ADMINISTRATIVE LAW

Unit I- Evolution, Nature and Scope of Administrative Law

1.1 Change in the concept of state-from laissez faire to Social Welfare state
1.
Administrative law is recognized as the most outstanding legal development of the 20thcentury.
2.
The 19thcentury was characterized by the welfare state wherein there was minimum
government control, free enterprise, contractual freedom, etc. Individualistic theories flourished
in this period.
3.
The state played a negative role. It was primarily a police state which helped in
maintenance of law and order, protecting the nation from external aggression, dispensing
justice to its citizens and collecting taxes for financing such activities.
4.
However, in the 20thcentury, the evils of this system were realised. Due to contractual freedom
and freedom of enterprise, there was unequal distribution of wealth. This led to several socialist
movements specially ones in which the grievances of labourers was voiced.
5.
Thus, a need was felt that the state shall be more than a police state. It shall help in
alleviating the poor, regulating individual enterprise and most importantly bringing about social
justice. This led to the establishment of the social welfare state.
6.
This may be seen even in case of India. Before independence, India was essentially
a police state as the British were more interested in furthering their own interests rather than
working for the welfare of the people.
7.
However, the concept of social welfare was taken up immediately after
independence especially after the adoption of the constitution.
8.
The preamble to the constitution states that India shall be a socialist, secular, democratic,
republic and must provide justice, equality, rights, freedom, etc. to all.
9.
Other examples are that given in Part IV wherein it has been provided that there
shall be no concentration of wealth towards the common detriment. There shall be equitable
distribution of wealth.
10.
Also, right to free and compulsory education for children up to 14 years is now a fundamental
right.
11.
There is also provision of equal pay for equal work under Part IV.
12.
Further, various social legislations such as the Factories Act, Minimum Wages Act, etc. have
come into the picture.

1.2 Increase of functions of modern state
1.
The growth of administrative law has primarily been due to the growth
of administrative powers and functions which is again the result of increased state functions.
2.
This has also been also attributed to the fact that the international situation in the 20th
century was such that at times quick decisions required to be taken by the executive in times of
emergency and thus administrative powers increased.
3.
The state today has taken up functions which were earlier carried out by the private
sector. It provides for transport, communication, energy, housing, banking, education, trade
and commerce, etc.
4.
The functions of the state today may be put into 5 broad categories, namely- as
a protector, provider, entrepreneur, economic controller and arbiter.
5.
A state consists of 3 organs- the legislature, executive and the judiciary. Out of the
three, the executive is the most powerful these days.
6.
Not only does the executive have powers of administration, it also has powers
of legislation in the form of delegated legislation. Alongwith that it has the power to conduct
enquiries and investigations and give binding decisions as in case of administrative
adjudication. Sometimes it may even exercise its discretion.
7.
However, some sort of check must be exercised on such powers and the same
is done with the help of administrative law. Administrative law helps in balancing public
power and personal rights.
8.
If exercised properly, vast administrative powers could lead to a well functioning
welfare state and if not exercised properly it would lead to despotism.
9.
Administrative law provides several limitations on executive power in the form of
rule of law, separation of powers, principles of natural justice, judicial and parliamentary
controls, administrative appeals, ombudsman, etc.

1.3 Definition and Scope of Administrative Law
1.
According to KC Davis, administrative law is the law concerning the powers and procedures
of the administrative agencies including especially the law governing judicial review of
administrative action. This explains the American approach to the subject.
2.
As per Davis, an administrative agency is a governmental body other than a court
or a legislature which affects the rights of private parties through adjudication and rulemaking.
3.
However, this definition cannot be accepted in totality as even though it
emphasises on the procedure followed by administrative authorities, it does not talk about
certain other functions of the executive which are non-adjudicatory in nature and do not at the
sametime fall within the scope of legislative or quasi-judicial function. Also, it lays too much
emphasis on judicial control and does not mention about other means of control such
as parliamentary control, etc.
4.
The British approach has been provided in the definition given by AV Dicey. Hedefines
administrative law as denoting that portion of a nations legal system which lays down the
legal status and liabilities of state officials, the rights and liabilities of private individuals in their
dealings with public officials and specifies the procedure by which such rights and liabilities
may be enforced.
5.
Diceys definition may be criticised on the ground that it is a very restrictive
definition as it emphasises only on the aspect of control over public officials. Further, it only
talks of state officials and ignores others like public corporations, etc. It excludes several other
functions and powers of public authorities.
6.
The modern British approach can be seen in the definition given by Sir Ivor Jennings who
states that administrative law is the law of the administration. It determines the organisation,
powers and duties of the administrative authorities.
7.
The above definition is the most widely accepted definition of administrative law.However, it
has been criticised on the ground that it doesnt differentiate between administrative law and
constitutional law. Also, it is too broad a definition. Further, it does not provide for remedies
available to an aggrieved person when his rights are affected by administrative action.
8.
According to Wade, administrative law is the law relating to the control of governmental
power. The primary object of administrative law is to keep powers of the government within
their legal bounds so as to protect the citizens against their abuse.
9.
According to Jain and Jain, Administrative law is deals with the structure, powers and
functions of the organs of the administration, the limits of their powers, the methods and
procedure followed by them in exercising their powers and functions, the methods by which
their powers are controlled including the legal remedies available to a person against them
when his rights are infringed by their operation.
10.
Administrative powers have been called a necessary evil as even though they are required, they
may lead to arbitrariness on the part of the executive. They might even adversely affect the
rights of individuals.
11.
Lord Denning has stated that properly exercised, the new powers of the executive could lead
to a welfare state but if abused could lead to a totalitarian state.
12.
Thus, administrative law is required to exercise a system of checks and balances against such
power.
13.
The similarity between administrative law and constitutional law is to the extent
that both deal with functions of the government and both form a part of modern public law.
14.
Differences may be discussed as follows-
C O N S T I T U T I O N A L L A W
A D M I N I S T R A T I V E L A W
1 It deals with the organs and functions of the state at rest. It deals with the organs and such
functions in motion.
2 It deals with the structure of the various organs of the state and regulates their relation with
each other and with individuals. It deals with the functions of various organs of the state and
controls the exercise of powers by the executive.
3 It lays down fundamental and basic principles. It fills in the details.
4 I t i s b a s e d o n a w r i t t e n c o n s t i t u t i o n . I t i s
b a s e d o n s t a t u t e s , p r e c e d e n t , e t c .
15.
However there are similarities between the two such as availability of
constitutional remedies, concern with affected rights of individuals or fundamental rights,
etc.
16.
As per several American and English authors the difference between the two is more of degree,
convenience and custom rather than that of logic and principle.

1.4 Separation of Powers

1.4 separation of powers
1.
The doctrine of separation of powers was given by French jurist and
philosopher Montesquieu.
2.
This doctrine has 3 meanings, namely-
(a) The same person cannot be a member of more than one organ of the government.
(b) One organ of the government cannot control or interfere with the functions of the other.
(c) One organ of the government cannot perform the functions of another.
3.
This doctrine was theoretically very sound but posed certain practical problems
such as-
(a) Its historical basis which describes separation of powers as thriving in England is faulty.
(b) It is based on the assumption that all 3organs of the government have completely distinct
powers. This is wrong as any one organ of the government performs at least some of the
functions of the other two.
(c) Also, complete separation is neither practical nor desirable. If the legislature were only to
legislate, it could not punish anyone for its contempt.
(d) Modern state is a welfare state characterized by complex socio-economic problems and the
same cannot be solved with complete separation.
(e) The primary aim of this doctrine was to ensure greater freedom for the people and strict
separation may not necessarily ensure the same.
4.
This doctrine is used more in the form of a system of checks and balances these
days wherein every organ of the government performs some functions of the other 2 organs,
thereby exercising a check on arbitrary use of power.
5.
This doctrine may be unreasonable and impractical but it has helped in building a
system of checks and balances.
6.
This doctrine has been used in a strict sense in the US wherein legislative powers rest with the
Congress, executive powers with the President and judicial powers with the Supreme Court
and the subordinate courts. All three organs exercise a system of checks and balances on each
other and no one organ can encroach upon the power of another.
7.
Although Montesquieu developed his theory based on the British constitution, at
no point of time has there been strict separation in the UK in spite of there being three different
organs having three different functions which may even overlap at times. An example may be
given of the Lord Chancellor who is the head of the judiciary, is the chairman of the House of
Lords which is the legislature, is a member of the executive and is generally part of the cabinet.
8.
In India although this doctrine has been implicitly set out in the constitution and forms part of
the basic structure of the constitution, there is no complete separation of functions as such in
spite of there being a scheme for separation of powers. The same is not practically possible as
well.

1.5 Rule of Law

1.
Rule of law is a basic principle of the British constitution and has even been
adopted by the Indian and US constitutions. It forms the entire basis for administrative law.
2.
It was first stated by Sir Edward Coke who stated that the King cannot be above God and the
law and thus upheld the supremacy of the law over the executive.
3.
It was further developed by Dicey who stated that rule of law means the absolute supremacy or
predominance of regular law as opposed to influence of arbitrary power and excludes the
existence of arbitrariness of predominance, or even wide discretionary authority on the part of
the government.
4.
Dicey gave 3 meanings to this doctrine namely- supremacy of the law, equality
before law and predominance of legal spirit.
5.
Supremacy of the law- This means that no man may be punished without due process of law
for an established breach of the law in the ordinary legal manner in the ordinary courts of law. It
also means that administrative discretion leads to arbitrariness and thus the same should be
avoided. The law is supreme and even the administration is under the law.
6.
Equality before law- This means that every citizen must be subject to one and the same body of
law which is the ordinary law of the land administered by the ordinary courts of the land. Dicey
criticized the principle of Droit Administratiff as in the French legal system which provided for
separate tribunals for settlement of disputes between the government and individuals. He saw
this as a negation of the principle of the rule of law as it took away the jurisdiction of the courts
and subject government officials to a law different from that which the general public was
subjected to. Also, it allowed the administration to adjudicate upon matters which was primarily
a function of the judiciary.
7.
Predominance of legal spirit- As per Dicey it is the courts which enforce rights of individuals
while a written constitution merely declares such rights. Thus, the constitution is not the source
but only a consequence of legal rights. It was emphasized that in order for rights to be secured,
enforcement by courts was required rather than a mere declaration whereby such rights could
easily be trampled upon. He used the example of the various Habeas Corpus Acts which
actually went ahead to talk of the enforcement of rights rather than defining them.
8.
One of the merits of Diceys theory was that it helped exercise a check on
executive powers and kept administrative authorities within their limits. It became a
touchstone to judge administrative acts.
9.
However, even during Diceys time in 1885 there were several acts which
conferred wide discretionary powers on the executive without allowing any sort of judicial
review, thereby contravening this doctrine.
10.
One of the major drawbacks of this theory lies in the fact that discretionary powers are regarded
as being arbitrary and in a modern welfare state, administrative discretion is indispensible.
11.
Another drawback is a presumption made by Dicey about the judiciary being the solution to all
suits. His mistrust over the system of Droit Administratiff in France was wrong as this system
exercised checks in a much better manner than the judiciary. The Counseil d Etat which
exercised judicial control over the administration was in fact a part of the administration itself
while being a court in reality.
12.
Diceys rule of law however has been identified in democracies across the world with rights of
the people. The International Commission of Jurists in their Delhi Declaration,1959 accepted
the idea of rule of law as the modern form of law of nature.
13.
Though Diceys original rule of law cannot be accepted in totality, the modern rule of law as
given by Davis has the following 7 connotations-
(a) Law and order
(b) Fixed rules
(c) Due process or fairness
(d) Elimination of discretion
(e) Principles of natural justice
(f) Preference to ordinary courts over administrative tribunals
(g) Judicial review of administrative actions
14.
Rule of law is a part of the basic structure of the Indian constitution. A few examples of where
it may be seen in the constitution are as follows-
(a) The preamble talks about justice, liberty and equality.
(b) There is provision for judicial review by the SC and the HC s for the enforcement of
fundamental rights.
(c) If there is any abuse of power by the executive, the same may be challenged on the grounds
of malafide, etc. before a court of law.
(d) Art. 21 provides that no person shall be deprived of his life or personal liberty except in
accordance with procedure established by law. This brings in the principles of natural justice
especially after the Maneka Gandhi case.
(e) Art. 13 provides that all rules, ordinances, by-laws, orders, etc. would be regarded as law
and could thus be subjected to judicial review.
(f) The Constitution is supreme and all three organs of the government are below the
constitution.
(g) In India there is no rule of the King can do no wrong.
(h) Art. 14 talks about equality before law and equal protection of the law. Even the state and its
officials are liable in torts and contracts and if any wrong is committed by an employee of the
state, the state may be made liable for such act.
15.
However, in several areas, there exists a great deal of executive interference. This is primarily
due to excessive delegation of powers by the legislature and the judiciary to the executive. Also,
the executive has been given wide discretionary powers. Further, it is not just the executive but
even the legislature which by passing demonic acts such as the Prevent Detention Act or the
Maintenance of Internal Security Act encroaches upon the rights of the people.
16.
In Chief Commissioner, Punjab v. Om Prakash, it was held that the rule of law is a
characteristic feature of the constitution by which the judiciary may question any administrative
action on the ground of legality especially when there is a violation of fundamental rights.
17.
In ADM Jabalpur v. Shivkant Shukla (Habeas Corpus case), the freedoms under Art.19 were
suspended and enforceability of Art.s 14, 21 and 22 was suspended during emergency. Several
persons were detained and they approached the courts by filing writ petitions asking the courts
to issue writs of habeas corpus. The majority held in this case that Art. 21 of the Constitution is
the rule of law as far as the Indian constitution is considered and as the enforceability of the
same is suspended, it cannot be enforced. This was an erroneous judgment and J. Khanna in his
dissenting judgment stated that the rule of law is the antithesis of arbitrariness. The right to life
and personal liberty as enshrined in Art. 21 is inherent in all human beings and thus no person
may be deprived of his life and personal liberty even by state action of suspending such right

Unit II- Legislative Powers of Administration
1.
Delegated legislation essentially means the bulk of legislation promulgated by
theExecutive.
2.
This term is used in two senses. It is either when the subordinate agency
exercises power as conferred on it by the legislature or when such subordinate agency makes
subsidiary rules in accordance with such power conferred on it.
3.
In the first sense, it refers to subordinate legislation wherein the executive makes
laws within the limits prescribed by the parent act as it is subordinate to such legislation.
4.
In the second sense, it refers to all rules, regulations (which are essentially made by
corporations), by-laws, etc. framed by the executive. An example may be given of the Essential
Commodities Act wherein the list of essential commodities given in the statute are not
exhaustive and the executive may add to it as and when it feels necessary.
5.
Delegated legislation may be distinguished from administrative action on the
following grounds-
(a) Publication- Usually legislative acts or orders must be published in the official gazette for the
purpose of notification. However, administrative orders generally need not be published as they
are applied with respect to only a particular individual or a particular group of individuals.
(b) Procedure- In case of legislation, only such rules of procedure need to be followed which are
specified in the statute, while in the case of administrative action, principles of natural justice
must be followed even when the parent statute is silent on such issue.
(c) Grounds of judicial review- Malafide may be pleaded as a ground with respect to
administrative action but the same can several be used as a ground to challenge delegated
legislation.
(d) Differences between legislative and non-legislative functions also come to the forefront
when questions about sub-delegation arise.
6.
However, it has been stated by the Committee on Ministers Powers that the test to
differentiate between the two is that the power to formulate general laws, rules, etc. is legislative
while the power to apply such rules and make orders with respect to specific cases is
administrative.
7.
This has been stated in the Generality and Prospectivity test as given in Union of Indiav.
Cynamide India Ltd. wherein an order of the Central Government fixing the maximum prices
for sale of certain bulk drugs was challenged on the grounds of violating the principles of
natural justice as it was an administrative action. The HC on the other hand held that fixing
prices here affects the rights of the general public and not just particular drug manufacturers
and hence it was a piece of delegated legislation and the principles of natural justice would not
apply.
8.
In K.I. Shepherd v. Union of India, the application of this rule was rejected. Herein the rights of
particular bank employees were affected due to termination of services caused by the merger of
certain banks.

