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3/6/08

Definition, nature and scope of administrative Law


Initially the state was a Laissez Faire state, the only function being
protection of the subjects from external attack.
However, the mid 20th century saw the emergence of the Welfare state
with expansion of administrative activities.
Administrative law
Separate branch of legal discipline Recognized only by the middle of
20th century in India.
Growth By-product of establishment of welfare state New functions
Administrative explosion.
A.L. Based on the assumption of existence of politically organized
society.
Definitions
Dicey Admin Law denotes that portion of a nations legal system
which determines the legal status and liabilities of all state officials,
which defines the rights and liabilities of private individuals in their
dealings with public officials, and which specifies the procedure by
which those rights and liabilities are enforced.
Diceys definition has been criticized as being too narrow a definition
Excludes many administrative authorities Eg. Certain public
corporations and public undertakings.
Ivor Jennings - A.L. is the law relating to the administration. It
determines the organization, powers and duties of administrative
authorities.
Griffith
(i)
(ii)
(iii)

and Street A.L. is concerned with 3 questions.


What sort of powers does the administration exercise?
What are the limits of those powers?
What are the ways in which the administration is kept within
those limits?

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

authorities, the procedure followed by them in exercising the powers


and discharging the duties and the remedies available to an aggrieved
person when his rights are affected by any administrative action.
Massey v. Dicey the term administrative authorities is wider than public
authorities as used by Dicey.
NATURE AND SCOPE OF A.L.
Law in the realist sense, not in the lawyers sense.
Branch of public law Deals with the relationship of the individual with
organized power of the sovereign.
Deals with the organization and powers of administrative and quasiadministrative agencies.
Includes the study of existing principles and also of development of certain
new principles to be followed by the administrative and quasiadministrative agencies.
Primarily concerned with the official action Rule making (quasilegislative), decision making (quasi-judicial) and also rule
application (pure administrative or executive) action.
Procedure by which the official action is reached.

(i)
(ii)

The procedure may be laid down in the constituent instrument


of the tribunal or the authority in question.
The procedure may be laid down in a general legislation. Eg.
Legislation in the United States - Administrative Procedures
Act, 1946. The procedure to be followed by the administrative
authorities is laid down.

Includes the control mechanism By courts, higher authorities,


public opinion and mass media, consumer organizations,
ombudsman etc.
Focal point is the reconciliation of power with liberty. balance
b/w the power of the executive and protection of liberty of the
people.
Reasons for growth of Administrative Law
Change in the concept of government.
Demand of people people look forward to the government to solve the
problems.
Maximum good of maximum number no concentration of wealth in one
hand distribution of wealth.
Socialistic pattern of society laws of socialistic nature need more
stringent implementation since rights of private individuals are concerned
thereby contributing to the growth of A.L.
Inadequacy of judicial system led to delegation of judicial power to the
executive need for regulating the same.

Inadequacy of legislative process led to delegation of legislative power to


the executive- again, A.L. regulates such delegation.
Flexibility of administrative process problems arising out of legislations
can be solved by the legislature only when it is in session this problem is
solved by delegation of such power to the executive role of A.L.
Non-technical character of administrative process. the administrative
authorities can dispense with stringent procedures in cases of urgent
nature etc.
Adoption and enforcement of preventive measures eg. Cancellation of
licence is a preventive measure.
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Constitutional Law and A.L.
Two schools of thought
No difference between the two It is logically impossible to distinguish
A.L. from constitutional law and all attempts to do so are artificial (Keith).
Difference between the two The constitutional law describes the various
organs of government at rest, while A.L. describes them in motion)
(Holland).
While constitutional law deals with structure and the border rules which
reegulate the functions, the details of the functions are left to A.L.
(Maitland, who does not accept Hollands proposition, says that if
it is accepted, A.L. would supersede constitutional law.)
The dividing line b/w consti and A.L. is a matter of convenience because
every student of A.L. has to study some constitutional law (Benjafield &
Whitmore)
Control Mechanisms Art. 32, 226, 227, 136, 300, 311.
The above are all part of administrative and constitutional law (both).
French Position
Maintains clear distinction Due to the presence of A.L. since long time.
Separate courts to deal with administrative matters.
Droit Administratif Body of Rules (which defines the organization and the
powers and functions of the administrative authorities).
Before 1789 Struggle for power Conscil du Roi was advising the King Also
discharged judicial functions.
After revolution Revolutionists curtailed the power of the executive by using
S.O.P. Conseil du Roi was abolished.
Napoleon favoured freedom for administration 1799 Conseil d Etat was
established Started exercising judicial powers in the matters involving
administration.
1872 Conseil d Etats formal power to give judgment was established Now its
jurisdiction is final in all matters involving administration Can receive direct
complaints from citizens.

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).

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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.

J. Khanna R.O.L. is antithesis of arbitrariness. In all civilized societies (it) has


come to be regarded as the mark of free society. It seeks to maintain a balance
between the opposite notions of individual liberty and public order. Even in the
absence of Art. 21 in the Constgitution, the state has got no power to deprive a
person of his life or liberty without the authority of law. This is essential postulate
and basic assumption of R.O.L. and not of men in civilized nations. Without such
sanctity of life and liberty, the distinction b/w a lawless society and one governed
by laws would cease to have any meaning
P. Sambamurth v. State of A.P. (1987) 1 scc 362.
Art. 371-D(5) (proviso) Authorised the state govt. of A.P. to nullify any decision
of the Administrative Services Tribunal Held violative of R.O.L. Exercise of
power by the executive must be conditioned by the Constitution and also in
accordance with the law Subject to judicial review, which keeps every organ of
the state within the limits of law.
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Judiciary Insisting on fairness in every aspect of exercise of power by the state
Sheela Barse v. State of Maharashtra AIR 1983 SC 378
Court insisted on fairness to women in police lockup and drafted a code of
guildelines for the protection of prisoners (female) in police custody.
Judicial activism to establish rule of law society No matter how high the person
may be, the law is always above him.
Veena Sethi v. State of Bihar AIR 1983 SC 339.
Unjustified and illegal detentions about 2 to 3 decades Letter from Free Legal
Aid Committee Bihar R.O.L. does not exist merely for those who have the
means to fight for their rights.
R.O.L. still exists Every state organ is regulated.

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.

As per D.D. Basu, what is possible is only organic separation of powers a


distinction has to be made between the Essential powers and incidental
powers of the organs the essential functions should have a clear separation
of powers, but the incidental functions can be exercised by another organ.

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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

Ram Jawaya Kapur v. State of Panjab AIR 1955 SC 549


School books Published and supplied by private publishers subject to the
approval of the govt. Govt. started to publish Challenged as violative of Art.
19(1)(g)- Also, Whether the executive can carry on any functioning independent
of legislation?
Held- A. 162 clearly indicate that powers of state executive do extend to matters
upon which state legislature is competent to legislate and are not confined to
matters over which legislation has been passed already.
The Indian Constitution has not indeed recognized the doctrine of separation of
powers in its absolute rigidity but the functions of the different parts or branches
of the Government have been sufficiently differentiated and consequently it can
very well be said that our Constitution does not contemplate assumption, by one
organ or part of the State, of functions that essentially belong to another.

Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299

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)

Where the provisions of the statute provide legislative authority to the


executive.
Where the power exercised does not concern an interest of the
individual or relate to particular situation but relates to public in
general.
Where it lays down future course of action.

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.

Donoughmore Committee on Ministers Powers (1932) True judicial decision


Presupposes a lis between 2 or more parties +4 requisites.
Pure administrative action No legal obligation to consider and weigh
submissions and arguments Grounds of action and procedure are left to the
discretion of the administrative authority.
Approach seems to be fallacious Judges not only apply law They consider
policy, socio-economic & politica factors, expediency and also exercise discretion
Administrative authorities may apply law & dispose of the case Ex: Tax.
Quasi-judicial need not follow strict procedure.
I.P. Massey The distinction between quasi-judicial and administrative action is
very thin Where the law requires enquiry before decision.
Rule-application action/Administrative action
Though the distinction is narrow Relevant in determining the measure of N.J.
Neither legislative nor judicial.
Ex: S. 10 and 11A of I D Act Power to make reference to tribunals, Fact finding
action, Issuing directions to subordinate authorities etc.
Devoid of generality No procedural obligations Minimum N.J.
Does not decide a right May affect a right.
Ministerial action
Action as a matter of duty Devoid of discretion or judgment Ex: Collection of
revenue, Annual report etc
Area of action Very limited.
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ADMINISTRATIVE INSTRUCTIONS
Flow from the general executive power Due to unprecedented increase in govt.
functions.
Superior administrative authority to subordinate authority Efficacious technique
for achieving some uniformity and also to manipulate in a new and dynamic area
Flexibility Devoid of technicality
Types of administrative directions: Specific or general. Also, Directory or
mandatory
Whether such instructions are enforceable? Difficult question.
Instructions generally issued without statutory authority Directory.
Fernandez v. State of Mysore, AIR 1967 SC 1753.
Tenders submitted to Chief Engineer P.W.D. Petitioners was the lowest among
unconditional 3rd respondents was the lowest conditional Letter to 3 rd
respondent to withdraw conditions and others to reduce amount within a
particular date 3rd respondent withdrew after the stipulated time.
Petitioner wrote to Chief Engineer that his tender being the lowest should have
been accepted Refused to reduce the amount.
Challenged the acceptance of 3rd Respondents tender.
All tenders were rejected.

Later, the 3rd respondents tender was accepted.


Challenged:
Rules of Mysore P.W.D. Code were not followed.
Violation of Art. 14 Acceptance beyond the period and favoured the 3 rd
respondent.
Held: No authority to issue rules in matters with which the code was concerned
Administrative instruction Appellant had no right to apply to court.
No discrimination.
Though cannot be enforced, disciplinary action can be taken against the officer
concerned.
Jagjit Singh v. State of Punjab (1978) 2 SCC 196.
Punjab civil service and allied services examination the appellant got 3 rd rank
among S.C. Only 2 vacancies for S.C. First 2 got the appointment letter
Subsequently One Selected for IAS Appellant applied based on 1961 circular.
Claim rejected to be included in the normal pool of vacancies H.C. dismissed
the suit fresh competitive exam.
S.C. Resultant vacancy should go to appellant Govt. instruction clearly
stipulate that the vacancy resulting from the termination of services of SC/ST
should not be included in normal pool Must be filled on ad hoc basis from the
candidates belonging to that category.
Administrative instructions, not contrary to statutory rules Binding.
V.T. Khanzode v. Reserve Bank of India, AIR 1982 SC 917.
Grouping of employees Promotion within the group Change in the group
Affected seniority.
Whether the staff regulations issued by RBI fixing the basis of seniority of its
employees could be modified by a circular issued by it later on?
Administrative instructions cannot modify the statutory rules Staff regulations
were not issued under S. 58 of RBI Act, 1934 Not rules Could be amended.
Amitabh Shrivastava v. State of M.P. AIR 1982 SC 827.
Rule 7 of Rules relating to admissions to Medical Colleges in M.P., 1979
Reservation 21 seats to sons/daughters of military personnel.
Rule 20 Qualifying marks 50% - Board can lower by 5% if seats are not filled.
Rule 9 Further vacancy combined merit list of all candidates on waiting list
regardless of category.
Appellant Son of a military personnel 43.6%
Marks lowered to 45% - 7 seats were still vacant in the military personnel
category.
1980 executive order- Minimum aggregate reduced to 43% - Board applied Rule
9 & prepared a combined list Appellant was refused admission.
Whether the selection should be based on the combined list under Rule 9 or
taking 43% as qualifying marks?
Held: Minimum qualifying marks was reduced by executive order Rule 9 is not
applicable Appellant should be admitted.

C.L. Verma v. State of M.P. AIR 1990 SC 463.


M.P. State Municipal Service (Executive) Rules, 1973 58 years as
superannuative age Govt. notification stated last day of the month during
which the employee is going to be superannuated.
Held ultra vires Administrative instruction cannot compete with the statutory
rule.
Bishambhar Dayal Chandra Mohan v. State of U.P. (1982) 1 SCC 39.
The U.P. Foodgrains Dealers (Licensing & Restriction of Hoarding) Order, 1976
(Under E.C.A.) Licensing of trade in food grains.
The U.P. Foodgrains (Procurement and Regulation of Trade) Order, 1978
Permitted stock quantity and search seizure.
No restriction on intra-state & inter-state movement of food grains Teleprinter
message by the Secretary to the govt. to regional food controllers prohibited
inter-district movement Wheat Seized.
Conflict between the administrative instruction & Art. 19(1)(g) Neither the Act
nor the orders impose restrictions.

