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WRITS

ADMINISTRATIVE LAW
IIIRD YEAR
VIITH TRIMESTER
DATE OF SUBMISSION: 10TH SEPTEMBER, 2014

Amber Sengar
ID: 1959

TABLE OF CONTENTS
Introduction................................................................................................................................4
Research Methodology...............................................................................................................5
Separation of Powers between the Judiciary and the Executive................................................6
Provisions of Constitution:.....................................................................................................6
Other Laws.............................................................................................................................7
Against whom a Writ can be Issued.......................................................................................7
Writ: A Public Remedy..............................................................................................................9
The duty to give reasons:.....................................................................................................11
Different Writs: Their Applicability and Limitations...............................................................13
Habeas Corpus.....................................................................................................................13
Prohibition............................................................................................................................13
Certiorari..............................................................................................................................13
Mandamus............................................................................................................................15
Quo warranto........................................................................................................................15
Conclusion................................................................................................................................17
Bibliography.............................................................................................................................18

TABLE
TABLE

OF

OF

AUTHORITIES

CASES
INDIAN CASES

Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487

Central Inland Water Transport Corporation Limited v. Brojo Nath, AIR 1986 SC
1571

Champa Kumari Singhi and another v. The Member Board of Revenue, West Bengal
and others, (1970) 1 SCC 404.

Dwarka Nath v. Income Tax Officer, Special Circle, D Ward, Kanpur and another,
AIR 1966 SC 81.
Gurbachan Singh and another v. Union of India and another, (1996) 3 SCC 117.
Indian Express Newspapers (Bombay) Private Limited v. Union of India, AIR 1986
SC 546.
Isha Beevi and others v. Tax Recovery Officer and others, AIR 1975 SC 2135.
I.M Chockalingam v. Commissioner of Income Tax, Madras, AIR 1963 SC 1456.
Minerva Talkies, Bangalore v. State of Karnataka, AIR 1988 SC 526.

Satish Chandra and another v. Registrar of Co-operatives Societies, Delhi and others,
(1994) 4 SCC 332.

Smt. Rakanyadevi v. The State of Karnataka, AIR 1980 Kant 182.


State of Maharashtra v. Salem Hasan Khan, (1989) 2 SCC 317.

State of Gujarat v. Ambalal, AIR 1976 SC 2001.

FOREIGN CASES

R v. Criminal Injuries Compensation Board, Ex Parte Lain, [1967] 2 All ER 770.

R v. London Borough Council of Hillington, ex parte Royco Homes Ltd., [1974] 2 All
ER 643.
In re Gilmores Application, [1957] 1 All ER 796.
R v. Electricity Commissioners, ex.p.London Electricity Joint Committee (1920)
Limited, (1924) 93 L.J.K. 390

R v. Paddington Valuation Officer and another, ex parte Peachey Property


Corporation, Ltd., [1965] 2 All ER 836.
Ex Parte Fry, [1954] 2 All ER 118.

R v. Metropolitan Magistrate, Ex Parte Blackburn, [1968] 1 All ER 763.


R v. Askaw and others, (1768) 4 Burrow 2186, as cited in Supra note 55, at 379.

TABLE

OF

STATUTES

Constitution of India, 1950.

INTRODUCTION
The main point of distinction between administrative law and all other laws is the
extent of its application, and control that is exercised by the Courts over these power of the
administrative bodies when they are related to the citizens. This may be regulated by ordinary
Courts or with the Courts having special jurisdiction over such matters.1
It has always been claimed that when the rights of the government are widely stressed
then there is a threat to the rights of the individuals. The fundamental rights are restricted
through the usage of public order or that of the due process of law, and in these cases the
Courts may or may not have the jurisdiction to look into the matter as to whether there is a
violation of such rights or not.2
Separation of powers has been the important concept of modern democracy. This has
been considered as one of the basic principles of democratic governance, thus there has to be
administrative independence from judicial review by the ordinary Courts. Generally, there are
three wings performing three different functions: Legislature, Executive and Judiciary. At the
same time, if these three wings are totally independent of each other, then there would be no
protection against the tyranny of the administrative wing. Due to this, now the Courts have
been empowered with the power of judicial review of the administrative actions.3
Administrative law provides for a mechanism to control the administration by an
outside agency so that there is no injustice done to the individual, as well as there is enough
freedom for the administration to operate independent of any other body. Due to the
increasing powers of the state it has been observed by Lord Denning that, properly exercised
the new powers of the executive lead to a Welfare State, but abused they lead to the
Totalitarian State. There are for the same purpose many remedies that are available with the

