AL-AMEEN COLLEGE OF LAW

MODEL ANSWER – 2015

ADMINISTRATIVE LAW
2ND SEMESTER 3 YEARS LL.B AND 6TH SEMESTER 5 YEARS B.A.LL.B COURSE

DURATION:- 3 hours MAX MARKS:100

INSTRUCTIONS FOR THE CANDIDATES

1. Answer Q.No.9 and any five of the remaining questions

2. Q.No.9 carries 20 marks and the remaining questions carry 16
marks each.
3. Answers should be written in English or in Kannada completely

4X16=64
Q.No.1.Define Administrative law. Explain the nature and scope of
administrative law.

INTRODUCTION

Administrative law is the most outstanding legal development arising

from confrontation with the complex problems of socio-economic justice in
the welfare state. The most significant and outstanding phenomenon of the
20th century has been the establishment of welfare state in democratic
countries.

It does not however mean that there was no administrative law before
the emergence of welfare state. The truth is that administrative law is based
on the assumption that there is a politically organized society and from that
assumption certain rules relating to the control of administration emerge,
which are called administrative law.

DEFINITION:-

IVOR JENNINGS:-
Administrative law is the law relating to the administration. It determines the
organisation, powers and duties of the administrative authorities.

This is most widely accepted definition.

 It does not distinguish administrative law from constitutional law; and

 It is a very wide definition.
 It does not include the remedies available for the aggrieved person.

WADE:-

Administrative law is the law relating to the control of governmental power’

according to him the primary object of administrative law is to keep powers of
the government within their legal bounds so as to protect the citizens against
their abuse. The powerful engines of authority must be prevented from
running amok.

K.C.DAVIS

Administrative law is the law concerning the powers and procedures of

administrative agencies, including especially the law governing judicial review
of administrative action.

NATURE AND SCOPE OF ADMINISTRATIVE.

Administrative law deals with the powers of the administrative authorities,

the manner in which the powers are exercised and the remedies which are
available to the aggrieved persons, when those powers are abused by these
authorities.

The main object of the study of administrative law is to unravel the way in
which these administrative authorities could be kept within their limits so
that the discretionary powers may not be turned into arbitrary powers.

Administrative law is concerned with the operation and control of

administration, with emphasis on function rather than on structure. It deals
with administrative process and its control.

Schwartz divides Administrative Law in three parts.

 1. The powers vested in administrative agencies;
2. The requirements imposed by law upon the exercise of those powers
and
3. Remedies available against unlawful administrative actions.

Now the state is not merely a police state, exercising sovereign functions, but
as a progressive democratic state, it seeks to ensure social security and social
welfare for the common man, regulates private enterprise, exercises control
over the production, manufacture and distribution of essential commodities,
starts many enterprises, seeks to achieve equality for all and ensure equal pay
for equal work.

It improves slums and looks after health and morals of people.

It takes all the steps which socio-economic justice demands. All these
developments have led to administrative explosion which has widened the
scope and ambit of administrative law.

The concept of administrative law has assumed great importance.

It is a branch of law which has witnessed remarkable advances in the welfare

state as it being increasingly developed to control abuse or misuse of
governmental power and keep the executives and its various
instrumentalities and agencies within the limits within the limits of their
power.

CONCLUSION

Welfare state is an administrative state which exercises public power for

achievement of socio-economic purposes and performs numerous functions.

Hence it can be stated that the various functions of the states has given the
scope for the evolution of administrative law.

----x----
Q.No.2. Explain the concept of “Rule of Law” according to A.V.Dicey.

RULE OF LAW:-
 The entire basis of Administrative Law is the doctrine of the rule of Law.
Sir Edward Coke, Chief Justice was the originator of this concept.

He stated that ‘In a battle against the King, he maintained successfully that
the king should be under God and the Law, and he established the Supremacy
of the Law against the Executive.

Dicey developed this theory of Coke in his classic work “The Law and the
Constitution’ published in the year 1885.

Meaning :- The term ‘rule of Law’ means the principles of legality which
refers to a government based on principles of law and not of men.

According to Dicey:- the rule of law is one of the cardinal principles of the
English system. He gave three meanings to the doctrine.

1. Supremacy of law;
2. Equality before law and
3. Predominance of legal spirit.

1. Supremacy of Law:-
 Dicey states that rule of law means the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary
power or wide discretionary power.
 It excluded the existence of arbitrariness, of prerogative power or even
wide discretionary authority on the part of government.
 According to him the English men were ruled by law and law alone.

2. Equality before law:-

 Dicey says that there must be equality before the law or the equal
subjection of all classes to the ordinary law of the land administered by
the ordinary law courts.
 In England, he maintained, all persons were subject to one and the same
law, and there were no extraordinary tribunals or special courts for
officers of the government and other authorities.
 He criticized the French legal system of ‘droitadministratiff’.
  According to Dicey, exemption of civil servants from the jurisdiction of
the ordinary courts of law and providing them with the special tribunals
was the negation of equality.
3. Predominance of legal spirit:-
 The general principles of the constitution are the result of judicial
decisions of the courts in England.
 In many countries rights are guaranteed by a written constitution;
 In England it is not so.
 Those rights are the result of judicial decisions in concrete cases
which have actually arisen between the parties.
 The constitution is not the source but consequence of the rights of
the individuals.
 The rights in a written constitution can be abrogated at any time
by amending the constitution.

MERITS:-

DICEY’S THEORY:- has its own advantage and merits.

The doctrine of Rule of Law proved to be an effective and powerful weapon in

keeping administrative authorities within their limits.

It a test to all administrative actions.

This doctrine is almost accepted by all legal system as a constitutional

safeguard.

 The first principle (supremacy of law)- recognizes a cardinal rule of

democracy that every government must be subject to law and not law
subject to the government.
 The second principle (equality before law) it is also important in a
democratic polity.
 The third principle puts emphasis on the role of judiciary in enforcing
individual rights and personal freedoms irrespective of their inclusion
in a written constitution.
DEMIRITS:-
  The first rule was criticized on the ground that Dicey equated
supremacy of Rule of Law with absence of not only arbitrary powers but
even of discretionary powers.
 According to him ‘wherever there is discretion, there is room for
arbitrariness’ and he failed to distinguish between arbitrary
power from discretionary power.
 The second principle of Dicey was equally fallacious. He had
criticized the legal system of France- droitadministratif.
 He stated that the administrative courts of France conferred on
government officials special rights, privileges and prerogatives as
against private citizens.
 But it was not so, the French system in many respects proved to
be more effective in controlling abuse of administrative powers
than the common law system.
 During Dicey’s time, several administrative tribunals had come
into existence which adjudicated upon the rights of subjects not
according to common law and procedure of Crown’s courts but
according to special laws applied to specified groups.
 The crown enjoyed immunity under the well-known maxim ‘the
king can do no wrong’.
 It was therefore not correct to say that there was ‘equality before
law’ in strict sense.

-----x------
Q.No.3. What is delegated legislation? What are the different controls
over delegated legislation?

DEFINITION:-

Delegated legislation is a legislation made by a body or person other than the

sovereign in parliament by virtue of powers conferred by such sovereign
under the statute.
“when the function of legislation is entrusted to organs other than the
legislature by the legislature itself, the legislation made by such organs is
called delegated legislation.”

According to Jain and Jain, the term ‘delegated legislation’ is used in two
senses:

1. Exercise by a subordinate agency of the legislative power delegated to it

by the legislature.
2. Subsidiary rules themselves which are made by the subordinate
authority in pursuance of the power conferred on it by the legislature.

