Liability of administration in tort

State liability refers to the liability of the state arising from the acts of omission/ commission
committed by its servants. It has been governed by written or unwritten laws and is not a static
concept. The State’s liability for the tortious acts of its servants, known as the tortious liability
of the State, makes it liable, voluntarily or involuntarily, for acts of omission and commission,
and puts it before the Court of Law in a claim for unliquidated damages to such acts. This
liability is also a branch of the Law of Torts. Law of Torts like various other laws has travelled
through the British to this country and is now varied because it is regulated by local laws and
constitutional provisions.

English law – In England, the Crown’s outright insusceptibility was acknowledged under
precedent-based law. The administration depended on the maxim “the King can’t be blamed
under any circumstance”. In 1863, in Tobin v. R., the court observed: “if the Crown were at
risk in tort, the rule might have appeared to be insignificant”. In 1947 the Crown Proceeding
Act was enacted which put the Government in an indistinguishable position from a private
person’s view.

Indian Law – The maxim ‘the king can’t be blamed under any circumstance’ was never
acknowledged in India. The government’s absolute insusceptibility was not understood in the
Indian legal system before the constitution’s beginning and in numerous cases, the government
was subjected to its employees’ convoluted actions. According to Article 294(4) of the
Constitution, the liability of the Government of the Union or a Government of the State can
arise ‘from some contract or other.’ Article 12 of the Indian Constitution defines the term
‘state’. Under Article 300 (1), the degree of such liability is settled. It states the Union of India
or State Government’s liability to be the same as that of Dominion of India and the Provision
before the Constitution commenced.

The idea of open responsibility involves an open concern which is imperative. It is a settled
law that every single optional power must be sensibly practised in greater open intrigue.
In Arvind Dattatreya v. Maharashtra State, the Supreme Court refused the transfer of a police
officer because the transfer of the officer was nothing but mala fide exercise of the power to
demoralise honest officers who would efficiently discharge the duties of a public office. It was
observed that the Government demoralises the officers who discharge the duties honestly and
diligently and bring to book the persons indulging in black marketing and contrabanding.

The vicarious liability of the State (for torts) shall be borne by its servants in the exercise of
the duties of the State. If the acts performed were necessary to protect life or property, the State
would not be held liable. Acts such as judicial or quasi-judicial decisions made in good faith
also invite no liability whatsoever. There are specific statutory provisions that are binding on
the administrative authorities. However, such protection would not scale up malicious acts. The
burden of proving a malicious act would lie on the person who is assaulting the administrative
action. The principles of tort law would apply in determining what is a tort and the public
servant would also have access to all of the defenses available to the respondent in a tort
lawsuit.

Respondeat Superior (Let the principal be liable)

Respondent Superior (Let the master answer) was brought to the premise of the subordinates’
limited economic capacity, and the irresponsible behaviour of superiors such as masters or
employers was controlled. This doctrine is based on public policy since it aims to assign the
risks usually associated with it to the business. When applying this doctrine, an employer and
the master are liable for the negligent commissions or omissions of an employee and the servant
which occur during employment. Nevertheless, a relationship between the superior and the
subordinate should be established for the liability to fall upon the superiors.

Actions performed by the subordinates during their jobs or agency under an employer or a
master’s explicit or implied authority, respectively. There are two requirements of the doctrine:

• A true master-servant and employer-employee relationship.

• The tortious act of a servant and an employee must be one within the scope of his
employment. The ‘scope of employment’ refers to the act performed under the
express or implied authority of the superiors.
In the case of Automobiles Transport vs. Dewalal and ors, the Rajasthan High Court held that
there is always the presumption that a vehicle is driven on the order of the driver, or by his
approved agent or servant, and it is up to the appellant to prove that such presumption is
unjustified and not confirmed. In the case of Smt. Savita Garg vs. The Director, National Heart
Institute, the Supreme Court held that, in the employment contract, the hospital is the principal
responsible for the actions of the agent, i.e. one of his doctors, if the court and the complainant
are unable to justify that there was no negligence or recklessness on their part and that they
were acting with due care and caution.

Qui-Facit per Alium Facit per se (He who acts through another does it himself).