1 O. Hood Phillips and Paul Jackson, O. Hood Phillips Constitutional and Administrative
Law (6th ed., London: Sweet and Maxwell, 1978) at 11.
2 Id, at 16.

aggrieved individual, and a significant one among them is that of the prerogative writs.4

RESEARCH METHODOLOGY
AIMS AND OBJECTIVES:
The basic aim of this project is to study the significance of writs in administrative actions.
Also, the paper tries to critically understand the deeper importance of writs in the current
scenario by highlighting the various interpretations taken by the courts.
SCOPE AND LIMITATIONS:
The researcher has laid particular stress on examining the legal issues on the laws relating to
writs in relation to administrative actions and has not dealt with writs in particular so as to
restrict the scope to much relevance to the course. The researcher has been forced to limit the
examination to a certain key issues and regrets the lack of a detailed analysis due to adhering
to the prescribed word limit
STYLE OF WRITING:
The style of writing in this paper is primarily analytical as the researcher has tried to identify
and discuss the main issues of the concerned law; this has been fused with a descriptive mode
of writing wherever necessary.
MODE OF CITATION:
The researcher has followed a uniform mode of citation. Any divergence is due to insufficient
information available or due to the mode of citation prescribed in the book.
3 Eric Barendt, Separation of Powers and Constitutional Government, [1995] P.L. 599.
Indian Express Newspapers (Bombay) Private Limited v. Union of India, AIR 1986 SC 546.
The Central Government issued an order under s.25 of Customs Act, 1962, withdrawing all
the exemptions that were granted to the newspaper from the customs duty. Due to this there
was heavy burden on the newspaper, as not only the duty exemption was removed, there was
a positive increase in the same. Such a withdrawal was challenged under Art.32 on the
ground that there was a restriction placed on the fundamental right of freedom of speech and
expression guaranteed under Art.19 (1)(a). The Court looked into the fact whether such an
order was within the purview of the powers that are granted to the executive or not? After the
consideration of all the relevant factors, the Court came to the conclusion that the government
should have a reconsider the order of removing the exemption.
4 C.K.Takwani, Lectures on Administrative Law (3rd ed., Lucknow: Eastern Book Company,
1998) at 289.

RESEARCH QUESTIONS:
1. What is the need for writs?
2. What are the various provisions in Indian Constitution which provides for issuing writs?
3. Against whom can a writ be issued?
4. What are the various remedies of writs owing to various administrative actions?
5. What are the limitations and applications of various writs?
SOURCES OF DATA:
Secondary resources in the form of books and articles have been relied upon.

SEPARATION OF POWERS BETWEEN THE JUDICIARY


AND THE

EXECUTIVE

The judicial control over administrative activities is fairly wide and it continues to expand.
Supreme Courts and High Courts exercise their jurisdiction through the traditional writs. The
composition and structure of the judiciary gives it the capacity to remain independent. The
judges in India are not elected and their tenures are fixed and their salaries are also not subject
to popular votes.5 In a democracy like India the judiciary is instituted as the sole arbiter of the
constitution, the authoritative interpreter of the will of the people and the sovereign protector
of the freedom and liberty.6 It is the ultimate authority to restrain any exercise of absolute and
arbitrary power by administrative bodies.7
PROVISIONS

OF

CONSTITUTION:

The devise for judicial review has been enacted in Article 13 clause 1 and 2 of the
Constitution of India.8 This protection goes much beyond protecting fundamental rights and
includes the administrative excesses by the administrative authorities and tribunals. 9 Article
32 which was called the very soul and heart of the constitution by Dr. Ambedkar empowers
the Supreme Court to issue any writ, order or direction for the enforcement of fundamental
5 Paras Diwan, Towards New Desposition?(Allahabad: Allahabad Law Agency, 1992) at 172.
6 Id at 173.
7 M.P.Jain and S.N.Jain, Principles of Administrative Law (Agra: Wadhwa and Company Law Publishers, 1986)
at 315.