1. According to the first point, it means that the authority making the
legislation is subordinate to the legislature.
The legislative powers are exercised by an authority other than the
legislature in exercise of the powers delegated or conferred on them by
the legislature itself. This is also known as subordinate legislation’,
because the powers of the authority which makes it are limited by the
statute which conferred the power and consequently, it is valid only
insofar as it keeps within those limits.
2. Delegated legislation according to second point means all rules,
regulation, bye-laws, orders etc.
Ex:- the essential commodities Act, 1955 enumerates certain
commodities as essential commodities under the Act. But the list given
in the statute is not exhaustive and the central government is
empowered to declare any other commodity as essential commodity
and to apply the provisions of the Act to it.
Ex. Minimum wages Act 1948:- to provide for fixing minimum wages in
certain employment. The Act applies to employments mentioned in the
schedule.
But the central government is empowered to add other employment to
the schedule if, in the opinion of the government the Act should apply.

REASONS FOR GROWTH OF DELEGATED LEGISLATION

1. Pressure upon parliamentary time.
 2. Technicality:-
3. Flexibility:-
4. Experimentation:-
5. Emergency:-
6. Confidential matters:-
7. Complexity of modern administration:-

CLASSIFICATION OF DELEGATION LEGISLATION

1. TITLE BASED CLASSIFICATION :-

2. Nature based classification.

CONTROL OVER DELEGATED LEGISLATION

Due to the complexities and exigencies of intensive form of government, the
institution of delegated legislation has come to stay. Delegation of legislative
powers to the executive has to be conceded within the permissible limits.

However, there is inherent danger of abuse of the legislative power by the

executive authorities. The need, therefore, is that of controlling the delegate
in exercising his legislative powers.

Therefore, ‘today the question is not whether delegated legislation is desirable

or not but it is what controls and safeguards can be introduced so that the
power conferred is not misused or misapplied.

The control which are exercised over delegated legislation may be divided
into three categories.

1. Judicial control
2. Legislative control
3. Procedural control.

1. Judicial control:- judicial control over delegated legislation is exercised

by applying two tests,
a. Substantive ultra vires and
b. Procedural ultra vires.
Ultra vires:- means beyond powers. An act which is done in excess of power is
ultra vires.

When a subordinate legislation goes beyond the scope of authority conferred

on the delegate to enact, it is known as substantive ultra vires.

It is a fundamental principle of law that a public authority cannot act outside,

the powers and if the authority acts, such act becomes ultra vires and
accordingly void.

When a subordinate legislation is enacted without complying with the

procedural requirements prescribed by the parent Act or by the general law, it
is known as procedural ultra vires.

In case of procedural ultra vires, the court may or may not quash delegated
legislation as it depends upon the circumstances whether the procedure is
held to be mandatory or directory.

Judicial control over delegated legislation is exercised by applying the

doctrine of ultra vires in a number of circumstances.

1. Where Parent Act is Ultra vires to the constitution.

The constitution prescribes the boundaries within which the legislature
can act. If the parent Act or enabling Act is ultra vires to the constitution
the rules and regulations made thereunder would also be null and void.
The parent act is declared ultra vires to the constitution. If it violates:-
i. Express constitutional limits.
ii. Implied constitutional limits.
iii. Constitutional rights.
i. Express constitutional limits:-
Invalidity of the rules and regulations arises if the parent Act is
violative of express limits prescribed by the constitution.
The legislative powers of the union and the states are distributed in
Article 246 of the constitution.
It either legislature encroaches upon the exclusive sphere of the
other as demarcated in three limits.
a. Union list
 b. State list and
c. Concurrent list, its legislation will be ultra vires.
ii. Implied constitutional limits.
Implied constitutional limits are those which were enunciated in
Delhi law Act case.

Legislature cannot delegate essential legislative function to any other agency

and if it so delegates the parent Act will be ultra vires the constitution.

CASE LAW.

HAMDARD DAWAKHANA V. UNION OF INDIA [AIR 1960 SC 554]

The court held section 3 of the Drugs and Magic Remedies (objectionable
advertisement) Act Ultra vires the constitution because the legislature had not
laid down sufficient guidelines for the exercise of administrative discretion in
selecting a disease to be included in this list.

ST. JOHNS TEACHERS TRAINING INSTITUTE V. REGIONAL DIRECTOR,

NATIONAL COUNCIL FOR TEACHERS EDUCATION (AIR 2003 SC 8014)

The supreme court has laid down that delegated legislation is based on the
assumption that legislative cannot possibly forsee every administrative
difficulty that may arise in operation of statute.

Delegated legislation is designed to fill those needs and is meant to

supplement and not supplant the enabling statute.

iii. Constitutional rights.

No legislature has competence to pass a law violative of the provisions of

commerce clause, right to property under Article 300-A or right to life and
personal liberty under Article 21.

The parent Act may be challenged although the statute is well within the
legislative compliance yet violates the provisions of Part III of the constitution
by imposing what may be called an unreasonable restrictions on the
enjoyment of fundamental rights.
Case Law.

ChintamanRao V. State of Madhya Pradesh [AIR 1951 SC 118].

The parent Act conferred power on the Deputy commissioner to prohibit the
manufacture of bidis notified areas during the agricultural season as fixed by
him.

The Deputy commissioner imposed a total ban on the manufacture of bidis.

The order passed by the Deputy commissioner was held ultra vires in as much
as the Act under which it was made violated the fundamental right to carry on
trade, business, profession and occupation guaranteed under Article 19(1)(g)
of the constitution of India.

In the opinion of the court the order imposed unreasonable restriction on the
exercise of fundamental right.

II. where delegated legislation is ultra vires the constitution

Sometimes it may happen that the parent Act may not be ultra vires the
constitution and delegated legislation may be consistent with parent Act, yet
the delegated legislation may be held invalid on the ground that it is ultra
vires the constitution.

NarendraKumar V union of India [AIR 1954 SC 224]

There was an Act by named the Essential supplies (temporary powers) Act,
1946.

The parent Act was constitutionally valid but clause 3(2) (b) of the act was
held ultra vires by the supreme court as it violated Article 19(1) (g) of the
constitution of India by imposing unreasonable restrictions on the right to
carry on trade and business.

The clause 3(1) of the Act provided that no one can carry on business in coal
except under a licence.

Clause 3(2)(b) was ultra vires Articles 19(1) (g) as it confers arbitrary powers
on the executive in granting exemptions.
 iv. Arbitrary power is ultra vires the constitution.

In HIMMAT V. COMMISSIONER OF POLICE [AIR 1973 SC 87]

Under the Bombay Police Act 1951 : section 33(1) had authorized the
commissioner of police to make rules for regulation of conduct and behavior
of Assemblies and Processions on or along the streets.

Rule 7:- made that no public meeting will be held without previous permission
of the commissioner.

The rule was held ultra vires on the ground that it conferred arbitrary powers
on the commissioners in granting or refusing permission and as such it
imposed unreasonable restriction on the exercise of freedom of speech and
expression guaranteed under Article 19(1)(b) of the constitution.

iii) Theory of Derivative immunity.

The parent Act cannot be challenged before the court because it is protected
under Article 31-B of the constitution on account of its placement in the 9 th
Schedule, the question is whether the delegated legislation made there under
can be challenged.

VASANLAL MAGANBHAI V. STATE OF BOMBAY [AIR 1961 SC 4]

It was held that if the parent Act is saved under Article 31-B and cannot be
challenged, the delegated legislation also cannot be challenged as being
violative of any fundamental rights on the ground of derivative protection.

PRAG ICE AND OIL MILLS V. UNION OF INDIA [AIR 1978 SC 1296]

In this case the constitutional validity of the Mustard oil(price control) order,
1977 was challenged.

