Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

ADMI
NISTRATI
VELAW
 GURENDER RANA (Advocate) for ADDITIONAL SECRETARY, DCBA
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

TABLE OF CONTENTS
Table of Contents.................................................................................3

1. Introduction....................................................................................9
Definition of Administrative Law.............................................................10
Sir Ivor Jennings’ Definition................................................................10
Dicey’s Definition................................................................................11
Kenneth Culp Davis’s Definition.........................................................11
Nature and Scope of Administrative Law.................................................13
Reasons for Growth of Administrative Law..............................................14
Constitutional Law vs. Administrative Law.............................................15
Difference Between Constitutional Law and Administrative Law.........16
Droit Administratif in France...................................................................17
Montesquieu’s Doctrine of Separation of Powers.....................................19
Rule of Law.............................................................................................21
Application of the Doctrine in England................................................21
Rule of Law under the Constitution of India........................................22

2. Delegated Legislation.....................................................................23
Introduction...........................................................................................24
Need for Delegated Legislation................................................................24
Constitutional Validity of Delegated Legislation......................................25
Essential Legislative Function................................................................27
Types of Delegated Legislation................................................................29
Control of Delegated Legislation..............................................................34
1. Judicial Control..............................................................................34
Attempts to Exclude Judicial Review...............................................39
2. Legislative Control..........................................................................43
3. Procedural Control..........................................................................46
Effect of Rules Being Ultra Vires..............................................................49
Other Aspects of Delegated Legislation...................................................49
Retrospective Operation of Delegated Legislation................................49
Retrospective Rules under art. 309 of the Constitution...................50

(iii)
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

4 Administrative Law

Exclusion of Courts’ Jurisdiction........................................................50

Financial Levy.....................................................................................50
Explanatory Notes...............................................................................51
Delay in Making Rules........................................................................52
Sub-delegation of Legislative Functions..............................................52
Waiver of Rules...................................................................................52
Continuance of Rules After Repeal of Parent Statute...........................53

3. Quasi Legislation...........................................................................54
Introduction...........................................................................................55
Delegated Legislation and Quasi Legislation...........................................55
Delegated Legislation Treated as Quasi Legislation.................................57
Enforceability of Quasi Legislation..........................................................58
Publication of Directions.........................................................................64

4. Natural Justice 65
Introduction...........................................................................................66
Rule Against Bias...................................................................................67
Personal Bias......................................................................................67
Pecuniary Bias....................................................................................69
Bias as to Subject-matter....................................................................69
Departmental Bias..............................................................................70
Pre-conceived Notion Bias...................................................................71
Bias on Account of Obstinacy.............................................................72
Conclusion..........................................................................................72
Right of Fair Hearing..............................................................................73
Components of Fair Hearing...............................................................73
1. Right to Notice............................................................................73
Consequences of Non-issuing of Notice........................................75
2. Right to Appearance....................................................................75
3. Right to Know Adverse Evidence.................................................75
4. Right to Present Case..................................................................75
5. Right to Present Evidence............................................................76
6. Right That Evidence Shall Not Be Collected At His Back.............77
7. Right to Rebut Adverse Evidence.................................................77
(a) Right to Cross Examination....................................................78
(b) Right to Legal Representation (Right to Counsel)....................78
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

Table of Contents 5

8. Right to Report of Enquiry...........................................................79

One Who Decides Must Hear.......................................................79
Institutional Hearing...................................................................79
Failure to Supply Copy of Report.................................................79
9. Right to Speaking Order..............................................................82
Implied Constitutional Perspective...............................................82
Implied Statutory Perspective......................................................83
Circumstances Rendering Hearing Unfair...........................................84
Dictation.........................................................................................84
Financial Incapacity to Attend Enquiry...........................................84
Decision Post Haste.........................................................................85
Exceptions to Natural Justice.................................................................85
1. Emergency......................................................................................85
Post Decisional Hearing..................................................................85
2. Confidentiality................................................................................85
3. Ministerial Functions......................................................................86
Academic Matters............................................................................86
4. Impracticability...............................................................................86
5. Interim Preventive Actions..............................................................86
6. Legislative Functions......................................................................86
7. No Infringement of Rights...............................................................86
8. Statutory Exceptions and Necessity................................................86
9. Contractual Matters........................................................................87
10. Policy Matters...............................................................................87
11. Where Hearing is a Useless Formality...........................................87
Right of Third Parties..............................................................................87
Effect of Violation of Natural Justice.......................................................88

5. Administrative Functions...............................................................90
Introduction...........................................................................................91
Classification of Administrative Functions..............................................92
Judicial Review of Discretionary Functions.............................................92
Doctrine of Ultra Vires........................................................................92
Stages.................................................................................................92
At the Stage of Conferment of Powers..................................................93
Conferment of Discretion and Art. 14..............................................93
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

6 Administrative Law

Differential Procedure..................................................................93
Conferment of Discretion and Fundamental Freedoms....................94
Art 19(1)(a) Freedom of Speech and Expression...........................94
Art 19(1)(c) Freedom to Form Associations or Unions..................95
Art 19(1)(d) Freedom to Move Freely Throughout the Territory of India
...................................................................................................95
Art 19(1)(e) Freedom to Reside and Settle in Any Part of India.....95
Art 19(1)(f) Freedom to Property...................................................95
Art 19(1)(g) Freedom of Trade and Occupation.............................95
At the Stage of Exercise of Powers.......................................................96
1. Failure to Exercise Discretion......................................................96
1. Acting Mechanically.................................................................96
2. Abdication of Discretion..........................................................97
3. Acting Under Dictation............................................................98
4. Imposing Fetters on Discretion................................................99
5. Exercise at Wrong Time...........................................................99
6. Powers Coupled with Duty.......................................................99
2. Wrong Exercise of Discretion ....................................................100
1. Irrelevant Consideration........................................................100
2. Leaving Out Relevant Consideration......................................101
3. Mixed Consideration..............................................................101
4. Colourable Exercise...............................................................102
5. Use for Collateral Purpose.....................................................102
6. Mala fide Exercise of Power....................................................103
7. Unreasonable Exercise..........................................................104
Wednesbury Unreasonableness.............................................105
8. Lack of Jurisdiction to Exercise.............................................107
9. Exercise in Excess of Jurisdiction..........................................107
10. Non-compliance of Procedural Requirements.......................107
11. Exercise in Violation of Natural Justice...............................107

6. Quasi Judicial Functions..............................................................108

Introduction.........................................................................................109
Characteristics of Quasi-judicial Functions..........................................109
1. Lis Inter Partes...............................................................................109
2. Provision for Administrative Appeal...............................................109
3. Powers of Court............................................................................110
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

Table of Contents 7

4. Adverse Civil Consequences..........................................................110

5. Duty to Act Judicially...................................................................110
Distinction between Administrative and Quasi-judicial Functions........111
General.............................................................................................111
Object...............................................................................................111
Lis.....................................................................................................111
Duty to Act Judicially.......................................................................112
Duty to Act Fairly..............................................................................113
Cases................................................................................................113
Test...................................................................................................114
Judicial Functions and Quasi Judicial Functions.................................114
Judicial Functions............................................................................114
Quasi Judicial Functions..................................................................115
Distinction between Judicial and Quasi-Judicial Functions..............116
Need for Quasi Judicial Functions........................................................117
1. Burden on Courts Resulting in Delay............................................117
2. Specialisation...............................................................................117
3. Informality....................................................................................117
4. Inexpensive...................................................................................118
5. Preventive Rather than Remedial..................................................118
6. Policy May Be Applied (Functional Approach)................................118
7. General Rather than Special Treatment to Cases..........................118
Advantages of Quasi-judicial Decision-making.....................................118
1. Socialisation of Law......................................................................118
2. Informal, Inexpensive and Quick Remedy.....................................118
3. Preventive Action, Rather than Curative........................................118
4. Functional Approach....................................................................118
5. Experience....................................................................................119
Problems Related to Quasi-judicial Functions.......................................119
1. Number and Complexity...............................................................119
2. Varieties of Procedures..................................................................119
3. Unsystematic System of Appeals...................................................119
4. Invisibility of Decisions.................................................................119
5. Unpredictability of Decisions........................................................119
6. Anonymity of Decisions.................................................................119
7. Combination of Functions.............................................................119
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

8 Administrative Law

8. ‘No Evidence’ rule.........................................................................120

9. Official Perspective........................................................................120
10. Official Bias................................................................................120
11. Plea Bargaining...........................................................................120
12. Political Interference...................................................................120
13. Off the Record Consultation........................................................120
14. Reasoned Decision......................................................................120
15. Legal representation....................................................................120
Enquiry Against Quasi-judicial Authorities...........................................121
Administrative Tribunals......................................................................121
Constitutional Validity of Administrative Tribunals Act, 1985...........121

7. State Liability..............................................................................123
Liability of State under Constitution.....................................................124
Contractual Liability.............................................................................124
Expressed to be Made by the President/Governor.............................125
Executed on Behalf of the President/Governor..................................126
By Person Authorized the President/Governor..................................126
Tortuous liability..................................................................................127
Pre Constitutional Decisions.............................................................128
Post Constitutional Decisions...........................................................129
Constitutional Torts......................................................................131
Sovereign and Non-sovereign Functions Distinguished.................131
Analysis of Judgement in Nagendra Rao Case...............................132

8. Judicial Review............................................................................133
Introduction.........................................................................................134
Judicial Review and Appeal...............................................................134
Doctrine of Legitimate Expectation....................................................134
Doctrine of Public Accountability......................................................137
Doctrine of Proportionality................................................................139
Procedural Aspects...............................................................................140
Doctrine of Standing.........................................................................140
Locus Standi .................................................................................140
Exceptions to the Rule of Locus Standi..........................................141
Class Actions................................................................................141
Public Interest Litigation...............................................................141
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

Table of Contents 9

Doctrine of Res Judicata....................................................................143

Jurisdiction......................................................................................145
Jurisdiction of Supreme Court under arts. 32 and 136.................145
Jurisdiction of High Courts under arts. 226 and 227....................146
Violation of Procedural Norms...........................................................146
Grounds of Judicial Review..................................................................146
1. Illegality........................................................................................147
2. Irrationality and Unreasonableness..............................................147
3. Procedural Impropriety.................................................................148
Writs....................................................................................................148
1. Habeas Corpus.............................................................................150
2. Writ of Mandamus........................................................................151
Writ of Mandamus compared with Injunction................................152
3. Writ of Certiorari and Writ of Prohibition......................................153
Certiorarised Mandamus...............................................................154
4. Writ of Quo Warranto....................................................................155
Private Law Review...............................................................................155
Injunction.........................................................................................156
Mandatory Injunction....................................................................157
Prohibitory Injunction...................................................................158
Temporary Injunction....................................................................158
Writ of Mandamus Compared with Injunction...........................159
Declaration.......................................................................................160
Damages...........................................................................................162

9. Government Privileges.................................................................164
Privileges and Immunities Claimed by Governments in Suits................165
Privilege of Notice..................................................................................165
Privilege to Withhold Documents..........................................................166
Immunity from Statute Operation.........................................................167
Immunity from Estoppel.......................................................................168

10. Mal Administration....................................................................170

Extra judicial Remedies........................................................................171
Parliamentary Remedies...................................................................171
Tribunals..........................................................................................171
Arbitration........................................................................................172
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

10 Administrative Law

Ombudsman, CVC, Lokayukta and Lokpal...........................................172

Ombudsman.....................................................................................172
Ombudsman in India....................................................................173
Central Vigilance Commission (CVC).................................................173
Role of CVC...................................................................................174
Appointment of CVC......................................................................174
Removal of CVC............................................................................174
Limitations of CVC........................................................................175
Lokayukta.........................................................................................176
Lokpal...............................................................................................177
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

CHAPTER I

1. INTRODUCTION
• Definition (Description) of Administrative Law
• Nature and Scope of Administrative Law
• Reasons for Growth of Administrative Law
• Sources of Administrative Law
• Rule of Law
• Droit Administratif
• Montesquieu’s Doctrine of Separation of Powers
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

DEFINITION OF ADMINISTRATIVE LAW

As the functions of the governments are continuously expanding qualitatively as

well as quantitatively, the administrative law is also growing incessantly. Hence,
no satisfactory definition for administrative law can be given.

Dr F. J. Port who published the first book bearing the title Administrative Law in
England in 1929 did not venture to define the term. He simply attempted to
describe administrative law as follows:

“Administrative Law is made up of all these legal rules-either formally

expressed by statutes or implied in the prerogative-which have as their
ultimate object the fulfilment of public law. It touches, first the legislature,
in that the formally expressed rules are usually laid down by that body; it
touches judiciary, in that

(a) there are rules which govern the judicial action that may be brought by
or against administrative persons,

(b) administrative bodies are sometimes permitted to exercise judicial

powers;

(c) it is of course essentially concerned with the practical application of the

Law.”

SIR IVOR JENNINGS’ DEFINITION

The most widely accepted definition is given by Sir Ivor Jennings. According to Sir
Ivor Jennings, “Administrative Law is the law relating to the administrative
authorities”. This definition is too simple and has two significant limitations:

First, it is a very wide definition and can be interpreted to mean that the law which
determines the powers and functions of administrative agencies deals with both
substantive and procedural aspects of the same.

Second, it ignores the distinction between Constitutional Law and Administrative

Law. Constitutional Law deals with the grant of the powers and functions to
administrative agencies. Administrative law deals with the exercise of these powers
and provides for remedies to the individuals who are aggrieved by the non-use or
abuse of these powers by the administrative agencies.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

1. Introduction 13

DICEY’S DEFINITION

According to Dicey,

1. Administrative law relates to that portion of a nation’s legal system which

determines the legal status and liabilities of all State officials.

2. It defines the rights and liabilities of private individuals in their dealings with
public officials; and

3. It specifies the procedure by which those rights and liabilities are enforced.

KENNETH CULP DAVIS’S DEFINITION

Kenneth Culp Davis defines administrative law as “the law concerning the powers
and procedures of administrative agencies, including especially the law governing
judicial review of administrative action.”

Davis, excludes judiciary and legislature from the definition of an administrative

agency and holds that an administrative agency can affect the rights of private
parties either through administrative adjudication or rule-making.

The merit of this definition is its emphasis on procedure followed by administrative

agencies in exercising their powers. Davis includes the study of administrative rule
making and rule adjudication. But this definition does not consider the other
functions of the administration which are neither quasi judicial functions nor rule-
making functions. Davis excludes rule application which according to him belongs
to the domain of public administration

I. P. Massay in his book Administrative Law observes as under:

“For our purposes, we may define administrative law as that branch of

public law which deals with the organisation and powers of administrative
and quasi-administrative agencies and prescribes principles and rules by
which an official action is reached and reviewed in relation to individual
liberty and freedom.”

To conclude one may say that the four basic bricks of the foundation of any
administrative law may be identified as:

1. to check abuse or detournment of administrative power;

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

14 Administrative Law

2. to ensure to citizens an impartial determination of their disputes by officials;

3. to protect them from unauthorised encroachment on their rights and

interests; and

4. to make those who exercise public power accountable to the people.

It may also be noted that

1. Administrative law is a law but it is not a law in the lawyer’s sense of the
term like property law or contract law.

2. It is a branch of public law in contradistinction to private law which deals

with the relationships of individuals inter se.

3. It deals with the organisation and powers of administrative and quasi-

administrative agencies.

4. Administrative law includes the study of the existing principles and also of
the development of certain new principles which administrative and quasi-
administrative agencies must follow while exercising their powers in relation
to individuals, i.e. the principles of natural justice, reasonableness and
fairness.

5. Administrative law primarily concerns itself with the official action which
may be:

(i) Rule-making or quasi-legislative action,

(ii) Rule-decision or quasi-judicial action,

(iii) Rule-application or administrative action, or

(iv) Ministerial action or pure administrative action.

Besides these main actions, the actions which are incidental to the main
action are also covered within its study. Such incidental actions may be
investigatory, supervisory, advisory, declaratory and prosecutory.

6. One of the main thrusts of the study of administrative law is on the

procedure by which the official action is reached. Such procedure may be
laid down:
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

1. Introduction 15

(i) in the statute itself under which the administrative agency has been
created;

(ii) in the separate procedure code which every administrative agency is

bound to follow, i.e. Administrative Procedure Act, 1946 in the USA and
Tribunals and Enquiries Act, 1958 in England.

7. Administrative law also includes within its study the control mechanism by
which the administrative agencies are kept within bounds and made
effective in the service of the individuals.

1. Judicial control by public law review and private law review

2. Legislative control

3. Procedural control

4. Executive control through superior authorities, autonomous agencies

5. Social control through media, RTI etc.

NATURE AND SCOPE OF ADMINISTRATIVE LAW

Administrative law is the body of law that governs the activities of administrative
agencies of government. Action of a government agency can include rule-making,
adjudication, or the enforcement of a specific regulatory agenda. Administrative
law is considered a branch of public law. As a body of law, administrative law
deals with the decision-making of administrative units of government (e.g.,
tribunals, boards or commissions) that are part of a national regulatory scheme in
such areas as police law, international trade, manufacturing, the environment,
taxation, broadcasting, immigration and transport. Administrative law expanded
greatly during the twentieth century, as legislative bodies worldwide created more
government agencies to regulate the increasingly complex social, economic and
political spheres of human interaction.

Taxation decisions are the decisions based on administrative law that are most
often contested in courts. Civil law countries often have specialized courts,
administrative courts, that review these decisions.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

16 Administrative Law

REASONS FOR GROWTH OF ADMINISTRATIVE LAW

Administrative law is considered as an intensive form of government. It deals with

the pathology of functions. The functions that are discharged by the
administrative authorities differ from time to time depending upon the changes in
socio-economic conditions in any nation.

The following factors are responsible for the rapid growth and development of
administrative law:

1. Radical change in the philosophy of role of State: There is a radical change

in the philosophy as to the role played by the State. The negative policy of
maintaining ‘law and order’ and of ‘laissez faire’ is given up. The State has not
confined its scope to the traditional and minimum functions of defence and
administration of justice, but has adopted the positive policy and as a welfare
State has undertaken to perform varied functions.

2. Urbanization: Due to the Industrial Revolution in England and other countries

and due to the emergence of the factory system in our country, people migrated
from the countryside to the urban areas in search of employment in factories and
large scale industries. As a result of which there arose a need for increase in
providing housing, roads, parks, effective drainage system etc. Legislations were
enacted to provide all these basic facilities and accordingly administrative
authorities were required to make rules and regulations, frame schemes for
effective infrastructure and facilities which ultimately lead to the growth of
administrative law.

3. To meet Emergency Situations: Enacting legislations, getting assent from the

President is all a lengthy process, whereas it is very easy and quick to frame
schemes and rules for meeting any emergency situations that arise in a locality.
Due to the flexibility of making the rules, obviously there is a constant growth of
administrative law making in the country.

4. Inadequacy of Judicial System: The judicial system proved inadequate to

decide and settle all types of disputes. It was slow, costly, inexpert, complex and
formalistic. It was already overburdened, and it was not possible to expect speedy
disposal of even very important matters, e.g. disputes between employers and
employees, lockouts, strikes, etc. These burning problems could not be solved
merely by literally interpreting the provisions of any statute, but required
consideration of various other factors and it could not be done by the ordinary
courts of law. Therefore, industrial tribunals and labour courts were established,
which possessed the techniques and expertise to handle these complex problems.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

1. Introduction 17

5. Inadequacy of Legislative Process: The legislative process was also

inadequate. It had no time and technique to deal with all the details. It was
impossible for it to lay down detailed rules and procedures, and even when
detailed provisions were made by the legislature, they were found to be defective
and inadequate, e.g., rate fixing. And, therefore, it was felt necessary to delegate
some powers to the administrative authorities.

6. Scope for Experimentation: There is scope for experiments in administrative

process. Here, unlike legislation, it is not necessary to continue a rule until
commencement of the next session of the legislature. Here a rule can be made,
tried for some time and if it is found defective, it can be altered or modified within
a short period. Thus, legislation is rigid in character while the administrative
process is flexible.

7. Avoidance of Technicalities: The administrative authorities can avoid

technicalities. Administrative law represents functional rather than a theoretical
and legalistic approach. The traditional judiciary is conservative, rigid and
technical. It is not possible for the courts to decide the cases without formality and
technicality. The administrative tribunals are not bound by the rules of evidence
and procedure and they can take a practical view of the matter to decide complex
problems.

8. Preventive Mechanism: Administrative authorities can take preventive

measures, e.g. licensing, rate fixing, etc. Unlike regular courts of law, they have
not to wait for parties to come before them with disputes. In many cases, these
preventive actions may prove to be more effective and useful than punishing a
person after he has committed a breach of any provision or law. As Freeman says,
“Inspection and grading of meat answers the consumer's need more adequately
than does a right to sue the seller after the consumer is injured.”

9. Effective Enforcement of Preventive Measures: Administrative authorities

can take effective steps for enforcement of the aforesaid preventive measures; e.g.
suspension, revocation and cancellation of licences, destruction of contaminated
articles, etc. which are not generally available through regular courts of law.

CONSTITUTIONAL LAW VS. ADMINISTRATIVE LAW

To the early English writers on administrative law there was no difference between
administrative law and constitutional law. Therefore, Keith observed:
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

18 Administrative Law

“It is logically impossible to distinguish administrative from constitutional law

and all attempts to do so are artificial.”

According to Holland, the constitutional law describes the various organs of the
government at rest, while administrative law describes them in motion.

Maitland, does not agree with this classification for, in that case, powers and
prerogatives of the Crown would be relegated to the arena of administrative law.

According to another view constitutional law deals with fundamentals while

administrative law deals with the details.

In countries which have written constitutions, the difference between

constitutional law and administrative law is not so blurred as it is in England. In
such countries the source of constitutional law is the Constitution while the
source of administrative law may be statutes, statutory instruments, precedents
and customs.

To conclude, as observed by I. P. Massay,

“Whatever may be the arguments and counter-arguments, the fact remains that
today administrative law is recognised as a separate, independent branch of the
legal discipline though at times the disciplines, of constitutional law and
administrative law may overlap.

The correct position seems to be that if one draws two circles of administrative
law and constitutional law, at a certain place they may overlap and this area
may be termed as the ‘watershed’ in administrative law.”

DIFFERENCE BETWEEN CONSTITUTIONAL LAW AND

ADMINISTRATIVE LAW

The following are the differences between Constitutional Law and Administrative
Law:

1.Constitutional Law is the supreme and highest law of the country.

Administrative Law is subordinate to the constitutional Law.

2.The Constitutional Law is always regarded as the genus. Administrative Law

is the species of Constitution Law.

3.Constitutional Law mainly deals with various organs of a state.

Administrative Law deals with the organs of the state as motion.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

1. Introduction 19

4.Constitutional Law mainly deals with the structure of the state.

Administrative Law mainly deals with the various functions of the state.

5.Constitutional Law touches all the branches of law and gives guidelines
with regard to the general principal relating to organization and powers of
organs of the state, and their relations between citizens and towards the
state. Administrative Law doesn't deal with all branches of law, rather it
details with the powers and functions of administrative authorities.

6.Constitutional Law also gives guidelines about the intentional relations.

Administrative Law does not deal with the International Law. It deals
exclusively with the powers and functions of administrative authorities.

7.Constitutional Law deals with the general principal of state pertaining to all
branches. Administrative Law deals with the powers and functions of
administrative authorities, including services, public departments, local
authorities and other statutory bodies exercising administrative powers, quasi
judicial powers, etc.

8.Constitutional Law demarcates the constitutional status of Ministers and

public servants. Administrative Law is concerned with the organization of the
services or the working of the various government departments.

9.Constitutional Law imposes certain negative duties on administrators, if

they are found violating the fundamental rights of the citizens and etc. It also
imposes certain positive duties on administrators, viz, implementation of
social welfare schemes. The administrators have to follow Constitutional Law
first and next the Administrative Law.

10.Constitutional Law have complete control on the administrative law and

administrators of the country. The administrators should perform their
functions with utmost obedience to Constitutional Law. Administrative Law is
just a subordinate to Constitutional Law.

DROIT ADMINISTRATIF IN FRANCE

In France, Droit Administratif can be defined as a body of rules which determine
the organisation and the duties of public administration, and which regulate the
relations of the administration with the citizens of the State.

Droit Administratif is quite different in conception from the Common-law system of

Administrative Law. It is in itself the product of the doctrine of separation of
powers, and has meant in France that there should be separation between the
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

20 Administrative Law

courts and administrative bodies. As a result, the separation theory has had a
greater imprint in France than in the U.S.A.

The traditionalist Bonapartists supported the executive power even in judicial

matters while reformist parliaments supported the jurisdiction of ordinary courts.
Conseil du Roi not only advised the King in legal and administrative matters, but
also discharged some judicial functions. This made the ordinary courts
(Parlements) jealous.

Significant changes were brought by the Revolution in 1789. The first step taken
by the revolutionists was to curtail the power of the executive which was done on
the theory of separation of powers by the famous 16-24 August, 1790 Law. Conseil
du Roi was abolished and the King's powers were curtailed. Napoleon, who became
the first Consul, favoured freedom for the administration and also favoured
reforms. He wanted an institution to give relief to the people against the excesses
of the administration.

Therefore, in 1799 Conseil d’Etat was established. The main aim of the institution
was to resolve difficulties which might occur in the course of the administration.
However, in due course of time it started exercising judicial powers in matters
involving administration. In the beginning it was not an independent court but an
appendage of the executive. Its main task was to advise the minister with whom
the complaint was to be lodged. In fact the minister was the judge, and the Conseil
d’Etat administered only advisory justice. It did not have public sessions. It had no
power to pronounce judgements. It represented the government's point of view. It
was this aspect of the Conseil d’Etat which was against Dicey’s concept of the Rule
of Law.

In 1872 its formal power to give judgement was established. The Arrets (Executive
Law) Blancq, February 8, 1873 finally laid down and settled that in all matters
involving administration, the jurisdiction of the Conseil d’Etat would be final. It
laid down, among other things, the principle that questions of administrative
liability would be within the jurisdiction of administrative courts and that the
liability was subject to special rules different from those of Droit Civil. In 1889, it
started receiving direct complaints from the citizens and not through ministers.
Droit Administratif does not represent principles and rules laid down by the
French Parliament; it consists of rules developed by the judges of the
administrative courts.

Droit Administratif, therefore, includes three series of rules:

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

1. Introduction 21

1. Rules dealing with administrative authorities and officials. These relate

to appointment, dismissal, status, salary and duties etc.

2. Rules dealing with the operation of public services to meet the needs of
citizens. These services may be operated either wholly by public officials or
under their supervision or they may assist private agencies to provide public
utility services.

3. Rules dealing with administrative adjudication. If any injury is done to a

private citizen by the administration, the matter would be decided by the
administrative courts. Conseil d’Etat is the highest administrative court.
This system of administrative adjudication developed in France due to
historical reasons in order to avoid encroachment by the courts on the
powers of the administrative authorities and prevent intrusion by the judges
into the business of the administration.

In case of conflict between the ordinary courts and the administrative courts
regarding jurisdiction, the matter is decided by the Tribunal des Conflits. This
tribunal consists of an equal number of ordinary and administrative judges and is
presided over by the minister of justice.

MONTESQUIEU’S DOCTRINE OF SEPARATION OF POWERS

State is an artificial person having enormous powers. Like any other artificial
person, state also needs the help of human agents to perform its functions. These
human agents of the state are called the government.

In federal nations like India, the government is divided into three organs:
legislature, executive and judiciary. They are all assigned the different functions of
the State. The function of the Legislature is law making. Judiciary interprets the
laws made by the legislature. Executive looks after the general administration of
the nation.

According to Montesquieu, there should be separation of powers between these

three organs of the government. This is called the Doctrine of Separation of
Powers. According to Montesquieu, this Doctrine can be stated in terms of the
following three rules:

1. One organ of the Government should not interfere with the working of another.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

22 Administrative Law

2. One organ of the government should not exercise the functions assigned to any
of the other organs.
3. The same person should not form the part of more than one organ at the same
time.
This Doctrine is very useful in theory because it ensures smooth functioning of the
government. Otherwise there can be friction within the government. It also makes
clear who has to perform which function. In the absence of this doctrine, any
organ can carry out function of any other organ and that will create confusion
among the people as to from whom they should get the work done. Further, the
persons in the government may use this opportunity to avoid their responsibilities
by making other organs responsible. The practical utility of this doctrine attracted
the frames of many constitutions all over the world during the 19 th century and
many constitutions, such as those of England and the U.S.A. have adopted it.

However, it is difficult to follow this doctrine in practice. The functions of the

government cannot be divided in water-tight compartments. Many times we have
to deviate from the strict doctrine of separation of powers. Even in countries like
U.S.A., where this doctrine is a part of the constitution and is followed strictly,
there are deviations because of practical difficulties.

In India, our Constitution nowhere mentions the doctrine of separation of powers.

But still it is followed wherever it is possible. Therefore, we see that there are some
significant deviations from this doctrine. To illustrate we can give few examples:

1. The Council of Ministers is made up of Members of Parliament. If a person who

is not a member of parliament is made a minister, he will have to contest for
election and become a member of Parliament within 6 months or else he will be
disqualified to continue as minister. Thus, to become a member of the
executive, he has to become a member of legislature. Thus, he has to be a part
of two organs at the same time. Thus, there is a deviation from the first rule of
Separation of Powers.
2. The executive is responsible to the legislature. The acts of the executive are
questioned in the legislature. Thus, there is a deviation from the second rule of
Separation of Powers.
3. In case of Delegated Legislation, executive makes law and while exercising
quasi judicial functions, the executive decides cases as if it is judiciary. Thus
executive at times discharges the functions of legislature and judiciary. Thus,
there is a violation of the third rule of Separation of Powers.
Thus, while the political usefulness of the doctrine is widely recognised under our
constitution, wherever it is practically difficult, it is deviated from. If this doctrine
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

1. Introduction 23

were to be followed in letter and spirit, it would have become impossible for our
courts to uphold the constitutional validity of delegated legislation which has
proven to be very useful in practice.

RULE OF LAW

The basis of Administrative Law is the ‘Doctrine of the Rule of Law’.

The expression ‘Rule of Law’ has been derived from the French phrase ‘la principle
de legalite’, i.e. a Government based on the principles of law.

Law may be taken to mean mainly a rule or principle which governs the external
actions of the human beings and which is recognised and applied to the affairs in
a country where, in main, the law is observed and order is kept. It is an expression
synonymous with law and order.

It was expounded for the first time by Sir Edward Coke, and was developed by
Prof. A. V. Dicey in his book 'The law of the Constitution' published in 1885.

According Coke, in a battle against King, he should be under God and the Law,
thereby the Supremacy of Law is established.

Dicey regarded rule of law as the bedrock of the British Legal System. His doctrine
is accepted in the constitutions of U.S.A. and India. According to Prof. Dicey, rules
of law contains three principles:

1. Supremacy of Law;

2. Equality before Law; and

3. Predominance of Legal Spirit.

APPLICATION OF THE DOCTRINE IN ENGLAND

Though there is no written constitution in England, the rule of law is applied in

concrete cases.

However, Dicey’s rule of law was not accepted in full in England.

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

24 Administrative Law

1. In those days, many statutes allowed priority of administrative power in

many cases, and the same could not be challenged before the Courts.

2. Further sovereign immunity existed on the ground of ‘King can do no wrong’.

The sovereign immunity was abolished by the Crown Proceedings Act, 1947.

3. Prof. Dicey could not distinguish arbitrary power from discretionary power,
and failed to understand the merits of French legal system.

RULE OF LAW UNDER THE CONSTITUTION OF INDIA

The Constitution of India is the supreme law of the country. The doctrine of Rule
of Law has been adopted in Indian Constitution. The ideals of the Constitution,
justice. liberty and equality are enshrined in the preamble. Part III of the
Constitution of India guarantees the FRs.

Kesavanda Bharati vs. State of Kerala (1973), the Supreme Court enunciated
the rule of law as one of the most important aspects of the doctrine of basic
structure.

Maneka Gandhi vs. Union of India (1978), the Supreme Court declared that
Article 14 strikes against arbitrariness.

Indira Nehru Gandhi vs. Raj Narain (1975), article 329-A was inserted in the
Constitution under 39th amendment, which provided certain immunities to the
election of office of Prime Minister from judicial review. The Supreme Court
declared Article 329-A as invalid since it abridges the basic structure of the
Constitution.

A.D.M. Jabalpur vs. Shivakant Shukla (1976) (Popularly known as the Habeas
Corpus Case) The question before Supreme Court was, whether there was any rule
of law in India apart front Article 21 of the Constitution. The Supreme Court by
majority held that there is no rule of law other than the constitutional rule of law.
Article 21 is our rule of law. If it is suspended, there is no rule of law.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

CHAPTER II

2. DELEGATED LEGISLATION
• Definition of Delegated Legislation
• Need for Delegated Legislation
• Constitutional Validity of Delegated Legislation
• Essential Legislative Function
• Types of Delegated Legislation
• Control of Delegated Legislation
• Judicial Control
• Legislative Control
• Procedural Control
• Effect of Rules Being Ultra Vires
• Other Aspects of Delegated Legislation
• Retrospective Effect of Delegated Legislation
• Exclusion of Courts’ Jurisdiction
• Financial Levy
• Explanatory Notes
• Delay in Making Rules
• Sub-delegation of Legislative Functions
• Waiver of Rules
• Continuance of Rules After Repeal of Parent Act
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

INTRODUCTION

Functions of State are divided among its three organs, viz., legislature, judiciary
and executive. Making law is the function assigned to the legislature. Executive
has the function of looking after the general administration of the State. However,
due to several reasons, the legislature is unable to make all the laws needed by the
State. Therefore, in many cases, it makes the bulk of the legislation and delegates
its power to make the remaining laws to the executive or, in some cases, to the
judiciary. Thus, even though it is not the function of the executive and judiciary to
make laws, they can now make laws under the legislative powers delegated to
them by the legislature. Laws so made by the executive and judiciary are called
delegated legislation.

Legislative functions of the legislature are directly derived from the State and
legislature is the specialist body in law-making. Therefore, laws made by it are
called Superior Legislation. Executive and judiciary are not the specialist law-
making bodies. Their legislative powers are derived from the legislative powers of
the legislature. Therefore, the laws made by them are called Subordinate
Legislation.

NEED FOR DELEGATED LEGISLATION

There are many reasons which have made it necessary for the legislature to
delegate its law-making powers. Some of these reasons are as under:

1. Pressure on the Legislature: India has adopted the welfare state model
and accordingly, it has undertaken a vast variety of functions, both
sovereign and commercial. Because the State functions are more, the laws
required to carry out these functions are more. As a result, The pressure
on the legislature has increased to a great extent. Legislature does not find
time to make all the laws necessary for the functioning of the State.
Therefore, some of its burden is to be transferred to the other organs of the
State.