If an administrative direction has been following a particular practice for a long


period, then the same cannot be deviated from legitimate expectation. If
however, a reasonable reason is given for the deviation, the direction can held to
be valid.
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ADMINISTRATIVE DISCRETION
Discretion Choosing from various alternatives without reference to any
predetermined criterion A person writing his will.
When qualified by administrative Rules of reason and justice must be followed.
Humanly impossible to lay down a rule for every conceivable eventuality
Absolute discretion v. reasonable exercise of it the authorities always insist for
an absolute discretion, but the people demand a reasonable exercise of the
same.
Judicial Behaviour and Administrative Discretion in India
Few effective parameters Lacks activism of American courts.
(1) Control at the stage of delegation of discretion.
Constitutionality of law delegating the discretion Vague and wide
discretion Art. 14 and Art. 19.
State of Punjab v. Khan Chand, AIR 1974 SC 543
East Punjab Requisition of Movable Property Act 1947 Truck of Khan
Chand was requisitioned by the D.M. for famine work.
Challenged on the ground of violation of Art. 14 as no guideline was set
out.
Such discretion is bound to result in discrimination which a negation of Art.
14 Even the term public purpose is not used.

Manohar Lal v. State of Maharashtra AIR 1971 SC 1511.


S. 187-A of the Sea Customs Act Power to the authorities to either refer a case
of smuggled goods to a magistrate or to look into the matter themselves.
Challenged as violative of Art. 14.
Court upheld the discretion This discretion is to be exercised by senior officials,
that will stand as a guarantee against its misuse.
Change in the judicial behaviour criticized.
State of Madras v. V.G. Row, AIR 1952 SC 196.
S. 15(2)(b), Criminal Law Amendment Act, 1908 as Amended by Madras
Act, 1950 Power to state govt. to declare any association as unlawful
without giving any reasons.
Unlawful Allows the exercise of discretion on subjective satisfaction
without permitting the grounds to to be judicially tested.
State of M.P. v. Bharat Singh, AIR 1967 SC 1170
April 24, 1963 Order under S. 3(1)(b) of the M.P. Public Security Act, 1959
Direction to the respondent (i) to not to be in any place in the Raipur
District; (ii) to proceed to & reside in Jhabua; (iii) to report daily to a police
station.
Challenged as violative of Art. 19(1)(d) and (e)
Contentions of the Appellant S. 3(1)(b) was a reasonably restriction
Security of state - So long as the emergency was in force, the respondent
could not move to the court for violation of fundamental right Even if S. 3
was void, Art. 358 protects the legislative and executive action taken after
proclamation of emergency Cannot be challenged.
Held Unreasonable restriction No opportunity of being heard No
stipulation as to the availability of residential accommodation and measn
of subsistence.
Act was brought into force before the emergency Art. 19 can be invoked
Clause was void when enacted and was not revived.
Executive action which operates to the prejudice of any person must have
the authority of law to support it Art. 358 do not detract from the rule
No arbitrary power.
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(2) Control at the stage of exercise of discretion
US Administrative Procedure Act Judicial review of exercise of
administrative discretion.
India Constitutional configuration of courts Judge Proof discretion is a
negation of R.O.L.
Control mechanism - 2 groups (i) failure to exercise discretion, (ii)
improper exercise of discretion.

Failure to exercise the discretion:

Abdication, putting fetter on the exercise or jurisdictional facts being


wrongly determined. Authority can be compelled to exercise discretion
But cannot be compelled to exercise in a particular manner.
Purtabpore Co. Ltd v. Cane Commissioner of Bihar, AIR 1970 SC 1896.
Clause 6, Sugar Cane (Control) Order, 1955 Central govt.s power to
reserve any area where sugar cane is grown to a particular factory
Delegated to Cane Commissioners by the Central govt. under cl. 11.
Appellants factory had supply from 208 villages allotted by the Cane
Commissioner 5th respondents representation to C.M.
Directions from C.M. Cane Commissioner allotted 121 to appellant and
99 to 5th respondent.
Challenged - *Order made on the directions of C.M. and not by the Cane
Commissioner.
Quasi-judicial proceeding Opportunity of being heard is not given.
Held Statutory power Can only be exercised by the person to whom it is
conferred C.M.s interference was not proper Failure of the Cane
Commissioner to exercise the discretion.
As soon as the 5th respondent made request to alter reservations, a lis
commenced Quasi judicial Hearing should have been given.
Appellants interest adversely affected Administrative direction cannot
take away a right.
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Improper exercise of discretion
Unreasonable, arbitrary or capricious exercise of discretion Irrelevant
considerations, acting for improper purpose, bad faith, asking wrong questions,
neglecting the relevant factors etc.
The Indian Supreme Court, has a matter of convenience has distinguished b/w
failure to exercise discretion, and improper discretion there are no watertight
compartments. No such distinction is made in the United States and Britain.
G. Sadanandan v. State of Kerala & Another, AIR 1966 SC 1925.
Emergency Rule 30(1)(b) of the Defence of India Rules, 1962 Kerosene dealer
detained Likely to act prejudicial to the maintenance of supplies and services
essential to the life of the community.
Challenged D.S.P. made a false report in order to benefit his relative.
Held: Proclamation of emergency bars the judicial scrutiny in respect of violation
of fundamental rights Possible to urge for the statutory safeguards as arer
permissible under the Rules Can ask to set aside the order.
Under the Rules, if a prima facie claims is made as to mala fideness or as to the
casual approach, the authority should place sufficient material in the form o f
affidavit Not made.
Even during emergency freedom of citizens cannot be taken away without
justifying necessity specified in the Rules themselves.
S.R. Venkataraman v. Union of India, AIR 1970 SC 49.

Joint Director, Family Planning in the Directorate General of AIR Prematurely


retired Presidnet was of the opinion that it was in public interest [Rule56(j)(i)]
Challenged Baseless allegations Malicious vendetta of the then Chairman of
the Central Board of Film Censors Adverse remarks Had a long and clean
record before Order was arbitrary & capricious Retiring authority had not
applied its mind to the record.
Respondent conceded there was nothing on record to justify the order.
Held: No Malice in fact There was nothing on the record to show the influence
of the Chairman of Central Board of film Censors.
The court observed the meaning of malice in law Doing some wrongful act
intentionally without just cause or excuse. However, this was not examined.
The court held that it was not necessary to examine the question of malice in law
If discretionary power has been exercised for an unauthorized purpose it is
generally immaterial whether its repository is acting in good faith or bad faith.
The order can be set aside on those grounds itself.
Lord Esher The Queen on the Prosecution of Richard West brook v. The Vestry
of St. Paneras, (1890) 24 QB 375 If people who have to exercise a public duty
by exercising their discretion take into account matters which the courts consider
not to be proper for the guidance of their discretion, then in the eye of the law
they have not exercised their discretion.
*Mistaken belief Error of fact Almost be said to be done in bad faith When
nothing was on th record, respondent is presumed to be influenced by
extraneous matter.
*Gross abuse of power to punish a person or to destroy service career Against
the purpose of the rule.
R.D. Shetty v. International Airport Authority and Others, AIR 1979 SC 1628.
Tenders were invited from registered second class hoteliers having atleast 5
years experience for running a second class restaurant and 2 snack bars at the
International Airport, Bombay.
Acceptance of the tender- Left to the Airport Director Not bound to accept any
tender and has the right to reject all or any without assigning reasons.
Out of 6, only the 4th respondents was complete Not a registered second-class
hotelier having 5 years experience Call for producing documentary evidence
4th respondent stated about his considerable experience Tender was accepted.
Writ by a person who was neither a tenderer nor a hotelier Contended to be in
the same position as successful tenderer. (4 th respondent)
1st respondent was bound to give effect to the most important condition of
eligibility.
Had the appellant knew that the condition of eligibility would be no bar, he
would have competed.
th
4 Respondent Term second-class hotelier is meaningless Grading is given to
hotels and not to the persons running them.
Notice had no statutory force 1st respondent was competent to depart
from the standard of norm of eligibility.

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.

Action was discriminatory Excluded others from tendering for the


contract Violated Art. 14.

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.

Air India ltd. v. Cochin International Airport Ltd.


WITH
Cochin International Airport Ltd. v. Cambata Aviation Ltd. , (2000) 2 SCC 617.
Respondents letter to some firms asking quotations for ground handling services
Combatta Aviation quoted higher offer Recommended by the Evaluation
Committee B.O.D. decided to negotiate with Air India (PSU) Offer made
beneficial Contract awarded to Air India.
Challenged by Combatta:
Having accepted the limited global competitive bidding norm and having
fixed the last date, it was not open to negotiate with Air India behind the
back of Cambatta.
CIAL had not acted fairly and impartially No opportunity was given to
Cambatta to give better offer.
Held:
Decision of the Committee was not binding on B.O.D. Discretion is with
the B.O.D.
CIAL bona fide believed that involving a P.S.U. & a national carrier would
be more beneficial.
Commercial transaction Commercial considerations are paramount
State can choose its own method Not open to judicial scrutiny, unless
dire public interest so requires.

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.

ANGREZI POSITION Similar to India


Padfield v. Minister of Agriculture (1968) All ER 694.
Milk Marketing Scheme under Agricultural Marketing Act, 1958 Milk Marketing
Board to fix the prices to be paid to milk producers in different areas.
2 remedies for the person aggrieved by the Boards action Arbitration and
Ministers power to appoint consumers committee and committee of
investigation (S. 19).
Producers near London were of the opinion that the price paid to them did not
reflect the higher value of their milk Request to the minister to refer the matter
to committee of investigation.
Refused Minister has unfettered discretion to decide whether or not to refer a
particular complaint to the committee of investigation Minister would be in a
difficult political position if, despite the committees acceptance of the complaint,
the minister should take no action.
Held:
Not unfettered discretion Parliament must have conferred the discretion
with the intention that it should be used to promote the policy and objects
of the Act; the policy and objects of the Act must be determined by
construing the Act as a whole and construction is always a matter of law
for the court. In a matter of this kind it is not possible to draw a hard and
fast line, but if the Minister, by reason of his having misconstrued the Act
or for any other reason, so uses his discretion as to thwart or run counter
to the policy and objects of the Act, then our law would be very defective if
persons aggrieved were not entitled to the protection for the court.
The purpose of the Act Every genuine complaint must be forwarded to
the committee and anything contrary to this would frustrate that purpose.
R v. Metropolitan Police Commissioner ex parte Blackburn (1968) 1 All ER 763.
Increase in illegal gambling in London Shortage of police Confidential
instructions from Police Commissioner to stop observation Policy of not
prosecuting the clubs Writ from a private individual Lapsed as the
Commissioner reversed the policy
Held Discretion was not absolute and uncontrollable Should perform the duty.
United States
Judicial activism Courts not only substitute their discretion to administrative
decision, but sometimes exercise discretion vested with an administrative
authority.