The parent Act (Essential commodities Act, 1955) was placed in the 9 th
schedule and, therefore was protected under Article 31-B.

The question before the supreme court was whether the orders and
notification (child legislation) issued under the Essential commodities Act,
1955 can be still be challenged as violative of fundamental rights.
The supreme court held that even a case where a parent Act cannot be
challenged before the court because of protection of Article 31-B of the
constitution on account of its placement in the 9th schedule, the delegated
legislation promulgated there under can still be challenged if it violates any
provision of the constitution.

In this way the child legislation does not come under the protective umbrella
of the 9th schedule

III. WHERE THE DELEGATED LEGISLATION IS ULTRA VIRES THE PARENT

ACT.

Delegated legislation can be challenged on the ground that it is ultra vires the
parent Act or enabling statute or any general law.

It is accepted principle that the authority of delegated legislation must be

exercised within the authority.

The delegate cannot make a rule which is not authorized by the parent statute
or delegating statute.

Delegated legislation or subordinate legislation can be declared valid only if it

conforms exactly to the power conferred.

Rule is always open to challenge on the ground that it is unauthorized.

Case law

ADDITIONAL DISTRICT MAGISTRATE [REV] V. SRI RAM (2000) 4 scc

452.

In this case the Delhi Land Revenue Act and Delhi Reforms Act did not
empower rule-making authority to classify land or to exclude any area from
preparation of record of right and annual register.

However, rules made under Act in 1962 classified land into six categories and
provided that the name of tenure holder or sub-tenure holder occupying land
in ‘extended abadi’ and in prescribed six categories of land will not be
reflected in the record of right and annual register. The court held that the
rules are ultra vires the parent act.

i. Delegated legislation in excess of the power conferred by the parent

Act.

If the subordinate authority keeps within the powers delegated, the delegated
legislation is upheld valid; but if it does not, the court will certainly quash it.

IN DWARKA NATH V. MUNICIPAL CORPORATION. [AIR 1971 SC 1844]

Under section 23(1) of the Food Adulteration Act, 1954, the Central
Government was empowered to make rules for restricting the packing and
labeling of any article of food with the end in view to prevent the public from
being deceived or misled as to quality and quantity of the article.

Rule 32 made thereunder by the government stated that there shall be

specified on every label name and business address of the manufacturer,
batch number or code number either in Hindi or English.

Proceedings was started against the one company i.e., “Mohan Ghee company
for violation of Rule 32 as on Ghee tins only “Mohan Ghee Laboratories, Delhi-
5 was written.

It was pleaded on behalf of the Mohan Ghee Company that the requirement of
address under Rule 32 is in excess of the power of the Parent Act which is
restricted to quantity and quality only.

Accepting the contention, the Supreme Court held Rule 32 as ultra vires of the
Act as it was beyond the power conferred on the government.

v. Delegated legislation in conflict with the parent Act.

Sometimes it happens that the parent Act lays down procedure which must be
followed by the administrative body which exercising law-making power
under it.

If the procedure is not followed, the delegated legislation may declared has
bad/void.
BANWARI LAL AGARWALLA V. STATE OF BIHAR

Under section 12 of the Mines Act 1952, the central government was required
to consult the mining Board constituted under the Act before framing rules.

The central government made rules without consulting the Mining Board.

The Supreme Court held that the rules so framed in violation of the statutory
provision were invalid being ultra vires the procedure established by the
parent Act.

IV. MALAFIDE :- BAD FAITH.

Delegated legislation may be challenged on the ground of mala fide or

improper motive of the rule-making authority. Whenever legislature confers
any legislative power on any administrative authority, the said power must be
exercised in good faith by the latter and on proof of bad faith the court can
hold the exercise of power ultra vires.

NAGARAJ . V. STATE OF ANDRA PRADESH [AIR 1985 SC 551]

The Andra Pradesh Government issued an ordinance reducing the age of

superannuation of all Government employees from 58 years to 55 years.

The ordinance was challenged on the ground that it was mala fide exercise of
power.

The supreme court held that the ordinance making power was a legislative
power and the argument of mala fides was misconceived.

IV. UNREASONABLENESS.

Delegated legislation can be challenged as unreasonable under the due

process clause of the constitution.

The validity of regulation can be sustained only if it is reasonably related to

the purposes of enabling legislation.

Even a rule that deals with the subject matter within agency’s delegated
authority may be invalid if it is arbitrary or unreasonable .
A regulation to be valid, must be consistent with the statute, but it must be
reasonable also.

DWARKA PRASAD V. STATE OF U.P. [ AIR 1954 SC 224]

The validity of clause 4(3) of the U.P.Coal control order was challenged. Under
this clause, the licensing authority was given power to grant, refuse to grant,
renew or refuse to renew a licence and to suspend, cancel, revoke or modify
any licence granted by him under the order for reasons to be recorded.

Holding the provision as arbitrary and unreasonable, the court observed that
‘the licensing authority has been given absolute power’ in the granting,
cancelling etc of licence.

LEGISLATIVE CONTROL

As usual, law-making power is vested in the legislature. If the legislature

delegates legislative powers to the executive, it must also see that powers are
properly exercised by the administration.

Since, it is legislature which delegates legislative power to the administration,

it is primarily for it to supervise and control the actual exercise of this power,
and ensure against the danger of its objectionable, abusive and unwarranted
use by the administration.

The underlying object of legislative control is to keep watch over the rule-
making authorities and also to provide an opportunity to criticize them if
there is abuse of power on their part.

There are three control exercised by the legislature over delegated legislation
as follows,

a. Proceedings in parliament;
b. Laying on the Table; and
c. Scrutiny committees.

a. Proceedings in parliament:-
 There are two houses of parliament.
  Each house has its own rules of procedure and conduct of
business.
 A rule of each house requires that a bill involving proposal for
delegation of legislative power “shall be accompanied by a
memorandum explaining such proposals and drawing attention to
their scope,
 Stating also whether they are of exceptional or normal character.
 A number of proceedings are involved in exercise of control over
delegation of legislative power by the legislature-
i. Debate on delegating bill:- when involving delegation of legislative
power is under consideration before parliament, members may
discuss all matters about delegation including necessity, extent, type
of delegation and the authority to whom power is proposed to be
given.
ii. Asking questions and giving notices:- any member of the House may
ask questions on any matter concerning delegation of legislative
power and, if not satisfied, can give notice for debate as laid down
under Rule 59 of the procedure and conduct of Business in LokSabha.
iii. Resolution on motion:- any member of the house may move a
resolution on motion, if the matter relating to delegation of
legislative power is of urgent and immediate nature, and the reply
given by the government is not satisfactory.
iv. Demand for vote on grant:- members can discuss any thing about
delegated legislation when budget demands are presented by a
Ministry. Any member may propose to reduce grant
Through this proposal, he may bring the matter of exercise of rule-
making power under discussion.
v. Directions by speaker:- the speaker may refer bills containing
provisions for delegation of legislative powers to the committee to
examine the extent of such powers sought to be delegated.

b. Laying on the table.

 One of the devices of control over the exercise of power of delegated
legislation is legislative overseeing of delegated legislation.

Laying serves two purposes,

Firstly, it informs the legislature as to what rules have been framed by the
administrative authorities in exercise of law-making power, and

Secondly, it provides an opportunity to the legislatures to question or

challenge the rules already made or proposed to be made.

In almost all the common wealth countries the procedure of ‘laying on the
table’ of the legislature is required to be followed.

There are several type of laying.

The degree of control necessarily differs in these forms. The select committee
on delegated Legislation summarized these forms under seven heads.

i. Laying without further provision for control.