2. Lack of Expertise: Again, as the functions of the State are of wide variety,
legislature does not find itself well equipped with the necessary expertise to
make laws in all the fields of activity of the State. Executive which is the
organ looking after the administration of the State as many Departments
specially dealing in different areas of such activities. In these Departments
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

2. Delegated Legislation 27

many experts are working, who have both expertise and field experience in
different fields. Therefore, executive has the expertise to make the laws. To
make use of this expertise, legislature delegates its legislative functions to
the executive.

3. To Tackle Unforeseen Circumstances: In fast changing socio-economic-

political situations, many unforeseen contingencies may be confronted by
the State. To deal with such situations new laws are needed urgently.
Legislature does not function throughout the year. It can make laws only
when both the Houses are in session. Further, the legislative procedure is
time-consuming. Therefore, legislature cannot make laws quickly to meet
the urgent situations. Executive, on the other hand, is functioning
throughout the year and its law-making procedure is much simpler and
quicker than that of the legislature. Therefore, to enable the executive to
make laws to meet urgent situations, legislature delegates its legislative
powers to the executive.

4. Facility for Experimentation: In new fields law-making requires much

experimentation. That is, the laws will have to be changed very frequently.
This is not possible for the legislature, but executive can do so much easily.
That is another reason for the delegation of legislative powers by the
legislature to the executive.

5. Maintenance of Secrecy: Certain laws need to be secret till they actually

come into force. If, for example, the prices of goods will increase after the
coming into operation of the law, people will buy such goods beyond their
needs and the sellers will try to hoard the goods, as a result artificial
scarcity may be created and the prices of the goods may sky rocket. To
avoid this the law should be made secretly and be published only after it is
brought into operation.

6. Administrative Nature: Certain aspects of law are in relation to the

implementation of the legislative policy. Such aspects being administrative
in nature and can be better managed by the executive rather than the
legislature. Hence the same may be delegated to the executive.

CONSTITUTIONAL VALIDITY OF DELEGATED LEGISLATION

In the initial stages, delegation of legislative powers was challenged on two

important grounds:

1. That it is against the Doctrine of Separation of Powers which says, inter

alia, that one organ of the government cannot carry out the functions of
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

28 Administrative Law

another organ. If executive makes laws, then it is carrying out the

functions of the legislature, which is opposed to this principle.
2. That delegation of legislative powers by the legislature to the executive or
judiciary infringes the rule delegatus not postest delegare. Legislature itself
being a delegate cannot further delegate.
Though these two are very strong grounds for invalidating delegation of legislative
powers, looking to the significant advantages of the delegation of legislative
powers, the Courts were forced to reject them. In England and in the U.S.A., it was
held that legislative functions cannot be delegated. Hence, what is delegated by the
legislature is not legislative function.

In India, this question was raised before the Privy Council in R. vs. Burah. In that
case, sec. 9 of an 1869 Act made certain provisions in respect of Garo Hills, and
empowered the Governor of Calcutta to extend this law to Khasi and Jaintia Hills.
This provision was challenged as unconstitutional before the High Court, and High
Court upheld the contention. In appeal against the decision of the High Court, the
Privy Council held that the Act was constitutional and observed that it was not
delegated legislation, but only conditional legislation.

The decision of the Privy Council was interpreted in two different ways in the
subsequent cases: In some cases it was held that the ratio of Burah was that
delegated legislation was constitutional in India, while in others it was held that
the ratio it was that only conditional legislation and not delegated legislation which
was constitutional in India.

Later this question also arose before the Federal Court of India in Jatindra Nath vs.
Province of Bihar. In this case the FC followed the decision of PC in R vs. Burah
and held that in India there can be no delegation of legislative powers beyond
conditional legislation. In that case one of the provisions of a temporary Act
namely, sec. 1(3) of the Bihar Maintenance of Public Order Act, 1948 which
empowered the Government to extend the life of the Act by one year with such
modifications as it deemed fit, was challenged as unconstitutional. As the words
“with such modifications as it deems fit” gave the power of amendment to the
Government the Federal Court held it unconstitutional.

Again the question was raised before the Supreme Court of India in Re Delhi Laws
Act. In this case the facts were that there were few Part C States under the direct
administration of the Central Government because they did not have a legislature
of their own. Their laws were to be made by the Parliament. As parliament did not
find it convenient to legislate for the Part C states, it authorised the Central
Government to extend any enactment in force for Part A State to Part C State with
such restrictions and modifications as may the Central Government deemed fit.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

2. Delegated Legislation 29

This meant that the Central Government could amend the law. This is delegation
of legislative powers and therefore, was challenged opposed as unconstitutional.
As the decision of Privy Council in Burah was rendered ambiguous and the
decision of the Federal Court in Jatindra Nath was not clear, the President of India
in exercise of his power under art. 143 of the Constitution referred the matter to
the Supreme Court for its advise.

Seven judges of the Supreme Court heard that matter and came to the following
conclusions:

1. Doctrine of Separation of Powers is not a part of the Constitution of India.

2. Parliament of India is not a delegate of anybody and therefore, delegatus
non potest delegare is not applicable to it.
3. Parliament can delegate its powers, but it cannot abdicate or efface itself by
producing a parallel legislative body.
4. Power of delegation is ancillary to the power of legislation.
5. Essential legislative functions cannot be delegated.
The Court defined “essential legislative functions” as:

1. Laying down the policy of law; and

2. Enacting that policy into binding rule of conduct.
If we go through the various decisions of the High Courts and the Supreme Court,
we can come to a conclusion that delegation of legislative pwoers to the executive
or judiciary is valid in India, subject to the following three conditions:

1. Essential legislative functions cannot be delegated.

2. The legislature should lay down proper guidelines to the executive for the
exercise of the powers delegated to it.
3. Wherever possible the limits within which these powers can be exercised
should be laid down, for example, where the power is to impose penalty,
this power should be exercisable within a prescribed limit.

ESSENTIAL LEGISLATIVE FUNCTION

In India, delegation of legislative functions is valid subject to the important

condition that essential legislative functions shall not be delegated. Therefore, it is
essential to know the meaning of essential legislative functions. The Supreme
Court has defined “essential legislative functions” as:
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

30 Administrative Law

1. Laying down the policy of law; and

2. Enacting that policy into binding rule of conduct.
How this definition is applied to actual cases is to be found out from various cases
decided by the Courts.

In Rajnarain Singh vs. Chairman, Patna Administration Committee, sec. 3(1)(f) of the
impugned Act empowered the Patna Local Administration to select any provision of
the Bengal Municipality Act, 1884 and apply it to Patna with such modifications
and restrictions as it deemed fit. This provision was held to be unconstitutional as
it amounted to picking the policy of the Act.

In Hari Shankar Bagla vs. State of M.P., sec. 3 of the Act empowered the Central
Government to make Rules for the purpose of “maintaining or increasing supplies
of any essential commodity, or for securing thir equitable distribution and
availability at fair prices”, and sec. 6 provided that “any Rule so made shall have
effect notwithstanding anything inconsistent therewith in any Act otherthan this
Act”. The Court held both sections valid because the policy of the Act was
sufficiently formulated in sec. 3 and clear and sufficent guidance for exercising the
power was given under that section. Sec. 6 was not viewed by the Court as
delegation of amending powers but to bypass the conflicting law. Further, the
Court observed that the effect of bypassing was not created by the Rules made by
the Government but by sec. 6 made by the Legislature. Therefore, even if the effect
of sec. 6 be viewed as amendment of the statutes, it was attributable to the
legislature and not to the executive.

In Edward Mills vs. State of Ajmer, the legislature made a law for minimum wages
and prepred a schedule setting up minimum wages for certain industries. Power
was delegated to vary this schedule by adding other industries to this list. It was
held to be valid.

But in Hamdard Dawakhana vs. Union of India, where the Drugs and Magical
Remedies (Objectionable Advertisements) Act, 1954 provided for the ban on certain
advertisements which claimed to provide cure or remedy for incurable diseases,
and sec. 3 of the Act empowered the Government to modify the list by adding to or
deleting from that list names of any diseases, the provision was held to be
unconstitutional as it did not provide for sufficient guidelines for the same.

In Jalan Trading Co. vs. Mill Mazdoor Sabha, sec. 37(1) of the Payment of Bonus
Act, 1965 empowered the Central Government to make provisions, not
inconsistent with the provisions of the Act, for removal of difficulties or doubts in
giving effect to the Act. Sec. 37(1) of the Act makes the provision made by the
government final. This was held invalid by the Supreme Court on the ground of
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

2. Delegated Legislation 31

excessive delegation. In contrast, sec. 45(10) of the Banking Regulation Act, 1949
provides that “If any difficulty arises in giveing effect to the provisions of the
scheme, the Central Government may by order do anything, not inconsistent with
the provisions, which appears to it necessary or expedient for the purpose of
removing the difficulty”. This provision was held constitutional. This provision is
essentially different from sec. 37 of the Payment of Bonus Act, 1965 held invalid
by the Court. Government is not the final judge, but whether these conditions are
present or not is open to judicial review.

In H.R. Banthia vs. Union of India, sec. 5(2)(b) of the Gold Control Act, 1968 which
empowered the Government to make Rules to regulate the manufacture,
distribution, use, disposal, consumption, etc. of gold was held to be
unconstitutional as it did not provide for sufficient safeguards.

TYPES OF DELEGATED LEGISLATION

Though strictly speaking there are no different types of delegated legislation, there
are different methods adopted by the legislature to delegate legislative powers to
the executive. Broadly, they fall under the following categories:

1. Skeleton Legislation
2. Power of Inclusion and Exclusion
3. Power of Modification of Statute
4. Power to Impose Tax

1. Skeleton Legislation: In skeleton legislation the legislature prepares the broad

law and leaves the details to be filled in by the executive. Thus, it satisfies the
conditions of delegated legislation that essential legislative powers to be exercised
by the legislature and non-essentials only are to be left to the delegatee.

In Hari Shankar Bagla vs. Madhya Pradesh sec. 3 and sec. 6 of the Essential
Supplies (Temporary Powers) Act, 1946 were challenged. Sec. 3 empowered the
Central Government to make Rules for the purpose of “maintaining or increasing
supplies of any essential commodity, or for securing thir equitable distribution and
availability at fair prices”, and sec. 6 provided that “any Rule so made shall have
effect notwithstanding anything inconsistent therewith in any Act other than this
Act”. The Court held both sections valid because the policy of the Act was
sufficiently formulated in sec. 3 and clear and sufficient guidance for exercising
the power was given under that section. Sec. 6 was not viewed by the Court as
delegation of amending powers but to bypass the conflicting law. Further, the
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

32 Administrative Law

Court observed that the effect of bypassing was not created by the Rules made by
the Government but by sec. 6 made by the Legislature. Therefore, even if the effect
of sec. 6 be viewed as amendment of the statutes, it was attributable to the
legislature and not to the executive.

2. Power of Inclusion and Exclusion: Here the legislature makes the law and in
the Schedule to the statute names the persons, things or places to which it is
applicable. Then it empowers the executive to include any other names to the list
or to remove some names from the list. If a name is added by the government to
the list, the law will be made applicable to that person, thing or place. Similarly, if
a name is removed from the list, the law will cease to be applicable to that person,
thing or place. Therefore, normally this is viewed as a form of conditional
legislation rather than delegated legislation and is held to be valid. The parent Act
not only lays down the policy of the law but also makes the law itself. It also
makes that law applicable to certain persons, things or places and then allows the
executive only to extend this law to more persons, things or places or to make it
not applicable to some. Sufficient guidelines are available in the Act for that
purpose, and the names included by the legislature are themselves sufficient
guidelines to show what types of persons, things or places are contemplated by the
legislature. Therefore, generally such a delegation is held to be valid.

In Edward Mills vs. State of Ajmer, the legislature made a law for minimum wages
and prepred a schedule setting up minimum wages for certain industries. Power
was delegated to vary this schedule by adding other industries to this list. It was
held to be valid.

But in Hamdard Dawakhana vs. Union of India, where the Drugs and Magical
Remedies (Objectionable Advertisements) Act, 1954 provided for the ban on certain
advertisements which claimed to provide cure or remedy for incurable diseases,
and sec. 3 of the Act empowered the Government to modify the list by adding to or
deleting from that list names of any diseases, the provision was held to be
unconstitutional as it did not provide for sufficient guidelines for the same.

3. Power of Modification of Statute: There are various ways in which power to

modify statutes are delegated to the executive. They are:

(a) Harishankar Bagla type of Cases: Here the parent statute lays down
that the Rules made under the statute are valid even when they are in
conflict with the provisions of any other Statute.

(b) Power of Inclusion and Exclusion: This does not modify the provision of
a statute but modifies the operation of the statute.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

2. Delegated Legislation 33

(c) Delhi Laws Act type of Cases: Here power is conferred upon the executive
to extend an enactment already in force in one area to other areas with
such restrictions and modifications as the executive thinks fit. Here, prima
facie, the law may be modified by the executive in any manner and that
amounts to the delegation of power to amend the statute. Therefore, it is
argues that it is unconstitutional being excessive delegation. However, the
Courts have adopted harmonious interpretation and held them
constitutional. The Courts have held that the power of modification, though
the power conferred upon the executive is couched in very wide terms, that
should not be construed to confer blanket power to the executive to modify
the statute. The legislature has already made a law and laid down the
policy of law and provisions of law. The power of modification must be
within the policy so laid down by the statute and the executive is not
expected to make such modifications as would change the policy of law.

(d) Power of Incorporation by Reference: Here the executive is empowered

to apply provisions from one statute to another statute with necessary
modification. For example, sec. 12 of the central Excise and Salt Act, 1944
authorises the Central Government to apply provisions of Customs Act,
1962, with such modifications as the Government may think fit, to certain
matters under the Customs Act. Courts have reiterated the principle that
the power to “restrict and modify” does not import the power to make
“essential changes” and that it is confined to the alterations of an minor
character withot change in principle.

(e) Power to Include Removal of Difficulty Clause: This gives the executive
a lot of discretion to modify the statute in the guise o removal of difficulty.
Therefore, in England it is nicknamed as the Henry VIII Clause, because
Henry VIII was known for his autocracy. This kind of provision is normally
used in socio-economic legislations. In case of such statutes, unforeseen
difficulties may be encountered at the time of implementation of statute. To
remove these difficulties the executive is empowered to make necessary
provisions. In India this type of power is given in two ways: One, to make
minor modifications without changing the provisions of the Act, and the
second, to make any modification, even by changing the provisions of the
Act itself. The former is valid while the latter is unconstitutional. In Jalan
Trading Co. vs. Mill Mazdoor Sabha, sec. 37(1) of the Payment of Bonus Act,
1965 empowered the Central Government to make provisions, not
inconsistent with the provisions of the Act, for removal of difficulties or
doubts in giving effect to the Act. Sec. 37(1) of the Act makes the provision
made by the government final. This was held invalid by the Supreme Court
on the ground of excessive delegation. The government was made the sole
judge to say (1) whether there was any doubt or difficulty in giveng effect to
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

34 Administrative Law

the Act; (2) whether it was necessary to make any provision to remove it;
and (3) whether the Rule made by the Government was inconsistent with
the provisions of the Act.
But later under many other Acts a similar power is held to be valid. Sec. 45(10) of
the Banking Regulation Act, 1949, for example, reads, “If any difficulty arises in
giveing effect to the provisions of the scheme, the Central Government may by
order do anything, not inconsistent with the provisions, which appears to it
necessary or expedient for the purpose of removing the difficulty”. The reason for
holding this valid is evident. This provision is essentially different from sec. 37 of
the Payment of Bonus Act, 1965 held invalid by the Court. Under the sec. 45 of
the Banking Regulation Act, 1949, there are three requirements to be fulfilled
before the order can be validly made under it:

1. There must be a difficulty or doubt in giving effect to the Act;

2. It must be expedient to make a provision for removal of such doubt or

difficulty; and

3. that the order is not inconsistent with the provisions of the Act.

It is worth noting that the Government is not the final judge, but whether these
conditions are present or not is open to judicial review.

4. Power to Impose Tax: Power to impose tax is an essential legislative function.

It is not only a means for raising the revenue for the state, but also a means for
social control. It is a very important weapon in the armory of the legislature to
control the executive. Therefore, delegation of power to impose tax is invalid.
However, here also, the Courts have applied harmonic interpretation and held
some methods of delegation of power to impose tax constitutional.

(a) Delegation of power to exempt a commodity from the purview of tax: In

Oriental Weaving Mills vs. Union of India, delegation of such a power was held
constitutional. The Court held that whereas the legislature cannot delegate its
power to impose tax to the executive, because it is an essential legislative
function, it can delegate power to select persons on whom, or goods or
transactions to which, or places at which the tax may be imposed. Before
making the selections of such persons, things, transactions or places, several
matters need to be considered, such as impact of the levy on the society,
economic consequences, administrative convenience, etc. These factors change
from time to time and from place to place. Therefore, executive may be in a
better position than the legislature to take things factors into account. Hence
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

2. Delegated Legislation 35

there is nothing wrong in delegation of these things by the legislature to the

executive.

(b) Delegation of power to bring a commodity within the purview of tax: For
the same reason as mentioned above, this delegation is also held to be valid.

(c) Delegation of power to fix rates of tax: Law made by the legislature may
impose tax and leave it to the executive to fix the rates of the tax, subject to a
maximum rate prescribed by the legislature. This is because in many cases it
is necessary to vary the rates of tax from time to time. For example, under the
Coal Mines (Conservation and Safety) Act, 1952, the Central Government is
empowered to impose a duty of excise, subject to a maximum prescribed, on
all coal raised and despatched, and as a corollary thereof, the Government
may impose an equivalent import duty on the coal imported.

(d) Delegation to a representative body: In some cases the power to impose tax
at is delegated to a representative body such as a municipal corporation,
which is upheld by the Courts because the representative character of the
delegatee ensures that the power is not misused.

(e) Delegation to a statutory body: Taxing powers are often delegated to

statutory bodies which have quasi representative nature. If such power is
properly guided and controlled, courts have no hesitation in upholding the
same.

J. R. G. Manufacturing Association vs. UOI: Sec. 12(2) of the Rubber Act,

1947 empowers the Rubber Board to levy an excise duty from estate owners
who produce rubber and from manufacturers who use rubber. This power was
upheld by the Supreme Court on the ground that the Rubber Board consists
of several representatives of rubber interests, and also that the statute
furnishes guidelines to the Board in respect of levying and collecting the estate
duty. More significantly, the acts of the Board are under direct control of the
Central Government, and are subject to the Rules made by the Central
Government, which are to be laid before the Parliament.

B. K. Krshna Bhat vs. State Karnataka: Karnataka Legislature conferred

power upon Bangalore Development Authority power to levy and collect
property tax. This was upheld by the Supreme Court on the ground that an
elaborate mechanism was provided in the statute for the levy and collection of
the tax and was not left to the discretion of the BDA.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

36 Administrative Law

CONTROL OF DELEGATED LEGISLATION

1. JUDICIAL CONTROL

Judicial control of delegated legislation is done in the form of judicial review by

applying the doctrine of ultra vires. This is classified as under:

Doctrine of
ultra vires

Substantive Procedural
ultra vires ultra vires

Challenging the Challenging the

Parent Act Delegated Law

Parent Act Delegation Delegated Law Delegated Law

ultra vires ultra vires ultra vires ultravires the
Constitution Constitution Constitution Parent Act

Beyond the legislative Actual Ultra Vires

competence of the Excessive Delegation Violation of FRs In Excess of Delegation
legislature Conflict with Parent Act

Power to make Rules

Violation of FRs which can be
unconstitutional Constructive Ultra
Vires
Unreasonable
Mala fide
Encroachment on rights
Conflict with other Act

In India judicial review of delegated legislation is done mainly by invoking the

doctrine of ultra vires. If the delegated legislation is out of the scope of power of
the delegatee, it is called substantive ultra vires. If the delegated legislation is
within the scope of the power of the delegatee, but the delegatee has not followed
the mandatory procedure prescribed for the making of delegated legislation, then it
is procedural ultra vires.

(a) Substantive ultra vires: Doctrine of substantive ultra vires is applied in three
stages:

1. The parent Act is ultra vires the Constitution.

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

2. Delegated Legislation 37

2. The delegation is ultra vires the Constitution.

3. The delegated legislation is ultra vires the Constitution.
4. The delegated legislation is ultra vires the parent Act.

1. The parent Act is ultra vires the Constitution: If the parent Act is ultra vires
the Constitution it is invalid and the rule making powers given under it are also
invalid. Therefore the rules made under such invalid rule making powers are also
invalid. In some cases the entire Act may be ultra vires the Constitution, while in
many cases only a particular provision may be ultra vires the Constitution. Where
the Act is beyond the legislative powers of the legislature which has made it, for
example, if the Act is bad for extra territorial operation, or if the Act is on a subject
on which the concerned legislature cannot legislate, the Act is ultra vires the
Constitution. Whereas, if the Act is violative of any provision of the Constitution,
especially of the fundamental rights, only those provisions which are against the
Constitution will be ultra vires the constitution. If the rule making powers are for
giving effect to such ultra vires provisions, only then those rule making powers will
be invalid. If the rule making powers are for giving effect to other provisions or for
giving effect to the entire Act in general, then they are valid.

2. The delegation is ultra vires the Constitution: The parent Act may be
perfectly Constitutional, but the delegation may be excessive delegation, i.e., it
may delegate essential legislative powers to the delegatee. In such a case the
delegation of legislative powers will be ultra vires the Constitution.

3. The delegated legislation is ultra vires the Constitution: In some cases the
parent Act may be perfectly Constitutional but the rules made under it may be
ultra vires the Constitution. In such cases, though the parent Act and the
delegation of legislative powers under the Act are valid, the delegated legislation
will be unconstitutional.

Dwarka Prasad vs. State of U.P.: Rule 3(1) of the U.P. Coal Control Order issued
under sec. 3 of the Essential Supplies (Temporary Powers) Act, 1946 provided that
no one can carry on business in coal except under a licence, and Rule 3(2)(b)
empowered the State Coal Controller to exempt any person from the requirements
of licence. Rule 3(2)(b) was held ultra vires art. 19(1)(g) of the Constitution as it
places unreasonable restriction on freedom of trade and profession by giving
arbitrary powers to the Coal Commissioner in granting exemptions.

Himat Lal K. Shah vs. Commissioner of Police: Bombay Police Act, 1951
empowered the Commissioner of Police to frame rules for regulation of conduct
and behaviour of assemblies and processions by prescribing routes and time of
processions. The Police Commissioner made rules in which Rule 7 provided that
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

38 Administrative Law

no public meeting will be held without his prior permission. This rule was held
ultra vires on the ground that the rule was an unreasonable restriction on the
freedom of speech and expression inasmuch as it vested the administrative agency
with arbitrary discretion in granting or refusing permission.

4. The delegated legislation is ultra vires the parent Act: The Rules made by
the delegatee may be beyond the powers given to it by the parent Act. In such
cases the Rules are said to be ultra vires the parent Act. In some cases, though the
Rules do not literally exceed the powers given to the delegatee by the parent Act,
their effect may be such that the Courts can say the parent Act never intended to
delegate such powers to the delegatee. This is sometimes called extended ultra
vires. Following are the different cases where the Courts have held that the Rules
are ultra vires the parent Act.

(a) Rules are in excess of delegation Actual

(a) Rules conflict with parent Act ultra vires

(b) Rules are unreasonable, etc.

(c) Rules are mala fide Constructive
(d) Rules encroach upon common law rights of the citizens ultra vires

(e) Rules conflict with some other Act

(a) Rules are in excess of delegation:

Dwarka Nath vs. Municipal Corporation: Sec. 23(1) of the Prevention of Food
Adulteration Act, 1954 empowered the government to make rules for restricting
the packaging and labelling of any article of food with a view to preventing public
from being deceived or mislead as to quantity or quality of the article. Rule 32
framed under the Act provided that there shall be specified on every label name
and business address of the manufacturer, batch number and code number either
in Hindi or in English. Action was taken against Mohan Ghee Company for
violation of the Rule as on the tins of ghee only “Mohan Ghee Laboratories,
Delhi-5” was written. The Rule was held to be ultra vires as the power conferred by
the enabling Act was restricted to quantity and quality only.

Ibrahim vs. RTA: The rules framed by the administrative authority fixing sites for
bus stops was held to be ultra vires where the enabling Act authorised the agency
to make Rules for the control of transport vehicles.

V. Sudheer vs. BCI:

(b) Rules conflict with parent Act:

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

2. Delegated Legislation 39

Ram Prasad vs. State: Sec. 49 of the U.P. Panchayat Raj Act, 1947 provided that
every case triable by the Panchayat Adalat must be tried by a Bench constituted in
a manner laid down in the Act. Rule 87 framed under the Act provided that
threemembers of a Bench would form the forum. This was less than that provided
under the Act. Hence, was held ultra vires.

D. T. U. vs. B. P. B. Hajelay: Sec. 92(1) of the Delhi Corporation Act, 1957

provided that all employees drawing salary of less than Rs. 350 per month shall be
appointed by the General Manager of the Delhi Transport Undertaking. Sec. 95
provided that no employee shall be dismissed by any authority subordinate to the
appointing authority. The Rule empowering dismissal of any employee drawing
salary of less than Rs. 350 per month was held to be ultra vires the parent Act.

State of Karnataka vs. H. Ganesh Kamath: Rule 5(2) of the Karnataka Motor
Vehicles Rules, 1963 provided that even though a person has passed the test for
driving heavy motor vehicle he cannot obtain licence unless he has a medium
motor vehicle licence and experience of two years in driving a medium motor
vehicle. This rule was held to be ultra vires as being in direct conflict with sec.
7(vii)(a) of the Motor Vehicles Act, 1939 which provided that a person who passes a
test in driving a heavy motor vehicle is deemed also to have passed the test in
driving a medium motor vehicle.

(c) Rules are unreasonable, etc.:

In Mulchand vs.Mukund, Bombay High Court held that rules cannot be challenged
on the ground that they are unreasonable because they are extension of the
statute under which they are made.

Supreme Court also held that jurisdiction under art. 226 does not extend to test
the reasonableness of rules. In Trustees of Port of Madras vs. Aminchand, the
Supreme Court held that scales of rates fixed by the Board cannot be declared
ultra vires on the ground of unreasonableness.

However, where the rules are so unreasonable that conscience of no reasonable

person can accept them, they may be struck down. Normally courts apply art. 14
of the Constitution to such cases to have a more firm ground for quashing them.

Air India vs. Nargesh Mirza: A service regulation framed by the Air India which
had provided for termination of services of an air hostess on her first pregnancy
was struck down by the Supreme Court as “most unreasonable and arbitrary and
interfering with the ordinary course of human nature, and hence violative of
art. 14 of the Constitution.”
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

40 Administrative Law

State of Maharashtra vs. Chandrabhan Tale: Rule 151(1)(ii)(b) of the Bombay

Civil Service Rules provided that a convicted government employee, even if he is in
the appeal process, will be paid Re. 1 subsistence allowance. The Supreme Court
struck down the Rule holding the subsistence allowance illusory.

In England, Lord Russell laid down the test of unreasonableness of delegated

legislation in Kruze vs. Johnson, to be on the following grounds:

1. Partial or unequal operation between classes

2. Manifestly unjust

3. Bad faith

4. Oppressiveness

5. Gross interference with the rights of the people that no justification can be
found in the mind of a reasonable man.

(d) Rules are mala fide: The rule-making power given to the government is to be
used in good faith for the benefit of the public and the nation. If it is used
otherwise, it may be struck down.

Rule 150-A of the rules framed under the Drugs and Cosmetics Act, 1940 required
the manufacturers of Eau-de-Cologne to add 1% diethylpthalate, a poisonous
substance, to it. Bombay High Court struck down the rule observing that
government cannot enforece its prohibition policy in the guise of prescribing
standards.

(e) Rules encroach upon common law rights of the citizens: Many common
law rights are codified by the Indian legislatures with or without modifications.
Such rights are available to the people in the form in which they are codified.
Some other rights are removed or nullified by the Indian legislatures. Such rights
are not available to the people. Those common law rights which are not codified by
the Indian legislatures are available to the people in their original form. Thus most
of the rights in Law Torts are common law rights.

Sophy Kelly vs. State of Maharashtra: Schools conduct a preliminary

examination before the SSC Board examination. Only those students who get
through the preliminary examination are allowed to appear for the Board
examination. A rule which required that all students irrespective of their
performance in the preliminary examination must be allowed to appear for Board
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

2. Delegated Legislation 41

examination was held to be ultra vires as it encroaches upon the common law
rights of the schools.

(f) Rules conflict with some other Act: Statutes being superior legislation
always prevail upon the Rules which are subordinate legislation, in case of any
inconsistency between the two. Therefore, in Re Delhi Laws Act, it was held that
the words ‘any modification or restriction’ should be given a restricted meaning.
The modification can only be a minor modification which does not alter the
provisions of law. The same rule is applicable in respect of conflict between a Rule
and a provision of any statute.

However, if the legislature expressly permits such prevailing of a Rule over a

statutory provision, a Rule may override a statutory provision. Thus, in H. S.
Bagla vs. State of M. P., Supreme Court upheld sec. 6 of the Essential Supplies
(Temporary Powers) Act, 1946 which provided that Rules made under sec. 3 of the
Act shall have validity notwithstanding the fact that they are in conflict with the
provisions of any provision of any statute other than the parent statute, was
upheld.

Vague Rules

Rules may also be challenged on the ground that they are vague. Vagueness may
lead to discrimination.

Vice Chancellor, M. D. University, Rohtak: Failure to mention the date of

commencement of Rules was held to be ground for quashing them.

Attempts to Exclude Judicial Review

The legislatures as well as executive have often tried to exclude the jurisdiction of
the Courts so as to avoid judicial review, by using various clauses in the Rules and
the parent statutes. Courts have also used their ingenuity to foil such attempts
either in entirety or in part.

Exclusion by delegated legislation itself: Executive has no power to bar or

abridge the jurisdiction of the Courts. Therefore, Rules cannot take away
jurisdiction of Courts.

Exclusion by parent Act: Legislatures can bar or abridge the jurisdiction of the
Courts. But this is subject to two limitations:
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

42 Administrative Law

1. A statute cannot bar or abridge the jurisdiction of a Court where such

jurisdiction is under the Constitution. Thus, writ jurisdiction of the higher
judiciary cannot be barred by a statutory provision. It may be affected only
by an amendment to the Constitution.

2. Where a statute bars the jurisdiction of a Court, it must create an

alternative forum to decide cases in respect of which the jurisdiction of
Courts is barred.

Chestor vs. Bateson: The parent statute empowered the government to make rules
for public safety and successful prosecution of war. The delegated legislation made
in pursuance of this power provided that no premises can be recovered from the
possession of any workman employed in the manufacture of war material and
imposed a penalty for taking legal proceedings in this behalf. The Court held the
provision bad for preventing people from having recourse to Courts of law. Other
common efforts to avoid judicial review of delegated legislation can be classified as
under.

Attempts to
Exclude Judicial
Review

Derivative “conclusive
“Ganga” clause
immunity evidence” clause

“as if enacted” Protection under

clause art. 31-B

I. Derivative Immunity: This is so called because the delegated legislation

inherits the immunity from the parent statute. In other words, the immunity
enjoyed by the parent statute is also enjoyed by the delegated legislation. Two
such attempts are described below.

1. “As if enacted” clause: In England the Parliament is supreme and its acts
cannot be called in question before any Court of law. Therefore, if the delegated
legislation is to be treated “as if enacted by the Parliament”, then the natural
consequence is that the delegated legislation also cannot be subject to judicial
review.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

2. Delegated Legislation 43

Institute of Patent Agents vs. Lockwood: In this case Lord Herschell held that if
the delegated legislation is to be treated “as if contained” in the parent statute,
hence “as if enacted by the Parliament”, it should be treated so for all purposes,
including the judicial review. Therefore, it cannot be brought under the scrutiny of
the Courts. This ruling is called the “Herschell Doctrine” or the “Lockwood
Doctrine”.

This decision was widely criticised by the jurists as well as judges as it gave
blanket powers to the executive to make any rules of its choice without the worry
of judicial review. This decision was overruled in Minister of Health vs. R ex. p.
Yaffe.

Minister of Health vs. R ex. p. Yaffe: Normally a rule-making clause provides

that “the government may make Rules for giving effect to the provisions of this
statute”. The “as if enacted” clause provides that “the Rules so made shall be
treated as if enacted by the legislature”. “Rules so made” means Rules which are
intra vires the parent statute. Ultra vires Rules are not “Rules so made” i.e., Rules
made under the statute. Therefore, Court held that before allowing the immunity
to the Rules, the Court has to ensure that the Rules are intra vires the parent
statute. Therefore, to that extent, the judicial review cannot be excluded.

In India laws made by the Parliament itself are amenable to the judicial review by
the higher judiciary. Therefore, “as if enacted” clause cannot exclude the judicial
review of the delegated legislation. Initially in some cases such as R. Subba Rao vs.
CIT, Orient Weaving Mills vs. UoI, Supreme Court applied Herschell Doctrine and
held that the Rules cannot be reviewed by the Courts. But quickly it overruled
these decisions and in State of Kerala vs. Abdulla & Co. held that such a clause
does not attach any additional sanctity to the Rules.

In Chief Inspector of Mines vs. K. C. Thapar Court reiterated its decision and held
that by use of expression “as if enacted” the subordinate legislation does not lose
its character of being subordinate to the parent statute and the formula does not
bestow any additional sanctity to subordinate legislation.

2. Protection of parent Act under art. 31-B: Art 31-B seeks to protect the Acts
and Regulations specified in the IX Schedule, and their provisions, from being held
to be void on the ground that they violate or abridge fundamental rights.

It has been consistently held that placing the parent statute in the IX Schedule
does not extend the protection to the delegated legislation made under it. This is
also clear from the words of art 31-B ‘Acts and Regulations’, where Regulations
means delegated legislation. Unless the delegated legislation itself is placed in IX
Schedule, it cannot claim immunity.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

44 Administrative Law

In Prag Rice & Oil Mills vs. UoI, it was held that art. 31-B saves only the parent
statute and not the administrative rule-making under it.

The same position was reiterated in many subsequent decisions such as Vasanlal
Maganbhai vs. State of Bombay, Latafat Ali Khan vs. State of U. P.

In I. R. Coelho vs. State of Tamil Nadu and Others, now it has been held that
even a statute which is placed in the IX Schedule can be challenged.

II. “Conclusive evidence” clause: Often parent statutes provide that the Rules
made under them shall be published in the Official Gazette and such publication
is the conclusive evidence that the Rules are validly made in accordance with the
provisions of the parent statute.

In Trust Mai Lachhmi Sialkoti Bradari vs. AIT it was held that such a clause cannot
protect the Rules from substantive ultra vires.

In Vallbhdas vs.M. C. Akola, it was held that even in case of procedural ultra vires,
the conclusive evidence clause can help the rule making authority only if the steps
not taken are of a minor or directory nature.

III. “Ganga” clause: This is a type of ‘conclusive evidence’ clause which

exonerates the rules from the infirmity in making it. Therefore, Supreme Court
called this a ‘Ganga’ clause because as a dip in river Ganga frees a person of all
his sins, the formality prescribed under this clause frees the Rules of all the
defects in making them.