2.1 Need for delegation of legislative power-

1.
Factors leading to growth of delegated legislation-
(a) Increase in state functions owing to the creation of a welfare state in place of a laissez faire
state.
(b) It helps in saving time of the legislature which is generally overburdened these days.
(c) It reduces the burden of the legislature.
(d) If each piece of legislation were to consist of all possible details, it would become too
complex for the common man to understand.
(e) It would be better to leave such tasks to specialists who shall be in a better position to make
such technical rules, regulations, etc.
(f) At times, it might become necessary to hold consultations with persons going to be affected
by schemes and the same may be done by the administration which works at the grass-root
level.
(g) Delegated legislation involves a lot of flexibility and opportunity for experimentation.
(h) It might not be possible for the legislature to forsee the possible effects of an act each time
owing to the changing circumstances.
(i) Such legislation is required especially during times of emergency such as war, armed
aggression, natural disasters, etc. wherein it might not be possible to the extensively lengthy
and complex process of legislation.

2.
Drawbacks of delegated legislation-
(a) It has often been criticized as being an abdication of its powers/duties by the legislature.
Many times only the skeleton of the legislation is laid down, leaving even the policies and
principles to be formulated by the executive.
(b) It leads to arbitrariness as many times no guidelines are laid down using which the delegate
may exercise his functions and thus he gets complete authority to do whatever he likes.
(c) Delegated legislation has been criticized as being undemocratic as it is not discussed or
criticized in parliament as is the case with any statute. It may not reflect the general public
opinion.

3.
Thus, an effective system of checks and balances must be developed both at the
legislative level by not allowing for excessive delegation and at the executive level by avoiding
arbitrary use of power and application of mind.
4.
Restraints on delegated legislation-
(a) In Britain, due to the prevalence of the principle of Parliamentary sovereignty, delegated
legislation is also controlled by the Parliament. There is no restriction on the capacity of the
Parliament to delegate and thus the courts cannot question such power. However, controls may
be exercised by the Parliament if it so pleases and it cannot be compelled by any external
agency to do so.
(b) In the United States due to the presence of a written constitution and the principle
of separation of powers, the Congress cannot delegate excessive amount of power as the same
may be struck down by courts as being unconstitutional. Also, the US Supreme Court has
evolved the doctrine of delegatus non potest delegare by virtue of which, the Congress cannot
delegate as it is technically the delegate of the people. However, keeping in mind practical
considerations, it has been stated that the Congress may delegate provided it lays down
discernible standards and policies which the executive must follow while exercising such
powers.
(c) In India, -
(i) The first important case concerning the limits of delegated legislation was that of Jatindra
Nath v. Province of Bihar where it was held that there can be no delegation beyond conditional
legislation. As per the principle of conditional legislation, the general piece of legislation is
made by the legislature and it is to be enforced by the executive subject to the fulfillment of a
condition. Whether or not the law shall take effect will depend upon whether or not such
condition has been fulfilled by the administration. However, this principle was followed only at
the time of independence.
(ii) Later in the Delhi Laws Act case, a new approach was adopted. After independence, states
in India were divided into three categories- Part A(provinces of British India), Part B (princely
states) and Part C(smaller territories which were previously governed by Governor Generals).
Part A and Part B states had their own legislature to make laws but Part C states were under the
control of the Central Government. Thus, due to time constraints, the Parliament passed the
Part C States (Laws) Act, 1950 by virtue of which the Central Government could extend any
law in force in a Part A state to a Part C state with modifications as and when required and in
doing so it could also repeal/amend the provisions of any law, provided it is not a law enacted
by the Centre, which is in force in a Part C state to the extent is inconsistent with the former. All
7 judges gave different opinions but concurred on 2 major points, i.e. keeping in mind the
practical need of delegated legislation, the same must be continued and as the legislature in
India derives authority from a written constitution, there must be certain limits to the capacity to
delegate (there should not be any excessive delegation). Thus, keeping the same in mind it was
held that the part of the law which allowed it to repeal/amend provisions of laws prevalent in a
Part C state was bad and thus should not be allowed (excessive delegation).Also, when the law
is being made applicable to Part C state subject to modifications, the modifications must not be
such that they change the underlying policy of the law itself. Further, only such laws as under
the Union list and are applicable to Part A and Part B states must be extended to Part C states
so that the state legislatures may not abdicate their duties of legislation. It was also stated in this
case that the legislature may not delegate its basic functions of policy formulation, etc.
(iii) In Gwalior Rayon Co. v. Asst. Commissioner of Sales Tax, it was held that whenever the
legislature delegates power to an authority, it must lay down the basic policy, principles or
standards of guidance for such authority to follow. However, in his dissenting judgment,
Matthew J. stated that as long as Parliament retains its power to repeal the delegating provision,
there is no abdication of its duties (stated in previous case by Attorney General). However, this
view is not proper as keeping in mind the current political scenario the Parliament cannot
possibly repeal the delegating statute after conferring such power as most present day
executives exercise almost complete power over the legislature as they themselves enjoy a
majority in the legislature.

2.2 Constitutionality of Delegated Legislation
2.2.1 Skeleton Legislation
1.
Skeleton Legislation refers to such a legislation wherein the legislature provides for merely the
basic skeleton and the gaps are filled in or the flesh and blood are provided by the Executive. In
many cases, the judiciary has upheld the validity of such legislations.
2.
In Bagla v. Madhya Pradesh, it Ss. 3, 4 and 6 of the Essential Supplies Act, 1946 were
challenged. S.3 laid down that the Central Government may lay down rules for regulation of
production, distribution and prices of essential commodities. This was challenged on the
ground of excessive delegation stating that the legislature had not laid down any policy or
standards. But, the SC held otherwise and stated that the basic policy has been provided in the
form of maintenance or increase in supply and maintenance of prices in public interest.S.4
stated that the Central Government may further delegate its powers to its subordinate officers
or such officers working under the State Government. This was challenged on the basis of the
fact that a delegate may not sub-delegate. However, the SC held that as the officers to whom
power may be sub-delegated have been mentioned in a list under S.4,there is in fact delegation
by the legislature and not the executive as the latter cannot merely appoint anyone to perform
the duty. S.6 provides that orders made by Centre under S.3 would have effect even if they were
inconsistent with any other act in force. This amounted to repeal of such other act or its
provisions. It was thus challenged on the ground of repeal of a legislative act by way of
delegated legislation (as discussed in the Delhi Laws Act case). However, the SC upheld the
validity of this section and stated that it was provided only to by-pass any other law in force and
not to repeal it. Also, even if any act gets repealed in the process, it is due to an act of the
legislature and not of the delegate asS.6 was declared by the legislature itself.
3.
In Bhatnagar and Company v. Union of India, it was held that the power of the Central
Government under the Imports and Exports Act to restrict or prohibit the import or export of
products of a specific category is valid even if no guidelines for deciding as to how such
commodities are to be chosen is provided in the parent legislation. This is because the policy
has been laid down in a preceding legislation- the Defence of India Act. Also, owing to the
dynamic nature of imports or exports, it becomes impossible for the legislature to predict as to
which goods need to be put into such category.
4.
In DS Garewal v. Punjab, the provisions of the All India Services Act which empowered the
Centre to make rules to regulate conditions of service was challenged as amounting to
excessive delegation. However, it was also stated that the rules which would have already been
in existence at the time of enactment of the statute would be deemed to be part of the act itself.
Thus, the rules were held to be valid as they were adopted by the act itself and thus the
underlying policy was established.

2.2.2 Power of Inclusion and Exclusion
1.
This is a common legislative practice which provides that certain individuals,
organizations, commodities, etc. be excluded or included from the purview of the Act by way
of adding or omitting such names from a schedule annexed to the Act by the executive.
2.
In Edward Mills Company v. State of Ajmer, it was held that inclusion or exclusion of any sort
of employment under the Minimum Wages Act so that such group of persons may or may not
be entitled to the wages fixed under the act does NOT amount to excessive delegation. This is
because the policy is already laid down in the act which entitles such persons to minimum
wages who do not receive the same due to unfair practices, unorganized labour, etc.
3.
In Jalan Trading Company v. Mill Mazdoor Union, it was held that the government may
decide to exempt certain establishments from the ambit of the Payment of Bonus Act taking
into consideration their financial capacity, etc. and the same shall not amount to being excessive
delegation as the policy has already been laid down by the statute.
4.
In Hamdard Dawakhana v. Union of India, for the first time after the Delhi Laws Act case, a
Central Act was held to be ultra vires. Herein, S.3 of the Drug and Magic Remedies
(Objectionable Advertisements) Act was challenged. This section contained list of drugs whose
advertisement was prohibited and entitled the government to add to or remove from such list.
This provision was held to be unconstitutional as there was no specific standard or guideline
laid down to be considered by the executive while adding or removing names of such drugs.

2.2.3 Power of modification of statute
1.
This is also known as the power to remove difficulties or the Henry VIII Clause.
2.
This power is given so that the executive in times of need might change any
provision of the parent statute.
3.
This might seem as a drastic power given in the hands of the executive but it is required to bring
about a certain degree of flexibility in legislation so that changes may be brought about keeping
in mind changing social needs.
4.
It might also be used to remove any difficulty in the operation of the act.
5.
Also, it is generally used when a particular law forays into an entirely new area where socio-
economic or other conditions are different.
6.
All the above may be carried out by inserting a removal of difficulties clause or a
Henry VIII clause in the statute.
7.
It was named Henry VIII clause after King Henry VIII who was called the
impersonation of executive autocracy by the Committee on Ministers Powers Report, 1932.
8.
There are generally 2 types of removal of difficulty clauses, one which is
narrower and another which is broader.
9.
A narrower clause allows removal of difficulty without any modification to the
parent act. It must always be in consonance with the parent act. An example may be given
of the Reorganization of States Act wherein it has been stated that in order to remove any
difficulty, the President may by order do anything NOT inconsistent with the provisions of the
Act which he considers are necessary for the removal of such difficulty.
10.
The broader clause allows removal of difficulty even if the same modifies the parent act. An
example may be given of Art.s 372 and 392 of the Constitution which empowers the President
to make adaptations and modifications in the existing law.
11.
In Jalan Trading Company v. Mill Mazdoor Union, the Payment of Bonus Act under S.37(1)
empowered the Central Government to make any orders for removal of any difficulty not
inconsistent with the purposes of the Act and S.37(2) make such orders made by the
Government binding. Clause 1 was regarded as being constitutional as it merely sought to
advance the purposes of the act while Clause 2 completely excluded judicial review and thus
was unconstitutional due to excessive delegation.

2.2.4 Power to impose tax
1.
Under Art. 265 of the Constitution, no tax may be levied except when provided
under statute. Thus, the power to impose tax essentially rests with the legislature.
2.
However, the executive may be asked to specify the rates of tax available provided
the maximum and minimum rates have been provided in the statute itself.
3.
The executive may also exempt certain persons or commodities from such
taxation.
4.
In Orient Weaver Mills v. India, it was held that the provision empowering the executive from
exempting certain excisable goods from duties leviable on such goods does not amount to
excessive delegation.
5.
Refer to Gwalior Rayon Company case as well. (mentioned previously)6.Power to impose
taxes or duties may even be extended to municipal bodies taking into consideration
the nature of the body to whom such authority is being delegated.

2.3 Consultation of affected interest and public participation in rule making
1.
Public participation leads to democratization of the process of delegated legislation. It helps in
getting the views of affected parties so as to make a better piece of legislation. It also helps the
persons affected as their grievances are heard and suggestions are taken into consideration.
2.
It has been on the rise these days due to the involvement of several organisations
which help in eliciting public opinion and bringing them before the government.
3.
However, in order that such participation is allowed, a provision with respect to the
same must be made in the parent act.
4.
In Tulsipur Sugar Company v. Notified Area Committee, Tulsipur, the plaintiff challenged an
order made by the government which extended the limits of the municipal boundaries without
making an prior publication thereby not giving anyone affected a reasonable opportunity to be
heard. The court held that the statute did not provide for any prior publication of such rules and
hence the government is under no obligation to do the same. Also, reasonable opportunity of
being heard cannot be claimed as it is a legislative function whereby principles of natural
justice need not be followed.
5.
As per the General Clauses Act, for the purpose of the term previous publication
the draft of proposed rules must be published by the concerned authority in a manner it deems
fit. It must specify the time and date of such consideration and must keep in mind the
objections/suggestions while finalising the rules.
6.
One of the major issues concerned with such pre-publication of draft rules is that
there is no time lag specified which is to be maintained between the publication of draft rules
and final publication. This may allow the authorities to keep a very small time gap thereby
making the entire process a sham.
7.
Also publication is to be made by the rule making authority in the manner it deems
fit and thus too much is dependent on executive discretion.
8.
Further, publication of the rules in the gazette is conclusive proof of the fact that
the rules have been duly made.
9.
In Lachmi Narain, at least a 3 months notice to give effect to a modification to a schedule in the
sales tax act was considered a matter of legislative policy and necessary for taking into
consideration of affected interests.
10.
In Raza Buland Sugar Company v. Rampur Municipality, the act stipulated that publication be
made in a newspaper published in Hindi but the municipality published it in an Urdu daily. The
court held the same to be valid on the ground that there has been substantial compliance with
the provisions of the statute as the Urdu daily had a much wider circulation in the area.
11.
In England, there is no statutory mention of consultation of interests but never the less the same
is followed as a general departmental practice.
12.
In the US, pre-publication is made mandatory under S.553 of the Administrative Procedure
Act unless the authority feels that the use of such procedure would be impracticable,
unnecessary or contrary to public interest.

2.4 Publication of Delegated Legislation
1.
In England, the Statutory Instruments Act requires the publication of delegated
legislation.
2.
In the US, only after the Panama case in 1935 was such need felt. Thus, the Federal Register
Act and the Administrative Procedure Act came into force.
3.
In India, publication must be done if provided in the parent act. But, as a matter
of practice rules are published in the Gazette of India.
4.
In 1960, the Central Government commenced the publication of various orders
under the title of statutory rules and orders.
5.
In Harla v. Rajasthan, it was held that promulgation or publication of some sort is required so
that people understand what they are required to do or not do.
6.
In Maharasthra v. George, it was held that where there is no statutory provision for publication
of rules, it must be published in such media as is generally adopted to notify all such persons
concerned with such rules.
7.
Publication in the gazette is advantageous as-(a) It gives authenticity to the rules.(b) It
creates certainty in the mind of the people that the rule exists.(c) The individual may have easy
access to the rules.
8.
Rules should be generally published in one customary channel and not in several
channels depending on the will of the executive.
9.
In Bangalore WCS Mills Company v. Bangalore Corporation, it was held that are solution not
published under the act was still valid due to a provision in the act which stated that no action
existed merely on the ground of any defect or irregularity in an actor proceeding which does not
affect the merits of the case.
10.
If there is due publication in the mode specified in the statute or in the usual mode,
it amounts to sufficient notice being given.
11.
Delegated legislation comes into force on the day it is published and not on the day
it is made.
12.However, if the publication specifies that it shall come into effect on a date after
such publication, the same shall be considered.

