Professional Documents
Culture Documents
Indian Law Institute 2 more questions must be added to have a complete idea
of present day A.L.
(iv)
What are the procedures followed by the administrative authorities?
(v)
What are the remedies available to a person affected by
administration?
Diversity in the definitions Every specialist tries to lay emphasis on any one
particular aspect of the whole administrative process.
I.P. Massey A.L. is the law relating to the administrative operation of
government. It deals with the powers and duties of administrative
(i)
(ii)
Droit Administratif does not represent principles and rules laid down by the
French Parliament. Consists of rules developed by the judges of administrative
courts.
Droit Administratif:
Rules dealing with the administrative authorities and officials.
Rules dealing with the operation of public services to meet the needs of
citizens.
Rules dealing with administrative adjudication.
Conflict b/w ordinary courts and administrative courts regarding jurisdiction
Tribunal des Conflicts to decide the case.
Government officials Protected from the control of ordinary courts.
Sources of A.L.
Constitution Provides for functional organizations and also for control
mechanism.
Statutes Exercise of administrative power must conform to statutory
patterns
Ordinances President/Governor.
Delegated legislation.
Case Laws
Reports of committees
Administrative directions (directions issued by higher authorities to lower
ones).
9/6/08
RULE OF LAW
A.L. Gained importance recently Mistrust of people regarding the growth of
A.L. Rule of Law was used against its growth.
French phrase la principe de legalite (the principle of legality) Government
based on the principle of law & not of men Opposed to arbitrary power.
Old origin Sir Edward Coke King must be under God & Law.
Upanishad law is the king of kings.
A.V. Dicey no wide powers in the hands o govt. officials wherever there is
discretion there is room for arbitrariness.
Viable and dynamic concept not capable of exact definition Said to be the
modern name for natural law.
Rule of law can be used in 2 senses:
(i)
Formalistic sense Organized power as opposite to rule by one man.
(ii)
Idealistic sense Regulation of the relationship of the citizens and the
government Ethical code for the exercise of public power in any
country Equality, freedom and accountability.
Diceys concept of Rule of Law
(i)
Absence of discretionary power in the hands of the govt. officials
(Supremacy of Law) Police action.
Wade The R.O.L. requires that the govt. should be subject to the law,
rather than the law subject to the government.
(ii)
No person should be made to suffer in body or deprived of his property
except for a breach of law established in the ordinary legal manner
before the ordinary courts of the land (Equality before law).
(iii)
The rights of the people must flow from the customs and traditions of
the people recognized by the courts in the administration of justice If
the source of fundamental rights is the Constitution, rights may be
abrogated by amendment (Predominance of legal spirit).
Compared English system with that of French
France Sepcial administrative courts Negation of rule of law.
England No A.L. Secret of English mens liberty.
Criticism of Dicey
Prof. Cosgrove discovers in Dicey a somber, uncompromising and artless figure,
lacking in confidence as a scholar and frustrated in his political ambitions.
Dicey never fully grasped the merits of A.L. By A.L. he meant only a single
aspect of Droit Administratif, namely administrative jurisdiction to the exclusion
of ordinary courts Administrative adjudication is also not inferior to judicial
adjudication, if the safeguards which protect the exercise of judicial functions are
applied.
Dicey Misconceived A.L. thought that the French system (Droit Administratif) is
A.L. A.L. is more than that (For instance, judicial review is not in Droit
Administratif but very much part of admin law).
Failure to recognize A.L. in England Crown and its servants enjoyed special
privileges King can do no wrong Special courts i.e. ecclesiastical and
admiralty courts Special tribunals established under the Poor Law Amendment
Act 1834 (law passed for giving relief to the poor people.)
Failure to distinguish arbitrary power from discretionary power.
No essential contradiction between R.O.L. and A.L. Absence of arbitrariness and
equality do not counter A.L. A.L. doesnt sanctify executive arbitrariness but
checks it and protects the rights of people Reconciliation of liberty with power.
Modern Concept of Rule of law is farily wide Functions of the govt. in a free
society should be so exercised as to create conditions in which the dignity of
man as an individual is upheld Creation of political, social, economic,
educational and cultural conditions.
Runs like a golden thread throughout the Indian Constitution
Justice, liberty and equality Fundamental rights
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
The Rule of Law is an aspect of the doctrine of basic structure of the Constitution,
which even the plenary power of Parliament cannot reach to amend.
A.D.M. Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207.
Detention orders during emergency Art. 21 inoperative Challenged on the
ground of violation of R.O.L.
Whether the persons detained can move the court?
Whether the persons have a right to life and personal liberty other than
Art. 21? this would determine the above question, since if the answer is no,
then the petitioners did not have a right to move the court since Part III was
suspended in the emergency.
Contention was accepted in the observations of the judges But not in the final
order Some judges were of the opinion that during an emergency, the
emergency provisions themselves constitute the rule of law.
Ray, C.J., Beg, J., Chandrachud, J. and Bhagwati, J. The Constitution is the
mandate. The Constitution is the Rule of Law. There cannot be rule of law other
than the constitutional rule of law. There cannot be any pre-constitutional or post
constitutional rule of law which can run counter to the R.O.L. embodied in the
Constitution, nor can there be any invocation to any R.O.L. to nullify the
constitutional provisions during the time of emergency. Art. 21 is ourt rule of raw
regarding life and liberty. No other rule of law can have separate existence as a
distinct right.
SEPARATION OF POWERS
Traceable to Aristotle.
Writings of Locke and Montesquieu gave base
Locke:(i)
Discontinuous legislative power.
(ii)
Continuous executive power Executive + judicial.
(iii)
Federative power Conducting foreign affairs.
Montesquieu Espirit des Lois
(i)
General legislative power.
(ii)
2 kinds of executive powers (i) pure administrative power etc., (ii)
federative power.
(iii)
Judicial power.
Both derived from the British constitutional history of 18 th century War between
the Parliament and the king Bill of rights.
When the legislative and executive powers are united in the same person or in
the same body of magistrates, there can be no liberty, because apprehensions
may arise, lest the same monarch or senate should exact tyrannical manner.
Again there is no liberty if the judicial power be not separated from the
legislative and the executive. Where it joined with the legislative, the life and
liberty of the subject would be exposed to arbitrary control; for the judge would
be then a legislator. Where it joined to the executive power, the judge might
behave with violence and oppression.
There would be an end of everything, were the same man or the same body,
whether of the nobles or of the people, to exercise those three powers, that of
enacting laws, that of executing the public resolutions and of trying the causes of
individuals.
Wade & Philips
- The same person should not form part of more than one of the 3 organs.
- One organ of the government should not interfere with another organ.
- One organ of the govt. should not exercise the functions assigned to any
other organ.
Montesquieus theory attracted many English and American jurists.
Blackstone If the legislative, the executive and the judicial functions were
given to one man, there was an end of personal liberty.