B. K. Srinivasan vs. State of Karnataka: The clause in question provided that any
act done or appointment made under the Rules shall not be called in question
before any Court of law merely on the ground of some procedural irregularity not
leading to any injustice to any party. The clause did not prohibit parties from
questioning the validity of the Rules on the ground of substantive ultr vires, nor on
the ground of procedural ultra vires of a serious nature, inasmuch as the clause
referred to procedural irregularity and not illegality. Further, it did not prohibit
parties from challenging the Rules even in case of minor deviations if the same
lead to injustice. Hence the clause was upheld by the Court.

2. LEGISLATIVE CONTROL

Legislature is the principle in respect of the delegation of the legislative powers and
the delegatee is the agent. Therefore the legislature has always the power to
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

2. Delegated Legislation 45

control the legislative powers of the delegatee. In India the legislative control of
delegated legislation is done mainly in two ways:

1. Direct control
2. Indirect control

Legislative Control

Direct Control Indirect Control

General Special
Control Control

Direct Control: It is so called because it is exercised by the legislature directly

while the indirect control is exercised by the legislature through its committees.

Direct control is further classified into two types of controls

1. General control
2. Special control
Direct general control is exercised by the legislature in the following ways

(a) Through debate on Act containing the delegation of rule making powers.
Members may discuss about the necessity the extent and type of delegation
and the authority to whom the power is to be delegated.

(b) Through questions and notices. Any member of the legislature may ask
questions on any aspect of delegation of legislative powers. If he is not satisfied
by the answer given by the concerned minister, he can give notice for
discussion under Rule 59 of the Procedure and Conduct of Business in Lok
Sabha.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

46 Administrative Law

(c) Through resolution and notices in the house. Any member may move a
resolution on motion if the matter regarding delegation is urgent and
immediate and the reply of the government is unsatisfactory.

(d) Through vote on grant. Whenever the budgetary demands of a ministry are
present any member may propose a cut and this proposal gives rise to a
discussion on the exercise of rule making power by that ministry.

(e) Through a private member's bill seeking modifications in the parent Act or
through debate at the time of discussion on the address by the President to the
joint session of the Parliament, the members may discuss the delegation of
legislative powers.

These methods are called direct general control because they can be used for any
other purpose also. They are not restricted to control of delegated legislation only.

Direct special control is used for controlling only delegated legislation it is not
useful to control any other matter. Therefore it is called special control.

This control is exercised in the form of the requirement that the rules shall be laid
before the Parliament. This is done in various ways.

(a) Laying with no further direction: Here the rules come into effect as soon as
they are laid before the Parliament. No further action on the part of the
Parliament is necessary. This requirement is made only to inform the
Parliament about the exercise of the rule making power given to it by the
Parliament.

(b) Laying subject to negative resolution: Here the rules come into effect as
soon as they are laid before the Parliament but will cease to have effect if a
negative resolution is passed by the legislature.

(c) Laying subject to affirmative resolution: This requirement may have two
different forms:

(i) That the rules shall have no effect or force unless approved by a
resolution of each House of Parliament;

(ii) That the rules shall cease to have effect unless approved by an
affirmative resolution.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

2. Delegated Legislation 47

(d) Laying in draft form subject to negative resolution: Here the Rules are
required to be placed before the legislature in draft form. They will come into
force after 40 days if no negative resolution is passed before that date.

(e) Laying in draft form subject to affirmative resolution: Here the Rules are
laid before the legislature in draft form and they will come into effect only after
they are approved by the House.

Indirect Control: This control is exercised by the Parliament through its

Committees. In 1950 the Law Minister made a recommendation for the
establishment of a Committee on Subordinate Legislation. This was accepted and
in December 1953, a Committee on Subordinate Legislation was appointed. This
Committee consisted of 15 members nominated by the Speaker for a term of one
year. One of them was appointed as chair man by the Speaker. If the Deputy
Speaker is a member of the Committee, he will be the chairman. According to
Rule 223 of the Procedure and Conduct of Business in Lok Sabha, the functions of
the Committee include the examination of the following aspects:

1. Whether the Rules are in accordance with the general object of the Act.
2. Whether the Rules contain any matter which should have been
incorporated in the Act and not in the Rules.
3. Whether it contains imposition of Tax.
4. Whether it directly or indirectly bars the jurisdiction of the Court.
5. Whether it is retrospective.
6. Whether it involves expenditure from the Consolidated Fund.
7. Whether there has been unjustified delay in publication of the Rules.
8. Whether the Rules require any further elucidation.
In 1964 a similar Committee was established in Rajya Sabha and this Committee
discharges similar functions as its counter part in the Lok Sabha. These
Committees have scrutinised most of the Rules and have helped in avoiding
unnecessary litigation.

3. PROCEDURAL CONTROL

1. Drafting: Legislative drafting is a specialised work. It requires skill which can

be attained by special training. Hence, to ensure proper drafting of rules, some
statutes require that the Rules should be drafted by specialised draftsman.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

48 Administrative Law

2. Pre-publication (Ante natal publication): Prepublication Rules or publication

of Rules in draft form is required by several statutes to ensure that proper Rules
are drafted. The rationale behind such requirement is that the proposed Rules are
made known to the affected interest and their objections and suggestions are
received by the Rule-making authority. Once these objections and suggestions are
received, the Rule-making authority has to consider them while making the Rules.
Here, the objections and suggestions may or may not be received by the Rule-
making authority directly. It may appoint a subordinate authority to collect these
objections and suggestions and forward them to the Rule-making authority. What
is necessary is that the Rule-making authority has to apply its mind to the
objections and suggestions.

The procedure to obtain the objections and suggestions is normally prescribed by

the parent Act. If the parent Act is silent, procedure given under Sec. 23, General
Clauses Act, 1897 which has to be followed.

1.Rules be published in draft form in Official Gazette.

2.Objections and suggestions be invited by a specified date mentioned.

3.Objections and suggestions received be considered by the rule-making

authority.

The draft Rules must be published in a proper manner. Publication in Official

gazette is accepted as sufficient publication. Further, sufficient time has to be
given to submit objections and suggestions. The notification should clearly
mention the designation and address of the officer who will receive the objections
and suggestions.

3. Consultation with affected interest: Many statues, especially those concerned

with environment, require that the Rule-making authority has to consult the
affected interest and receive their objections and suggestions. This procedure has
the advantage over the pre-publication in that in this procedure there is a two-way
communication.

Some statutes require that before drafting Rules some specialist body, such as Tea
Board, which has the expertise in the field and represents the affected interest or a
regulatory authority, such as SEBI or Bar Council, should be consulted. Whether
non-compliance with such requirement renders the Rules invalid depends upon
whether the requirement is mandatory, which in turn depends upon provision for
adverse consequences in case of non-compliance. I. P. Massey lists five such
requirements:
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

2. Delegated Legislation 49

1. Official consultation with a named body

2. Consultation with administrative boards

3. Consultation with statutory board in charge of the subject matter

4. Consultation with the interested persons

5. Preparation of the Rules by the affected interest.

4. Post publication (Post natal publication): It is well known that ignorance of

law is not excused. This principle is applicable to Rules as they are law. But for
this principle to be applicable the law has to be brought to the notice of the public
through proper publication.

Re Panama Case was the eye opener. The relevant NRA Regulations provided for
punishment for offences under the Regulations. It was found that many people
were punished for the offences many years after the repeal of the Regulations
because the repeal was not properly published. This made the US SC to advise the
Congress to maintain a Federal Register and enter the laws made and repealed in
that Register. The laws will come into effect only when they are entered in the
Register.

Similarly in England a statute or Rules come into force only when they are printed
and published by the Queen’s (or Kings) Printer.

Though in India there is no such requirement in Constitution or any statute,

Courts have made it clear that for the operation of a law its publication is sine qua
non.

In Harla vs. State of Rajasthan, Jaipur Opium Act was enacted, but was never
published. Harla was prosecuted for violation of the Act. It was held that a rule
needs publication of some reasonable sort for being brought into being.

What is required is that the affected persons must know about the creation,
commencement, amendment and repeal of laws. Only then they will be able to
abide by them. Form of publication is not very important as long as this
requirement is satisfied. Often the parent Act prescribes the mode of publication of
the Rules. If the parent Act is silent, even then publication is mandatory, and
publication of the Rules is Official Gazette is taken as sufficient publication.

The question that arises normally is whether requirement as to the mode of

publication in the Parent Act is mandatory. In Govindalal vs. A. P. M. C., the
statute prescribed that the Rules have to be published in Official Gazette as well
as in two local newspapers. The question was whether the publication in Official
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

50 Administrative Law

Gazette was sufficient, or the publication in the newspapers was mandatory. It

was held that the answer to this question depends upon several factors:

1. Language of the statute – if the statute uses the term shall, it is presumed,
but not conclusive, that the mode is mandatory.

2. Affected interest – if the affected interest is semi-literate persons like

agriculturists, labourers, publication in newspapers may be mandatory, as
publication in Official Gazette will not properly reach them.

3. Consequences of breach – if the consequences of breach are severe, such as

criminal liability in the person contravening the Rules, publication in
newspapers is mandatory.

In the instant case, the Rules of Agricultural Produce Marketing Corporation were
applicable mainly to agriculturists and the consequences of breach entailed
criminal liability, Court held that publication in Official Gazette is not sufficient.

In contrast, in Raza Buland Sugar Co. Ltd. vs. Municipal Board Rampur,
while the parent Act required that the Rules must be published in Hindi language
in Hindi newspapers, and the Rules were published in Hindi language in Urdu
newspapers, it was contended by the government that Urdu newspaper was
chosen because it had better circulation. Court upheld this contention as the
publication met the object.

Similarly, in Bangalore WC Mills vs. Bangalore Corporation, where the

amendment to the Rules was individually intimated to the affected persons, the
Court upheld the publication though it was not in conformity with the mode
prescribed by the parent Act.

G. Narayana Reddy vs. State of A. P. is a peculiar case. A government

notification increasing the rate of sales tax was published in the Official Gazette
dated 1st December, 1966. The petitioner was prosecuted for contravention
committed by him on 10th December, 1966, apparently after the publication. His
contention was that he and other subscribers received the copy of the Gazette on
25th December. Hence the date of commencement of the Rules must be 25 th
December. Court did not accept this contention. But it was observed by the Court
that though the date printed on the Gazette was 1 st December, the Gazette was
actually printed and published on 12th December. Hence, Court held that the date
of commencement of the Rules was 12th December and not earlier.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

2. Delegated Legislation 51

However, Courts need not strike down Rules which are not published. In Kishori
Lal vs. State of UP where Excise Rules were treated as directions as they were
not published as required by the parent Act.

EFFECT OF RULES BEING ULTRA VIRES

Ultra vires Rules are invalid and hence void. They are considered as to have never
existed at all. The same cannot operate as estoppel nor can it be validated by
ratification.

Bar Council of India vs. Surjeet Singh: Advocates Act empowers the Bar
Council of India to make rules for prescribing qualifications and conditions
entitling advocates to vote at elections to the Bar Council. Rules made by State
Bar Council in this respect were held to be void and could not be revived by the
ratification of the same by the Bar Council of India.

However, where the authority has no powers to make Rules, but has powers to
issue directions in the same matter, the Courts may examine whether the
provisions which are invalid as rules may be held to be valid as directions.
However, such a finding may not be given where it puts public to unnecessary
hardships.

OTHER ASPECTS OF DELEGATED LEGISLATION

RETROSPECTIVE OPERATION OF DELEGATED LEGISLATION

Legislatures are competent to make laws with retrospective effect, except in case of
criminal laws. Art. 20 of the Constitution prohibits retrospective criminal laws.

Art. 20 is also applicable to delegated legislation also. Therefore, if a Rule makes a

provision of penal nature, it cannot be retrospective in operation.

Unlike legislature, executive cannot make retrospective laws by default. This has
been consistently held by the Courts in many cases. ITC Bhadrachalam Paper
Boards vs. Mandal Revenue Officer is one of such cases in which this rule was
reiterated by the Supreme Court. But where the parent statute permits making of
retrospective Rules, Courts have upheld retrospective Rules.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

52 Administrative Law

But, in B. S. Yadav vs. State of Haryana, it was held that just because the
parent statute permits making of retrospective Rules, Rules may not be made with
retrospective effect. There must be some reason for making the Rules with
retrospective effect.

In A. V. Nachane vs. UOI, it was held that by making rules with retrospective
effect, judgement of High Court in a Writ Petition cannot be undone.

Retrospective Rules under art. 309 of the Constitution

Art. 309 of the Constitution provides that the service of Government servants shall
be governed by the laws made by the legislature. In the absence of the laws made
by the legislature, Government may make Service Rules to govern the conditions of
service of the Government servants. In B. S. Vadera vs. UoI, it was held that such
Rules being substitute for the laws made by legislature, can be retrospective in
operation.

In B. S. Yadav vs. State of Haryana it was held that the Rules cannot be made
with retrospective effect so as to violate arts. 14, 16 or 31.

In T. R. Kapoor vs. State of Haryana Supreme Court observed, “But the date from
which the are made to operate must be shown to bear, either from the face of it or
by extrinsic evidence, reasonable nexus with the provisions contained in the
Rules, especially when the retrospective effect extends over a long period of
time ...”

EXCLUSION OF COURTS’ JURISDICTION

FINANCIAL LEVY

Ahmedabad Urban Development Authority vs, Sharad Kumar:

EXPLANATORY NOTES

Often while making the Rules, the Rule-making authority does not realise certain
practical difficulties in implementation of the Rules. When such difficulties are
realised, the Rules are amended. But in some cases, instead of amending the
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

2. Delegated Legislation 53

Rules, the authorities may append explanatory notes to the Rules. Depending
upon the circumstances such notes are held to be legislative or executive in nature

In Tara Singh vs. State of Rajasthan, the notes were held to have a legal effect
similar to those of the Rules themselves. The purpose of the explanation was to
provide procedure, control discretion and fill up gaps where the Rules were silent.

In contrast, in K. Challaiah vs.Industrial Finance Corporation of India,

Regulation 33 of the Industrial Finance Corporation of India (a Rule) was held to
be an independent and self contained provision, and it was held that procedural
formality prescribed in Explanation III appended to the Rules cannot whittle down
the scope of Regulation33.

The same position was reiterated in UOI vs. Charanjit Gill where too the notes
were held to be administrative in nature.

A close examination of the following two cases can give the reason for the different
judgements in the above cases.

In Naga People’s Movement of Human Rights vs. UoI, it was held that executive
instructions issued to fill up gaps in statutory provisions have binding force.

In Parameshwar Prasad, it was held that such directions can be issued only by
the authority having power to make Rules.

Therefore, it may be concluded that to acquire the nature of Rules, the notes must
satisfy the requirements of a valid Rule. Naga People’s Movement of Human Rights
suggests that the notes should not be in conflict with the statute or Rules.
Parameshwar Prasad suggests that the notes may be made only by the authority
having Rule-making powers. In other words, when the notes are treated as Rules,
there should not suffer from substantive ultra vires. On the same lines we may
also conclude that if any procedure is provided for making the Rules, the same
should be followed in making the notes, otherwise when treated as Rules they will
suffer from procedural ultra vires.

DELAY IN MAKING RULES

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

54 Administrative Law

SUB-DELEGATION OF LEGISLATIVE FUNCTIONS

Sometimes the delegatee further delegates the power to make rules. Such
delegation is held to be ultra vires unless specifically provided for under the
statute.

Ganapati Singhji vs. State of Ajmer: Sec. 40 of the Ajmer Laws Regulation,
1877 empowers the Chief Commissioner to make rules regarding “the
maintenance of watch and ward, and establishment of proper system of
conservancy and sanitation at fairs and large public assemblies”. Rule 1
prohibited holding of fairs except under a permit issued by the District Magistrate
who had to “satisfy himself before issuing a permit that the applicant was in a
position to establish a proper system of conservancy, sanitation, and watch and
ward at the fair.” Rule 1 further provided that the District Magistrate could “revoke
any permit without assigning any reason and without giving prior notice”. The
delegation of powers by the Chief Commissioner to the District Magistrate was
held to be ultra vires.

Hari Shankar Bagla vs. State of Madhya Pradesh: Sec. 3 of the Essential
Supplies (Temporary Powers) Act, 1946 empowered the Central Government to
make Rules and sec. 4 empowered the Central Government to delegate this power
to any authority. This was upheld as the statute itself can empower the delegatee
to sub-delegate.

Sub-delegation is ultra vires under the maxim delegatus non potest delegare, but
one of the exceptions to the rule is consent of the principal.

WAIVER OF RULES

Where no power is expressly provided in the statute to relax or ignore a Rule,

waiver or relaxation of Rules by an administrative authority will be void, as the
same may lead to arbitrariness, which in turn may lead to discrimination.

CONTINUANCE OF RULES AFTER REPEAL OF PARENT STATUTE

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

CHAPTER III

3. QUASI LEGISLATION
• Quasi Legislation
• Quasi Legislation and Delegated Legislation
• Identification of Quasi Legislation
• Enforceability of Quasi Legislation
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

INTRODUCTION

Functions of executive are innumerable. They are to be discharged by the

Government through its various departments. Each department consists of many
officers. Officers belonging to the same cadre may be working at different places.
All these officers must work in a uniform manner. In this regard the Government
issues orders to the officers. Similarly, in every department, higher authorities
issue orders to their subordinates. Such orders may be special or general in
nature. Special orders are applicable to only one or few officers, while general
orders are applicable to all the officers of a particular class. Therefore, a general
order or direction looks like a law. But as it is not actually a law, it is called quasi
law.

DELEGATED LEGISLATION AND QUASI LEGISLATION

Directions often look like Rules because of their general nature. But there are
several significant differences between directions and Rules.

1. Rules may be made only where the legislature delegates its powers to the
executive through a statute. Directions may be issued by the executive
authorities in exercise of their administrative powers, especially under art. 73
in case of the Union Government and art. 162 in case of the State
Government.

2. Rules are made by the executive as an agent of the legislature. Directions are
issued by the executive in its own capacity as executive.

3. Rules may be deemed to be the act of legislature (act of an agent is act of

principal). Therefore, they are laws. Directions are not laws. They are quasi
law.

4. As Rules are law, they are binding on the Government as well as the
individuals. But directions are not so binding.

5. Rules can be enforced in a Court while directions cannot be.

Because of these significant differences, it has become mandatory, though very

difficult, to identify and differentiate directions from Rules. The following factors
are considered for distinguishing directions from rules.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

3. Quasi Legislation 57

1. Nomenclature: Prima facie, name of a document is the convenient way of

identifying its nature. Delegated legislation in majority of cases is called Rules.
e.g., Registration Rules, Motor vehicle Rules, etc. But directions are issued under
a wide variety of names. Sometimes they are called Orders, sometimes they are
called Notification, sometimes they are called Circular, sometimes they are called
Regulations, etc. Even terms like Notice, Scheme, Rules, Code, Statute, etc. are
used. This makes it difficult and also unreliable to identify a document from its
name. In Uttar Pradesh vs. Kishori Lal, the Excise Rules were held to be directions.
Similarly, in A. Prabhakar Reddy vs. State of Karnataka, the Karnataka Medical
Colleges (Selection for Admission) Rules were held to be directions. Grant-in-Aid
Code is not a statute, but is a quasi legislation.

Sometimes, as we have observed supra, Courts try to avoid quashing of ultra vires
Rules if they can be sustained as directions. There are two situations where this
can happen:

1. Where the rule-making authority has exceeded its rule-making power.

2. Where the rule-making authority has made the rules without following the
procedural requirements laid down in the parent statute.

This has a peculiar effect of resulting in designating a part of an instrument as

Rules while another part of the same instrument as directions, and also in
designating two identical documents differently – one as Rule and the other as
directions.

Thus, Chapter XXIII of the U. P. Police Regulation which deals with ‘Disciplinary
Proceedings in Police Force’ was held to be delegated legislation in U. P. vs. Babu
Ram, while Chapter XI of the same Regulation dealing with the ‘Mode of
Investigation by the Police into Criminal Charges’ was held to be quasi legislation
in Niranjan Singh vs. U.P.

Similarly Chapter XX of the U. P. Police regulation empowering the Police to

interfere with personal liberty of an individual was held to be quasi legislation in
Kharak Singh vs. U. P., while identical part of M. P. Police Regulation was held to
be delegated legislation in Govind vs. M. P.

In State of U. P. vs. Kishori Lal, Excise Rules which required publication were not
published. Hence, the Court found them invalid for procedural ultra vires. But
instead of setting them aside, the Court found it proper to treat them as
directions.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

58 Administrative Law

However, the rules so found ultra vires should be within the powers of the rule-
making authority to issue directions.

2. Source of Authority: Therefore, it is safer to look into the source of authority

under which the relevant instrument is made. In case of delegated legislation, the
rule-making clause under which the Rules are framed is usually mentioned. If
such authority is shown, the instrument can be identified as delegated legislation.
However, not mentioning the authority does not mean that the instrument is a
quasi legislation, because mentioning of authority is not mandatory and not
mentioning it does not invalidate the delegated legislation.

3. Procedural Requirements: Where, for making Rules some mandatory

procedure is prescribed, and the Government has followed that procedure while
making the instrument, presumption is that the instrument is delegated
legislation.

If the instrument does not disclose the authority under which it is made and no
mandatory procedure is prescribed for delegated legislation in the statute, it is
very difficult to identify the instrument.

In such cases, it is suggested that one has to observe the following four things in
relation the given instrument.

1. Does the instrument in question impose obligations on individuals?

2. Is it merely informational or procedural in content and deals only with

matters of administration?

3. Does it impose obligations on the administration?

4. Does it confer rights or privileges on the individuals?

If the first two questions are answered in the affirmative, the Courts prefer to hold
that they are directions. Thus, the interest of the individuals may be better
protected. If the last two questions are answered in the affirmative the instrument
is treated as Rules so that individuals can enforce it.

DELEGATED LEGISLATION TREATED AS QUASI LEGISLATION

Where the rules purported to be made by the government turn out to be ultra
vires, in some cases they may be treated as directions.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

3. Quasi Legislation 59

For example, where the rules which are to be made by following some mandatory
procedure are made without following it, the courts may, instead of striking them
down, may examine the possibility that they may be considered to be directions.
This is possible if the government has power to make such directions and the
same are in favour of the individuals.

Similarly, where the provision confers power to make rules to give effect to the
provisions of the statute, and the rules made by the government cannot be said to
give effect to the provisions of the statute, the same may be held to be directions if
they may be valid as such.

ENFORCEABILITY OF QUASI LEGISLATION

General rule is that quasi legislation being an administrative act, is not

enforceable in the courts of law. Remedy against breach of quasi legislation is
administrative and not judicial.

Kumari Regina vs. A. E. H. School: Where the Grant-in-Aid Code required that
the teachers must be paid salaries which shall not be less than the minimum
prescribed, violation of the requirement was held to be not justiceable.

J. R. Raghupathy vs. State of Andhra Pradesh: The State Government had the
statutory power to decide the locations of mandal headquarters. Government
asked the Collectors to send proposals for this purpose for the consideration of the
government. He government issued certain guidelines for making proposals. It was
held that these guidelines are departmental in nature and hence cannot be
enforced.

Raman and Raman vs. State of Madras: It was held that even where the
directions are issued under a statute, they are not rules and cannot have the
status of law, hence cannot be enforced.

S. K. Agarwal vs. State: Orissa High Court held that non compliance of Orissa
Forest Code by the concerned officers does not confer upon the individual any
justiceable right.

Similarly in Vidadala Harinadhababu, Andhra Pradesh High Court held that a

breach of executive instruction laying down the procedure to be followed by the
government officers in the matter of granting leases of forest lands for cultivation
confers no right on a person adversely affected by its non-compliance. Same is the
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

60 Administrative Law

view of Kerala High Court in I. Co-operative Society vs. K. Service Co-operative

Bank.

However, if such non-compliance results in discrimination, it will be violation of

art. 14 of the Constitution and the Courts will intervene.

Thus, there are several exceptions to this rule.

1. When breach of the direction amounts to breach of a provision of a statute

also:

K.M. Shanmugam vs. SRVS Ltd.: Sec. 47 of the Motor Vehicles Act, 1939
provided that an RTA, while considering an application for a stage carriage permit,
is enjoined to have regard, inter alia, to the interest of the public generally.

Sec. 43-A of the Motor Vehicles Act, 1939 (as applicable to Madras) empowered the
State Government to issue such orders and directions of a general nature as it
may consider necessary, in respect of any matter relating to road transport, and
the transport authority concerned “shall give effect to such orders and directions”.

Hence, it was held that the breach of direction also amounts to breach of statute,
and hence can be enforced.

Ellerman Lines vs. CIT: Under sec. 5(8) of the Income Tax Act, 1922 provided
that all officers shall observe and follow the orders, instructions and directions of
the Central Board for Revenue.

2. When breach of the direction leads to breach of contract: As noted above, a

quasi legislation may form a part of the contract between Government and another
party. Therefore, breach of the quasi legislation may amount to breach of contract.

In some other cases, the superior authority may enter into a contract with some
party and issue directions to the subordinates to do some act which is necessary
to fulfil the obligations of the department under the contract. If a subordinate
officer fails to follow the directions, it may amount to breach of contract on the
part of the department. In such cases, the department, and not the officer
committing the violation of direction, will be responsible for the breach of contract.

3. Where doctrine of estoppel is applicable: Governments often notify several

schemes under which the assure benefits to the public. These schemes are by
nature quasi legislation. If the benefit is not given to the qualified persons,
Government is estopped from contending that the scheme is only a quasi
legislation and hence cannot be enforced.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

3. Quasi Legislation 61

UOI vs. Indo-Afghan Agencies: Export Promotion Scheme declared by the Textile
Commissioner provided for certain incentives to the textile exporters. The
respondent, in order to avail the benefit under the order, exported sizeable
quantity of goods. However, he was given only a small fraction of the benefit to
which he was entitled under the Scheme. It was held that the government was
estopped from contending that the respondent could not seek to enforce the
Scheme as the same was administrative in nature.

4. In service matters where directions are issued in lieu of Rules: In order to

avoid enforceability, Governments often avoid making Rules and issue directions
in lieu of Rules. Where the Government has powers to make Rules and also to
issue directions in respect of the same subject matter, it is entirely within the
discretion of the Government to make Rules or to issue directions. If the
Government makes Rules, they will have the effect of Rules and be enforceable. If
the Government issues directions, they will be quasi legislation and will not be
enforceable. But in case of service matter if directions are issued in lieu of Rules,
they will be treated as substitute for Rules and will be held to have the same effect
as Rules. This is because service matter is an utmost important matter which
deals with thee livelihood of the Government servant and his family.

UOI vs. K. P. Joseph: Government issued an office memorandum providing for

fixation of salary of re-employed personnel. The respondent claimed a right under
it, but the government refused. When challenged before the Court government
resisted on the ground that it was only an administrative order and is not
justiceable. Supreme Court rejected the contention of the government and issued
mandamus to enforce office memorandum.

UoI vs. Soma Sundaram: In 1976 Government of India issued an office

memorandum consolidating all the previous instructions governing the functions
and procedures of departmental promotion committees. It was held that these
matters may be regulated by laws made by legislatures or by the rules made by
the governments under relevant statutes, or by directions issued by the
governments under art. 73 or art. 162 of the Constitution. Where there is a law
made by the legislature, it will be the one which will be governing the matter. If
there are rules and instructions, rules will prevail over instructions. Where there
are neither rules nor laws made by legislature, the instructions will take their
place and will be binding.

5. Where a direction which is being followed consistently and uniformly is

deviated from: Where directions are consistently followed over a period of time, it
gives rise to legitimate expectation in the mind of a person that the direction will
be followed in his case also. If the direction is not followed in his case, the
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

62 Administrative Law

deviation belies his legitimate expectation. Hence, the Courts enforce the direction
so that the legitimate expectation is not belied.

Baleshwar Dass vs. State of Uttar Pradesh: An office memorandum regulating

seniority in certain government posts was held binding on the government as the
same was uniformly by the government for over two decade.

6. Where following or not following the direction amounts to discrimination:

Selective following or not not following a direction leads to arbitrariness and hence
discrimination between similarly positioned persons, which in turn violates art. 14
of the Constitution.

Mannalal Jain vs. State of Assam: Assam Food Grains (Licensing and Control)
Order, 1961 laid down five considerations for the licensing authorities to keep in
mind while granting or refusing to grant licences. One of the considerations was
that a co-operative society was to be given preference. Government issued another
circular directing that only a particular co-operative society should be preferred
and no other. This was held to be invalid, as it amount to discrimination.

A. Perikaruppan vs. Tamil Nadu: Order for selection of candidates for admission
to medical colleges was held to be bad for not following the criterion laid down in a
government direction.

7. Directions are inconsistent with Statute or Rules: Statues and Rules being
laws, always prevail upon directions which are not law. As a result, directions
cannot change law. Any direction intended to change law will be invalid in itself.

V. T. Khanzode vs. RBI: Basis of seniority prescribed by the Rules was sought to
be altered by directions. The directions were held to be invalid as directions cannot
change the law.

S. L. Sachdeva vs. UoI: The Court observed, “No one can issue directions which,
in substance and effect, amendment of the Rules made by the President under art.
309. That is elementary.” Government contended that the direction in question
was aimed at further and better implementation of the Rules and not to amend
them. But the Court did not accept the contention and held that the directions
had the effect of amending the Rules and not merely supplementing them. “Any
direction that goes beyond it and superimposes a new criterion on the Rules will
be bad as lacking in jurisdiction”.

Karnani Properties Ltd. vs. Calcutta Municipal Corporation: Directions

conflicting with the parent statute or any other statute cannot be operative and
have to be ignored even though they have been followed for long, have been found
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

3. Quasi Legislation 63

to be convenient and have worked well. No one is obliged to observe them any
longer.

8. Directions coming in the way of statutory powers: Directions which form

obstruction in the exercise of a statutory powers are necessarily in conflict with
the statutory provisions which bestows such powers upon the authority. Hence
such a direction will be invalid, even if it is issued by a higher authority.

N. P. & A vs. UoI: Government of India has promulgated the Imports (Control)
Order, 1959 in the exercise of the powers conferred on it by secs. 3 and 4(a) of the
Imports and Exports (Control) Act, 1947. Rule 10-C of the order empowers the
Chief Controller of Imports and Exports to issue directions regarding the sale of
such imported goods as could not be utilised by the licensee for the purpose for
which they were imported. Apart from the Order, the Government of India also
issued certain directions under administrative powers relating to the same aspect.
Allahabad High Court held that the directions cannot override the Order.

9. Directions supplementing statutes or Rules: Sometimes directions are issued

to supply gaps in statutes or Rules. If such directions do not conflict with the
statute are Rules in respect of which they are issued and are issued by an
authority having power to make those Rules, then they are treated as if part and
parcel of the such Rules.

Naga People’s Movement of Human Rights vs. UoI: It was held that executive
instructions issued to fill up gaps in statutory provisions have binding force.

Parameshwar Prasad: Such directions can be issued only by the authority

having power to make Rules.

State of Maharashtra vs. Jagannath: Government of Maharashtra issued

Service Rules on 1.1.1962. A service Rule preserved the power of the Government
to dispense with or relax the requirements of any service Rule “if it causes
hardship in any particular case”. It was held that the Government could not
restrict the operation of the Rules by issuing executive instructions. It was
observed, “Executive instructions can supplement but not supplant the Rules”.

10. Directions are issued for interpreting a statute or Rules: In the guise of
interpreting statute or Rules the provisions sought to be interpreted cannot be
undermined. Any such direction will be held to be invalid.

Director General of Posts vs. B. Ravindran: It was held that clarificatory

instructions cannot supersede or take away the right itself under the Regulation
sought to be clarified.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

64 Administrative Law

11. Directions are illogical, irrational, unfair or unjust: Such directions may be
applied arbitrarily leading to discrimination and hence are always held to be
violative of art. 14 of the Constitution.

State of Andhra Pradesh vs. U. S. V. Bararan: Reservation of 40% seats for

HSC students in CET was held invalid.

12. Directions are Vague: Vague directions are directions which have no specific
meaning, and can be interpreted in any manner as per the convenience of the
officer applying them, which again leads to discrimination and hence such
directions are hit by art. 14.

13. Directions affect individual rights: Rights of individuals can be taken away
or abridged only by legislature and not by executive. Any direction affecting rights
of individuals can be successfully challenged as invalid.

N. K. Pankaja Kshan Nair vs. P. V. Jayaraj: The right of consideration for

promotion accrued under statutory Rules cannot be taken away by administrative
instructions.

But they may be validated by subsequent law.

I. N. Saxena vs. State of M. P.: A civil servant was retired by administrative

direction. Subsequently, an ordinance was issued by the Governor on the same
terms. It was held that the retirement cannot be quashed.

14. Directions in pursuance of policy matters: Directions issued in pursuance

of policy of the Government can be enforced.

Home Secretary, UT of Chandigarh vs Darshuit Singh Grewal: Policy

guidelines or executive instructions are binding till altered.

15. Directions are issued in respect of exercise of discretionary powers:

Discretionary powers are conferred upon an administrative authority or officer, so
that he can apply his mind to the peculiar facts of a case and arrive at a decision.
The power is to be exercised by the authority upon whom it is conferred. In many
cases, even a higher authority cannot exercise the power. Therefore, any direction
issued to the authority exercising discretionary power is invalid.

But if the directions are issued not in respect of a particular case or particular
type of cases, but in the form of general guidelines, the same may be upheld as
valid. Such directions not only bring uniformity in the exercise of discretion by
different authorities, but also bring predictability and certainty in the exercise of
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

3. Quasi Legislation 65

the discretion. People can predict the manner in which the authorities will exercise
their powers. Such directions may also control the use of powers by the
authorities.

Anil Kumar Bhattacharya vs. UOI: Telephone Department issued an instruction

to the effect that if the telephone service to a subscriber remains interrupted for a
period exceeding 15 days due to departmental reasons, he is entitled to a rebate in
rent for that period. Gauhati High Court held that this instruction is enforceable.

16. Directions are issued in respect of quasi judicial functions: A quasi

judicial body has to function without any interference from anybody. They are
required to use discretion and best judgement in deciding the cases without any
fetters. Hence, no directions can be issued to quasi judicial bodies and authorities.

In B. Rajagopala Naidu vs. State Transport Appellate Tribunal, the Supreme Court
gave restricted meaning to sec. 43-A of the Motor Vehicles Act which empowers the
government to issue directions to any authorities. Accordingly, the phrase ‘any
authorities’ does not include quasi judicial authorities.

Sec. 119 of the Income Tax Act, 1961 specifically provides that CBDT cannot issue
directions to the Assistant Commissioner (Appeals) in the exercise of appellate
functions.

In these cases also directions providing for general guidelines and procedure to be
followed by the quasi judicial authority may be upheld.