2.5 Legislative Control of delegated legislation
2.6 Laying procedures and their efficacy
1.
As it is the legislature which delegates, it can exercise a better check.
2.
The first step comes into the picture at the time when the rules are being made.
3.
As per Rule 70 and Rule 65 of the rules of procedure of the Lok Sabha and the Rajya Sabha
respectively, every form of delegated legislation must first be introduced as a bill in Parliament.
4.
Such bill must be accompanied by a memorandum stating the reason for delegation
as well as the scope of such delegation.
5.
This shall enable the legislature to discuss the bill at length and pose questions.
6.
The second step comes into the picture after the rules have been made. This is with
respect to the laying procedure.
7.
A laying procedure is generally provided for in all common law countries.
8.
It ensures that all such rules are placed before the house for discussion and informs
the legislature as to what rules have been made as part of delegated legislation.
9.
The laying procedure generally takes place under the parent statute. The rules,
regulations, etc. are laid before the house for a period of 30 days and they can be annulled if
they violate the provisions of the constitution or the parent statute.

2.7 Judicial Control of delegated legislation
1.
Judicial control is generally exercised at the time of delegation and legislative power is
exercised after such delegation, with the help of committees, etc.
2.
The courts may review delegated legislation on the grounds discussed as follows.
3.
Constitutionality of the Parent Act- If the parent legislation is itself unconstitutional, the
delegated legislation made under it shall also be considered as being unconstitutional. This may
happen if the act is contrary to fundamental rights or if it does not adhere to the centre-state
distribution of powers or if it provides for excessive delegation, etc.
4.
Constitutionality of Delegated Legislation- The constitutionality of a piece of delegated
legislation has been considered in the following cases-
(a) Dwarka Prasad Laxmi Narain v. State of UP- Rules were made under the Essential
Supplies Act as per which in order to carry on coal business, a license is required to begot from
the State Coal Controller who has the power to refuse or exempt any person from taking such
license. This order was held to be arbitrary and violative of Art.s 14and 19(1)(g).
(b) Chintamani Rao v. State of Madhya Pradesh- The district collector was authorized to make
rules regulating and prohibiting the manufacture of bidhis. This was struck down as being
unreasonable and unconstitutional.
(c) Himmat Lal Shah v. Commissioner of Police- The Commissioner of Police was given the
authority to regulate processions and under Rule 7 of the rules, permission of the Commissioner
must be sought before convening any meeting or assembly. It was held that this rule was
unconstitutional as it was violative of the right to peaceful assembly.
(d) Air India v. Nargesh Mirza- Air India Service Regulation which provided for termination of
service of airhostesses on marriage or on pregnancy or on attainment of 35 years of age were
held to be discriminatory under Art. 14.
(e) Muthamma v. Union of India- Service rules made by the central government stating that
any employee of the government was to seek permission from the government before getting
married and that service of women employees shall be terminated on marriage was held to be
discriminatory under Art.s 14 and 15(2).
(f) Deepak Sibbal v. Punjab University- The Bar Council of India passed a rule stating that a
student of law could not pursue another professional course. The same was struck down as
being violative of Art. 14.
(g) Parag Ice and Oil Mills v. Union of India- It was held that even if the parent act shall be
exempted from judicial review if it is placed in the IX th schedule, the rules made under such
act cannot be regarded as being immune from judicial review.
5.
Rules violating parent act- This is called substantive ultra vires. It is when the delegated
legislation either goes beyond the purview of delegated legislation or when it is in conflict with
the delegating statute.
6.
In Lachmi Narain v. UP, under the Part C laws act, certain laws prevalent in other states could
be extended to union territories with such modifications as do not change the underlying policy
of such law. In one such case, a schedule was amended and as per the requirements of the
parent act, a 30 days notice was not provided before such amendment and thus it was held to
be void.
7.
In Bar Council of India v. Surjit Singh, it was seen that for the purpose of voting at an election
or being a member of the state bar council, qualifications are to be provided by rule made by
the Bar Council of India. If such rule is made by the state bar council, it shall be invalid even if
it is approved later by the Bar Council of India as an approval cannot validate it and making a
rule is different from approving it.
8.
In V.Sunder v. Bar Council of India, it was seen that before getting registered, a law graduate is
to practice under a senior advocate. It was held that the Bar Council can only specify standards
and not impart training.
9.
Retrospective effect of subordinate legislation- Delegated legislation cannot be made
applicable retrospectively unless expressly provided under the parent statute. In Union of India
v. Krishnamurthy, it was held that amendment of a previous regulation so as to make it
applicable retrospectively was invalid.
10.
Unreasonableness- This may be seen in the case of Kruse v. Johnson, wherein the local
authority made rules prohibiting playing of music or singing in a public area 50 yards away
from a dwelling house. The same was held as being unreasonable.

2.8 Sub-delegation of legislative powers
1.
As a general rule, a delegate cannot further delegate. (Delegatus non potest
delegare)
2.
Sub-delegation is not allowed generally because it would then dilute the level
of accountability and it can never be ascertained whether an official making a rule actually has
the power to do so.
3.
Sub-delegation may be allowed only when the parent statute expressly or impliedly
authorises the delegate to sub-delegate.
4.Sub-delegation must not be made in a very wide language. Also, a sub-delegate
cannot act beyond the power granted to him.
5.
Sub-delegated legislation must also be published. This has been held in Narendra Kumar v.
Union of India and Maharashtra v. George.
6.
The mode of publication is to be prescribed by the concerned authority and no
other mode is to be followed.
7.
Statutory Instruments Act in England does not require sub-delegated legislation to
be published.
8.
If the statute provides that only rules shall be laid before the legislature, the sub-
delegated rules might escape legislative scrutiny. However, this is also useful as it reduces the
burden of the legislature.


Unit III- Administrative Adjudication

3.1 Reasons for the growth of administrative adjudication

1.
The functions of the state have increased due to the coming in of the concept of a
welfare state. This has led to several situations where there are disputes between citizens or
between citizens and the state and thus a proper mechanism is required to settle such disputes.
2.
The courts of today are already overburdened with cases.
3.
Court procedure is very time consuming and dilatory, requiring several formalities to be
completed. Administrative adjudication does not follow such procedural requirements and is
thus faster.
4.
Following court procedure not only leads to overburdening of the judiciary but due
to the slow and cumbersome process, administrative decisions and policies also
remain blocked.
5.
Further, due to the changes in society certain new socio-economic problems have
come up which need to be decided not just based on law and facts but also on the basis
of policy considerations.
6.
Judges generally take a very rigid and technical approach applying only the law in its literal
sense to every problem. This is not a practical approach when it comes to solving new
problems which the law may not always have a solution to.
7.
Further, judges are generalists applying general principles of the law. Problems of
the society require expertise and specialised knowledge which is possessed by the
administrative authorities.
8.
However, there are certain drawbacks of administrative adjudication as well.
The judiciary is independent from the other governmental organs while the administrative
tribunals cannot possibly remain independent. Also, the procedure followed by the judiciary
such as cross examination of witnesses, giving reasoned decisions, etc. may not always be
present in case of administrative adjudication.

3.2 Difference between quasi-judicial and administrative functions

A d m i n i s t r a t i v e f u n c t i o n
Q u a s i - j u d i c i a l f u n c t i o n

1 It does not affect the rights of private parties. It affects the rights of private individuals and
binds such individuals.
2 It does not follow any particular procedure unless provided by the parent statute. It must
necessarily follow the principles of natural justice as part of its procedure.
3 It may not be provided for under an statute as such. It must necessarily involve a statutory
exercise of power.
4There may be delegation of such functions. There can be no delegation of such functions
unless expressly provided by statute.


3.3 Principles of Natural Justice or fairness

3.3.1 Nemo judex in re sua
1.
This maxim literally means that no one should be a judge in his own cause.
2.
It thus speaks about the rule against bias. If there is bias, the decision given will
beunfair.
3.
The rule of bias has 2 connotations- no person can be a judge in his own cause
and justice must not only be done but also be seen to be done.
4.
Bias is generally of three kinds- pecuniary bias, personal bias and subject matter
or policy bias.
5.
Incase of pecuniary bias, even the slightest of pecuniary interests may disqualify
a person from acting as a judge.
6.
In Annamalai v. Madras, it was held that a permit granted by the regional transport authority to
one of its members amounts to bias and thus such order needs to be quashed.
7.
Personal bias may come up due to various reasons such as friendship, animosity,
etc.
8.
In Mineral Development Ltd. v. Bihar, it was seen that the revenue minister cancelledthe
petitioners license for a lease on account of personal animosity. Thus, there existeda bias in this
case.9.In England, the rule which was previously followed was that of likelihood
of bias.This means that it is not bias what the judiciary feels it is but it is what the
reasonableman considers it to be bias.10.This test was followed by the broader
reasonable suspicion test which states that evenwhen a reasonable man would not
construe something as being bias, if there isreasonable suspicion in the mind of the judiciary that
there infact exists such bias, the person cannot be allowed to judge. This test is mainly the
outcome of the fact that justice must not just be done but it must be seen to be done.
11.
This maxim has been followed in India as well. Proof of bias is not required as thesame is very
difficult to prove. It is sufficient if there is a reasonable suspicion of bias.This was also held in
AK Kraipak v. Union of India.12.There may also exist a subject matter or a policy bias which
has often been termed asan official bias. This may be seen especially in case of administrative
adjudicationwherein the adjudicator being part of the administration might have a bias towards
the policy.
13.
However, it may be very difficult to exactly lay down as to what shall come under such bias.


14.One of the factors is that there must be a direct and close connection between
theadjudicating authority and the issue at hand.
15.
In Parthasarathi v.Andhra Pradesh, it was held that an officer who has framed chargescannot act
as the inquiry officer in disciplinary proceedings against an officer.
16.
In Hari v. Deputy Commissioner of Police, an externment order was passed by theDeputy
Commissioner of Police. This was challenged on the grounds of bias as it wasthe police
department which had initiated the proceedings and also sat as judge in thecase. However, the
SC held that as the proceedings were initiated by an officer abovethe rank of inspector, the
Commissioner could only pass such order and thus there wasno bias. Hence, it may be seen that
there will be no presumption of bias if the caseinvolved 2 officers of the same department
provided the posts are held by 2 different persons.
17.
In Gullapalli Nageshwar Rao v. Andhra Pradesh State Road Transport Corporation, anauthority
had the power to regulate transport activities in the state. The GeneralManager of this body
made rules for nationalisation of transport in the Krishna districtof Andhra Pradesh whereby
private transport companies would require a license fromthe government. 88 objections were
raised and were all heard by the Secretary of theTransport Department and later a report was
given to the Chief Minister. It was heldthat the secretary here had departmental bias and thus
could not have given a fair decision.
18.
In Kameshwar Prasad v. State of Bihar, as well the court maintained the distinction between the
Chief Minister and the Secretary. It was stated that when the decision istaken by the Secretary, it
amounts to bias as the secretary is part of the department.Also, it was stated that the principles of
natural justice cannot be dragged to any sphereand there must be a limitation on the same.
19.
In Maharashtra State Secondary and Higher Secondary Board v. Paritosh Kumar,students got
less marks in their HSC and thereby asked to take a look at their papers toascertain the marking
scheme. However, the parent statute provided only for arevaluation of marks and nothing else.
The petitioner claimed that the Boards decisionto refuse to show papers was invalid as they
would have a bias in favour of their teachers who corrected the papers. The SC held that there
was no bias and that this rulemust not be dragged unnecessarily without any limitations. It stated
that as the Boardmerely followed express provisions of the statute, there was no bias as such.

20.Thus, a need was felt to put some limitations on such rule and hence the followingexceptions
have been provided for-(a) Statutory provisions- If the parent statute provides expressly for a
fair procedure,the same must be followed and it need not be substituted by the principles of
natural justice. If however such procedure is ambiguous, the principles of natural justice
mightcome into play.(b) Statutory limitations- This is when specific limitations are laid down
by the statuteitself to minimise bias in any form.(c) Contempt of Court- Incase of contempt of
court , the rule cannot be used. A judgeor judges of the court might initiate proceedings against
the party even if they are theinterested parties in such case.

(d) Waiver- Where the party knows about the existence of bias but does not object tothe same,
he waives his right.3.3.2 Audi Alteram Partem1.This literally means hear both
sides.2.It has been taken to mean a fair hearing and includes the right to be
represented andright to defence oneself.3.The first constituent of a fair hearing is the
rule of notice. As per this rule, adequatenotice must be served on a person so that he may
be informed about the charges againsthim and he is able to prepare to defend himself.4.A
notice must always be adequate and must specify details with respect to charges,
timeof hearing, etc.5.It must be properly served on an individual and must give him
sufficient time to comeup with his defence.6.It must not simply embody the language
of the statute but must lay down requireddetails.7.It must not be ambiguous as a
vague notice is regarded as being no notice.8.If the statute provides that notice is to
be served on a person in a particular manner or mode, it must be served in such manner
unless otherwise necessary.9.If the statute specifies a particular form in which notice
is to be served, it must beserved in such form only. However, a minor irregularity will not
be considered.10.Whether a notice is adequate or not is to be decided by the court. The test is
whether theirregularity in the notice is such that it adversely affects the rights of the person
onwhom it is served or not.11. After the notice, there must be provision for a fair
hearing.12.This means that the person against whom charges are levelled must be allowed
to present his case before the adjudicatory authority.13.A personal or oral hearing is however
not required. It is sufficient if the person gets to present a written memoranda alongwith an
explanation to the court.

14.A fair hearing involves the following three essentials-(a) The adjudicatory authority
should receive all relevant material which the individualwishes to produce.(b) The authority
must disclose to the individual as to what it wishes to use as evidenceagainst him.(c) The
individual must be given an opportunity to rebut such charges.

15.
In Dhakeshwari Cotton Mills Ltd. v. CIT, the authorities refused to accept account books by the
appellant as part of evidence. This was held to be violative of the principles of natural
justice.16.However, the party cannot produce any amount of evidence unless such evidence
isrelevant.17.Also, the adjudicating authority might issue summons for attendance of witnesses.
But,they cannot compel such attendance unless the statute expressly provides for the same.
18.
In Brajlal Manilal and Co. v. India, it was held that when the Central Governmentconsiders a
report of the state government as being evidence against the partyconcerned, the same must be
disclosed to such party.
19.
In Gurbachan Singh v.Bombay, the appellant was not allowed to cross examinewitnesses or
have the witnesses examined before him. But, he was given an opportunityto be heard. This
was held by the SC as being valid as at times witnesses might not liketo depose in the presence
of the party.
20.
In Jammu and Kashmir v. Bakshi Ghulam Mohd., it was held that the defendant would be only
allowed to cross examine such witnesses as had deposed orally and not otherswho had merely
given affidavits.
21.
Another question comes up with respect to the right of counsel. In AK Roy v. Union of India, it
was held that incase of preventive detention proceedings, if the government or the detaining
authority is represented through a legal practitioner or a legal adviser, the person detained shall
also have a right to such practitioner or adviser. Herein, the court broadly interpreted the term
adviser.3.3.3 Reasoned Decision1.In England, there is a general rule that
reasoned decisions are not required whilefollowing principles of natural justice. However,
the Franks Committee in its reportstated that even administrative bodies must give reasons for
their decisions. This gotstatutory recognition under S.12 of the Tribunals and Enquiries
Act.2.In the US, the Administrative Procedure Act also provides for the same.3.A
reasoned decision is required because of the following-(a) To reduce
arbitrariness as when the authorities would know that they would have togive reasons for their
decision, they would be more careful while considering the caseand not merely rely on policy
as such.(b) To bring about justice as justice must not only be done but also must be seen to
bedone.(c) It gives a firm basis to the case and supports the decision when there is an
appeal.Thus, there is scope for judicial review.(d) It acts as res judicata.