Qui facit per alium facit per se is a fundamental statutory maxim of agency law. It is a maxim
frequently stated when discussing the employer’s liability for the employee’s actions as regards
vicarious liability. According to this maxim, by employing servants the master is obliged to
perform the duties, he is responsible for their actions in the same way as he is responsible for
his actions. Indirectly, in the role portrayed by the agent, the concept is in practice or present
such that the role performed is seen as the work of the agent himself. Anything that a principal
can do for itself can be done through an agent. The exception to that maxim would be personal
acts of nature.

In H.E. Nasser Abdulla Hussain vs. Dy. City a tenet of law canonized the dictum: “Qui facit
per alium facit per se”. It was held in the case of Ballavdas Agarwala vs. Shri J. C.
Chakravarty, that the sections vicariously fastened the responsibility on the masters for the acts
of the servants. In K.T.M.S. Mohd. And Anr vs. Union Of India, it was held that the Indian
Income-tax Act is a self-contained Code, which is exhaustive of the matters dealt with and its
provisions portray an intention to depart from the common rule of Qui facit per alium facit per
se.

Compensation by State

The word ‘tort’ (civil wrong- the violation of legal obligation) has been defined in Chambers
Dictionary in the following words:- “Tort is any wrong or injury not arising out of contract for
which there is a remedy by compensation or damages.” Therefore, tort occurs either from
infringement of no contractual obligation or from neglect of civil duty. In other words, a tort is
a civil wrong, for which damages are the only remedy. The breach of obligation towards people,
in general, is the basic prerequisite for the execution of the tort. Though tort is a civil wrong,
it’d be wrong to imply that all civil mistakes are tort.
According to section 70 of the Indian Contract Act, if a person is lawfully doing anything for
another person or delivering anything to him the other person enjoys the profit thereof, the
latter is obliged to indemnify the former or restore the thing so done or delivered to him. If
Section 70’s conditions are met, then the government would be liable to pay compensation for
the work performed or services rendered by the state. Section 70 is not based on a subsisting
contract between the parties but a quasi-contract or restitution basis. This encourages an
individual selling goods or providing services not for free to demand compensation from the
person receiving the value of the same. This is a duty that exists on equal grounds and it does
not appear to be explicit agreement or contract.

If the agreement with the Government is null and void according to Article 299(1), the party
obtaining the advantage under that agreement is obliged to restore it or indemnify the individual
from whom it was obtained. Therefore, if a contractor agrees with the government to construct
the down payment received and the agreement is found to be void as the conditions of Article
299(1) have not been met, the government may recover the amount advanced to the contractor
according to Section 65 of the Indian Contract Act. Section 65 provides that if an agreement is
found to be invalid or a contract is invalid, any person who has received any benefit under such
agreement or contract is obliged to restore it and compensate the person from whom it was
received.

A public servant might be incompetent in the performance of his duty and obtaining
compensation from him is difficult. The compensation is more important to the aggrieved
person than punishment. The State must also be vicariously held responsible for the
wrongdoings of its servants. In Bhim Singh v. the State of J&K, where the petitioner, a member
of the Legislative Assembly, was arrested while he was travelling to Srinagar to attend the
Legislative Assembly in gross violation of his constitutional rights under Article 21 and Article
22(2) of the Constitution, the court granted the petitioner monetary compensation of Rs. 50,000
by way of exemplary costs. In Lucknow Development Authority v. M.K. Gupta, the Supreme
Court observed that when the public servant causes injustice and pain to the common man mala
fide, and capricious acts while discharging official duties, it makes the State liable to pay
damages from public funds to the aggrieved individual. The State is constitutionally obliged to
recover the reimbursement sum from the public servant in question.

Pertinent case laws

Under East India Company, the first judicial definition of State Liability was made in the case
of John Stuart, 1775. It was decided for the first time that in cases concerning the dismissal of
Government Servants, the Governor-General in Council had no exemption from the
jurisdiction of the Court. In Moodaly v. The East India Company, the opinion that the Common
law doctrine of sovereign immunity did not apply to India was expressed by the Privy Council.

Pre-Constitution judicial decisions

• Peninsular and Oriental Steam Navigation Company v. Secretary: The rule that was
deduced in this case states that the East India Company(State) is excluded from the
risks arising due to any action taken in the operation of sovereign capacities. It drew
a significantly strong distinction between state sovereign and non-sovereign
elements.