rights. As a general rule a person whose fundamental rights are violated can apply to the
Supreme Court under Article 32 of the Constitution of India and generally the rights that
could be enforced under Article 32 must be the rights of the petitioner himself who
complaints of infraction of such rights and approaches the court for relief.10
The same principle applies to the exercise of jurisdiction under Article 226 by the High Court.
The writ jurisdiction of the High Court under Article 226 is fairly comprehensive. 11 The reason
for conferring this jurisdiction on the High Court was to provide a quick and inexpensive
remedy for the enforcement of rights. The provisions of Article 226 were interpreted to contain
two fold limitations: the writs issued by a High Court could not run beyond its territorial
jurisdiction and the person or the authority to whom the writ etc. was issued must be within
those territories. However the 15th amendment brought positive changes to Article 226 by
inserting clause (1A) under which the jurisdiction conferred on the High Court was based on
the basis of cause of action.12
OTHER LAWS
Also Section 45 of the Specific Relief Act 1887 authorises courts to make orders requiring any
specific act to be done by any person holding a public office, whether of permanent or
temporary nature, or by nay corporation or inferior court of jurisdiction. 13 Under section 491 of
the Old Criminal Procedure Code, a direction in the nature of a writ of habeas corpus could be
issued whenever an individual was detained illegally by the government or by any individual.
This provision too was repealed in view of the Superior provision in Articles 32 and 226 of the
Constitution.14

8 All laws in force in the territory of India immediately before the commencement of the
constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the
extent of such inconsistency, be void. Article 13 Clause 2. The State shall not make any law
which takes away or abridges the rights conferred by the Part and any law made in
contravention, be void. Article 13 Clause 2, Constitution of India, 1950.
9Supra note 3, at 175.
10 Article 32, Constitution of India, 1950.
11 Article 226, Constitution of India, 1950.
12 Supra note 3, at 177.
13 Supra note 3, at 178.
14 Supra note 3, at176.

AGAINST

WHOM A

WRIT

CAN BE ISSUED

While deciding whether a writ would lie in given circumstances, the first injury to be made is
against whom a writ can be issued. Ordinarily a writ will lie against the State and statutory
bodies and persons charged with public duties. Though private parties are not immune from
the writ jurisdiction of the Supreme Court as well as High Court, issuance of a writ to them
would require exceptional circumstances.
State:
Following are the tests that have been evolved to ascertain whether an institution is an
instrumentality of the State15:
The financial resources of the state are the main funding resource for such a body;
The functions of such a body should be similar to that of the government;
The plenary control over the body should be with the government;
Some element or authority should vest with the government.

As a general rule a writ lies against against all those bodies that are clothed as state
under the Art.12 of the Constitution, as well as statutory authorities which are the
instrumentalities of the state.1617 Following are the tests that have been evolved to ascertain
whether an institution is an instrumentality of the State18:
The financial resources of the state are the main funding resource for such a body;
The functions of such a body should be similar to that of the government;
The plenary control over the body should be with the government;
Some element or authority should vest with the government.
The definition is inclusive and thus includes:
The Government and Parliament of India;
The Government and the Legislature of each of the States;

15 Supra note 43, at 424.


16 Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487.
17 In this part, unless the context otherwise requires, the state includes the Government
and Parliament of India and the Government and the Legislature of each of the States and all
local or other authorities within the territory of India or under the control of the Government
of India Article12, Constitution of India, 1950.
18 Supra note 43, at 424.

All local or other authorities within the territory of India and


All local or other authorities under the control of the Government of India. 19

The state consists of three organs 1) the legislature 2) the executive and 3) the Judiciary. Therefore as
a general rule, a writ may be issued against the Parliament or the legislature, the Executive or the
Government; the Judiciary or the courts and local or other authorities. 20

WRIT: A PUBLIC REMEDY


The importance of the writ jurisdiction has been very clearly identified by
Chandrachud CJ as follows:
The jurisdiction conferred on the Supreme Court by Art.32 is an important part
of the basic structure of the Constitution because it is meaningless to confer
fundamental rights without providing an effective remedy for their enforcement, if
and when they are violated.
The recourse that is taken in England and in India when there is some wrong done by
one citizen to another is that of the Courts, the same is followed when the person is aggrieved
by the decisions of the administrative authorities. These are generally in the form of writs 21
19 Supra note 1, at 387.
20 Supra note 1, at 387.
21