4.
If a statute in India expressly provides that reasons must be given for any decisiontaken, the
adjudicating authority must necessarily adhere to the same. However, thismay not always be the
case. But, the courts have now substituted it with the principlesof natural justice and
constitutional provisions.5.In the US, due to the existence of the due process doctrine,
it is necessary to givereasons for every decision taken. It is a procedural requirement that the
executive shallimplement what is just and reasonable.
6.
In India, after the case of Maneka Gandhi v. Union of India, the concept of reasoneddecision
assumed greater importance. In this case, the term procedure established bylaw in Art. 21 of
the constitution was deemed to include the due process principle as itis followed in the US.
Thus, greater emphasis was now laid on the principles of natural justice. (Read ADM Jabalpur
case, Indira Gandhi v. Raj Narain and AK Gopalanscase)
7.
In Bhagat Raja v. Union of India, it was held that both the authority which hears thecase at the
first instance as well as the appellate authority must furnish reasons for their decision.
8.
In Anumati Sadukhan v. AK Chatterjee, it was held that an order empowering anauthority to
cancel a licence without giving reasons is invalid.9.Further, it is not sufficient for the
authority to furnish such information which hasalready been written down in the statute
as reasons. Adequacy of reasons however differs from case to case.10.Also, the
adjudicatory authority must necessarily maintain a record of the hearing alongwith
the reasons for future reference.3.3.4 Institutional Decision1.Institutional decision is one
which is taken by the designated official with the assistanceof his subordinates in the
department.
2.
It is called institutional due to it being taken by the department as a whole.3.There are
however two main problems associated with it namely, the authorship of
thedecision is unknown and secondly it leads to division in the decision making process.
4.
In Local Government Board v. Alrdige, the borough council declared a house unfit for human
habitation and asked for its closure. The landlord approached the LocalGovernment Board to
conduct investigations and help him. The Board asked aninspector to carry out the task who in
his final report stated that the house was infactunfit for habitation. This was challenged by the
landlord who stated that he had not been given a fair hearing as he was not allowed to be heard
by the officer who hadactually examined the case. The court held otherwise stating it to an
institutionaldecision. Herein it is not necessary to identify the officer who had conducted
theenquiry as the decision is deemed to be that of the department. Further, in this case it isnot
necessary that the official conducting enquiry must hear the case as well as is seenin case of
judicial decisions.

5.
Another point of difference between institutional decision and a judicial decision is thatin an
institutional decision not all evidence against the person may be provided to
him.6.Institutional decision is different from the decision of a single official
or administrativetribunal as it is the decision of the department.7.In the US, the
Administrative Procedure Act has provisions for regulation of institutional decisions.
In UK as well, it is an accepted fact that when a decision is to betaken by a minister it means
that such decision is to be taken by the department as awhole.
8.
In Union of India v. Shripati Rajan, the respondent was dismissed from service by thecollector
of customs. As per the law, he appealed to the President but his appeal wasdismissed by the
Finance Minister without consideration by the President. The SC heldsuch decision as being
valid as the Finance Minister disposed off the case in accordancewith the rules of business and
the President is a mere constitutional head. It was thus aninstitutional decision.
9.
In Mahavir Prasad Santosh Kumar v. State of UP, it was held that an executiveauthority can
exercise power through their subordinates.10.Generally speaking, the report made by the
hearing officer which is submitted beforethe authority which sits in judgment is not
necessary unless it prejudices the case to agreat extent.3.4 Administrative Appeal3.5 High
Courts superintendence over Tribunals
1.
According to Art. 227(1) of the Constitution, the High Court has the right of superintendence
over tribunals within its territorial jurisdiction except for thoseestablished under the armed
forces.
2.
This power is wider than Art. 226 as the HC not only exercises administrative but judicial
control as well on the tribunal. Under Art. 226, a writ of certiorari may beissued quashing the
decision of a tribunal. However, under Art. 227 the same may bedone with something else
added to it.
3.
Under Art. 226, the tribunal is a necessary party but this is not the case under Art. 227.The
tribunal is a necessary party in case of a writ petition as the court requires a recordof the
proceedings of the tribunal to decide on the matter.
4.
The SC has stated that the decision of the HC under Art. 227 is binding on the tribunal.
5.
The grounds for instituting a suit under both Art.s 226 and 227 are the same such asarbitrary
exercise of power, abdication of powers, exceeding its jurisdiction, etc.
6.
However, Art. 227 has a narrower approach as compared to Art. 226 in one matter. Art.227 can
be used to superintend only courts and tribunals while Art. 226 applies toadministrative bodies
as well.
7.
Art. 227 empowers the court to intervene suo moto while in case of Art. 226, a petitionis
required to be filed first.

8.
In Gujarat v. Vakhatsinghji, it was held that the HC may exercise its jurisdiction under Art. 227
even when the decision of the tribunal is deemed to be final and conclusive.
9.
In L.Chandrakumars case and Sampath Kumars case, the same aspect as that in theabove case
was discussed. The rule as it stands now is that the HCs jurisdiction cannot be excluded in any
case and the HC can exercise its powers under Art. 227 even whenthe decision of the tribunal is
final.Unit IV- Administrative Discretion4.1 Administrative Powers4.2 Formulation and
Execution of Policy
1.
Administrative Powers have increased particularly after the coming in of the
welfarestate.2.Functions dischargeable by the executive are either ministerial or
discretionary.
3.
Ministerial functions are those which are prescribed in clear and definite terms under the parent
statute and which the delegate must adhere to and wherein he has no optionto exercise his
discretion.
4.
In Hriday Narain v. ITO, it was seen that under S.35 of the Income Tax Act, the IncomeTax
Officer was to rectify any mistakes in assessment and he did not do the same evenafter the same
was brought to his notice. It was held that when a statute lays down thata particular procedure
shall be followed by an authority in a particular set of circumstances. It is not what he may do
but what he shall do.5.Discretionary powers on the other hand are wherein the
administrative authorities aregiven considerable power to choose between different
alternatives by applying their subjective satisfaction.6.Examples might be given of
investigation of facts, making of choices as in the case of the Land Acquisition Act,
etc.7.Thus, administrative discretion involves the taking of a decision by the
administrationnot just on the basis of evidence but also in accordance with policy and
expediency inexercise of their discretionary powers.8.An authority conferred with such
powers must exercise the same taking intoconsideration the facts and circumstances of
each case and by applying their mind toevery case.9.This was severely criticised by
AV Dicey who said that such powers would lead toarbitrariness and could be used to
override the law, which is quite the case today. Anexample may be given of S.10 of the
Industrial Disputes Act wherein the governmenthas discretionary powers to decide as to
whether a tribunal would be constituted or not.4.3 Need for Administrative Discretion

1.The primary reason why administrative discretion comes into play is because of
theneed to distinguish each case from the other and avoid applicability of general rules inall
cases.2.Some of the reasons why there is a need to exercise discretion are as
follows-(a) Recent problems are more complex and thus require a different degree of
expertisewhich may not necessarily be always taken care of with the help of legislation.(b) The
coming in of new types of problems which requires a new approach to betaken. Lack of
experience to tackle such problems warrants discarding of use of general rules.(c) It is not
always possible to forsee each and every problem. However, there mustalways be some
solution available when a problem comes up inspite of there being nolegislation to control the
same.(d) Also every case differs from the other and the use of discretion makes it possible togo
in for a case to case application of general rules.3.Never the less, there are certain
disadvantages of this system. The same may be listed asfollows-(a) The case to case
approach may take an individual by surprise who will not knowwhat to expect considering
nothing is laid down as to what should or should not bedone.(b) It may lead to discrimination
against many individuals.(c) It is a time consuming process and involves multiplicity of
cases.(d) It might lead to arbitrariness on the part of the executive.
4.4 Limitations on exercise of discretionJudicial Control on exercise of discretion-1.Judicial
control on administrative discretion may be exercised at 2 levels, namely-
(a) At the time the parent statute is made by the legislature, the judiciary may preventexcessive
delegation by challenging the statute as violating the provisions of theconstitution especially
Part III.
(b) It may hold some sort of a post decisional review to look into whether theadministrative
authorities have exercised their discretion within the ambit of the parentstatute and within
constitutional limits.

2.However, the basic principle of administrative discretion is that
administrativediscretion cannot be substituted by judicial discretion. This means that the
judiciarycannot go into the merits of the case and look into whether the opinion of the
authoritywas right or wrong.
3.
In AK Gopalan v. State of Madras, it was held that decision as to whether a person shall be
detained or not under the Preventive Detention Act lies solely within the power of the executive
and the judiciary cannot substitute such decision with its own decision.
4.
Another important case is that of Arora v. State of UP, wherein the State Governmentacquired a
piece of land under the Land Acquisition Act for manufacturing a factoryfor public purpose.
Arora contended that even he required the land to manufacture afactory for public purpose. It
was thus a case of public purpose v. public purpose.However, the court held that if the
government has satisfied the requirements of public purpose under the act, they have the
discretion to acquire the land.4.4.1 Malafide exercise of discretion1.This is a ground on
which administrative discretion may be challenged.2.It means corrupt or ill motive
or bad intention, etc.3.It primarily results out of animosity, personal vengeance,
spite, involvement of personal benefit, etc.4.Malafide can be of 2 types- malafide in
fact and malafide in law.5.Malafide in fact is when there is some sort of personal
animosity of the authoritiesagainst a particular person. It thus involves the facts and
circumstances of the case ashere the ill motive is against a particular individual.6.Herein, the
burden of proof lies on the person alleging malafide in fact as presumptionis in
favour of the executive.7.Malafide in law is when the law is made such that it involves
some sort of corruptintention on the part of the executive in order to benefit itself or
otherwise.
8.
In Pratap Singh v. State of Punjab, a civil surgeon was suspended on the grounds of taking
bribe. It was later found out that there was malafide involved in taking suchdecision as the Chief
Minister had some personal animosity with the surgeon.
9.
In Rowjee v. Andhra Pradesh, the state transport corporation had framed a scheme
for nationalisation of certain transport routes on the directions of the Chief Minister. It waslater
discovered that such decision was taken in order to nationalise only such routeswhich were used
by private transport operators who were the Chief Ministers politicalopponents. Thus, malafide
was involved.
10.
In Shivaji Rao Patil v. Mahesh Madhav, it was alleged that there had been tampering of mark
sheets of the Chief Ministers daughter and the same was held invalid due tomalafide.

4.4.3 Irrelevant Consideration


1.This means that the executive has exercised its powers taking into consideration
suchfactors as are not relevant to the purposes of the statute.2.It may distinguished from
malafide exercise of power in the sense that it does notinvolve any ill will or corrupt
motive but an honest mistake on the part of theadministration.
3.
In Ram Manohar Lohia v. State of Bihar, a person was detained under the Defence of India
rules in order to prevent him from acting in a manner prejudicial to maintenanceof law and
order. However, the rules provided for detention only in case of subversionof public order. This
was distinguished from the maintenance of law and order and thedetention order was held
invalid due to irrelevant considerations.
4.
In Hukum Chand v. Union of India, the divisional engineer was given the power todisconnect
telephone lines on the occurrence of any public emergency. In one suchcase, he disconnected
the telephone lines as they were being used for illegal purposes.This action was held to be
invalid due to irrelevant considerations.
5.
In Madhya Pradesh v. Ram Shankar Raghuvansh, a teacher was to be employed ingovernment
service after checking his antecedents and medical fitness. One suchteacher was refused
employment due to his political views (he was involved inactivities of the RSS and Jan Sangh).
This was held to be invalid on the grounds of irrelevant considerations.
6.
In Barium Chemicals Ltd. v. Company Law Board, the Company Law Board orderedan
investigation into the activities of a company due to delay in carrying out a particular project and
financial losses. This was held to be invalid as the Board couldinvestigate only in case of
managerial fraud.Other factors based on which administrative discretion may be challenged and
judicialreview be conducted-I Non- Application of Mind1.When the executive is
empowered to exercise its discretion, it must do so taking intoconsideration the facts
and circumstances of each case.2.When it does not take into consideration a vital and
relevant fact, it amounts to non-application of mind.3.Non-application of mind may
take place under any of the following categories-(a) Condition Precedent-i)Where
law requires that power must be exercised only after satisfaction of
acondition, such power will be valid only after fulfilment of the condition.

ii)
In Orient Paper Mills v. Union of India, it was held that when the law stipulatesthat action be
initiated only after a definite matter of public importance comesup, such requirement must be
satisfied.(b) Acting Mechanically-i)This means that an authority cannot use its
discretion without taking intoconsideration the facts and circumstances of every case.
ii)
In Assistant Collector of Estate Duty v. Prayag Das Agarwal, it was held thatwhen
the government has the discretion to accept or reject certain
propertyoffered to it, it cannot merely reject such property without even
consideringsuch request.(c) Abdication of functions-i)Wherein the authority which
is supposed to exercise its discretion does not dothe same and merely
delegates authority to its subordinate, such orders as may be made by the subordinate
are invalid.
ii)
In Manikchand v. State, it was seen that wherein nationalisation of certain busroutes
was to be done based on the scheme of the road transport corporation andthe same was merely
delegated to the manager of the corporation without anyconsideration by the
corporation, such order of the manager was invalid.(d) Acting under dictation-
i ) O r d e r s ma d e b y a n a u t h o r i t y a r e i n v a l i d w h e n h e d
o e s n o t e x e r c i s e h i s discretion but merely works under the dictation of his
superior.
ii)
In Punjab v. Suraj Prakash, it was held that the East Punjab Holdings Act doesnot
entail that the consolidation officer shall follow instructions of the
stategovernment and hence any such instructions of the state government shall
bedeemed to be invalid and any order passed in consonance with such instructionsis also
invalid.(e) Imposing fetters on the exercise of discretion-i)This means that where the
executive is required to exercise its discretion as per certain standards
laid down in the parent statute on a case to case basis, thesame authority
cannot impose fetters on such discretionary power by merelyframing general rules for
exercise of power.
ii)
In Gell v. Teja Noora, the Commissioner of Police
was required to grant or reject licenses for land conveyance taking
into consideration factors like public benefit, etc. Instead of considering each
case as per its merits, he passed ageneral order laying down standards which
were to be followed while grantingor rejecting such licenses. This order was held to be
invalid.II Non-compliance with procedural requirements
1.
An exercise of discretionary power may be considered bad due to non-compliance
with procedural requirements provided such procedure is considered man
datory by the judiciary.
2.
In Narayana v. Kerala, it was held that wherein revocation of a license
to supplyel ect r i ci t y i s t o be r evoked pr ovi ded t her e has been consu
l t at i on wi t h t he st at eelectricity board, the same is valid only after such consultation.
3.
In Naraindas v. Madhya Pradesh, it was held that wherein text books
where to be prescribed for schools only after consultation with the Board of Higher
Education, suchrequirement must be satisfied.
4.
In Vimal Chand v. Pradhan, it was held that no person can
be detained under thePreventive Detention Act without being given a chance to
represent himself. This is a procedural requirement and must necessarily be complied
with.4.4.2 Constitutional imperatives and use of discretionary authority4.4.4 Non-exercise of
discretionary power Unit V- Remedies against
Administration5. 1 Wr i t s under Ar t . s 32 and 226 of t he Const i t ut i on of
I ndi a-
Habeas Corpus,