• Secretary of State v. Hari Bhanji: The Madras High Court ruled that the
invulnerability of the State should be kept to state activities. The decision did not go
beyond state actions in the P and O Cases while providing representations of
circumstances where the invulnerability was available.

Post-Constitution judicial decisions

• State of Haryana v. Santra: It was held that there was negligence on the state
responsibility standards. Henceforth, when the negligence occurred, it added up to
behave in the absence of integrity, therefore the State could not use the defense of
sovereign resistance. It was also held that negligence by professionals who have an
obligation cannot escape the responsibility by asserting the solicitor’s assent guard.

• State of Rajasthan v. Vidyawati: The case dealt with whether the State was at risk
for its hireling’s tortious act – The Court held that the State’s liability to its worker’s
tortious act within the scope of its business and to work in that capacity was similar
to that of some other manager.

• Kasturi Lal v. The State of UP: The decision for this situation was given holding that
the act, which offered to ascend to the present claim for damages, was presented
throughout its business by the respondent’s representative. That work had a place
with a class of sovereign power evacuating any State-related liability.
 • In Kesoram Poddar v. Secretary of State for India, the Supreme Court’s decision
created a significant state immunity requirement in tort based on the principles of
sovereign and non-sovereign duties. It decided that immunity can only be claimed
for State action if the act in question was done in the course of exercising sovereign
functions.

• In the case of Union of India v. Harbans Singh, it was deduced that damages can’t
be recovered when a man was assassinated due to an obligatory military driver’s
rash and careless driving of a military truck, because it was a sovereign capacity. In
the case of Secretary of State v.Cockraft, the offended party was hurt by the reckless
removal of a pile of rock from the military street he was walking over. The lawsuit
against the government was not viable in the light of the fact that the military and
military street maintenance were a sovereign rather than a private capacity.

Conclusion

All state actions and their instrumentalities must be directed towards the objectives set out in
the Constitution. Every government advance should be towards fair conventions, social and
financial improvement, and open welfare. Consequently, sovereign insusceptibility as defense
should not have been accessible where the State has been engaged in business or private
enterprise, nor is it accessible where its officers are guilty of interfering with the life and
independence of a lawless citizen. In today’s environment, where the concept of sovereignty
itself has undergone a dramatic shift, the teaching of sovereign invulnerability has little value.
Sovereignty is, at present, vesting in the general population. Article 21 of the Indian
Constitution forbids a State from depriving a person of his life and freedom except in
compliance with a process laid down by law. It includes every aspect of life to expand the word
‘life’ which makes life meaningful, complete and living, and even culture, tradition, heritage,
and personal freedom. Constitutional laws including directives of Public policy principles place
a moral duty on the State for greater enjoyment of human life and dignity. The Constitutional
Rights have been guaranteed by the Constitution and are enforceable. Article 32 and Article
226 have not only made the protection of sovereign immunity entirely inapplicable but also
overthrown it all together because it can not go along with constitutionally guaranteed
freedoms. Because of the full abolition of the sovereign immunity concerning constitutional
rights, in particular Article 21, the right to award monetary compensation for violation of law
is justified. Governments of the Union and the State should be responsible for tortious actions
committed by their workers in the course of employment for breach of Article 21. In the case
of Nilabati Behera v. State of Orissa, the Court set out the rules on the State’s responsibility
for the payment of compensation and the distinction between the responsibility and the
substantive liability for the payment of compensation for the tort committed. If no other
possible mode of remedy is open, the Court shall award monetary compensation based on the
principle of strict liability for violations of constitutional rights by the State or its employees.
Therefore, every government activity has a public dimension in it and thus needs to be fairly
informed and motivated by public interest.

Liability Of State In A Contract

Origin:
In England the concept The King can do no wrong had its sway. All the courts in England were under the
Crown and hence Ould not be sued. Absolute immunity was provided to the Crown and hence couldn't be
held liable for the acts of their servants. After the Crown Proceeding Act 1947, the immunity provided to
them was abolished and the Crown could be held liable for contractual (and tortuous) obligations.