There was the concept of the Prerogative writs that could be brought by the King against his officers
to ensure that they are performing their functions properly. There are certain restrictions that have been
placed before these writs can be used except the writ of Habeas corpus, such are enumerated as
follows:It has a particular procedure that cannot be used along with any other kind of remedy like that
of damages or injunction;
It can be obtained at the discretion of the Court if the case is shown to be fit enough for the writ to be
issued;
There is a time limit for the writ of certiorari.

and they are as follows: certiorari, prohibition, mandamus, and others 22. There are certain
powers that have been vested with the Courts to see to the fact that the public authorities do
not exceed their powers and for this purpose there are various remedies that are available
with the Courts.23
Generally there is a discretion that is provided with the administrative bodies to
exercise their powers, and there is a parliamentary of administrative sanction behind such
discretion of the powers; in case there is no discretion then the power has to be exercised in a
prescribed manner. In the latter case it becomes the duty of the officer to perform such
required function, but this duty is generally enforceable through private initiative. The Courts
have the power to determine as to the fact that whether or not the power was exercised in a
proper fashion, as being authorised by law24. Also the Courts are empowered to take
necessary action when the power is not exercised in a proper manner, like there is a violation
of principles of natural justice, or when the act is illegal. The jurisdiction of the Courts is not
taken away by the fact that the rules were placed before and then sanctioned by the
Parliament. The main reason behind this is the fact that it is the rules that have been
sanctioned by the Parliament and not the specific act taken by the concerned officer under the
act.25
Under the Indian Constitution the right to move to the SC for the enforcement of the
fundamental rights itself has become a guaranteed right, this is conditioned by the
proceedings that are provided for the enforcement of rights that are conferred under Part III
Supra note 2, at 620.

22 Garners Administrative Law (B.L.Jones ed., 7th ed., London: Butterworths, 1989) at 107.
23 These writs are discretionary in nature for the Courts to issue. Rt. Hon. Sir Thomas
Bingham, Should Public law remedies be discretionary, [1991] P.L. 64.
24 Minerva Talkies, Bangalore v. State of Karnataka, AIR 1988 SC 526. Under the Karnataka
Cinemas (Regulation) Act, 1964, there were rules that were framed by the State government
that placed a restriction on the number of shows to only four shows in a day. This restriction
was challenged in the High Court on the basis that the authority did not had the power to
frame such a rule, and needs to be quashed. State respondent with detailed studies that
explained as to the problems of having more then fours shows a day, and that they had a
negative impact on the hygiene that has to be maintained by the cinema theatres, as well as
the impact on the viewers. The Court looked into the fact that the Act also provided for the
policy that had to be followed by the authorities while framing the rules, and they were much
wider then merely restricting the number of shows in a day, and held that the restriction was
valid in nature. See also, Smt. Rakanyadevi v. The State of Karnataka, AIR 1980 Kant 182.
25 Supra note 2, at 595.

of the Constitution. Generally, the SC does not go into the questions of facts under this
provision, at the same time, there is no bar on the Court to do the same. Adding to that, there
is also a provision facilitating the applicant, the petition will not be thrown out simply
because appropriate remedy is not prayed for.26
Under Art.226, the challenge in the HC can look into not only violation of the
fundamental rights27, but also the challenges as to the validity of any law whose provisions
that may not have any direct impact upon the fundamental rights, but may have such an
impact as to restricting the fundamental rights.28
The power that is granted to the High Courts under Art.226 of the Constitution has
been considered as wider than that of Art.32 for the Supreme Court. The reasons for the same
are various like the widening of the scope by the use of the words like for any other
purpose thereby facilitating the enforcement of statutory as well as common law rights; if
any aggrieved person is unable to get the remedy at the High Court, then there still lies an
appeal to the Supreme Court against such a decision; at the same time the writ that has been
decided by the High Courts on merits and by giving a speaking order would bar the same
parties to move to the Supreme Court seeking the same remedy due to the principle of res
judicata. 29
At the same time, following conditions need to be fulfilled before the writ is sought
from the SC/HC30:
26 V.N.Shuklas Constitution of India (M.P.Singh ed., 9th ed., Lucknow: Eastern Book
Company, 1998) at 277-9.
27Central Inland Water Transport Corporation Limited v. Brojo Nath, AIR 1986 SC 1571.
There was a set of rules that were governing the activities of the Corporation and they
provided that the corporation would have the power to terminate the services of any
employee on a notice of three months or after the payment of the salary for the three months
along with all the perks that are given to the employees. This rule was challenged as arbitrary
and would empower to discriminate between the employees as well, there was no fair chance
for the employees to present their own case. Though the corporation may have hundreds of
applicants waiting for the job, there were no hundreds of jobs that were waiting for the person
so removed from the office. When the jurisdiction of the High Court was invoked under
Art.226 challenging the arbitrariness of the rule, the Court upheld the contention and held that
the rule violates Art.14 of the Constitution.
28 Id at 283.
29 S.P.Sathe, Administrative Law (6th ed., New Delhi: Butterworths, 1999) at 363.
30 Satish Chandra and another v. Registrar of Co-operatives Societies, Delhi and others,
(1994) 4 SCC 332. In this case it was also held that it was not a fundamental right to be a
member of a co-operative society.