Certiorari, Prohibition, Mandamus and Quo Warranto
1.
Art. 32(1) of the Constitution guarantees the right to move the Supreme
Court for violation of fundamental rights while Art. 32(2) empowers the SC to issue writs in
thenature of habeas corpus, certiorari, prohibition, mandamus and quo warranto for
thesame.
2.
Art. 226 on the other hand empowers the HC s notwithstanding anything contained
inArt. 32 to issue writs or orders within such territories wherein it exercises
jurisdictiont o i ndi vi dual s or aut hor i t i es i ncl udi ng t he gover nment f o
r t he enf or cement of fundamental rights or any other purpose.3.The concept of writ
jurisdiction has been borrowed from England however the SC hasdeclared that it
shall only follow the British system in its broad sense and avoid anytechnicalities as
may be there. Nevertheless the system of judicial review in both Indiaand England is more or
less the same.4.The power of the courts under such jurisdiction is very broad. They
may not only issuewrits but may also give directions or orders or any other appropriate
remedy in order to provide relief. However, the court will not reject a case merely on
the ground that theappropriate writ has not been prayed for.
5.
Art. 32 being a fundamental right in itself cannot be whittled down by legislation
anddoes not get restricted by administrative order even when such order is final.6. I t may
be f i l ed di r ect l y wi t h t he SC and t he per son need not go
t hr ough t he ent i r e procedure of approaching the lower courts, etc.
7.
In AK Gopalan v. Madras, the SC struck down S.14 of the
preventive detention
actwhi ch pr ohi bi t ed t he per son det ai ned f r om di scl osi ng gr ounds f
or det ent i on as provided to him by the detaining authorities before the
court. This did not really
deprive the detenu the right to move the court under Art. 32 for issuing a writ of habeascorpus
but it rendered the role of the court somewhat illusory as the court could
notexamine the grounds of detention and thus could not determine as to there was
anyactual violation of fundamental rights or not.
8.
In Prem Chand v. Excise Commissioner, it was held that a security was not required to be
given before filing a writ petition as it posed a hindrance to the courts function
of determining whether there is a violation of fundamental rights or not.
9.
However, Art. 32 empowers the court to only go into questions concerning violation
of fundamental rights. Where there is no violation of fundamental rights, Art. 32
cannot be invoked. Similarly in Ramjilal v. ITO, it was held that illegal levying of tax does
notviolate any fundamental right but is merely contradictory to the provisions of Art. 265.
10.
In Ujjam Bai v. Uttar Pradesh, it was held that a mere error of
law committed by aquasi judicial body cannot be challenged under Art. 32. The
court can strike down anorder passed by such body only when such power is
exercised without jurisdiction or without conforming
to statutory provisions or without following the principles of natural justice,
etc.
11.
Executive orders are also open to be challenged under Art. 32 and it is
immaterialwhether there is an error of law or error of jurisdiction involved.12.The error of
law here refers to a patent error of law.
13.
Art. 226 is broader in its scope than Art. 32. It allows for moving the HC not just
for the protection of fundamental rights but also for the protection of legal rights providedthat
the error of law complained of is a patent error of law.
14.
However, the writ jurisdiction of both the SC as well as the HC is independent of
theother. A person may go straight to the SC to enforce his fundamental rights rather
thangoi ng t o t he HC. However , he may al so go t o t he HC f i r st and
i f hi s pet i t i on i s dismissed, go to the SC on appeal. However, in such case he
cannot invoke Art. 32again due to res judicata.
15.
Art. 226 being a constitutional provision, its ambit cannot be curtailed by
way of legislation or administrative order even when such order is regarded as
being final.This is different from the situation in England wherein the Parliament
may curtail thewrit jurisdiction of the courts.
16.
Never t he l ess t hese const i t ut i onal r emedi es may be r est r i ct ed by
way of ot her constitutional provisions. However, the courts have a gen
eral tendency to strictlyconstrue such exclusionary provisions and uphold its
power of judicial review inspiteof such exclusion. In India v. JP
Mitter, it was seen that Art. 217(3) states that thedecision of the President with
respect to age of the judge shall be final. In this case, theSC held that such orders made could be
struck down if decisions are taken on the basisof collateral considerations or without
following the principles of natural justice or arecoloured by executive advice or
representation or are based on no evidence.
17.
In Sangram Singh v. Election Commission, it was held that although Art. 329 bars
the jurisdiction of courts with respect to election disputes, it does not bar the courts
fromdealing with such a dispute once the petition was disposed off by an election tribunal.

18.
In Madhav Rao Scindia v. India, it was held that although Art. 363 bars interference of the
courts in matters concerning treaties or agreements between the government
of India and rulers of Indian states before commencement of the constitution, it
does not bar the court to review an order of the President derecognising such rulers
under Art.32.
19.
Ar t . 226 empower s t he HC t o exer ci se j ur i sdi ct i on wi t hi n i t s t er r i
t or i al l i mi t s. However, if a part of such dispute is outside its territ orial
jurisdiction, it may stillexercise power under this provision.20.The five writs may be
discussed as follows-(a) Habeas Corpus-i)It literally means to have the body
and is issued primarily to secure the releaseof a person who has been unlawfully
detained or without any jurisdiction.
ii)
However , i ssuance of such a wr i t l ar gel y depends on t he st at ut e o
r ot her circumstances under which detention has taken place. For exampl
e, habeascorpus cannot be granted when a person has been detained by a
competentcourt even when such detention may appear to be wholly illegal.
iii)
The scope of this writ has been extended by the court to include inhuman andcruel
treatment to prisoners as well. (Sunil Batra v. Delhi Administration)iv) The aggrieved
person or anyone on his behalf might approach the court. Whena prima facie case
has been established for the issuance of the writ, the courtshall ask the detaining
authority by issuing a rule nisi, to show cause why thewrit should not be issued. If the
court is then convinced that such cause shownis not sufficient, it shall issue the writ.
v)
The detaining authority has to meet the grounds on which detention has
beenchal l enged by t he det enu as wel l as pr ove t hat det ent i on was
under t he procedure established by law as provided in Art. 21.
vi)
In Kanu Sanyal v. District Magistrate(I), the court held that it is not necessaryto
produce a person during writ proceedings as the objective of the writ is tosecure
freedom for the detenu as soon as possible and not production before
thec o u r t . Th i s r u l e ma y h o we v e r b e c h a n g e d b y t h e c o u r t i n
c o mp e l l i n g circumstances.(b) Quo Warranto-i)It literally means what is
your authority.ii)It is generally used by the courts asking the holder of a public
office (not privateoffice) to show as to why he is entitled to such office. It acts as a judicial
controlover administrative action with respect to making appointments
as well as protects individual rights from being violated by a person who has no authorityto
hold such office.iii)The writ is with respect to a public office of substantive
character.iv)This writ will not be issued if there is an alternate remedy available.
v)
In PL Lakhanpal v. AN Ray, it was seen that AN Ray who was appointed theCJI by
superseding 3 other judges was challenged as the seniority principle
wasnot appl i ed. The Del hi HC r ej ect ed such a pet i t i on st at i ng t hat
t he wr i t jurisdiction of the court involves technicalities and is based on the
discretion of the court whether or not to accept such petition. Further, it was also stated that
if an i r r egul ar i t y whi ch was chal l enged was cur ed dur i ng t he pend
ency of proceedings, the writ need not be issued. In this case after the
appointment of Justice Ray as CJI, he automatically became the senior most judge
thereafter and thus there was no irregularity. Thirdly, the case was
challenged on thegrounds of malafide on the part of the appointing authority but
the court statedthat a writ of quo warranto can be issued against the holder of the office and
notthe appointing authority.
vi)
In another important judgment of Gokaraju Rangaraju v. Andhra Pradesh, it washeld that
after quashing the appointment of a public officer, such acts of theofficer
which were for the benefit of third persons or the public and not
for personal benefit shall remain valid as if they were passed by officers entitled
tosuch office.(c) Mandamus-i)It is a command issued by the court directing an
authority to do its public dutyas laid down by the law.ii)It may be issued to any
authority performing any kind of function.iii)Mandamus is used to enforce a duty
which is obligatory under the law and is notmerely optional or
discretionary.i v) A mandamus may al so be i ssued t o compel
an aut hor i t y t o car r y out t hedecision of a tribunal.v)A mandamus may also be
issued in case of a non-statutory duty.vi)However, generally the courts do not grant
such a writ in cases where there is ageneral duty to be performed such as improving
railway services, etc.vii)The writ cannot be used incase of civil liability arising under torts or
contracts.
viii)
In Jivan Mal Kochar v. India, it was held that the petitioner could not
claimdamages under Art. 32 for the humiliation, indignity and loss suffered by
himdue to governmental action.ix)In order to issue a writ of mandamus, it must
first be shown by the petitioner that he has a right to compel the authority to act in a
particular manner.x) The per son aski ng f or i ssui ng t he wr i t must
f i r st demand j ust i ce f r om t heconcerned authority (and no other authority)
and only on rejection of the samecan he approach the court.(d) Certiorari and
Prohibitioni ) T h e s e wr i t s a r e ma i n l y u s e d t o p r e v e n t e x c e s s
e s o n t h e p a r t o f p u b l i c authorities.
ii)Earlier, it could be used only against judicial or quasi-judicial bodies but
now ithas been extended to all public authorities exercising
any kind of publicfunction.iii)Both these writs are issued for the same purpose
and in similar circumstances.The only difference is with respect to the stage at
which they are used. A writof certiorari is used to quash an order which has
already been passed as inwhen a decision has already been rendered. While
a writ of prohibition is usedwhen proceedings are going on so as to stall such
proceedings.iv)The various grounds based on which such writs may be issued are
when thereexists an error apparent on the face of the record, incase of any
jurisdictionalerror, an order made under an invalid law, contravention of the
principles of natural justice, an order made based on no evidence, etc.v)However, a writ
of certiorari cannot be used to disguise an appeal in order todiscuss the
merits of a case already dismissed by a lower authority. Its mainaim is to exercise
supervision.5.2 Procedural Aspects-
Locus Standi, Laches, Res Judicata, Exhaustion of alternate remedies
Locus Standi-
1.
The provisions of Art.s 32 and 226 do not provide for any rule on standing as
such.This has largely been left on judicial discretion.2. However , t he gener al r ul e
i s t hat onl y an aggr i eved per son may move t he cour t t oenforce
his rights under the abovementioned provisions. This is primarily
becauseremedies are a correlative of rights and only those persons whose rights
are infringedmight invoke the courts jurisdiction to get the appropriate remedy.3. Thi s
i mpl i es 3 t hi ngs, namel y- (a) Only an aggrieved person may invoke the courts
jurisdiction.(b) If such person belongs to a group or class of persons aggrieved by
administrativeaction, in order to file a suit, he must show that he has suffered
special injury and thusneeds to be remedied.(c) If the person challenging is a
total stranger to the issue, the court would not normally allow him to
continue.4.However, if the above rule were to be followed in a country
like India where peoplemay not come up to file a case or would due to poverty,
ignorance, illiteracy, etc.
not be i n a posi t i on t o f i l e a cas e i n cour t , admi ni st r at i ve act i on
coul d si mpl y gounchallenged.

5.Therefore, the courts have tried to provide a somewhat balance by liberally
interpretingthe term aggrieved person and in certain cases allowing strangers to a
cause to file asuit. However, this largely depends on the discretion of the court.6.However
there is a distinction between standing and justiciability. A person may
havestanding to move the court for enforcement of his rights but at the same time his claimmay
not be justiciable or enforceable.
7.
Inspite of modifications in the rule of standing, the general rule still stands. This
has been stated in Bandhua Mukti Morcha v. India. Exceptions may be made to the
ruleonly when the courts exercise their discretion to do so and when certain conditions
aresatisfied.8.A person has standing when his personal or individual right has been
infringed. He
alsohas a st andi ng when anot her per sons r i ght s f r om whom he der
i ves a benef i t or otherwise have been affected.9.Also, a person may have
standing even when a personal or constitutional right is not violated but the
court is satisfied that he has suffered a genuine grievance due to actionor inaction on the part of
an authority.
10.
In Gurunanak Society v. State, it was held that even an unauthorised owner
of landmay move the court incase he has been removed from such land in an
unauthorisedmanner as in Indian law even an unauthorised owner has to be evicted
from land by a process authorised by law.
11.
In Peermohammed v. DFO Tenmala, it was held that a person had
no standing tochallenge illegal activity or construction going on in an adjoining
land unless there isnuisance or trespass or the same affects his easement rights.
12.
In Mallappa Murigeppa Sajjan v. Karnataka, it was held that the members of a tribunalhad the
required standing to challenge suspension of the working of such tribunal as being
legally appointed members of the tribunal, their rights were adversely affected by
the decision.
13.
In MS Jain v. Haryana, it was held that a person whose name was recommended
for appointment could not challenge a decision not to appoint him as he has no legal rightto get
appointed.
14.
In SP Subba Rao v. PP Veeraraghvaiah, it was seen that under statute there has to be aminimum
distance between a permanent cinema and a temporary cinema has to be thatof 1000m but
the government could grant an exemption to the temporary cinemaowner.
The court held that the permanent cinema owner had the right to challenge suchan exemption in
order to protect his interests.15.When a person does not at all participate in the
proceedings, he has no standing tochallenge such proceedings later.
16.
In Vijay Mehra v. Rajasthan, it was held that a member
of a political party cannotcompel the government to constitute a commission for
enquiring into certain floods asit was a matter of executive discretion and the
petitioner was not affected by suchfloods.

17.
In Karpoori Thakur v. Abdul Ghafoor, the court held that a member
of Parliamentcannot ask for dissolution of the ministry on the ground of loss of
confidence in thehouse as the ministry is collectively responsible to the entire
Parliament and not justone legislator. Thus, only one of such members of Parliament does
not have a standing.
18.
A different view was taken by the court in Ramana Dayaram Shetty v.
InternationalAirport Authority wherein it stated that while conferring a benefit, the executive
cannotact ar bi t r ar i l y, i l l egal l y or i n a di scr i mi nat or y manner . Thus,
t he vi ew t hat t hegovernment has sole discretion in granting a benefit is no longer
tenable.19.If a person suffers an injury by virtue of being a member of an
indiscriminate class, hemay file a suit only when he has suffered some sort of special injury
which is over andabove the injury suffered by the others. This is to reduce
the number of cases thatmight be brought before the courts in such situations.
20.
In Milap Ram v. Jammu and Kashmir, it was held that any member of a state might filea
petition challenging the grant of permanent residence of the state to a
particular person as the right of every such person is affected by such grant.21.If
a persons legal right has been substantially affected, he will have a standing.
Whatshal l be consi der ed as bei ng subst ant i al or r emot e wi l l depen
d on t he f act s andcircumstances of every case.
22.
A det er mi nat e cl ass of per sons or gani sed i nt o a gr oup or associ at i
on al so havestanding. In Warrangal Chamber of Commerce v. Director of
Marketing, it was heldt hat a r egi st er ed body cor por at e
had t he st andi ng t o f i l e a case on behal f of i t smembers.
23.
In Fertilizer Corporation Kamgar Union v. India, it was held that members of
a tradeunion have standing to file a petition.
24.
Deci si ons of a muni ci pal i t y may al so be chal l enged. I n Rat l am m
uni ci pal i t y v. Vardichand, it was held that the residents of the locality had the
locus standi to movethe court asking for the municipality to construct drain pipes.
25.
Even member s of t he muni ci pal i t y have t he r equi r ed st andi ng t o c
hal l enge agovernmental order when the rights of the municipality have been seriously
affected bysuch governmental action. (SL Kapoor v. Jagmohan)26.There has however been
a recent development in the form of Public Interest Litigationwhich has led to a
compromise in the general rule of locus standi.27.By this rule, an individual or group of
individuals might institute a case in court even if they have no locus standi as per the general
rule.28.Such an exception is generally seen in 2 situations, namely-(a) When an
individual or group of individuals institutes a case wherein their rights areonly remotely affected
or when their rights are affected equally being part of the groupdue to administrative action.(b)
When any public spirited individual or body devoted to such cause brings a
causeof action before the court challenging administrative action which is
prejudicial to theinterests of the general public or a section thereof.