PUBLICATION OF DIRECTIONS
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

CHAPTER IV

4. NATURAL JUSTICE

• Natural Justice
• Rule Against Bias
• Rule of Fair Hearing
• Application of Rules of Natural Justice
• Effect of Failure of Natural Justice
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

INTRODUCTION

Natural Justice is the set of fundamental rules which governs the adjudicatory
functions under the Anglo-American Jurisprudence which is also followed in India.
This concept is so basic that every authority discharging judicial or quasi-judicial
functions must follow these rules. Otherwise, the very jurisdiction of the authority
will be lost. Principles of natural justice are partly applicable to the administrative
discretionary functions. But the recent trend is to apply both the principles of
natural justice to administrative discretionary functions also.

Principles of natural justice are not applicable to legislative functions. Therefore,

they are not applicable to delegated legislation which is legislative in nature. They
are not applicable to quasi legislative functions which are similar to legislative
functions.

Principles of natural justice are also not applicable to ministerial functions.

Because these functions do not involve decision making.

To sum up,

Functions Applicability of Principles of Natural Justice

1. Administrative Functions
(a) Ministerial Functions Not applicable, as no decision making involved.
Partly applicable – Only rule against bias.
(b) Discretionary Functions
2. Quasi Judicial Functions Fully applicable – Both rules are applicable.
3. Quasi Legislative Functions Not applicable, because it is similar to legislative act.
4. Rule-making Function Not applicable, because of legislative nature.

The law made by the legislature must provide for a procedure to be followed by
these above authorities and that procedure must be in conformity with the rules of
Natural justice. If the law does not provide for any procedure, then following
natural justice is implied. If the law made by the legislature is at variance with
natural justice to that extent the law itself will be invalid. Though natural Justice
is not specifically provided for under our constitution, still the courts have read it
into our constitution and held it to be the part of the basic structure of our
Constitution.

There are two rules of Natural Justice:

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

68 Administrative Law

1. Rule Against Bias which is based on the maxim “Nemo judex in causa sua”
(No one can be a judge in his own case).

2. Rule of fair hearing which is based on another maxim “Audi alteram partem”
i.e., here the other side.

RULE AGAINST BIAS

“Nemo judex in causa sua” means that no one can be judge in “one’s own case”
means a case in which one is interested i.e., a case in the outcome of which one is
interested. A person may be interested in a case in many different ways. Therefore,
he will be prejudiced in many ways. Prejudiced means arriving at a decision before
hearing a case. In other words, before hearing the case itself the person will have
made up his mind to decide the case in one way or the other instead of arriving at
a decision after hearing the case. Depending upon different type of interest a
person may have in the case, there are different types of bias which are: personal
bias, pecuniary bias, bias as to subject matter, departmental bias and pre-
conceived notion bias.

PERSONAL BIAS

When the deciding authority himself is a party or is related to one of the parties it
is called personal bias. Relationship here means anything such as blood
relationship, relation through marriage, professional or business relation,
friendship, or enmity. Not only where one of the party is related to the deciding
authority, but also where the advocate of one of the parties is related to the
authority, there will be apprehension in the mind of the party, opposite party that
the deciding authority will be prejudiced. Where, the deciding authority himself is
a witness, he will be prejudiced because he will not accept the advance evidence as
true even though he is mistaken about the fact, he will maintain that what he
thinks is true, this will seriously affect the decision in the case. Similarly, if he is
related to one of the witnesses, he will be inclined to accept the version of that
witness even if that is an erroneous version.

APSRTC vs Sathyanarayan Transport Pvt. Ltd.: The petitioner successfully

challenged the action of the State Government nationalizing road transport on the
ground of personal bias. In this case, the minister who heard the objections of the
private bus owners had asked the petitioner to persuade the members of the
congress party to vote for him in the elections. The petitioner despite his efforts did
not succeed as a result of which the minister lost the election.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

4. Natural Justice 69

S. P. Kapoor vs. State of H. P.: In a departmental promotion committee a

member was also a candidate. He himself prepared the confidential reports of
some other candidates. It was held that the proceedings were vitiated by bias.

A. K. Kraipak vs Union if India: In this case, Naquishbund, who was acting

Chief Conservator of Forests, was a member of this selection board and was also a
candidate for the selection to the All India Cadre of Forest Service. Though he did
not take part in the deliberations of the board, when his name was considered and
approved, the Supreme Court held that there was a real likelihood of bias for the
mere presence of the candidate on the selection board may adversely influence the
judgment of the other members.

Manak Lal vs Premchand: the Rajasthan High Court appointed a Tribunal

headed by a senior advocate of Rajasthan High Court as Chairman to hear a
complaint of professional misconduct filed by the Premchand against the Manak
Lal. This was challenged by Manaklal on the ground that the Chairman had
represented Premchand in an earlier case. Supreme Court did not accept that the
Chairman will remember his client after so many years, especially because usually
cases are given to High Court advocates no by the clients but by the advocates
who had represented the clients in lower courts. However, the Court held that if
there is any doubt in the mind of the party, and it is possible to replace the
Chairman, it is better to do so, as justice should not only be done but should be
seen to have been done.

Ganga Bai Charities vs. CIT: A lawyer while acting as a special counsel for the
Income Tax Department gave an opinion that an assesee trust was not entitled to
the tax exemption. Later he was elevated as the judge of the High Court and
decided the same matter sitting as a judge. Neither party objected. SC held that
there was no real likelihood of bias as a routine opinion given by a busy advocate
will act as bias seven years later.

Difference between the above two cases is that in Manaklal the objection was
raised at the earliest opportunity, and changing the Chairman did not involve any
loss or inconvenience to the other party. In Ganga Bai Charities, the objection was
raised very late, after the judgement was pronounced. The Court did not find any
strong ground to set aside the impugned judgement. If a party, with full
information and knowledge of facts waive their right to object, later it cannot raise
the plea when it suffers an adverse decision.

Fakruddin vs. Principal Custodian: SC held that a judge who was formerly
advocate of one of the parties decides a matter even after objection, there is a real
likelihood of bias.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

70 Administrative Law

R. Balaksrishna Pillai vs. State of Kerala: SC held that that a judge was an
opposing counsel before an enquiry commission is not sufficient to infer bias. It
was observed that though the state of mind of the person who entertains an
apprehension of bias is relevant, but that is not all. That apprehension must
appear to the court as genuine, reasonable and justifiable.

Dr. G. Sarana vs. University of Lucknow: If a party, with full information and
knowledge of facts waive their right to object, later it cannot raise the plea when it
suffers an adverse decision.

PECUNIARY BIAS

When the presiding authority is likely to earn some gain by deciding the case in
one way, he is likely to decide in that way, when the deciding authority is likely to
suffer a loss by deciding the case in some other way, he will try to decide the case
in opposite way, in order to avoid the loss. Whenever there is a likelihood of any
gain or loss, however small that gain or loss may be, there is always an
apprehension that the deciding authority will decide the case with a prejudiced
mind.

Jeejeebhoy vs Asstt. Collector, Thane: The Chief Justice reconstituted the

bench when it was found that one of the members of the Bench was a member of
the co-operative society for which the land had been acquired.

J. Mohapatra & Co vs State of Orissa: The Supreme Court quashed the

decision of the textbook selection committee because some of its members were
also authors of books which were considered for selection.

However, if there is no nexus between the pecuniary interest and the case, there
cannot be bias.

R. vs. Mulvihill: In a case of bank robbery, the judge who was holding shares in
the bank cannot be said to be biased, as he will not gain or lose anything by
deciding the case in one way or the other.

BIAS AS TO SUBJECT-MATTER

Deciding authority being a human being will be interested in some subject such as
environment, prevention of cruelty to animals etc. However, we cannot say that
the judge will be deciding a case in one way or the other because of such interest
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

4. Natural Justice 71

alone. But still there may be an apprehension in the mind of the parties that his
interest will dictate his decision.

Mere involvement is not enough.

R vs Deal Justices ex p Curling: It was held that the Magistrate was not
disqualified to try a case of cruelty to an animal on the ground that he was a
member of the Royal Society for the Prevention of Cruelty to animals as that did
not prove a real likelihood of bias.

Sub-committee of Judicial Accountability vs. Union of India: Speaker’s

actions under the Judges Enquiry Act, 1968 was held to be not invalid on two
grounds, viz., political affiliation is no ground to disqualify him, and secondly
doctrine of necessity is applicable to this case.

DEPARTMENTAL BIAS

If the deciding authority belongs to the same department as one of the parties,
then he will try to protect the party belonging to his department. In many cases
the party belonging to his case represents the department itself and his success
will be in the interest of the department to which the deciding authority also
belongs. Eg. In case of sales tax or income tax one of the parties will be a person
belonging to a department against whom the other party makes an allegation that
he has charged an amount of tax which the complaining party is not liable to pay.
If this contention is accepted there will be loss of revenue to the department. If the
deciding authority feels that being an officer of the department he should protect
the interest of the department and pass an order blindly in favor of the party
belonging to his department, there may be injustice. In some other cases the
action of one of the officer of the department may be challenged before a higher
authority in the same department. Because of working in the same department the
mentality of both the officers may be same and the deciding authority may feel
that the decision of the subordinate authority is proper.

However, such situations cannot be avoided because the deciding authority should
have expertise and experience in the matter before him which means it is
necessary that he should belong to that department.

In Hari vs DCP, an externement order was challenged on the ground that since
the Police Department which initiated the proceeding and the department which
heard and decided the case were the same, the element of departmental bias
vitiated administrative action. The court rejected the challenge on the ground that
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

72 Administrative Law

as long as two function(initiation and decision) were discharged by two separate

officers, no matter that they were affiliated to the same department, there was no
bias.

Gullappally Nageswara Rao vs. APRTC: Road nationalization scheme was

quashed by the court as the secretary to the transport department who had made
the scheme and was under a duty to implement the scheme heard the parties. It
was held that he was prevented from hearing on the ground of bias.

Gullappally Nageswara Rao vs. APRTC (II Case): Court refused to quash road
nationalization scheme where hearing was given by the transport minister. It was
held that the minister cannot be said to be the part of the department in the same
way as the secretary is.

Krishna Bus Service vs. State of Haryana: The General Manager of Haryana
Roadways was conferred powers of a Deputy Superintendent of Police. This gave
him power to inspect vehicles not only of Haryana Roadways, but of the rival
companies also. Therefore, the conferment of powers was quashed on the ground
of departmental bias.

State of U. P. vs. R. S. Sodhi: It was held that police department should not
investigate into fake encounters.

PRE-CONCEIVED NOTION BIAS

Deciding authority being a human being will be having his own notions which are
the outcome of his background. So depending on the family background, cultural
background, etc. every person has got his own notion. We cannot expect a
deciding authority to decide a case with a blank mind Therefore; this type of bias
is also unavoidable.

In Franklin vs. Minister of Town and Country Planning (Stevenage Case) 1, the
appellant challenged the Stevenage New Town Designation Order, 1946 on the
ground that during the public hearing on the matter, the minister made a remark,
“I want to carry out a daring exercise in town planning”. The gathering shouted its
opposition to this. On this the minister said, “It is no good your jeering! It is going
to be done.” Hence, it was contended that the hearing was not given with open
mind. The minister had so strong conviction that his mind was closed. The court
dismissed the case on technical grounds, but the contention appears to be
reasonable.

1 (1947)2 All ER 289 (HL).

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

4. Natural Justice 73

This bias is most difficult to avoid. Every human being has one or the other view of
a matter. No one can sit to decide a matter with a blank mind. Therefore Lord
Devlin observed, “The judge who is confident that he has no prejudices (or bias) at
all is almost certain to be a bad judge. Prejudice cannot be exorcised, but like a
weakness of the flesh it can be subdued. But it has first to be detected.”

BIAS ON ACCOUNT OF OBSTINACY

I. P. Massey also quotes The Tribune, reporting a decision of the Supreme Court
wherein a new kind of bias, namely bias arising through unreasonable obstinacy
was discovered. In the instant case the order of a judge of the Calcutta High Court
was reversed by the Division Bench of the High Court. In a fresh writ petition, the
judge validated his earlier judgement which was reversed by the Division Bench.

CONCLUSION

As it can be seen from the above discussion, the first two types of bias are more
serious in nature but at the same time, they are avoidable. If a judge is having
personal pecuniary bias in the subject-mater of the case, he can refrain from
deciding the case and the matter may be entrusted to some other person to decide.
The latter three are less serious and at the same time unavoidable. Therefore, the
courts show different attitude towards these two categories of bias.

Where there is a personal bias or pecuniary bias, courts will not allow the deciding
authority to proceed with the matter. It is immaterial whether his judgement will
be affected by the bias or not. It is sufficient if there is an apprehension in the
mind of a party that he will not get justice from that authority. This principle is
expressed by the courts by saying that “justice should not only be done but it
must also appear to have been done.” What is seen by the courts is whether there
is a reasonable apprehension or real likelihood of bias and this can be seen at the
beginning of the case itself.

Therefore, a person may take a contention that the deciding authority is biased at
the earliest opportunity. If he fails to take that contention at the earliest
opportunity, it will be deemed that he has waved his right to object and he will not
be able to take up that contention at a later stage or after the decision.

But in the latter three types of bias, the deciding authority will be disqualified from
taking the decision only if he is really biased. In some cases, this bias will be
apparent from the way the hearing is conducted by the deciding authority. But in
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

74 Administrative Law

majority of cases will be apparent only after the decision is given by the authority.
Therefore, courts prefer to wait until the authority decides the matter and then
examine whether his decision is really affected by the bias. If not the decision will
be valid. The existence of bias can be known only after the decision in the case.

RIGHT OF FAIR HEARING

Audi Alteram Partem: Hear the other side; Hear both sides; No one shall be
condemned unheard.
Hearing means giving opportunity of being heard. If the person uses that
opportunity, he shall be actually heard, else the order may be passed ex parte.

COMPONENTS OF FAIR HEARING

Hearing to be fair, it should have the following components:
1. Right to Notice
2. Right to Appearance
3. Right to know adverse evidence
4. Right to present case
5. Right to Present evidence
6. Right that evidence shall not be collected at his back
7. Right to rebut adverse evidence
(a) Right to cross examination
(b) Right to legal representation (Right to counsel)
8. Right to report of enquiry
9. Right to speaking order

1. Right to Notice
State of J&K vs. Haji Wali Mohammed: A notice giving 24 hours to demolish a
building in dilapidated condition was held to be too less to be fair.

Joseph Vilangadan vs. Executive Engineer (PWD): The appellant was given a
contract of construction by the PWD. He could not start the work on time. A notice
was given to him stating, “You are, therefore requested to show cause within seven
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

4. Natural Justice 75

days from the receipt of this notice why the work may not be arranged otherwise at
your risk and loss through other agencies after debarring you as defaulter.” He
was then debarred from all future contracts under the PWD. Quashing the order
the Supreme Court held that the words “debarring you as defaulter” did not give
adequate notice to the appellant of the fact that he would be debarred from all
future contracts with the PWD.

Appropriate Authority vs. Vijay Kumar: Where the material on the basis of
which compulsory purchase of property by the Income Tax Department was not
disclosed in the show cause notice and the venue of hearing was changed without
giving reasonable time to the transferor to reach the venue, Supreme Court held
that there is violation of natural justice.

Ajit vs. G.M., BEST Undertaking: Notice as required under sec. 105-B of the
BMC Act, 1888 to an allottee of a municipal premises need not be given to all
persons living with the allottee.

Notice to a large section of public who are generally educated may be given
through publication in newspaper.

Shiv Sagar Tiwari vs. Union of India: Notice published in newspapers to enable
out-of-turn allottees of government quarters in Delhi to represent before the
Supreme Court against proposed cancellation of allotments was held to be
sufficient and adequate notice.

However, notice may not be insisted as a mere formality, when the party clearly
knows the facts and will not be prejudiced by failure to give notice.

Keshav Mills Co. Ltd. vs. Union of India: Taking over of the petitioner’s mill by
the government for five years was not quashed by the court merely because there
was failure to give notice. This is because at an earlier stage a full fledged hearing
was given to the petitioner and he was aware of all the facts.

State of Karnataka vs. Mangalore University Non-teaching Employees’

Association:

Even if a mistake in decision is to be corrected, if the concerned person has to face

adverse consequences, notice is mandatory.

Union of India vs. Naredra Singh: Cancellation of erroneously given promotion

without giving notice is illegal.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

76 Administrative Law

Consequences of Non-issuing of Notice

1. Does not affect the jurisdiction of the authority, if reasonable opportunity of

being heard is otherwise given

2. Issue of notice prescribed by law is sufficient to satisfy the requirements of

natural justice.

3. If prejudice is caused by non issuing of notice, it would vitiate the proceedings.

But only an irregularity in service of notice will not cause such defect.,
especially if the person himself is responsible.

4. The case so vitiated may be cured by starting the proceedings de novo by

issuing proper notice.

5. If the show cause notice contains unspecified, vague or unintelligible

allegations, that will amount to denial of proper opportunity of being heard.

2. Right to Appearance

3. Right to Know Adverse Evidence

Dhakeshwari Cotton Mills Ltd. vs. CIT

Unless the relevant statute or rules require, there is no rule that the material
should be supplied in the full or in original form. A summary of the material is
sufficient if it is not misleading. The party may be allowed inspect documents and
make notes.

The main rule is that nothing which is not disclosed to the other side can be used
against the party.

4. Right to Present Case

The party should be afforded an opportunity to present case either orally or in
writing at the discretion of the authority unless the statute provides otherwise.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

4. Natural Justice 77

The opportunity must be given in respect of the case being heard. If it is given in a
casual manner or in respect of some other thing, requirement of audi alteram
partem is not satisfied.

Oral hearing is not an integral part of audi alteram partem except where under the
peculiar circumstances of a case the person will not be in a position to effectively
present his case.

Union of India vs. J. P. Mitter

Southern Painters vs. Fertilizers and Chemicals, Travancore Ltd.: It was held
that oral hearing is necessary before deletion of the name from list of approved
contractors.

S. L. Kapoor vs Jagamohan: It was held that the opportunity need not be a

‘double opportunity’ – one on the allegations and the other on penalty.

Sec. 44 of the Constitution (42nd Amendment) Act, 1967

5. Right to Present Evidence

Opportunity to present both testimonial and documentary evidence is a must.

Dhakeshwari Cotton Mills Ltd. vs. CIT: Supreme Court quashed a decision of
the administrative authority passed by it without allowing the assessee to present
material evidence.

R. B. Shreeram Durga Prasad vs. Settlement Commission (IT & WT) : The
Commission allowed the assessee only to present objections to the statement of
the CIT. Supreme Court felt that the opportunity given to the assessee was
inadequate as there was no opportunity afforded to the assessee to prove his case.

Generally, it is not the obligation on the part of the authority to help the person to
collect or present the evidence.

N. M. T. Co-operative Society Ltd. vs. State of Rajasthan: In an enquiry held

under the Motor Vehicles Act for the nationalisation of a road, the witnesses did
not appear before the authority in spite of the summonses being served upon
them. A request for the issue of warrants was rejected. It was held that there is no
violation of natural justice, because their statements were already on the file of the
authority.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

78 Administrative Law

A. K. Roy vs. Union of India: It was held that if the detenu wants to examine the
witnesses, he has to see that they are present at the appointed time and give
evidence before the concerned authority. It is not the duty of the authority to
summon them.

6. Right That Evidence Shall Not Be Collected At His Back

Errington vs. Minister of Health: In 1933 Jarrow Corporation passed a
clearance order for the demolition of certain buildings found unfit for human
habitation and submitted the same for confirmation of the Minister of Health. An
enquiry was held and the owners of the building were given hearing. Subsequently
some officers of the ministry went to the building and collected evidence without
the knowledge of the owners. On the basis of this evidence the order was
confirmed. The order was quashed by the Court, inter alia, on the ground that the
evidence was collected at the back of the parties.

That does not mean that the authorities have no right to collect the evidence in the
manner they consider the best. The only requirement is that the evidence so
collected must be disclosed to the parties and they must be afforded an
opportunity to rebut it.

Hira Nath Misra vs. Principal, Rajendra Medical College:

Ceylone University vs. Fernando:

7. Right to Rebut Adverse Evidence

Right to rebut evidence presupposes that the adverse evidence is revealed to the
party. Where the adverse evidence is not revealed to the party, the party is
naturally denied the right to rebut that evidence.

In other cases, the party should be given the right to cross examine the witnesses
and to confront the documents submitted against him.

Sometimes this cannot be done by the party himself. He needs the assistance of
an advocate. In such cases he may be allowed to be represented by an advocate.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

4. Natural Justice 79

(a) Right to Cross Examination

State of Jammu and Kashmir vs. Bakshi Gulam Mohamme: A commission of

enquiry was set up to make certain enquiries in a matter involving the former
Chief Minister of Jammu and Kashmir.

Kannungo & Co. vs. Collector of Customs: 390 watches were confiscated under
the Sea Customs Act from the premises of the company.

State of Kerala vs. Shduli Grocery Dealer: It was held that the denial of
dealer’s request to cross examine the sales tax authorites who had given evidence
gaianst him was denial of natural justice.

State of Maharashtra vs. Salem Hussain Khan: Supreme Court held that in
the case of a bad charactered person, while passing an externment order evidence
need not be discusses as it may give rise to a fresh spate of violence against the
witnesses.

S. C. Girotra vs. United Commercial Bank: Where the witnesses have orally
deposed, refusal to allow cross examination would necessarily amount to denial of
natural justice.

(b) Right to Legal Representation (Right to Counsel)

Normally right to legal representation in an administrative proceedings is not

taken as denial of natural justice. In many cases it is discouraged or even
prohibited because presence of a lawyer destroys the essential informality of the
proceedings. Further, there is a tendency to prolong and to complicate the matter.
Moreover, it is felt that allowing lawyers will give an edge to rich over the poor as
the rich can afford better lawyers than the poor.

Factory laws do not permit legal representation, while some laws such as
Industrial Disputes Act, Family Courts Act permit legal representation with the
permission of the Court. Some other statutes like Income Tax Act permit legal
representation as a matter of right.

Though legal representation is restricted or prohibited by the parent Act, natural

justice may still require it in, among others, the following cases:

1. Where the person is illiterate.

2. Where the matter is very complicated and technical in nature.

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

80 Administrative Law

3. Where the expert evidence is on record.

4. Where the matter is predominantly based on a question of law.

5. Where the person is facing a trained prosecutor.

Nandalal Bajaj vs. State of Punjab: Though sec. 11 of the Black Marketing and
Maintenance of Essential Commodities Act, 1980 and sec. 8(e) of the Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 prohibited
the legal representation, court held that legal representation is necessary where
the party has to face trained prosecutor.

A. K. Roy vs. Union of India: It was held that if the party is denied legal
representation, then the State must also be denied legal representation.

M. H. Hoskot vs. State of Maharashtra: Provision of legal representation to an

indigent accused is a part of ‘fair procedure’ envisaged under art. 21 of the
Constitution.

Khatri vs. State of Bihar: Legal representation is mandatory not only during
trial, but also at the stage of remand.

Nandini Satpathy vs. P. L. Dani:

8. Right to Report of Enquiry

One Who Decides Must Hear

The general import of the rule of fair hearing is that one who decides must hear.

Institutional Hearing

Disciplinary matters

Failure to Supply Copy of Report

There are many provisions under the Constitution which require compliance of the
rules of natural justice in one from or the other. Art 311(2), for instance, provides
that no government employee can be dismissed or removed or reduced in rank
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

4. Natural Justice 81

without giving him a reasonable opportunity of being heard in respect of charges

frames against him. Does failure to give copy of the report amount to denial of
‘reasonable opportunity’?

Satyavir Singh vs. Union of India: Supreme Court has held that art 14 applies
not only to discriminatory class legislation but also to discriminatory state action.
Violation of principles of natural justice results in arbitrariness grounded in art.
14 of the constitution.

Hence again the question is denial to supply copy of the report amount to violation
of art. 14 of the Constitution?

Sec. 47 of the Constitution (42nd Amendment) Act, 1967

Union of India vs. E. Bhashyan: Second show-cause notice was held to be

different from copy of enquiry report.

Premnath K. Sharma vs. Union of India: CAT held that it is mandatory to

supply a copy of enquiry report to the delinquent employee.

Union of India vs. H. C. Goel: Inquiry officer found that the charged employee
was not guilty of charge of making an offer of a bribe to his superior officer. UPSC
also endorsed the conclusions of the inquiry officer. Nevertheless the deciding
authority rejecting the report of the enquiry officer held the delinquent officer
guilty. This action of the deciding authority was challenged on the ground that the
deciding authority had acted without evidence.

Supreme Court quashed the order and laid down the following propositions:

1. The inquiry officer hold the enquiry as a delegate of the government.

2. The object of the enquiry is to enable the government to hold an

investigation in to the charges framed against the delinquent, so that the
government can, in due course, consider the evidence adduced and decide
whether the said charges are proved or not.

3. The findings on the merit recorded by the inquiry officer are merely to
supply appropriate material for the consideration of the government. Neither
findings nor recommendations are binding on the deciding authority as held
in A. N. D’Silva vs. Union of India.

4. The inquiry report (Along with the evidence recorded by the enquiry officer)
constitutes the material on which the government has ultimately to act.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

82 Administrative Law

That is the only purpose of the inquiry report which the inquiry officer
makes as a result thereof.

Therefore, the report of the enquiry officer is the only material before the deciding
authority in many cases. Where the deciding authority disregards the report or
acts contrary to that material, he is acting without evidence and his decision is
illegal.

Suresh Koshy George vs. University of Kerala: It was held that there is no
denial of natural justice because the student had not specifically asked for the
report of enquiry.

Kailash Chandar Asthana vs. State of UP: Copy of the report need not be given
to the party.

Union of India vs. Mohd. Ramzan Khan: SC held per incurium that the copy
must be given.

Electronic Corporation of India vs. B. Karunakar: The matter was referred to a

larger bench.

Keshav Mills Co. Ltd. vs. Union of India: There cannot be a rule laid down in
this regard. Every case should be seen in the peculiar facts and circumstances of
that case. If the non-supply of report leads to injustice, then the same amounts to
denial of natural justice, otherwise not.

Union of India vs. E. Bhashyam: Jusitce Thakkar made an observation that in

all cases it should be mandatory that a copy of the report be given to the party as
there may be errors and omissions in the report.

Local Government vs. Arlidge: House of Lords held that it is not necessary to
give a copy of the report to the party if it is not tendered as evidence against him.
In this case, the Hampstead Borough Council passed a closing order in respect of
a dwelling house which was considered unfit for human habitation. On an appeal
to the Local Government Board by Arlidge, the Minister appointed an inspector to
hold an enquiry and on the basis of the report of that inspector confirmed the
order.

In cases of institutional decisions there can be four possibilities.

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

4. Natural Justice 83

1. The inquiry report may indict the delinquent and the deciding authority may
exonerate him.

2. The inquiry report may exonerate the delinquent and the deciding authority
may indict him.

3. The inquiry report may indict the delinquent and the deciding authority may
also indict him.

4. The inquiry report may exonerate the delinquent and the deciding authority
may also exonerate him.

In the first and fourth cases denial to give copy of report does not amount to denial
of natural justice. In the other two cases giving a copy of the report to the party is
mandatory.

9. Right to Speaking Order

There is no requirement in our law that an administrative agency must give

reasons for its decision. If the statute or rules under which the order is passed
requires that the order should be made for reasons to be recorded in writing, then
reasons are necessary. In such cases, the reasons should be such as to show
application of mind by the authority to the facts of the case and rationale behind
making the order in the way it is made. It cannot be a mechanical ‘rubber stamp’
reason. The reasons need not be as elaborate as in case of a judgement, but must
be sufficient to understand the reason for making the order.

M. J. Sivani vs. State of Karnataka: Supreme Court held that where the
relevant Rules require giving of reasons, it is sine qua non for the validity of the
order.

Even where the statute or the Rules do not specifically require giving of reasons,
the courts may still require that reasons must be given for the order in view of the
constitutional and statutory provisions which imply such a requirement.

Implied Constitutional Perspective

Anumathi Sadhakan vs. A. K. Chatterjee: Calcutta HC held that the law not
requiring reasoned decisions puts unreasonable restriction on the exercise of
fundamental rights. Clauses 9 and 13 of the West Bengal Rice Mills Control Order,
1949 which empowered the appropriate authority to refuse to issue licence or
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

84 Administrative Law

refuse to renew an already existing licence “without assigning any reason” were
held to be unreasonable restriction on the petitioner’s freedom of trade and
occupation under art. 19(1)(g) of the Constitution.

Kishan Chand Arora vs. Commissioner of Police: An order refusing to issue

licence to start an eating or entertainment house passed by the Commissioner of
Police without assigning any reason was upheld by the Supreme Court on the
ground that it was only an administrative order and not a quasi-judicial order.

The distinction between administrative functions and quasi-judicial functions has

become very narrow today and where there is issues of fundamental rights are
involved, it may be held that giving reasons is a constitutional requirement.

Reasons are a link between the order and the mind of the authority. ‘Procedural
fairness’ normally requires ‘Reasoned decisions’.

Maneka Gandhi vs. Union of India: It was held that any law which allows any
administrative authority to take a decision affecting the rights of the people
without assigning any reason cannot be accepted as laying down a procedure
which is fair, just and reasonable, and hence would be violative of arts. 14 and 21.

Reasoned decisions may also be implied in the principles of natural justice.

Sunil Batra vs. Delhi Administration: The Supreme Court read into sec. 56 of
the Prisons Act, 1894 an implied duty on the jail superintendent to give reasons
for putting fetters on a prisoner.

Implied Statutory Perspective

Courts have more or less consistently held that a statute which gives quasi-
judicial powers to an authority implies a duty to give reasoned decisions.

S. N. Mukherjee vs. Union of India: It was held that unless the requirement of
recording reasons in writing is dispensed with either expressly or by necessary
implication, a judicial or quasi judicial authority has to give reason for his
decisions.

Mahabir Prasad vs. State of UP: A quasi judicial order subject to appeal
necessarily implies duty to give reasoned decisions.

Bhagat Ram vs. State of Punjab: It was held that absence of appeal makes it
even more necessary to give reasons where severe penalty is imposed.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

4. Natural Justice 85

If the order of the lower authority is modified or reversed by the appellate

authority, there must be sufficient reasons to be recorded in writing.

Harinagar Sugar Mills Ltd. vs. Shyam Sundar.

Where one authority makes an order giving sufficient reasons and another
authority after examination of that order confirms it, that other authority need not
give any reasons.

M. P. Industries vs. Union of India: State Government’s speaking order was

confirmed by the Central Government without giving any reason. It was upheld by
the Supreme Court.

This decision was followed in a series of cases. However, in Bhagat Raja vs. UoI,
the Court held that even where the appellate authority concurs with the decision
of the lower authority, it has to give reasons. This decision is also followed in
several later cases.

In Divisional Forest Officer vs. Madhusudhan Rao, it was held that the
appellate authority, which concurs with the decision of the lower authority need
not give elaborate reasons. Brief remarks will be sufficient.

Reasons are to be recorded if the order affects public interest.

CIRCUMSTANCES RENDERING HEARING UNFAIR

Dictation

Mahadayal vs. CTO:

Financial Incapacity to Attend Enquiry

Ghanshyamdas Shrivastava vs. State of M. P.: Where the suspended employee

was not paid suspension allowance, it was held that that affected his capacity to
face the proceedings and hence resulted in violation of natural justice.

Mumtaz Hussain Ansari vs. State of U. P.:

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

86 Administrative Law

Decision Post Haste

City Coroner vs. P. A. to Collector and Additional D. M.: The petitioners made
an application to the District Magistrate for a licence under Places of Public
Resorts Act, 1888, for conducting skill games and dance. The licence was granted
on 10.10.1974. Applicant spent Rs. 27,000 for a temporary structure. On
21.1.1975, the District Magistrate issued a notice to the petitioners asking them to
show cause why the licence should not be withdrawn as the same was objected to
by the Superintendent of Police and two others. The notice was received by the
petitioners on 25.1.1975. They gave a reply to the notice on 27.1.1975. The licence
was revoked on 28.1.1975. It was held that the decision was taken hastily without
waiting for the reply. The same was set aside for failure of natural justice.

EXCEPTIONS TO NATURAL JUSTICE

1. EMERGENCY

Post Decisional Hearing

Maneka Gandhi vs. Union of India:

K. I. Shephard vs. Union of India:

H. L. Trehan vs. Union of India:

Swadeshi Cotton Mills vs. Union of India: Sec. 18-A and Sec.18-AA of the
Industries (Development and Regulation) Act

2. CONFIDENTIALITY

Malak Singh vs. State of Punjab:

S. P. Gupta vs. Union of India:

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

4. Natural Justice 87

3. MINISTERIAL FUNCTIONS

Academic Matters

J. N. U. vs. B. S. Narwal:

K. P. S. C. vs. B. M. Vijaya Shankar:

4. IMPRACTICABILITY

R. Radhakrishnan vs. Osmania University:

West Bengal Electricity vs. CESC Limited:

5. INTERIM PREVENTIVE ACTIONS

6. LEGISLATIVE FUNCTIONS

7. NO INFRINGEMENT OF RIGHTS

8. STATUTORY EXCEPTIONS AND NECESSITY

Charan Lal Sahu vs. Union of India: Bhopal Gas Disaster (Processing of Claim)
Act, 1985
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

88 Administrative Law

9. CONTRACTUAL MATTERS

10. POLICY MATTERS

11. WHERE HEARING IS A USELESS FORMALITY

To sum up

No Application Partial Exemption Complete Exemption

Legislative Action Emergency Academic Adjudication

Ministerial Function Confidentiality Impracticability

Termination of Contract Interim Preventive Action

No Infringement of Right Statutory Exemption

Necessity

Useless Formality

RIGHT OF THIRD PARTIES

General rule is that right to natural justice is available only to the parties to the
proceedings, because only their rights are in question. But in some rare
circumstances, rights of third persons may be affected by the decision in the case.
In such cases courts may insist that the third party whose rights may be affected
should also be heard.

Antonio S. C. Pareira vs. Ricardino Naronha: There was a dispute relating to

the title of a property and a suit in respect of the same was pending before a civil
court. One of the parties to the suit made an application under the Goa, Diu and
Daman Administration of Evacuee Properties Act, 1862 to the Custodian of
Evacuee Property for declaration that the property is non-evacuee and for its
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

4. Natural Justice 89

restoration. It was held that the other party to the suit in respect of the property
must also be heard, as his rights are also affected.

EFFECT OF VIOLATION OF NATURAL JUSTICE

Failure to comply with the principles of natural justice renders the decision or
order void.

Canara Bank vs. Debasis Das: It was held that the order is invalid and is liable
to be struck down. But the authority can hear the matter again and pass a fresh
order after complying with the principles of natural justice.

Principles of natural justice are to be followed in all cases as a matter of public

policy.

Kanwar Hari Bhushan Singh vs. Financial Commissioner, Simla: It was held
that the fact that the person could not have or had nothing to say in the matter is
not a ground for non-observation of natural justice.