The parent Act under this form simply provides that the rules shall be laid
before the houses. This procedure serves the purpose of only informing
the parliament as to what rules and regulations were made by the
administrative authorities.

ii. Laying with deferred operation.

In this case the requirement of laying is linked with postponement of rules

and in this way parliament gets greater degree of control than in the
preceding form of laying.

iii. Laying with immediate effect but subject to annulment.

Under this type of laying, the rules come into force when laid before
parliament, but cease to be in operation if disapproved by it within a
specified period.

iv. Laying in draft but subject to resolution that no further proceedings

be taken.
 Under this, draft of statutory rules are required to be laid before
parliament but the parent Act provides that the rules should not be made
effective until a particular period has expired.

v. Laying in draft and requiring affirmative resolution.

This method provides a stringent parliamentary supervision over

delegated legislation.

The draft rules do not become effective until an affirmative resolution has
been passed by parliament.

Members get the opportunity to discuss and react to the rules before they can
finally be given effect by the executive authority.

vi. Laying with operation deferred until approval given by affirmative

resolution.

In this case, rules are actually, made but they do not come into operation
until approved by the parliament.

vii. Laying with immediate effect but requiring affirmative resolution as

condition for continuance.

This method of laying is used where prompt operation of delegated

legislation is required but at the same time strict parliamentary
supervision is also necessary.

The confirmatory resolution keeps the delegated legislation alive, which

would otherwise die.

It is often applied in cases of taxation or to rules made during emergency.

In India, there is no statutory provision requiring laying of all delegated

legislations. There is no general obligation on the administration to lay the
rules before parliament.

Whether the rules made under a statute are to be laid before the houses of
parliament or not depends upon the terms of each enabling statute.
Generally, a provision of laying is found in a number of statutes, in the
following form;

Every rule made under this Act shall be laid, as soon as may be, after it is made
before each houses of Parliament, while it is in session, for a total period of
thirty days which may be comprised in one session or in two or more
successive sessions and if before the expiry of the session both houses agree
in making any modification in the rule or both houses agree that the rule
should not be made, the rule shall thereafter have effect only in such modified
form or be of no effect, as the case may be, so however that any such
modification or annulment shall be without prejudice to the validity of
anything previously done under that rule.

There was no uniform practice in the laying procedure, the scrutiny

committee made the following suggestions:-

i. All Acts of parliament should uniformly require that the rules shall
be laid on the Table of the House “as soon as possible”.
ii. This period should be uniform and should be a total period of 30
days from the date of their final publication and
iii. The rules shall be subject to such modification as the Houses may
like to make.

The laying procedure has not been formalized and systematized by any
statute.

There are a number of statutes where provisions have been made for laying of
delegated legislation.

Such statutes are,

 Immigration Act, 1922.

 Insurance act 1938.
 Agricultural products Act 1938.
 Motor vehicles Act, 1939.

There are other Acts, namely

  The Representation of the people Act, 1951,
 Indian services Act 1951.
 The Indian development and regulation Act 1952,

Which contain only the right of modification of the rules and not annulment.

The procedure of laying has been streamlined in India by certain legislative

measures.

Our parliament has amended,

 50 Indian Statutes by the Delegated legislation (Amendment) Act 1983

and
 91 statutes by the Delegated Legislation provisions (Amendment) Act
1985 and
 47 statutes by the Delegated legislation (Amendment) Act 1986.

It has inserted provisions for laying before the state legislature and
parliament where there were no such provisions and in other instances
provided for annulment or modification within a specified period.

It provides a typical clause.

“Every rule prescribed or sanctioned by the Central government under this

Act shall be laid, as soon as may be after it is prescribed or sanctioned, before
each house of Parliament, while it is in session, for a total period of thirty days
which may be comprised in one session or in two or more successive sessions,
and if, before the expiry of the session immediately following the session, or
the successive sessions aforesaid, both houses agree in making any
modification in the rule or both houses agree that the rule should not have
effect, as the case may be, so, however, that such modification or annulment
shall be without prejudice to the validity of anything previously done under
that rule”.

EFFECTS OF FAILURE TO LAY.

In India the consequences of non-compliance with laying provisions depend
on whether the provisions in the delegating statute are mandatory or
directory.

NARENDRA KUMAR V. UNION OF INDIA [AIR 1960 SC 430]

The Supreme Court held that the provision regarding laying was mandatory.

In this case section 3(5) of the Essential Commodities Act, 1955 provided that
the rules framed thereunder must be laid before both houses of parliament.

On this ground clause 4 of the Non-Ferrous control order, 1958 was declared
to be of no effect unless laid before the houses of Parliament.

HUKUM CHAND V. UNION OF INDIA [AIR 1972 SC 2427]

In this case the Court held that, the laying provision is mandatory. The rules
which were made without laying before the parliament were struck down as
being ultra vires the powers of the administrative agency.

C. SCRUTINY COMMITTEES

Significant control over delegate legislation is exercised by the legislature

through its committees.

The reason for this is that legislative control over delegated legislation would
not be of much use, unless the rules were properly studied and scrutinized.

Therefore with a view to strengthen parliamentary control over delegated

legislation, Scrutiny committees were sought to be established.

The parliament succeeded to form a select committee on statutory rules and

orders in 1944 which is now known as the committees on statutory
instrument.

Two scrutiny committees have been established under the INDIAN

CONSTITUTION.

1. The LokSabha committee on subordinate legislation - 1953

2. The RajyaSabha committee on subordinate legislation – 1964
 The functions of the committees are identical in both the Houses of
parliament.

The LokSabha committee on subordinate legislation – 1953

 This committee consists of 15 members nominated by the speaker for

one year.
 It represents all the political parties in the House in proportion to their
respective strength.
 A minister cannot be a member of the committee.
 Any member on his appointment as a minister ceases to be a member of
the committee.
 The chairman of the committee is also nominated by the speaker from
among the members of the committee.
 The chairman is usually a member of the opposition.
 All this has made the committee a true replica of the LokSabha.
 The quorum is one third of the total membership.
 In absence of quorum, no business can be transacted.

THE RAJYA SABHA COMMITTEE.

 It consists of 15 members
 Who are nominated by the chairman of the Rajyasabha.
 A minister can also become the member of this committee.

MAIN FUNCTIONS OF THE COMMITTEE.

1. Whether the order is in accord with the general object of the

constitution or the Act pursuant to which it is made.
2. Whether it contains matter which in the opinion of the committee
should more properly be dealt with in an Act of parliament.
3. Whether it contains imposition of tax.
4. Whether it is directly or indirectly bars the jurisdiction of the courts
5. Whether is gives retrospective effect to any of the provisions in respect
of which the constitution or the Act does not expressly give any such
power.
6. Whether it involves expenditure from the consolidated fund of India.
 7. Whether is appears to make some unusual or unexpected use of the
powers conferred by the constitution or the Act pursuant to which it is
made.
8. Whether there appears to have been unjustifiable delay in the
publication or the laying of it before parliament and
9. Whether for any reason its form or purport calls for any elucidation.

PROCEDURAL CONTROL.

 Procedural control mechanism has the potential to meet the aforesaid

requirements.

 It has 3 components:

 1. antecedent publicity.

 2. publication.

 3. consultation of interests.

1. Antecedent publicity.

 A means of obtaining participation in the rule making process by un-

organized interests is through the device of antecedent publicity.

 In India there is no separate law relating to the system of antecedent

publicity.

 In certain statutes have provided for antecedent publicity.

 Co-operative societies Act, 1912- section 43.