Boreta Enterprises v. Department of Alcoholic Beverage Control 84 Cal Reptr 113


(19700
Topless waitresses Dept. revoked liquor license Contrary to public welfare and
morals.
Held: Exercise of discretion was not legal Not covered under the stipulated
clause.
Mere nudity does not constitute a form of sexual activity The good casue
clause prohibits the Dept. from acting arbitrarily or capriciously.
It seems that the public welfare is not a single, platonic archetypal idea, as it
were, but a construct of political philosophy embracing a wide range of goals
including the enhancement of majority interests in safety, health, education, the
economy, and the political process, to name but a few. In order intelligently to
conclude that aa course of conduct is contrary to public welfare, its effects must
be canvassed, considered and evaluated as being harmful or undesirable
United States v. Professional Air Traffic Controllers Organisation 438 F 2d 79
(1970)
25th March 1970 Large number of air traffic controllers of FAA absented Illness
and other reasons were given Strike Application for injunction against
employees.
District Court Granted injunction Barred FAA from taking disciplinary actions
Rules are not proper.
Appeal against the bar for taking action.
Circuit Court lifted the bar
The FAA has the power to discipline its employees without judicial
interference.
Mc Tiernan v. Gronouski 337 F.2d 31, 34 (2d Cir. 1964), - The taking of
disciplinary action against government employees, including the invocation of
the sanction of dismissal, is a matter of executive discretion, and is subject to
judicial supervision only to the extent required to insure substantial compliance
with the pertinent statutory procedures provided by Congress, and to guard
against arbitrary or capricious action
No proper ground to suggest FAAs action as arbitrary or capricious Disciplinary
action based on unlawful stoppage of work is within the power.
It is not the business of the courts to substitute their untutored judgment
for the expert knowledge of those who are given authority to implement
the general directives of Congress
J. Waterman dissented.
FAA admits that it intends to dismiss only a small number of controllers
who were leaders in the strike and to suspend or otherwise discipline
certain others. This proposed course of action which indeed flies in the
face of the statute, The congress has told the FAA that, if the
controllers are found to have participated n a strike, the agency is
compelled by the statute to discharge all controllers who are found to
have participatedin the strike Although the above interpretation

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.

Industrial Disputes (Amendment) Act, 1982 Definition amended by S. 2(c).


S. 1(2) Act shall come into force on the date specified by the Central Govt.
Most of the provisions were brought into force in 1984, but not S. 2(C).
Challenged as arbitrary Writ of mandamus.
Govt. Implementation would result in depriving the remedies to the employees
working in the hospitals, schools and temples Alternative must be provided.
Held: Conditional legislation Power did not enable the govt. whether or not to
bring the provision into force Only power to bring into force when the
favourable circumstances are present.
Attitude Criticized by the court However must be left to the best judgment of
the executive.
(3) Purpose-based classification
Enabling Act Power to appoint a day for the enforcement of a legislation
Aimed at giving the time for the executive to equip itself.
Extension and application of Act For a duration of time Extension to
other territories, objects or persons.
Dispensing and suspending Acts Power to make exemptions from all or
any provision Meant to relieve the hardship to the administrative
authorities Must satisfy the tests of Art. 14.
Eg: Indian Registration Act, 1908 delegated power to the state govt. to
exempt any district or tract of land.
Alteration Acts Legislation by reference Ex. S. 21 of the Excess Profits
Act Provisions of Income Tax Act shall be applicable with such
modifications as prescribe by rules.
Amendment to the schedule Power to remove difficulty Exceptional
type of delegation.
Taxing Acts Delegation of taxing power is allowed, if policy is laid down.
Supplementary Acts Making rules.
Approving and sanctioning Acts Power to approve the rules made by
other authority.
Classifying & fixing standard Acts Purity, quality or fitness for human
consumption.
Penalty for violation Acts Punishment for violation of rules In US only
Congress fixes Can be delegated in UK and India Ex: London Traffic Act,
1924.
(4) Authority-based classification.
Sub-delegation Delegatus non potest delegare Express or implied
authorization by the parent legislation.
Exception to prohibition of sub-delegation: The essential Commodities Act, 1955
Power to make rules (S. 3).
A.K. Roy v. State of Punjab, (1986) 4 SCC 326.
S. 20(1) of Prevention of Food Adulteration Act, 1954 No prosecution for
an offence under the Act shall be instituted except by, or with the written
consent of the Central Government or the State Government or a person
authorized in this behalf, by general or special order.

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.

Patna village expanded Plan to place under Patna administration municipality


Governor issued order under S. 6(b) of the 1915 Act S. 104 of 1922 Act was
picked & modified by the Governor and applied to Patna administration and
village [ S. 3(1)(f)].
Whether the Notification of the governor (1931) can be challenged by the
Petitioners?
Whether the 1951 notification can be challenged?
(1) Whether the notification travels beyond the impugned portion of the Act,
and
(2) If not, whether S. 3(1)(f) is itself ultra vires.
The 1931 notification could not be challenged since the petitioners, being
from Patna village, lacked locus standi.
S. 3(1)(f) was held to be valid, applying the ration of In Re Delhi Laws Act.
However, the notification was held to be invalid, since the provision
regarding taxation was extended and the safeguard (hearing being given)
was omitted Against the legislative policy.
Harishankar Bagla v. State of M.P., AIR 1954 SC 465
S. 3 of the Essential Supplies (Temporary Powers) Act, 1946 Central govt.
empowered to make rules for the purpose of maintaining or increasing supplies
of essential commodities and for securing equitable distribution at fair price.
S. 4 Can be delegated by the Central govt (the above power to make rules).
S. 6 Orders made there under shall have effect notwithstanding anything
contained in any law in force.
Cotton Textiles (Control of Movement) Order, 1948 was passed under S. 3
General or Special permit of the Textile Commissioner to be obtained for
transportation (Clause 3).
Cotton clothes weighing over 6 maunds was confiscated Challenged.
Petitioner
Clause 3 of the Control order is ultra vires of Art. 19(1)(g) and (f)
S. 3 of the Act amounts to delegation of the legislative power outside the
permissible limits No framework for the exercise of power.
S. 4 is against delegatus non potest delegare
S. 6 is already declared invalid by the H.C. S. 3 is inextricably mixed with
it and should also be declared invalid.
Held:
Clause 3 is not ultra vires Did not deprive the citizen to dispose of the
property or to carry on the trade Only permit is required Reasonable
restriction.
S. 3 of the Act is not excessive delegation Legislature cannot delegate its
power to lay down the policy In the present case, the legislature has laid
down the policy the maintenance or increase in supply of essential
commodities and of securing equitable distribution and availability at fair
prices.
delegatus non potest delegare is not applicable when the clear policy of
law is laid down.

S. 6 is not invalid Neither expressly nor by necessary implication it


repeals or abrogates the existing laws Object is to by-pass them in case
of any inconsistency S. 6 reflects the will of the Parliament Not an
authority delegated to the Central govt. No question of invalidity.
(S. 6 cannot empower the central govt. to supersede any state legislation under
List II. A delegate enjoys only as much power as the original body itself. Indian
Oil v. Municipal corp. jalandhar)
Edward Mills v. State of Ajmer, AIR 1955 SC 25.
S. 27 of the Minimum Wages Act, 1948 Power of appropriate Government to
add to the schedule any employment in respect of which it is of opinion that
minimum wages shall be fixed Challenged as excessive delegation without the
legislative policy.
Held: Not invalid Legislative policy is apparent Avoiding exploitation of labour
due to unequal bargaining power or other reasons.
Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 (the case is an
exception to the rule).
The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 To
check the mischief being done to the innocent patients suffering from certain
incurable diseases through advertisements claiming magic remedies.
S. 3 Laid down the list of diseases Authorized the Central govt. to include any
other disease in the list.
Petitioner faced difficulty in the publicity of certain products 4 th December
1958, the Drugs Controller, Delhi intimated to the petitioners that the provisions
of S. 3 of the Act had been contravened by them and called upon them to recall
their products sent to Bombay and other States Correspondence between the
petitioner and authorities 40 products were stopped from sale Challenged.
Held: Excessive delegation Legislature has not laid down any policy for
guidance to the govt. in the matter of selection of diseases.
Decision criticized Not in line with earlier decisions Certain diseases in the list
could have provided standard Title and preamble.
8/7/08
Avinder Singh v. State of Punjab, AIR 1979 SC 321
S. 90(1) of the Punjab Municipal Corporation Act, 1976 Certain items for
taxation by the corporation Taxes so levied are to be utilized for the purposes of
the Act.
Under S. 90(4) , the State of Punjab asked the municipal bodies to impose a tax
at Rs. 1 per bottle of Indian made foreign liquor Municipalities failed to
implement State itself issued notification under S. 90(5).
Petitioner:
No guidelines provided for the imposition of the tax excessive delegation
Abdication by the legislature.
No opportunity of being heard is given to the residents.
Double taxation Sales tax is already imposed.
Held:

No excessive delegation Policy is laid down collection for the purpose


of the Act Sufficient, as the municipality has limited functions May not
be in case of state.
Opportunity of being heard has to be given only when the municipal
authorities impose tax Not required, when the state govt. imposes tax
under S. 90(5).
Nothing in the Constitution prevents double taxation Sales tax imposed
is not a bar on the tax for the municipal corporation.

Norms of jurisprudence of delegated legislation:


Power of delegation is a constituent element of legislative power.
Essential legislative functions cannot be delegated Legislative policy
required.
Non-essential powers may be delegated, however numerous and
significant they may be.
Essential legislative functions are to be determined on case to case basis.
Very broad general statements may constitute legislative policy.
Delegated legislation must be consistent with the parent Act.
Delegate cannot have more power than that of the delegator.
Sub-delegation must be authorized by the act.
Delegated legislation must not be unreasonable and must not violate any
procedural safeguards.
Control of Delegated Legislation
(1) Parliamentary Control
Every delegate is subject to the authority and control of the principal
Exercise of the power can be directed, corrected or cancelled by the principle.
Jain & Jain it is the function of the legislature to legislate, but if it seeks to
give this power to the executive in some circumstances, it is not only the right
of the legislature, but also its duty, as principal, to see how its agent carries
out the agency entrusted to it. Since it is legislature which delegates
legislative power to the administration, it is primarily for it to supervise and
control the actual exercise of this power, and ensure against the dagner of its
objectionable, abusive and unwarranted use by the administration
(a) Direct general control Proceedings in Parliament
Debate on the delegating bill Necessity, extent, type of delegation etc.
Asking questions and giving notice for discussion
Moving resolution on urgent matter, when the reply of the govt. is
unsatisfactory.
Vote of grant member may propose a cut on the budget demands of a
ministry.
Directions by the speaker to refer to a committee to examine the extent of
powers sought to be delegated.
(b) Direct special control Laying on the table of the legislature.

Extensively used in England Statutory Instruments Act, 1946


Administrative rule making is subject to the supervision of the Parliament
Immediate effect but subject to annulment by either House.
Laying with no further direction Simply to inform the Parliament
Laying subject to negative resolution Effect soon after laying on the table
of the House, but shall cease if annulled.
Laying subject to affirmative resolution
(i)
Rules having no effect until approved.
(ii)
Cease to have effect unless approved by any affirmative resolution
Laying in draft subject to negative resolution Draft rules to be placed on
the table, which shall come into force after a specified period, unless
disapproved.
Laying in draft subject to an affirmative resolution Power of modification.

India No statutory provision for laying all delegated legislation May be


provided in the individual statute Ex: Representation of the Peoples Act, 1951
(S. 169(3) laying before the Parliament), Indian Services Act 1951, Indian
Development and Regulation Act, 1951, Indian Tariff (Amendment) Act 1950 etc.
Legal consequences of non-compliance with laying provision
Void in England
India Depends on the nature of provisions in the enabling Act.
Jan Mohammad Noor Mohammad Begban v. State of Gujarat and another, AIR
1966 SC 385.
S. 26(5) of the Bombay Agricultural Produce Markets Act, 1939 Laying before
the legislature.
Rules framed in 1941 Not laid before the legislature in its first session World
War II emergency Placed in the 2nd Session.
Held: the Act did not prescribe that the rules acquired validity only from the date
on which they were placed before the Houses of Legislature Laying was not
mandatory.
Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149.
S. 3(6) of the Essential Commodities Act, 1955 Laying before the Houses of the
Parliament as soon as may be after order is made u/s. 3- Order was not placed.
Appellants were prosecuted for an offence of acquiring controlled commodity
(iron) at a rate higher than maximum statutory price Argued against the
validity of the order, since it was not placed before the legislature.
Whether S. 3(6) is directory or mandatory?
Held:
Two considerations for regarding a provision as directory (i) Absence of
any provision for the contingency of a particular provision not been
complied with & (ii) Serious general inconvenience and prejudice to the
general public, if rules are declared invalid.
S. 3(6) does not stipulate negative or affirmative resolution by either
Houses Not subject to the approval or disapproval of Parliament No

period is stipulated No penalty for nonobservance of the norm Not a


condition precedent.
Essential commodity Serious inconvenience and prejudice would be
cause laying is directory.

Hukum Chand v. Union of India, AIR 1972 SC 2427.