Madison The accumulation of all powers, legislative, executive and judicial, in
the same hands, whether of one a few or many and whether hereditary, selfappointed or elective may justly be pronounced the very definition of tyranny.
Criticism
- Historical inappropriateness No separation of powers in England King is
integral part of legislature His ministers are the members of one or other
houses of Parliament Lord Chancellor is a member of the govt.
- No watertight compartments Practical difficulty Not possible in welfare
state.
14/6/08
America Doctrine forms the foundation of whole structure of the Constitution
Checks and balances
SC has no power to decide political questions No power of judicial review is
provided in the Constitution But usurped by the Court.
Strict classification is found impossible President exercises veto in the Congress
Exercises law-making power in the from of exercise of his treaty making-power
Interferes with judiciary by way of appointing the judges of SC.
Judiciary exercises the power of judicial review.
Panama Refining Company v. Ryan, (1935) US 388.
Oil overproduction The National Industry Recovery Act, 1934 authorized the
President to impose ban on shipment Held as invalid Congress did not
establish primary standard i.e. did not lay down the framework excess
delegation.
J. Cardozo was the sole dissenter Statute was framed to meet the national
disaster.
SOP is not a doctrinaire concept to be made use of with pedantic rigour. There
must be sensible approximation, there must be elasticity of judgment in
response to practica necessities of govt. which cannot foresee today the
development of tomorrow in their nearly infinite variety.
India No constitutional status apart from A. 50
C.J. Ray in the Indian Constitution, there is SOP in a broad sense only. A rigid
SOP as under the American or Australian Constitution does not apply to India.
SC has the power to declare void the laws and actions of the executive this
applies even to Constitutional Amendments.
President Ordinance making power
Plus Art. 103(1) and A. 217(?) questions regarding disqualification of m.p.s and
appointment of judges.
Council of Ministers selected from legislature and responsible to it.
Legislature Impeachment of the President and removal of judges.
CLASSIFICATION OF ADMINISTRATIVE ACTION
Administrative action Comprehensive term
Cuts across the traditional classification of powers.
4 categories
Rule making action/Quasi-legislative
American constitution expressly confers to the legislature Implied under the
Indian Constitution (Arts. 107-111 etc.)
Impossible to provide quality and quantity of laws.
Rule-making action partakes all characteristics of legislative action.
Characteristics of legislative action:
(i)
Generality
(ii)
Public interest
(iii)
Rights and duties of people.
(iv)
Prospectivity.
State of Punjab v. Tehal Singh (2002) 2 SCC 7.
Declaration determining the territorial area of a Gram Sabha and thereafter
establishing the gram Sabha Is it quasi-legislative?
Where the provisions of statute provide for legislative activity.
(i)
(ii)
(iii)
Rules of natural justice do not apply except reasonableness and fair play.
Rule of decision action/Quasi-judicial
More decisions from administrative agencies
Power to perform acts administrative in character, but incidentally requires some
judicial traditions Disciplinary proceedings, cancellation, suspension or refusal
to renew license.
Airport Authority had the right to reject all or any of the tenders Can give
contract to anyone.
HELD
Exercise of discretion is an inseparable part of sound administration and,
therefore, the State which is itself a creature of the Constitution, cannot
shed its limitation at any time in any sphere of State activity.
It is indeed unthinkable that in a democracy governed by ROL the
executive govt. or any of its officers should possess arbitrary powers over
the interests of an individual. Every action of the executive govt. must be
informed with reason and should be free from arbitrariness. That is the
very essence of ROL and its bare minimal requirement.
The govt. cannot be permitted to say that it will give jobs or enter into
contracts or issue quotas or licences only in favour of those having gray
hair or belonging to a particular political party or professing a particular
religious faith. The govt. is still the govt. when it acts in the manner of
granting largesse and it cannot act arbitrarily. It does not stand in the
same position as a private individual.
Though the 1st respondent had the power to negotiate directly, he did not
exercise the power Process of awarding a contract by inviting tender was
not terminated.
Even if some defect is found in the decision making process, the decision
should not be interfered with unless it is unreasonable, mala fide or
arbitrary and overwhelming public interest requires so.
Decision making process and not the decision, which is amenable to
judicial review.
R.D. Shetty was relied upon.
admittedly puts the FAA in the dilemma of discharging all the controllers
involved in the work stoppage or dropping its contention that there was
such a stoppage, we cannot, as judges, scrap the meaning of so clear a
statute in order to resolve the agencys dilemma for it. That task belongs
to Congress, which, in light of increasing concerted action by public
employees, should enact a more realistic statutory provision
RULE-MAKING POWER OF THE ADMINISTRATION
Tremendous importance Bulk of the law from the administrators.
Legislation of Parliament is not complete, unless read with rules and regulations.
Delegated legislation that which proceeds from any authority other than the
sovereign power and is, therefore, dependent for its continued existence and
validity on some superior or supreme authority (Salmond)
Need for delegated legislation
Exigencies of the modern state Social and economic reforms.
Parliament only passes skeletal legislation.
Between 1973 to 1977 302 laws approximately 25, 414 orders and rules.
Pressures upon the Parliament Even if in continuous session, the
Parliament cannot give the quantity and quality laws required.
Technicality Subject matter of legislation may be technical and require
consultation with experts.
Flexibility and experimentation Cannot foresee all contingencies Power
is given to executive meet unforeseen contingencies Rapid amendment.
Emergency Quick action is required.
Confidential matters If public interest demands the nondisclosure until
coming into operation Ex: Imposition of restriction on private ownership.
Direct participation in the structuring of law.
Though useful and inequitable, cannot be more Administration may take away
the right Norm of jurisprudence of delegation must be followed.
Classification of Delegated Legislation
(1) Title based classification.
Rule, regulations, order, bye-laws, directions and scheme.
The Committee on Ministers Powers Simplification of nomenclature
Rule to statutory instrument regulating procedure.
Regulation to describe substantive administrative rule-making.
Order to be confined to instruments containing executive and quasijudicial decisions.
(2) Discretion-based classification
Subordinate legislation Discretionary elaboration of rules and
regulations.
Contingent/Conditional legislation Only when the administrative
authority finds the existence of the condition specified in the statute Not
exactly the delegated legislation Not open to attack on the basis of
excessive delegation.
Union of India v. Shree Gajanan Maharaj Sansthan (2002) 5 SCC 44.
Registered charitable trust Industry S. 2(j) of I.D. Act and interpretation in
Rajappa Case.
S. 24(1) State govt. to frame rules for giving effect to the provisions of
the Act.
S. 24 (2)(e) Rules may provide for the delegation of the powers and
functions conferred by this Act on the State Government or the Food
(Health) Authority to subordinate authorities or to local authorities.
Rule 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958
Empowered the sate govt. to delegate.
Notification dated 10 October 1968 Delegation to the Food (Health)
Authority 7th September 1972 Notification from the Food (Health)
Authority authorized the Food Inspector Challenged R. 3 is ultra vires.