29.This rule is generally allowed because at times the persons whose rights are
affectedare not in a position to defend themselves due to illiteracy, ignorance,
poverty, etc. or simply when public interest at large is at stake.30.However, such person
or group of persons filing the case must have sufficient interestin the case and
must act bonafidely without any considerations such as personal benefit, etc.
Also, the court will not allow such petitions where the affected party itself is
disinterested.31.Also, the courts consider only legal and justiciable issues when it
comes to PIL s andgranting such PIL s is upto the courts discretion.
32.
A landmark case in this regard is that of SP Gupta v. India, wherein it was held
thatl a wye r s h a v e a l o c u s s t a n d i t o b r i n g a c a s e b e f o r e t h e c o
u r t wh i c h i n v o l v e d appointment of additional judges in courts and frequent transfers
of HC judges as suchlawyers are interested in the independence of the judiciary.
33.
In Babubhai Jasbhai Patel v. India, it was seen
that 2 opposition members of theGujarat legislature brought a case before the HC
asking for reconsideration of paymentof royalty by ONGC to the state government in
order to assert the claim of the stategovernment vis-a-vis the Union
Government. This was rejected by the HC on theground that the matter involved
here was that of high policy and individuals cannot beallowed to take over governmental
function. Further, the matter involved a questionunder Art. 131 (Centre-state dispute)
which could only be resolved by the SC.
34.
In Peoples Union for Democratic Rights v. India, it was held that the union had
thestanding to file a case on behalf of construction workers whose rights
were beinginfringed by contractors who had hired them for such worker by
contravening severallaws.
35.
A similar case is that of Sanjit Roy v. Rajasthan, wherein it was held that the petitioner who
was a member of a registered social group could file a case bringing to light
thegross violations being committed by the state government in
contravention of theminimum wages act with respect to workers engaged in famine
work.
36.
Again in Bandhua Mukti Morcha v. India, the morcha, an organisation dedicated to thecause of
bonded labourers was decided as having standing to challenge inaction by thegovernment in
implementing the provisions of the Bonded Labour System Act.
37.
In DS Nakara v. India, it was held that a registered society which was a non-
political,non-profit and voluntary organisation had standing to bring a
case with respect to problems of old pensioners.
38.
With respect to writs of habeas corpus and quo warranto, the rule of aggrieved
personis not applicable.
Laches-

1.This principle states that if a petitioner files his case after undue delay,
his petitionshall be rejected on the ground of latches. This rule is
applicable even in case of violation of fundamental rights.

2.
I n RS Ma k a s h i v . I M Me n o n , t h e p e t i t i o n wa s f i l e d 8 ye a r s
a f t e r t h e a l l e g e d infringement of fundamental rights under Art.s 14
and 16 by the executive and thesame was rejected on the ground of laches.
3.
However, there is no hard and fast rule prescribed under Art.s 32 or 226 as to how longwould
be considered enough to reject the petition on the ground of laches. This
matter i s i n f a c t l e f t t o t h e d i s c r e t i o n o f t h e c o u r t a s c o u l d b e
s e e n i n RS De o d h a r v . Maharashtra, wherein a case filed for enforcement
of rights even after a period of 10years was held as being valid. However, in
certain case even a gap of 6 months couldattract dismissal on the ground of laches.
4.
In Nirmal Khosla v. India, it was held that if the government itself is responsible
for delay in disposal of the case of the petitioner and the same resulted in inordinate delayin
filing of the petition, the case will not be dismissed as it would then act
to thedetriment of the petitioner who is not at fault in such a case.
5.
Sometimes when the government is one of the parties, a delay may be
taken intoconsideration by the court owing to the involvement of public
interest in such asituation. This was also held in UP v. Bahadur Singh.
6.
The doctrine of laches is generally brought into the picture when a delay in filing
thecase might adversely affect the interests of the other party or third parties. Incase thereexists
no such situation, generally the provisions of the Limitation Act are taken
intoconsideration. This has been seen in the case of Madhya Pradesh v. Bhailal Bhai.
7.
In the case of Tilokchand, the court held that the question of laches is one left to
thediscretion of the court. Also, it is upto the courts discretion whether
to follow the provisions of the limitation act or not.Res Judicata-1.The principle
of res judicata provides that when courts of competent jurisdiction
give binding decisions, the petition cannot be moved in the same court on the same cause
of action.2.This is a principle of private law and is applicable to writ proceedings as
well.
3.
Similarly, in Devilal v. ITO, it was held that when a tax assessment order has
beenunsuccessfully challenged in the court, it cannot be challenged again through
another writ petition before the same court.4.The reason for this principle is that the
party will go on filing petitions thereby causingharassment to the other party.
5.
In Lallubhai Jogibhai v. India, it was held that a habeas corpus petition could
be filedagain if the grounds for granting such writ are different. However, again in
Kavita v.Maharashtra, it was held otherwise. Never the less the general
rule followed is that of the former case.

6.Also, another rule emerges with respect to withdrawal of cases.
However, it has beenobserved that incase a case is withdrawn, there is no res judicata.

7.
Also, where a writ petition is dismissed without speaking order, there is no res judicataand there
may be subsequent petitions filed. This is because on the absence of groundsit is not possible to
understand as to why such petition was dismissed.8.Further, the HC cannot review
its own decision based on its merits provided no newevidence or matter is
discovered.
9.
If the HC dismisses a case on the basis of laches or availability of alternate remedies or without
passing a speaking order, there is no res judicata and the case may be filedunder Art.
32 before the SC.
10.
The principle of res judicata has been made applicable between Art.s 32 and 226 due tothe
reason that both the SC and HC have more or less similar writ jurisdictions.11.This may be
criticised on the ground that res judicata applies between courts of
thesame jurisdiction. Never the less the SC has held that the SC and the HC are on
thesame footing with respect to writ jurisdiction.
12.
After dismissing a special leave petition, the SC will not accept a writ petition
under Art. 32 due to res judicata. However, exception may be made when the life of a personis
at stake.
13.
When a special leave petition is dismissed by the SC, the case may not be
entertainedunder Art. 226 before the HC except when the former dismisses
the case withoutgiving speaking order. However, if a special leave petition is withdrawn,
remedy under Art. 226 would still be available.14.Res judicata operates even when the
case is dismissed under a writ petition and is againfiled under a regular petition.

Exhaustion of Alternate Remedies-
1.
Generally speaking, the court would decline to accept a case if there exists an alternateand
more efficacious remedy. However, if there is a violation of fundamental rightsand
Art. 32 or 226 is invoked, the court cannot reject the case on such ground.2.The petitioner
need not prove that there is no other adequate remedy or that he
hasexhausted all possible alternate remedies in such a case.
3.
Thus, necessarily under Art. 32 this rule is to be followed. However, under Art.
226when the case does not involve a fundamental right, the HC might ask the petitioner tofirst
exhaust all possible alternate remedies as was seen in the case of Titaghur
Paper Mills Co. Ltd. v. Orissa.4.However, whether or not to resort to the same is
a matter of discretion available to theHC. For example if a person has lost a right to
exercise a particular remedy due to nofault of his own, the HC would not ask him to first
exhaust alternative remedies.5.Further, an alternate remedy need not be resorted to
where it leads to inordinate delaysor is illusory in nature.
6. A HC coul d i ssue a wr i t of cer t i or ar i even
wi t hout exhaust i on of al t er nat e r emedywhen there is a violation of the
principles of natural justice.5.3 Exclusion of Judicial Review-Exclusionary clauses5.4 Suits
against administration5.5 Notice under S.80, Civil Procedure Code, 19081.As per S.80 of
the CPC, no suit can be instituted against the government or any
other government official for acts done within his official capacity within 2 months from
thedate a notice is tendered to him with respect to the same.2.The following requirements
of this section must be necessarily satisfied, namely-(a) There must be identity of
the person who issues the notice with the person whoinstitutes the suit.(b) The notice
must clearly mention charges, name and complete description of the place of
residence of the plaintiff.(c) It must also mention reliefs claimed by the plaintiff.3.It can be
with respect to any suit such as those with respect to injunctions,
contracts,etc.4. The sect i on pr ovi des f or no except i ons and hence
unl ess t he r equi r ement s of t hi ssection are complied with no suit may be instituted.
5.
Al so, any sui t f i l ed bef or e t he per i od of 2 mont hs shal l be di smi s
sed. ( Bi har i Chaudhary v. Bihar)6.A suit may be filed under such provision
not only for acts already done but for actswhich might be committed in the
future or acts which are threatened to be committedin the future.
7.
This provision has been made to allow the government to redress the grievances of
the plaintiff within the period of 2 months without going in for
unnecessary litigationthereby wasting public funds.
8.
No specific form of notice has been specified. However, in Beohar Rajendra Sinha
v.Madhya Pradesh, it was held that the terms of the notice must be
worded in such amanner so as to show on a reasonable reading that such notice
has complied with
allthe requirements of S.80. Further, no unimportant irregularity shall be
taken intoconsideration if the notice otherwise contains a justified claim.9.The notice
must essentially provide for the nature of the claim so that the
governmentmight be in a better position to redress grievances.
10.
This section applies only to such public officials who commit an act or omission
intheir official capacity and not otherwise. In Chandrakant v. State, it was held that
theregistrar of trusts was a public official acting in his official capacity while
declaringwhether a trust was a public trust or not. It was also stated that while considering
cases under this section, no distinction may
be drawn between public officials acting bonafide and those acting malafide.
11.
Another question arose in India v. Chattar Singh, wherein the plaintiff gave a notice tothe
Government under S.80 but did not notify the concerned officer. The
case wasdismissed due to lack of notice to the public official. However, in NS
Jayanandan v.State, a similar case was instituted and it was held that once the
Government has beennotified under s.80, the public official concerned need not be
notified. The state inthese cases was responsible jointly and thus the claim could not be
defeated merely onthe fact that notice was not served on the concerned person.12.S.80 does
not apply to a statutory corporation as neither does it fall within the ambit of the
term government nor public official.13.Also, this section cannot be used when
suits are filed before a tribunal constitutedunder the Motor Vehicles Act.
14.
This section is for the benefit of the government and thus at times the government mayalso use
its discretion to waive the requirement of notice or ignore minor technicalflaws.
However, this is rarely the case. In Shanti Pada v. India, the case was ruled
infavour of the plaintiff but was dismissed on the grounds that the requirements
under S.80 were not specified. The plaintiff thus filed a fresh suit but
the governmentchallenged the same on the grounds of res judicata. However, the court
ruled in favour of the plaintiff.
15.
In Nani Amma v. Kerala, the government pleaded that the case was instituted
beforethe expiry of the period of 2 months after a period of 5years from the date of filing
thesuit. This plea was dismissed on the ground that even though there was
prematurefiling of the case, 5 years was more than sufficient to give a notice to
the governmentabout the case against it.16.The Law Commission has at several times
suggested that the provision of service of 2months notice under S.80 be done
away with but no action has been taken by thegovernment with respect to the
same.
17.
However, certain relaxations have been made due to the amendment of
the CPC.Earlier, incase there was a matter requiring urgent or immediate relief to
be given, the plaintiff could approach the court by way of a writ. Now, due to the
amendment insuch cases where immediate relief needs to be provided, the plaintiff
need not followthe 2 month notice rule and made with the leave of the
court seek a remedy. If it is proved that there was infact no urgency, the
plaintiff shall be asked to file the suit again after following the 2 month notice
requirement and he need not pay court
feesagain.18. Anot her r el axat i on made i s t hat t her e shal l be no
di smi ssal i f t her e i s any mi nor i r r egul ar i t y i n t he not i ce pr ovi ded
t hat t he name and descr i pt i on of t he pl ace of residence of the plaintiff
has been specified in such notice so as to help identify the plaintiff and also if the
cause of action and relief has been clearly mentioned in suchnotice.
19.
The Law Commission in its 100
th
report however stated that amendments to the sectiondo not resolve the situation and S.80 must
be repealed.
5.6 Period of Limitation1.S.82 of the CPC provides that a period for
satisfaction of decree be provided in thedecree itself when a decree is passed
against the government or any public official.2.If the decree is not satisfied within
such period it shall be reported by the court to thegovernment for its
orders.3.Execution shall not be issued on such decree unless it remains unsatisfied
for a periodof 3 months after the date of the decree.4.Under S.112 of the Limitation
Act, the government enjoys a limitation period of 30years for all cases filed by it
or on its behalf.5.This has been criticised by the Law Commission as being
derogatory to the interests of private parties. It has also been stated as being
discriminatory as private parties have been given a much lesser period of limitation.Unit
VI- Liability for Wrongs (Tortious and Contractual)6.1 Government Tortious Liability1.In
UK because of the maxim- the King can do no wrong and due to the principle
thatthe state cannot be sued in court without its permission, the government could
not bemade liable especially for torts committed by its servants.2.However, this view
was changed with the coming in of the Crown Proceedings Act under which
now even the Crown could be made liable in
torts.3. I n t he US, t he Feder al Tor t Cl ai ms Act pr ovi des f or t he t or t i
ous l i abi l i t y of t hegovernment. It provides that with respect to fulfilment of
its common law duties,
thegover nment coul d be hel d l i abl e. However , i t coul d not be hel d
l i abl e i ncase of intentional wrongs such as assault, battery, etc. or incase of statutory
wrongs. Thus, theUS law is more restrictive than the English law with respect to
tortious liability of thegovernment.
4.
I n I ndi a, Ar t . 300 of t he const i t ut i on pr ovi des f or t he same and st
at es t hat t heGovernment of India may be sue or be sued in the same manner as
the Dominion of India and the corresponding provinces or the corresponding
Indian states might havesued or been sued.
5.
Thus, reference needs to be taken from the Government of India Act, 1935 which
inturn relates such liability to the liability of the Secretary of State under the Governmentof
India Act, 1915. The powers and liabilities of the Secretary of State are
coextensivewith that of the East India Company prior to 1858. Thus,
regard must be had of theliability of the East India Company and its officers in such
period.

