section (3) of Section 80 the following inserted:

 

“(4) where in a suit or proceeding referred to in Rule 3B of Order 1, the state is joined as a defendant or non applicant or where the Court orders joinder of the State as defendant or non applicant in exercise of powers under Rule 10(2) of Order 1 such suit or proceeding shall not be dismissed by reasons of Omission of the plaintiff or applicant to issue notice under sub-section (1)”.

 

(ii) In sub-section (1) of section 80 for the words “sub-section (2)” substitute “sub-section (2) or (4)”. [M.P. Act No. 29 of 1984].

 

Section 81 –  Exemption from arrest and personal appearance.

In a suit instituted against a public officer in respect of any act purporting to be done by him in his official capacity-

 

(a) the defendant shall not be liable to arrest nor his property to attachment otherwise than in execution of a decree, and

 

(b) where the Court is satisfied that the defendant cannot absent himself from his duty without detriment to the public service, it shall exempt him from appearing in person.

 

Section 82 –  Execution of decree

(1) Where, in a suit by or against the Government or by or against a public officer in respect of any act purporting to be done him in his official capacity, a decree is passed against the Union of India or a State or, as the case may be, the public officer, such decree shall not be executed except in accordance with the provisions of sub-section (2).

 

(2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of such decree.

 

(3) The provisions of sub-sections (1) and (2) shall apply in relation to an order or award as they apply in relation to a decree, if the order or award-

 

(a) is passed or made against the Union of India or a State or a public officer in respect of any such act as aforesaid, whether by a Court or by any other authority; and

 

(b) is capable of being executed under the provisions of this Code or of any other law for the time being in force as if it were a decree.

 

 

 

 

 

 

 

 

 

Object of Notice

The primary object underlying section 80 is to afford an opportunity to the government or public officer to consider the legal provision and to settle the claim put forward by the perspective plaintiff if the same appears to be just and proper. The government, unlike private parties is expected to consider the matter objectively and dispassionately and is expected to consider the matter objectively and after obtaining proper legal advice, it can take an appropriate decision in the public interest within a period of two months allowed by the section saving public time and money and without driving a person to avoidable litigation. The legislative intent behind the provision is that the public money should not be wasted for unnecessary litigation. The section has been intended to alert the government or public officer to negotiate just claims and to settle them if well- founded without adopting an unreasonable attitude by inflicting wasteful expenditure on the public exchequer.[9]

The provision of notice thus is intended to alert the government or public officer to negotiate just settlement or at least have the courtesy to tell the “potential outsider” why this claim is being resisted.[10]

In Bihari Chowdhary v. State of Bihar[11], the purpose behind the provision has been highlighted by the Supreme Court thus :

“ When we examine the scheme of the section it becomes obvious that the section has been enacted as a measure of public policy with the object of ensuring that before a suit is instituted against the government or the public officer, the government or the public officer respect of which the suit is proposed to be filed and if its found to be a just claim, to take immediate action and thereby avoid unnecessary litigation and save public time and money by settling the claim without driving the person, who has issued the notice, to institute the suit involving considerable expenditure and delay. The government, unlike private parties, is expected to consider a matter covered by the notice in a most objective manner, after obtaining such legal advice as they may think fit, and take a decision in public interest within a period of two months allowed the contemplated suit should, therefore, be avoided by speedy negotiations or settlement or whether the claim, should be resisted by fighting out the suit if and when it is instituted. There is clearly a public purpose underlying the mandatory provision contained in the section insisting on the issuance of a notice setting out the particulars of the proposed suit and giving two months time to government or a public officer before a suit can be instituted against them. The object of the section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation.

Essentials of Section 80

A notice under section 80 must contain

(i)                 Name, description, place of residence of the person giving notice.

(ii)               A statement of the cause of action

(iii)             Relief claimed by him

In considering whether the essential requirements of the section have been complied with, the court should ask the following questions :

(i)                 Whether the name, description and residence of the plaintiff are given so as to enable the authorities to identify the person giving notice.

(ii)               Whether the cause of action and the relief which the plaintiff claims have been set out with sufficient particulars?

(iii)             Whether such notice in writing has been delivered to or left at the office of the appropriate authority mentioned in the section? And

(iv)             Whether the suit has been instituted after the expiration of two months after the notice has been served and the plaint contains a statement that such a notice has been so delivered of left?