Sub-delegation makes parliamentary control illusory Only in unavoidable
circumstances.
(5) Nature based classification (Normal and Exceptional)
Normal Delegation (Positive or Negative): (a) Positive Where the limits of
the delegation are clearly defined in the Act. (b) Negative Where the
power delegated prohibits doing certain things.
Exceptional Delegation Henry VIII clause Ex: A. 372(2) Immune from
the scrutiny of the courts. (Sandeepa insists that there is a blanket
immunity no clue how this is possible)
Constitutionality of Administrative Rule-making
Welfare state Enhancement of the power of the govt. Constitutional limits
must be followed.
England Parliamentary supremacy Can confer wide legislative power
Excessive delegation has no application Parliamentary control is the only
way of controlling.
USA Doctrine of SOP and delegatus non potest delegare Power cannot be
delegated.
Prof. Cushman
Major premise: legislative power cannot be constitutionally delegated by
Contress.
Minor premise: It is essential that certain power be delegated to
administrative officers and regulatory commissions.
Conclusion: Therefore, the powers thus delegated are not the legislative
powers.
Much stricter norm of delegation
Panama Refining Co. v. Ryans 293 US 388 (1935) already done earlier
scroll up and check.
India
(a) When the Privy Council was the highest court of appeal:
R v. Burah (1878) 3 AC 889.
1869 Act by Indian legislature Removal of Garo Hills from the civil and
criminal jurisdiction of Bengal Vested the power with an officer appointed
by Lt. Governor of Bengal.
S. 9 Lt. Governor was authorized to extend with incidental changes to
Naga, Khasi and Jaintia Hills.
Burah was tried for murder by the Commissioner of Khasi and Jaintia Hills
and was sentenced.
Cal HC S. 9 is unconstitutional delegatus non potest delegare (Held
that the Indian Legislature is a delegate of the Imperial Parliament)
Privy Council Indian Legislature is not a delegate Conditional legislation
Valid.
(b) When Federal court became the highest court of appeal:
Jatindra Nath Gupta v. Province of Bihar, AIR 1949 FC 175
s. 1(3) OF THE Bihar Maintenances of Public Order Act, 1948 Provincial
govt. may extend the life of the Act for one year with such modifications
as it may deem fit Challenged.
Federal Court: Power of extension with modification is an essential
legislative act Cannot be delegated.
(c) When the S.C. became the highest court of appeal:
Doubt created by the above decision.
Re Delhi Laws Act, AIR 1951 SC 332.
S. 7 OF THE Delhi Laws Act, 1912 The Provincial Government may
extend, with such restrictions and modifications as it thinks fit, to the
Province of Delhi or any part there-of any enactment which is in force in
any part of British India at the date of such notification.
S. 2 of the Ajmer Merwara (Extension of Laws) Act, 1947 The central
Government may extend to the Province of Ajmer Merwara, with such
restrictions and modifications as it thinks fit, any enactment which is ni
force in any other Province at the date of such notification.
S. 2 of the Part C States (Laws) Act, 1950 The Central Government may
extend to any Part C State or to any part of such State, with such
restrictions and modifications as it thinks fit, any enactment which is in
force in a Part A State at the date of the notification and provision may be
made in any enactment so extended for the repeal or amendment of any
corresponding law which is for the time being applicable to that Part C
State.
Delegation made at different periods Argued from two extreme positions
S.C. struck a balance.
S.O.P. is not expressly mentioned in the Indian Constitution.
Indian legislature was never an agent of anybody delegatus non potest
delegare is not applicable (R v. Burah)
Parliament cannot abdicate or efface itself by creating a parallel legislative
body Two tests: (i) So long as the legislature has power to control and (ii)
so long it has the power to revoke the action, there is no abdication or
effacement.
Power of delegation is ancillary to the power of legislation Necessary in
the modern world.
The limitation on delegation is that the legislature cannot part with its
essential legislative power vested in it by the Constitution.
S. 7 of the Delhi Laws Act, 1912 is valid.
S. 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947 is valid.
S. 2 of the Part C States (Laws) Act, 1950 is valid except that part of the
section which delegated the power of repeal and amend any existing law.
5/7/08
Excessive delegation Unconstitutional Presumption in favour of vires If 2
interpretations are possible, court favours the one, which makes it constitutional.
Courts on extent of permissible delegation
Legislature must declare the policy of the law:
Rajnarain Singh v. Chairman, Patna Administration Committee AIR 1954 SC 569.
Petitioner was the secretary of Rate Payers Association, Patna Originally
outside the municipal limits of Patna On 18 th April 1951, the area was brought
in to the limit Subjected to municipal taxation Challenged.
Background 1911 formation of province or Bihar and Orissa Patna City, Patna Administration
and Patna Village Bengal Municipal Act, 1884 applied to the provinces Only
Patna City was under the municipality created by the Act.
Expansion of Patna Plan to bring Patna Administration under the municipal
limits Instead of subjecting it to the existing one, the Patna Administration Act
of 1915 was enacted to establish municipality State did not draw a new
municipal act, nor did it apply the 1884 Act.
S. 3(1)(f) Empowered the local govt. to extend any provision of the 1884 Act
subject to restrictions and modifications.
S. 5 Local govt. is empowered to cancel or modify any order S. 3.
S. 6(b) Power on the local govt. to include any local area within Patna.
Patna Administration Committee was established Certain provisions of 1884 Act
were extended 2 parallel systems (Patna City 1884 Act whereas Patna
Administration -some provisions of the 1884 Act) Village was outside the ambit.
Bihar and Orissa Municipal Act, 1922 1884 Act was substituted Affected only
Patna city.
S. 4, 5, and 6 Hearing objections before taxing.
Local govt. was authorized only to extend the provisions of 1884 Act and not the
1922 Act under S. 3(1)(f) Patna Administration (Amendment) Act of 1928 Only
for the future extension.
S. 4 of the 1928 Act Any section already extended under S. 3(1)(f) continues
until expressly cancelled by notification Governor cancelled in 1931
Substituted by certain sections of 1922 Act with modifications S. 4, 5,
6, 84 and 104 were omitted.
(Situation continued till 1951)
Constitution Power conferred to local govt. under S.(1)(f) and section 6(b) of the
Patna Administration Act, 1915 was transferred to Governor of Bihar.
(a) Number and complexity Every statutory rule contains its own machinery
Parallel bodies adjudicating on the same kind of dispute giving different
decisions No uniform principles.
(b) Bewildering variety of procedure Agencys power to draft the procedure.
(c) Unsystematic system of appeal Possibility of no appeal Ex: S. 6 of the
Land Acquisition Act Decision of the Controller regarding public purpose
is final.
(d) Invisibility of the decisions No publication Keeps them out of public
criticism.
(e) Unpredictability of decisions Non application of doctrine of precedent.