6.1.1 The Old view

1.As the company was primarily an autonomous body and there existed
no relationshipof master and servant between the company and the crown, the sovereign
immunity of the crown could not be extended to the company.
2.
In the landmark judgment of P & O Steam Navigation Company v. Secretary of
State,it was held that under the Charter of 1833, the company had been entrusted
the power to govern Indian territories under it as a trustee of the Crown. Thus, even
though thesovereign immunity of the Crown could not be extended to the company, the
companycould not be made liable in torts for acts done within the ambit of
its sovereignfunctions as conferred by the Charter of 1833. However, if the
company or any of itsofficials commits a tort in pursuance of any activity
which could be carried on by private individuals as well, it could be made liable.
3.
However in Secretary of State v. Hari Bhanji, it was held that immunity extends to
thecompany only for acts of the state and the distinction between sovereign and
non-sovereign functions as stated in P & O was not well founded.4.But, the view in P&O
was accepted generally rather than the one given in Hari
Bhanji.Even collection of land revenue by officers or delegates of the
government wasr egar ded as a sover ei gn f unct i on and coul d not be c
hal l enged on t he gr ound of malafide intention on the part of the official.
5.
Again in Gurucharan Kaur v. Madras Province, it was held that incase of
illegaldetention of a person by the police, the government could not be held liable
as it fallswithin the ambit of sovereign functions.
6.
However, railways were regarded as an activity which could be carried
on even
by pr i vat e i ndi vi dual s and t hus was not a sover ei gn f unct i on. I n
Mahar aj a Bose v. Governor-General in Council, it was held that when earth from the
plaintiffs land wasremoved by a government official to put the same on a railway
track, the governmentwas liable in damages for conversion to the plaintiff.
7.
If the state is engaged in some sort of commercial activity or business it
does notamount to a sovereign function. In District Board, Bhagalpur v. Bihar, it
was held that by
r unni ng t he st at e t r easur y, t he gover nment coul d not be sai d t o be
r unni ng acommercial activity or business and thus would not be liable for torts committed
by theofficials of the treasury.
8.
In Nodin Chunder Dey v. Secretary of State for India, it was held that giving of licenceand
taking excise duty fell within the sovereign functions of the state and thus the statecould not be
held liable for any wrongs committed thereunder.6.1.2
Vidyawati
to
Kasturilal
and the later developments

1.
In the landmark judgement of Vidyawati v. Rajasthan, the sovereign immunity of
thestate after commencement of the constitution was examined for the
first time. Thedriver of a jeep kept exclusively for use by the collector fatally
injured a pedestrianwhile driving the jeep back from the warehouse to the
collectors residence. A suit for damages was filed against the state as it was vicariously
liable for the negligence of itsservant. The state pleaded sovereign immunity under the
P&O decision but the courtheld that herein the driver was not performing any sovereign
function and thus the statewould be held liable. However, the court also stated that the
state would be liable asany employer would be liable for acts done by the
employee within the course of

employment. Though this did not expressly overrule the principle laid down in P&O, itdid by
implication mean that the government could no longer be immune incase
of wrongs committed by its servants whether the same was done in the
exercise of sovereign or non-sovereign functions.
2.
However, in Kasturi Lal Ralia Ram Jain v. Uttar Pradesh, the development as made
inVidyawati was considerably whittled down. In this case a pers on was
arrested andsome gold was seized from him on the ground that it was stolen. A
police
constablest ol e such gol d and f l ed t o Paki st an. I n t he meanwhi l e, t he
per son ar r est ed wasacquitted and he proceeded against the state for damages under
the principle laid down by the Vidyawati case. However, the court referred to the P&O case and
stated that theact was committed by the constable in exercise of his sovereign functions as
delegated by the state and thus the state was not liable.3.The court also stated that in
the Vidyawati case, the driving of the jeep back from thewarehouse to the
collectors residence was not a sovereign function and thus the statecould be held
liable.4.The court however did state that owing to the number of
commercial activities whichthe state enters into, limits for sovereign
must be specified keeping in mind the provisions of the Crown Proceedings Act in
the UK.5.It stated that it was necessary to differentiate between sovereign
and non-sovereignfunctions of the state so that it may not evade liability.6.The
Kasturilal case may be criticised for the fact that there exists no clear
distinction between a sovereign and non-sovereign function except for
the fact that when
theg o v e r n me n t c a r r i e s o u t s u c h f u n c t i o n s a s ma y b e p e r f o r m
e d e v e n b y p r i v a t e individuals, it shall be considered to be a non-sovereign
function. However, even inthis case when the gold was left with the police, it may
be considered as a bailmentwhich can be performed even by private individuals.
Also, in Vidyawati, the jeep waskept for exclusive use of the collector who is an
administrator with police functionsand thus the wrong committed could very
well fall within the ambit of sovereignfunctions of the state.
7.
In the present day scenario, even though the distinction between sovereign and
non-sovereign functions is maintained, the courts have considerably reduced the
ambit of sovereign functions thereby increasing the number of cases wherein the
governmentcould be held liable.
8.
For example in Mysore v. Ramachandra, damage was caused to the plaintiffs land dueto
water overflowing from a reservoir constructed by the government for the
purposeof providing water to the general public. The state was held liable as
construction of the reservoir was regarded as being a welfare function of the
state and not a sovereignfunction.
9.
Again in Uttar Pradesh v. Hindustan Lever, a sub-treasury was being run by the
stategovernment for collecting such amounts as deposited by private individuals and bodiesfor
being credited into the accounts of government departments. Some such
amountswere embezzled by government officials. The government was held liable
as it wasexercising functions as could be exercised by any normal bank
and thus were not performing any sovereign function.

10.
In Bihar v. SK Mukherji, it was held that the state is responsible for the safety of
itsemployees and would be held liable if it does not provide for necessary measures
for the same.
11.
In State v. Ram Pratap, it was held that most functions carried out by the Public
WorksDepartment could be carried out by any private individual and thus
could not beregarded as a delegation of the sovereign functions of a state.
12.
In Shyam Sunder v. Rajasthan, it was held that when a government official
died onfamine duty due to negligence of the driver of a government truck, the state
would beliable as famine relief work does not traditionally come within the ambit
of sovereignfunctions of the state as it could be undertaken even by private individuals.
13.
Other such cases where similar judgments have been given are that of Andhra Pradeshv. K
Padma Rani, Kerala v. K Cheru Babu, Indian Insurance Company v. Radhabai.
14.
In Khatri v. State of Bihar (Bhagalpur blinding case), it was held that the state
would be liable to pay compensation wherein the right to life under Art. 21 was
seriouslyaffected as it is the duty of the state to act within the authority of the law
and protectthe fundamental rights of the people.
15.
Similarly in Rudal Shah v. State of Bihar, a person who was detained for 14
yearsafter his acquittal by the court was paid compensation by the state.
16.
Other cases involving payment of compensation include Nilabati Behera v. State
of Orissa (custodial death) and
Chairman Railway Board v. Chandrima Das (rape of Bangladeshi woman by
railway employees).
17.
However, the present day distinction between sovereign and non-sovereign
functionshas been criticised by many. It has been argued that sovereign immunity must be
madeapplicable for a foreign state in national territory for acts committed against nationals.
18.
The Law Commission in its First Report on Liability of State in Tort stated that
theremust be a relaxation in the rule of sovereign immunity of the
government and thedistinction between sovereign and non-sovereign functions
of the state must be doneaway with. Thus, it recommended drafting of a new law in this
regard.19.A bill entitled Government (Liability in Tort) Bill was thus drafted and
first introducedin Parliament in 1965 but could not be passed. It was re-introduced in 1967
and certainmodifications were suggested by the Joint Select Committee but
no law has beenenacted so far.6.1.3 Writs and damages for Government torts
1.
Generally speaking, damages cannot be awarded incase of a writ petition under
Art.s32 and 226. This was also stated in the case of Jivan Mal Kochar v. India.
2.
However, in recent cases such as Rudal Shah v. State of Bihar, the court has
awardeddamages i n wr i t pet i t i ons as wel l . I n Devki Nandan Pd. v.
Bi har , t he cour t al soawarded exemplary costs.

3.Generally the courts are reluctant to award damages as then it raises
questions withrespect to fact and the courts do not like to dwell on the same
when it comes to writ petitions.
4.
The Law Commission in a Working Paper suggested that a writ petition under Art. 226 be
combined with a suit for damages with relief being provided by the HC in the
first place and damages being awarded by a lower court. However, whether or not
suchdamages may be awarded is to be left to the discretion of the HC.
5.
There is but a lacuna in this scheme that it does not suggest anything with respect
toArt. 326.2 Contractual Liability of Government6.2.1 Formation of Contract1.In UK due
to the coming in of the Crown Proceedings Act, the crown can now be
suedfor breach of contractual obligations and no permission of the crown
is required toinstitute a suit against it.
2.
In India, formation of government contracts has been enshrined in Art.s 298 and 299 of the
Constitution.
3.
Art. 298 states that the Union or state government may enter into a
contract for any purpose in exercise of their executive power.4.Thus, the government
may make any contract for any purpose irrespective of the fact asto whether the same
comes within its powers as enshrined in the 3 lists.5.Also, the government may enter
into a contract in exercise of its executive power andno statutory authority is
required.
6.
Art. 299(1) lays down the following conditions based on which a contract
shall beentered into-(a) All such contracts are to be made in the name of the
President or the Governor asthe case may
be.( b) Al l cont r act s and assur ances of pr oper t y ar e t o be execut ed
on behal f of t hePresident or Governor.(c) The President or Governor shall
prescribe that the contracts are to be executed bysuch persons and in such manner as
they may direct or authorise.
7.
It has been held that provisions of Art. 299(1) have not merely been laid down for
the purpose of form but are mandatory in nature. This is done to prevent the
governmentfrom being liable incase a contract is unauthorised.

8. Unl ess al l condi t i ons under t hi s pr ovi si on
ar e not sat i sf i ed, t he cont r act cannot beenforced by the government or
against the government.

9.
Such a strict view of the Art. is taken by the SC though the HC has generally taken
amore liberal view.
10.
However, a liberal view needs to be taken some times as even though protecting
thegovernment from unauthorised contracts is necessary, it is also important to
protect private parties who may be unaware of such technicalities. Further, it is
also importantto make sure that governmental work is not delayed. Thus, the courts
have generallytaken a liberal view when the provisions of Art. 299 have been
substantially compliedwith.
11.
A wr i t t en cont r act i s necessar y however t her e need not necessar i l
y be a f or mal document. It may even be through correspondence or through
offer and acceptance if all the provisions of Art. 299 are complied with. The
terms executed in the articlehave been interpreted as meaning a written
contract.12.The contract may be executed on behalf of the President or the
Governor only by anauthorised person. An unauthorised person cannot bind the
government.
13.
Art. 299(1) doesnt lay down any specific rules with respect to conferment of
authority.Generally it is done by way of notification in the official gazette. However,
at timeseven though a person is not authorised by express terms of the rules but the
rules may be interpreted as conferring special or ad hoc authority on such person.
14.
If the government objects to a contract duly signed by an official claiming that
such per son was not aut hor i sed t o do so, t he bur den t o pr ove t hat s
uch per son wasunauthorised lies on the government due
to S.114(c) of the Evidence Act which presumes that official acts have been
performed regularly.15.The contract unless made and executed in the name
of the President or Governor isunenforceable even when it is made by an authorised
person.
16.
In Chaturbhuj v. Vithaldas Moreshwar, the court relaxed its view towards Art.
299(1)and stated that even when a contract does not conform to the requirements of the
article,it will not be null and void. If the government wishes, it may ratify
such contract particularly when it is for the benefit of the government. However,
in Mulamchand v.Madhya Pradesh, this view was held as being bad and it was
stated that any contractwhich did not comply with the provisions of Art.299(1) was null and
void.17.Also, a contract of service between the government and its employee need
not conformwith the requirements of Art.299(1). This is because when a person
gets appointed tosuch service, his rights and duties become subject to the statutory
rules framed by thegovernment.
18.
A statutory contract does not come within the ambit of Art. 299(1). Such a contract
isone made under statute and not an ordinary executive order. This has been upheld in
ADamodaran v. Kerala.
19.
In West Bengal v. BK Mondal, it was held that even if the contract was invalid due
tonon-compliance with the provisions of Art.299 (1), the government is liable
to pay therespondents for the work already done due to the principle against unjust
enrichmentenshrined in S.70 of the Contract Act.

6.2.2 Estoppel and Government Contracts
1.
Generally speaking, Art.299 (1) cannot be by-passed by invoking the doctrine of estoppel.
2.
However, many times the Courts have upheld the doctrine incase there is a breach of contract or
a breach of promise (provided Art.299 has been complied with) by thegovernment and the
same has given rise to remedies under equity for the private party.Thus, in such a case, the
private party involved may invoke the courts jurisdictionunder Art. 226.3.But, this defence
of estoppel cannot be used when the provisions of Art. 299(1) are notcomplied with.
4.
However, this has been criticised as even though Art.299 may not have been compliedwith, the
party may have done an act in furtherance of the contract and thus such strictinterpretation of
Art.299 must be relaxed. A contract must not be vitiated merely on theground of inadequacy in
form.5.This principle is however not applicable to statutory contracts as they do not
fall withinthe purview of Art. 299.
6.
In Union of India v. Indo-Afghan Agencies and Century Spinning and ManufacturingCo. v.
Ulhasnagar Municipality, it was held that the HC under its extraordinary jurisdiction as laid
down by Art.226 was empowered to enforce equities in favour of the plaintiff due to the
promise made by the government to such person.6.2.3 Contracts and Statutory Discretion1.As
such the doctrine of promissory estoppel does not pertain to statutory
contracts asArt. 299(1) only deals with contracts made under executive power.2.If
a public authority enters into a contract using its general powers, then
such contractcannot fetter the exercise of a statutory power. However, if fetters
are imposed under astatutory power, the contract would be valid even if it fetters subsequent
use of power.
3.
An example may be given of a contract between an electricity board and
a company tosupply electricity to such company on subsidised rates owing to a
statutory provision.This is an exception to the general rule provided under the
statute. Now, in the future,the board cannot charge at a higher rate from the
company claiming that the generalrule provides for charging such rates. The reason
for the same is that the exception ismade under statute and thus it may be used to impose
fetters on the exercise of generalstatutory powers. (Indian Aluminim Company v. KSE
Board)6.2.4 Articles 14 & 19(1)(g) and Government Contracts1.Earlier, the courts
generally tended to support the government with respect to the partywith which
they wanted to enter into a contract. The government was thus allowed todeal with
anyone it chose as per its discretion.