In India under article 294B states about the liability of Union and State Government can be sued under any
contract(tortuous liability as well)The government and state can be sued with regard to their respective
affairs.

Liability of state:
Under article 300 of the constitution which empowers the principle, state can be sued in its own court
subject to certain principles of liability.

In Stream Navigation Company case the SC stated that as the general rule is concerned, it is there for the
attribute of sovereignty that the state can't be sued without the consent and with this respect distinction
between sovereign and non-sovereign functions were drawn.

Sovereign and Non-sovereign function:

Sovereign function is one where the state is not answerable to the court for the functions which concerns
defence, maintenance of armed forces, peace of the state while non sovereign functions are those functions
under which the state can be sued. It includes any kind of tort or breach of contract, they will be liable for
their damages which is states.

In State Of Rajasthan v/s Mrs. Vidyavati, Vidyavati's husband died of an accident caused by the
government driver who was driving negligently the government jeep from the garage to the office.
Vidyavati sued the government , for compensation. It was held valid as he died during the course of his
employment.

Liability of state in a contract under article 299:

The objective of this article is to safeguard the government and not to saddle the government with
obligations, which are made by unauthorised officers or in excess of authority. Saving funds is essential.
Hence if the contract is invalid the government can ratify and make modifications and can make it valid.

In article 299 it states the requirement of the formulation of contract:

1. Contract made by President or governor

2. By state or union
3. It should be assumed all the contracts were under the eye of president or governor
4. Governor or president can authorise agent to enter in their behalf
5. Should be a written contract (oral contract is not binding on the government)

It is not directory but mandatory that it must be complied with all the requirements under article 299, hence
it can't be enforced by the government or the other party. When the contract is valid, article 299 immunes
the Governor or President and also the person they authorised will also be immune.

1. Contract made by an unauthorised person

In UOI V NK Pvt Ltd, railway board made an offer to the company to maintain surplus trains. The
authorised person was the director of store on behalf of President. The letter of acceptance was
given by secretary. It was held not binding as the contract created was by an unauthorised person.

2. Even if the contract is void if the state acquires any kind of benefit they'll be liable to pay:
State Of West Bengal v/s BK Mondal
Construction was to be executed by the respondent and the building was constructed and that it
was used for government purpose. No payment was made to the contractor. The government
claimed as all the requirements of article 299 were not in compliance the contract was not
enforceable. The SC held that it is not enforceable but the government needs to pay under section
70 of Indian Contract Act for which the work has been done.

3. When the government didn't receive any kind of benefit under void contract:
In State Of UP v/s Murari Lal & Brothers
Officers of agricultural department was not authorised to enter into contract on behalf of
government. He entered into a contract for space of cold storage for potato. But the government
never sent the potato. The place was kept vacant and the person suffered loss. It was held not
applicable under article 299 and section 70. Hence the party will have no over the claim as no
 benefit was taken by the government. Till there is no benefit it can't claim for money.

LIC India v/s Consumer Edu & Research Centre

When a matter of state action, the action of state having public interest authority, the terms and
policy were restricted to some class of person and for other people the benefit was not available.
Because it states instrumentality it must make fair, just and socio economically correct policy and
if the policy is not biding to these it won't be valid.

4. When the contract is between state and a person it is precisely contractual and also the rights. The
court can entertain the petition in the area where the contract shows arbitrariness, unjust and
unfair.

Mahabeer Auto Store v/s IOC

The petitioner carried business of lubricant service for 18 yrs. IOC suddenly stopped the supply and no
opportunity was given. The SC held that it is well settled principle, every action taken by instrumentality
of state, it should be taken without any arbitrary and should be informed(reasoning should be given) as
IOC comes under article 12 and should follow rules and tell the termination reason which should be
relevant. Government while entering into contract should give equal opportunity to everyone.

Eurasian Equipment & Co Ltd v/s State Of West Bengal

Government blacklisted some person to enter into contract. This hampered them to enter into contract . All
the individuals should be given equal right to opportunity to be heard and also the reason should be valid.