(f) Anonymity of decision Hearing by someone and decision by other Rule
of fair hearing.
(g) Combination of functions In most of the disciplinary proceedings the
functions of a prosecutor and the judge are either combined in one person
or in the same department.
(h) No evidence rule Evidence Act do not apply.
State of Haryana v. Rattan Singh, AIR 1977 SC 1512.
Bus with the conductor was taken over by flying squad- Inspector found 11
passengers without ticket though they had paid money The statements of the
persons were not recorded Formal enquiry Services of the conductor
terminated.
Courts up to H.C. quashed the decision S.C. reversed the order Held that the
important question is was there some evidence or was there no evidence? not
in the technical sense but in a fair common-sense way.
Evidence in the strict legal sense is not required in the administrative decision
making.
(i) Official perspective Presumption of guilt rather than innocence in the
disciplinary proceedings.
(j) Official bias Being a person who initiates the scheme, sitting as a judge
in hearing objections.
(k) Plea bargaining Plea of guilt with lesser charges and punishment Poor
employee may be bullied by an overbearing superior to accept the charge
against him.
(l) Political interference.
(m)
Off-the-record consultation S. 5(c) of the Administrative
Procedure Act, 1946 One party cannot be consulted without the notice
and opportunity to all parties to participate No law in India.
(n) Decisions without reasons No obligation unless stipulated in the parent
legislation Recent shift in the trend (judiciary is now in favour of reasons
being given issue not fully resolved).
(o) Legal representation and cross examination Not mandatory.
Modes of administrative adjudication
Art. 323-A and 323-B Tribunals under the Constitution Enjoy the status and
powers of H.C. amenable only to the jurisdiction of S.C. under Art. 136.
(1) Statutory tribunals.
Established under a statute
Some of the trappings of the court No uniform procedure May be laid down in
the statute or left to the will of the tribunal Subject to the writ jurisdiction.
Art. 227 Supervision of H.C.
Mallapa Murigeppa Sajjan v. state of Karnataka, AIR 1960 Kant 53.
Tribunal under Karnataka Land Reforms Act, 1961 Members from Congress (I)
Party (Non-official) Congress (U) issued an order directing the suspension of
working Challenged the order as mala fide.
Held: The Act did not confer the power of superintendence to govt. Subject to
supervision of H.C.
England - Council on Tribunals to supervise Established under Tribunals and
Enquiries Act, 1958 16 members (5 + 11) Ombudsman, an ex officio member
Open for public opinion
USA Administrative Conference 83 members Chairman, Council and General
Assembly Recommendatory body.
(2) Domestic tribunals
Designed to regulate professional conduct and to enforce discipline
Investigatory & adjudicatory powers.
Contractual Agency by a private club to decide disputes between the members
Not subject to writ jurisdiction Private law remedy may be available.
Statutory Advocates Act 1961, Medical Councils Act, 1945 etc.
Minimum natural justice Judicial review is limited (State of Haryana v. Rattan
Singh).
Whether the disciplinary action can be taken against the person exercising quasijudicial powers?
Union of India v. K.K. Dhawan (1993) 2 SCC 56.
Income Tax Officer Nine assessments in the year 1982 1983 Acted with
undue haste and in irregular manner to give benefit to the assesses Charged
for the failure to maintain absolute integrity and devotion to duty.
Disciplinary proceedings Promotion wasnt given, though recommended by the
Promotion Committee before charge-sheet was served.
Challenged
Promotion was decided before the charge-sheet Only sealed cover was to
be open.
Immunity from disciplinary proceedings.
Held The departmental action was valid
If acted negligently or recklessly to confer unde benefit, not acting as judge
Subject to disciplinary action.
(i)
Where the Officer had acted in a manner as would reflect on his
reputation for integrity or good faith or devotion to duty.
(ii)
If there is prima facie material to show recklessness or misconduct in
the discharge of his duty.
(iii)
If he has acted in a manner which is unbecoming of a government
servant.
(iv)
If he had acted negligently or that he omitted the prescribed conditions
which are essential for the exercise of the statutory powers.
(v)
If he had acted in order to unduly favour a party
(vi)
Judge need not ask himself Need to look into the mind of the party Not mere
apprehension and vague suspicion of whimsical, capricious and unreasonable
people Reasonable man test.
Not what actually happens, but the substantial possibility of happening May be
disqualified even if unbiased.
Lord Denning Justice must be rooted in confidence; and confidence is
destroyed when right-minded people go away thinking: The judge was biased.
Metropolitan Properties Co. Ltd. v. Lannon, (1969) 1 QB 577.
Chairman of Rent Assessment Committee Lannon was disqualified Father was
a tenant having a pending case against the petitioner No actual bias
Likelihood of bias.
Ramanand Prasad Singh v. Union of India, (1996) 4 SCC 64
Promotion of IAS from Bihar Admin Service Brother of a candidate was the
member of Selection committee Not selected Did not vitiate other
appointments.
A.K. Kraipak v. Union of India, AIR 1970 SC 150.
Special Selection Board Selection of officers to Indian Forest Service in the
junior and senior scale from officers serving Forest Department of State of
Jammu and Kashmir.
Acting Chief Conservator of Forests of State was the member of the Board
(Appeal of earlier Chief Conservator against supersession was pending) Also a
candidate for promotion.
Acting Chief Conservators name on the top of the table 3 rival names dropped
Acting Chief Conservator did not sit in the Board when his name was
considered Participated when the names of rivals were considered.
List was sent to Ministry of Home Affairs List with observations to the Union
Public Service Commission UPSC examined the records and made
recommendations Govt. notified the list Challenged under Art. 32.
Questions:
Whether the principles of N.J. apply to administrative proceedings? (If
presumed to be administrative)
Whether there was a violation of N.J.?
Whether there is any basis for grievances? (As the recommendations of
the Board is examined by Home Ministry and UPSC)
Whether there was a ground for setting aside all selections? (Junior scale).
Held:
N.J. is applicable to administrative proceedings, especially when it is not
easy to distinguish Necessity to prevent the miscarriage of justice.
N.J. violated Acting Chief Conservator was likely to be biased Conflict
between personal interest and duty Other members of the Board did not
know that the appeal of the superseded conservator was pending/
Not every kind of bias vitiates the decision Must be unreasonable favour
based on extraneous factors.
As the Head of the Department it would be but natural that he formed an
opinion as to the abilities of the Readers working under him. It is noteworthy that
it was not respondent No. 5s case that the respondent No. 2s praise of the
appellant was unmerited or that the respondent No. 2 had any extraneous
reasons or reasons other than the competence of the appellant for selecting the
appellant as professor.
(2) Pecuniary bias
Any financial interest, however small may be, vitiates the action Cannot be
avoided by mere non-participation in the proceedings.
R v. Hendon Rural District Council, (1933) 2 K B 696.