Law Commission’s view

The commission did not favour in retaining the provision of issuing notice under section 80 before filing a suit by the aggrieved party.

Before more than fifty years, it noted that the section has worked hardship in a number of cases where immediate relief was needed. The evidence disclosed that in large majority cases, the government or the public officer made no use of opportunity afforded by the section. In most cases the notice remain unanswered . In large number of cases, public officer or government utilized it as a ‘technical defence’ and in number of cases, the objection had been upheld by the court defeating just claims of the citizens.[12]

The  commission again considered the question. It noted that it was unable to find a parallel provision in any other country governed by the Anglo Saxon system of law. It opined that in a democratic country like ours there should ordinarily be no distinction of the kind envisaged by the section 80 between the citizen and the state.[13]

In spite of the above well considered reasoning and recommendations, the joint Committee of parliament favoured retention of the provision in the “public interest.”[14]

It is, however submitted that the suggestion of the law commission should have been accepted and provision as to notice ought to have been deleted as virtually it has not achieved the object for which it has been introduced. Moreover, even in absence of such a provision, it is always open to court of law to issue notice and call upon the Authorities before granting any relief or without causing administrative inconvenience which can be seen after exercise of extraordinary jurisdiction by the Supreme Court under article 226 of the Constitution.[15] 

The relevant Provisions

The Apex Court in Chief Conservator of Forests, Government of A.P. Vs. Collector[16], has observed that the requirement of provision contained in Section 79 CPC as well as Order 27, Rule 1 CPC is not merely a procedural formality, but is essentially a matter of substance and of considerable significance whereby the special provision as to how the Central Government or the State Government may sue or be sued has been indicated. the authority to be named as plaintiff or defendant, as the case may be, shall be-

a)     in the case of a suit by or against the Central Government, the Union of India, and

b)    in the case of a suit by or against a State Government, the State.

It has further been observed that in giving description of a party, the distinction between the mis-description or misnomer of party and mis-joinder and nonjoinder of a party suing or being sued has to be remembered and in case of mis-description of party, the Court at any stage of the suit permit correction the cause title so that the party before the Court is correctly described, and, such mis-description will not be fatal to the maintainability of the proceeding. However, in case of non-joinder of parties, the suit or proceeding will fail.

The Apex Court in Secretary, Ministry of Works & Housing, Government of India and Ors. v. Mohinder Singh Jagdev, has observed that the Union of India can lay the suit and be sued under Article 300 of the Constitution in relation to its affairs and under Section 79 read with Order 27, Rule 1 CPC, in a suit, by or against Central Government, the authority to be named as plaintiff or defendant, as the case maybe, shall be the Union of India. However, in the said case, as the appeal was filed by the Secretary of the Department transacting its function on behalf of the Government as per the business rules framed under Article 77 of the Constitution, the same was treated to have been filed by the Union of India by holding that the nomenclature given in the cause title is not conclusive.

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 case of a public official is that the suit must be instituted only for acts purported to be done by him in his official capacity. There is no stipulation in the section as regards suits instituted against the government. Any act purporting to be done in his official capacity includes illegal omissions as well. It covers future as well as past acts of such official. 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-

a)     Where a suit is instituted against the Central Government but not the Railway department, a Secretary to the Government.

b)    Where a suit is instituted against the Central Government and it relates to the Railway, the General Manager of Railways.

c)     Where a suit is instituted against the Government of Jammu and Kashmir, the Chief Secretary to the Government.

d)    Where a suit is instituted against any other State Government, a Secretary to such Government or the Collector

e)     Where a suit is instituted against any public official, such public official

The content of such notices has been specifically stated in the Code. 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.

A Constitution Bench of this Court in The State of Punjab Vs. The Okara Grain Buyers Syndicate Ltd.,[17]  held that if relief is sought against the State, suit lies only against the State, but, it may be filed against the Government if the Government acts under colour of the legal title and not as a Sovereign Authority e.g. in a case where the property comes to it under a decree of the Court.