S. L. Kapoor vs. Jagmohan: It was held that actual prejudice to the person
concerned is not the criterion for deciding whether the failure to comply with
principles of natural justice may be condoned.

In recent years the question as to whether failure to comply with natural justice
results in void order or voidable order has been much debated.

There is no doubt that such an order is void. In Sirsi Municipality vs. Ceceliakon
Francis Tellies it was held that violation of rules of natural justice in exercise of
quasi judicial statutory power results into a void decision. However, even a void
administrative action may have legal consequences, in that it will be in operation
till it is struck down by a Court.

In some cases the order in violation of natural justice is held to be voidable at the
option of the party for whose benefit the requirement of natural justice is made.

Krishenlal vs. State of J & K: It was held that if an order is passed in violation
of a mandatory provision, and if that provision is for the benefit of the party, the
party may waive its violation. If the party does not waive the violation, the order
becomes null and void.

But the debate is about whether an order which is quashed will be void from the
date of quashing or from the beginning itself.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

90 Administrative Law

Nawabkhan vs. Gujrat: The petitioner was served with an externment order
under sec. 59 of the Bombay Police Act, 1951 on 5 th September, 1967. he was
prosecuted for the contravention of the order.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

CHAPTER V

5. ADMINISTRATIVE FUNCTIONS

• Classification of Administrative Functions

• Discretionary Functions
• Judicial Review of Discretionary Functions
• At the Stage of Conferment
• At the Stage of Exercise
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

INTRODUCTION

In Ram Jawaya v. State of Punjab, the Supreme Court observed, “It may not be
possible to frame an exhaustive definition of what executive function means and
implies. Ordinarily the executive power connotes the residue of governmental
functions that remain after legislative and judicial functions are taken away."

Thus, administrative functions are those functions which are neither legislative
nor judicial in character. Generally, the following ingredients are present in
administrative functions:

1. An administrative order is generally based on governmental policy or

expediency.

2. In administrative decisions, there is no legal obligation to adopt a judicial

approach to the questions to be decided, and the decisions are usually
subjective rather than objective.

3. An administrative authority is not bound by the rules of evidence and

procedure unless the relevant statute specifically imposes such an
obligation.

4. An administrative authority can take a decision in exercise of a statutory

power or even in the absence of a statutory provision, provided such
decision or act does not contravene provision of any law.

5. Administrative functions may be delegated and sub-delegated unless there

is a specific bar or prohibition in the statute.

6. While taking a decision, an administrative authority may not only consider

the evidence adduced by the parties to the dispute, but may also use its
discretion.

7. An administrative authority is not always bound by the principles of natural

justice unless the statute casts such duty on the authority, either expressly
or by necessary implication or it is required to act judicially or fairly.

8. An administrative order may be held to be invalid on the ground of

unreasonableness.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

5. Administrative Functions 93

9. An administrative action will not become a quasi-judicial action merely

because it has to be performed after forming an opinion as to the existence
of any objective fact.

10.The prerogative writs of certiorari and prohibition are not always available
against administrative actions.

CLASSIFICATION OF ADMINISTRATIVE FUNCTIONS

As the administrative functions are numerous, they have to be classified as under

for better treatment:

Administrative functions are classified as:

1. Discretionary Functions; and

2. Ministerial Functions

JUDICIAL REVIEW OF DISCRETIONARY FUNCTIONS

DOCTRINE OF ULTRA VIRES

Executive power of the government is co-extensive with the legislative power of the
legislature. Hence doctrine of ultra vires may be applied to see

1. whether the executive action is within its competence

2. whether there is violation of fundamental rights

STAGES

Discretion is controlled at two stages:

1. At the Stage of Conferment of Powers

2. At the Stage of Exercise of Powers

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

94 Administrative Law

AT THE STAGE OF CONFERMENT OF POWERS

Constitution does not contemplate absolute and unguided discretion. There must
be sufficient guidelines for the exercise of the discretion.

Conferment of Discretion and Art. 14

Ram Krishna Dalmia vs. Justice Tendolkar: What is prohibited by art. A4 is

class legislation and not classification. The classification may be made by the
legislature itself or it may leave it to the executive by laying down strong policy
base and proper guidelines.

West Bengal vs. Anwar Ali Sarkar: The West Bengal Special Courts Act, 1950
provided for establishment of special courts to try cases or classes of cases or
offences or classes of offences for ensuring speedier trial. Sec. 5(1) of the Act
empowered the State Government to refer at its discretion any case to Special
Court. The provision was vague and no guidelines were provided to refer a case to
the special court. The executive authorities could arbitrarily refer any case to
special court. It was held the Act was ultra vires the constitution as violative of art.
14 insofar as the conferment of discretion was concerned.

Re the Special Courts Bill, 1978: Supreme Court upheld the validity of the
Special Courts Bill which provided for special court to deal with offences
committed by persons who were holding high posts during the period of emergency
in 1975, as they formed a separate class. The power given to government to refer
chosen cases to the special courts was also upheld as the discretion was backed
by the policy of the Act. But, the court held that abuse of power at the time of
emergency fell into a distinct class, and the abuse before emergency did not.

Satwant Singh vs. Assistant Passport Officer: The Passports Act, 1967
empowering the passport officer to grant or refuse a passport without specifying
any guidelines was held to be invalid.

State of Punjab vs. Khem Chand:

Differential Procedure

In some cases there are two alternative procedures provided in the statute – one
better than the other in some respects. Discretion is given to the authorities to
adopt either of them in their discretion, without providing for any guidelines. Till
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

5. Administrative Functions 95

1971 Courts consistently struck such provisions down holding them

discriminatory in nature.

But in Manohar Lal vs. State of Maharashtra, the Supreme Court suddenly turned
and held that the discretion being vested in senior authorities itself was a
sufficient safeguard against discrimination. In this case sec. 187-A of the Sea
Customs Act empowered the authorities to refer a case of smuggled goods to the
Magistrate or look into the matter themselves.

Monarch Infrastructure Pvt. Ltd. vs. Commissioner, Ulhasnagar Municipal

Corporation:

Conferment of Discretion and Fundamental Freedoms

1. Freedom of speech and expression

2. Freedom to assemble peacefully and without arms

3. Freedom to form associations or unions

4. Freedom to move freely throughout the territory of India

5. Freedom to reside and settle in any part of India

6. Freedom to practise any profession, or to carry on any occupation, trade or

business

Reasonable restrictions under art 19(2)-(6). A statutory provision which confers

upon an administrative authority unguided and unrestricted and unlimited
discretion in respect of interfering with these fundamental freedoms is deemed to
impose an unreasonable restriction on those freedoms. Therefore, such
conferment of powers will be in violation of art. 19 and hence unconstitutional.

Art 19(1)(a) Freedom of Speech and Expression

R. M. Sheshadri vs. DM, Tanjore: A requirement that at the beginning of a movie

show in theatres an approved film of such length and for such duration as the
government might direct was held to be unreasonable as there were no guidelines
or limits fixed.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

96 Administrative Law

Art 19(1)(c) Freedom to Form Associations or Unions

State of Madras vs. V. G. Row: The SC struck down a law authorising an

administrative authority to declare an association as unlawful on its subjective
satisfaction that the association was carrying on subversive activities. There were
no grounds for such satisfaction and no judicial review was provided.

Virendra vs.Punjab: A law empowering the government to restrict freedom of

press on the ground that such restrictions were necessary to combat any activity
prejudicial to the maintenance of communal harmony was held. The law here gave
right to the aggrieved party to approach courts.

Art 19(1)(d) Freedom to Move Freely Throughout the Territory of India

State of Bihar vs. K. K. Misra: Sec. 144(6) of Criminal Procedure Code, 1973
provides that the government may extend the period of detention order passed by
the Executive Magistrate beyond the period of two months if it considered it
necessary for preventing danger to human life, health and safety or for preventing
riot or affray. It was held that the power is so wide that there is every chance of its
misuse.

Art 19(1)(e) Freedom to Reside and Settle in Any Part of India

Ebrahim Vazir vs. State of Bombay: A statutory provision which authorised the
government to impose penalty of removal of any citizen from India on ‘reasonable
suspicion entertained by it that the person concerned had committed an offence
against the permit of law was invalid.

Art 19(1)(f) Freedom to Property

State of Maharashtra vs. Kamal Durgule: Powers conferred upon competent

authority to declare land as vacant and acquire it were found to be
unconstitutional.

Art 19(1)(g) Freedom of Trade and Occupation

Dwarka Prasad vs.UP: A rule requiring a person to take a licence to to stock, sell
or store for sale an essential commodity was upheld. But the provisions
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

5. Administrative Functions 97

empowering the licensing authority to exempt a person from the requirements was
unreasonable.

Harakchand vs. UOI: Gold Control Order which gave blanket power to the
authority to grant or refuse to grant licence to deal in gold was found to be
violative of art. 19(1)(g).

AT THE STAGE OF EXERCISE OF POWERS

Abuse of discretion means, either of the following two things:

1. Failure to exercise discretion, i.e., not using the discretion at all,

2. Wrong exercise of discretion

1. Failure to Exercise Discretion

This happens where the authority to whom discretion is given does not use the
discretion at all. This may happen in one or more of the following ways:

1. Acting mechanically

2. Abdication of discretion

3. Acting under dictation

4. Imposing fetters on discretion

5. Exercise at wrong time

6. Powers coupled with duty

1. Acting Mechanically

When an authority is invested with discretionary power, he has to use those

powers judiciously. Discretionary powers are given when no rules can be laid down
in advance and decisions are to be taken depending upon the facts and
circumstances of each individual case. But when the authority invested with
discretionary power oases orders without considering the facts of each case, he is
said to act mechanically. One of the examples of such actions is passing of orders
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

98 Administrative Law

which may be called cyclostyled orders. Here, the authority has a pre-determined
order which he passes in all case of that particular kind without regard to the
special circumstances of each case. This failure to exercise discretion amounts to
abuse of discretion.

Barium Chemicals vs. Company Law Board: The Central Government ordered
investigation into the affairs of the company. Under the Companies Act, 1956 the
Central Government may order investigation in the affairs of a company if “there
are circumstances suggesting fraud on the part of the management”. It was held
that the Central Government must record in the order, the circumstances which
were found necessitating the order of investigation. An order which does not
disclose such circumstances is invalid.

2. Abdication of Discretion

Where the authority on whom the discretionary power is conferred gives up that
power and allows its subordinate authority to exercise the power, either by way of
sub-delegation or otherwise, the exercise of the power by the subordinate is
invalid. The power is conferred upon the authority by the legislature as, in the
opinion of the legislature, that authority is competent to take proper decision in
the matter. The subordinate authority which has lesser experience and may have a
lesser qualification is not chosen by the legislature to exercise discretion in that
matter, and hence is not competent.

But in many cases there is no such reason why the particular authority only is
competent to exercise discretion. In such cases the legislature may choose any
authority to exercise that discretion, just because some authority must be vested
with the power. There is no intention that that particular authority alone should
exercise the discretion. In such cases the legislature, expressly or by implication,
permits sub-delegation. Sub-delegation of discretionary powers becomes valid only
in such cases.

Sahni Silk Mills vs. ESI Corporation: The discretion conferred by the statute
upon the Director General was sub-delegated by him to the Regional Directors.
There was no provision for sub-delegation in the statute. Hence the subp-
delegation was held to be invalid.

Sub-delegation of functions to be distinguished from taking assistance. Any

superior authority may take the assistance of its subordinates in discharging the
discretionary function. Exercising discretion and discharging discretionary
functions may be distinguished in such cases. The subordinate may assist the
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

5. Administrative Functions 99

authority in collection of the material necessary for taking the decision, but the
final decision may be taken only by the authority and not by the subordinate.

Pradyumna Kumar vs. Chief Justice, Calcutta High Court:

3. Acting Under Dictation

When the authority having the discretion passes an order under the dictation of
the higher authorities, it amounts to failure to exercise discretion. Power to use
discretion is given to a particular authority because he is in a better position to
exercise the discretion owing to his position in the hierarchy. A lower authority
normally cannot exercise that discretion because of the lack experience or
knowledge. While the higher authority, though having better experience or
knowledge may not be suitable to exercise the discretion because of the lack of
exposure to ground realities. Therefore, the law has chosen this particular
authority and given discretion to him, and he alone should exercise the discretion
and its exercise by any other authority including the higher authority may be
improper.

Purtabpore Company Limited vs. Cane Commissioner:

Commissioner of Police vs. Gordhandas Bhanji: The City of Bombay Police Act,
1902 empowered the Police Commissioner to grant licences to cinema halls. In
exercise of this power the Commissioner granted licence to a cinema hall. But
later, he cancelled that licence under the orders of the State Government. The
cancellation was held to be invalid.

Barium Chemicals vs. Company Law Board: The Central Government ordered
investigation into the affairs of the company. It was challenged on the ground that
the investigation might have been ordered as the minister was personally
interested in the company’s affairs. It was held that suspicion, however strong,
cannot take the place of proof.

Mansukhlal vs. State of Gujrat:

Dictation should be distinguished from advice.

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

100 Administrative Law

4. Imposing Fetters on Discretion

Here, the authority ties his own hands by making some rules. Making the rules for
exercise of discretion in itself may not be wrong or undesired. On the contrary, it
may make the exercise of discretion more uniform and impartial. Only where such
rule making takes away, the authority’s freedom to pass order in the individual
merits of case, it amounts to abdication of discretion and becomes abuse of
discretion.

Hari vs Commissioner of Police: In this case, the Commissioner of Police,

Bombay was given discretion to grant licences to victorias. The Commissioner of
Police prepared a proto-type of Victoria and kept it in his compound and declared
that to get a license, the Victoria must be exactly similar to that proto-type. This
was held to be abuse of discretion.

Gell vs. Tej Noora:

Keshavan Bhaskaran vs. State of Kerala: The DPI issued a notification that
Leaving Certificate will not be give to any person unless he has completed the age
of 15 years.

5. Exercise at Wrong Time

The discretion must be exercised by application of facts of the case as they stand
at the material time, i.e., when the discretion is to be exercised. If the discretion is
exercised, for example, prematuredly, it is no exercise of discretion at all, because
there cannot be application of mind to the relevant facts of the case.

The Grant-in-Aid Code provides that grant-in-aid can be made at the discretion of
the government. The Code requires that the school must be established by the
trust or society and successfully run for a period of five years before it becomes
eligible to apply for grant-in-aid. The promise of the government that a school if
established will be given grant-in-aid after five years was held to be invalid,
because the Code expects that the government shall exercise its discretion after
going into the record of the school during the first five years.

6. Powers Coupled with Duty

Statutes often use permissive language to confer powers on the authorities. For
example, the statute may use the words ‘may’, ‘it shall be lawful’ or ‘it may be
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

5. Administrative Functions 101

permissible’, etc. to confer powers. In such cases there is an option available to the
authority either to exercise or not to exercise the power. Where such power is
coupled with duty, the duty cannot be shirked or shelved, nor can it be evaded.

Haridas Narain vs. ITO: Sec. 35 of the Income-tax Act, 1922 empowered the ITO
to rectify a mistake in assessment either on application made by the assessee or
suo motu. It was held that the power cannot be read in isolation. It has to be read
with the other provisions which provide for the rules governing assessment.

2. Wrong Exercise of Discretion

There are various ways in which the authority upon which the discretion is
conferred uses it for a wrong manner or for a purpose. The following grounds come
under this head:

1. Irrelevant consideration

2. Leaving out relevant consideration

3. Mixed consideration

4. Colourable exercise

5. Use for collateral purpose

6. Mala fide exercise of power

7. Unreasonable exercise

8. Lack of jurisdiction to exercise

9. Exercise in excess of jurisdiction

10. Non-compliance of procedural requirements

11. Exercise in violation of natural justice

1. Irrelevant Consideration

The discretion should be used judiciously and by taking proper grounds into
consideration. If improper grounds are taken into consideration, the use of
discretionary powers will amount to abuse. (Brij Mohan vs State of Punjab)
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

102 Administrative Law

Berium Chemicals vs company Law Board: The Central Government is

empowered to order investigation of the affairs of the company on certain grounds
provided under sec. 237 of Companies Act. But the Government ordered
investigation on some other grounds which were irrelevant. It was held that the
order is illegal and void.

Ram Manohar Lohia vs. State of Bihar: The authority was empowered to detain
a person to prevent subversion of public order. The petitioner was detained with a
view to preventing him from acting in a manner prejudicial to the ‘maintenance of
law and order’. It was held that ‘law and order’ was a term much wider in scope
than ‘public order’. Therefore, the authority has to show that the detention is
necessary for the maintenance of ‘public order’ and not ‘law and order’.

2. Leaving Out Relevant Consideration

While exercising discretionary powers, the authority should take into

consideration all the relevant grounds. If the authority is ignoring any relevant
grounds, the decision may be wrong and therefore the exercise will amount to
abuse.

Ashadevi vs K. Shivraj: The petitioner made a confession under COFFEPOSA but

later retracted the confession. The petitioner was punished on the basis of the
confession without considering the fact that it was later detracted. The authorities
did not try to ascertain whether the petitioner’s confession was voluntary or
otherwise.

Rampur Distillary Company vs. Company Law Board: The Company Law
Board refused to give its approval for renewing the managing agency of the
company on the ground that Vivian Bose Committee had severely criticised the
dealings of the Managing Director, Mr. Dalmia. It was held that the order ought to
have been passed by taking into consideration the present conduct of the MD
rather than his past conduct only. It was observed that ‘having regard to’ cannot
be the same as ‘having regard only to’.

3. Mixed Consideration

In some cases the decision of the authority may be based on relevant as well as
irrelevant considerations. If the relevant ground alone is sufficient to sustain the
order, the order may be upheld even if an irrelevant factor is considered. If the
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

5. Administrative Functions 103

order cannot be sustained only on the relevant ground, and in order to support it
irrelevant ground is used, the order cannot be upheld.

State of Maharashtra vs. Babulal Takka More: Supersession of municipal

corporation.

Grounds provided for passing an order may be cumulative or alternative. If they

are cumulative, all of them have to be satisfied. If they are alternative, any one of
them may be enough to sustain the order.

Pyare Lal Sharma vs. J & K Industries Ltd.: The petitioner was dismissed on
two grounds, viz., unauthorized absence from duty and participation in active
politics. The show cause notice showed only one of these grounds, hence, that
ground only could be used to dismiss the employee in view of natural justice.

4. Colourable Exercise

The power which is given for some purpose may be used though ostensibly for the
same purpose, it is used to achieve some other purpose in reality, it amounts to
colourable exercise of power.

Discretion should be used for the purpose for which it has been given. If it is used
for some other purpose for which it has not been given, it amounts to abuse of
power.

In Hukam Chand vs Union of India, the Divisional Manager of Telephones was

given a discretion to disconnect phone in the event of emergency. He disconnected
the petitioner’s phone on the ground that it was being used for illegal purposes. It
was held that it amounts to abuse of power.

D. C. Wadhat vs. State of Bihar: The Governor promulgated a series of

ordinances without bringing the same before the legislature as it was known that
the law would not get legislative sanction.

5. Use for Collateral Purpose

Nalini Mohan vs. Ditrict Magistrate: Power was given to the authority to
rehabilitate persons displaced from Pakistan due to communal violence.
Rehabilitation to person visiting India on medical leave was held to be invalid.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

104 Administrative Law

Bangalore Medical Trust vs. Muddappa: Piece of land earmarked for residential
plot was allotted to medical trust for construction of a nursing home at the behest
of the Chief Minister. The order was sought to be justified on the ground that the
purpose served public interest. The order was struck down on the ground that it
was contrary to the statute.

6. Mala fide Exercise of Power

If the discretion is used with bad faith or with a dishonest intention or corrupt
motive, it amounts to abuse of discretionary powers.

In G. Sadanandan vs State of Kerala, a kerosene dealer was detained under the

Defense of India Rules. The petitioner pleaded that he was detained in order to
give undue advantage to the relative of the DySP who was in the same trade. It
was held that the detention was mala fide and illegal.

Malice may be either malice in fact or it may be malice in law.

Malice in Fact: Oblique motive.

Pratap Singh vs. State of Punjab: Petitioner was a civil surgeon. He proceeded
on leave preparatory to retirement. Subsequently the leave was revoked,
departmental enquiry was initiated against him and he was suspended.
Contention of the petitioner was that he had family relations with the Chief
Minister, and the Chief Minister wanted some favours from him, which he refused
as the same were unlawful. Hence, to take revenge against him he was subjected
to this harassment.

Rowjee vs. State of A. P.:

Malice in Law

Though there may not be any actual malice in deciding the case, from the way the
case is decided or the circumstances in which the decision was taken, it appears
as if there was malice. The burden of proof is on the petitioner to show those
conditions and the burden is very heavy.

Municipal Council of Sidney vs. Campbell: The Council was empowered to

acquire land for ‘carrying out improvements in or for remodelling any portion of
the city”. The land was acquired for making a highway.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

5. Administrative Functions 105

7. Unreasonable Exercise

The parent statue is deemed to require the authority to act reasonably. The courts
have also stated that the authority should consider the question fairly and
reasonably before taking action.

The term ‘unreasonable’ means more than one thing. It may embody a host
grounds mentioned already, as that the authority has acted on irrelevant or
extraneous consideration or for an improper purpose, or mala fide, etc. Viewed
thus, unreasonableness does not furnish an independent ground of judicial
control of administrative powers apart from the grounds already mentioned.

‘Unreasonableness’ may also mean that even thought the authority has acted
according to law in the sense that it has not acted on irrelevant grounds or
exercised power for an improper purpose, yet it has given more weight to some
factors than they deserved as compared with other factors. Interference on this
ground requires going into the relative importance of different factors and their
balancing which amounts to substituting the discretion of the judiciary for that of
the executive. Courts do not normally exercise such wide power to interfere in the
exercise of the administrative discretion.

At times, the law may require reasonable administrative behaviour, e.g.,

‘reasonable ground to believe’ by an authority to take action. In several cases the
courts have considered this statutory formula.

Firstly, “reasonable ground to believe” is a condition precedent to taking the

administrative action in question.

Sheo Nath v. Appellate Assistant Commissioner: the Supreme Court with

reference to the phrase used in the Income Tax Act for initiating reassessment
proceedings by the I.T.O. Said:

“The Income Tax Officer would be acting without jurisdiction if the reason
for his belief that the conditions are satisfied does not exist or is not
material or relevant to the belief required by the Section”.

If such a condition precedent is not satisfied so as to make out a prima facie case
the order will be quashed.

Secondly, there should be some basis on which reasonable belief is to be based.

The Supreme Court has held with reference to s. 147 (a) of the Income Tax Act,
1961 that ‘reason to believe’ requires that the belief is to be reasonable or ‘based
on reason which are relevant and material’.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

106 Administrative Law

There should be rational and intelligible nexus between the reasons and the belief,
though of course the court will not go into the adequacy or sufficiency of reasons.
It will depend upon the facts of each case whether there was rational and
intelligible nexus between reasons and belief. The reason to believe must related to
the time when the impugned action was taken; any subsequent acquisition of
belief in this regard would not be of any avail. The I.T.O. may act on direct or
circumstantial evidence but not on mere suspicion. If there is some relevant
evidence to support the ‘reasonable belief, the courts would not go into its
adequacy or the merits of the case.

Wednesbury Unreasonableness

Associated Provincial Picture Houses v Wednesbury Corporation: In 1947 a

cinema company, Associated Provincial Picture Houses, was granted a licence by
the Wednesbury Corporation, the local authority of the market town of
Wednesbury in Staffordshire, to operate a cinema on condition that no children
under 15 were admitted to the cinema on Sundays. Associated Provincial Picture
Houses sought a declaration that such a condition was unacceptable, and outside
the power of the Corporation to impose.

The court held that it could not intervene to overturn the decision of the defendant
simply because the court disagreed with it. To have the right to intervene, the
court would have to form the conclusion that:

1. The Wednesbury Corporation, in making that decision, took into account

factors that ought not to have been taken into account, or

2. The Corporation failed to take into account factors that ought to have been
taken into account, or

3. The decision was so unreasonable that no reasonable authority would ever

consider imposing it.

The court held that the condition did not fall into any of these categories.
Therefore, the claim failed and the decision of the Wednesbury Corporation was
upheld

The principle of reasonableness has become one of the most active and
conspicuous among the doctrines which have vitalized administrative law in recent
years. Although the principle itself is ancient, the cases in which it was invoked
were few and far between until 1968 Padfield vs. Minister of Agriculture, Fisheries
and Food opened a new era. Today, on the other hand, it appears in reported cases
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

5. Administrative Functions 107

almost every week, and in a substantial number of them it is invoked successfully.

Its contribution to administrative law on the substantive side is equal to that of
the principles of natural justice on the procedural side.

This doctrine is now so often in the mouths of judges and counsel that it has
acquired a nickname, taken from Associated Provincial Picture Houses Limited v.
Wednesbury Corporation, a case decided twenty years before Padfiel. The reports
now are freely sprinkled with the expression like ‘the Wednesbury principle’,
‘Wednesbury unreasonableness’, or ‘on Wednesbury grounds’. As Lord Scarman
explained:

‘Wednesbury principles’ is a convenient legal ‘shorthand used by lawyers to

refer to the classical review by Lord Greene MR in the Wednesbury case of
the circumstances in which the courts will intervene to quash a being illegal
the exercise of administrative discretion.

One of the grounds of review, he added, is ‘unreasonableness in the Wednesbury

sense’. In the same case Lord Bridge referred to the exercise of power
‘unreasonably in what, in current legal jargon, is called the “Wednesbury sense’.
‘Wednesbury is now a common and convenient label indicating the special review
of administrative disableness which has become the criterion for judicial review of
administrative discretion. It is explained in that context below, where the key
passage from the judgement of Lord Greene MR is set out in full.

In an important ex cathedra statement of the grounds for judicial review Lord

Diplock preferred the term ‘irrationality’, explaining it as ‘what can by now be
succinctly referred to as Wednesbury unreasonableness’. But it is questionable
whether ‘irrationality’ is a better word. Virtually all administrative decision are
rational in the sense that they are made for intelligible reasons, but the question
then is whether they measure up to the legal standard of reasonableness.
“Irrational” most naturally means ‘devoid of reasons’ whereas ‘unreasonable’
means ‘devoid of satisfactory reasons’.

The expression ‘arbitrary and capricious’ is sometimes used as a synonym for

‘unreasonable’, and in one case this has been transmuted into ‘frivolous or
vexatious’ and ‘capricious and vexatious’. But the meaning of all such expression
is necessarily the same, since the true question must always be whether the
statutory power has been abused.

Few of the rounds for holding exercise of discretion unreasonable are:

1. Partial or unequal operation between classes

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

108 Administrative Law

2. Manifestly unjust

3. Bad faith

4. Oppressiveness

5. Gross interference with the rights of the people that no justification can be
found in the mind of a reasonable man.

8. Lack of Jurisdiction to Exercise

State of Gujrat vs. Patel Raghav Nath:

9. Exercise in Excess of Jurisdiction

When the powers are given to an authority, they should be used within the
statutory limits. If the authority exceeds this limits it amounts to abuse of
discretion.

G.E.S. Corporation vs Worker’s Union: The authority had been given power to
reimburse, the medical claims of the employees, reimbursing medical claims of the
family meant for the employees was held to be in excess of the powers.

10. Non-compliance of Procedural Requirements

Not following the procedural requirements amounts to abuse of discretionary

powers, only where the procedural requirement is mandatory. If it is directory, not
following such procedure does not amount to abuse of discretion.

11. Exercise in Violation of Natural Justice

a) Rule against bias

b) Rule of fair-hearing
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

CHAPTER VI

6. QUASI JUDICIAL FUNCTIONS

• Need for Quasi Judicial Functions

• Structure & Procedure of Quasi Judicial Bodies
• Judicial Review of Quasi Judicial Functions
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

INTRODUCTION

Often powers are given to the administrative authorities to decide the rights and
liabilities of individuals, as if they are courts. But in discharge of these powers, the
concerned authorities are not acting in judicial capacity but they are acting in
administrative capacity. Hence they are called quasi judicial authorities.

The word ‘quasi’ means ‘not exactly.’ Generally, an authority is described as

‘quasi-judicial’ when it has some of the attributes or trappings of judicial
functions, but not all.

It is often very difficult to distinguish between administrative and quasi-judicial

functions, because both the functions involve determination of rights of
individuals. Therefore, it is important to note certain important characteristics of
quasi-judicial functions.

CHARACTERISTICS OF QUASI-JUDICIAL FUNCTIONS

1. LIS INTER PARTES

As the name implies, a quasi-judicial function is one which resembles judicial

function. Hence, in a quasi-judicial function, there is a dispute between two
persons.

In Shankarlal vs Shankarlal where a High Court judge confirmed an auction sale

by a company during the winding up proceedings, it was held that the
confirmation process involved settlement of dispute between the auction
purchaser and the creditors of the company, and therefore, was a quasi-judicial
function.

2. PROVISION FOR ADMINISTRATIVE APPEAL

The provision of appeal

Appellate authorities
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

6. Quasi Judicial Functions 111

Nagendra Nath Bora vs. Commissioner, Hills Division: It was held that the
function of the appellate authorities under the Eastern Bengal and Assam Act,
which regulated the sale of country spirit by licences, was quasi-judicial.

Shivji Nathubhai vs. India: It was held that the Central Government in reviewing
orders of the State Government had to act quasi-judicially.

An appeal against administrative order is administrative

India vs. Jesus Sales Corporation: An appeal under the third proviso to sec.
4M(1) of the Imports and Exports Control Act, 1947 – Administrative.

3. POWERS OF COURT

State of Maharashtra vs. Marwanjee F. Desai: Where an authority is invested

with the powers of the court, it is presumed that he is required to act quasi-
judicially.

Manish Dixit vs. State of Rajasthan: Tahsildar conducted the identification test
of jewellery recovered in a case of abduction.

4. ADVERSE CIVIL CONSEQUENCES

5. DUTY TO ACT JUDICIALLY

Shivji Nathubhai vs. India: The Mineral Concession Rules, 1949 framed under
the Mines and Minerals (Regulation and Development) Act, 1948, provided that
anyone aggrieved by the decision of the State Government refusing to grant a
mining lease may apply to the Central Government to review the order of the State
Government. The Act required the Central Government to decide the matter before
it in such a manner as it deemed ‘just and proper’. It was held that the words ‘just
and proper’ imposed a duty to act judicially upon the Central Government.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

112 Administrative Law

DISTINCTION BETWEEN ADMINISTRATIVE AND QUASI-

JUDICIAL FUNCTIONS

GENERAL

Acts of an administrative authority may be purely administrative or may be

legislative or judicial in nature. Decisions which are purely administrative stand
on a wholly different footing from judicial as well as quasi-judicial decisions and
they must be distinguished. This is a very difficult task. “Where does the
administrative end and the judicial begin? The problem here is one of demarcation
and the courts are still in the process of working it out.”

OBJECT

With the increase of power of administrative authorities, it may be necessary to

provide guidelines for the just exercise thereof. To prevent abuse of power and to
see that it does not become a ‘new despotism,’ courts have evolved certain
principles to be observed by adjudicating authorities.

LIS
To appreciate the distinction between administrative and quasi-judicial functions,
we have to understand two expressions

1. ‘lis’, and

2. ‘quasi-lis’

One of the major grounds on which a function can be called ‘quasi-judicial’ as

distinguished from pure ‘administrative’ is when there is a lis inter partes and an
administrative authority is required to decide the dispute between the parties and
to adjudicate upon the lis. Prima facie, in such cases the authority will regarded as
acting in a quasi-judicial manner.

Certain administrative authorities have been held to be quasi-judicial authorities

and their decisions regarded as quasi-judicial decisions, wherein such lis was
present, e.g. a Rent Tribunal determining ‘fair rent’ between a landlord and tenant,
an Election Tribunal deciding an election dispute between rival candidates, an
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

6. Quasi Judicial Functions 113

Industrial Tribunal deciding an industrial dispute, a Licensing Tribunal granting a

licence or permit to one of the applicants.

Quasi-lis

But it is not in all cases that the administrative authority is to decide a lis inter
partes. There may be cases in which an administrative authority decides a lis not
between two or more contesting parties but between itself and another party. But
there also, if the authority is empowered to take any decision which will
prejudicially affect any person, such decision would be a quasi-judicial decision
provided the authority is required to act judicially.

Thus, where an authority makes an order granting legal aid, dismissing an

employee, refusing to grant, revoking, suspending or cancelling a licence,
cancelling an examination result of a student for using unfair means, rusticating
of a pupil, etc. such decisions are quasi-judicial in character.

In all these cases there are no two parties before the administrative authority, ‘and
the other party to the dispute, if any, is the authority’ itself. Yet, as the decision
given by such authority adversely affects the rights of a person there is a situation
resembling a lis. In such cases, the administrative authority has to decide the
matter objectively after taking into account the objections of the pit before it, and if
such authority exceeds or abuses its powers, a writ of certiorari can be issued
against it. Therefore, Lord Greene, M.R. rightly calls it a ‘quasi-lis.’

DUTY TO ACT JUDICIALLY

The real test which distinguishes a quasi-judicial act from an administrative act is
the duty to act judicially, and therefore, in considering whether a particular
statutory authority is a quasi-judicial body or merely an administrative body, what
has to be ascertained is whether the statutory authority has the duty to act
judicially.

The question which may arise for our consideration is as to when this duty to act
judicially arises. As observed by Parker, J. “the duty to act judicially may arise in
widely different circumstances which it would be impossible, and indeed,
inadvisable, to attempt to define exhaustively.”

Whenever there is an express provision in the statute itself which requires the
administrative authority to act judicially, the action of such authority would
necessarily be a quasi-judicial function. But this proposition does not say much,
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

114 Administrative Law

for it is to some extent a tautology to say that the function is quasi-judicial (or
judicial) if it is to be done judicially.

Generally, statutes do not expressly provide for the duty to act judicially and,
therefore, even in the absence of express provisions in the statutes the duty to act
judicially should be inferred from ‘the cumulative effect of the nature of the rights
affected, the manner of the disposal provided, the objective criterion to be adopted,
the phraseology used, the nature of the power conferred, of the duty imposed on
the authority and the other indicia afforded by the statute.

DUTY TO ACT FAIRLY

Since ‘fairness in action’ is required from Government and all its agencies, the
recent trend is from ‘duty to act judicially’ to ‘duty to act fairly.’ ‘Duty to act fairly’
is indeed a broader notion and can be applied even in those cases where there is
no lis. It is this concept (‘duty to act fairly’), which has given rise to certain new
doctrines, e.g. ‘fair play in action’, legitimate expectations, proportionality etc.

CASES

Province of Bombay v. Khushaldas S. Advani was the first leading Indian

decision on the point. Under Section 3 of the Bombay Land Requisition Ordinance,
1947, the Provincial Government was empowered to requisition any land for any
public purpose “if in the opinion of the Government” it was necessary or expedient
to do so. It was contended that the Government while deciding whether requisition
was for a public purpose, had to act judicially. The High Court of Bombay upheld
the said contention. Reversing the decision of the High Court, the Supreme Court
held by a majority that the governmental function of requisitioning property was
not quasi-judicial, for the decision was based on the subjective satisfaction of the
Government and it was not required to act judicially.