One of the members of Planning Commission was estate agent Did not
participate in the proceedings but participated when the decision was reached.
Permission granted to applicant to sell the land to a prospective developer Held
the agent was acitng for the applicant Decision was vitiated.
Bonham Case (1610) 8 Co. Rep. 113(b)
Fined by the college of Physicians for practicing in the city of London without
licence Half of the fine to King and the other half to the College Order was
struck down.
Jeejeebhoy v. Asst. Collector, AIR 1965 SC 1096
Land acquired for housing scheme Compensation on the basis of value on a
prior date
Claim from the date of notification.
C.J. reconstituted the Bench One of the members of the Bench was a member
of cooperative society for which the land was allotted.
The rule is not applicable when the judge has no direct financial interest in the
outcome of the case.
R v. Mulvihill, (1990) 1 All ER 436.
Conviction for robbery in a bank Trial judge had shares in the bank Challenged
as biased.
No direct financial interest - No likelihood of bias.
(3) Subject matter bias
When the deciding officer is directly or otherwise involved in the subject matter
Real likelihood of bias is important Mere general interest would not disqualify
Rare instances.
R v. Deal Justices, (ex p. Curling) (1881) 45 LT 439.
Trial of case of cruelty to an animal Magistrate was a member of the Royal
Society for the Prevention of Cruelty to Animals Challenged.
Divisional Court No responsibility or control over prosecution No likelihood of
bias Not disqualified.
In re Linhan- If, however, bias and partiality be defined to mean thte total
absence of preconceptions in the mind of the judge, then no one has ever had a
fair trial and no one will. The human mind, even, at infancy, is no blank piece of
paper. We are born with pre-dispositions. Much harm is done by the myth that,
State Bank of Patiala and Others v. S.K. Sharma, AIR 1996 SC 1669.
Temporary misappropriation 2 charges, one by Balwant Singh and the other by
the Bank.
Preliminary enquiry by 2 officers Examined the witnesses including Balwant
Singh and Patwari of the village, Kaur Singh Gathered necessary documentary
evidence.
Oral enquiry ordered 6 witnesses on behalf of Bank and 3 on behalf of
respondent Balwant Singh did not appear, in spite of efforts to procure his
presence.
Enquiry officers report held both the charges established Removed from
service.
Challenged on the ground of violation of Regulation 68(b)(iii) The inquiring
authority shall record an order that the officer may for the purpose of preparing
his defence be supplied with copies of statement of witnesses, if any, recorded
earlier and the Inquiring Authority shall furnish such copies not later than 3 days
before the commencement of the examination of the witnesses by the Inquiring
Authority.
2 June 1987 Enquiry started Witnesses were examined on 6, 7 & 27 July.
Questions:
Is this a case of no evidence? (Because Balwant Singh was not examined)
Whether regulation 68(b)(iii) has been violated?
Held:
Not a case of no evidence The 2 officers who conducted the enquiry and
recorded the statements of Balwant Singh were heard.
Theory of substantial compliance Test of prejudice.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
Where did Regulation 68(b)(iii) fall? Principle iii and iv(a) Though the copies
were not furnished 3 days before enquiry, they were not furnished more than 3
days before examination of witnesses Of the 2 witnesses 1 was examined
Substantial compliance.
The term shall should not be interpreted always to mean as mandatory
Respondent did not raise the objections during the enquiry Even if mandatory,
from the conduct he has waived No prejudice caused in defending.
Setting aside the punishment would result in the failure of justice and is not in
the interest of justice Technical irregularities should not result in the escaping
of guilty.
Duty to act judicially/Duty to act fairly
Quasi-judicial Duty to act judicially All principles of N.J.
Administrative Duty to act fairly Not arbitrarily and capriciously.
Dividing line has become thin after Kraipak But still exists.
Keshav Mills Co. Ltd v. Union of India, (1973) 1 SCC 380.
Sick textile Mill Closed between 1966 1968 Committee for the
investigation appointed Report.
(Get notes for Saturday - 26th July, 2008)-
.
Order quashed debarring you as a defaulter did not give adequate notice to
the appellant of the fact that he would be debarred from the contracts with PWD.
Shiv Sagar Tiwari v. Union of India, (1997) 1 SCC 444.
Notice in the newspaper (instead of personal notice) Allottees of the govt.
quarters in Delhi to represent before S.C. against the proposed cancellation of
allotment.
Sufficient Large no. of persons All educated Personal delivery is difficult.
Requirements of notice will not be insisted as a mere technical formality
Adequate notice test of prejudice.
USA Person has a right to legal representation Combined effect of due process
clause and S. 6(a) of the Administrative Procedure Act.
(5)No evidence to be taken at the back of other party.
Ex parte evidence violates fair hearing.
Errington v. Minister of Health, (1935) 1 KB 249.
Jarrow Corporation passed a clearance order Demolition of buildings
Submitted for the confirmation of the Minister of Health.
Enquiry held Owners of the building were given a hearing Officials of ministry
again visited and collected evidence Owners were not informed Order
confirmed by the ministry by considering the facts collected Challenged.
Held:
Ex parte statements are against the principles of NJ No opportunity to rebut
Order quashed.
1/8/08
This does not mean that the administrative agency cannot obtain information in
the manner it considers best Must be disclosed and opportunity to rebut must
be given.
Hira Nath Mishra v. Principal, Rajendra Medical College, AIR 1973 SC 1260.
Evidence collected behind Brought to the notice of appellants.
USA No off the record consultation [S. 5(c)]
(6) Report of the enquiry to be shown to the other party.
Administrative adjudication Everything may not be done by same officer Help
of the subordinates is taken.
Disciplinary actions Inquiry by one and the decision by the other Whether the
copy of the report of the inquiry must be furnished to the party? No precedent
till recently.
Union of India v. H.C. Goel, AIR 1964 SC 364
Charged of offering bribe to support his representation regarding his seniority
Inquiry officer found not guilty UPSC endorsed the conclusion on request.
Disciplinary authority rejected the conclusions of the inquiry officer- Respondent
was dismissed- Challenged Not based on the evidence- Void.
Held: No evidence case.
Inquiry officer holds inquiry as a delegate of the govt.
The object of the inquiry is to enable the govt. to hold the investigation
into the charges To decide in reasonable time.
The findings on the merits recorded by the inquiry officer are intended
merely to supply appropriate material for consideration by govt. Not
binding.
The inquiry report along with the evidence recorded constitutes the
material on which the govt. has to ultimately act.
When the disciplinary authority holds the delinquent guilty, contrary to the
material and the recommendation of the inquiry officer in his report, the
Authority is acting on no evidence Decision is not legal.
Shows the importance of supplying the report of the inquiry officer Gives an
opportunity to the delinquent officer to address the mind of the disciplinary
authority But the court did not decide on the question of failure to supply.