All local remedies should have been exhausted;


All statutory remedies should have been exhausted;
There should be no application of the principle of (constructive) res judicata.
By the 42nd amendment to the Constitution in 1976, there were far reaching changes
that were made, which stated that only Supreme Court would look into the validity of the
Central laws, and was barred from entertaining the challenges as to the validity of the State
laws under Art.32 of the Constitution. Thus there was clear division as to the matters between
both the Courts, and was done to expedite the matters31.
There also arises the question of locus standii as to the filing of the writ petition
challenging the order of the administrative authorities. 32 In such cases the right that has been
violated should be an individual right of the person so aggrieved by the order, or whose rights
have been finally decided by the Court, or violation of any of the fundamental rights that are
conferred by the Constitution. Still, there has been an extension of the principle of locus
standii as far as the enforcement of fundamental rights are concerned. 33
THE

DUTY TO GIVE REASONS:

There arises another question before there can be any judicial review of the actions that are
taken by the executive, and that is, is the executive bound to give reasons for the decisions
that are taken by them? There are two views as to the same, according to broad one, reasons
have to be given for any decision that is taken by the executive. According to the narrow
view, reasons should be accorded only for the decisions that are serious in nature, and when it
is necessary for the aggrieved person to know the reason as to whether the conclusion was
reasonable or not. At the end, it can be stated that the reasons should be given in the
following circumstances34:
Where the conclusion is prima facie unreasonable;
31 Id at 375.
32 This has to be differentiated from the provision of appeal to the HC that is provided by the
statute itself. See for example, s.173, Motor Vehicles Act, 1988. It has been held that when
there is a provision for the alternate remedy, then the writ would not be admitted. Gurbachan
Singh and another v. Union of India and another, (1996) 3 SCC 117.
33 Supra note 43, at 401.
34 N.R.Campbell, The duty to give reasons in administrative law, [1994] P.L. 184.

Prima facie unlawful;


Where there is conflict of evidence, and it is not clear as to which evidence has been
relied upon.
By stating reasons, the Courts have ensured that there is application of mind by the executive
before the decision has been given35. It is observed by many that judicial review is one of the
most important factors that have contributed to the control of the administrative authorities.36

35 State of Maharashtra v. Salem Hasan Khan, (1989) 2 SCC 317. Respondent was served
with the orders of externment from two of the districts of Maharashtra and the reason that
was associated with the same was that he was involved in various illegal activities, as well as
riots. He alleged that as the order of the State government was without any reasons, it should
be held as void and thus the Court should quash the order of the government. It was held by
the High Court that absence of reasons indicated that there was no application of mind by the
State government. The Supreme Court reversed this decision of the High Court on the ground
that in such cases giving of reasons would go against the purpose of such powers with the
state government. It also stated that it was sufficient that the material allegations were placed
before him.
36 Soli J.Sorabjee, Obliging Government to control itself: Developments in Indian
Administrative Law, [1994] P.L. 39.