SUITS BROUGHT BY OR AGAINST GOVERNMENT OR PUBLIC OFFICERS

Suits between individuals require no notice to be given to the defendant by the plaintiff before
the filing of a suit. However as per Section 80 of the Code of Civil Procedure, 1908, no suit
will be instituted against the Government or against a public officer with regards to any act
done by such an officer in his official capacity, until the expiration of two months after the
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 a railway, the General
Manager of that railway;
(c) 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;

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

(e) in the 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.[v]

AMENDMENT

The amendment to this section had made some changes in 1976. By the amending act of 1976
section 80 has been extensively amended. Main changes consist of in the insertion of subsection
(2) and (3) which are totally new. Sub-section (2) has been inserted to permit the institution of
a suit without notice but subject to the important restriction prohibiting the grant of ‘relief in
the suit whether interim or otherwise’ except after giving a reasonable opportunity of showing
cause in respect of the relief prayed for in the suit. Subsection (3) prohibits dismissal of a suit
where the notice, has been given but suffers from certain technical deficiencies.

It is expected from public authorities that they will let the plaintiff know their stand within the
statutory period or in any case if has chooses to take up litigation. In certain cases, the court
may be obliged to draw an adverse presumption if the notice is not acknowledged or telling the
plaintiff of its stand and if no stand is taken during the trial it may be considered as an
afterthought.[vi]
NATURE AND APPLICABILITY

Section 80 enumerates two types of cases i) suits against the government, and ii) suits against
public officers in respect of acts done or purporting to be done by such public officers in their
official capacity. Regarding the former, the notice is required to be given in all cases. Regarding
the latter, notice is necessary only when the suit is in respect of any act “Purporting to be done”
by the public officer in the discharge of his duty, not in any other cases.[vii] Although it has
been said that substantive rights are to be determined in accordance with the provision of the
Constitution[viii], Section 80 of the Code is not a procedural provision, but a substantive
one.[ix]
A statutory body may be an instrumentality of the state within the meaning of Art. 12 of the
Constitution[x], nevertheless, it would not answer the description of ‘government’ as it is
understood in law and in the context of S. 80.[xi]
This section is explicit and mandatory and admits of no implications or exceptions.[xii] The
language of this section is imperative and absolutely debars a court from entertaining a suit
instituted without compliance with its provisions. If the provisions of the section are not
complied with, the plaint must be rejected under O. 7, r. 11(d)[xiii].
Section 80 is mandatory and a suit filed before the expiry of the period of two months, which
does not necessarily mean 60 days but has to be calculated month-wise[xiv], after the serving
of notice as per S. 80(1) is not maintainable.[xv]
LAW COMMISSION OF INDIA

The Law Commission of India did not favor in retaining the provision of issuing notice under
S. 80 before filing a suit by the aggrieved party. It cited as a reason, inter alia, the hardship
involved in a large number of cases where immediate relief was needed. The evidence disclosed
that in a large majority of cases, the Government or the public officer made no use of the
opportunity afforded by the section. In most cases, the notice remained unanswered.[xvi] In
large number of cases, Government and public officers utilized the provision as a “technical
defence” and in a number of cases, the objection has been upheld by the Court defeating just
claims of the citizens.[xvii]
The matter was again considered by the third Law commission in the twenty-seventh report
where 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 India there should
ordinarily be no distinction, as is created by Section 80, between the citizen and the State.[xviii]
The Joint Committee of Parliament, however, has, in “public interest”[xix], favored the
retention of the issuance of notice under S. 80, after having considered the reasoning and
recommendations of the Law Commissions.
ESSENTIALS

A notice under S. 80 must contain

1. name, description, and place of residence of the person giving notice;

2. a statement of the cause of action; and
3. the relief claimed by him.
In considering whether the essential requirements of the section have been complied with, the
Court should ask the following questions:[xx]
1. Whether the name, description, and residence of the plaintiff are given so
as to enable the authorities to identify the person giving the notice?
2. Whether the cause of action and the relief which the plaintiff claims have
been set out with sufficient particulars?
3. Whether such notice in writing has been delivered to or left at the office of
the appropriate authority mentioned in the section? ; and
4. 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?
NOTICE WHETHER EMPTY FORMALITY?

The statutory notice served in pursuance of section 80, serves the objective of providing an
opportunity to the government or a public officer to take the matter in the reconsideration and
take an appropriate decision which is in accordance with law. The notice by itself was not
intended to be an empty formality but it has become one.