Indian Law Institute 1962 study The report of the inquiry officer in relation to
the decision by the disciplinary authority may take any 4 broad shapes:
The inquiry report may indict and the disciplinary authority may
exonerate.
The inquiry report may exonerate and the disciplinary authority may
indict.
The inquiry report may indict and the disciplinary authority may also
indict.
The inquiry report may exonerate and the disciplinary authority may also
exonerate.
In the 1st and 4th situations, supply of the inquiry report would be unnecessary.
2nd If he report with comments is not supplied, principle of fairness would be
violated Decision would be based on no evidence.
3rd Supply may be necessary in the interest of fairness Major penalty Th
report may contain errors, misstatements or omissions.
Rules relating to disciplinary proceedings against civil servants working in CPWD
Major penalty like dismissal, removal or reduction in rank can be imposed only
after giving a show-cause notice along with the copy of the inquiry report.
Premnath K. Sharma v. Union of India, (1988) ATC 904.
Central Administrative Tribunal Failure to supply copy would vitiate the
proceeding.
2/8/08
Union of India v. Mohd. Ramzan Khan, (1991) 1 SCC 588.
42nd Amendment Act Art. 311(2) Opportunity of showing cause against the
proposed punishment was dropped.
Whether the amendment has taken away the right to have the copy of the
inquiry report?
Held: Only the 2nd stage of inquiry is deleted It commences from the service of
the notice proposing one of the punishments prescribed by the authority among
those mentioned in sub-Art. (1) Deletion of the 2 nd opportunity.
Right to represent against the conclusion of the Inquiry officer is untouched
Furnishing a copy is necessary.
S.K. Singh v. Central Bank, (1996) 6 SCC 415.
Non furnishing of the copy of the report would not invalidate the orders
automatically Test of prejudice is applicable.
(7) Reasoned decisions/speaking orders
No particular statute requiring the reasons Mandatory, if the statute under
which the agency is functioning requires Must be clear statement providing the
link between the material and the conclusion may be brief.
Important check on the abuse of power Convinces those subject to the
decision.
Implied constitutional perspective
Whether reasoned decisions is a constitutional requirement?
Kishan Chand Arora v. Commr. Of Police, Calcutta, AIR 1961 SC 705
S. 39 of the Calcutta Police Act, 1866 Commissioner of Police to grant
licence for eating and entertainment houses Securing the good behavior
of keepers and the prevention of drunkenness.
Petitioners application was rejected Challenged Violative of Art. 19(1)
(g) No requirement of hearing and reasons for decision is stipulated.
Held:
Not arbitrary power Not an unreasonable restriction to Art. 19(1)(g)
Commissioner is exercising administrative power and not quasi-judicial
power No duty to act judicially Reasons are not required.
Distinction has blurred after Kraipak Procedural fairness requires reasons
Reasons are the link between the order and the mind of the maker May violate
Art. 14 & 21, if not given.
Scheme of judicial review (Art. 32, 136, 226 and 227) Implied requirement of
the reasons Scrutiy of reasons and not the decisions per se.
Implied statutory perspective
Can the requirement of the reasons be presumed in the face of legislative
silence? Shifting stand of the courts.
In quasi-judicial decisions, where appeal or revision is provided, the need for
reasons is implied.
Mahabir Prasad Santosh Kumar v. State of U.P. and Others, AIR 1970 SC 1302.
Licensed dealer in sugar and flour Assistant Commissioner of Food and Civil
Supplies called upon the appellants to explain certain irregularities found during
inspection Appellants were directed to handover all stocks to a cooperative
society on the following day.
Representation against the order to DM Not attended Obliged to surrender the
stocks Letter from DM cancelling the licence Reason was not given.
Appeal to the state govt. Rejected without recording the reasons Challenged.
Held:
Reckless disregard of the rights of the appellants by the authorities
A.L. Kalra v. The Project and Equipment corporation of India Ltd., AIR 1984 SC
1361.
Deputy Finance Manager (a) Advance of Rs. 16,050 for purchasing a plot of
land (House Building Advance) (b) Advance of Rs. 11,000 for purchase of new
motor cycle (Conveyance advance).
Advance Rules Non-utilization within the time limit attracts the liability of
refund with penal interest.
Conveyance advance Receipt of purchase of a scooter was accepted Failed to
utilize the House Building advance Coercive steps to recover the entire amount
by stopping the payment of the salary.
Memorandum Disciplinary action for the mis-utilization of the advances
Enquiry Officer was appointed.
Appellant replied pointing out various reasons for delay in repayment of advance
Pleaded no misconduct and enquiry was uncalled for The first advance is
being adjusted by withholding the salary and receipt was produced regarding the
2nd.
Enquiry Officer reported the violation of the Rules and commission of punishable
misconduct No reason recorded.
Committee of Management Removed the appellant from service Appeal
rejected Challenged on the ground of violation of N.J.
Held:
The enquiry report must include the findings on each article of charge and
the reasons therefore Not followed.
Committee of Management Did not assign any reason for accepting the
report of the enquiry officer Defect continued.
Rule 35 Appellate authority was obligated to consider whether the
findings are justified or whether the penalty is excessive or inadequate
and pass the appropriate order Appellate authority must show that it has
(10)
Financial incapacity to attend the inquiry
If cannot attend/procure the presence of evidence, decisions cannot be made ex
parte.
Ghanshyam Das Shrivastava v. State of M.P., AIR 1973 SC 1184
Employee was suspended No suspension allowance Inquiry held away from
appellants home Couldnt attend Ex parte orde r- Challenged.
Held: Violative of fair hearing.
Under the section, govt. can impound the passport in the interest of the
general public 2 safeguards.
S. 10(5) Recording of a brief statement of the reason and to furnish the
holder of the passport a copy on demand, unless the authority is of the
opinion that it will not be in the interests of the general public.
S. 11 Appeal to the appellate authority No appeal in case of order by
the Central Govt.
Petitioner
Right to go abroad is part of personal liberty No due procedure
prescribed by the Act.
Order is in contravention of N.J. Null and void.
Govt.
Audi alteram partem must be excluded May have frustrated the very
purpose of impounding.
Administrative action No duty to act judicially.
Held:
Art. 21 Right to travel abroad Due process clause is not violated.
Reasons to be communicated No injury to public interest.
Rule of fair hearing is attracted by necessary implication Cannot be
excluded on the ground of administrative convenience.
Post-decisional hearing Fair opportunity of being heard immediately after
the decision Satisfies the N.J. Accepted by the A-G.
Post decisional hearing in Maneka Gandhi
It is well established that the N.J. can be excluded when in the interest of public
health, public morality or public safety, prompt action has to be taken by the
administration Hearing would delay the action & defeat the very purpose Ex:
Unhealthy food, obscene literature etc.
Some safeguards are required againt the abuse of power Need for summary
action v. protection of public interest.
Schwartz Emergency permits instant destruction of the infected poultry,
seizure and sale of the taxpayers property, and takeover of the bank; any
hearing comes after these drastic acts have taken place.