2.
Similarly, in CK Achutan v. Kerala, the Government cancelled its
contract with a per son f or suppl y of mi l k i n pur suance of i t s pol i cy
of awar di ng t he same t o acooperative society. This was challenged under
Arts. 14, 19(1)(g) and 31. The courthowever ruled in favour of the government stating that
a contract creates a private rightand not a public right. The government thus had
the freedom to deal with anyone it chose.
3.
Agai n i n Punnen Thomas v. Ker al a, a per son was bl ackl i st ed f or 1
0 year s f r omsubmitting any tender or taking up any government work. This was upheld
on the basisof the fact that the government has the right to choose anyone it wishes
to deal with.Herein, Mathew J. in his dissenting judgment stated that such action was contrary
to the principles of natural justice as the person was not given an opportunity to be heard andit
was invalid as it would lead to loss of reputation of the plaintiff in the business world.
4.
In Rasbihari v. Orissa, the government had the monopoly over trade in kendu
leavesand it invited offers for purchase of such leaves for further leaves. Instead of followinga
system of competition between the purchasers, it arbitrarily allowed only the previousyears
licensees to apply. This was contested on the ground that granting such privilegeto the
former licensees had no connection with the object of the sale which was
toeffectively sell the leaves in public interest. Thus, the government order was
struck down.
5.
However, the above cases effect was diluted in Trilochan Mishra v. Orissa, wherein anin an
auction for kendu leaf sale rights, sale was made to the ones with the lowest bids.Such bidders
were asked to raise their prices in order to meet that of the highest bidder.It was held that the
government had the discretion of selecting whoever it wanted to.
6.
The trend was finally
changed in Ramana Dayaram Shetty v. International AirportAuthority
(Airport case). In this case, the International airport authority, a statutory body
invited tenders for setting up a 2
nd
class restaurant in the airport and Ks tender was accepted as it was the highest and
it satisfied all the requirements. Meanwhile, K purchased the required equipment
for setting up the restaurant. However, the owner of the former restaurant did not vacate
the premises and litigation ensued between him andthe government which he lost.
Thereafter, K was allowed to set up the restaurant. Theformer owner, Ramana then
appealed to the SC on special leave. The following issueswere addressed in the case-
(a) The first contention made was that Ks petition was not selected on the conditions
of eligibility as given in the invitation. To this, it was stated that the test for eligibility wasto be
an objective and not a subjective one.
(b) The second contention was as to whether the authoritys action in
granting thetender to K was wrong or not. Herein, the authority
contended that it could not be bound by the criteria provided in the invitation as they
were not based on any statute or administrative rules. Further, they stated that they had
the discretion to reject all other tenders and enter into negotiations with K. To this,
the court contended that infact theauthority had rejected all tenders and accepted
Ks tender without entering into anynegotiations.
(c) Again, it was questioned whether the petitioner had any locus standi to file
the caseas he was not a t ender er i n t he f i r st pl ace. To t hi s t he cour t
r epl i ed t hat had t he petitioner known that the criteria of eligibility as given in
the invitation would not be
used to grant a tender even he would have applied. Thus, he had locus standi as
suchdecision affected his rights.In this case, the court held for the first time that
the state does not have absolutediscretion with respect to entering into a
contract. It must consider all claims fairly andgive everyone applying an opportunity to
have their claims examined fairly.
7.
Thereafter in Uttar Pradesh v. Shri Charan Sharma, it was held
that parties must beallowed to bid against each other in an auction so that the best claim is
selected.6.2.5 Contracts and Writs
1.
Previously, as stated in Achutans case, no action with respect to writ
proceedingswould lie incase of government contracts.
2.
This rule changed in the Ram Sanehi case. Herein, cases involving
contracts werecategorised as those which are purely contractual and neither do they have
any statutory basis nor are they regulated by any statute. The second
category of cases involvesstatutory contracts and there is a direct breach of a
statutory provision. The third andlast category is of such cases where the
contract has a statutory flavour but is not violative of any statutory provision as
such.3.Incase of the first category of contracts, the relationship between the parties
are ruled bythe terms of the contract. This is not enforceable by way of a writ as
the contract herecreates a private right and not a public right.4.Incase of the second
category, as there is a violation of a statutory provision such as when the
statutory right of a petitioner is infringed or when the authority does not fulfila statutory
obligation, a writ petition will lie.5. I n t he above cat egor y may be pl aced
such cases wher ei n r i ght s of t he par t i es ar einfringed under Art.14 due to
discrimination.6.As regards the third category, the general rule is that a writ
may be issued even whenthe obligation has a statutory flavour, i.e. when it is
partially statutory and partiallycontractual. However, this rule has always been in a state of
flux.
7.
In SKG Sugar Ltd. v. State, a similar question came up. The court stated
that as theorder for inviting contracts was made under statute, the fact that it was
a contractualobligation did not bar the court to issue a writ.
8.
However, in Mangat Ram v. Delhi Development Authority, the court ruled
otherwise.Lease of a piece of land was execut ed in the name of the
President on behalf of the plaintiff based on statutory provisions. Later such lease was
cancelled and the petitioner filed a writ petition. This was rejected by the court on the
ground that the obligationwas purely contractual in nature although the lease was granted
under statute and under the authority of the President.
9.
In Shital Prasad v. M. Saidullah, a contract to sell sugar was entered
into with the petitioner subject to the clause that it could be cancelled by
orders from the districtmagistrate without giving an opportunity to be heard.
The contract was cancelled andthe petitioner filed a writ petition claiming that
principles of natural justice were not followed. The court dismissed the petition on
the ground that it was a cancellation of acontract and non-adherence to principles of
natural justice couldnt be argued.
10.
However, a writ is a proper remedy when there is undue exercise of
administrative power in context of the contractual relationship. In Marwar Tent
Factory v. India, the petitioner had entered into a contract with the government for
sale of tents to the latter.The government later terminated the contract stated that
the tents were not of proper quality and went on to assess damages unilaterally
without allowing the petitioner aright to be heard. This was held by the court in a writ
petition as being unreasonable asno contractual or statutory provision allowed the
government to assess damages on itsown.

6.2.6 Doctrine of Legitimate ExpectationUnit
VII- Government Privileges in Legal Proceedings
7.1 Whether a statute binds the State?

1.The rule in England is that the statute cannot bind the government
unless the same isexpressly mentioned in such statute. This was primarily due to the
maxim- the King cando no wrong
2.
This view existed in India prior to independence and was upheld in the case of Provinceof
Bombay v. Municipal Corporation of the City of Bombay. After independence,
thesame rule was upheld in Director of Rationing v. Corporation
of Calcutta. However, inhis dissenting judgment Wanchoo J. stated that such a rule is
erroneous as India was nolonger a monarchy and was a republic. Thus, keeping in
mind the same, the rule must be modified.
3.
This case was later overruled in Superintendent and Remembrancer of Legal
Affairs,West Bengal v. Corporation of Calcutta. It was held that
generally speaking, thegovernment would be bound by statute except when an
exception has been made withrespect to the same expressly or by necessary
implication. This rule was confirmed inIndia v. Jubbi.

4.The burden is on the state to prove that an exception has been made.

5.Generally, the courts liberally construe the terms necessary
implication to allow anexception to the state. An example of such exclusion by
way of necessary implicationmay be seen with respect to criminal proceedings
wherein the punishment involved isone of imprisonment. In such a case, the
state has to be exempted as it cannot beimprisoned.
6.
A similar situation was seen in India v. Jubbi, wherein the statute provided for
transfer of rights and title in land from the landowner to the tenant on the
payment of somecompensation. The question was whether the state could apply
for the same as
well.The cour t r ul ed i n t he af f i r mat i ve st at i ng t hat t he cour t coul d
not be necessar i l yexcluded from the ambit of the statute in such case as the
primary object of the statute was to take away vast stretches of land from the
control of landowners and grant it toothers.
7.
In State v. Employees State Insurance Corporation, a question arose as to whether
thestate could be made liable to reimburse the insurance corporation for an accident caused by
negligence of its employee. It was held that the object of the act was to work
for public good. Thus, exclusion of the state from the ambit of the statute
by way of necessary implication would defeat the very purpose of the act.

7.2 Government Privileges not to produce documents

1 . S . 1 2 3 o f t h e E v i d e n c e Ac t p r o v i d e s t h a t n o p e r s o n c
a n p r o d u c e u n p u b l i s h e d government records with respect to the affairs of the
state as evidence unless permissionto do the same is granted by the head of the concerned
department as per his discretion.

2.This provision gives great advantage to the government especially
because the termaffairs of the state have been construed very broadly and
include even the commercialactivities of the state.
3.
In Bihar v. Kasturbhai Lallbhai, it was held that the term public affairs
means anymatter of a public nature or any case wherein a disclosure made by the state would
affect public service.
4.A valid argument in favour of this provision is that where a case
in which disclosuremight seriously jeopardize public interest, this provision might prove
helpful.
5. S. 123 i s based on t he common l aw pr i nci pl e t hat no evi dence
may be al l owed t o produced in court if its disclosure would adversely affect public
interest.
6.However, in a later case, the House of Lords held that the court has the right
to inspectsuch documents without showing it to the parties so as to judge whether disclosure
wouldactually prejudice public interest.
7.
In Punjab v. Sodhi Sukhdev Singh, it was held that the privilege under S.123 must
beclaimed only with respect to cases involving injury to public interest and not in
caseswherein producing such evidence could defeat the governments claim.
8.It is for the courts to decide whether a matter is concerned with the affairs of the
state or not. Generally, the courts are reluctant to construe commercial activities as
being part of the term affairs of state. Thus, they use the parameter of injury to
public interest as adefence.
9.
In the abovementioned case, the court also stated the class doctrine whereby a
certainclass of documents could be exempted not on the basis of their content but on the basis
of the fact that disclosure would materially affect the freedom of expression of opinion
withrespect to public policies as is seen with respect to the minutes of
discussion in theParliament. Another example may be given of inter-
departmental and intra-departmentalcorrespondence.
10.
In India as well it has been stated that if the court is not satisfied by the reasons givenin the
affidavit by the government seeking privilege, it may look into such evidence so asto decide
whether or not there is any injury to public interest.

11.Also, if a part of the evidence is published, it does not mean that the
rest cannot be protected.
12.
All these provisions were upheld in Raj Narain v. Indira Gandhi and SP
Gupta v.President of India (Judges Case).
13.
In the Judges Case, the question came up as to whether incase
of correspondence between the Law Minister and the Chief Justice with
respect to extension of term of service of an additional judge can be protected under
S.123. It was held that there was no protection in such case as in a democracy there is
a need for an open government so that public interest may be catered to.
Also, the class doctrine cannot be brought into the picture here as this doctrine is
used mainly to protect matter so that there is no hindranceto freedom of expression due to fear of
recording of such matter as evidence.

14.Another issue considered in this case was whether the advice given by the
ministers tothe President is protected by S.123. It was held that such advice could
be protected butthe basis for such advice had to be disclosed.

7.3 The Official Secrets Act, 1923

1. Thi s act deal s wi t h ( a) spyi ng or espi onage and ( b) di scl osur e
of any ot her secr et official information.

2.Persons having possession of official information include-(a) Those that are in
possession or control of any secret information.(b) Those persons who obtain such information in
contravention with the Act.(c) Those persons to whom such information has been
entrusted by another holdingsuch office.(d) Those persons who have such
information or obtain the same owing to holding of some office (past or present) or
by holding a government contract or holding officeunder any person.
3.
An offence is not only committed by such person who passes on the information
butalso by such person who receives the information.
4.
The information covered under this act must be an official secret and not a secret
of a private nature. What is an official secret is generally to be decided by the
governmentthough it is not always the sole judge with respect to the same.
5.
In RK Karanija v. Emperor, it was held that an advertisement in a newspaper
inviting people from the general public to send letters to the editor for publication
of officialsecrets for payment was in contravention of the provisions of the act.
6.
Si mi l ar l y, i n St at e v. K. Bal akr i shna, par t s of t he budget wer e p
ubl i shed bef or e presentation and the same was considered a contravention of
the Act as the budget is asecret document.

7.
The Act gives a
carte blanche
to the executive to punish any person incase of voluntarydisclosure of official secrets
without any exception being made with respect to publicinterest or otherwise. The
information may be disclosed only to such persons as the lawauthorises or to a court of
justice or to any person to whom it is in the interests of thestate his duty to
communicate.8.The punishment provided is imprisonment which might
extend to 3 years or fine or both. The same has to be decided by court.9.Also, no
court may take cognisance of such cases unless they are brought to
its notice by the government or any officer who is authorised to do so.10.The Indian Act
is largely based on the English Act of 1911.

7.4 Right to Information Act, 2005

1.Right to information forms part of the fundamental right to speech and
expression andthus must be guaranteed to all citizens. Another reason for the existence of
such right isdue to the maxim-justice should not only be done but also must be seen to be done.

2.However, secrecy may be kept in cases involving public security or national
interest.

3.Reasons for requirement of an open government -(a) To ensure active
participation of the people in the government.(b) In a democracy, the government is answerable
to the people. In order that the peopleexer ci se such r i ght , t hey must have a
r i ght t o know about al l t he pol i ci es of t he government.(c) Increase in
state functions due to the coming in of the concept of welfare state, it isnecessary
that all information be given to the public so that the state does not
actarbitrarily.

Unit VIII- Ombudsman in India: Lokpal and Lok Ayukta1.

An ombudsman is essentially a mechanism created by the legislature in order to
controlthe executive especially civil servants.

2.Such an office is created primarily because due to the increase in
executive functionswhich has allowed problems such as bias, corruption, etc. to creep in.

3.The ombudsman helps checking administrative excesses, protects interests of
citizensand helps redress their grievances.

4.According to Garner, an ombudsman is an officer of Parliament, having as his
primaryfunction, the duty of acting as an agent of parliament for the purpose of
safeguardingcitizens against abuse or misuse of administrative function by the executive.
5.This institution first started in Scandinavian countries with Sweden
being the first in1809 to implement the same. It was then followed by Finland, Norway,
England, NewZealand, India, Australia, etc.

6.In England, such powers are generally exercised by a Parliamentary
Commissioner whois appointed by the Crown and holds office till he attains 65
years of age. He can beremoved only by an address of both houses of Parliament.
7.In India, there is no such provision at the central level. However, Lok Ayuktas do
existin various states.
8.Need for ombudsman-(a) Judicial control is not effective as the judiciary
cannot go into the merits of anydecision given by the administration. It can merely quash
an administrative decision onthe grounds that it is not in accordance with the
law such as ultra vires, malafides, irrelevant considerations, patent error in the law,
etc.(b) It is very difficult to prove the abovementioned grounds and the courts generally donot
prefer asking administrative authorities to produce reports and files.
Thus, theentire burden lies on the individual challenging the order to prove his case.(c) The
legislature generally does not lay down standards which are to be followed bythe
administration while framing rules, orders, etc. It might so happen that
somethingin a statute may be permissive for the administration to do but not
mandatory. Theadministration cannot be questioned in this case even if it does not
do such thing in public interest as the same is not
mandatory.( d ) Al s o , i n wr i t p e t i t i o n s wh i c h i s t h e mo s t c o mmo
n wa y o f c h a l l e n g i n g a n administrative action, courts rely primarily on affidavits
filed by the parties rather thanoral testimony and cross examination. Such affidavits
generally seek to conceal morethan they reveal.(e) The administration cannot also be
compelled to give reasons for decisions taken byit beyond the principles of natural justice.(f)
Further, judicial procedure is very time consuming and expensive. It regards
theengaging of counsels as well which many people cannot afford.(g) Also, technically the
legislature being a representative of the people should exercisea check on the
administration. But, this is not possible owing to a multi-party systemand party
politics because of which now it is the executive which exercises power over the
legislature.(h) The legislature is always overburdened and
focuses more on legislation andformulation of policies rather than exercising a check
on the administration.
9.The creation of a system of ombudsman in India has been a failure so far atleast
at thecentre.
10.In 1966, the Administrative Reforms Commission suggested the creation
of such anoffice in its report.
11.In 1968, a Bill was introduced in the Lok Sabha called the Lok Ayuktas Bill but
beforeit could be placed before the Rajya Sabha, the Lok Sabha was dissolved and
the Billcollapsed.

12.Another attempt was made with the Central Bill of 1971 but again the Lok
Sabha wasdissolved.

13.A third and final attempt was made in 1977 with the Lokpal Bill but again it
could not be passed due to the dissolution of the Lok Sabha.

14. However, t hi s syst em i s bei ng f ol l owed i n several st at es of I n
di a l i ke Ori ssa, Maharashtra, Rajasthan, Gujarat, Karnataka, Bihar, Uttar
Pradesh, Madhya Pradesh,Himachal Pradesh and Andhra Pradesh on the model of the
1971 Central Bill.

15.It has been stated that such an institution may be created in
countries with
a small popul ati on. I n a nat i on l i ke I ndi a whi ch has a l ar ge popul a
t i on, t he of f i ce of ombudsman would be overburdened with cases of
maladministration and hence thesystem of judicial review is best.

16.Also, the ombudsman only has powers of investigation, reporting matters and
imposingfunctioning. It cannot act as a super administrator and enforce its decisions.