Similarly, in R. v. Metropolitan Police Commr., ex p. Parker, a cab driver’s

licence was revoked on the ground of alleged misconduct without giving
reasonable opportunity to him to rebut the allegations made against him. The
court upheld the order on the ground that the licence was merely a permission
which could be revoked at any time by the grantor, and in doing so he was not
required to act judicially.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

6. Quasi Judicial Functions 115

TEST

No ‘cut and dried’ formula to distinguish quasi-judicial functions from

administrative functions can be laid down. The dividing line between the two
powers is quite thin and being gradually obliterated. For determining whether a
power is an administrative power or a quasi-judicial power, one has to look to the
nature of the power conferred, the person or persons on whom it is conferred, the
framework of the law conferring that power, the consequences ensuing from the
exercise of that power and the manner in which that power is expected to be
exercised.

The requirement of acting judicially in essence is nothing but a requirement to act

justly and fairly and not arbitrarily or capriciously. The procedures which are
considered inherent in the exercise of quasi-judicial power are merely those which
facilitate if not ensure a just and fair decision. In recent years, the concept of
quasi-judicial power has been undergoing a radical change. What was considered
as an administrative power some years back is now being considered as a quasi-
judicial power.

Whether a particular function is administrative or quasi-judicial must be

determined in each case on an examination of the relevant statute and the rules
framed thereunder and the decision depends upon the facts and circumstances of
the case.

At one time prerogative remedies of certiorari and prohibition were confined to

‘judicial’ functions pure and simple of public bodies. They both are now available
in relation to functions which may be regarded as ‘administrative’ or even
‘legislative.’ As it is said, it is not the label that determines the exercise of
jurisdiction of the court but the quality and attributes of the decision. “On the
whole the test of justiciability has replaced that of classification of function as a
determinant of the appropriateness of a decision for judicial review.”

JUDICIAL FUNCTIONS AND QUASI JUDICIAL FUNCTIONS

JUDICIAL FUNCTIONS

According to the Committee on Ministers’ Powers, a pure judicial function

presupposes an existing dispute between two or more parties and it involves four
requisites:
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

116 Administrative Law

1. The presentation (not necessarily oral) of their case by the parties to the
dispute;

2. If the dispute is a question of fact, the ascertainment of fact by means of

evidence adduced by the parties to the dispute and often with the assistance
of argument by or on behalf of the parties, on evidence;

3. If the dispute between them is a question of law, the submission of legal

argument by the parties; and

4. A decision which disposes of the whole matter by finding upon the facts in
dispute and ‘an application of the law of the land to the facts found,
including, where required, a ruling upon any disputed question of law.’

Thus, these elements are present, the decision is a judicial decision even though it
might have been made by any authority other than a court, e.g. by Minister,
Board, Executive Authority, Administrative Officer or Administrative Tribunal.

QUASI – JUDICIAL FUNCTIONS

The word ‘quasi’ means ‘not exactly.’ Generally, an authority is described as

‘quasi-judicial’ when it has some of the attributes or trappings of judicial
functions, but not all.

According to the Committee, a quasi-judicial decision equally presupposes an

existing dispute between two or more parties and involves (1) and (2) above but
does not necessarily involve (3) and never involves (4). The place of (4) is, in fact,
taken by administrative action, the character of which is determined the Minister's
choice.

For instance, suppose a statute empowers a Minister to take action if certain facts
are proved, and in that event gives him an absolute discretion whether or not to
take action. In such a case, he must consider the representations of parties and
ascertain the facts – to that extent the decision contains a judicial element. But,
the facts once ascertained, his decision does not depend on any legal or statutory
direction, for ex hypothesi he is left free within the statutory boundaries to take
such administrative action as he may think fit: that is to say that the matter is not
finally disposed of by the process of (4).

This test has, however, been subject to criticism by jurists. It does not give a
complete and true picture. It is based on a wrong hypothesis. The Committee
characterized the judicial function as being devoid of any discretionary power but
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

6. Quasi Judicial Functions 117

obliged to merely apply the law to the proved facts. In reality, it is not so. The
courts of law also exercise discretion. It may be more persuasive in administrative
actions than in judicial functions but the difference is of degree only. A quasi-
judicial function stands mid-way between a judicial function and an
administrative function. A quasi-judicial decision is nearer the administrative
decision in terms of its discretionary element and nearer the judicial decision in
terms of procedure and objectivity of its end-product.

It is also not true that in all quasi-judicial decisions, two characteristics are
common

1. presentation of their case by the parties; and

2. the decision on questions of fact by means of evidence adduced by the

parties.

Firstly, in many cases, the first characteristic is absent and the authority may
decide a matter not between two or more contesting parties but between itself and
another party, e.g. an authority effecting compulsory acquisition of land. Here the
authority itself is one of the parties and yet it decides the matter. It does not
represent its case to any court or authority.

Secondly, there may be cases in which no evidence is required to be taken and yet
the authority has to determine the questions of fact after hearing the parties, e.g.
rate-making or price-fixing.

Thirdly, after ascertainment of facts, unlike a regular court, an authority is not

bound to apply the law to the facts so ascertained, and the decision can be arrived
at according to considerations of public policy or administrative discretion, which
factors are unknown to an ordinary court of law.

DISTINCTION BETWEEN JUDICIAL AND QUASI-JUDICIAL

FUNCTIONS

A quasi-judicial function differs from a purely judicial function in the following

respects

1. A quasi-judicial authority has some of the trappings of a court, but not all of
them; nevertheless there is an obligation to act judicially.

2. A lis inter partes is an essential characteristic of a judicial function, but this

may not be true of a quasi-judicial function.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

118 Administrative Law

3. A court is bound by the rules of evidence and procedure while a quasi-

judicial authority is not.

4. While a court is bound by precedents, a quasi-judicial authority is not.

5. A court cannot be a judge in its own cause (except in contempt cases), while
an administrative authority vested with quasi-judicial powers may be a
party to the controversy but can still decide it.

The distinction between judicial and quasi-judicial functions rests mainly on the
fact that in deciding cases, courts apply pre-existing law whereas administrative
authorities exercise discretion. This is, however, fallacious. ‘The most that can be
said is that the discretions of the courts may differ in nature and extent from the
discretions of the administrator. Nevertheless, the asserted discretion is reduced
to one of degree only.’

NEED FOR QUASI JUDICIAL FUNCTIONS

In USA people have confidence in quasi-judicial bodies, which confidence is not

found in England and India, where the people have more confidence in judiciary,
and very less confidence in administrative authorities. But still there are
compelling reasons for the establishment and growth of quasi-judicial bodies in
India.

1. BURDEN ON COURTS RESULTING IN DELAY

Mahabir Jute Mills vs. Shibban Lal Saxena: A case involving wrongful
dismissal of employees was decided by the Supreme Court 40 years after its
institution. By that time most of the employees had died.

2. SPECIALISATION

3. INFORMALITY
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

6. Quasi Judicial Functions 119

4. INEXPENSIVE

5. PREVENTIVE RATHER THAN REMEDIAL

6. POLICY MAY BE APPLIED (FUNCTIONAL APPROACH)

7. GENERAL RATHER THAN SPECIAL TREATMENT TO CASES

ADVANTAGES OF QUASI-JUDICIAL DECISION-MAKING

1. SOCIALISATION OF LAW

2. INFORMAL, INEXPENSIVE AND QUICK REMEDY

3. PREVENTIVE ACTION, RATHER THAN CURATIVE

4. FUNCTIONAL APPROACH
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

120 Administrative Law

5. EXPERIENCE

PROBLEMS RELATED TO QUASI-JUDICIAL FUNCTIONS

1. NUMBER AND COMPLEXITY

2. VARIETIES OF PROCEDURES

3. UNSYSTEMATIC SYSTEM OF APPEALS

4. INVISIBILITY OF DECISIONS

5. UNPREDICTABILITY OF DECISIONS

6. ANONYMITY OF DECISIONS

7. COMBINATION OF FUNCTIONS
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

6. Quasi Judicial Functions 121

8. ‘NO EVIDENCE’ RULE

9. OFFICIAL PERSPECTIVE

10. OFFICIAL BIAS

11. PLEA BARGAINING

12. POLITICAL INTERFERENCE

13. OFF THE RECORD CONSULTATION

14. REASONED DECISION

15. LEGAL REPRESENTATION

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

122 Administrative Law

ENQUIRY AGAINST QUASI-JUDICIAL AUTHORITIES

General rule is that like judiciary, quasi-judicial authorities must be independent.

There should not be any interference in their working. Therefore, no directions can
be issued to quasi-judicial authorities. So also, no enquiries can be initiated
against them. This is necessary for discharge of duties by quasi-judicial
authorities without any fear or favour.

But in some cases, there may be such irregularities in discharge of functions by

the quasi-judicial authorities that enquiry becomes utmost necessary.

Union of India vs. K. K. Dhawan: The ITO decided a case post haste. It was held
that an enquiry in the reasons for deciding the case post haste is not invalid. The
court laid down the circumstances in which enquiry may be held against quasi-
judicial authorities.

1. The officer has acted in a manner as would reflect on his reputation for
integrity or good faith or devotion for duty.

2. There is a prima facie case to show recklessness or misconduct in discharge of

duties.

3. Acting in a manner unbecoming of a government servant.

4. Acting negligently and omitting prescribed conditions necessary for discharge of

official duties.

5. Undue favour to a party.

6. Actuated by corrupt motives, however small the bribe may be.

ADMINISTRATIVE TRIBUNALS

CONSTITUTIONAL VALIDITY OF ADMINISTRATIVE TRIBUNALS

ACT, 1985

S. P. Sampath vs. UoI

L. Chandra Kumar vs. UoI: arts. Art. 323-A(2)(d) and art.323-B(3(d) were held to
be unconstitutional to the extent they exclude the jurisdictions of HCs and SC
under arts. 226, 227 and 32 of the Constitution. For the same reason sec. 28 of
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

6. Quasi Judicial Functions 123

the Administrative Tribunals Act, 1985 containing the exclusion of jurisdiction

clause were set aside as unconstitutional.

State of T. N. vs. S. Thangavel: It was held that the members of tribunal are not
judges and their order is not a judgement within the meaning of sec. 2(9) of CPC.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

CHAPTER VII

7. STATE LIABILITY

• Liability of State under Constitution

• Government Contracts
• Liability in Contracts
• Liability in Torts
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

LIABILITY OF STATE UNDER CONSTITUTION

Art.s 298, 299 and 300

CONTRACTUAL LIABILITY

Art. 298, 299, 300 of the constitution deal with the state contracts. 298 enable the
government to enter into contract for the purpose of carrying out the function of
the State. Art. 299, gives the essential formalities, which the government must
fulfill while entering into contract. Art. 300 deals with the enforcement of the State
liability.

These articles are not the complete law in respect of the state contracts. In
addition to these provisions, the Indian Contract Act, 1872 is also applicable.
Therefore, government contracts must also fulfil section 10 of the Contract Act,
which deals with the essential requirements of a valid contract. Sec. 25 deals with
consideration and secs. 73, 74 and 75 deal with the determination of the quantum
of damages are also applicable. But some of the provision such as the provision
relating to capacity on the ground of age and mind are not applicable to the
government.

Art. 300 points out that the liability of the Union of India and States will be the
same as that of the dominion of India and the provinces under the Government of
India Act, 1935. The Act of 1935 provides that the liability of the dominion of India
and Provinces will be same as the position mentioned under the government of
India (GOI) Act, 1915. The GOI Act, makes a similar reference, to the GOI Act,
1858. Under the GOI Act 1858, the liability of then GOI is the same as that of the
East India Company.

The crown in England enjoyed immunity being sovereign, but, the East India
Company which was essentially a commercial concern was not entitled to the
sovereign immunity. In Bank of Bengal vs United Company, the Supreme Court of
Bengal held that the company had no sovereign character, and could not escape
liability under the promissory notes. But in Narendra Chandra vs Union of India,
the court held that auction of Ganja license, being a method of collection of tax,
was a sovereign function and therefore, the highest bidder could not succeed in a
suit for specific performance of the contract. The company was alone to enjoy this
sovereign immunity. However, this proposition of immunity arising out of
sovereignty was not followed by the courts in India in subsequent cases.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

126 Administrative Law

However, the Government cannot be equated with an industrial concern because it

has got some special responsibilities. Moreover, if an individual suffers loss. tt will
be his personal loss. But if the government suffers loss, it will affect the public and
therefore, some privileges and safeguards are necessary not in the interest of the
government but in the interest of the public. Art. 299 mentions three important
and mandatory formalities which should be fulfilled by the government while
entering into the contract.

It has been held that these constitutional provisions are inserted not merely for
the sake of formality but to protect the government from unauthorized contracts.
Though the word expressed in the contract might suggest that the government
contract must be in some particular form, the Supreme Court has held that formal
document need not be executed.

1. The contract must be expressed to be made by the President /Governor as

the cases may be.

2. The contract must be executed on behalf of the President or the Governor as

the case may be.

3. The contract must be executed by a person authorized by the President or

Governor as the case may be.

EXPRESSED TO BE MADE BY THE PRESIDENT/GOVERNOR

Karamshi vs. State of Bombay: The apellant entered into a contract with the
minister of PWD for the irrigation of his landholdings. The contract was repudiated
on the ground that it was not expressed to be made by the Governor. The suit filed
by him was dismissed on the ground that it did not meet the mandatory
requirements of art. 299.

However, the expressioin may be in any form.

A. L. Ralia Ram vs Union of India: The Chief Director of Purchase (Disposals) of

the Food Department of the GOI, invited tenders for the purchase of American
Cigarettes. The tender of the party included an arbitration clause. It was argued by
the government that this arbitration agreement was not properly executed. But the
Supreme Court brushed the contention aside and upheld the arbitration
agreement because it had complied with all the requirements of Art. 299 though it
was not in any particular form.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

7. State Liability 127

However, if any other law, which is applicable to the government, requires that the
agreement must be in a particular form, then the agreement would not be valid
unless it is in that particular form.

State of Madras vs. R.Ranganathan Chettiar: The High Court held that in view
of the mandatory requirement that the contract must be in the form a formal deed,
the contract was inchoate and hence not enforceable.

A contrary view was taken by the Patna High Court in Chandra Bhan vs. State
of Bihar.

EXECUTED ON BEHALF OF THE PRESIDENT/GOVERNOR

It is required that the competent authority must execute the contract on behalf of
the President of India or the governor as the case may be and if it is not so
mentioned, the contract will be invalid because it is also a mandatory condition. In
order to mitigate the harshness of this ruling the Supreme Court held that if a
competent authority has signed the contract in its official capacity, it will be
sufficient compliance with the requirements if Art. 299.

Davecos Garment Factory vs. State of Rajasthan: The contract for the supply
of police uniforms was signed by the Inspector General of Police who did not
mention that he was signing on behalf of the Governor.

BY PERSON AUTHORIZED THE PRESIDENT/GOVERNOR

The contract must be signed by an authorized person is the most important

condition of this rule. However, Art. 299 does not provide for any specific mode of
authorization. Therefore, the usual procedure of notification in the official gazette
for this purpose.

State of Bihar vs Karamchand Thaper & Brothers Ltd: To avoid the hardships
which this requirement may entail, Supreme Court held that in the absence of any
specific authorization, implied authorization may be considered as substantial
complaisance with this requirement. In this case, the respondent company,
entered into certain construction contract with the government of Bihar. After the
completion of the contract a dispute arose and the matter was refereed to
arbitration by an agreement between the parties. The matter was decided in favour
of the party who filed an arbitration suit for converting the award into decree. This
suit was countered by the government on the ground the arbitration agreement
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

128 Administrative Law

was not executed by the secretary for PWD who was the only authorized person.
The company contended that the executive engineer who signed on the agreement
was an authorized person because he was authorized by the secretary to sign the
agreement. The whole procedure of correspondence and negotiation showed that
in every state, the executive Engineer had contacted the secretary and sought
instructions from him. Therefore the court held that the executive engineer was
impliedly authorized to sign the agreement and it was a valid agreement. In Union
of India vs. N. K. Private Ltd. it was held that in the absence of evidence from
which the authority can be implied, the contract becomes unenforceable.

If the agreement does not fulfil the requirement of Art. 299, the question of
ratification arises. The Supreme Court had held that in such a case, the
government cannot ratify the agreement. Then the next question is whether the
party can claim the benefit of sec. 70, 230, (iii) or 235 of the Contract Act. Sec. 70
does not pose much problem.

New Marine Construction Company vs Government of India: The Supreme

Court held that the government must compensate for the coal, which was supplied
to it and consumed by it even though the agreement did not fulfil the requirement
of Art. 299. Thus whether the government has obtained the benefit, it has to pay
for it. But the complication arises when the government does not get the benefit
under the contract.

State of U.P. vs Murarilal & Brothers: An officer was not authorized by the
government entered into a contract with the respondent for a space in the cold
storage facility for potatoes, which the government was expecting to get. The
respondents reserved the space in the cold storage unit. But the department did
not get the potatoes. It was held that, as the contract did not fulfil the
requirements of Art. 299, it was not enforceable because he government did not
derive any benefit under the contract. Sec. 70 did not apply. Secs. 230 & 235
presuppose a valid contract and therefore, these sections are also not applicable to
a case where the contract is invalid because of non-compliance with section 299.

TORTUOUS LIABILITY

The law of early England the King enjoyed complete sovereign immunity and was
not liable for any wrongs. This rule was based on several grounds such as,

• Application of the maxim Rex non potest peccare (King can do no wrong).
• King legislates for the subjects not for himself.
• King cannot be tried by his own courts.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

7. State Liability 129

In 1964, the Crown Proceedings Act changed the law in England on this point and
now the King can be sued in the Courts of England.

State liability in India is defined by the art. 300(1) of the Constitution in a very
peculiar way. It provides that the liability of the Union of India and the states is
the same as the liability of Government of India u/s 176 of the Government of
India Act, 1935. Sec. 176 of the Government of India Act, 1935 refers back to
Sec. 32 of the Government of India Act, 1915, which in turn refers to sec. 65 of the
Government of India Act, 1858. Sec. 65 the Act of 1858 in turn provides that the
Government of India and Government of each State are liable in the same was as
the East India Company. For knowing the liability of the Government of India,
often the Peninsular & Oriental Steam Navigation Co. vs. Secretary of State for India
Case is referred.

PRE CONSTITUTIONAL DECISIONS

Peninsular & Oriental Steam Navigation Co. vs. Secretary of State for India:
A servant of the plaintiff-company was proceeding on a highway in Calcutta,
driving a carriage which was drawn by a pair of horses belonging to the plaintiff.
He met with an accident, caused by negligence of the servants of the Government.
For the loss caused by the accident, the plaintiff claimed damages against the
Secretary of State for India. The Supreme Court observed that the doctrine that
the ‘King can do no wrong’, was not applicable to the East India Company. The
company would have been liable in such cases and the Secretary of State was
thereafter also liable.

Though it was not necessary, Sir Barness Peacock, CJ made a distinction between
sovereign and non-sovereign functions it was held that if a tort were committed by
a public servant in the discharge of sovereign functions, no action would lie
against the Government – e.g. if the tort was committed while carrying on
hostilities or seizing enemy property as prize.

The aforesaid judgement laid down that the East India Company had a two fold
character:

(a) As a sovereign power and

(b) As a trading company.

and held that as in the present case the act was a non-sovereign act, the company
was liable.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

130 Administrative Law

This caused some courts to hold that the government is not liable if the act is done
while discharging sovereign function, while some courts held that the government
cannot escape liability even if the act was done while discharging sovereign
function.

Nobin Chander Dey vs. Secretary of State: The plaintiff in this case contended
that the Government had made a contract with him for the issue of a licence for
the sale of ganja and had committed breach of the contract. Calcutta High Court
held that upon the evidence, no breach of contract had been proved. Secondly
even if there was a contract, the act had been done in exercise of sovereign power
and was thus not actionable.

Secretary of State vs. Hari Bhanji: In this case, the Madras High Court held
that State immunity was confined to acts of State. In the P & O Case, the ruling
did not go beyond acts of State, while giving illustrations of situations where the
immunity was available.
This is the correct provision and it was followed and confirmed in Salman vs
Secretary of State for India in Council. The Law Commission of India also accepted
it as correct.

It was defined that Acts of State, are acts done in the exercise of sovereign power,
where the act complained of is professedly done under the sanction of municipal
law, and in exercise of powers conferred by law. The mere fact that it is done by
the sovereign powers and is not an act which could possibly be done by a private
individual does not oust the jurisdiction of the civil court.

POST CONSTITUTIONAL DECISIONS

State of Rajasthan v. Mst. Vidyawati: The claim for damages was made by the
dependants of a person who died in an accident caused by the negligence of the
driver of a jeep maintained by the Government for official use of the Collector of
Udaipur while it was being brought back from the workshop after repairs. The
Rajasthan High Court took the view-that the State was liable, for the State is in no
better position in so far as it supplies cars and keeps drivers for its Civil Service.
In the said case the Hon’ble Supreme Court has held as under:

“Act done in the course of employment but not in connection with sovereign
powers of the State, State like any other employer is vicariously liable.”
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

7. State Liability 131

State of Bihar vs. Abdul Majid: Right of a government servant to recover arrears
of his salary from the government by instituting a suit was upheld. The Court
observed:

“When the rule of immunity in favour of the Crown, based on Common Law in
the United Kingdom, has disappeared from the land of its birth, there is no
legal warrant for holding that it has any validity in this country, particularly
after the Constitution.”

Thus, in several cases the government was denied immunity claimed by it on the
ground of sovereign function, but in Kasturilal’s case again the sovereign
immunity was applied.

Kasturi Lal Ralia Ram vs. State of UP: Partner of Kasturilal Ralia Ram Jain, a
firm of jewellers of Amritsar, had gone to Meerut for selling gold and silver, but
was taken into custody by the police of the suspicion of possessing stolen
property. He was released the next day, but the property which was recovered
from his possession could not be returned to him in its entirety inasmuch as the
silver was returned but the gold could not be returned as the Head Constable in
charge of the Malkhana misappropriated it and fled to Pakistan. The firm filed a
suit against the State of U. P. for the return of the ornaments and in the
alternative for compensation. It was held by the Apex Court that the claim against
the state could not be sustained despite the fact that the negligent act was
committed by the employees during the course of their employment because the
employment was of a category which could claim the special characteristic of a
sovereign power. The court held that the tortious act of the police officers was
committed by them in discharge of sovereign powers and the state was therefore
not liable for the damages caused to the appellant.

However, after this again the courts have given relief to the citizens against state
in several cases.

Satyawati v. Union of India: An Air Force vehicle was carrying hockey team of
Indian Air Force Station to play a match. After the match was over, the driver was
going to park the vehicle when he caused the fatal accident by his negligence. It
was argued that it was one of the functions of the Union of lndia to keep the army
in proper shape and tune and that hockey team was carried by the vehicle for the
physical exercise of the Air Force personnel and therefore the Government was not
liable. The Court rejected this argument and held that the carrying of hockey team
to play a match could by no process of extension be termed as exercise of
sovereign power and the Union of lndia was therefore liable for damages caused to
the plaintiff.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

132 Administrative Law

Union of India v. Smt. Jasso: A military driver while transporting coal to general
head-quarters in Simla in discharge of his duties committed an accident. It was
held that the mere fact that the truck happened to be an army truck and the
driver was a military employee cannot make any difference to the liability of the
Government for damages for the tortious acts of the driver as such things could be
obviously done by a private person also.

Union of India v. Sugrabai: The Bombay High Court overruled the plea of
sovereign immunity when a military driver driving a motor truck carrying a
Records Sound Ranging machine from military workshop to military school of
artillery killed a cyclist on the road. It was held that the driver was not acting in
exercise of sovereign powers.

The Apex Court Judgment of Pushpa Thakur vs. UoI, has settled the dichotomy
between sovereign and non-sovereign functions and settled once for all in clear
terms that the doctrine of sovereign immunity has no application so far as claims
for compensation under the Motor Vehicles Act are concerned.

Constitutional Torts

Consitutional tort is a tort which involves violation of a constitutional right,

especially a fundamental right. In case of a copnstitutional tort distinction
between sovereign functions and non-sovereign functions is immaterial.

Nilabati Behara vs. State of Orissa:

Sovereign and Non-sovereign Functions Distinguished

N. Nagendra Rao vs. State of AP: “In the modern sense, the distinction between
sovereign or non-sovereign power thus does not exist. It all depends on the nature
of the power and manner of its exercise. Legislative supremacy under the
Constitution arises out of constitutional provisions. The legislature is free to
legislate on topics and subjects carved out for it. Similarly, the executive is free to
implement and administer the law. A law made by a legislature may be bad or may
be ultra vires, but, since it is an exercise of legislative power, a person affected by
it may challenge its validity but he cannot approach a court of law for negligence
in making the law. Nor can the Government, in exercise of its executive action, be
sued for its decision on political or policy matters. It is in (the) public interest that
for acts performed by the State, either in its legislative or executive capacity, it
should not be answerable in torts. That would be illogical and impracticable. It
would be in conflict with even modern notions of sovereignty.”
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

7. State Liability 133

Analysis of Judgment in Nagendra Rao Case

(a) Non-existence of the distinction: “In the modern sense, the distinction
between sovereign or non-sovereign functions does not exist”.

(b) Non-liability for political acts: One of the tests is, whether the State is
answerable for such actions in courts of law. Examples of non-liability are
functions which are indicative of external sovereignty and are political in
nature, (such as) defence, foreign affairs, etc.

(c) Immunity ends with political acts: Immunity ends with political acts,
described above. "No legal or political system can place the State above (the
law), as it is unjust and unfair for a citizen to be deprived of his property
illegally by (the) negligent act of officers of the State without any remedy.
Statutory power is to be viewed as a statutory duty."

(d) The demarcating line – primary and inalienable functions The

demarcating line between “sovereign” and “non-sovereign” powers, has
largerly disappeared. “Therefore, barring functions such as administration of
justice, maintenance of law and order and repression of crime etc. which are
among the primary and inalienable functions of a constitutional Government,
the State cannot claim any immunity.”

(e) Misfeasance doctrine: Vicarious liability of the State is linked with the
negligence of its officers. “The law of misfeasance in discharge of public duty
having marched ahead, there is no rationale for the proposition that even if the
officer is liable, the State cannot be sued.”

(f) Kasturi Lal’s case – inalienable functions: Kasturi Lal case was related to
powers of arrest, search etc. “The power to search and apprehend a suspect
under the Criminal Procedure Code is one of the inalienable powers of the
State.”

In State of A.P. vs. Chella Ramakonda Reddy which was approved in State of
A.P. vs. Chella Ramakrishna Reddy it was held that sovereign immunity is not
applicable to the cases in public domain i.e. in cases of writ petitions under
Arts. 32 & 226 of Constitution of India and also in tort cases where death is
caused.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

CHAPTER VIII

8. JUDICIAL REVIEW

• Introduction
• Basic Doctrines
• Public Law Review and Private Law Review
• Writ Jurisdictions of the HCs & the SC
• Locus Standi and PIL
• The Five Types of Writs
• Other Constitutional Remedies
• Statutory Judicial Remedies
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

INTRODUCTION

Judicial review of administrative action falls under two heads:

1. Public Law review

2. Private Law review

Public law regime is one which imposes duties towards public at large and makes
the government responsible to the public. On the other hand private law regime
imposes duties towards private individuals and makes government to the
individual concerned. Public law duties arise normally under the Constitution,
though quite often they may arise out of statutes or even Rules made under
statutes. Private law duties almost invariably arise under statutory law or common
law principles.

Public law review is done through writ jurisdiction while private law review falls
under the statutory provisions applicable to the relevant case. Public Law review is
done by the higher judiciary, i.e., High Courts and the Supreme Court, while
private law review is done by the subordinate judiciary through suits. Main types
of liabilities enforced under the private law review are tortuous and contractual
liabilities arising under art. 300.

JUDICIAL REVIEW AND APPEAL

DOCTRINE OF LEGITIMATE EXPECTATION

Where a sudden change in government policy adversely affects the interests of a

person, he may challenge the change on the ground that his legitimate
expectations are belied. Thus the doctrine is against the arbitrary use of powers.
The plea is available when the government does not exercise its discretion on the
expected lines. Usual examples of such cases are refusing to renew contracts and
sudden discontinuation of a scheme, etc. Where normally a contract is renewed as
a matter of routine after the expiry of the term, unless there is a specific ground of
irregularity, breach of conditions, etc., non-renewal or non-extension are treated
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

136 Administrative Law

as breach of legitimate expectations. It may also appear to be arbitrary when in

other cases which are similarly positioned there is a routine renewal and in the
case of an individual there is no such renewal. This may happen due to taking into
consideration irrelevant facts, or due to mala fide exercise of powers.

Lord Denning in Schmidt vs. Secretary of State for Home Affairs (1969)

Supreme Court has developed the doctrine to avoid arbitrary exercise of powers by
the state using art. 14 and requirement of reasonableness. The early instance of
the application of the doctrine is found in State of Kerala vs. K. G. Madhavan Pillai

State of Kerala vs. K. G. Madhavan Pillai: Government issued a sanction order

to the respondents to open a new unaided school and to upgrade the existing
ones. After 15 days, it issued another order keeping the sanction in abeyance. This
order was challenged on the ground of violation of natural justice. It was held that
the first order created a legitimate expectation in the respondents and the same
was belied by the second order. Hence it was invalid.

Scheduled Caste and Weaker Section Welfare Association vs. State of

Karnataka: The government issued a notification in which certain areas were
listed where sum clearance was to be undertaken. Subsequently, the government
issued another notification revising the list. In the second notification many areas
which were in the first list were left out. It was challenged on the ground that no
hearing was given to the residents of the areas which were dropped in the second
list. This was upheld by the court.

Navjyoti Co-operative Housing Society vs. UoI: The development authority

changed the order of priority for the allotment of land to co-operative societies
from ‘serial number of registration’ to ‘date of approval of the list of members’. No
notice or hearing was issued to the applicants before making the change. The
order was quashed on the ground of violation of legitimate expectation.

Often to such cases Wednesubury principles are applied.

Union of India vs. Hindustan Development Corporation: There was no fixed

procedure for fixing price and quantity for the supply of the food grains. The
government wanted to break a cartel in the public interest. In order to achieve that
the government introduced dual pricing system (lower price for big suppliers and
higher price for small suppliers). It was held that there was no denial of legitimate
expectation as the same was not based on any law, custom or past practice.

The Supreme Court pointed out that time is a three-fold present: the present as we
experience it, the past as a present memory and the future as a present
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

8. Judicial Review 137

expectation. For the purposes of law expectation cannot be the same as

anticipation. It is different from a wish, desire or hope nor can it amount to a
claim or demand on the ground of a right... A pious hope cannot become a
legitimate expectation. The legitimacy of an expectation can be inferred only if it is
founded on the sanction of law, or custom or an established procedure followed in
a natural and regular sequence.

State of West Bengal vs. Niranjan Singh: The agency was granted right to
collect tools. The government instead of renewing or extending the contract asked
the party to enter into a new contract in which higher rates were quoted. Supreme
Court held that the doctrine could not be invoked to prevent the state from
earning higher revenue.

Food Corporation of India vs. Kamadhenu Cattle Feed Industries: The Food
Corporation of India called for tenders for sale of stocks of damaged food grains.
The respondent was the highest bidder. All the parties who had given tenders were
called for negotiation. While al others raised their offers, the respondent did not.
When the tender was passed to the highest quoter, the repondent challenged the
grant on the basis of legitimate expectation wich he had, being the higherst bidder.
The High Court accepted his contention and quashed the grant. Supreme Court
while reversing the decision held that theough the respondent was the highest
bidder, he had no right to have it accepted. If the Food Corporation believes that
the highest bid is not adequate, it may reject it.

Madras City wine Merchants’ Association vs. Tamil Nadu: Rules relating to
renewal of liquor licences were statutorily altered by repealing existing rules. It
was held that legislative action cannot be prevented by applying the doctrine of
legitimate expectation.

National Building Contruction Co. vs. S. Raghunathan: It was held that the
concept of ‘detriment’ is applicable to the doctrine of legitimate expectation.
Therefore, it held that for its application there are two requirements:

1. reliance on representation

2. resultant detriment.

The court observed that though the government has the power to change its policy
in the public interest, still the courts can look into the proportionality of change in
policy and see whether the legitimate interest has been properly balanced against
the need for change. But, the courts cannot not transgress the Wednesbury
principle Courts cannot look into the merits of the policy. Hence, unless the
change of policy is so outrageous that no sensible person who had applied his
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

138 Administrative Law

mind to the question to be decided could have arrived at it, Court will not interfere
because flexibility necessarily inherent in this principle must not be sacrificed on
the altar of legal certainty.

It is held in Attorney General for New South Wales vs. Quin that doctrine of
legitimate expectation gives rise to procedural rights only and not to substantive
rights.

But Supreme Court of India in Punjab Communications Ltd. vs. UoI has held that
the legitimate expectations may be both procedural as well as substantive. The
procedural part of the expectations is that a hearing or any other appropriate
procedure will be followed before the change is made. The substantive part is that
the benefit of a substantive nature will be granted or will be continued.

DOCTRINE OF PUBLIC ACCOUNTABILITY

Accountability simply means that if a public officer abuses his office, either by an
act of omission or commission, and in consequence of that there is an injury to an
individual or the public at large, he must be held responsible for it.

Once a top bureaucrat casually remarked that the main problems of the
administration in India are:

1. Faulty planning,
2. corrupt execution and
3. absence of public accountability.

No one would perhaps disagree with this statement. Out of these three problems,
public accountability is basic, in the sense that if the guilty are punished quickly
and adequately, it will take care of the other two problems. Unfortunately, today
the procedures of accountability are either non-existent or are very feeble and
fragile, besides being dilatory, and any person with sufficient money power or
personal connections can bend them in any manner he likes.

In the name of enforcing liability, what one sees is merely shadow-boxing. The
manner in which the Central Vigilance Commission Ordinance pulled down the
directives of the apex court is a pointer in that direction. It is for this reason alone
that the Lok Pal Bill has failed in its every attempt since 1968 to see the light of
the day.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

8. Judicial Review 139

The basic purpose of the doctrine of public accountability is to check the growing
misuse of power by the administration and to provide speedy relief to the victims
of such exercise of power. The doctrine is based on the premise that the power in
the hands of administrative authorities is a public trust which must be exercised
in the best interest of the people. Therefore, the trustee (public servant) who
enriches himself by misusing his office must hold the property/benefit acquired by
him as a constructive trustee.

