basavashree.

in

Basavashree College of Law

182–232 minutes

ADMINISTRATIVE LAW

No Particulars
UNIT - I
1 Function : Nature and scope of Administrative Law
2 Relation with constitution law separation of powers and concepts
3 Rule of Law - Cousl'd Etate
4 Classification of Administrations Action and functions
5 Administrative direction and dis creation
UNIT - II
6 Legislative power of the administration
7 Extent of delegation and control over delegated legislation
8 Sub - Delegation
9 Judicial
10 Parliamentary control over delegated and legislation
UNIT - III
11 Judicial Power of Administration Nature of procedure
12 Principles and procedure
13 Effect of non-compliance with principle of natural justice
14 Exceptions to principle of natural justice
UNIT - IV
15 Judicial control of Administrative Action
16 Writs
17 Principles and Procedure
18 Public Law review and private law review of administration action
19 Liability of state - Torts
20 Contract promissory estoppels Government Privileges
21 Rights of information
22 Doctrine of Legitimate expectation
23 Doctrine of Accountability Waiver
24 Doctrine of Proportionality
UNIT - V
25 Corporations and public under taking
26 Commission of Enquiry Ombudsman in India (Lokpal and Lokayukta)
27 Central Vigilance commission
28 Parliamentary committees Civil services in India
29 Accountability and responsibility
30 Problems of Prospective
31 Administrative deviance corruption mal administration
32 Control mechanism of Accountability.

UNIT - I

INTRODUCTION

The most significant and outstanding development of the twentieth century id

the rapid growth of administrative law. It does not, however, mean that there
was no administrative law before this century. Since many years, in one form or
the other, it has been very much in existence. But in this century, the philosophy
as to the role and function of the State has undergone a radical change. The
governmental functions have multiplied by leaps and bounds. Today, the State
is not merely a police State, exercising sovereign functions, but as a progressive
democratic State, it seeks to ensure social security and social welfare for the
common ma, regulates the industrial relations, exercises control over the
production, manufacture and distribution of essential commodities, starts May
enterprises. Tries to achieve equality for all and ensures equal pay for equal
work.

NATURE AND SCOPE OF ADMINISTRATIVE LAW

Administrative Law deals with the powers of the administrative authorities, the
manner in which the powers are exercised and the remedies which are available
to the aggrieved persons, when those powers are abused by these authorities.

As discussed above, the administrative process has come to stay and it has to be
accepted as a necessary evil in all progressive societies, particularly in a welfare
State, where many schemes for the progress of society are prepared and
administered by the Government. The execution and implementation of this
programmer may adversely affect the rights of individual subjects. As has been
rightly observed by Lord Denning: "Properly exercised, the new powers of the
executive lead to the Welfare State; but abused they lead to the Totalitarian
State".

The scope we can discuss under four limbs:

1) The first limb deals with the composition and powers of organs of
administration. This proposition is subject to the qualification stated earlier that
the topics falling under public administration are to be excluded. The term
'organs of administration' has been used in a broad sense and includes all kinds
of public or administrative authorities.

2) The second limb refers to the limits on the powers on administrative

authorities. These limits may either be express or implied.

3) The third limb refers to the procedures used in exercising those powers.
The study of Administrative Law of to-day seeks to emphasize not only the
extraneous control but also the processes and procedures which the
administrative authorities themselves follow in the exercise of their powers.

4) The fourth limb refers to the control of the Administration through judicial
and other means.

Under this head would fall judicial as well as extra-judicial means of controlling
the Administration, e.g. tribunals, ombudsman, etc. it also includes redressed of
individual grievances against the Administration.

GROWTH OF ADMINISTRATIVE LAW

Administrative law has been characterized as the most outstanding legal

development of the twentieth century. It does not mean however that there was
no administrative law in any country before the twentieth century. Being related
to public administration, Administrative law should be deemed to have been in
existence in one form or another in every country having some form of
Government.