DIFFERENT WRITS: THEIR APPLICABILITY AND


LIMITATIONS
HABEAS CORPUS
This is a writ in nature of an order that calls upon the person who has detained another person
to produce the latter before the Court so that it examined that whether the detention has been
legal or otherwise, and in case of latter, to release the person so illegally detained. 37 Due to
individual liberty that is attached to the habeas corpus petition, the principle of res judicata is
not strictly applicable. Also that the rules as to locus standii is also very liberal with respect to
this writ of habeas corpus.
PROHIBITION
This writ is sought when the administrative process is still in motion. This is applicable for
any authority discharging judicial functions.38This would be granted by the superior Court
(HC/SC) so as to restrict the inferior agency from exceeding or abusing powers. This
application should be brought before the action is already taken place, as after the action has
taken place, it will be the writ of certiorari that would be more effective remedy, and this
would be explained in the next section.39
CERTIORARI
This writ is the mechanism through which the superior Court is able to restrict the use of
power by the sub-ordinate judiciary. For the exercise of the same, the records are called from
the sub-ordinate judiciary to the superior Courts and then the legal inquiry would be made as
to the validity of the decision that is taken by the Court. If such proceedings were found to be
illegal, and then the same would be quashed.40
37 Supra note 43, at 427.
38 Supra note 43, at 429. For the same, the applicant has to prove that there is total absence
of jurisdiction with the concerned authority and ought to be stopped at the earliest. Isha Beevi
and others v. Tax Recovery Officer and others, AIR 1975 SC 2135.
39 Supra note 38, at 222.
40 Supra note 38, at 217.

Certiorari is a discretionary remedy41, and the same is granted on the conduct being on
merit, thus the same would not be granted where very technical matters are taken up. At the
same time, before applying for this remedy all local remedies have to be exhausted. It would
be granted when there is no equally effective remedy.42
This writ is sought to quash the proceedings that already have taken place. This is
applied in cases where the authority is discharging the quasi-judicial functions 43. This is not
applicable against the proceeding in the civil Court, but only to the proceedings of a
tribunal.44 The scope of this writ has been widening and in England it is extended to licensing
authorities, board of education, local planning authority45, local legal aid committee, medical
appeal tribunal46, the registrar of companies, and the revenue board.47
Both the remedies of prohibition and certiorari can be applied simultaneously, in
which case prohibition may be sought to stop the administrative tribunal from exceeding the
jurisdiction, and also to quash the order that are already have been given by the tribunal.48
Summarising the same, grounds of awarding writ of certiorari are as follows:
41 It has been held that the writ of certiorari is a discretionary remedy, and cannot be claimed
as a matter of right, for the same there has to be sufficient grounds for the issue of writ. This
was the case where the authorities decided not to maintain a particular road, and the residents
objected this. They claimed that this was decided without taking into consideration the
objections that were raised by the residents. This unilateral decision by the authorities was
annulled by the Court using the writ of Certiorari in the case of R v. Justices of Surrey, (1870)
39 L.J.M.C 145, as cited in O. Hood Phillips, Leading cases and administrative law (3rd ed.,
London: Sweet and Maxwell, 1967) at 359.
42 Supra note 38, at 220.
43 R v. Criminal Injuries Compensation Board, Ex Parte Lain, [1967] 2 All ER 770. In this
case, the writ was issued due to the fact the respondent body was a quasi-judicial body
deciding as to the compensation of the constable who died while on duty. Dwarka Nath v.
Income Tax Officer, Special Circle, D Ward, Kanpur and another, AIR 1966 SC 81.
44 Supra note 43, at 429.
45 R v. London Borough Council of Hillington, ex parte Royco Homes Ltd., [1974] 2 All ER
643.
46 In re Gilmores Application, [1957] 1 All ER 796.
47 Supra note 38, at 218. Champa Kumari Singhi and another v. The Member Board of
Revenue, West Bengal and others, (1970) 1 SCC 404, where the writ was filed for quashing
the decision of the revenue board and prohibiting them to issue recovery certificates.
48 R v. Electricity Commissioners, ex.p.London Electricity Joint Committee (1920) Limited,
(1924) 93 L.J.K. 390, as cited in Supra note 55, at 361. In this case the petitioners challenged
the powers that were conferred on the Electricity Commissioners to delegate their powers.

a) Lack of jurisdiction;
b) There is error of law on the face of the record49;
c) There is violation of the principles of natural justice.
d) Such authority should be exercising quasi-judicial function;
e) Such a decision should be binding on the parties between whom the matter is
decided.