 The chartered Accountants Act 1949 section 30(3)

 The central Tea board Act, 1949 section 15,

 Provides an examples where it is required that the rules must be first

published in draft form to give an opportunity to the people to have
their say in the rule-making.
Antecedent publicity required by Parent Act attracts the application of section
23 of the General Clauses Act, 1897 which provides.

i. That the authority shall publish a draft of the proposed rules in the
Gazette.
ii. That the authority shall invite objections and suggestions by a
specific date.
iii. That the authority shall take into consideration any objections or
suggestions which may be received by it while finalizing the rules.

2. PUBLICATION:-
There is a principle of law is that “ignorance of law is no excuse”. There
is also another equally established principle of law that the public must
have access to the law and should be given an opportunity to know the
law.

The practice of publication of delegated legislation differs from statute

to statute. In certain cases the statute provides that the rules must be
published in the official gazette.

The administrative authority can choose its mode of publication.

i. MODE OF PUBLICATION.
In STATE OD MAHARASHTRA V. M.H. GEORGE [A.I.R 1965 SC 722]

In this case guidelines formulated regarding the mode of publication of

delegated legislation thus-

i. Where there is statutory requirement as to the mode or form of

publication and they are such that in the circumstances, the court
holds to be mandatory, a failure to comply with those requirements
might result in their being no effective order the contravention of
which could be the subject of prosecution.
ii. Where there is no statutory requirement, it is necessary that it
should be published in the usual form i.e. by publication within the
 country as generally adopted to notify all the persons the making of
rules, and
iii. In India, publication in the official Gazette, the Gazette of India is the
ordinary method of bringing a rule or subordinate legislation to the
notice of persons concerned.

ii. PUBLICATION AS A COROLLARY OF NATURAL JUSTICE.

Publication of delegate legislation has been taken by the courts as a

corollary of natural justice.

In HARLA V. STATE OF RAJASTHAN [ AIR 1951 SC 467]

The Supreme court has held that delegated legislation cannot take
effect unless published.

iii. EFFECT OF DELEGATED LEGISLATION FROM THE DATE OF

PUBLICATION.
Unless the rule-making authority specifies the date on which the
rules shall come into force, the rules generally take effect on the date
of publication.

3. CONSULTATION OF INTERESTS.
An important measure to check and control the exercise of the power of
delegated legislation is the technique of consultation through which
affected interests may participate in the rule-making process.
Public participation in rule-making process is regarded as a valuable
safe guard, for it enables the interests affected to make their views
known to the rule-making authority.

Consultation as required under the Indian statutes fall under the

following categories.
1. Official consultation.
2. Consultation with statutory boards.
3. Consultation with advisory boards.
4. Making of Draft rules of affected interests
 -----x-----

Q.No.4. Discuss the principles of natural justice with decided cases and
its exceptions.

NATURAL JUSTICE:-

Natural justice is an important concept in administrative law. The principles

of Natural Justice or fundamental rules of procedure for administrative action
are neither fixed nor prescribed in any code.

Natural Justice has meant many thing to many writers lawyers and system of
law.

DEFINITION:-

Natural Justice is an ethico-legal concept which is based on natural

feeling of human being. It is known as natural law, universal law, divine
justice or fair play in action.

Though highly attractive and potential, natural justice is a vague and

ambiguous concept and therefore it is not possible to define it.

In the words of Megarry :- “it is justice that is simple and elementary as

distinct from justice that is complex, sophisticated and technical.

According to De Smith:- Natural Justice expresses the close relationship

between the common law and moral principles and it has an impressive
ancestry.

SWADESHI COTTON MILLS V INDIA [1981] 1 SCC 664.

Justice Chinappa Reddy J :- Natural Justice, like ultra vires and public
policy, is a branch of the public law and is a formidable weapon, which can be
wielded to secure justice to the citizen…. While it may be used to protect
certain fundamental liberties-civil and political rights- it may be used, as
indeed it is used more often than not, to protect vested interests and to
obstruct the path of progressive change.

PRINCIPLES OF NATURAL JUSTICE:

English law recognizes two principles of natural justice.

a. NEMO DEBET ESSE JUDEX IN PROPRIA CAUSA:-

No man shall be a judge in his own cause, or no man can act as both at
the one and the same time- a party or a suitor and also as a judge, or the
deciding authority must be impartial and without bias; and

b. AUDI ALTERAM PARTEM :-hear the other side or both sides must be
heard, or no man should be condemned unheard, or that there must be
fairness on the part of the deciding authority.

ABSENCE OF BIAS, INTEREST OR PREJUDICE.

The first principle of natural justice consists of the rule against bias or interest
and is based on three maxims,

1. No man shall be a judge in his own cause

2. Justice should not only be done, but manifestly and undoubtedly be
seen to be done
3. Judges, like ceaser’s wife should be above suspicion.

1. No man shall be a judge in his own cause:-

Anything which tends or may be regarded as tending to cause such a

person to decide a case otherwise than on evidence must be held to be
biased.

A predisposition to decide for or against one party, without proper regard

to the true merits of the dispute is bias.

The first requirement of natural justice is that the judge should be

impartial and neutral and must be free from bias.

He is supposed to be indifferent to the parties to the controversy.

 He cannot act as judge of a cause in which he himself has some interest
either pecuniary or otherwise as it affords the strongest proof against
neutrality

TYPES OF BIAS:-

Bias is of four types,

i. Pecuniary bias,
ii. Personal bias,
iii. Official bias or bias as to subject-matter and
iv. Judicial obstinacy.

i. PECUNIARY BIAS:-
It is well-settled that as regards pecuniary interest ‘the least
pecuniary interest in the subject-matter of the litigation will
disqualify any person form action as a judge.

DR. BONHAM CASE

Dr. Bonham, a doctor of Cambridge University was fined by the college of

Physicians for practicing in the city of London without the licence of the
college.

The statue under which the college acted provided that the fines should go
half to the king and half to the colleges.

The claim was disallowed by Coke, C.J as the college had a financial interest in
its own judgment and was a judge in its own cause.

DIMES V. GRANT JUNCTION CANAL

In this case, the suits were decreed by the Vice-Chancellor and the appeals
against those decrees were filed in the court of Lord Chancellor, Cottenham.

The appeals were dismissed by him and decrees were confirmed in favour of a
canal company in which he was a substantial shareholder.
The House of Lords agreed with the Vice-chancellor and affirmed the decree
on merits.

But the house of Lords quashed the decision of Lord Cottenham.

MANAK LAL V. DR. PREM CHAND [AIR 1957 SC 425]

In this court held that “it is obvious that pecuniary interest, however

small it may be in a subject-matter of the proceedings, would wholly

disqualify a member from acting as a judge.

VISHAKAPATANAM CORP MOTOR TRANSPORT CO. LTD. V.

G.BANGARURAJU [A.I.R 1953 MAD 709]

A cooperative society had asked for a permit. The collector was the president
of that society and he was also a chairman of the Regionally Transport
authority, who had granted the permit in favour of the society,

The court set aside the decision as being against the principles of natural
justice.

J.MOHAPATRA & CO. V. STATE OF ORISSA [AIR 1984 SC 1572]

In this case some of the members of the committee set up for selecting books
for educational institutions were themselves authors whose books were to be
considered for selection.

It was held by the Supreme Court that the possibility of bias could not be ruled
out.

It is not the actual bias in favour of the author-member that is material, but
the possibility of such bias”.

II. PERSONAL BIAS:-

The second type of bias is a personal one. A number of circumstances may

give rise to personal bias.

Here a judge may be a relative, friend or business associate of a party.

He may have some personal grudge, enmity or grievance or professional
rivalry against such party.

In view of these factors, there is every likelihood that the judge may be biased
towards one party or prejudiced towards the other.