Clark Byse Between the extremes of no hearing and hearings on all
applications is the widely adpopted procedure of granting a hearing if, after the
application has been refused, the applicant seeks an opportunity to be heard
In Maneka Gandhi Need of immediate action arose The petitioner would have
moved abroad on the strength of passport Object of impounding would be
frustrated Subsequent fair hearing would be sufficient.
Decision was not without parallel
- Defence of India Rules, 1962 Order of detention to be reviewed every 6
months.
Industrial (Development and Regulation) Act 1951 Central govt. can take
over the management of the company without investigation Owner may
apply for cancellation.
Income Tax Act 1961 Hearing of the person whose assets are seized by the
income tax officer within 90 days of seizure.
Negatives:
Likely to be based on incomplete information Administrative errors.
Pressure on time Greater reliance on the subordinate staffs.
Tendency to stick to the position once decided Risk of bias in subsequent
hearing.
Injury inflicted by summary action may not be irreversible Ex: Wrongful
destruction of market place, wrongful expulsion of the student at the eve of
graduation, wrongful injury to the reputation etc.
Drastic nature May be used to coerce the individual to agree to the
recommendations of the authority.
No pressure to act expeditiously in giving a hearing after the order
Prolonged delay 2 suggestions Bhagwati, J. in Maneka Gandhi opined that
the hearing should be given as soon as the order of impounding the
passport is made
Property destruction leads to annihilation of the evidence, which would prove
the individuals case.
Prior hearing should be the rule Post hearing must be an exception Post
hearing is not a substitute to prior hearing Resorted to only when the latter is
not possible.
2 alternatives in Maneka No hearing and post decisional hearing Court
favoured the latter.
Statutory requirement to give reasons
Passport Act requires the statement of reasons to be recorded Ordinarily
record requires the communication of the reasons Would it be necessary in
this case?
Demand and refusal in the interest of public Subject to courts scrutiny No
damage to public was involved in the disclosure.
Effect of failure to observe natural justice
Quashing the administrative action? Not done in Maneka Gandhi
Function was initially administrative and subsequently quasi-judicial Statute did
not require the communication of the reasons along with the order of impounding
To be communicated only after the request.
Initial order was valid Govt. need not observe N.J.
If quashed on the mere technical grounds, there is nothint to prevent the
authority to initiate the proceeding again on the same grounds and pass order.
Noncompliance of N.J. need not make the order null and void Void order is non
est in law Even an adverse party cannot give validity to it by waiving N.J. It is
well-established that the party may waive N.J.
Court may not quash the order when it is clear that the individual has no
defence.
Glynn v. Keele University, (1971) 2 WLR 487.
Penalty by the V.C. on a student for moving naked within the precincts of the
University Nonobservance of N.J. Concept of nullity or voidness cannot be
mechanically applied.
Assurance of the govt. to give post-decisional hearing is sufficient in Maneka
Gandhi.
Plan to break the Estimation of price by the department Fixed lower for the
big 3 (Rs. 65,000) & higher for the others (Rs. 76,000) challenged.
Held:
Govt in welfare state has wide powers in granting licences, leases and
contracts Not expected to act like private individuals Need to act fairly
without any discrimination.
Policy of the govt. is to provde an incentive to uneconomic units to achieve
efficiency Prevention of concentration of economic power and to control
monopoly Common good.
Govt. had the power to accept or reject the lower offer Rs. 76,000 was
found to be a reasonable price.
Cartel Surrounding circumstances are not clear to provide the inference.
Legitimacy of expectation can be inferred only if it is founded on a
sanction of law, custom or an established procedure followed regularly
Distinct from mere expectation or anticipation However earnest and
sincere may be, cannot be ascertainable.
Legitimate expectation is confined mostly to right of fair hearing before a
decision Does not give scope to claim relief straight away, as no
crystallized right is involved.
Protection of legitimate expectation is not available, where an overriding
public interest requires otherwise.
Courts jurisdiction to interfere is much limited and much less in granting
any relief in a claim based purely on legitimate expectation
Breaking of monopoly Not an irrelevant consideration while making the
decision.
Whether the expectation is legitimate or not is a question of fact Has to be
determined from the perception of larger public interest.
Courts interference must be limited Unless the change in the policy is
outrageous court should not interfere.
Dr. Chanchal Goyal v. State of Rajasthan, (2003) 3 SCC 485.
1974 Lady doctor under the Municipal Council Temporary basis for 6 months
or till the candidate selected by Rajasthan Public Service Commission is
available.
Working period extended from time to time In 1988 the services were
terminated, as the selected candidate was available Challenged.
Appellant: 28 years services are completed Initial temporary appointment has
assumed permanency
Privilege of gratuity and pension are given Legitimate expectation to continue.
Held:
Temporary appointment No scope for regularization as per the service
rules.
Legitimate expectation cannot be invoked Nothing to show that the
condition attached in the appointment order is waived Clear statutory
words override any expectation.
Different from promissory estoppel Person does not act on the expectation.
Central and State Human Rights Commissions A step in the direction of making
the state accountable for violation of human rights Can receive complaint from
people and take action suo motu.
CBI is the prime instrumentality enforcing accountability Was under the control
of the executive SC direction Central Vigilance Commission was established to
take away the control of executie CBI does not require the govt. concurrent to
investigate corruption cases.
Outstanding civil servants to be appointed in CVC Acquittal order CBI to be
reviewed.
Held: The question of the choice & quantum of punishment is within the
jurisdiction and discretion of the court martial. But the sentence has to suit the
offence and the offender. It should not be vindictive or unduly harsh. It should
not be so disproportionate to the offence as to shock the conscience and
amounts in itself to conclusive evidence of bias. The doctrine of proportionality,
as a aprt of the concept of judicial review, would ensure that even on an aspect
which is, otherwise, within the exclusive province of court-martial, if the decision
of the court even as to sentence is an outrageous defiance of logic, then the
sentence would not be immune from correction. Irrationality and perversity are
recognized grounds of judicial review.
HCs power under Art. 226 Highly limited Can only look into the questions of
illegality, irrationality and procedural impropriety Cannot substitute the
decision simply because the decision sought to be substituted is a better one.
Adjudication under the ID Act Proportionality applies S. 11A Industrial
Tribunals and HC, on perusal of charges and punishment imposed, can reduce
the punishment if it is disproportionate.
Dwarka Das v. Board of Trustees, Bombay Port, AIR 1989 SC 1642 Limits to the
powers of the HC.(Irrelevant)
Modes of public law review:
5 writs Can be issued on various grounds
Unlawful detention
Lack of jurisdiction
Excess of jurisdiction
Abuse of jurisdiction
Violation of N.J.
Error of law apparent on the face of the record.
Fraud
Infringement of FRs
Failure to comply with a public duty.
Holding the office in contravention of law.
