Suits by or against Government and public officers, aliens and foreign States, and suits on public matters

1. Name of the parties (section 79)

In a suit by or against the Central Government, the party is named as the Union of India; in a suit by or against a State Government, as the State (for example, “State of Karnataka”). Section 79 only prescribes the name. The substantive liability of the Government in tort and contract comes from Article 300 of the Constitution (see the Constitutional Law II note on State liability). Naming a department or an officer instead of the Union or State is a defect, but it can be cured by amendment.

2. The notice under section 80

Rule. No suit may be instituted against the Government, or against a public officer in respect of an act purporting to be done in his official capacity, until the expiry of two months after a notice in writing has been delivered to or left at the office of:

• for the Central Government, a Secretary to that Government (for a railway, the General Manager of that railway);
• for a State Government, a Secretary to that Government or the Collector of the district;
• for a public officer, the officer himself.

The notice must state the cause of action, the name, description and place of residence of the plaintiff, and the relief claimed; and the plaint must state that notice has been given.

Object. In Bihari Chowdhary v. State of Bihar, 1984 INSC 67, (1984) 2 SCC 627, the Court explained that the section gives the Government an opportunity to reconsider its legal position and to settle the claim without litigation, so that public money and time are not wasted. In State of Punjab v. Geeta Iron & Brass Works, 1977 INSC 205, (1978) 1 SCC 68, Krishna Iyer J. regretted that governments routinely ignore section 80 notices, and said they should respond and settle just claims, since the section is meant to be used, not merely complied with.

Mandatory nature. The notice is mandatory. A suit filed without it, or before the two months expire, is liable to be rejected under Order VII rule 11(d) as barred by law. But two reliefs were added in 1976:

• Urgent relief (section 80(2)). A suit for urgent or immediate relief may be filed without notice, with the leave of the court. No relief, interim or otherwise, may be granted without giving the Government a reasonable opportunity to show cause. If the court finds no urgency, it returns the plaint for presentation after notice.
• Defects in the notice (section 80(3)). The suit is not to be dismissed for an error or defect in the notice if the plaintiff was sufficiently identified, the notice was delivered at the right office, and the cause of action and relief were substantially indicated.

Notice is not needed for a suit against a public officer for acts not purporting to be done in his official capacity, or against a statutory corporation that is not “the Government”. The period of notice is excluded in computing limitation (section 15(2), Limitation Act).

3. Procedure: section 81, section 82 and Order XXVII

• Pleadings (rules 1 and 3). The plaint or written statement is signed and verified by a person appointed by the Government; the Government is described by its name under section 79.
• Government pleader (rule 4) is the agent for receiving process.
• Time to answer (rule 5). The court allows reasonable time for communication through proper channels, and may extend it, but not beyond two months in the aggregate.
• Government to be joined (rule 5A). In a suit against a public officer for an official act, the Government must be joined as a party.
• Duty to attempt settlement (rule 5B). In every suit to which the Government or a public officer is a party, the court must first make every endeavour to assist a settlement, and may adjourn for the purpose.
• No security (rule 8A) is required from the Government under Order XLI rules 5 and 6 when it appeals.
• Public officer (section 81). He is not liable to arrest or attachment of his property except in execution of a decree, and the court must exempt him from personal appearance if he cannot leave his duty without detriment to the public service.
• Execution (section 82). A decree against the Union, a State or a public officer for an official act cannot be executed unless it remains unsatisfied for three months from the date of the decree. The same applies to orders and awards enforceable as decrees.

4. Aliens, foreign States and their rulers (sections 83 to 87B)

• Aliens (section 83). Alien friends, and alien enemies residing in India with the permission of the Central Government, may sue as if they were citizens. Alien enemies residing in India without permission, or residing abroad, cannot sue. Any alien may be sued.
• Foreign State as plaintiff (section 84). A foreign State may sue in any competent court, provided the object is to enforce a private right vested in its Ruler or in an officer in his public capacity.
• Foreign State as defendant (section 86). No foreign State may be sued except with the consent of the Central Government certified in writing by a Secretary to that Government. A tenant may sue his foreign State landlord without consent. Consent may be given only if the foreign State has itself sued the person, trades within the jurisdiction, holds immovable property there and is sued about it, or has waived the privilege. The same protection covers rulers, ambassadors, envoys, High Commissioners of Commonwealth countries and notified staff, and none of them may be arrested (section 86(4) and (5)). No decree may be executed against a foreign State's property without similar consent (section 86(3)).
• Definitions (section 87A). A “foreign State” is any State outside India recognised by the Central Government, and courts take judicial notice of recognition. Section 87B extends the protection to rulers of former Indian States in certain cases.

In Mirza Ali Akbar Kashani v. United Arab Republic, 1965 INSC 143, AIR 1966 SC 230, the Court held that section 86 applies to a foreign State itself and not only to its ruler, and that it modifies the doctrine of immunity recognised by international law: in India a foreign State can be sued only with the consent of the Central Government, and a suit filed without that consent is not maintainable.

5. Suits relating to public matters (sections 91 to 93)

Public nuisance (section 91). In the case of a public nuisance or other wrongful act affecting or likely to affect the public, a suit for declaration, injunction or other appropriate relief may be filed (a) by the Advocate-General, or (b) with the leave of the court, by two or more persons, even though they have suffered no special damage. Any independent right of suit, such as a private suit by a person who has suffered special damage, is preserved (section 91(2)).

Public charities (section 92). Where there is an alleged breach of an express or constructive trust created for public purposes of a charitable or religious nature, or the direction of the court is needed for its administration, the Advocate-General, or two or more persons having an interest in the trust and having obtained leave of the court, may sue in the principal civil court of original jurisdiction for reliefs listed in section 92(1): removing or appointing trustees, vesting property, directing accounts, settling a scheme, authorising sale or lease, and so on. Section 92(3) allows the court to apply trust property cy pres where the original purpose has failed. An order refusing leave under section 91 or 92 is appealable (section 104(1)(ffa)).

In R. Venugopala Naidu v. Venkatarayulu Naidu Charities, 1989 INSC 329, (1989) Supp (2) SCC 356, the Court held that a section 92 suit is a representative suit brought to vindicate the rights of the public in a public trust; a suit to enforce a private or individual right, even one connected with the trust, falls outside the section. Outside presidency towns, the powers of the Advocate-General may be exercised by the Collector or another officer with the sanction of the State Government (section 93).

How this is examined

“What are the procedures for filing suits by or against government or public officer?” (February 2025) is answered with sections 79, 80 (including sub-sections (2) and (3)), 81, 82 and Order XXVII rules 1 to 8A. Section 80 notice alone is a frequent short note. A problem may present a suit against the State filed without notice: the answer turns on whether urgent relief was sought under section 80(2). Suits against foreign States and section 92 suits appear occasionally as short notes.