STATE OF U.P V. MOHD. NOOH [AIR 1958 SC 86]

A departmental inquiry was held against A by B. As one of the witnesses

against ‘A’ turned hostile, B left the inquiry, gave evidence against A, resumed
to complete the inquiry and passed an order of dismissal.

The Supreme Court held that ‘the rules of natural justice were completely
discarded and all canons of fair play were grievously violated” by B.

A.K.KRAIPAK V. UNION OF INDIA [AIR 1970 SC 150]

In this case one Mr. N was a candidate for selection Board. N did not sit on the
Board when his own name was considered.

Name of N was recommended by the Board and he was selected by the Public
Service Commission.

The candidates who were not selected filed a writ petition for quashing the
selection of N on the ground that the principle of natural justice were
violated.

Quashing the selection, the court observed:- “it is against all canons of justice
to make a man judge in his cause.

It is true that he did not participate in the deliberations of the committee

when his name was considered.

But the very fact that he was a member of the selection board must have had
its own in the deliberations of the selection board when the claims of his rivals
particularly that of Basu was considered.

III. OFFICIAL BIAS.

The third type of bias is official bias or bias as to the subject-matter.

This may arise when the judge has a general interest in the subject-matter.

GULLAPALLI NAGESWARA RAO .V. A.P.S.R.T.C [AIR 1959 SC 308]

The petitioners were carrying on motor transport business. The Andra State
Transport undertaking published a scheme for nationalization of motor
transport in the state and invited objections.

The objections filed by the petitioners were received and heard by the
secretary and thereafter the scheme was approved by the chief minister.

The Supreme Court upheld the contention of the petitioners that the official
who heard the objections was ‘in substance’ one of the parties to the dispute
and hence the principles of natural justice were violated.

But in GullapalliII:- The Supreme court qualified the application of the

doctrine of official bias. Here the hearing was given by the Minister and not by
the Secretary.

The Court held that the proceedings were not vitiated as the secretary was a
part of the departmental but the Minister was only primarily responsible for
the disposal of the business pertaining to that department.

IV. JUDICIAL BIAS :-

STATE OF W.B .V. SHIVANANDA PATHAK [AIR 1995 SC 2050]

A writ of Mandamus was sought by the petitioner directing the government to

promote him.

A single judge allowed the petition ordering the authorities to promote the
petitioner forthwith.

But the order was set aside by the division bench.

After two years, a fresh petition was filed for payment of salary and other
benefits in the terms of the Judgement of the single judge.

It was dismissed by the single judge.

The order was challenged in appeal which was heard by a Division Bench to
which one Member was a judge who had allowed the earlier petition.

The appeal was allowed and certain reliefs were granted.

The state approached Supreme Court

The Supreme Court allowing the appeal and set aside the order.

It said that if a judgment of a judge is set aside by a superior court, the Judge
must submit to that Judgement.

He cannot rewrite overruled Judgement in the same or in collateral

proceedings.

The Judgement of the higher court binds not only to the parties to the
proceedings but also the judge who had rendered it.

2. AUDI ALTERAM PARTEM [ HEAR THE OTHER SIDE]

Meaning:-

Audi AltermanPartem means “hear the other side” or ‘no man should be
condemned unheard’ or ‘both the sides must be heard before passing any
order’.

Explanation:-

The second fundamental principle of natural justice is audialtermanpartem,

i.e. no man should be condemned unheard, or both the sides must be heard
before passing any order.

It has been described as ‘foundational and fundamental concept. It lays down

a norm which should be implemented by all courts and tribunals at national as
also at international level.

Before an order is passed against any person, reasonable opportunity of being

must be given to him.

This maximum included 2 elements,

 1. Notice
2. Hearing

1. Notice:-

Before any action is taken, the affected party must be given a notice to show
cause against the proposed action and seek his explanation.

Any order passed without giving notice is against the principles of natural
justice and is void ab initio.

The object of a notice is to give an opportunity to the individual concerned to

present his case and, therefore, if the party is aware of the charges or
allegations, a formal defect would not invalidate the notice, unless prejudice is
caused to the individual.

RAVI NAIK .V. UNION OF INDIA [AIR 1994 SC 1558]

A member of Goa Legislative Assembly was disqualified by the speaker.

The relevant rules provided notice of seven days or such further period as the
speaker.

The relevant rules provided notice of ‘seven days’ or ‘such further period as
the speaker may for sufficient cause allow’.

In the instant case, however notice gave only three days’ time.

The Supreme Court stated that the principles of natural justice are flexible and
not immutable.

“Whether the requirements of natural justice have been complied with or not
has to be considered in the context of the facts and circumstances of a
particular case.”

AJIT KUMAR NAG .V. INDIAN OIL CORPNLTD [AIR 2005 SC 4217]

An employee of the corporation led an unruly mob to the hospital run by the
corporation and assaulted and beaten the chief medical officer.
His services were terminated under the relevant standing orders.

The action was upheld by the Supreme Court.

2. HEARING :-

The second hearing of Audi AltermanPartem maxim is that the person

concerned must be given an opportunity of being heard before any adverse
action is taken against him.

STATE OF ORISSA .V. BINAPANI DEI [AIR 1967 SC 1269d ]

The petitioner was compulsorily made retired from service on the ground that
she had completed the age of 55 years.

No opportunity of hearing was given to her before the impugned order was
passed.

The supreme court set aside the order as it was violative of the principle of
natural justice.

MANEKA GANDHI .V. UNION OF INDIA [ A.I.R 1978] SCR 621]

The passport of the petitioner journalist was impounded by the government

of India in public interest.

No opportunity was given to the petitioner before taking the impugned action.

The Supreme Court held that the order was violative of the principles of
natural justice.

DISCLOSURE OF MATERIALS.

An adjudicating authority must disclose all evidence and material placed

before it in the course of proceedings and must afford an opportunity to the
person against whom it is sought to be utilized.

The object underlying such disclosure is to afford an opportunity to the

person to enable him to prepare his defence, rebut the evidence relied upon
by the complainant against him and put forward his case before the authority.
CROSS-EXAMINATION.

Cross- Examination was never considered to be part and parcel of the doctrine
of natural justice.

It always depends upon the facts and circumstances of each case whether an
opportunity of cross-examination should be given to a party whom
proceedings have been initiated.

EXCEPTION TO PRINCIPLE OD NATURAL JUSTICE:-

Though the normal rule is that a person who is affected by administrative

action is entitled to claim natural justice, the requirement may be excluded
under certain exceptional circumstances.

In following cases, the requirement of natural justice may be excluded.

1. STATUTROY EXCLUSION.
2. LEGISLATIVE FUNCTION
3. EMERGENCY:-
4. PUBLIC INTEREST:-
5. IMPRACTICABILITY:-
6. ACADEMIC EVALUATION:-
7. INTERIM DISCIPLINARY ACTION.

EFFECT OF BREACH OF NATURAL JUSTICE:- VOID OR VOIDABLE.

If any decision is rendered in violation of the principle of natural justice, it is

said to be void or voidable.

A voidable order is an order which is legal and valid, unless it is quashed by a

competent court, that is it has legal effect up to the time until it is quashed.

On the other hand a void order is no order in the eye of law. A null and void
ab initio.

-------x-----
Q.NO. 5.Explain the various grounds for exercising judicial control over
“administrative discretion” in India with help of decided cases.

ADMINISTRATIVE DISCRETION:

Meaning: Discretion implies power to make a choice between an

alternative course of action or inaction. The term itself implies vigilance, care,
caution and circumspection.

Coke proclaimed Discretion as a science or understanding to discern

between falsity and truth, between right and wrong, between shadows sand
substance, between equity and colourable glosses and pretences, and not to
do according to their wills and private affections.