In Ranjeet Mal Vs. General Manager, Northern Railway, New Delhi,[18]  this Court considered a case where the writ petition had been filed challenging the order of termination from service against the General Manager of the Northern Railways without impleading the Union of India. The Court held as under :-

“The Union of India represents the Railway Administration. The Union carries administration through different servants. These servants all represent the Union in regard to activities whether in the matter of appointment or in the matter of removal. It cannot be denied that any order which will be passed on an application under Article 226 which will have the effect of setting aside the removal will fasten liability on the Union of India, and not on any servant of the Union. Therefore, from all points of view, the Union of India was rightly held by the High Court to be a necessary party. The petition was rightly rejected by the High Court.” The same was reiterated in The State of Kerala v. The General Manager, Southern Railway, Madras[19]

In Kali Prasad Agarwala v. M/s. Bharat Coking Coal Limited[20] while considering an issue whether the suit lands had vested, free from encumbrance in the State consequent upon the issuance of Notification under Section 3 of the Bihar Land Reforms Act, this Court did not entertain the case observing as under :-

“In our opinion, it is unnecessary to consider the first question and indeed it is not proper also to consider the question in the absence of the State which is a necessary party for adjudication of that dispute. The State of Bihar is not impleaded as a party to the suit and we, therefore, refrain from expressing any opinion on the first question.”

The provision of Section 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. However, where the court feels that no immediate relief is sought after hearing both parties, it may return the plaint to be presented after complying with the necessary requirements of notice. No suit instituted under this provision shall be dismissed on the ground that there is any error or defect in the notice where the notice mentions the name, description and place of residence of the plaintiff and substantially indicates the cause of action and the relief sought. For calculating the period of limitation as regards suits instituted against the government, the period of notice must be excluded.

In State Of Rajasthan vs Rikhabchand Dhariwal[21], it was stated that whenever it is deemed necessary to implead the State or any one of its Departments as a defendant in a civil suit, it shall be mandatory to comply with the provision of Section 80 of the Civil Procedure Code. Yet again in Chief Conservator of Forests, Government of A.P. Vs. Collector[22],  the Court had drawn the analogy from Section 79 CPC, which directs that the State shall be the authority to be named as plaintiff or defendant in a suit by or against the Government and  Section 80 thereof directs notice to the Secretary of that State or the Collector of the district before the institution of the suit and Rule 1 of Order XXVII lays down as to who should sign the pleadings. No individual officer of the Government under the scheme of the constitution nor under the CPC, can file a suit nor initiate any proceeding in the name and the post he is holding, who is not a juristic person.

Section 81 provides that where a suit is instituted against a public official for 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 for execution of a decree. Further, he cannot be called upon to attend the proceedings of the court where the court is of the opinion that such attendance would be a detriment to public service.

In Sangamesh Printing Press v. Chief Executive Officer, Taluk Development Board[23], the State was not impleaded as a party before the Trial Court in a money recovery suit. The same was dismissed on the ground of non-impleadment of necessary party. During appeal, an application was made under O. 1 R. 10 praying for impleadment of the State, however the High Court decided the matter on merits without considering the same. This Court observed as under :

“Keeping in view the facts and circumstances of the case, we are of the opinion that the High Court should have decided the appellant’s application under Order 1 Rule 10 C.P.C. and, thereafter, proceeded to hear the appeal in question. Not having disposed of the application under Order 1 Rule 10 has caused serious prejudice to the appellant. We, therefore, set aside the judgment of the High Court and restore Regular First Appeal No 29 of 1987 to its file. The High Court should first deal with the application under Order 1 Rule 10 C.P.C. which is pending before it and then proceed to dispose of the appeal in accordance with law.”

While considering the similar case in Chief Conservator of Forests, this Court accepted the submission that writ cannot be entertained without impleading the State if relief is sought against the State. This Court had drawn the analogy from Section 79 CPC, which directs that the State shall be the authority to be named as plaintiff or defendant in a suit by or against the Government and Section 80 thereof directs notice to the Secretary of that State or the Collector of the district before the institution of the suit and Rule 1 of Order XXVII lays down as to who should sign the pleadings. No individual officer of the Government under the scheme of the constitution nor under the CPC, can file a suit nor initiate any proceeding in the name and the post he is holding, who is not a juristic person.

In Bal Niketan Nursery School v. Kesari Prasad[24], this Court held that application for impleadment of a necessary party can be filed at any stage of proceeding provided the Court is satisfied that exceptional circumstances prevailing in the case, warrant the impleadment.