Modes of private law review
More speedy and flexible remedies.
Only difficulty is the 2 months notice under S. 80 of the CPC 1976 Amendment
empowers the courts to waive the requirement.
(a) Injunction S. 36 42 of the Specific Relief Act, 1963.
(b) Declaration.
(c) Suit for damages.
(d) Affirmative action for the enforcement of public duties.
29/8/08
LIABILITY OF THE ADMINISTRATION
Intensive form of govt. Participation of state in the welfare and service activities
Govt. liability may hinder Delicate balance between the need and liability.
Wrong by the govt. officers 2 course open to the injured Early common law
was in favour of the liability of the officer as he was treated nothing more than
an ordinary citizen Shift towards state liability Recent trend shows a judicious
mix of both the concepts.
Contractual Liability
Common law Crown was exempted from a suit in a court on the basis of
contract till 1947 King can do no wrong and Lord cannot be sued in his own
courts.
Crown Proceedings Act, 1947 Permitted the suits with few exceptions.
India - East India Company Essentially commercial company Did not enjoy
immunity like the Crown.
Bank of Bengal v. United Co. (1831)
Company was sued for the recovery of interest on 3 promissory notes on the
basis of which company borrowed money for the efficient prosecution of war for
defending and extending the territories.
SC of Bengal It has been said that the Company has sovereign powers; bet it
so, but they may contract in a civil capacity; it cannot be denied that in a civil
capacity they may be sued.
Sovereign non-sovereign distinction came into existence.
Nobin Chunder Dey v. Secretary of State for India, (1876)
Ganja licence was auctioned Plaintiff, the highest bidder, sued for the specific
performance of the contract.
Held: Auction of ganja licence was a method of collecting tax Sovereign
function Suit is not maintainable.
Constitutional Provisions
Art. 294 (Succession by the UOI), 298 (Power to enter into contracts), 299
(Essential formalities of the Contract) & 300 (Suits and proceedings)
Supplemented by the Indian Contract Act, 1872.
Art. 30 Extent of the liability is same as that of the Dominion of India under
Govt. of India Act 1935 Act makes reference to 1915 Act, which in turn refers
back to 1858 Act.
Govt. cannot be equated to private individual Special provisions prescribing the
manner in which the govt. contracts are to be made Mandatory requirements
Incorporated in Art. 299 Public fund should not be wasted on unauthorized
contracts.
MANDATORY REQUIREMENTS -
Manner of granting authority has not been specified under Art. 299 May be
through publication in the official gazette
person
authorized
by
the
The fact that an act is done by the sovereign power and is no an act which could
possibly be doen by the private individual does not oust the jurisdiction of the
civil court.
Sovereign and non-sovereign distinction took a different shape Subseuent
cases again restored back the earlier position.
State of Rajasthan v. Vidhyawati and Anthr., AIR 1962 SC 933.
Driver of Collectors jeep Knocked down a person while driving back the jeep
from the workshop Suit for compensation by the wife and daughter of the
deceased.
Trial court decreed against the driver and dismissed the suit against the state
Sovereign functions Appeal.
Appellant Jeep was being maintained in the exercise of sovereign polwers and
not a part of commercial activity Not liable.
Held: Liability of the state is similar to that of East India Co. Never enjoyed the
immunity like the Crown State is liable.
Decision abolished the sovereign, non-sovereign distinction again Govt. was
made liable for the torts committed by its servants in all cases except act of
state.
Kasturi Lal v. State of U.P., AIR 1965 SC 1039.
P was going to Meerut to sell gold, silver and other goods Taken into custody
by Police Silver was returned on release Gold was misappropriated by Head
Constable, who fled to Pakistan.
Suit against the govt. of U.P. Gross negligence on the part of the officer in
charge of the police station Allowed the constable to keep the gold in his
private custody, instead of depositing in the local govt. treasury.
Held:
State is not liable Functions of arrest and seizure of the property are
sovereign functions.
If the act is sovereign, no act of negligence on the part of the employees
of the state would render the state liable.
Several attempts to come out of Kasturilal decision.
Lata Bishambar Nath v. Agra Nagar Mahapalika, AIR 1973 SC 1289.
2048 bags of attta unfit for human consumption Sigh to this effect was pasted
on the bags.
Intended to sell for the consumption of the animals and for other purposes
Seizure by the Health officer under S. 244(1) of the Municipalities Act
If in the course of the inspection of a place an article of food or drink for an
animal appears to be intended for consumption of man and to be unfit there for,
the Board may seize and remove the same or may cause it to be destroyed or to
be so disposed of as to prevent its being exposed for sale or use for such
consumption
6/9/08
Immunity from statute operation
Common Law King is not bound by the statute unless a clear intention appears
from the statute or from the express terms of the Crown Proceedings Act or by
necessary implication Exception in cases of statute for public benefit.
Director Rationing and Distribution v. Corporation of Calcutta, AIR 1960 SC 1355.
S. 386(1)(a) of the Calcutta Municipalities Act Person storing rice within the
municipal limits to obtain licence from the Corporation Intended to prevent the
spread of epidemics through rats Food Dept. of govt. of WB did not obtain the
licence.
Pleaded that the state is not bound by a law of its own creation unless expressly
mentioned therein or by necessary implication.
Held: The common law principle is applicable State is not bound by the statute.
Criticised Feudalistic doctrine Common law also recognizes the exception in
cases of the statute for public benefit.
Superintendent and Legal Remembrancer, State of Corporation of Calcutta, AIR
1967 SC 997.
S. 218 of the Calcutta Municipalities Act, 1951 Person carrying on a business of
running a market to obtain licence from the Corporation.
Daily market run by the State of WB without the licence Prosecution against the
state Contention of immunity.
Held: King can do no wrong was subversive of ROL State is bound by its own
law unless excluded either expressly or by necessary implication
Overruled the Director of R & D case.
Immunity from promissory estoppel
Applies to govt. and public authorities Some exceptions.
Cannot compel the govt. to carry out a representation or promise which is
prohibited by law.
Promise which is beyond the power of the officer making it.
When the representation by the person misled the authority to take a
decision/make promise.
When the larger public interest demands.
Govt./public authority must disclose to the court the various events while
claiming immunity The court must decide.
K. Ramadas Shenoy v. Chief Officer, Town Municipal Council, AIR 1976 SC 2177
Madras Planning Act, 1945 Marked the areas for the business and residential
purposes S. 15 prohibited any commercial building in the residential area
except with the permission fo acompetent authority.
Application for the construction of a social-cum-lecture hall in the residential area
Allowed as it was permissible Subsequent application to convert the hall into
a picture palace Allowed by the municipality by means of a resolution.
Work started Challenged by a resident of the area.
HC Cinema theatre cannot be constructed in the residential area as per the law
However, since the respondent has already spent a large sum of money, govt.
is estopped from stopping the work Appeal.
SC