In short, here the decision is taken by the authority not only on the basis
of the evidence but in accordance with policy or expediency and in exercise of
discretionary powers conferred on that authority.

In Secy. Of State for Education and Science Vs. Metropolitian

Borough Council Tameside. Lord Diplock said “ the very concept of
administrative discretion involves a right to choose between more than one
possible cause of action on which there is room for reasonable people to hold
differing opinions as to which is to be preferred.

There are different types of discretionary powers conferred on the

administration. They range from simple ministerial functions like
maintenance of birth and death register regulation of business activity,
acquiring property for the public purpose, investigations, seizure, confiscation
and destruction of property, experiment or detention of a person or subjective
satisfaction of the administrative authority and the like.

The need for administrative discretion arises to meet variability of

situations in the interests of public. But an administration unrestrained in its
power to pursue its socialistic objectives by any and all means considered
expedient by the officials of government is anti-thesis of law and is nothing
but administrative lawlessness. Administrators who do as they like and who
are not bound by considerations capable of rational formulation cannot be
said to act within the framework of law.

When discretionary power is conferred on an administrative authority,

it must be exercised according to law. When the mode of exercising a valid
power is improper or unreasonable, there is an abuse of the power.

There are several forms of abuse of discretion. The excess or abuse of

discretion may be inferred from the following circumstances:

a. Acting without jurisdiction

b. Exceeding jurisdiction
c. Arbitrary action.
d. Irrelevant considerations.
e. Leaving out irrelevant consideration
f. Mixed considerations
g. Mala fide
h. Collateral purpose: improper object;
i. Colourable exercise of power;
j. Colourable legislation; fraud on Constitution
k. Non-observance of natural justice;
l. Unreasonableness.

----x----
Q.NO.6. EXPLAIN ‘PUBLIC CORPORATIONS’. WHAT ARE THEIR
FUNCTIONS? EXPLAIN WITH HELP OF ILLUSTRATIONS.

SYNOPSIS:

Introduction
Definition
Characteristics
Functions along with illustrations
Conclusion
Introduction:

The modern world aims at welfare state. it seeks to ensure social security and
social welfare for the common mass. Now the states also participates in trade,
commerce and business in order to achieve the object of socialist, democratic,
republic, constitutional protection is afforded to State monopoly and hence
necessary provisions are incorporated in the Constitution itself by laying
down the Directive Principles of State policy.

Article 39(b) states ownership and control of material resources of the

community should be so distributed to subserve the common good.

Article 39(c) states that operation of economic system should not result in
concentration of wealth and means of production to the common deteriment.

The political philosophy of the 20th and 21st centuries has therefore impelled
the government to enter into trade and commerce with a view to making such
enterprises pursue public interest and making them answerable to the society
at large.

Definition:

No statute or court has ever attempted inDhanoa Vs. Municipal Corp. Delhi
a corporation is defined thus:

“A corporation is an artificial being created by law having legal entity entirely

separate and distinct from the individuals who compose it with the capacity of
continuous existence and succession, notwithstanding changes in its
membership. In addition, it possesses the capacity as such legal entity of
taking, holding and conveying property, entering into contracts, suing and
being sued, and exercising such other powers and privileges as may be
conferred on it by the law of its creation just as a natural person may.”

Object:

Under our Constitution, public sector plays key role in the economic
development of the country. It has been said that certain functions are so vital
to the nation that it is proper not to leave them to private enterprises. They
should be run and managed by the state, either through its own department
or by government companies or by creating public sector undertakings.

Characteristics:
 1. A corporation is established by or under a statute. It possesses a
separate legal entity with perpetual succession and a common seal.
2. There may be several members or shareholders of a corporation.
3. A corporation does not neither soul nor body, it acts through natural
persons.
4. A corporation can possess, hold and dispose of property.
5. An appropriate government may issue directives relating to policy
matters. The corporations are bound by them.

Functions of public corporations:

The constitution of the corporations and their functions, powers and duties
may be understood by a study of the actual working of a few public
corporations:

Reserve Bank of India: (RBI)

It was constituted under the RBI Act 1934, and it was nationalized in the year
1948. It is a separate legal entity and hence can sue and be sued. It was
primarily established to regulate the credit structure, to carry on banking
business and to secure monetary stability in the country. It is managed by the
Board o Directors, consisting of Governor and the Deputy Governors and
number of directors. The salaries of the governor and Deputy Governors are
fixed by the board with the approval of the Central government. They are
eligible for a term of five years and can be re-employed. The RBI has extensive
powers over the Banking business in India. It grants licences without which
no company can carry on banking business. It grants licences without which
no company can carry on banking business. Before granting of such licence it
can inquire into the affairs of the company to satisfy itself. It can cancel a
licence on the ground that the conditions specified therein have not been
complied with. It has to send reports to the Government. The RBI has very
wide discretionary powers. It determines the policy relating to bank
advances, frames proposals for amalgamation of two or more Banks.

Life Insurance Corporation of India (LIC):

It was established under the Life Insurance Corporation of India Act, 1956. It
shares certain characteristics with the other corporations. It is a body
corporate with perpetual succession and a common seal. It has power to
acquire, hold and dispose of property. It can sue and be sued. The corporation
was established to carry on life insurance business and given the privilege of
carrying on this business to the exclusion of all other persons and institutions.
The Central Government may give directions in writing in the matters of
policy involving public interest. 95% of the profits are to be reserved for the
policy holders and the balance is to be utilised as the Central Government may
decide.

----x----

Q.No.7. EXPLAIN THE CONCEPT OF OMBUDSMAN. TRACE THE

DEVELOPMENT IN INDIA.

SYNOPSIS:

Meaning
Importance
Historical growth
Powers and duties
Merits and demerits
Position in India
Meaning:

Ombudsman means ‘a delegate, agent, officer or commissioner.

Garner: describes him as an officer of parliament, having his primary

function, the duty of acting as an agent for parliament, for the purpose of
safeguarding citizens against abuse or misuse of administrative power by the
executive.

Importance:

The administrator is not a super-administrator to whom the individual can

appeal when he is dissatisfied with the discretionary decisions of a public
official in the hope that he may obtain a more favourable decision. Hence
ombudsman is a suitable person to appeal for his dissatisfaction.
Historical growth:

The institution of Ombudsman originated in Sweden in 1809 it has been

accepted in other countries including Denmark, Finland, New Zealand,
England, Australia and India. In India, the institution of ombudsman is called
as Lokpal or Lokayukta.

Powers and duties:

 The Ombudsman inquires and investigates into complaints made by

citizens against abuse of discretionary power, maladministration or
administrative inefficiency and takes appropriate actions.
 They have very wide powers they have access to departmental
files.
 The complainant is not required to lead any evidence before the
ombudsman to prove his case. It is the duty of the ombudsman to
satisfy himself whether or not the complainant was justified.
 The ombudsman can act suomotu.
 The ombudsman can grant relief to the aggrieved person as unlike
the powers of a civil court, his powers are limited.

Merits and demerits:

 Ombudsman institution is successful in those countries which

have a comparatively small population.
 But this institution is not useful in populous countries, like
U.S.A or India.
 It is easy for a single man to dispose of complainants in small
countries.
 It is not easy for a single man to dispose of complainants in
populous countries.
 It is more suitable for small countries as the prestige and
personal contact would be more easier.
 The prestige and personal contact would be lost if there are a
number of officers who has always to depend upon a large staff
and subordinate officers.
  This institution is suitable for non-democratic countries.
 This institution is not suitable for democratic countries as this
institution is accusatorial and inquisitorial institution and it
does not fit into the Indian Constitution because we have an
independent judiciary.