S. 40 of the Displaced Persons (Compensation) Act, 1954 Central govt. to make
rules To be placed before the Parliament subject to negative resolution.
Rules framed Placed before Legislature.
An Explanation was added to Rule 49 Retrospective operation was given.
Held: Rules were ultra vires of the powers of the administrative authority
Mandatory laying.
(c) Indirect control Scrutiny committees.
The Lok Sabha Committee on Subordinate Legislation, 1953 & The Rajya Sabha
Committee on Subordinate Legislation.
_____GET NOTES _____
15/7/08
ADMINISTRATIVE ADJUDICATION
Bulk of the cases are decided by the administrative bodies.
Earlier With the executive (King).
Wade and Philips Modern govt. gives rise to many disputes which cannot
appropriately be solved by applying objective legal principles or standards and
depend ultimately on what is desirable in the public interest as a matter of social
policy.
Need for administrative adjudication
Expansion in the governmental activities Impossible to carry on the new
programs with the courts as the sole agency for the determination of legal
questions.
Desire to provide a system of informal, cheap and quick adjudication.
Mahabir Jute Mills v. Shibban Lal Saxena, AIR 1975 SC 2057.
Dismissal of workers Decision after 25 years Most of 400 workmen, who
claimed justice had died New appointees had 25 years service.
Policy considerations Cannot be solved only on the basis of law.
Need to explore new public law standards based on moral and social
principles Expertise in the field is required Tribunals contain the experts
Leaving the technical matters to the decision of the court is like giving
surgery to a barber and medicine to an astrologer (S.C.).
Adoption of the give and take approach Helpful in labour matters.
Pending cases before courts The mass of administrative litigation would
make the courts virtually collapse.
Administrative agency vested with the power of adjudication and courts of
law Procedure, Precedent and Res judicata.
Problems of administrative adjudication

(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)

If he had been actuated by corrupt motive however small the bribe


may be.
(The above is not an exhaustive list, and more conditions may be added
depending upon the facts and circumstances of the case in hand).
RULES OF NATURAL JUSTICE
No statute in India laying down the minimum procedure to be followed by
decision-making administrative body Must follow minimum procedure N.J.
N.J. Developed with the growth of civilization Shows the level of civilization
and Rule of Law.
Divine law or natural law to which all temporal law and actions must conform.
Not the justice of nature where the lion devours the lame and the tiger
feeds upon the antelope Higher law of nature where the lion and lamb
lie down together and the tiger frisks with the antelope.
Fairness, reasonableness, equity and equality Common sense justice- Principles
ingrained in the conscience of man Universal ideas.
The form of the N.J. and its extent depends on the facts and circumstances of a
given case and the framework of the statute under which action is taken.
(Canara Bank v. Debasis, (2003) 4 SCC 557.)
N.J. means many things to many writers Has changing content Criticized as
unruly horse.
Lord Denning With a good man in the saddle, the unruly horse can be
kept under control. It can jump over obstacles. It can leap fences put up
by fiction and come down on the other side of justice
J. Krishna Iyer It is not a bull in a china shop nor a bee in ones bonnet.
Its essence is good conscience in a given situation: nothing more-but
nothing less
Rules of N.J. are imbibed in the Constitutions world over No direct reference in
the Indian Constitution Preamble, Arts. 14, 21, 311.
Complete waiver or N.J. Results in the violation of fundamental rights.
D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259.
Termination of services under the Certified Standing Orders Willingly absented
from duty for more than 5 days without intimation/permission.
Appellants plea that he was prevented entry at the gate and was not allowed to
sign was not accepted.
Labour Court: Dismissal is justified No hearing is required under the Standing
Orders.
S.C:
Violation of Arts. 14, 21, and N.J. Rules of N.J. must be read into the
Standing Orders Otherwise becomes arbitrary, unjust and unfair violating
Art. 14.
No express exclusion in the Standing Orders.
Quasi-Judicial function Different from pure administrative Needs to be
followed in the interests of justice.

Anglo-American courts Follow 2 principles from 3 to 4 hundred years.


Nemo in propria causa judex, esse debet Nobody shall be a judge in his
own cause
Audi alteram partem - Hear both sides.
Rules against Bias
Operative prejudice to a party Predetermination to decide the case in a manner
Factors improperly influencing a judge.
Two principles:
No man should be a judge in his own cause
Justice should not only be done but seen to be done.
Biased decision is nullity Not applicable in all the administrative matters.
(1) Personal bias
Relationship between the deciding authority & the parties Direct/indirect
Personal/professional hostility or friendship.
Mineral Development Corporation Ltd. v. State of Bihar, AIR 1960 SC 468.
Lease for 99 years to mine mica Show cause notice for the cancellation of
licence for violation of S. 10, 112, 14 of the Mining Act (show cause issued under
S. 25)
Company asked for the particulars of alleged violation Furnished after a
reminder Company sent a written representation denying the allegations
Cancelled the licence after 2 years.
Challenged:
Co. has invested large sum for securing mining lease + for prospecting
and developing the mines Art. 19(1)(g) and (f) violated.
No reasonable opportunity to show cause.
Held:
Not an unreasonable restriction S. 25 is valid.
Reasonable opportunity from case to case The Revenue Minister who
initiated the inquiry was supposed to hear Personal bias.
Property dispute
Political rivalry
Criminal case by the minister under S. 500 of the IPC.
S.P. Kapoor v. State of H.P., AIR 1981 SC 2181.
H.P. health services Promotion list by the Departmental Promotion Committee
Confidential reports of candidates by one of the aspirants for promotion Biased.
Real likelihood of bias/ Reasonable suspicion of bias
Real likelihood focuses on the courts own evaluation Reasonable suspicion
looks mainly to outward appearance Much common tests.
Question is not whether the person is really biased Difficult to prove state of
mind Whether the reasonable grounds for believing that a person biased exist?
Human possibilities and ordinary course of human conduct.

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/

Board was a high powered body Recommendations had considerable


weightage If the selection by the Board is vitiated, recommendation by
the UPSC is also vitiated.
Selection to both senior and junior scale from the same possible Not
possible to separate the 2 sets All selections to be set aside.

G. Sarana v. University of Lucknow, AIR 1976 SC 2428.


Interview for the post of Prof. of Anthropology Respondent No. 8 was
recommended by the Selection committee Writ under Art. 226 Appeal on
failure.
Ground: Personal Bias 2 of the experts in the committee had close relation with
respondent no. 8 Instrumental in getting many remunerative assignments
Stayed in the house Strained relationship with the petitioner.
Held:
No need to look into the likelihood of bias Objection must have been
taken soon after the constitution of the Selection Committee Cannot
challenge once submitted to the jurisdiction willingly.
Mere recommendation Executive Council is yet to take decision Writ is
not maintainable.

G.N. Nayak v. Goa University, (2002) 2 scc 721.


Prof. of Marine Science in the University of Goa Appellants selection was
challenged under Art. 226 Bias contended Held in favour of Respondent No. 5
Appeal.
1991 advertisement No one applied 1994 advertisement Both applied
Some days before the interview, letter from the H.O.D. (Res. No. 2) to V.C.
requesting urgent interview Highlighted the appointment letter received by
appellant Praised the qualities of appellant Endorsed by the Dean of the
Faculty.
Res. No. 5 objected to the participation of Res. No. 2 Writ was withdrawn
Premature Res. No. 2 did not sit Neither of them were selected.
1995 Fresh advertisement Relaxation in additional qualification Fresh
selection Committee consisting of Res. No. 2- Committee recommended the
appellant
Challenged Eligibility criteria is illegally amended.
Appellant was not qualified.
Selection process is vitiated .
Held
Writ is maintainable Earlier withdrawn writ was for apprehended bias
Now for the actual bias Subject matter different (2 advertisements)
Cannot challenge the eligibility criteria Willingly applied and appeared
for the interview.
Appellant was qualified Teaching + Research.

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.

Sub Committee of Judicial Accountability v. Union of India, (1991) 4 SCC 699.


Judges Enquiry Act, 1968 Motion by the Speaker for the removal of a sitting
judge of the S.C. for the alleged misconduct when he was functioning as the C.J.
of H.C. Challenged to be influenced by political factors.
Held:
Ultimate authority rests with the Parliament Before that the investigation
committee must decide If the committee records that the judge is not
guilty, the political element is eliminated.
Doctrine of necessity Power is conferred only to the Speaker No other
person can take decision under the Act.
Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation &
Another, AIR 1959 SC 308.
Nationalization of road transport services Secretary to the Home Department to
hear the objections Bias contended.
Held: The Secretary was interested in the subject matter Bias.
(4) Departmental Bias
Inherent in the administrative process Policy consideration.
Gullapalli I AIR 1959 SC 308 Secretary Part of the dept.
Gullapalli II, AIR 1959 SC 1376 Minister- Only responsible for the disposal
of business.
- Hari v. Dy. Commissioner of Police, AIR 1956 SC 559.
Externment order Challenged Initiation of the proceeding and hearing was by
the same police department.
Held: No bias Functions were carried on by 2 separate officers.
State of U.P. v. R.S. Sodhi, AIR 1994 SC 38.
Alleged fake encounters Can the investigation be done by the state police?
Held: Independent agency is desirable CBI was directed.
(5) Preconceived notion bias
Delicate problem Judge can neither sit as a blank sheet of paper, nor as a
person with preconceived notion.
T. Govindaraja Mudaliar v. State of T.N., AIR 1973 SC 974
Nationalisation scheme Ad hoc Committee to frame the scheme Home
Secretary was a member.
Objections heard by Home Secretary No preconceived notion bias
Secretary, as a member, did not finally determine any issue as to foreclose
his mind Only assisted the govt.
Even if he happens to be a servant of the government he is not bound in
any way to carry out or endorse the policy of the Government without
discharging his duties as contemplated by the parent ct.
Inherent limitation of administrative process Public officer cannot be accused
for having some favour to a policy.
-

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,

merely by taking the oath of office of a judge, a man ceases to be human an


strips himself of all predilections, becomes a passionless thinking machine.
Unless preconceived notion has the capacity to foreclose the mind of the judge,
action is not vitiated.
Doctrine of necessity Bias would not disqualify To allow a biased person to Act
v. to stifle the action altogether Choice in favour of the former.
Audi Alteram Partem/Rule of fair hearing
No one should be condemned unheard Opportunity to defend Sine qua non of
every civilized society Administrative difficulty cannot be an excuse.
R v. University of Cambridge, (1723) ER 698.
Cancellation of Dr. Bentleys degree - No opportunity to defend.
No statutory requirement to hear Held that the justice of the common
law supplies to the omission of the legislature. (Opportunity to be heard
should have been given).
Legislature cannot take away except in cases of recognized exceptions Would
be violative of fair hearing under Art. 14 and 21.
Refusal to participate Cannot be a reason for pleading the violation of N.J.
In India, courts have developed the fine code of administrative procedure Fair
hearing.
S.L. Kapoor v. Jagmohan and Others, AIR 1981 SC 136.
The Punjab Municipal Act, 1911 Power to Delhi Administration to
supersede New Delhi Municipal Committee on the ground of incompetency
or persistent default in performance of duties or exceeding or abusing the
powers.
Lt. Governor superseded Persistent default and abuse of power resulting
in wastage of funds.
Challenged Non observance of N.J. and Fair-play.
Respondents
Opportunity of being heard is not stipulated in the Act.
Neither the Committee nor the members had any beneficial interest in the
continuation of the Committee Suppression did not result in any civil
consequence entitling a right to be heard No prejudice.
Emergent situation Quick action was necessary to avert the disaster.
Held:
Violative of audi alteram partem Opportunity of being heard need not be
provided by an express provision.
Committee assumes certain office and status Has rights and
responsibilities commanding respectful regard from the public When
stripped of the office and status in an unceremonious way, civil
consequences result.
Proof of prejudice is not required N.J. is not dependent on whether it
would have made any difference if N.J. had been observed Nonobservance of N.J. is itself prejudice to any man.

If a grave situation arises, public interest can be sufficiently protected by


appropriate prohibitory and mandatory order provided by the Act.