The administration is often unresponsive and shows no courtesy even to intimate the aggrieved
party why his claim is not accepted[xxi]. The reason behind the enactment of this section was
as a measure of public policy, the purpose was the advancement of justice and securing of the
good of the people by avoiding unnecessary litigation.
Krishna Iyer J. has stated “ We like to emphasize that Governments must be made accountable
by Parliamentary social audit for wasteful litigation expenditure inflicted on the community by
inaction. A statutory notice of the proposed action under S. 80 C.P.C. is intended to alert the
State to negotiate a just settlement or at least have the courtesy to tell the potential outsider
why the claim is being resisted.

Now S. 80 has become a ritual because the administration is often unresponsive and hardly
lives up to the Parliament’s expectation in continuing s. 80 in the Code despite the Central Law
Commission’s recommendations for its deletion”[xxii]
The law commission was in fact against the provision of issuing a notice under section 80,
before more than fifty years it has noticed that the section had inflicted hardship in cases where
immediate relief was needed and in most of the cases the notice remained unanswered.

NOTICE WHETHER MANDATORY?

The provisions in section 80 are express and explicit by themselves and make the serving of
notice mandatory by not admitting any implications or exceptions. They are imperative in
nature and must be strictly complied with. Notice whether under section 80 is the first step in
the litigation.[xxiii]A court cannot entertain any suit unless the notice is duly served to the
public official under section 80(1). If a section had done injustice, it is a matter which can be
rectified by the legislature and not by a court.[xxiv]
A plaintiff filed a suit to stop the tax officer from selling the suit property he purchased from
the defendant, who was in arrears of income tax, it was held by the court that the central
government was a necessary party to the suit. Hence unless a notice has been served under
Section 80, the suit will not be maintainable[xxv]
The section is imperative and must undoubtedly be strictly construed; failure to serve a notice
complying with the requirements of the statute will entail dismissal of the suit.[xxvi]
Construction of Notice: As mentioned before the compliance with section 80 by serving a
notice is mandatory. But it is a procedural provision, a means by which the court impart justice.
A notice under this section must not be construed in a pedantic manner divorced from common
sense[xxvii]
Pollock has stated that We must import a little common sense into the notice of this kind. A
statutory notice must be reasonably construed, keeping in mind the ultimate objective that an
interpretation should not lead to injustice.Every venial defect or error not going to the root of
the matter cannot be allowed to defeat justice or to afford an excuse to the government or a
public officer to deny just claim of an aggrieved party”[xxviii]
The question has to be decided by reading the whole notice in totality and in a reasonable
manner. If the notice on such a reading the court is satisfied that the information which was
necessary to be provided to the defendants by the plaintiff was in fact provided, inconsequential
defects or error is immaterial and will not vitiate the notice. The provisions of the section are
not intended to be used as booby-traps against ignorant and illiterate persons.[xxix]
ACT PURPORTING TO BE IN OFFICIAL CAPACITY

The expression “any act to be done by such public officer in his official capacity” takes within
its sweep acts as also illegal omission. Likewise, it also covers the past as well as future acts.
All acts done or which could have been done under the color or guise by an officer in the
ordinary course of his official duties would be included therein[xxx].If the allegations in the
plaint relate to an act which was purported to be done by a public officer in his official capacity
means that the said act must be such that it could be done ordinarily by a person in the ordinary
course of his official duties. It does not cover acts outside the sphere of his duties [xxxi]There
must be something in the very nature of the act complained of which attaches to the official
character of the person doing it.[xxxii]
The test to be applied in these cases is whether the officer can reasonably claim protection for
the acts that he commits or that it was performed by him purely in his private or individual
capacity. In the case of him claiming protection notice under Section 80 is necessary, and in
case it was performed by him purely in his private or individual capacity it is not.[xxxiii]
WAIVER OF NOTICE

