Sunday, May 26, 2024

𝗝𝘂𝗱𝗶𝗰𝗶𝗮𝗹𝗗𝗿𝗲𝗮𝗺™

𝙰𝙵𝙵𝙾𝚁𝙳𝙰𝙱𝙻𝙴 & 𝙰𝙲𝙲𝙴𝚂𝚂𝙸𝙱𝙻𝙴

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SUIT BY OR AGAINST GOVERNMENT AND PUBLIC OFFICER


Elaborate the provisions for suit by or against government and public officer under CPC.

It cannot be denied by anyone that the government in India is the guardian of each and every citizen and it is the main aim of government to protect the rights of each and every citizen which have been given to them for their proper growth and development. If any person tries to violate the right given to another person, then the government gives a right to an aggrieved party to file a suit against the wrongdoer and the claim compensation from him. But in some situations, the government itself or their officers while discharging their official duties violate the rights of an innocent citizen then in such a case also the aggrieved person has right to file a suit against the government or that officer.
Section 79 to 82 of the Code of Civil Procedure, 1908, deals with the provisions of suit by or against the government or public servant. According to section 79 of Code of Civil Procedure, 1908, if any suit has been brought against the government, then in such a case, if the suit is against the Central government, then it will be represented as Union of India or if the suit is against the State government, then it will be represented by writing the name of that state.
For example: –
If ‘A’ files a suit against Central government then the suit will be titled as
‘A’ versus Union of India
If ‘A’ files a suit against the government of Punjab then the suit will be titled as
‘A’ versus State of Punjab
In the leading case of Nirmal Chand v. Union of India (SC 1966), the Hon’ble court stated that the provisions given under section 79 to 82, however, prescribe procedure and machinery and do not deal with the rights and liabilities enforceable by or against the government. Substantive rights are to be determined in accordance with the provisions of the Constitution of India.
According to section 80 of Code of Civil Procedure, 1908, if any person wants to file a suit against government or a public servant who has breached his right while discharging his official duty, he cannot file a suit against them directly. If he wants to file a suit against them, it is mandatory for him to serve them a notice and he can file a suit only after expiry of two months from the date of serving the notice. Without serving notice a person cannot file a suit against government or public servant. According to this section if the person wants to file a suit against the Central government except where it relates to Department of Railways then it is mandatory for his to serve a notice to Secretary to the Central government or if it relates to Department of Railway then it will be served to General Manager of the Department of Railway whereas if the person wants to file a suit against the Government of any state then in such a case, the notice will be served to the Secretary of the Government or to the Collector of the district where the cause of action has raised. According to this section if the person wants to file a suit against the public servant who has breached his right while discharging his official duty, then also it is mandatory for him to serve him a notice and the notice which is served to the government or public officer that must contain the detail of plaintiff, cause of action and relief claimed by him.
If the person serves a notice to the government or public servant and then after the expiry of requisite period files a suit then in such a case the court cannot dismiss the suit only on the ground that there is a technical mistake in the notice given to the authorities.
In the leading case of Ghanshyam Dass v. Dominion of India (SC 1984), the Hon’ble court held that in considering whether the essential requirements of the section have been complied with, the court should ask the following questions: –

  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 of left?
    If the notice contains all these details and the suit has been filed by the plaintiff after the expiry of two months then in such a case, the court will not dismiss the suit.
    In the leading case of State of Punjab v. Geeta Iron & Brass Works ltd. (SC 1978), the Hon’ble court stated that the primary object of this section is to afford an opportunity to the government or public servant to consider the legal position and to settle the claim put forward by the plaintiff if the same appears to be just and proper.
    Moreover, in the leading case of State of Madras v. C.P. Agencies (SC 1960), the Hon’ble court stated that the legislative intent behind the provision is that 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.
    According to the view of Law Commission, the provision of serving notice to the government or public servant should be omitted because according to Law Commission, in most of the cases the government or public servant does not exercise the opportunity given by this section to settle the dispute out of the court. They pay no heed towards the notices served to them and they utilize this provision as a technical defence and raise objections against the notices just to defeat the just claims of the innocent citizens. Law Commission in its report opined that in a democratic country like ours there should ordinarily be no distinction of the kind envisaged by Section 80 between the citizen and the State. But in spite of well-considered reasoning and recommendations, the Joint Committee of Parliament rejected these recommendations and favoured retention of these provisions in “public interest”.

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