The celebrated decision of the Privy Council in the A.G. of Hong Kong V. Reid
(1993) case has greatly widened the scope of this principle. In this case, the
respondent, Reid, who was a Crown prosecutor in Hong Kong, took bribes as an
inducement to suppress certain criminal prosecutions, and acquired properties in
New Zealand in his name, in the name of his wife and his solicitor. The
administration of Hong Kong claimed these properties on the ground that the
owners thereof are constructive trustees for the Crown. The Privy Council upheld
the claim. It observed that if the theory of constructive trust is not applied and
properties attached when available, the danger is that properties may be sold and
proceeds whisked away to some ‘numbered bank account’. It further observed that
one can understand the immorality of the bankers who maintained numbered
bank accounts but it is difficult to understand the amorality of the governments
and their laws which sanction such practices — in effect encouraging them.

Judicial response in India is based on this concept of trust and equity which was
developed in Reid’s case. Thus while deciding the constitutionality of clause (c) of
Section 3 (1) of the Smugglers and Foreign Exchange Mani-pulators (Forfeiture of
Property) Act, 1976 (SAFEMA), which provided for the forfeiture of properties
earned by smuggling or other illegal activities whether standing in his name or
other parties, the apex court took recourse to the principle of trust and equity.

The Supreme Court in D.D.A. V. Skipper Construction Co., (1996), not only further
followed the above principle but enlarged its scope by stating that even if there
was no fiduciary relationship or no holder of public office was involved, if it is
found that someone has acquired properties by defrauding the people, and if it is
found that the persons defrauded should be restored to the position in which they
would have been but for the said fraud, the court can go ahead with the necessary
orders.

Thus, the concept of public accountability was extended to the private sector
which is very relevant in this age of privatisation and globalisation of economy.

Moving swiftly in the direction of enforcing accountability, the apex court in

another pace-setting judgement (JMM bribery case) held that members of
Parliament and legislative assemblies are public servants under the Prevention of
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

140 Administrative Law

Corruption Act. The Court further observed that these members cannot also claim
exemption from prosecution under Article 105(2) of the Constitution regarding
protection of privileges of M.Ps and M.L.As for any offence committed outside
Parliament/legislature. The Court held that Article 105(2) could not be interpreted
as a charter of freedom of speech and also freedom for corruption. Parliamentary
privilege cannot provide immunity against corruption and bribery. Thus, by
redefining the role of the state, fixing accountability at all levels and transparency
in the administration, the court is simply trying to make government function
better in the interest of the people. It is unfortunate if it is being considered by the
government as interference in its area of operation.

In the present-day context, strengthening of the public accountability system

should be the top priority of the government. Any system has three components:
structures and procedures; persons who manage the system; and environment in
which the system works. Improvement is required in all the three components.
Every holder of public power, where public element is present, should consider
himself a trustee of society and must exhibit honesty, integrity, sincerity,
faithfulness and transparency in all facets of public administration.

DOCTRINE OF PROPORTIONALITY

The order of an authority which is by the way of punishment should be

proportionate to the wrong committed by the person. If it is excessive, it is called
disproporionate and is liable to be struck down.

Hind Construction vs. Workmen: The workmen demanded a holiday which was
refused by the management. All the workmen remained absent on the day treating
it as a holiday. The management dismissed all of them. It was held that the
punishment was disproportionate to the wrong committed.

Ranjit Thakur vs. UoI: The petitioner who was in army was sentenced to rigorous
imprisonment and was dismissed from service by court martial for
insubordination as he refused to eat the food offered to him. The order was struck
down was disproportionate to the wrong committed.

UoI vs. Parma Nanda: Bogus identification card and false pay bills.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

8. Judicial Review 141

PROCEDURAL ASPECTS

DOCTRINE OF STANDING

It is a basic principle of law that to approach a Court for relief, a person must have
a cause of action. A person has a cause of action if his rights are violated. If a
person’s rights are not violated he cannot approach a Court of law. One cannot
approach a Court of law seeking redressal for the violation of some other person’s
rights, however close that person may be to him. Thus, husband cannot approach
a Court of law seeking relief for his wife. Husband approaching a Court under a
power of attorney from his wife is a different case. Here, the husband is not
approaching the Court on his own behalf, but as an agent of his wife. Act of the
agent being act of the principal, this case will be deemed to be instituted by the
wife herself, whose rights are violated. Hence there is no breach of the rule of
locus standi.

Another basic principle of law is that Courts do not pass orders or judgements
either against or in favour of a person who is not a party to the case. Therefore, a
person who has a claim has to be a party to the case. If some other person
institutes the case, the Courts cannot entertain the same. This gives rise to the
doctrine of locus standi.

Locus Standi

Ubi jus ibi remedium (where there is a right there is a remedy), means where there
is a violation of a right there is a remedy. Hence a person whose rights are violated
can sue the person who has violated his right. Conversely, a person whose rights
are not violated cannot sue. In other words, only the aggrieved person 1 can sue.
This is called the rule of locus standi. Literally, locus means place and standi
means to stand. Therefore, locus standi literally means place to stand in the court,
i.e., right to sue.

For getting a right to sue, a person must show fulfilment of three requirements:

1. Injury: That there is a violation of his right.

1 Generally an ‘aggrieved person’ means a person whose rights are violated. But here, for the
application of rule of locus standi, it means a person who alleges that his rights are violated.
Because, whether a person has locus standi to institute the case has to be determined at the
early stage of the case, and whether there is violation of his rights is determined at that last
stage. If the court holds that his rights are violated, that ends the case itself. Therefore, here by
‘aggrieved person’ we mean that the person is alleging that his own rights and not the rights of
some other person are violated.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

142 Administrative Law

2. Causation: The violation is caused by defendant’s wrongful act or omission.

3. Redressability: That violation has a remedy in the law, and that remedy is
not illusory.

Exceptions to the Rule of Locus Standi

1. Criminal cases

2. Environmental cases

3. Habeas corpus

4. Public Interest Litigation

Class Actions

A class action is one which is a case instituted by one or a few on behalf of all who
are aggrieved.

There are two important class actions available under the Indian law.

1. Representative suit under Order I, Rule 8 of Code of Civil Procedure, 1908

2. Public Interest Litigation (PIL also called SAL - Social Action Litigation)

Public Interest Litigation

Recent decisions in all countries where the Anglo-American system of justice has
been adopted have taken the view that where State action has caused injury to the
general public as distinguished from particular individuals, it would be the duty of
the State, under a democratic system, to afford relief against maladministration, in
litigation brought by any member of the public, without insisting that the
petitioner must be one who has been particularly affected by the public wrong in
question.

But that does not mean that in all cases of PIL the petitioner need not have any
relation to the relief. The only difference between normal litigation and PIL in this
respect is that, in normal litigation, there should be a clear and specific allegation
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

8. Judicial Review 143

that the party’s right has been violated. In PIL this may be stated in general.
Therefore, we have different ‘standings’ for initiating a PIL. These are:

1. Class standing

2. Public injuries standing

3. Public duties standing

4. Public concern standing

Only the last one may be said to be an exception to the rule of locus standi.

1. Class Standing: A person may challenge an action when he has a right

common with others. Thus in Kalyan Singh v. State of Punjab a tax-payer was held
to have locus standi to prevent misapplication or misappropriation of public funds
by an authority. He need not show how the State act affect him personally, as is
required in a normal litigation, but it is enough for him to show how the State act
affects him as a member of a class, for example, tax payers in this case.

2. Public Injuries Standing: There may be cases where the State may act in
violation of a Constitutional or statutory obligation or fail to carry out such
obligation resulting in injury to public interest or what may conveniently be
termed as public injury as distinguished from private injury. If no one can
maintain an action for redress of such public wrong or public injury, it would be
disastrous for the rule of law, for it would be open to the State or public authority
to act with impurity beyond the scope of its power or in breach of public duty owed
by it. The party, here also, need not show how he is affected by the State act, but
being a member of public itself is enough to enable him to initiate proceedings.

3. Public Duties Standing: Where the State has failed to discharge a mandatory
duty towards the public, every member of the public is aggrieved by the failure,
and has locus standi to initiate the proceedings.

4. Public Concern Standing: This is the real exception to the rule of locus standi.
Often, where there is a lapse in functioning of the State, the very officers who have
caused that lapse have the locus standi to bring action. For example if case of
illegal felling of trees or poaching of animals in a forest, the forest officers who
have colluded in that are the persons who can prosecute the culprits. But, as the
officers are also involved in the acts, they will not prosecute the culprits. Hence,
the Courts have to allow people who have public spirit to allow to initiate the
proceedings. Otherwise such cases will not go to Courts at all. Similarly, in many
cases due to illiteracy, poverty or lack of liberty, an aggrieved person may not be
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

144 Administrative Law

able to approach the Court. In such cases also Courts allow a third person who
has no legal interest at all in the case.

DOCTRINE OF RES JUDICATA

Res means thing and judicata means adjudicated. Res judicata means thing
adjudicated. According to the doctrine of res judicata a case once decided finally
cannot be reagitated before the same or different Court. The rule of res judicata is
based on considerations of public policy as it is in the larger interest of the society
that a finality should attach to binding decisions of courts of competent
jurisdiction, and that individuals should not be made to face the same kind of
litigation twice. It also seeks to avoid multiplicity of proceedings.

In Sharma v. Krishna Sinha the Supreme Court imposed a significant restriction on

the invocation of its jurisdiction under Art. 32 by applying the doctrine of res
judicata. An order assessing the tax having been challenged once through a writ
petition, it cannot be challenged again through another writ petition even if the
petitioner seeks to urge new grounds against the order.

Similarly, if a writ petition filed under Article 226 is considered on merits and
dismissed, the decision so pronounced would continue to bind the parties. It
would not be open to a party to ignore the said judgement and again move the
High Court under Article 226 or the Supreme Court under Article 32 on the same
facts and for obtaining the same or similar orders or writs.

This means that in case of infringement of fundamental rights, the aggrieved

person has liberty to approach High Court or Supreme Court, but once the option
is exercised and his case is decided by the Court, he cannot approach the other
Court in case of adverse order. The High Court's decision can be attacked in an
appeal to the Supreme Court but not through a writ petition.

Res judicata does not apply if orders sought to be challenged through successive
writ petitions are different. This, in Amalgamated Coalfields v. Janapada Sabha,
Chhindwara, where a petition challenging the validity of the tax assessment for
one year is dismissed by the Supreme Court, a similar order passed for the
subsequent year can be challenged through a new writ petition on some new
grounds not raised earlier in the first writ petition.

For the application the following requirements must be satisfied.

1. The case must have been decided by a Court of competent jurisdiction.

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

8. Judicial Review 145

2. The case must have been decided finally. Doctrine of res judicate is not
applicable to interlocutory orders.

3. The decision must be on merits. Orders on technicalities do not attract

doctrine of res judicata.

4. Issues involved in both cases must be same or substantially same.

5. Parties in both the cases must be litigating under the same title.

Constructive res judicata: Where an issue which could and ought to have been
raised in the earlier case, but was not raised by the parties, is raised in a
subsequent case, still the matter is barred by res judicata. As the some issues in
the subsequent case were not raised in the earlier case, it is called constructive, as
against actual, res judicata.

Doctrine of res judicata is a doctrine of civil law. Double jeopardy is the

corresponding principle of criminal law. Where a person is convicted or acquitted
by a competent Court for some offence, he cannot be prosecuted for the same
offence again1. Therefore, if a person is neither convicted nor acquitted of any
offence, he may be tried or he may be permitted to try the case again.

In Lallubhai v. Union of India, Supreme Court has held these principles of public
policy are entirely inapplicable to illegal detention and do not bar a subsequent
petition for a writ of habeas corpus under Art. 32 on fresh grounds not taken in
the earlier petition for the same relief. Thus, when a writ petition challenging an
order of detention is dismissed by the Court, a second petition can be filed on
fresh, additional grounds to challenge the legality of the continued detention of the
detenu, and the subsequent petition is not barred by res judicata.

Thus, doctrine of res judicata is not applicable to habeas corpus. This is because
the courts attach great value to the right of personal freedom of a person. A person
who unsuccessfully prosecutes a Writ Petition in the High Court may approach the
Supreme Court by way of a fresh Writ Petition, or at his option, by way of an
appeal.

However, some new grounds must be raised in the subsequent petition. If in the
fresh Writ Petition the judgement of the High Court is challenged, the Writ Petition
will take colour of Appeal and hence not maintainable as Writ Petition.

English as well as American Courts have also laid down that the principle of res
judicata is not applicable to a writ of habeas corpus.

1 Sec. 300 of Cr.P.C. – art. 20 of the Constitution is applicable to prior convictions only.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

146 Administrative Law

However, successive applications of habeas corpus cannot be filed in the same

High Court.

When a writ petition is withdrawn as infructuous, and the court allows the
withdrawal by mentioning futility as ground, a second petition will be barred by
res judicata. This fate can be avoided if the court gives permission to withdraw the
petition with liberty to file a fresh petition in respect of the same subject matter.
Where the Court is silent, there was a conflict of opinion amongst the High Courts
whether res judicata will apply. The Rajasthan, Punjab and Haryana and Gujarat
High Courts have held that res judicata applies in such a case, while the Bombay
and Patna High Courts have taken a different position.

The matter has now been resolved by the Supreme Court decision in Surguja
Transport Service v. S.T.A. Tribunal, Gwalior. The Court has ruled that when a writ
petition filed under Art. 226 is withdrawn without seeking permission of the court
to file a fresh petition, then the remedy under Art. 226 should be deemed to have
been abandoned by the petitioner in respect of the cause of action, and fresh
petition cannot be instituted in respect of the same matter in the High Court.

JURISDICTION

Jurisdiction of Supreme Court under arts. 32 and 136

Supreme Court of India is constituted as a protector, defender and guarantor of

fundamental rights of the people. Under this provision, “the Supreme Court shall
have power to issue directions or orders or writs including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of rights conferred by Part III of the
Constitution.”

Art. 32(1) guarantees a right to move the Supreme Court for the enforcement of
fundamental rights, which right by itself is a fundamental right. It provides a
guaranteed, quick and summary remedy for enforcing fundamental rights. A
person alleging violation of fundamental rights can approach thee Supreme Court
directly, without having to undergo a delatory process of having to go from thee
lowest to the highest Court which is the case in other matters.

Under art. 32 Supreme Court enjoys a broad discretion in the matter of framing
the writs to suit the exigencies of the particular case and it would not throw out
the application of the petitioner simply on the ground that the proper writ or
direction has not been prayed for. Both Supreme Court and High Court have the
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

8. Judicial Review 147

power to modify the prayer in the petition and grant the most appropriate and
useful remedy. This is because, being higher judiciary, they are Courts of justice
and have to do justice in the matter before them.

Jurisdiction of High Courts under arts. 226 and 227

Under art. 32 of the Constitution, the Supreme Court is empowered to issue a writ
in case of breach of fundamental rights and under Art. 226, High Court may issue
a writ for the breach of fundamental rights and other rights. Thus, the jurisdiction
of the High Court is wider than the jurisdiction of Supreme Court. Art. 32 itself
being a fundamental right, the Supreme Court cannot reject writ petition when
breach of fundamental rights is involved. But, the power of High Court under Art.
226 is discretionary. The High Court may reject a writ petition on two grounds:

1. When there is delay and latches

2. When there is an equally efficacious alternative remedy

VIOLATION OF PROCEDURAL NORMS

GROUNDS OF JUDICIAL REVIEW

There is no general agreement on how to classify the grounds of review and

different textbooks take different approaches. The grounds themselves are broad,
vague and overlapping. We may follow Lord Diplock’s classification in CCSU v.
Minister for the Civil Service:

1. Illegality

2. Irrationality

3. Procedural Impropriety

The Diplock categories tell us little in themselves and do not avoid overlaps.
Indeed in Boddington vs. British Transport Police, the House of Lords has
emphasised that the heads of challenge are not watertight compartments but run
together.

These grounds are discussed in detail in different parts of these study materials.
Here, a brief account is given to recapitulate memory.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

148 Administrative Law

1. ILLEGALITY

Ultra vires: A decision is ultra vires if it is outside the language of the statute. In
the case of courts and judicial tribunals the terminology of ‘lack’ or ‘excess’ of
jurisdiction means the same as ultra vires although a distinction is sometimes
made between lacking jurisdiction at the outset and straying outside jurisdiction
by some subsequent defect. In most cases, however, this distinction does not
matter.

Errors of Law: The question whether the court can review decisions on the ground
of legal or factual errors has caused problems. There seems to be a clash of
principle. On the one hand, if the court can intervene merely because it considers
that a decision is wrong it would be trespassing into the merits of the case. On the
other hand the rule of law surely calls for a remedy if a decision maker
misunderstands the law. After many years of groping towards an accommodation
the courts have adopted a compromise. The outcome appears to be that almost all
errors of law and some errors of fact can be challenged.

A rationale which was popular in the nineteenth century is the doctrine of the
‘jurisdictional’ or ‘collateral’ or ‘preliminary’ question. According to this doctrine, if
a mistake relates to a state of affairs which the court thinks that Parliament
intended should exist objectively before the official has power to make the
decision, then the court will interfere on the ground that the authority has acted
ultra vires if the court thinks that the required state of affairs does not exist.

A second device which flourished during the 1960s but has largely been
superseded is the doctrine of ‘error of law on the face of the record’ or patent error.
This allows the court to quash a decision if a mistake of law can be discovered by
reading the written record of the decision without using other evidence.

Errors of fact are not normally reviewable but there are exceptions.

2. IRRATIONALITY AND UNREASONABLENESS

Irrationality or unreasonableness can be used to challenge the exercise of

discretion or findings of law and fact. The notion of ‘unreasonableness’ is so vague
that it seems to invite the court to impose its own opinion of the merits for that of
the decision maker. However, it has a special and limited meaning. This ground of
review is usually called ‘Wednesbury unreasonableness’ after Lord Greene’s speech
in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation. Lord Greene
MR emphasised that the court will interfere only where a decision is so
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

8. Judicial Review 149

unreasonable that no reasonable authority could have made it, not merely
because they think it is a bad decision.

Another way of putting it is that the decision must be ‘beyond the range of
responses open to a reasonable decision maker’. This is sometimes equated with
‘perversity’ or ‘irrationality’.

3. PROCEDURAL IMPROPRIETY

Failure to comply with a procedural requirement laid down by 386 General

Principles of Constitutional and Administrative Law statute (such as time limits,
consultation or giving required information or notice) could make a decision
invalid.

However, the courts are reluctant to set aside a decision on purely technical
grounds. Traditionally the courts have tried to rationalise this by distinguishing
between ‘mandatory’ (important) and ‘directory’ (unimportant) procedural
requirements by reference to the language of the governing statute.

Recently they have abandoned this approach in favour of a flexible response to the
particular context. Using their discretionary power to withhold a remedy, the
courts will set a decision aside for procedural irregularity only if the harm or
injustice caused to the applicant by the procedural flaw outweighs the
inconvenience to the government or to innocent third parties in setting the
decision aside.

However the courts may not be willing to allow administrative efficiency to override
a statutory right of the public to be consulted.

WRITS

Under art. 32 of the Constitution, the Supreme Court is empowered to issue a writ
in case of breach of fundamental rights and under Art. 226, High Court may issue
a writ for the breach of fundamental rights and other rights. Thus, the jurisdiction
of the High Court is wider than the jurisdiction of Supreme Court. Art. 32 itself
being a fundamental right, the Supreme Court cannot reject writ petition when
breach of fundamental rights is involved. But, the power of High Court under Art.
226 is discretionary. The High Court may reject a writ petition on two grounds:

(1) When there is delay and latches

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

150 Administrative Law

(2) When there is an equally efficacious alternative remedy

(1) Delay and Latches: The Court may refuse remedy if there is unreasonable
delay in invoking the jurisdiction of the court. Unlike in limitation there is no fixed
period for latches. Every case will be determined on its own fact and
circumstances and therefore, the court has to give reason for declining the remedy
or the grounds of delay and latches. If the limitation has expired normally the
court will decline to give remedy because what cannot be granted in the exercise of
ordinary powers cannot be granted in the exercise of extra-ordinary powers. But
that does not mean that the High Court is bound by the limitation. Even if the
case is within limitation, the High Court may decline to grant relief because the
extra-ordinary remedy is discretionary.

(2) Alternative Remedy: If there is violation of fundamental rights, the court

cannot refuse relief on the ground of alternative remedy. But if a writ petition is
filed for any other purpose before the High Court, the High Court may decline the
relief on the grounds of equally efficacious alternative remedy. An equally
efficacious remedy means a remedy, which can give the same relief to the party as
may be given by the High Court through the writ. Therefore, the courts may grant
the remedy by a writ where:

i) the alternative remedy is not adequate,

ii) when the alternative remedy was lost without any fault on the part of the
person,

iii) when the alternative remedy is illusionary, or

iv) when the alternative remedy involves delay.

Even where there is an alternative remedy, in all cases of absence of jurisdiction or

abuse of jurisdiction, the court may exercise jurisdiction even where there is an
alternative remedy.

42nd amendment to the constitution had absolutely bound the jurisdiction of High
Courts where there is an alternative remedy except in case of violation of
fundamental rights. But, the 44th amendment to the constitution has removed
this factor. Therefore, now the High Courts can exercise the discretion and admit
the writ petition even where alternative remedy is available.

High Court and Supreme Court can grant five types of writs: Habeas corpus.,
mandamus, prohibition, certiorari and quo warranto.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

8. Judicial Review 151

1. HABEAS CORPUS
Habeas corpus literally means you must have the body i.e., the person must be
produced before the court. Where a person is illegally detained by another, the
court issues this writ to the person who has detained the other to come to the
court with that person and explain the legal basis on which he has detained that
person. This writ is sued in various cases:

1. for testing the regularity of detention under preventive detention laws

2. for securing the custody of minor or insane person
3. for securing the custody of spouse
4. for testing the regularity of detention for breach of privilege by the legislature
5. for testing the regularity of detention under court marshal
6. for testing the regularity of detention by executive during emergency.

In order to maintain the writ of Habeas corpus the physical detention of the
person is not necessary. Some kind of control, custody or restrain exercised on the
person may be sufficient to exercise this writ.

In Kanu Sanyal vs District Magistrate, the court has held that in case of public
interest it is not necessary to produce the person before the court. Therefore,
though habeas corpus literally means producing the person before the court,
where taking the person before the court may adversely affect the law and order
situation it is no necessary to produce him before the court.

As in writ of habeas corpus, the question of personal liberty of a person is involved

which is very valuable, the Supreme Court has made several relaxations in case of
writ of habeas Corpus. They are:

1. In Ichhudevi vs Union of India, Supreme court held that in case of writ of

High Court, the court does not as a matter of practice follow the strict rules
of pleading nor does it place undue emphasis on the strict rule of
observance of burden of proof. Even a post card may be sufficient to invoke
the jurisdiction of the court.
2. Rule of locus standi: is also not applicable to a writ of habeas corpus. Any
person may file a writ petition on behalf of the detenu.
3. Res Judicata is not applicable to the writ of habeas corpus. Therefore, even
though the High Court has rejected the writ petition, the Supreme Court will
entertain a fresh petition on the same ground.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

152 Administrative Law

4. All the writs can be sought only against the state whereas the writ of habeas
corpus is available even against a private person.

2. WRIT OF MANDAMUS

Mandamus is a judicial remedy issued in the form of an order to any

constitutional statutory or non-statutory agency to do or to forbear from doing
some act which the agency is obliged to do or refrain from doing under the law.
The following are the conditions for the grant of mandamus:

1. There must be a public or common law duty. A public duty means a duty,
which is imposed by law. A duty imposed by a contract is a private duty.
Therefore, a writ was not held to lie to enforce a contractual duty. In Guruswamy
vs. State of Mysore, the court refused to enforce a contractual duty by issuing a
writ of mandamus.

But in Lotus Hotel vs. GSFC (Gujarat State Financial Corporation), the Supreme
Court decided the contract under two heads – First category of contracts is that of
Statutory Contracts which are entered into the exercise of a statutory duty.
Therefore, they have got a colour of statutory duty though the duty is under a
contract as well. Thus, where a statutory body established to advance loans enters
into a contract for the purpose of giving loans it is not only entering into a contract
but also is discharging its statutory duty. Therefore, a breach of that contract is
also a breach of its statutory duty. Hence, mandamus may be issued to enforce
that duty. But other contracts are independent contracts and their breach does
not entail breach of any statutory duty. Therefore, writ of mandamus does not lie
for enforcement of such contracts.

2. The duty must be absolute duty i.e., it should not be discretionary duty.
When the authority has discretion, in exercising the duty that discretion used to
be exercised by the authority and the court cannot exercise the discretion on
behalf of that authority. The court may issue a writ of mandamus ordering the
authority to exercise the discretion but it will not order the authority to exercise
the discretion in one way or other. Thus where the authority has discretion to
decide the matter but it will not tell the authority as to in whose favour the
decision should be.

3. There must be specific demand and refusal. In many cases, the duty of the
authority arises only when there is a specific demand from the person and
therefore, unless there is no demand the duty does not arise Further, the breach
of duty arises when the demand is refused. Unless there is a refusal there is no
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

8. Judicial Review 153

breach of duty. Therefore, writ of mandamus does not lie unless there is a demand
and refusal. But, the refusal need not be expressed refusal. Unreasonable delay in
complying with the demand itself is a refusal.

Naubat Rai vs. Union of India: the petition was illegally dismissed from military.
The Court refused to issue mandamus for his reinstatement because he did not at
any point of time apply to the authority for reinstatement.

In Venugopal vs. Commissioner, Vijayawada Municipality: the petitioner had

filed a suit against the respondent. This was treated as a demand and refusal by
the court and the court granted mandamus.

4. There must be a clear right to enforce the duty. Before, applying for writ of
mandamus, the petitioner must show some right to enforce the duty.

SP Manocha vs State of M.P.: Court refused to issue mandamus to the college to

admit the petitioner because the petitioner could not show a clear right to be
admitted to the college.

5. The right to enforce the duty should subsist till the date of petition. If the
right has been lawfully terminated before filing the petition the writ does not lie.

6. The right to enforce the duty should belong to the petitioner. A

shareholder eg., cannot enforce the right of company unless he can show that the
infringement of the corporation’s right has resulted in the infringement of his own
right.

Writ of Mandamus compared with Injunction

Though mandamus is a public law remedy and injunction is a private law remedy,
there are many things common to both.

1. Both may be issued to compel an authority to do or prevent an authority

from doing an act.

2. Both are not ordinary legal remedies. Injunction is an equitable relief while
mandamus is an extra-ordinary remedy.

3. In both cases relief is not granted if there is an alternative remedy.

Mandamus has certain advantages over injunction.

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

154 Administrative Law

1. Mandamus being a constitutional remedy, is better than injunction which is

an ordinary remedy.

2. Mandamus being a constitutional remedy cannot be barred by a statutory

provision. Injunction can be.

3. Sec. 80 CPC is not applicableto mandamus. It is applicable to injunction,

though in cases of urgency the court has a power to dispense with the same.

4. Mandamus is comparatively speedier remedy than injunction.

On the other hand, injunction has some advantages over mandamus.

1. Injunction is a remedy which is available at local courts. Mandamus may be

issued only by High Courts or the Supreme Court.

2. In case of injunction compensation may also be sought, compensation

cannot be issued with mandamus.

3. In a suit for injunction oral evidence may be lead which gives the plaintiff a
better chance to prove his case. In case of mandamus evidence is lead
through affidavits only.

3. WRIT OF CERTIORARI AND WRIT OF PROHIBITION

Both the writs are similar in the sense that they can be issued on the similar
grounds. But they are different in the sense that the point of time at which they
can be granted will be different. These writs lie, where the action of the authority is
without jurisdiction.

Prohibition can be issued to prohibit the authorities from proceeding in the matter
without jurisdiction while certiorari can be issued to quash the act of the authority
done without jurisdiction. The following are the grounds for the issue of these
writs:

1. Lack of Jurisdiction: Lack of jurisdiction refers to the jurisdiction where the

authority has no jurisdictional power at all to take action. This situation may arise
if:

1. the authority is improperly constituted

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

8. Judicial Review 155

2. the authority exercises jurisdiction in a case in which he has no jurisdiction

at all by committing an error in its decision or jurisdictional facts.

3. the authority is incompetent to take action in respect of a locality, party, or

subject matter.

4. the law which is given the jurisdiction is itself unconstitutional.

5. the preliminary essentials have been disregarded. Eg. Omission to serve

notice as required by law.

2. Excess of Jurisdiction: In this case the authority may have jurisdiction but it
exceeds the permitted limits. In J. K. Choudhari vs. Datta Gupta the governing
body which had then power of dismissal in case of teachers, dismissed the
principal. Court held that this is an excess of jurisdiction.

3. Abuse of Jurisdiction: Even where the authority has a jurisdiction, if it does

not exercise properly, it amounts to abuse of jurisdiction. Exercising the
jurisdiction for mala fide purposes, for the improper purpose on an extraneous
consideration or irrelevant consideration, by ignoring related considerations etc.
amounts to abuse of jurisdiction.

4. Violation of Natural Justice: There are two rules of natural justice:

1. Rule against bias which is based on the maxim “Nemo judex in causa sua”
(No one can be a judge in his own case).

2. Rule of fair hearing which is based on another maxim “Audi alteram partem”
i.e., here the other side.

5. Error apparent on the face of record: When the authority has come to the
conclusion by committing an error which is apparent on the face of the order, the
court may show certiorari to quash that order.

6. Fraud: If the order of the authority is obtained by fraud, that order may be
quashed by issue of certiorari.

Certiorarised Mandamus

In a case of writ of certiorari, often the courts are required to issue mandamus
also. For example, where the decision is in violation of natural justice, the Court
may issue a writ of certiorari to quash the order and also issue mandamus
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

156 Administrative Law

ordering the authority to hold fresh enquiry and givea decision by following the
norms of natural justice within the time allowed by the court. Such orders are
called certiorarised mandamus.

4. WRIT OF QUO WARRANTO

Quo Warranto means, by what authority. It is an order issued by the Supreme

Court or High Court by which any person who occupies an independent public
office is asked to show his authority to occupy the Office. Following are the
conditions for issuing this writ.

1. The office must be a public office: An office is a public office if it is created by

the constitution or by a statute and its duties are such that the public should be
interested in that.

2. It must be substantive in nature. A substantive office is one, which is

permanent in character, and is not terminable in character at the will of the
superior. Though public offices are held at the pleasure of the president or
governor there is a safeguard against the use of power by the president or governor
because if it is permanent in character writ of quo warranto lies.

3. The person must have occupied the office. Just because the person is
appointed or elected to the office, the writ does not take effect unless the officer
has accepted the appointment or election.

4. There must be contravention of law: If the appointment is in contravention of

law, only then this writ lies. If there is only, an irregularity, quo warranto does not
lie.

PRIVATE LAW REVIEW

As seen above, judicial review of administrative actions is done in two ways –

public law review and private law review. Public law review is done through writ
jurisdiction of the higher judiciary, whereas private law review is done through the
ordinary jurisdiction of the subordinate judiciary.

In case of public law review, the State is acting as State and has duties towards
the public at large. In case of private law review, the position of the State is no
better than that of an individual, and the same laws are applicable to the State as
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

8. Judicial Review 157

a private individual, attaching same rights and liabilities attachable to private

individuals.

Thus, if the State enters into contract with an individual, Indian Contract Act is
applicable. Though art. 299 prescribes certain procedure to make government
contracts, the other aspects of the contract have to be in accordance with the
provisions of the Indian Contract Act. If the government violates the contract the
contract may be enforced under the Contract Act in the same manner as it is
enforced against an individual.

Similarly, where a government servant commits a tort in the course of his

employment government incurs vicarious liability and is liable to the aggrieved
person under the law of torts in the same way as an individual.

Though there is no difference between an individual and the State in such

proceedings, keeping in mind the peculiar position of the government, there are
certain special privileges available to the government is suits against it. Longer
periods of limitation in some cases, privilege of notice under sec. 80 of the Code of
Civil Procedure, privilege to withhold documents, are a few instances. It should be
remembered that these special privileges are available to government not for its
protection, but for the protection of the people.

The most important statutory remedies available against state, as in case of

individuals, are injunction, declaration and damages.

Though, in India there is no distinction of statutory and equitable remedies, and

all remedies are statutory remedies, injunctions and declarations are said to be
equitable remedies, which means that the origin of the statutory provision relating
to them lies in the judgements of Courts of equity in England rather than in the
judgements of Courts of law. The implication of saying so is that the fundamental
rule of equity ‘to seek equity one must do equity’ is applicable to the grant of these
remedies. Where the conduct of the plaintiff in case of a suit for declaration or
injunction and applicant in case of an application for temporary injunction, is not
clean, he is not entitled to these remedies.

INJUNCTION

An injunction is an order of the court directed at a defendant or respondent, to do

or not to do a particular act. If the order is to do some act the injunction is called
mandatory injunction while if the order is to abstain from doing an act it is called
preventive injunction or prohibitory injunction. In Courts terms permanent
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

158 Administrative Law

injunction or perpetual injunction are more popular to refer to preventive

injunction.

An injunction may be refused, inter alia, when the conduct of the plaintiff is such
as to disentitle him of the assistance of the court [Sec. 41(1), Specific Relief Act.];
or when equally efficacious relief can be obtained by any other usual mode of
proceedings [Section 41(h) SRA]. For example, an injunction will not be issued
when damages would be an adequate remedy to the aggrieved party, as in the case
of breach of conduct.

An injunction may be applied for as a final remedy or as an interim form of relief,

by way of an interlocutory application. In particular, an interim injunction can be
granted to prevent a public body from taking action, pending the determination of
the issue by the court.

Thus, we may classify injunctions as under:

1. Mandatory or Prohibitory injunction, which is a final remedy.

2. Temporary injunction which is an interlocutory remedy.

Mandatory Injunction

Where the Court issues and injunction to the defendant ordering him thereby to
do some act, the order is called mandatory injunction. Thus, where the defendant
who has constructed a structure on plaintiff’s land illegally, the Court may issue a
mandatory injunction in favour of the plaintiff ordering the defendant to demolish
the structure.

Though limitation to institute a suit for mandatory injunction is one year, it is

expected that the plaintiff has to approach the Court at the earliest opportunity,
i.e., as early as possible after he comes to know of the infringement of his right by
the defendant. In other words, the plaintiffs cannot wait for the defendant to, for
example, complete the construction and then seek the demolition. He has to
approach the Court at the earliest opportunity and prevent wastage. This means
that if the suit is barred by limitation suit cannot be entertained, but even where
the suit is within the period of limitation if there is unnecessary delay in
instituting the suit, the Court may refuse injunction and explore the possibility of
compensation.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

8. Judicial Review 159

Prohibitory Injunction

A prohibitory injunction can be granted, under sec. 37(2) of the Specific Relief Act,
by a decree made after the hearing and upon the merits of the suit. According to
sec. 38(1), Specific Relief Act, a prohibitory injunction may be granted to the
plaintiff to prevent the breach of an obligation existing in his favour whether
expressly or by implication.

Through a prohibitory injunction, the defendant is perpetually enjoined from

assertion of a right, or from the commission of an act, which would be contrary to
the rights of the plaintiff. Ordinarily, an injunction is not issued to prevent breach
of a contract because a contract is usually not specifically enforceable and
damages may be a sufficient recompense for breach of a contract.