Although, Under Section 80 of the civil procedure code mandates issuance of a notice for the
institution of notice, it is considered to be a mere procedural requirement and not a substantive
need. This is because the issuance of a notice does not necessarily affect the jurisdiction of the
court in question. In the case of Dhina Singh v. Union Of India, It was held that this notice is
for the benefit of the government or the public officer, it is the prerogative of the government
to choose to waive the right[xxxiv]. Furthermore in the case, Commr. Of taxes v. Golak Nath,
it was held by the courts that the facts of the particular case were vital to see if the right could
be waivered or not. [xxxv]
FORM OF NOTICE

No particular has been prescribed under the code. Due to the above, there is no need to give it
in any particular form to give a notice under Section 80. The mere satisfaction of all conditions
prescribed in this section is sufficient. Also, in the Amar Nath v. Union of India, it was held
that the notice must merely inform the opposite party about the nature and the basis of the claim
and relief sought.[xxxvi]
MODE OF SERVICE

A notice submitted under section 80 of the civil procedure code must be given to, or left at the
office of, the appropriate authority specified. This was held in the State of A.P V. Gundugola
Venkata[xxxvii] . IT has been specified in the code as to who the appropriate authority is under
section 80. As per the section, it must be given to the secretary of the department or the collector
of the district. Under this section, personal delivery of the notice is not necessary, thus making
the words “left at the office” redundant. The section, however, does not prohibit the personal
delivery of the notice. It further allows the notice to be sent through registered post.
TECHNICAL DEFECT IN NOTICE: SECTION 80(3)

The Code of Civil Procedure (Amendment) Act, 1976 gives a lot of clarity on a suit issued
against the government if there is a defect in the notice issued. The Amendment added
Subsection 3 to section 80 whereby it has been explicitly stated that no suit against the
government has been dismissed merely on the ground of defective notice. It also adds that in
such a case the name, residence or the residence of the plaintiff is specified in the notice,
allowing for the identification of the plaintiff in the notice delivered or left at the authority or
public officer and the cause of action and the relief claimed by the plaintiff had been
substantially indicated therein. This means that if the notice contained basic details, it would
be sufficient.

The above amendment to the code was made with the intention that justice is not denied to the
aggravated parties on the grounds of technical defects. Therefore, a notice under section 80
cannot be held to be invalid and no suit can be dismissed on the grounds that there has been a
certain technical defect or error in the notice delivered or on the ground that such notice was
served in an improper way.[xxxviii]
Also, the joint committee stated the following”
“The committee also feels that with a view to seeing that the just claims of many persons are
not defeated on technical grounds, the suit against the government or the public officer should
not be dismissed merely by reason of any technical defect or error in the notice or any
irregularity in the service of the notice if the name, description and residence of the plaintiff
have been so given in the notice as to enable the appropriate authority or public officer to
identify the person serving the notice, and the notice had been delivered or left in the
appropriate authority, and the cause of action and the relief claimed has been properly
indicated in the notice.”[xxxix]
In copulating the period of limitation for instituting a suit against the government or public
officer, the period of notice has to be excluded. [xl]
LEAVE OF COURT: SECTION 80(2)
Through the amendment made to the civil procedure code in 1976, subsection 2 was added to
section 80. As per this, the aggrieved party can institute a suit against the government for
obtaining urgent or immediate relief with the leave of the court even without serving the notice
to the government or public office.[xli]This subsection, thus, engrafts an exception to the rule
laid down in subsection (1) of section 80 and allows the plaintiff to obtain urgent relief in grave
cases even without issuing the notice.[xlii]
The main objective of this is to prevent any failure or miscarriage of injustice in urgent cases.
It is the urgency and immediate relief which would weigh with the court while dealing with a
prayer to dispense with the requirement of notice and not the merits of the
case.[xliii] Subsection (2) however, is enacted in such a way that in this type of case, the court
will not have any authority to grant relief, interim or otherwise, unless a reasonable opportunity
has been given to the government to show cause in respect of the relief prayed for in the suit.
WRIT PETITION