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)

Disciplinary action should not be set aside automatically Court should


enquire whether substantive or procedural provision is violated?
Substantial provision Theory of substantial procedural provision is
violated?
Procedural provision Every violation does not vitiate must be
examined from the point of view of prejudice in defending the case.
Two kinds of procedural provisions:
(a) Procedural provision, not of mandatory character Violation has to
be examined from the point of substantial compliance Prejudice to
be proved for setting aside the order.
(b) Mandatory procedural provision (Ex: Opportunity to produce
evidence/material in support of evidence) The question is whether
the provision is conceived in the interest of the person proceeded
against or in the public interest? Waiver in the former is possible.
Where the enquiry is not governed by any statutory provision & only
obligation of the administrative authority is to observe N.J., the court

(vi)
(vii)

must make the distinction between a total violation of natural justice


and a violation of a facet of the said rule Distinction between no
opportunity and no adequate opportunity In the case of the former,
order would be invalid In the latter case, has to be examined from the
point of prejudice Whether in the totality of the circumstances, the
delinquent officer did or did not have a fair hearing?
Ultimate overriding objective of fair hearing is to ensure that there is
no failure of justice.
State interest or public interest may curtail the rule of audi alteram
partem.

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.

If the service of notice is made impracticable or impossible, proceedings are not


vitiated.
(2) Right to know the evidence against.
Evidence to be use against a person must be brought to his notice Need not be
original documents Summary of the contents is sufficient Right to inspect and
take note.
Dhakeshwari Cotton Mills v. Commr. Of IT, AIR 1955 SC 65.
Income Tax Officer guessed the gross profit of sale by the appellant The
Tribunal accepted that with a reduction of 5%.
Appellant challenged Assessment was made in complete violation of N.J.
Data supplied by the Income Tax Department was relied on by the
Tribunal No opportunity to inspect and rebut Appellants materials in
support of his case were not accepted.
Failure to disclose the materials to assessee Held to be violation of N.J.
(3)Right to present case and evidence.
Reasonable opportunity to present the case- Writing/oral.
Oral hearing Not an integral part of fair hearing Effective defence test
Complex legal and technical questions.
Union of India v. J.P. Mitter, AIR 1971 SC 1093.
Age of the judge was in question Respondent claimed to be 27 Dec 1904 and
not 27 Dec 1901 Art. 217(3) Documentary evidence before the Presidnet
Oral hearing requested Not given Challenged the decision.
Held:
Oral hearing is not required Opportunity to submit in writing is sufficient No
likelihood of bias or prejudice No complicated question to be decided by the
President Truth has to be determined on his past conduct at various stages
when he gave no evidence as to date of birth.
Dhakeshwari Cotton Mills v. Commr. Of IT AIR 1955 SC 65.
Production of material evidence was not allowed.
N.M.T. Cooperative Society v. State of Rajasthan, AIR 1963 SC 1098
Enquiry under the MV Act for nationalization of road transport Objections
Witnesses whose names were filed did not appea Summons issued by
the authority Failed.
Objectors asked for coercive process Authority refused Order of
nationalization passed Challenged
To what extent the authority should help the party In presenting the
evidence?
Held:
Authority is not bound to use the coercive process Objectors duty to
procure their presence.

(4)Right to rebut adverse evidence.


May be oral or in writing at the discretion of the authority 2 factors.
(a) Cross examination
Most powerful weapon to establish the truth Need not be followed in all
administrative adjudications Effective defense test.
Hira Nath Mishra v. Principal, Rajendra Medical College, (1973) 1 SCC 805
Male students had entered quite naked to Girls Hostel and misbehaved
with some girls 36 girls filed report Enquiry Committee appointed.
Statement of the girls were recorded in the absence of appellants
Identified through the photographs Expulsion ordered Challenged.
Held:
Cross examination is impracticable No girl would come forward to give
evidence College authorities also cannot protect the girl students outside
the college precincts Retaliation and harassment.
Town Area Committee v. Jagdish Prasad, AIR 1978 SC 1407
Charge-sheet to the officer by the Department Officer gave explanation Order
of dismissal Challenged.
Held: Fair hearing includes opportunity to cross-examine the witnesses and also
to lead the evidence.
31/7/2008
(b) Legal Representation
Not an indispensable part of administrative proceeding- Lawyers tendency to
complicate and prolong Might also give an edge to the rich over poor Unless
the agency itself provides, denial of legal representation cannot be challenged
generally.
Depends on the provisions of the statute Factory law do not permit legal
representation Industrial Disputes Act allows with the permission of the tribunal
Income Tax Act permits as a matter of right.
Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripati, (1993) 2 SCC 115.
Standing orders may restrict the right of legal representation of the
employee.
Courts in India have stressed on professional assistance in different situations:
- Where the person is illiterate
- Where the matter is complicated and technical.
- Where the question of law is involved.
- Where the person is facing a trained prosecutor.
Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025.
Acquisition of property Custodial interrogation Accused must be allowed legal
representation Police must wait for a reasonable time for the arrival of the
lawyer.

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

No attempt to disclose the source of power and necessity of exercising


that power.
Order of DM was quasi-judicial Can be made only on the consideration of
charges and explanation of the appellants Must give reasons, why he
held the charges proved, and the explanation is unacceptable.
State govt. could have acted with some awareness Citizens right need
to be protected against arbitrary actions of the subordinates- Reasons for
rejection.
The rules conferred a right of appeal to state govt. against the order of DM
Opportunity to convince the state that the order was erroneous Right
an be effectively exercised only if the reasons are given.
Recording of reasons in support of a decision on a disputed claim by a
quasi-judicial authority ensures that the decision is reached according to
law and is not the result of caprice, whim or fancy or reached on grounds
of policy or expediencey.

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

taken into consideration the findings, quantum of penalty and other


relevant factors Reasons.
Quasi judicial authority must give reasons even if statute does not provide
for appeal or revision Less scope for arbitrary and partial exercise of
power Indicate the consideration of extraneous factors.

Pure administrative function No specific decision on the point of requiring


reasons.
Appellate or revisional authority Is there any implied requirement to give
reasons?
M/S Harinagar Sugar Mills Ltd v. Shyam Sundar Jhunjhunwala and Others, AIR
1961 SC 1669.
Father of respondent had large no. of shares in appellant company Transferred
2 blocks of 100 shares each to his son and daughterin-law.
Application for the registration of transfers Refused by the company directors
under Art. 47B of the Article of Association Appeal to the Central govt.
Resolution of the company directors was set aside without giving any reason
Special leave petition by the company.
Held:
The Central Govt. while exercising the appellate power acts as a tribunal
Required to act judicially Need of confidentiality should not result in
deviation from judicial approach
Decision must be made objectively and not subject to subjective
satisfaction Must be on the basis of law and not on the basis of policy or
expedience.
Decision of Central Govt. is subject to appeal to S.C. under Art. 136 SC
cannot exercise the power effectively, if the reasons are not given.
When the decision of the authority is reversed wholly or partially in appeal or
revision, the appellate authority must give reasons.
What if the appellate authority simply affirms the decision
Higher authorities need not give reaons while affirming the decision of lower
authority.
AIR 1966 SC 671
State of Jaipur v. Prabhu Dayal (1995) 6 SCC 279.
(1995) 1 SCC 434.
Higher authorities should give reasons while affirming the decision of the
lower authority.
AIR 1967 SC 1606.
AIR 1976 SC 1785.
AIR 1978 SC 597.

The cases, therefore, are not clear on the point.


Courts approach is very flexible.
England S. 12(1) of the Tribunals and Inquiries Act 1958 Duty to give reasons
only where the party requests for them on or before the decision.
USA S. 8(b) of the Administrative procedure Act 1946 Duty to give reasons.
5/8/08
(8)Institutional decisions/one who decides must hear.
Local Govt. Board v. Arlidge, 1915 AC 120.
Closing order in respect of a dwelling house Hearing by the inspector, order
from the Local Govt. Board Challenged as violative of N.J.
Held: No violation Govt. departments are not expected to conduct their
business like a court of law Can take the assistance of subordinates.
Tribunals and Enquiries Act Inspector holding enquiry cannot take decision.
Morgan v. United States, 298 US 486 (1936)
S. 310 of the Packers and Stockyards Act Secretary of Agriculture to make an
order fixining the maximum rates for dealings in stockyard.
Subordinate officer heard the parties Secretary fixed the rates Challenged.
Held: N.J. violated When an official is vested with power by the law to decide,
he has the duty to exercise real deciding function Evidence must be received
and weighed Duty cannot be performed by one who has not considered the
evidence or the arguments Duty is akin to that of a judge.
Effectively eliminated the separation between hearing and decision-making
within the agency.
Gullapalli I Secretary of Transport Dept. heard and CM made the decision.
Gullapalli II Minister gave the hearing and CM decided No violation
(9)Rule against dictation
Decision by the authority vested with power Direction of outside agency
violates fair hearing.

(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.

Mumtaz Hussain Ansari v. State of U.P., AIR 1984 SC 1116


Deputy Superintendent of Police Charged for willful absence from duty,
providing fake medical certificate and visiting Pakistan w/o valid passport.
Departmental Inquiry by U.P. Administrative Tribunal Appellant named 8
witnessess on his behalf Asked to deposit Rs. 900 for the allowance to be paid
to the witnesses Not deposited.
Tribunal found the appellant guilty in the absence of witnesses Dismissed from
service by the disciplinary authority Challenged.
Held:
Appellant was under suspension for nearly 5 years Nothing on the record
to show that he was financially sound
Failure to summon defence witnesses at the govt.s expense was a
violation of N.J. unless it was decided by the authority that the evidence
was not material.
(11)
Decision post haste
Not to rush to a decision.
City Corner v. PA to Collector and Additional District Magistrate, AIR 1976 SC 143
Application for licence under the Places of Public Resort Act, 1888 for conducting
games of skill and dance Executive Officer of Panchayat refused Granted on
appeal.
Appellant spent Rs. 27,000 to put up a temporary structure Started business on
22nd Jan 1975 DM issued a show cause notice on 25 Jan for the cancellation of
licence due to the objection by the Superintendent of Police and 2 other local
associations.
Appellant wrote back on 27 Jan for the supply of original adverse material
Contended the summary as misleading Promised detailed explanation after
receipt.
DM considered the explanation as a routine one and was not convincing On 28
Jan licence was revoked Challenged.
Held: Decision post-haste Either should have supplied the copies of adverse
material or should have intimated that the summary was sufficient.
Must have given an opportunity to give detailed representation as promised by
the appellant.
7/8/08
POST DECISIONAL HEARING
Intended to strike a balance between the administrative efficiency and fairness
to the individuals.
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
Passport was impounded under S. 10(3)(c) of the Passport Act 1967 No
reason was provided on the ground of public interest (Presence was
required before the Shah Commission for emergency excesses) No notice
and 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.

K.K. Shepherd v. Union of India, AIR 1988 SC 686


3 banks were amalgamated with 3 other banks by a scheme under the Banking
Regulation Act 1949 125 employees were excluded from employment.
Some of the excluded filed writ before the H.C. Single judge granted partial
relief by proposing post-decisional hearing Division bench set aside the order
Appeal to S.C.
Contentions
No opportunity of begin heard Authorities did not act fairly.
None of them were responsible for fictitious or improper conduct of
business resulting in the near about bankruptcy of the banks Employees
against whom there are definite charges and enquiry is pending are taken.
Respondents
Incorporation of the names were finalized on the basis of the scrutiny of
the records Sufficient compliance of requirement of law Statute did not
confer any opportunity of being heard.
Scheme-making process was legislative (to be placed before the Houses of
Parliament), at the most administrative N.J. need not be followed.
Entire operation was to be finalized within brief period of time Enquiry of
each employee cannot be implanted into the provisions of the Act.
Held
Administrative action Rules of N.J. apply Decision to exclude a certain
section of the employees cannot be made w/o following N.J.
Duty to act fairly Needs hearing Civil consequences.
Time frame Detailed enquiry may not be possible Simpler must be
afforded
Rule of post-decisional hearing would not apply Normal hearing
Employees thrown out are deprived of livelihood Serious difficulties
Once the decision is taken, there is tendency to uphold the decision
Representation would yield no fruitful result.
Exceptions to the rules of N.J.
- More injustice rather than justice Can be excluded.
(1) Exclusion in emergency..
Quick action Notice and hearing may be obviated.