Further, 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. Such a decree shall be executed where it is passed by a court or any other authority and where the decree is capable of being executed as a decree under the CPC or any other law in force.

Recommendation for amendment :

In the same case The Central Law Commission went to the extent of recommending a new provision to be read as Order 27 Rule 5B. The Commission observed:

“we recommend the insertion of the following rule:-

5-B(1) In every suit or proceeding to which the Government is a party or a public officer acting in his official capacity is a party, it shall be the duty of the Court in the first instance, in every case where it is possible to do so consistently with the nature of the circumstances of the case, to make every endeavour to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.

2) If in any such suit or proceeding, at any stage it appears to the court that there is a reasonable possibility of a settlement between the parties, the court may adjourn the proceeding for such period as it thinks fit, to enable attempts to be made to effect such a settlement.

3) The power conferred by sub-rule (2) is in addition to any other power of the court to adjourn the proceedings.”

The relevance of these wider observations is that avoidable litigation holds out money by way of fees and more fees if they are contested cases and this lures a lawyer, like any other homo economics, to calculate income on a speculative basis, as this Government Pleader has done in hoping for a lakh of rupees.

The Court may also, in any case in which the Government Pleader is not accompanied by any person on the party of the Government; who may be able to answer any material questions relating to the suit, direct the attendance of such a person.” In State Of Punjab vs Amar Chand Walia[25], it was held that a perusal of this rule would show that what it requires is a person who may be able to answer any material question relating to the suit that may be posed by the Court. These words do not warrant insisting of the Court on the presence of a particular person. The Court can require the presence of a person who is well conversant with the pacts of the case and would be able to assist the Court in effecting a settlement.

Rule 8 states that where the government decides to take defence 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. 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.

In the matter of State of Rajasthan v. Chiranji Lal Agrawal[26]with reference to competency of the Government Advocate to present the appeal, it was Held by this Court that the provisions of Order 27, Rule 8, C.P.C. being in derogation of the ordinary law should be limited to the purposes expressly for impliedly indicated and cannot be extended beyond those purposes. This provision only enables the Govt. pleader to appear and defend public officers but this provision cannot enable the State to file an appeal on behalf of the public officer. It was further held by this Court that the State is not entitled to contend that the decree having been varied, it is entitled to obtain certificate as a matter of right having regard to the valuation of the dispute for showing that the appeal involves some substantial question of law and the second appeal was consequently dismissed.

Later in Firm Mohanlal Ramchandra v. The Union Of India[27], all that Rule 8-B lays down is that wherever the expressions “Government” and “Government pleader” occur in any rule of Order 27 they shall be read as “Central Government” and such pleader as the Central Government may appoint whether generally or specially for the purposes of this order. In Rules 1 and 2 of Order 27 only the expression “Government” occurs and in relation to the present proceedings this will be read as “Central Government”. The expression “Government pleader” does not occur in Rule 2. Therefore, it cannot be argued that every Government pleader who is authorised to appear on behalf of the Central Government is also authorised to act for the Central Government without any express authority in that behalf.

The question which had arisen for consideration of learned Division Bench of this Court was regarding authority of the Asstt. Government Advocate to present the memorandum of appeal when he was not duly authorised by the department to do so with reference to interpretation of the provisions of Order 3, Rule 4(1) and (6) read with Order 27, Rule 8, C. P.C. in relation to any suit by or against the Central Government. A special appeal was preferred by the appellant against the judgment of learned single Judge of this Court in second appeal dismissing its suit for recovery of compensation which was decreed by the trial Court and the first appellate Court. The first contention on behalf of the appellant before this Court was that the preliminary objection was erroneously rejected by the learned single Judge. Reliance was placed on the provisions of Order 27, Rules 1, 2 and 8, C.P.C.

It was consequently held by this Court that since a Government Advocate cannot act without a general or special authority in writing empowering him to do so and since he is not exempted from the requirements of Sub-rule (1) of Order 3, C.P.C. the then Addl. Advocate General of Rajasthan High Court had no authority to present the memorandum of second appeal in this Court, the second appeal was therefore, incompetent and was consequently dismissed.