As per Section 80 of the code, it can be stated that a writ petition filed under article 32 and
article 226 of the constitution does not constitute a suit as per the definition and scope of this
section. Hence, prior notice to the government or public officer is not necessary before filing a
petition in the Supreme Court or in a high court[xliv]
Computation of Suit:
In computing the period of limitation for filing a suit, the period of notice should be
excluded.[xlv]
Premature Suit:
A suit instituted before the expiry of two months of notice as required by section 80 of the code
is liable to be dismissed only on that ground[xlvi]
Appeal:
An order passed under section 80 is neither a decree nor an appealable order, and hence, no
appeal lies against the order. [xlvii]
Revision:
Under Section 115 of the code, an order given under Section 80 is revisable as it considered as
a “case decided”. If a court subordinate to the High Court makes an order which is patently
illegal and suffers from jurisdictional error, then it can be rectified by the High Court.[xlviii]
Title of Suit: Section 79:
In any suit filed against the Government, The Government or the authority against whom the
case is filed shall be named as a party in the following manner

1. In case of a suit by or against the central government, the Union of India

2. In the case of a suit by or against the state government, the State.[xlix]
The statement in Plaint:
Even after the expiration of two months, a plaint can be presented before the court. This must
contain a statement which, under section 80 of the code, has a statutory notice which has been
delivered or left as per subsection (1) of section 80. An omission to make such a statement is
fatal, and in its absence, the plaint will be rejected by the court.[l]
Parties:
Where a suit is filed against a public officer in respect of any act purporting to be done in his
official capacity, the government should be joined as a party to the suit.[li]
PROCEDURE: RULE 27

In the case where there is a suit filed by or against the Government, then such a plaint will have
to be signed by any authorized person appointed by the Government. It is also necessary that
this person is well versed with facts of the case. If such a person is authorized by the
government, then he shall be deemed to be a recognized agent of the Government as per the
Civil procedure code. It has also been given in the code that multiple summons may be issued
to a government pleader.

There is no need for the state counsel to file a Vakalatnama. Reasonable time should be granted
to the government for filing a written statement.[lii] The courts, in all cases, must assist the
Government to arrive at a settlement in all cases where it is a party. This is considered as one
of the main duties of the court. There are instances where the suit filed may have a substantial
question of law or that it may require the interpretation of the law or the constitution.
In such cases, the court will need to send a notice to the Attorney General, if the question is
regarding a central law or it will need to send a notice to the advocate general if the suit deals
with state law. This has been given in Order 27-A of the Code.

OTHER PRIVILEGES

In the case where a suit has been brought up against any public officer, then it has been dictated
by Rule 5-A that the Government must be a joined party to the suit. An obligation has been
bestowed on the courts by Rule 5-B to assist the government or the public officer in question
is coming to a settlement. Whenever the public servant is the defendant, then rule 7 ensures
that there is a reasonable amount of time given to the public servant to make a reference to the
government. Rule 8-A protects all those official against whom suits have been filed when they
were discharging their duty or acting in an official capacity.

Section 81 is also considered as an important privilege given to a public servant. It allows the
court to exempt the public servant from appearing before the court. It can do this only if
believes that by making the person absenting himself from his duty, there is a loss caused to
the public. It has also been stated under section 82 that no execution will be entertained by any
court against any decree passed by the government is a public officer. The only condition that
must be fulfilled for seeking this is that it must be unsatisfied for three months since the date
the decree was passed.[liii]
CONCLUSION

This project has explained what suits against the government and public officials are. The
project starts off by saying what exactly is stated in Section 80(1) which explains how a suit
must be filed. After this, it was felt that there had to be a special emphasis given to the
amendment and how it changed the whole sections pertinent to the above topic.
There is also a mention about the nature and applicability of such suits with a mention about
the various essentials mentioned under Section 80. This project also tries to answer some of
the questions with respect to this topic such as whether notices in this matter is just a mere
formality or if they are mandatory. As this is with respect to government and public officers,
this project also speaks about what happens to acts that are conducted in an official capacity.

After concluding the above topics, this project attempts to elucidate the various aspects of these
types of suits. It speaks about whether rights granted under this can be waived, the forms in
which notices can be served and also the modes in which these have to be served. As Justice
Sen stated, “laws can survive only on a technicality.” Keeping in view with it, this project
speaks about some of the technicality of law, like what happens when there is a technical
defection in the notice, or about the exclusion period of the notice or when there is a need for
a judgment on an urgent basis.

Additionally, this project talks about the procedure when writs are files, or when there is a
premature suit, on appeal or if there is a revision. In conclusion, this project speaks about
procedure given under rule 27 and other privileges given to parties.