(2) Exclusion in case of confidentiality: Surveillance register Confidential


document.
(3) Exclusion in case of purely administrative matters.
Unsatisfactory academic performance Expulsion without pre-decisional
hearing.
(4) Exclusion based on impracticability.
R. Radhakrishnan v. Osmania University, AIR 1974 AP 283.
MBA entrance exam was cancelled- Mass copying Notice and hearing of
all students is not possible.
(5) Exclusion in cases of interim preventive action.
Preventive action N.J. may be excluded.
(6) Exclusion in case of legislative action.
Lay down the policy without reference to particular individual Can
exclude N.j. Should not be arbitrary, unreasonable and unfair.
Charan Lal Sahu v. Union of India, (1990) 1 SCC 613.
Constitutionality of Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985.
For legislation by the Parliament no principle of N.J. is attracted, provided such
legislation is within the competence of the legislature.
(7) Where no right of person is infringed.
Mere technical requirement Cannot be a reason for setting aside the order.
(8) Exclusion in case of necessity.
Sole compenet person has to act.
(9) Exclusion in case of govt. policy decisions.
BALCO Employees Union v. Union of India, (2002) SCC 333.
Govt.s policy to disinvest in PSU Challenged by the workers.
Held: Cannot be challenged on the basis of violation of N.J.
(10)
Useless Formality theory
Where on the admitted or undisputed facts only one conclusion is possible
and only one penalty is permissible under law, authority need not strictly
follow N.J. Result would not be different by the following of N.U. No
defence on the merits of the case.
Dharmarathmakara Rai Bahadur Arcot Ramaswamy Mudaliar Educational
Institution v. Education Appellate Tribunal, (1999) 7 SCC 332.
Lecturer was granted leave for doing M.Phil. Joined Ph.D. in violation of the
Rules Notice was given Accepted the fact in reply.
Services were terminated Challenged on the basis of violation of S. 6 & 8 of
the Karnataka Private Educational Institutions (Discipline and Control) Act
1975, which provide for enquiry before termination.
Held: Opportunity to show cause was not necessary Facts are undisputed
Affected person could not put forth any valid defence.
Giving an opportunity of being heard is a check and balance No ones right
can be taken away without hearing Not necessary to follow when one
admits the violation.

Judicial Review of Administrative Action (get notes on this missed on 12/8/08)


14/8/08
HC Wider power to issue Writ against person and authority Inconsistent
practices.
Habeas corpus and quo warranto can be issued against anybody What about
the other writs?
Initially confined to state New grounds are broken subsequently.
Raj Soni v. Air Officer-in-charge Administration, AIR 1990 SC 1305.
S. 208 of Delhi Education Code, 1965 Age of retirement of an employee of an
aided school was fixed at 60 yrs Delhi Education Act, 1973 reduced the
retirement age to 58 yrs without effecting the conditions of services of the
already existing employees.
Petitioner, an earlier employee, was retired at 58 Filed a writ before SCArbitrary and discriminatory action.
Respondent
Management of the school is neither a state nor an authority under Art. 12
Writ is not maintainable.
Education code had no force o flaw No enforceable right under Art. 32.
Held:
Petitioners claim is just Entitled to be retired at 60.
School is not receiving any aid from govt. But recognized by Delhi
Administration Acts and the Rules are applicable Private body governed
by a statute is bound to provide the benefit under the statute Writ would
be available in case of violation
As petitioner attained 60 yrs, respondents are directed to pay salary and
allowance for 2 yrs and retirement benefits accordingly.
Unni Krishnan and Others v. State of A.P., AIR 1993 SC 2178.
Term authority under Art. 226 Liberal meaning unlike in Art. 12 Art. 12 is
relevant only for the enforcement of FRs under Art. 32.
Art. 226 is wider than Art. 32 Must not be confined only to statutory authorities
and instrumentalities of the State May cover any other person/body performing
public duty.
Private medical/engineering college comes within the writ jurisdiction
irrespective of the question of aid and affiliation.
Where the public interest element is present, writ is maintainable.
Bodhisattva Gautam v. Subhra Chakraborty, AIR 1996 SC 922
Romance between the appellant and respondent Assurance to marry -Became
pregnant Insisted for marriage Parents consent Secret marriage by putting
vermilion before God Persuaded for abortion.

2nd pregnancy Aborted Shifted the employment Refused to take the


respondent.
Criminal case before the Judicial Magistrate I Class Challenged the summons
before HC under S. 482, Cr.P.C. Dismissed.
Special leave petition Dismissed Suo motu notice to the petitioner Why he
should not be asked to pay reasonable maintenance per month to the
respondent during the pendency of the prosecution proceedings against him?
Challenged.
Held: Court has variety of jurisdiction Art. 32 FRs can be enforced against
private bodies and individuals suo motu action.
Recent trend seems to be justified Halting and variegated Shellter behind
technicalities Threat of injustice Not only from the constitutional or statutory
agencies.

Locus standi to challenge administrative action.


Habeas corpus Any person can invoke- Hussainara Khatoon, (I) to (IV).
Quo warranto Any one can file Personal interest is irrelevant Everyone has
the interest in the public money
Mandamus and certiorari Only the person whose rights have been infringed
can apply Not necessarily only the personal right of the person Can be
invoked when he holds a right common with others Ex: Taxpayers standing to
prevent misappropriation of public funds, citizens standing to challenge election
held contrary to law.
Mere interest would not entitle to writ Must show an interest more than that of
an ordinary member.
Maganbhai Ishwarbhai Patel v. Union of India, AIR 1969 SC 783.
Kutch Tribunal award- Certain territories to be handed over to Pakistan
Challenged the implementation.
Cessation of territory Violative of Art. 19(1)(d), (e) and (f).
Held:
No cessation of territory Settlement of uncertain boundary.
None of the petitioners had any clear interest in the action of govt.
Neither did anyone live there nor did they have any property there.
Prof. De Smith In a developed legal system the professional litigant and
meddlesome interloper who invoke the jurisdiction of the court in matters that do
not concern them must be discouraged.
Fertilizer Corporation Kamagar Union v. Union of India, AIR 1981 SC 344
Sale Challenged by a member of the Union Locus standi is widened J.
Krishna Iyer
If the public authorities are sufficiently honest and fair-minded Norms to
control administration are not required Corruption

Civil remedies At the cost of the individuals Great financial burden


A pragmatic approach to social justice Art. 32 and 226 need to be
interpreted liberally Effective policing of the power until ombudsman
arrangements are made.
Ubi jus ibi remedium must be enlarged to embrace all interests of public
minded citizens.
Restrictive rules of standing Antithesis to a health system of
administrative law Good case should not e turned away on the ground
that the plaintiff is not sufficiently affected personally Effective access to
justice Basic human right.
PIL part of participative justice Need for liberal reception at the judicial
doorsteps.
This doesnt mean that the doors of the courts are open to a wayfarer or
an intervener without any interest or concern beyond 660 million people
If has some deeper concern or belong to an organization, he cannot be
told off at the gates, although whether the issue raised by him is justifiable
may still remain to be considered.
Justifiability of the issues and the standing to agitate them are 2 different
things.

Orthodox rule has gone sea change Liberalization of locus standi.


(c) Standing in PIL
Courts approach as hanged Aggrieved person Elastic concept Vary
from circumstances to circumstances and statute to statute.
Expression standing to include notional injury.
Not confined to direct personal injury Taxpayers right to challenge the
decision by the municipality for erecting a privately donated statute
Maintenance charge.
Public duties standing
Every citizen ahs the right to enforce.
Municipal Council, Ratlam v. Verdichand, AIR 1980 SC 1622.
Class standing
Right of the member of a class to initiate action.
Sunil Batra (II) v. Delhi Administration, AIR 1980 SC 1579.
Public Concern Standing.
Standing not because of belonging to a particular class or because of special
interest or injury suffered Responsible citizens concern about a matter of
public concern.
Bandhua Mukti Morcha v. UOI, AIR 1984 SC 802.
Parmanand Kataria v. UOI, (1990) 1 SCC 613.
(d) Laches or unreasonable delay
Delay in invoking the jurisdiction of the court Court may refuse remedy Power
to refuse must be exercised judiciously and reasonably.

(e) Alternative remedy.


Relief under Art. 32 and 226 for violation of FRs Cannot be refused Other
reliefs under Art. 226 HC can refuse Discretionary power.
A.V. Venkateswaran v. R.S. Wadhwant, AIR 1961 SC 1506.
Import of gold plated pens from Australia Higher rate of duty was
charged by the customs authorities Writ before HC.
Respondent Petitioner has not exhausted the alternative remedy, review
by C. Govt. Writ is not maintainable.
Held: Rule of exhaustion of the alternative remedy does not bar the jurisdiction
of the court It is for the exercise of discretion.
USA Exhaustion of the alternative remedy is invariably insisted upon.
(f) Res judicata
Also applies for the implementation of FRs Free to approach HC or SC Once
the choice is made, cannot agitate the same matter before the other forum.
If dismissed otherwise than on the merits, person may file a fresh writ in the
other forum.
Not applicable in case of habeas corpus Even if dismissed on the merits by
HC, one can move to SC.
Summary dismissal of the petition without recording the reasons Res judicata is
not applicable.
(g) No dismissal of the petition without speaking order.
Applicable to HCs and not to SC Speaking order would help the SC in
understanding the thought process of HC Facilitates in quick disposal of SLP
Builds public confidence in HC.
(h) HC must be approached first.
The cases wehre the writ can be filed before the HC, the parties should nto
approach SC unnecessarily. P.N. Kumar v. Municipal Corp. Delhi, (1987) 4 SCC
609.
(i) Power to grant remedial assistance is implicit in public law review.
Art. 31(1) Power to devise any procedure appropriate for the purpose of
enforcing FRs Not only injunctive but also remedial power Compensation
Confined to exceptional cases of gross and patent violation.
(j) Greater good of greater number.
Social justice to prevail over the technical rules.
Sadhu Ram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 1471.
Residenial complex, occupied by the tenants Sold to the outsider
Persons actually living were prepared to purchase even at a higher price.
Held: Between 2 parties, if a deal is made with one party without serious
detriment to the other, the court would lean in favour of the weaker
section of the society.

Major grounds of judicial review


Illegality Incorrect understanding of the law and its improper implementation.
Irrationality Outrageous in its defiance of logic or of accepted moral standards
If no sensible person could have arrived at such a decision.
Procedural impropriety Unjust and unfair procedure- N.J.
Proportionality Irrational end and means relationship.
Unreasonableness Facts do not warrant the conclusion reached or decision is
partial and unequal.
Finality of administrative action
Extremely complex issue Courts often shift the positions Clause in the statute
to make the administrative action final Finality clause, exclusion clause, ouster
clause, conclusive clause etc.
Modes of conferring finality 4 usual modes.
(i)
Express bar on the jurisdiction of the court S. 8(2) of the Foreigners
Act, 1946 A decision as to nationality under Sub. S. (1) shall be final
and shall not be called in question in any court.
(ii)
Statute neither expressly bars jurisdiction, nor confers finality Finality
may be inferred When the statute is a self-contained code which
gives a right and also provides a machinery for vindication of such
right, eg. Industrial Disputes Act.
(iii)
Power of the authority to take action may be rendered in subjective
terms Ex: Satisfaction of the authorities, desirability, necessary,
expedient etc. Finality may be assumed Courts have held it as not
conclusive.
(iv)
Act may provide certain time-limit within which the administrative
action can be challenged After the lapse of the time, action becomes
final.
Administrative finality and Constitutional modes of judicial review.
Cannot bar judicial review under Arts. 32, 136, 226 and 227.
Deokinandan Prasad v. State of Bihar, AIR 1971 SC 1409.
S. 23 of the Pension Act, 1871 Suits relating to matters mentioned therein
cannot be entertained in any court.
Held: The provision does not bar the constitutional modes of judicial review.
Non-constitutioanl modes of judicial review and administrative finality.
S. 9 of the CPC Bar on the jurisdiction to try suits, where the cognizance is
expressly or impliedly barred.
Approach of the court Express exclusion Strictly interpreted.
Implied exclusion is very much limited- Where the statute creates a new right
and also provides machinery for the vindication of th such right, jurisdiction is
barred.

Premier Automobiles v. K.S. Wadke, AIR 1975 SC 2238.


