So far as suits against Governments are concerned, they cannot be validly instituted without giving a notice as required by S. 80, Civil Procedure Code (CPC).
But when we come to filing suits against public officers, S. 80, Civil Procedure Code applies only to suits in respect of any ‘act’ purporting to be done by a public officer and that too in his official capacity. Hence before S. 80 CPC can be relied on in any suit against a public officer, it must be shown that it is a suit in respect of an ‘act’ purporting to be done by him in his official capacity.
But, in view of the provisions of the General Clauses Act, the expression ‘act’ also includes “illegal omissions”. In IPC, it is defined that the word “illegal” is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action.
Therefore, if something was required to be done by the public officer under the legal provisions or under the contractual provisions, but he has failed or omitted to perform such act, then it would amount to illegal omission. And, further, such illegal omission would amount to “act”.
In view of these, even for instituting a suit against a public officer, if it is in respect of an act or illegal omission, which was purporting to be done by the public officer in his official capacity, a prior notice under Section 80 of the CPC would be mandatory.
And, as I mentioned above, in so far as suits against Governments are concerned, they cannot be validly instituted without giving a notice as required by S. 80, CPC.
For the sake of a ready reference, Section 80 CPC is reproduced below:
“80. Notice.— (1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or 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 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 a 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 his 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 and 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.”
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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