Suits by or against Government or Public Officers

Section 80 of Civil Procedure Code, 1908 deals with suits by or against government or public officers.

However this section declares that no suit shall be instituted against a public officer in respect of any act, purporting to be done by such public officer in his official capacity, until the expiration of two months notice in written delivered to, or left at the official of:

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

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

(c) in case of a suit against the Government of Jammu and Kashmir, the Chief Secretary to that Government, or any other official authorised by that Government in this behalf.

(d) in case of a suit against any other State Government Secretary to that Government or Collector of that District.

(e) in case of a public officer, delivered to him or left at his office, stating the cause-of-action, the name, description and place of residence of the plaintiff and the relief which he claims.

The basic object behind this mandatory provision of section 80 is that an opportunity is given to the Government concerned or public officer to consider the legal position and to settle the claim, asked against that Government concerned or officer as the case may be. The Government unlike private parties, is expected to consider the matter properly and after obtaining proper legal advise, two months period is given in the public interest.

The legal position and objective was broadly examined in a leading case of Bihari Choudhary v. State of Bihar[i].In this case  the appellants herein are the plaintiffs in a suit instituted in the Munsiffs Court, Bihar Sharif, seeking the reliefs of declaration of title and delivery of possession with manse profits in respect of the properties described in the plaint. The State of Bihar-the 1st respondent herein is the main defendant in the suit. Prior to the institution of the suit, the plaintiffs had issued a notice to the 1st Respondent-State-under Section 80 C.P.C. on 18.2.1969 and Exhibit 2 is a copy of the said notice. However, without waiting for the statutory period of two months, the plaintiffs instituted the suit on 2.4.1969.

In the written statement filed on behalf of the State of Bihar, it was contended, inter alia, that the suit was not maintainable for want of proper notice under Section 80 C.P.C. This contention was upheld by the trial court which also recorded ridings against the plaintiffs on the remaining issues concerning the title to the properly and their entitlement to reliefs of declaration and delivery. of possession.

The first appellate court to which the matter was carried in appeal by the plaintiffs dismissed the appeal on the ground that the plaintiffs’ suit was not maintainable inasmuch as due notice under Section 80 C.P.C. had not been given. A second appeal preferred by the appellants to the High Court at Patna did not meet with any success and it was dismissed in liming. Hence this appeal by the plaintiffs.

Notice under section 80 CPC

For constituting a legal notice, as mandatorily provided by section 80 must contain: (a) the cause-of-action, (b) the name, description and place of residence of the plaintiff, and (c) the relief which he claims; and the plaint must contain a statement that such notice has been so delivered or left. Failure to comply with such requirements will entail dismissal of suit.

In case of State of Andhra Pradesh v. Gundugola Venkata Suryanarayana[ii], the Hon’ble Supreme Court laid down following test to find out whether the essential requirements of section 80, have been complied with or not:–

(i) whether the name, description and residence of the plaintiff are given so as to enable the concerned Government or authorities to identify the person giving the 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 notice has been served, and the plaint contains a statement that such a notice has been so delivered or left. 

Section 80(2) than carves out an exception to the general rule, and lays down that a suit to obtain an urgent relief can be instituted with the leave of the court “without serving the two months statutory notice.” However, even if suit is so allowed to be instituted the Court cannot grant any relief, interim or otherwise, unless the Government or the public officer has been given a reasonable opportunity of showing cause in respect of such relief.

Section 80 also clarifies that such a suit is not to be dismissed by the Court merely because of any error or defect in the notice, if such a notice:

(a) the name, description and residence of a plaintiff had been so given as to enable the appropriate authority to identify the person serving the notice.

(b) the cause-of-action and relief claimed has been substantially indicated.

Section 80(3) of the Code of Civil Procedure, 1908 provides that no suit against the Government or public officer shall be dismissed merely on the ground of error or defect (any technical) in the notice or any irregularity is service of the notice if the abovementioned two conditions are fulfilled.

In case of Vasant Ambadas Pandit v. Bombay Municipal Corpn.[iii],  the court held that though a notice under section 80 is a mandatory provision and it should be complied with to meet the ends of justice properly but on the question whether this condition (requirement) could be waived by the party, it was held that it is open to Government or the concerned officer to waiver this condition.

Does the term “Government” in section 80 of the Code of Civil Procedure, 1908, means and includes “Semi Government organisation”

In Kanta Prasad Singh v. Regional Manager F.C.I.[iv], AIR 1974 Pat 376, held that the capital of the corporation was provided by the Central Government, as that its working was supervised or directions were issued by the Government does not make it a “Government” within the meaning of section 80. Although Code of Civil Procedure does not define “Government” but it cannot include a corporation constituted under and Act of Parliament.

In Kerala State Electricity Boards case[v], it was observed that a statutory body as Electricity Board of F.C.I., or any other category may be instrumentality of the State but it would not answer the description of the “Government” as understood by law.

Thus Government or Semi Government organisation or corporation are different from the “Government authorities” therefore, issues of notice under section 80 of the Code of Civil Procedure, 1908 is not a precondition for the filing of the suit against them.

In Sahebgouda (Dead) by LRs v. Ogeppa[vi], the original suit by plaintiff-appellants in the court of Munsif, Bijapur was filed for declaration that plaintiff are ancestral pujaris and have pujakiri rights of performing puja in Amogsiddha temple at all times by turn among themselves and a consequential decree of permanent injunction restraining defendants from interfering in plaintiff’s right of puja of Amogsiddh God in the temple.

In the pleading of the parties the Munsif framed 11 issues and issue 8 was whether the suit was barred on account of section 79 and section 80 of the Bombay Public Trust Act. The learned Munsif decided issue 8 in favour of appellants and held that suit was not barred by aforesaid provisions of the Act.

Feeling aggrieved the appellants as well as respondents 2, 4 and 6 preferred appeals against the decree. The first Appellate Court allowed the appeal of the appellants and dismissed the appeal of the respondent and decree passed by the Trial Court was modified. The appellants were held to be hereditary pujaris of Amogsiddha Temple and respondents were prohibited to cause obstruction in peaceful performance of puja by appellants.

Respondents preferred second appeal from judgment of Appellate Court. The High Court hearing second appeal directed to file the application for registration of the temple before the Assistant Charity Commissioner. The question whether temple is public trust could only be decided by Assistant Charity Commissioner and not Civil Court which was barred in section 80 of the Bombay Public Trust Act. The second appeals were allowed and the suit filed by appellants was dismissed.

The appellants made appeals by special leave against judgments and decree dated 2nd July, 1992 of the High Court, Karnataka. The Supreme Court allowed the appeals and set aside the decree of the High Court on the following grounds. The only relief claimed is declaration regarding the rights of appellants to function as hereditary pujaris and a consequential decree for injunction for restraining the respondents from interfering with the aforesaid rights of the appellants. Therefore, the bar of section 80 of the Bombay Public Trust Act, which by the express language used is would not apply.

[i] Bihari Choudhary v. State of Bihar, AIR 1984 SC 1043.

[ii] State of Andhra Pradesh v. Gundugola Venkata Suryanarayana, AIR 1965 SC 11.

[iii] Vasant Ambadas Pandit v. Bombay Municipal Corpn., AIR 1981 Bom 394.

[iv] Kanta Prasad Singh v. Regional Manager F.C.I., AIR 1974 Pat 376.

[v] Kerala State Electricity Boards case AIR 1989 Ker 89.

[vi] Sahebgouda (Dead) by LRs v. Ogeppa, (2003) 6 SCC 151.

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