2 unions Sabha Union and Association Union Some employees were
members of neither A settlement was entered between Sabha Union and
company under an incentive scheme.
Increase in the membership of the Association union Fresh settlement
overruling the agreement with Sabha Union Challenged before the Court
Injunction.
Held: Jurisdiction of civil cours is impliedly bared Industrial dispute Must
move to the machinery provided by the ID Act.
Doctrine of Legitimate expectation
Belongs to the domain of public law Intended to give relief to the people when
they are not able to justify their claims on the basis of law in the strict sense
Civil consequences because of the violation of legitimate expectation.
Schmidt v. Secretary of State for Home Affairs, (1969) 1 All ER 904.
Govt. cut short the period already allowed to an alien to enter and stay
Challenged.
Held: Legitimate expectation (Lord Denning)
- Violated without following fair and reasonable procedure.
Private Law Person can approach the court only when the right based on
statute or contract is violated Rule of locus standi is relaxed in public law.
Legitimate expectation provides the central space between no claim and legal
claim Ex: Govt. scheme to provide drinking water to villages in certain areas
Subsequent exclusion of some villages.
Part of principles of N.J. Cannot be deprived without fair hearing Example of
judicial creativity.
Fine principle to reconcile power with liberty Public power is a trust which must
be exercised in the best interest of its beneficiaries, the people Govt.s action
must be predictable and certain.
Still in the evolutionary stage Flexible doctrine Canot be claimed as a matter
of course.
State of Kerala v. K.G. Madhavan Pillai, AIR 1989 SC 49.
Sanction to the respondents to open a new unaided school and to upgrade the
existing ones A direction to keep the sanction in abeyance after 15 days
Challenged Violation of N.J.
Held: Legitimate expectation 2nd order without a fair hearing vitiated the
administrative action.
Legitimate expectation of fair hearing may arise by a promise or by an
established practice.
Union of India v. Hindustan Development Corporation, AIR 1994 SC 898.
Supply of cast steel bogies Several suppliers 3 big suppliers Invitation of
tender for 19,000 cast steel bogies.
Big 3 quoted same price Other quoted Higher.

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.

Doctrine of Public Accountability


In order to check the misuse of power Power in the hands of administration to
be public trust Trustee cannot enrich himself by corrupt means If done,
property acquired by him are held by him as constructive trustee.

Attorney General of Hong Kong v. Reid, (1993) 3 WLR 1143.


Crown prosecutor in Hong Kong took bribes as an inducement to suppress certain
criminal prosecutions Acquired properties in New Zealand in his name, in the
name of his wife and his solicitor.
Administration of Hong Kong claimed these properties Argued that the owners
are constructive trustees for the Crown.
Privy Council:
Bribery is an evil practice Threatens the foundations of any civilized
society Benefit obtained through breach of duty belongs to the
beneficiary (State).
If the property representing the bribe decreases in value, the fiduciary
must pay the difference between that value and the initial amount of bribe
Shouldnt have accepted the bribe and incurred the risk of loss.
Increase in the value fiduciary is not entitled to surplus Cannot make
profit out of a breach of a duty.
Delhi Development Authority v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC
622.
Private Limited Company Offered a bid of Rs. 9.82 crores for a plot of land
25% was payable immediately and the rest within 90 days Deposited the initial
amount and not the rest Got the extension repeatedly.
DDA proposed the cancellation of bid Stay from HC Skipper started selling the
space in the proposed building SLP before SC Selling continued contrary to
the SC order Rs. 14 crore was made.
Held:
Lifted the corporate veil of Skipper Tejwant Singh, his wife and children
Sham companies to defraud the people.
All the monies and properties of the Skipper are to be attached Burden of
proof on them to show that the property or money was not acquired by
corrupt deals.
Public accountability is applicable even when there is no fiduciary
relationship or no holding of public office is involved Acquisition of
property by defrauding the people attracts public accountability.
No requirement of a special law to protect the rights of the people Courts
in India are not only the courts of law but also the courts of equity Equity
requires the persons defrauded to be restored to their original positions.
Nilabati Behera v. State of Orissa, (1993) 2 SCC 746.
Concept of sovereign immunity is not applicable to the case of violation of right
to life or personal liberty under Art. 21.

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.

(GET NOTES FOR MONDAY, 25/8/08)


26/8/08
Indian Practice:
Fundamental rights are expressly enumerated in the Constitution Courts have
used proportionality in judging the reasonableness of a restriction on the
exercise of FRs Balance test is applicable Primary judgment in the Brinds (a
case) sense can be made.
If the action or the discretion is exercised under statutory powers, the application
of proportionality to make the primary judgment by the courts is unclear.
If no FR is involved, proportionality is not applied.
Union of India v. G. Ganayutham, (1997) 7 SCC 463
Misconduct 50% of pension and 50% of gratuity was withheld Challenged as
excessive.
Central Administrative Tribunal concluded the punishment to be too severe
Withholding of the pension has to be restricted for 10 years instead of on
permanent basis Appeal to SC.
Held:
The review is restricted to secondary judgment Court/tribunal cannot
substitute its own views of the punishment.
Power of review is limited Wednesbury test shall be applicable.
Even if the test is applicable, the matter has to be remitted back to the
appropriate authority for consideration Only in rare situations can the
court substitute its own view.
Interference is possible when the decision is shockingly disproportionate or when
it shocks the conscience of the nation Only the extreme cases.
Ranjit Thakur v. UOI, (1987) 4 SCC 611.
Army officer did not obey the command of his superior by not eating the food
offered by him Court-martial proceedings Sentence of 1 yr. rigorous
imprisonment and dismissal from service with added disqualification
Challenged.

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 -

(1) Has to be expressed to be made by the President or the Governor, as the


case may be
Safeguard the govt. as against the unauthorized contracts.
Karamshi Jethabhai Somayya v. State of Bombay, AIR 1964 SC 1714
Shankar Tukaram Karale obtained sanction to irrigate certain lands from a canal.
Govt. proposed to reserve certain area near the canal as factory area
Correspondence b/w the govt. and Shankar Superintending engineer agreed to
exclude Shankars area and to give water perpetually to him.
Partnership b/w appellant and Shankar to exploit the area Dispute arose
Appellant became the full owner based on a decree.
Appellant applied to the Canal Officer for the recognition of transfer Refused
On appeal, held that the supply of canal water be granted.
Suit for declaration of right to canal water and consequential relief Dismissed
Appeal
Held:
Superintending engineer had no power to exclude the land from factory
area and give water Contract was not expressed in the name of the
Governor Void.
Bombay Irrigation Act is violated Every person requiring the supply of
water must make an application in the required form to the Canal Officer Right to get the canal water cannot be transferred.
Word expressed does not require a formal document or in a particular form If
there is a statutory requirement to be in a particular form, it must be complied
with.
Presidnet or Governor is not personally liable, though the contract is in their
name
(2) Contract must be executed on behalf of the President or the Governor, as
the case may be
The terms signed on behalf of the President/Governor must be included in the
contract Court has mitigated the harshness of the rule.
Davecos Garments Factory v. State of Rajasthan, AIR 1971 SC 141.
Contract for supply of police uniforms Signed by IGP Failed to write after his
signature, signed on behalf of the Governor
Held: Competent authority Signed the deed in the official capacity The
requirement of the formality of the Art. 299 shall be deemed to have been
complied with.

Manner of granting authority has not been specified under Art. 299 May be
through publication in the official gazette

(3) Contract must be executed by a


President/Governor as the case may be

person

authorized

by

the

Very fundamental requirement No specific mode of authorization is specified


Normal governmental procedure of notification in the Official Gazette.
Implied authorization may be sufficient.
State of Bihar v. Karam Chand Thapar and Brothers Ltd., AIR 1962 SC 113.
Construction contract with the govt. Dispute in respect of the payments
after the completion of the contract Referred to arbitration by an
agreement between the parties Petition for decree in terms of award
Govt. contested Arbitration agreement was executed by the Executive
Officer Not authorized Secretary to the govt. for PWD was the only
authorized person.
Held: The whole process of correspondence and negotiations shows that
the Secretary was in picture all the time Executive officer was impliedly
authorized.
Ratification Govt. cannot ratify a contract, if it does not comply with the
requirements of Art. 299 Cannot enforce it against private party.
Can the party claim benefit under s. 70, 230(3) and 235 of the Indian Contract
Act?
New Marine Coal Co v. UOI, AIR 1964 SC 152
Supply of the coal under a contract Used by the govt. without making the
payment Suit for the recovery of the amount.
Appellant- If the contract under which coal is supplied is not valid, respondent is
liable to pay under S. 70.
Respondent - Contract is illegal (since Art. 299 was not complied with) and S. 70
is not attracted.
Held: The contract is void S. 70 is applicable Unjust enrichment is not allowed.
State of U.P. v. Murari Lal and Brothers, AIR 1971 SC 2210
Contract for a space in the cold storage for potatoes from the Agriculture
Department Signed by an officer who was not authorized.
The space was not used Rent was not paid. Suit for the damage suffered by
keeping the space vacant.
H.C. Can be enforceable against the officer under S. 230(3) Appeal.
Held:
Contract was void Art. 299 not complied with.
S. 70 of the Contract Act is not applicable Govt. had not derived any
benefit.
Officer cannot be held personally liable S. 230 presupposes a valid
contract.

S. 235 Untruly representing as an agent Presupposes a valid contract Not


applicable in case of govt. contracts w/o authority.
I.P. Masseys criticism:
Law of govt. contract seems to be unjustified For no fault of his, a person may
be compelled to suffer a loss w/o remedy Person may not be in a position to
have an up-to-date list of govt. officials authorized to negotiate public contracts.
Effect of law governing private contracts being applied to public contracts
France has 2 different sets of laws.
Contractual obligation and the constitutional power
Contract cannot clog the constitutional power of the govt. or the legislature.
Secretary to Govt. Public Works and T.D. v. Adoni Ginning Factory, AIR 1959 A.P.
538.
Contract for the supply of the electricity Law passed by the legislature to
enhance the electricity rate Challenged on the ground of contract.
Held: Contract cannot foreclose the authority of the legislature to legislate.
Doctrine of waiver
Express or implied Must be intentional act with the knowledge Question of
fact.
Requirement of Art. 299 cannot be waived Mandatory.
Writ for the enforcement of contractual obligation
Art. 32 Confined to FRs SC cannot issue writs.
H.C. can exercise writ jurisdiction Normally HCs do not exercise Civil suit
remedy.
R.K. Agarwal v. State of Bihar, (1977) 3 SCC 457
Lease to collect and exploit Sal seeds from forest area in 1970.
Clause 3 of the contract- Revision of rate of royalty at the expiry of every 3 years
in consultation with the lessee.
Clause 4 Lessee must establish a factory in Bihar to extract oil within 5 years
If fails, agreement can be terminated.
In 1974, State revised the royalty payable In 1975 lease was cancelled on the
ground that the factory was not established.
Writ before HC Malafideness involved in unreasonable hike in royalty and
violation of N.J. Breach of contractual terms.
Held: Breach of contractual obligation by state 3 categories of cases.
Where promissory estoppel applies against the state.
Where there is an alleged breach of a statutory rule under which the
contract is entered.
Where breach of a non-statutory contractual obligation is alleged which
arises only out of terms of contract.
In the first 2 cases, petitioner can invoke the writ jurisdiction of HC Proper
remedy in the 3rd case is a civil suit.

Gujarat State Financial Corporation v. Lotus Hotels, (1983) 3 SCC 370.


Contract for a loan of Rs. 30 lakhs for the construction of a hotel Respondent
incurred certain liabilities on the basis of the agreement.
2 pseudonymous letters attacking the character of the respondent Appellant
refused the loan sanctioned Writ petition before HC Entertained the matter,
as it involves promissory estoppel Appeal.
Held: Too late for the govt. to come back from the promise Mandamus can be
issued against the govt. for the enforcement of the contract (though not issued
in this case).
Recent shift in the position Where there is an alleged arbitration, absence of
fair play and breach of N.J., writ can be invoked.
Mahavir Auto Store v. Indian Oil Corporation, (1990) 3 SCC 752.
Petitioner was carrying on the business of sale and distribution of lubricants for
18 years Respondent abruptly stopped the supply, w/o notice and hearing
Challenged as discriminatory and violative of N.J.
Held: The rights of the petitioner are in the form of pure contractual rights Still
subject to judicial review on the grounds of reasonableness, fair play and N.J.