MANDAMUS
The Crown is bound neither to deny justice to anybody, nor to delay anybody in obtaining
justice. If therefore, there is no other means of obtaining justice, the writ of Mandamus is
granted to enable justice to be done.
The penalty for disobedience in such cases is contempt of Court. The order may be
issued to any person or body to carry on the public duty, thus it is a residuary remedy that has
to be applied when all other remedies would not be successful50.
The applicant must have a legal right that is sought to enforce through the writ. This
writ would not be issued where the matter is at the discretion of the authority. Thus, the
applicant must have a legal right of performance of a legal duty, and that duty must be
towards the person seeking such a remedy. At the same time, this writ would not be issued in
the anticipation of injury.51 This writ commands the person against whom it is issued to
perform a public duty that is imposed by law, as the need for this writ arises when the legally
required action is not taken by the concerned authorities 52. This duty to act may arise from the
statute or otherwise too. This can be issued to bodies that exercise discretionary power, or to

49 R v. Paddington Valuation Officer and another, ex parte Peachey Property Corporation,


Ltd., [1965] 2 All ER 836. At the same time, this writ would not lay in the matters that are
about the internal discipline of the administrative body. Ex Parte Fry, [1954] 2 All ER 118.
50 Supra note 2, at 623.
51 Supra note 43, at 432.
52 When the law provided that the authorities should take action when there was a complaint
made by any citizen as to gaming in the locality. When there was no such action taken after
there were repeated complaints that were filed by the petitioner at various levels, there would
lay the writ of mandamus. The reason being that the concerned authorities had failed to
perform their statutory duty. R v. Metropolitan Magistrate, Ex Parte Blackburn, [1968] 1 All
ER 763.

have proper consideration of the matter53, and in cases of abuses, to use the same properly.54

QUO

WARRANTO

This writ leads to an enquiry in which it is ascertained as to whether the person holding an
independent substantive office has any legal right or not to hold such office, franchise, or
liberty55. If it were found that particular person does not have the authority to hold the office,
then this writ would oust the person from the office. The locus standii in case of this writ is
more liberal, and is treated as analogous to the public interest litigation, as only a competent
person should hold the office.

53 The Court cannot direct the college to select a particular person, but may direct the
authorities to apply the discretion in a proper fashion. This facilitates that there is no arbitrary
use of power. R v. Askaw and others, (1768) 4 Burrow 2186, as cited in Supra note 55, at
379.
54Supra note 38, at 226.
55Supra note 43, at 438.

CONCLUSION
It has been held by the Supreme Court that any restriction that is placed upon the fundamental
rights without hearing is a jurisdictional error. The Courts cannot validate any order that has
been unauthorised and invalid in nature, or where principles of natural justice are not followed,
as violation of the same are now construed as violation of the Constitution itself 56. There are
many matters that are brought before the Courts that are related to the administrative actions,
and there is a requirement of judicial review.57 Moreover, in a democracy like India the
judiciary is instituted as the sole arbiter of the constitution, the authoritative interpreter of the
will of the people and the sovereign protector of the freedom and liberty.58 It is the ultimate
authority to restrain any exercise of absolute and arbitrary power by administrative bodies.
It also became clear that the remedy of writs is taken by the aggrieved parties when
there is no other remedy that is either provided by the Act or otherwise by any other law. Also
that this plays an important role in keeping the administrative bodies under control as they
remain accountable for the decisions that are taken by them. This facilitates the smooth
governance as well, ensuring that there remains a remedy for those who are aggrieved by the
decision that are taken by the executive and has an impact upon the exercise of the
fundamental rights.

56 State of Gujarat v. Ambalal, AIR 1976 SC 2001. There was acquisition of land by the
government for the purposes of industrial estate for the small-scale industries. For the same
notification was issued by the government under the Land Acquisition Act, 1894. The
respondents were contesting the notifications that were issued by the government, as they did
not provide for right to be heard for the aggrieved parties, and thus, the principles of natural
justice were not followed. To this end the respondents had filed the writ petitions in the High
Court of Gujarat, which allowed the petitions and set aside the notification, and issued a
mandamus commanding. The reason being that there was violation of the principles of
natural justice that are now considered as part of the Constitution. Supreme Court also held
that such rules have to be in conformity with the principles of natural justice. See also I.M
Chockalingam v. Commissioner of Income Tax, Madras, AIR 1963 SC 1456.
57 M.P.Singh, Administrative Action in violation of Natural justice affecting fundamental
rights: Void or voidable, (1979) 2 SCC (Jour) 1.
58 Id at 173.

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