Conclusion: Indian parliament so far has not enacted any Act though a
proposal to constitute an institution of Ombudsman (lokpal) was made
by the Administrative Reforms Commission as early as 1967. But some
States, however, have enacted statutes and appointed Lokayukta.

------x-----

Q.No.8. Answer any 2 of the following short notes 8X2=16

a. DroitAdministraiff.
Meaning:-

The French legal system is known as Droit administrative, there are two types
of laws and two sets of courts independent of each other. Whereas ordinary
courts administer ordinary civil law between subjects and subjects,
administrative courts administer the law between the subject and the state.

An administrative authority or official is not subject to the jurisdiction of

ordinary court exercising powers under the civil law in disputes between
private individuals.

All claims and disputes in which these authorities or officials are parties fall
outside the scope of the jurisdiction of ordinary courts and they are dealt with
and decided by special tribunals.

This system was able to provide expeditious and inexpensive relief and better
protection to citizens against administrative acts or omissions than the
common Law system.

Concrete cases to illustrate.

 1. If an employee in a Government factory is injured by an explosion,
according to the administrative courts in France, the risk should fall on
the State, but the English courts will not hold the state liable unless the
injured proves negligence of some servant of the crown.

Thus, English courts still apply the conservative and traditional approach that
there should be no liability without fault;

French administrative courts adopt pragmatic approach that ‘justice requires

that the state should be responsible to the workman for the risk which he runs
by reason of his part in the public service.

2. A, a private gas company entered into an agreement with the town

planning council to supply gas at a particular rate for a period of 30
years. The agreement was made on the basis of the rates of coal in the
year 1904.

But after the First World War, the rates shot up. An application was filed by
the gas company before Conseil d’ Etat for revision of rates.

A common law would have rejected this application and would not have
granted the relief prayed for, but the conseil accepted it and revised the rates.

According to the Conseil, it was in the interest of the public at large that the
company should continue to work rather than be wound up and insistence of
providing gas at the fixed rates would result into liquidation of the company.

b. HABEAS CORPUS.

The Latin phrase ‘Habeas corpus’ means ‘have the body’. This is a writ in the
nature of an order calling upon the person who has detained or arrested
another to produce the latter before the court, in order to let the court know
on what ground he has been confined and to set him free if there is no legal
justification for the imprisonment.

In other words, by this writ, the court directs the person or authority who has
detained another person to bring the body of the prisoner before the court so
that the court may decide the validity, jurisdiction or justification for such
detention.

Object:-

The writ of Habeas Corpus provides a prompt and effective remedy against
illegal restraints.

The principal aim is to provide for a swift judicial review of alleged unlawful
detention.

If the court comes to the conclusion that there is no legal justification for the
imprisonment of the person concerned, the court will pass an order to set him
at liberty forthwith.

A.D.M. JABALPUR V. SHIVAKANT SHUKLA [ AIR 1976 SC 1207]

Justice Khanna. Stated that “The writ of habeas corpus is a process for
securing the liberty of the subject by affording an effective means of
immediate relief from unlawful or unjustifiable detention, whether in prison
or private custody.

By it the High court and the Judges of that court, at the instance of a subject
aggrieved, command the production of that subject and inquire into the cause
of his imprisonment.

If there is not legal justification for that detention, the party is ordered to be
released.

c. DISTINGUISH BETWEEN COURT AND TRIBUNAL.

In today’s trend the executive performs ministerial functions and along

with this it also performs many quasi-legislative and quasi-judicial functions
also.

As the governmental functions have increased the function of

adjudication of disputes is the exclusive jurisdiction of the ordinary courts of
law, in reality. Now, many judicial functions have come to be performed by the
executive.

It also seeks to ensure social security and social welfare for the common
masses. Therefore administrative tribunals are, therefore, established to
decide various quasi-judicial issues in place of ordinary courts of law.

According to supreme court the expression Tribunal as used in Article

136 does not mean the same thing as court but includes, with its ambit, all
adjudicating bodies, provided they are constituted by the state and are
invested with judicial as distinguished from administrative or executive
functions.

Distinction between Tribunal and court:

An administrative tribunal is similar to a court in certain aspects. Both

of them are constituted by the state, invested with judicial powers and have a
permanent existence.

But at the same time, it must not be forgotten that an administrative

tribunal is not a court. The line of distinction between a court and tribunal in
some cases is indeed fine through real.

 A court of law is a part of the traditional judicial system.

 On the other hand, an administrative tribunal is an agency created
by a statute and invested with judicial powers.
 The court derives its powers from judiciary.
 Whereas an administrative tribunal derives its powers from
executive as well as judiciary.
 Ordinary civil courts have judicial powers to try all suits of a civil
nature.
 Whereas an administrative tribunal have powers to try cases in
special matters statutorily conferred.
 Judges of ordinary courts of law are independent of the executive
in respect of their tenure, terms and conditions of service, etc.
  Whereas an administrative tribunal are entirely in the hands of
the Government in respect of those matters.
 In a court of law it is generally presided over by an officer trained
in law.
 But members of administrative tribunals may not be trained as
well in law.
 The court of law is bound by all the rules of evidence and
procedure .
 But the administrative tribunal is not bound by those rules unless
the relevant statue imposes such an obligation.
 The court must decide all the questions objectively on the basis of
the evidence and materials produced before it.
 But an administrative tribunal may decide questions taking into
account the departmental policy or expediency, hence the
decisions may be subjective.
 The court of law is bound by precedents, principles of re judicata
and estoppels.
 Administrative tribunal is not strictly bound by them.

Q.No.9. Solve any two of the given problem. 2X20=20

a. A contract was entered between ‘A’ and Government of India

through correspondence of letters. However, there was no formal
contract deed entered between them. Whether this contract is
valid.

Answer:-

No, the contract between ‘A’ and Government is not a valid contract for the
following reasons.

Article 299(1) of the Indian constitution prescribes the mode or manner of

execution of such contracts:-
“All contracts made in the exercise of the executive power of the union or of a
state shall be expressed to be made by the president, or by the Governor of the
State, as the case may be, and all such contracts and all assurances of property
made in the exercise of that power shall be executed on behalf of the President
or the Governor by such persons and in such manner as he may direct or
authorize”.

Requirements of the contract.

1.Every contract must be expressed to be made by the President or the
Governor.
2. Every contract must be executed by a person authorized by the President or
the Governor and
3. Every contract must be expressed in the name of the President or the
Governor.

So, in the above mentioned problem the essentials required under Article
299(1) is not completed hence the contract is not a valid contract.

b. Whether BDA has statutory powers to demolish any building

without any notice if it was constructed without prior permission.
X’s house is constructed without permission. The authority
demolished the house of ‘x’. Advice ‘x’.

Natural justice is an important concept in Administrative law. Natural justice

has meant many things to many writers, layers, jurists and systems of law. It
has many colours, shades, shapes and forms.

The English law recognises two principles of natural justice:

1. No man shall be a judge in his own cause.

2. Hear the other side, or both the sides must be heard.

In this case, the second requirement i,eaudialterampartem has to be

observed and accordingly every person must be given an opportunity of
being heard before any adverse action if taken against him.
In the historic case of Copper Vs. Wandsworth Board of works it is quite
similar to the facts as mentioned above. In this case the defendant Board
had power to demolish any building without giving any opportunity of
hearing if it was erected without prior permission. The Board demolished
the house of the plaintiff under this provision. The action of the Board
demolished the house of the house of the plaintiff under this provision. The
court held that the Board’s power was subject to the qualification that no
man can be deprived of his property without having an opportunity o9f
being heard.

My advice to X, to is file a case against the BDA authorities as they have

violated the principles of Natural justice.