Liability of Administration in Torts


Vicarious liability Sovereign Non-sovereign distinction maintained.
Peninsular and Oriental Steam Navigation Company v. Secretary of
State for India, (1861) 5 Bom HC Report
Workers employed in Kidderpore Dockyard Iron bars carried across the public
way Bars dropped on the road.
Noise created scared the horses of the carriage in which the plaintiff was sitting
Sustained injuries Sued the state for the negligence of the workers.
Held: Vicarious liability Not a sovereign function.
Peacock C.J. It is clear that the state would not have been liable for any act
done by a military or naval officer in seizing as prize property of a subject, under
the supposition that it was the property of an enemy, nor for any act done by a
military or naval officer, or by any soldier or sailor whilst engaged in military or
naval duty, nor for any acts of any of its officers or servants in the exercise of
judicial functions.
Secretary of State v. Hari Bhanji, (1882) 5 ILR Mad 273.
Suit for the recovery of excess excise duty collected by the state on salt
Contention of sovereign function.
Held: Immunity is available only to the act of state Not to the act done under
sanction of municipal law.

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

Wrong interpretation of S. 244(1) by the Health Officer Applicability to the case


where an article of food is for the consumption of animals also.
Held:
The language of the section cannot be strained as to include what is not
there State is liable for illegal acts, though made with good motive.
Sovereign and non-sovereign distinction was discarded
Shyam Sunder v. State of Rajasthan, AIR 1974 SC 890.
Employee of Public Dept. Travelling in the departmental truck in connection
with the famine relief work Radiator was getting heated frequently 9 hrs to
travel 70 miles Caught fire Deceased got stuck.
Widow sued the state Negligence of the driver in the course of employment
Vicarious liability.
Respondent: No negligence Truck developed mechanical problem in the middle
sovereign immunity.
Held:
Res ipsa loquitur Truck was not road worthy Driver was negligent.
Not a sovereign function State is liable to pay compensation
K.K. Mathe, J. Need for discarding the feudalistic doctrine of govt. immunity in
exercise of sovereign functions in view of the changed socio-economic
conditions.
Khatri v. State of Bihar, (1981) 1 SCC 627.
Right to free legal services to the under trials Illegal actions by police.
J. Bhagwati Why should the court not be prepared to forge new tools and
devise new remedies for the purspoe of vindicating the most precious of the
precious FRs to life and personal liberty?
Rudul Shah v. State of Bihar, AIR 1983 SC 1086.
Petitioner was detained in the jail for 14 years after an order of acquittal by the
Sessions Court Asked for habeas corpus & compensation.
Released by the jail authority soon after the petition.
Held:
Power of the court is not confined to order for the release under Art. 32
Wide enough to grant other remedies.
One of the ways to prevent the violation of Art. 21 is to mandate for
monetary compensation Refusal of compensation in this case would
serve the mere lip-service of protecting the right to liberty of the
petitioner, which has been so grossly violated Rs. 30,000 compensation.
N. Nagendra Rao and Co. v. State of A.P., (1994) 6 SCC 205.
Business in fertilizer and food grains Vigilance Cell raided the premises and
seized huge stocks Order for the disposal of stocks pending investigation No
action was taken.
Found no irregularity except in accounting Stocks were to be returned to the
appellant Became unusable Suit for compensation Decreed by the trial
court.

HC relied on Kasturi Lal and held state is not liable.


SC
Doctrine of sovereign immunity stands diluted Distinction b/w sovereign
and nonsovereign function no longer survives.
State is immune only in the cases of acts of state.
No civilized system can permit the executive to play with the people of its
country and claim that it is entitled to act in any manner as soverieng No
legal and political system can place the state above the law.
Negligent officer is also personally liable (borrowed from France Doctrine of Cumul proportional liability b/w the erring officer and the
state in case of negligence).
State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659.
Driver of govt. vehicle allowed another govt. employee, having no driving
licence, to drive the vehicle in connection with official purpose Accident due to
the negligence of the driver Suit for compensation
Held: The govt. is responsible Authorized act done in the unauthorized manner
State is vicariously liable.
1967 Bill on Govt. Liability in Tort Liability in following cases:
Tort committed by the employee while acting in the course of
employment.
Tort committed by an employee while acting beyond the course of his
employment if the act was done on behalf of the govt. and is ratified by it.
Tort committed by an independent contractor employed by the govt.
provided
(a) Govt. assumes the control of the act contracted.
(b) Govt. has ratified the tortious act.
(c) Govt. is under a duty to do the act itself.
(d) Govt. is under an absolute duty to ensure the safety of the person or
property in the doing of the act contracted to be done and there has
been a failure to comply with that duty.
Where there is a breach of common law duties attached to the ownership,
possession, occupation or control of immovable property.
Where the govt. is in possession of any dangerous thing which when
escapes causes injury.
Where there is a breach of duty to the employees which the govt. Owes by
reason of being the employer.
Exemption from liability
Acts done by the member of the armed force or police force in discharge
of his duties and acts done for the purpose of training or maintaining the
efficiency of the armed forces as also the acts done for the prevention of
breach of peace or damage o the public property.
Acts of state
Act done by the President/governor in discharge of their constitutional
functions.
Judicial acts and acts done in the execution of the judicial process.
Acts done under the proclamation issued under the provisions of the
Constitution.

Any claim arising in a foreign country.


Claim arising from the injury done by doing an act authorized by law
where such injury is a natural consequence of the act.
Claim arising form the act for which the immunity is provided under the
Telegraph Act, 1885; Indian Post Office Act, 1898 and the Indian Railways
Act, 1890.
Wide escape clauses Still was not accepted.
U.K. Crown Proceedings Act, 1947 Crown is subject to liabilities in tort similar
to that of a private person of full age and capacity.
Exceptions Judges, post offices and its employees etc No exception in case of
negligent exercise of discretion No distinction b/w sovereign and non-sovereign
functions.
USA Federal Tort Claims Act, 1946 Liability same as private individual
Extensive excape clauses.

Exceptions for specific administrative functions or agencies and for all


claims arising in foreign countries.
Claims arising out of assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander, misrepresentation,
deceit or interference with contractual rights.
Acts or omissions of the employees exercising due care in giving effect to
statutes or regulations, whether they be valid or not, and acts of discretion
by govt. employees in performance of their duties.
Dalehite v. United State, 346 US 15 (1953)
Large cargo of ammonium nitrate (NH 4)2NO3 fertilizer exploded on board a
ship doced at Texas city 560 killed and 3000 injured Damage to
hundreds of million dollars of property.
Manufactured in the federal govt.s plant Being shipped to Europe at the
govt.s discretion over 300 suits against the govt. for negligence.
SC Negligence may be involved It did not make the govt. liable
Exercise of discretionary authority.
Privileges and Immunities of Administration in Suits
Equality clause Absence of special privileges Certain privileges are enjoyed by
the govt. Contrary to Diceys ROL
Privilege of Notice
S. 80(1) of CPC 2 months expiry after the notice Mandatory requirement Can
be waived either expressly or impliedly.
Must state:
The cause of action
The time and place at which the damage or injury was sustained.
Name and place of the house or business of the intended plaintiff.
Not required, if the officer has acted w/o jurisdiction or acted in a mala fide
manner.
Purpose To alert the govt. to negotiate a just settlement or at least to tell the
person why the claim is being resisted?
Misused Hardships for the litigants.

State of Orissa v. Madan Gopal, AIR 1952 SC 12.


Notification stating the leases have become void Order to remove their assets
within a fortnight Problem of 2 months notice Lessees moved to HC for writ.
HC found no alternative remedy at the moment Mandamus directing the govt.
to refrain from disturbing the petitioners for 3 months or until one week after the
institution of suit Final remedy in the form of civil suit Appeal.
SC An interim relief can be granted only in aid of, and as ancillary to, the main
relief Cannot be granted when the main relief is not provided by HC
If HC has found no alternative remedy, it must have proceeded to investigate the
case on its merits Existence of a right is the foundation of exercise of
jurisdiction under Art. 226.
Law Commission Recommended for the abolition of the requirement.
CPC Amendment Act 1976 Court may grant exemption Necessity of
immediate/urgent need.
Privilege to withhold the documents
S. 123 of the Evidence Act Unpublished official records relating to the affairs of
the state Permission of the HOD is required for bringing it before the court
Can be withheld.
S. 124 Confidential official communication Privilege extended
Privilege is not conclusive.
State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493.
District Judge was dismissed by the President when he was in charge of the
administration Challenged the validity of his dismissal.
Asked for the production of minutes of the meeting of the Council of Ministers
and also a copy of the recommendation of the Public Service Commission
Objected by the state under S. 123.
Held:
The minutes are expressly saved by Art. 163(3) of the Constitution Falls
within the category of documents relating to affairs of state
The recommendation of PSC can be withheld Disclosure would involve
injury to public interest.
Records relating to affairs of State in S. 123 cannot be given a wide
meaning so as to take in every document pertaining to the entire business
of State, but should be confined only to such documents whose disclosure
may cause injury to the public interest.
Claim of privilege is not conclusive Court is required to inquire into the
nature of the document in the light of the relevant facts and
circumstances, though cannot inspect the document.
Norms to prevent the misuse of the privilege.
Must be in the form of an affidavit signed by the minister concerned/the
Secretary of the Dept.
Indicate the reasons why the disclosure would result in public injury
Assurance that the document has been read carefully and considered.

If affidavit is found unsatisfactory, authority may be summoned for cross


examination.
R.K. Jain v. Union of India, (1993) 4 SCC 120
Letter to CJI No president was appointed for Customs, Excise and Gold control
Appellate Tribunal (CEGAT) since 1985 Functioning of the Tribunal was
adversely affected.
Treated as a writ petition Rule nisi was issued against the govt. asking for
immediate appointment, preferably a senior HC judge The Vice President
(Judicial member) was made the President.
Petition for quashing the appointment.
Appointment was in breach of judicial order- Sitting/retired judge of HC
must have been appointed.
Appointed of the Vice-President as the judge of Delhi HC was turned down
by the CJI doubting his integrity His appointment as President would
undermine the efficacy.
Order to produce the file on which the decision of appointment of the President
was made Privilege contended Appointment was approved by the Cabinet
Subcommittee headed by PM Protection under Art. 74(2) [Class doctrine] and
S. 123 Finance secretary and Minister of State for Finance filled affidavits.
Held:
Claim through affidavits must be made by the minister/secretary
concerned PM
When the court is not satisfied with the affidavit, it can look into the
couments in camera Final decision as to the validity of the objection has
to be made by the court Found not necessary to disclose to petitioner.
Bar of the judicial review is only on the actual advise tendered by the
minister to President But not on the material on which the advice is
founded.
Factors to be considered in deciding the public interest immunity:
(i)
Interest affected by the disclosure of the document.
(ii)
In case of class protection Whether the public interest immunity
protects the class?
(iii)
The extent to which the interests referred to have become
attenuated by the passage of time or intervening events.
(iv)
The seriousness of the issue by which production of the document is
sought.
(v)
The likelihood that the production of the document will affect the
outcome of the case.
(vi)
The likelihood of injustice, if the document is not produced.

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

Resolution of the municipality had no legal foundation Construction of


the commercial building affects the right to or enjoyment of the prop. By
the person residing in the area Municipality was supposed to prevent
this.
HC was not correct in invoking the promissory estoppels Act done in
excess of statutory power cannot be alidated by the operation of
estoppels.

Union of India v. Indo-Afghan Agencies Ltd., AIR 1968 SC 718


Scheme of Textile Commissioner to promote export Represented to the
exporters of woolen goods that they would be entitled to import raw material of
total amount equal to 100% of the value of the export.
Respondent exported goods worth of Rs. 5 lakhs Import licence was given only
to the extent of Rs. 1.99 lakhs Challenged.
Govt. Scheme is merely administrative in character No statutory force Not
binding on the govt.
Held:
Even if the scheme has no statutory force, govt. is not entitled to break
the promise at its whim.
Govt. cannot be the judge of its own obligations to the citizen on an ex
parte appraisement of the circumstances.

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