Pursuant to Rule 6, 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. No security is required to be furnished by the government or the public official. In Rohtas Singh vs Commissioner, Agra Division[28], it was opined that the government officials against whom Contempt notices are issued should personally incur the expenses of contempt proceedings and only thereafter if they are honorably exonerated the amount spent may be reimbursed to them. It will naturally discover the tendency of flouting the Court orders by the Government officials.

As far as extending legal aid to such government officials to concerned the State Government may prepare a panel of lawyers to defend the government officials in contempt matters but it cannot include in that panel the Government Advocates, Additional Government Advocates, Deputy Government Advocates, Assistant Government Advocates public Prosecutors, Additional/Assistant Public Prosecutors Chief Standing Counsel, Additional Chief Standing Counsel, Standing Counsel or any other counsel who is continuing under engagement for the State. In case, such Stale Law Officers will be allowed to be included in that panel, the Government employees who are facing prosecution for corrupt practices may also demand similar protection from, the State.

 

 

 

 

 

 

 

 

 

Conclusion

Law Commission latest report which looked into provision of section 80 and recommend following :

We feel that there is need for following amendments:

“ Amendment of section 80 and Order V of CPC and also the concerned Court’s Rules – In order to shorten delay, it is necessary that provisions parallel to section 80 CPC be introduced for all kinds of civil suits and cases proposed to be filed by a litigant.”

The provisions mentioned in Code of Civil Procedure only deal with the procedural rights and liabilities that are enforceable against the government and public officers. The substantive rights and liabilities to be followed are those as are provided by the Constitution of India. Many liabilities provided to these eminent persons are for the reason to avoid delay in cases and tackling the issue of importance at the first instance possible. Object behind giving notice to Government representative and that to Public Officer is to correct the problem or accordingly deal the issue at the level where it is raised. However, only a few instance rather all most all cases are left in the manner and no concern is paid to notice either by Government or by Public officer which raise doubt as to provide such liabilities to these person. Thus point of suggestion is to avoid these liabilities from section 80 of C.P.C and to make procedure to file suit against the Government or Public Officer similar as to the common person or else Law Commission should come up with making of new provisions to replace the older one which would actually check the irregularities as well as help in speedy justice which is the main aim of law.

 

 

 

 

 

 

Notice Of Suit Under Section 80, Against the government

.

By Registered A.D.
……………………………..
Advocate
……………………………..
……………… …………….
Date ……………………….

 

TO,

 

The Secretary to the Govt. of ……………………
………………….. Deptt.,
…………………..

 

Dear Sir,

 

Re: Notice under section 80, Code of Civil Procedure

 

Under instructions from my client Shri ………………….. resident of …………………… I hereby give you notice that my client Shri ………………….. shall file a civil suit against the Government in the court of competent jurisdiction after the expiry of two months from the date of service of this notice for the cause of action and reliefs mentioned in the draft plaint enclosed herewith, which may be treated as part of this notice.

 

Yours faithfully,

 

………………….
Advocate

 

Enclosure: Plaint


[1] AIR 1964 SC 669

[2] AIR 1977 SC 1701

[3] AIR 1976 SC 2538

[4] AIR 1989 SC 1530

[5] (1999) 6 SCC 44

[6] AIR 2003 SC 1805

[7] Jehangir v Secretary of state (1903) 27 Bom 189

[8] Chunilal v Ram Krishna ILR (1888)15 Cal 400

 

[9] State of Bihar v Jiwan Das, AIR 1971 Pat 141

[10] State of Punjab v Geeta Iron & Brass

[11] (1984) 2 SCC 627: AIR 1984 SC 1043

[12] Law Commission’s Fourteenth Report at pp. 475-76

[13] Law Commission Twenty-seventh Report at pp. 21-22

[14] Report t Joint Committee

[15] V.G. Ramachandran, Law of Writs (2006) Vol. II, Pt. IV, Chap. II.

[16] AIR 2003 SC 1805

[17] AIR 1964 SC 669

[18] AIR 1977 SC 1701

[19] AIR 1976 SC 2538

[20] AIR 1989 SC 1530

[21] AIR 1961 Raj 64

[22] AIR 2003 SC 1805

[23] (1999) 6 SCC 44

[24] AIR 1987 SC 1970

[25] AIR 1980 PH 318

[26] (1970 Raj LW 111) 

[27] AIR 1972 Raj 152

[28] AIR 1997 All 278

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