If, however, there exists no standard to ascertain damages caused by the non-
performance of a contract, or where the act agreed to be done is such that
compensation in money for its non-performance would not afford adequate relief,
an injunction may be granted to prevent its breach.

When the defendant threatens to invade, or is about to invade the plaintiffs right
to, or enjoyment of any property, the court may grant a prohibitory injunction,
inter alia, where there exists no standard for ascertaining the actual damage likely
to be caused by the invasion, or where the invasion is such that irreparable loss is
likely to be caused to the plaintiff by the act of the defendant, or where the
injunction is necessary to prevent multiplicity of judicial proceedings. An
irreparable loss is one where compensation in money would not afford adequate
relief.

Temporary Injunction

When a suit for injunction is instituted by plaintiff against the defendant, the
Court will issue notice to the defendant, the defendant will appear before the
Court and file his written statement, the Court will frame issues, the parties will
lead evidence, and after hearing the arguments on behalf of both the parties the
Court will pronounce the judgement. All this takes often years to happen. Till then
if there is no order of the Court requiring the defendant to maintain status quo, he
can proceed with the infringement, for example, construction of the building on
plaintiff’s land, and even complete the construction before the Court had an
opportunity to pronounce an order of prohibitory injunction against him. This will
defeat the very purpose of the suit.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

160 Administrative Law

Therefore, in a suit for injunction, the plaintiff may file an application for
temporary injunction. A temporary injunction is provisional in nature. It continues
for a specific period or until further order of the court; such an injunction does not
conclude a right. Its object is to maintain the status quo until the questions at
issue are decided by the court. It may be granted at any stage of the suit.

Temporary injunction may be granted ex parte, i.e., without hearing the other side.
To get an ex parte temporary injunction, the applicant has to satisfy the Court
about three things:

1. That he has a prima facie case.

2. That the balance of convenience lies in applicant’s favour.

3. That if the injunction is not issued, the applicant will suffer irreparable loss.

Normally temporary injunction is prohibitory in nature, preventing the opponent

from doing some act. Temporary injunction is not mandatory in nature, requiring
the opponent to do an act. This is because, once an act is done, the order is
discharged, and thereby the order becomes the final relief. However, in exceptional
circumstances mandatory temporary injunction may be issued. For example, a
construction made by the opponent in breach of a preventive order may be ordered
to be demolished. A student to whom the University has refused to issue hall
ticket may be ordered to be allowed to appear for examination. The result of the
examination may be withheld till the final order of the Court and may be declared
if the final order of the Court is in favour of the candidate.

Writ of Mandamus Compared with Injunction

Though mandamus is a public law remedy and injunction is a private law remedy,
there are many things common to both.

1. Both may be issued to compel an authority to do or prevent an authority

from doing an act.

2. Both are not ordinary legal remedies. Injunction is an equitable relief while
mandamus is an extra-ordinary remedy.

3. In both cases relief is not granted if there is an alternative remedy.

Mandamus has certain advantages over injunction.

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

8. Judicial Review 161

1. Mandamus being a constitutional remedy, is better than injunction which is

an ordinary remedy.

2. Mandamus being a constitutional remedy cannot be barred by a statutory

provision. Injunction can be.

3. Sec. 80 CPC is not applicable to mandamus. It is applicable to injunction,

though in cases of urgency the court has a power to dispense with the same.

4. Mandamus is comparatively speedier remedy than injunction.

On the other hand, injunction has some advantages over mandamus.

1. Injunction is a remedy which is available at local courts. Mandamus may be

issued only by High Courts or the Supreme Court.

2. In case of injunction compensation may also be sought, compensation

cannot be issued with mandamus.

3. In a suit for injunction oral evidence may be lead which gives the plaintiff a
better chance to prove his case. In case of mandamus evidence is lead
through affidavits only.

DECLARATION

A declaration is an order of the court stating the legal position between two
parties, and can be sought to provide some clarification on a disputed point of law.
An order declaration is declaration of some legal character of the plaintiff, such as
that plaintiff is the owner of a property, or that the plaintiff is a legally wedded wife
of the plaintiff, etc. In other words, it declares that the plaintiff has some right,
right of ownership, right to matrimonial home, etc.

A declaratory order has no coercive force as it does not require anybody to do

anything, and neglecting a declaration will not be a contempt. A declaration differs
from an ordinary judgement which can be enforced through execution
proceedings.

Therefore, Courts normally refuse to issue bare declarations. A fundamental

principle of law is that Courts do not pass orders which are of no use to the party
in whose favour the order is passed. Therefore, along with a prayer for declaration,
a consequential remedy has to be sought. The the suit cannot be, normally, a suit
for bare injunction, but should be a suit for declaration and possession, or
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

162 Administrative Law

declaration and injunction, etc. Where there is no consequential remedy available

to the plaintiff, bare declaration can be issued.

In England, although a bare declaration has no coercive force, a public body is

most unlikely to ignore the implications of any declaratory relief granted by, the
courts. The declaration is regarded in England as a particularly flexible remedy as
regards the challenging of executive action. In theory it permits the citizen to
question proposed executive action, rather than wait for it to happen and attempt
to have it quashed.

Thus, a great attraction of declaration is that it is an all purpose remedy which

can be used in an extraordinarily wide variety of cases. Two main virtues of a
declaratory action are to get relief before damage is caused, or to escape from
dilemma and uncertainty by a clarification of the legal position.

The purpose of declaration, if the parties take it in the right spirit, is to avoid
future litigation by removing existing causes or controversies, e.g., where a man is
in possession of some property under a title about which there is some legal
doubt, he may obtain a declaration in his favour to clear his title. Or, where there
exists a dispute about the status of two persons as husband and wife and the
legitimacy of the children, declaration would be an appropriate remedy to clarify
the legal position.

In Bai Shri Vaktuba v. Thakore, the plantiff-husband filed a suit for declaration
that a two year old boy allegedly born to the defendant wife was not his son. An
objection was taken that the suit was premature as no maintenance and rights in
the plaintiff's estate were being claimed against the plaintiff and that the interest
of the minor should not be prejudiced by deciding a question which would arise in
future. The court did not accept the contention as the wife had been making an
open assertion that the boy was plaintiff's son. In the opinion of the court, the
infant's case could be sufficiently placed before the court by a duly constituted
guardian. To hold otherwise would amount to holding that the plaintiff, openly
threatened with the serious claim, is condemned to inactivity for, it may be 20 or
30 years, leaving it to the claimant to file his suit at such time as would most
assist him in taking the plaintiff at a disadvantage. Further, questions of birth and
paternity should be determined while the evidence is still available.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

8. Judicial Review 163

DAMAGES

Where an individual has suffered any loss on account of an act of the government
or any servant of the government, he may claim compensation or damages, as the
case may be, against the government.

Under sec. 40, Specific Relief Act, a plaintiff in a suit for a perpetual or mandatory
injunction can also claim damages either in addition to, or in substitution of, such
injunction. The court may, in its discretion, award damages. Therefore, an
injunction will not be issued when damages would be an adequate remedy to the
aggrieved party, as in the case of a breach of contract.

The appropriate forum to recover damages is a civil Court of competent

jurisdiction. There are two important questions involved in a suit for damages:

1. Is the plaintiff is entitled to damages?

2. If yes, what is the quantum of damages?

To decide both these questions, the Court, in majority of cases, needs evidence.
Therefore, the decision as to damages cannot be, ordinarily, given in Writ
proceedings.

However, in the recent past, in order to avoid hardships to the petitioners and
multiplicity of proceedings, courts are, in cases of constitutional torts, awarding
damages to the petitioners. A constitutional tort is a tort which also involves
violation of fundamental right. This involvement of the fundamental right gives
jurisdiction to the Supreme Court under art. 32 or a High Court under art. 226.

Nilabati Behera vs. State of Orissa is a classic example of cases of such nature.
Petitioner’s son was arrested and kept in police custody. After two days his dead
body was found on railway tracks. Version of the police was that he tried to escape
from the police custody and was chased by the police to recapture him. In an
attempt to escape, he tried to cross railway lines without noticing the approaching
train, and died in the accident. Petitioner’s version was that her son was tortured
in police custody and due to the intolerable torture he died in police custody. To
avoid liability, the police threw his body on railway tracks to show as if there was a
railway accident. Supreme Court ordered inquiry by the District and Sessions
judge into the matter. The inquiry report submitted by the District and Sessions
unequivocally disclosed that the petitioner’s version was true. The Court awarded
damages to the petitioner and held that damages may be awarded in petitions
under art. 32 or art. 226 if the violation complained of is of fundamental right
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

164 Administrative Law

under art. 21 if the facts are not disputed or there is incontrovertible evidence to
prove the violation.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

CHAPTER IX

9. GOVERNMENT PRIVILEGES

• Privilege to Notice under sec. 80, C.P.C.

• Privilege to Withhold Documents
• State Liability under Statute
• Immunity from Estoppel and Waiver
• Special Provisions for Limitation
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

PRIVILEGES AND IMMUNITIES CLAIMED BY GOVERNMENTS IN

SUITS

Though the government is not treated differently from an individual, in some

cases, the government requires to be given special privileges in the interest of the
public. Ins some cases the government has claimed the privileges which are not
granted to it by the courts. The privileges which are claimed by the government
are:

1. Privilege of notice,

2. privilege to withhold documents,

3. immunity from operation of statutes

4. immunity from estoppel,

5. longer periods of limitation in some cases etc.

PRIVILEGE OF NOTICE

Section 80 of the Code of Civil Procedure, 1908 provides that no suits shall be
instituted against the government or against a public official in respect of any act
done by him in the official capacity until after two months from the date of notice
in writing. The requirement of notice in mandatory and notice must be in writing
and in the manner provided under sec. 80 CPC. But if the officer is acting without
jurisdiction, the requirement of notice is not mandatory. The requirement of the
notice may also be not necessary if the officer acts within the jurisdiction but in a
mala fide manner. But the Madras High Court has held that even if the officer acts
in a mala fide manner, notice is mandatory. The government may expressly or
impliedly, waive the requirement of notice. Requirement of notice is applicable to
all kinds of relief of civil nature. This requirement may cause hardship to the
parties in some cases.

In State of Orissa vs Madan Gopal, the government issued a notice to certain

lessors of mines under the government to remove their assets within a fortnight.
The lessees could not file suit for injunction because of the requirement of the two
month notice. Therefore, they approached the High Court for mandamus. The
High Court granted the writ because there was no effective alternative remedy. But
the Supreme Court reversed the order of the High Court. Therefore, the Law
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

9. Government Privileges 167

Commission recommended an amendment to Sec. 80 whereby the requirement of

notice could be dispensed with in case of matters, which are urgent. So these
recommendations were accepted and sec. 80 was amended in 1986 providing for
the power to the court to dispense with requirements of notice in urgent matters.

PRIVILEGE TO WITHHOLD DOCUMENTS

Sections 123 and 124 of the Indian Evidence Act, 1871 provide for the privilege to
withhold documents and information.

Sec. 123 lays down that no one shall be permitted to give any evidence derived
from unpublished official records relating to the affairs of State except with the
permission of the Head of the Department.

Sec. 124 provides that no one should be compelled to give evidence as to

confidential official communications unless the witness feels that it can be
revealed in public interest.

The Government misused these privileges in many cases by trying to withhold any
document which was against its interest. Therefore the courts developed certain
norms to prevent such misuse:

1. The claim of privilege should be in the form of an affidavit which must be

signed by the Minister concerned

2. The affidavit must state within permissible limits the grounds for withholding
the documents.

3. If the court is not satisfied by the facts presented in the affidavit, the court may
summon the authority for information.

Further, courts have also disallowed the privilege where there was sufficient
evidence to show that the privilege was casually pleaded. The High Court of Kerala
reserved to itself the right even to inspect the document before allowing the claim
of privilege. The Indian Evidence Act provides that the officer who claims the
privilege should bring to the court and then claim privilege. He cannot refuse to
take the document, to the court, and he brings the document to the court he must
satisfy the court the grounds for withholding the documents. If the court is not
satisfied, it may inspect the documents before allowing the privilege.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

168 Administrative Law

IMMUNITY FROM STATUTE OPERATION

The government claims privileges of not being bound by a statute on the strength
of two well-known maxims:

1. The King can do no wrong.

2. The King cannot be tried in the court of his own creation.

The first case was decided on this matter by the Privy Council in Province of
Bombay vs Municipal Corporation of Bombay. The case was whether the
government was bound by the Municipalities Act. The court answered in the
negative. After independence, a similar case came before the Supreme Court in
Director of Rationing and Distribution vs Calcutta Corporation the court held that the
government was not bound by a statute unless the statute provides that it is
binding the government expressly by necessary implication. This decision was
given by a bench of seven judges in which six judges formed the majority. Justice
Subha Rao gave his dissenting opinion. Shortly after that Justice Subba Rao
became the Chief Justice of India and a similar case came before the Supreme
Court in Superintendent and Legal Remembrancer to State of West Bengal vs
Corporation of Calcutta. Justice Subba Rao constituted a bench of 11 judges to
reconsider the decision in Director of Rationing and Distribution vs Corporation of
Calcutta, and he could persuade eight of his colleagues that the common law
theory of King can do no wrong was not appropriate in a democratic country. Even
in England, this theory has been given up after the Crown Proceeding Act 1947.
Hence the court held that government is bound by a statute unless it is expressly
or by necessary implication been provided that the government is not bound by
the statutes. It was pointed out that ‘however high you may be the law is above
you’.

In Union of India vs Jubbi, the statute provided that the tenants may become
owners by paying compensation to the landlord in the manner provided in the Act.
Jubbi who was a tenant, under the government offered to pay the compensation to
become the owner. But the government rejected this offer on the ground that the
statute is not applicable to government lands. But the Supreme Court rejected this
contention holding that there is no expressed or implied provision to exclude the
government from its operation.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

9. Government Privileges 169

IMMUNITY FROM ESTOPPEL

Estoppel is a rule of evidence by which a party is precluded from denying the

existence of some state facts which he had previously asserted on which the other
party has relied on and is entitled to rely on. Sec. 115 of the evidence Act provides
for estoppel even though a case may not fall under section 115, promissory
estoppel may still be invoked requiring a man to keep his order especially when it
is not a … promise but made with an intention that the other party should act
upon it. In the initial stages, the Supreme Court refused to apply estoppel against
the government especially in violation for statutes. In Amar Sigh vs State of Rajstan
the Supreme court refused to apply the estoppel against the government where the
collector had given an assurance that the petitioners land would not be acquired
during his lifetime under the Rajasthan Land Reforms Act. But since this promise
was in clear violation of the provisions of the statutes, the courts refused to apply
the doctrine of estoppel. In cases where the application of estoppel jeopardizes the
constitutional powers of the government, doctrine of estoppel is not applied. In C.
Shankarnarayanan vs State of Kerala, the government issued a notification under
Art. 309 raising the age of retirement but subsequently by issuing another
notification, the age of retirement was brought down to 59 years. Supreme Court
refused to prevent the government from exercising its constitutional powers by
application of doctrine of estoppel. The same rule was applied by the Supreme
Court in Ramanathan Pillai vs State of Kerala and also in State of Kerala vs Gwalior
Rayons and Silk Manufacturing Company.

In the latter case, the Gwalior Rayon’s company established its factory in Kerala
undertaking that the government would supply the raw material to it. But later the
government expressed its inability to supply the necessary raw material and
allowed the company to purchase its own land and promised not to interfere with
such land for a period of sixty years. The company spent substantial amount of
money and purchased 30,000 acres of land. Shortly afterwards, the government
acquired this land for agrarian reform under the powers given to it by a statute.
Such cases create real hardship for the persons who act upon the advice
responding to the invitation oft he government. Therefore, the court subsequently
relaxed their view in cases like Union of India vs Indo-Afgan Agrarian Ltd. In this
case, the textile Commissioner published a scheme of Export Promotion and
represented to the exporters of the woollen goods that they would be entitled to
import raw material of total amount equal to hundred percent of the FOB (Free on
Board) value of the exports. The respondents exported the woollen goods worth Rs.
5,00,000 but he was given the export license for Rs. 1.99 lakh. The government
contended that the scheme is only of administrative nature and not binding upon
the government. The court rejected this contention and held that though this
scheme has no statutory force, that cannot be entered against the government as
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

170 Administrative Law

such. The government was estopped from changing its position after the parties
have acted upon the scheme. Similarly, in Century Spinning and Manufacturing
Company vs Ulhasnagar Municipality, the Municipality agreed to exempt existing
industrial concerns in the area from octroi duty for a period of seven years. On the
strength of this representation, many industrial concerns expended their
business. After that the Municipality sought to impose the duty. The Supreme
Court held that it was estopped from changing its position. The whole law of
promissory or equitable estoppel against the governement was discussed afresh by
the Supreme Court in Motilal Padampat Sugar Mills vs State of U. P. In this case,
the following propositions were laid down:

1. The doctrine can be used as a shield or as a sword.

2. The doctrine was not based on any contract and even when the contract was
invalid under art. 299 still, the government could be bound by estoppel.

3. The application of this doctrine cannot be defeated on the plea of executive

necessity on freedom of future executive action.

However, as a doctrine of promissory estoppel is that equitable doctrine, it must

yield when equity so requires. If it can be shown by the government that in the
particular facts of the case, it would be inequitable to apply the doctrine, the
doctrine cannot be applied. It cannot be applied to enforce a contract which is
necessary to law or public policy. The doctrine of promissory estoppel cannot be
availed to permit or condone a breach of law. Further, legislative cannot be
stopped by exercising its legitimate powers in the public interest. But legislation
may be challenged on the ground of retro-activity.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

CHAPTER XI

10. MAL ADMINISTRATION

• Extra Judicial Remedies

• Parliamentary Remedies
• Tribunals
• Arbitration
• Ombudsman, CVC, Lokayukta and Lokpal
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

EXTRA JUDICIAL REMEDIES

In India, though people have great faith and confidence in judiciary, it is also true
that they hesitate to go to Courts. This is normally because of the highly formal
nature of Court proceedings, expenses involved, and the delays involved in getting
justice through judicial process. Normally in the first instance people try to have
political or departmental remedies. When they fail they think of approaching
Courts. On the other hand, Courts in India are especially over-burdened and there
is a need for alternative fora to settle the disputes.

PARLIAMENTARY REMEDIES

India and England are democratic countries having parliamentary form of

governments which comprise of the elected representatives of people. In both the
countries there is an effective control of Parliament over the executive. Therefore,
Garner observes that the ‘natural’ remedy available to a subject aggrieved as a
consequence of a policy decision taken by a government agency is to write to the
MP who represents him in an attempt obtain redress.

TRIBUNALS

Tribunals are effectively an alternative procedure to the Court system for

enforcement of legal rights. Modern tribunals developed very much alongside the
increase in governmental intervention and the growth of the welfare state. It was
anticipated that not only the formal process of the Courts will be inappropriate for
resolution of such disputes between the citizen and the State, but also at the
Courts would simply not able to deal with volumes of complaints and appeals
likely to be generated. Judicial process is expensive not only to the citizen but also
to the State, not only in defending the litigation, but also in providing free legal aid
to the persons entitled to it. This is where the tribunal come as an alternative to
Courts.

Tribunals provide a cheap, informal and speedy forum for the resolution of
disputes, untrammelled by technicalities of procedural rules, and, indeed by
lawyers.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

10. Mal Administration 173

Tribunals are, however, clearly judicial in nature. There function is to find facts,
apply law and resolve the disputes. They are not concerned with issues of policy.
Just like Courts, they are independent of executive interference.

If the statute provides for appeal, then the decision of the tribunal is subject to
appeal. The appeal may lie to an appellate tribunal, or to a Court, or sometimes,
as in case of England, to a Minister. But, usually order of a tribunal is made final
statutorily. In such cases there is no appeal against the order of the Court. But as
a statute cannot abridge or nullify a Constitutional remedy, the orders of tribunal
are still amenable to the Writ jurisdictions of High Courts and Supreme Court.

ARBITRATION

Arbitration is another means of alternative remedy. Though normally this a

remedy left to the option of the parties, and parties have a choice to approach
Courts or arbitration tribunal at their option, some statutes make it compulsory to
refer certain disputes arising under those statutes between an individual and
government to the arbitration. Sec. 7-B of the Telegraph Act provides that any
dispute concerning a telegraphic appliance/ apparatus/line between the telegraph
authority and a licensee (for whose benefit the line, appliance or apparatus is, or
has been provided) shall be determined by arbitration by an arbitrator appointed
by the Central Government.

OMBUDSMAN, CVC, LOKAYUKTA AND LOKPAL

OMBUDSMAN

‘Ombudsman’ means ‘a delegate, agent, officer or commissioner.’ A precise

definition of ‘Ombudsman’ is not possible, but Garner rightly describes him as “an
officer of Parliament, having as 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.”

The Ombudsman inquires and investigates into complaints made by citizens

against abuse of discretionary power, maladministration or administrative
inefficiency and takes appropriate actions. For that purpose, very wide powers are
conferred on him. He has access to departmental files. The complainant is not
required to lead any evidence before the Ombudsman to prove his case. It is the
function and duty of the Ombudsman to satisfy himself whether or not the
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

174 Administrative Law

complaint was justified. He can even act suo motu. He can grant relief to the
aggrieved person as unlike the powers of a civil court, his powers are not limited.

Ombudsman in India

Institution started functioning in the year 2000 as a 7 member body with a Retd.
Judge of the High Court as its Chairman. The successor government changed the
constitution and made it a single member body through an amendment of the
Panchayath Raj Act in the year 2001.

With effect from 17-3-2008 the office of Ombudsman is held by Mr. Justice M.R.
Hariharan Nair, a former Judge of the High Court of Kerala. His appointment is for
a term of 3 years which ends on 16-3-2011.

During the preceding 3 years the office was held by Justice T.K. Chandrasekhar
Das and before that by Mr. Justice K.P. Radhakrishna Menon. The Chairman of
the 7 member body which was functional in the year 2000 was Mr. Justice P.A.
Mohamed. All of them have rendered exemplary service to the institution.

That the Court Fee necessary for filing a complaint is only Rs.10/- and that
services of Advocate is unnecessary for conducting the case make this institution
unique, inexpensive and fast functioning. Complaints to the Ombudsman are to be
addressed to the Secretary. They are to be prepared in ordinary paper and
accompanied by Form A duly filled up and with stamps worth Rs.10 affixed
therein. Form A can be obtained from any office of the Local Bodies. Complaints,
prepared as above and accompanied by as many copies as there are respondents
in the case, can be presented in person to the Secretary, or sent to him in the
address:

“Office of the Ombudsman for LSGI,

Bartons Bill Bungalow,
Kunnukuzhi, Vanchiyoor P.O;
Thiruvananthapuram – 695037”.

Telephones: 0471-2300541, 2300542, and 2300543. Fax. 0471-2300542.

E mail: ombudsmanlsgi@gmail.com.

CENTRAL VIGILANCE COMMISSION (CVC)

Central Vigilance Commission (CVC) is an apex Indian governmental body created

in 1964 to address governmental corruption.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

10. Mal Administration 175

It has the status of an autonomous body, free of control from any executive
authority, charged with

1. monitoring all vigilance activity under the Central Government of India, and

2. advising various authorities in central Government organizations in

planning, executing, reviewing and reforming their vigilance work.

It was set up by the Government of India in February, 1964 on the

recommendations of the Committee on Prevention of Corruption, headed by Shri
K. Santhanam, to advise and guide Central Government agencies in the field of
vigilance.

Role of CVC

The CVC is not an investigating agency, and works through either the CBI or
through the Departmental Chief Vigilance Officers. The only investigation carried
out by the CVC is that of examining Civil Works of the Government which is done
through the Chief Technical Officer. Corruption investigations against government
officials can proceed only after the government permits them. The CVC publishes a
list of cases where permissions are pending, some of which may be more than a
year old The CVC has also been publishing a list of corrupt government officials
against which it has recommended punitive action.

Appointment of CVC

The Central Vigilance Commissioner and the Vigilance Commissioners are

appointed by the President after obtaining the recommendation of a Committee
consisting of the Prime Minister as Chairperson and the Home Minister and the
Leader of the Opposition in the Lok Sabha as members.

Removal of CVC

The Central Vigilance Commissioner or any Vigilance Commissioner can be

removed from his office only by order of the President on the ground of proved
misbehaviour or incapacity after the Supreme Court, on a reference made to it by
the President, has, on inquiry, reported that the Central Vigilance Commissioner
or any Vigilance Commissioner, as the case may be, ought to be removed.

The President may suspend from office, and if deem necessary prohibit also from
attending the office during inquiry, the Central Vigilance Commissioner or any
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

176 Administrative Law

Vigilance Commissioner in respect of whom a reference has been made to the

Supreme Court until the President has passed orders on receipt of the report of
the Supreme Court on such reference.

The President may, by order, remove from office the Central Vigilance
Commissioner or any Vigilance Commissioner if the Central Vigilance
Commissioner or such Vigilance Commissioner, as the case may be:

1. is adjudged an insolvent; or

2. has been convicted of an offence which, in the opinion of the Central

Government, involves moral turpitude; or

3. engages during his term of office in any paid employment outside the duties
of his office; or

4. is, in the opinion of the President, unfit to continue in office by reason of

infirmity of mind or body; or

5. has acquired such financial or other interest as is likely to affect

prejudicially his functions as a Central Vigilance Commissioner or a
Vigilance Commissioner

Limitations of CVC

The following are the limitations of CVC:

1. CVC is only an advisory body. Central Government Departments are free to

either accept or reject CVC's advice in corruption cases.

2. CVC does not have adequate resources compared with number of

complaints that it receives. It is a very small set up with a sanctioned staff
strength of 299. Whereas, it is supposed to check corruption in more than
1500 central government departments and ministries.

3. CVC cannot direct CBI to initiate inquiries against any officer of the level of
Joint Secretary and above on its own. Such a permission has to be obtained
from the concerned department.

4. CVC does not have powers to register criminal case. It deals only with
vigilance or disciplinary cases.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

10. Mal Administration 177

5. CVC has supervisory powers over CBI. However, CVC does not have the
power to call for any file from CBI or to direct CBI to investigate any case in
a particular manner. CBI is under administrative control of Department of
Personnel and Training (DoPT). Which means that, the powers to appoint,
transfer, suspend CBI officers lie with DoPT.

6. Appointments to CVC are indirectly under the control of Govt of India,

though the leader of the Opposition (in Lok Sabha) is a member of the
Committee to select CVC and VCs. But the Committee considers candidates
put up before it. These candidates are decided by the Government.

As a result, although CVC is relatively independent in its functioning, it has

neither resources nor powers to inquire and take action on complaints of
corruption that may act as an effective deterrence against corruption.

LOKAYUKTA

Problems of Redressal of Citizens Grievances is the subject on which the

Administrative Reforms Commission headed by Late Shri. Morarji Desai, who later
became the Prime Minister of India gave its first report. It is that report which
recommended for the establishment of Lokpal and Lokayukta institutions at the
Central and State level respectively for redressal of citizens grievances by
investigating into administrative actions taken by or on behalf of Central
Government or State Government or certain public authorities. These institutions
were intended to serve as institutions independent of the Government concerned
and as institutions to supplement the judicial institutions headed by Chief
Justices or Judges of Supreme Court of India or High Court of the State.

The recommendation for appointment of Lokayuktas at the States level, as

indicated in that report, was made to improve the standards of Public
Administration, by looking into complaints against administrative actions,
including cases of corruption, favouritism and official indiscipline in
administrative machinery. It is the said recommendation which made the
Karnataka State Legislature to enact the Karnataka Lokayukta Act, 1984 for
investigating into allegations or grievances in respect of administrative actions
relatable to matters specified in List II or List III of the VII Schedule to the
Constitution of India.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

178 Administrative Law

LOKPAL

The term Lokpal is the Indian version of Ombudsman. In 1966 the then President
Dr. Radhakrishnan set up the Administrative Reforms Commission headed by
Morarji Desai which recommended enacting a law for the establishment of a
Lokpal.

Between 1968 and 2001 eight times Bills were introduced in the Parliament to
enact a law relating to the Lokpal. Every time the Bill lapsed or was allowed to
lapse. In the first four Bills the Prime Minister was not included within the
jurisdiction of Lokpal while the last four Bills included the Prime Minister within
the jurisdiction of Lokpal.

Below is a list of Lokpal Bills indicating whether the Prime Minister was included
or excluded in the Lokpal’s jurisdiction in the different Bills introduced since
1968.

PM not Included: The Lokpal and Lokayuktas Bills of 1968 and 1974, The Lokpal
Bills of 1977 and 1985.

PM included: The Lokpal Bills of 1989, 1996, 1998 and 2001.

The scheme of the Lokpal under the 1977 Bill prepared by the Janata Government
was materially different in many important respects from the earlier Bills.

1. Unlike the 1968 and 1971 Bills, the Lokpal Bill, 1977, did not talk about the
Lokayukta; it provided instead for the appointment of ‘Special Lokpals’ for
the expeditious disposal of cases.

2. It included the Prime Minister also in its ambit whereas the other Bills did
not include him.

3. While the earlier Bills covered both “allegations of misconduct” and

“grievances”, the 1977 Bill excluded the latter from its jurisdiction. It defined
the word “misconduct” in wider terms.

4. Unlike the earlier Bills, the 1977 Bill embraced Ministers and Members of
Parliament but excluded bureaucracy from its purview.

5. While earlier Bills provided for consulting the Leader of the Opposition in the
appointment of Lokpal, the 1977 Bill was silent about it.

1985 Bill was, again, different in certain respects from the earlier Bills
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

10. Mal Administration 179

1. The Prime Minister and members of Parliament were excluded from the
purview of this Bill.

2. The all-inclusive nature of the definition of ‘corruption’ given in the 1977

Bill, was done away with the scope of complaints was restricted to the
relevant provisions of the Prevention of Corruption Act and the Indian Penal
Code.

3. Prosecution on allegations held unproved or false by the Lokpal was barred.

The fifth Bill, introduced on 29 December 1989 in the Lok Sabha, aimed at
curbing corruption at the higher political levels, as claimed in its Statement of
Objects and Reasons.

This Bill made many departures from those brought forward previously in terian
important respects.

1. The Prime Minister once again was brought within the purview of the
Lokpal.

2. The competent authority to whom the Lokpal was to forward his report in
the 1989 Bill in relation to Prime Minister was the House of the People and
about a public functionary, other than the Prime Minister, was the Prime
Minister.

In contrast, the Lokpal Bill, 1985, provided that the competent authority to whom
the report would be sent by the Lokpal was the Prime Minister.

The 1985 Bill empowered the President to appoint as Lokpal “a person who is or
has been or is qualified to be a Judge of the Supreme Court”, while the 1989 Bill
said that the President would appoint persons who are or have been Judges of the
Supreme Court as the Chairman and members of the Lokpal.

Besides, unlike all the previous Bills, the 1989 Bill proposed to set up a three-
Member Lokpal with a Chairman and two Members.

Like the Lokpal Bill 1989, the Lokpal Bill 1996 also proposed to set up a three-
member Lokpal.

However, the Lokpal was to be appointed by the President on the recommendation

of the Committee consisting of seven members viz.,

1. The Prime Minister who will be the chairman of the committee

Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

180 Administrative Law

2. The Speaker of the Lok Sabha

3. Minister-in-charge of the Ministry of Home Affairs

4. Minister-in-charge of the Ministry of Personnel Public Grievances and

Pensions

5. and 6. The Leaders of the Opposition in the Rajya Sabha and the Lok Sabha

7. The Deputy Chairman of the Rajya Sabha.

Upon perusal of all eight Government Bills, one finds that there is perceptible shift
in the central focus of the legislation from the issue of redressal of public
grievances to corruption at high places.

This radical departure can be observed from the Lokpal Bill, 1977 and Bills
introduced thereafter have no provision for redressal of citizens’ grievances and
thereby stripped off Lokpal its intrinsic concept.

In the first two Bills (Lokpal and Lokayuktas Bill, 1968 and Lokpal and Lokayktas
Bill, 1971) clause 2 contained definition of the terms ‘grievance’ and ‘mal-
administrations’ which were conspicuously missing in the proposed legislations
introduced from 1977 onwards.

Rest of the Bills in their clause 2 had inter-alia the definition of the terms
‘complaint’ or ‘corruption’ instead of ‘grievance’ or ‘maladministration’.

Therefore, it is evident that over the years Parliament’s concern appears to have
been growing more with matters relating to corruption than with the citizens’
grievances.

While in the first two Bills (1968 and 1971) the emphasis was on ‘complaints’ and
‘grievances’ of mal-administration against public servants, in the latter Bills of
1977, 1985, 1989, 1996, 1998 and 2001 the emphasis had shifted to ‘ allegations
of corruption’ against ‘ public functionaries’.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

Lok Pal Bills

In 1966 the then Rastrapati Dr. Radhakrishnan set up the Administrative Reforms
Commission headed by Morarji Bhai Desai it was this A.R.C. that recommended
enacting a law for the establishment of a Lokpal.

Today’s Lok Sabha is the Fifteenth Lok Sabha. The first time a Bill of this genre
was introduced was 43 years back, in the Fourth Lok Sabha. It was then described
as the Lokpal and Lokayuktas Bill, 1968.

The Bill was referred to a Joint Committee of the two houses and on the basis of
the Committee’s report the Bill was passed by the Lok Sabha. But while the Bill
was pending before the Rajya Sabha, the Lok Sabha was dissolved, and so the Bill
lapsed.

In the Fifth Lok Sabha Smt. Indira Gandhi once again introduced the Bill. For six
long years it remained in the queue of Bills ‘to be considered’. In 1977, the Lok
Sabha was dissolved and the Bill lapsed.

In 1977, under Morarji Bhai’s Government, the Bill was introduced as the Lokpal
Bill, 1977. The Bill was referred to a Joint Committee which submitted its Report
in July, 1978.

While the Bill as reported was being considered by the Lok Sabha, the Lok Sabha
was prorogued and later dissolved. So this Bill also lapsed.

In the Seventh Lok Sabha formed in 1980, no such Bill was presented.

In 1985, with Rajiv Gandhi as Prime Minister, the Lok Pal Bill was presented
afresh. It was again referred to a Joint Committee. I was Leader of Opposition in
the Rajya Sabha at the time. At the very outset I pointed out that two joint
committees had earlier examined the Bill in great detail, heard many experts, and
collected massive evidence. This elaborate exercise need not be repeated. But the
Committee, in its wisdom, thought otherwise.
Youtube channel MJPRU DAILY NEWS whatsapp helpline 9837041086 TELEGRAM MJPRU LLB

182 Administrative Law

For over three years, the Committee went round the country from Shimla to
Trivandrum, and form Panjim to Port Blair. The Committee actually visited 23
different States and Union Territories.

The Committee’s tenure was extended as many as eight times and at the end of it
all on November 15, 1988, then MOS for Home, Shri Chidambaram informed the
committee that Government had decided to withdraw the Bill.