In India itself Administrative law can be traced to the well organized and
centralized administration under the Mauryas and Guptas, several centuries
before the Chries, following through the administrative system of the Mughals
to the administration under the East India Company, the precursor of the
modern administrative system.

What the opening statement therefore, signifies is that Administrative Law

has grown and developed tremendously, in quantity, quality and relative
significance, in the twentieth century, that it has become more articulate and
definite as a system in democratic countries that it has assumed a more
recognizable form in the present century so much so that it has come to be
identified as a branch of public law by itself, distinct and separate from
constitutional Law, a fit subject-matter of independent study and investigation
in its own right.
 The rapid growth of Administrative law in modern times is the direct
result of the growth of administrative powers and functions. This development
can partly be attributed to the critical international and internal situation
creating a sense of insecurity which compels the Government to acquire vast
powers to provide for the deface and internal security of the country.

The ruling political gospel of the nineteenth century was laissez faire
which manifested itself in the theories of individualism, individual enterprise
and self help. The philosophy envisaged minimum Government control,
maximum free enterprise and contractual freedom.

The state was characterized as the law and order state and its role was
conceived to be negative as its interest extended primarily to defending the
country from external aggression, maintaining law and order within the country
dispensing justice to its subjects and collecting a few taxes to finance these
activities.

In twentieth century social and economic policies of the Government had

significant impact on private rights of citizens; e.g. housing employment,
planning, education,, health, service, pension, manufacture of goods, etc
Traditional legislative and judicial system could not effectively solve these
problems. It resulted into increase in delegated legislation as well as
tribunalisation. Administrative laws thus become a living subject.

During the Second World War the executive powers tremendously

increased. The Defense of India Act, 1939 and the Rules made there under
conferred ample powers on the executive to interfere with life, liberty and
property of an individual with little of no judicial control over them. In addition
to this, the Government issued many orders and ordinances covering several
matters by way of administrative instructions.

Since Independence the activities and the function of the Government

have further increased. Under the Industrial Disputes Act, 1947, the minimum
Wages Act, 1948, the Factories Act 1948 and the Employees state Insurance
Act, 1948 important social security measures have been taken for those
employed in industries.

The philosophy of a welfare state has been specifically embodied in the

constitution of India. In the constitution itself provisions are made to secure to
all citizens social economic and political justice equality of status and
opportunity. The ownership and control of material resources of the society
should be so distributed as best to subserve the common good. The operation of
the economic system should not result in the concentration of wealth and means
of production. For the implementation of all these objects the state is given
power to impose reasonable restrictions even on the Fundamental Right
guaranteed by Constitution.

CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW

Sometimes, a question is asked as to whether there is any distinction

between constitutional law and administrative law. Till recently, the subject of
administrative law was dealt with and discussed in the books of constitutional
law and no separate and independent treatment was given to it. In many
definitions of administrative law, it was included in constitutional law.

Though in essence constitutional law does not differ from administrative

law in as much as both are concerned with functions of the Government and
both are a part of public law in the modern State and the sources of the both are
the same and they are thus inter-related and complementary to each other
belonging to one and the same family. Strict demarcation, therefore, is not
possible, yet there is a distinction between the two. According to Maitland,
while constitutional law deals with structure and the border rules which regulate
the function, the details of the functions are left to administrative law.

India has a written Constitution. While constitutional law deals with the
general principles relating to the organization and power of the legislature,
executive and judiciary and their functions inter se and towards the citizens
administrative law is that part of constitutional law which deals in detail with
the power and functions of the administrative authorities, including civil
services, public departments, local authorities and other statutory bodies. Thus,
while constitutional law is concerned with constitutional status of ministers and
civil servants, administrative law is concerned with the organization of the
services and the proper working of various departments of the Government.

RULES OF LAW

One of the basic principles of the English Constitution id the Rule of Law. This
doctrine is accepted in the Constitution of U.S.A, and also in the Constitution of
India. The enter basis of Administrative Law is the doctrine of the rule of law.
Sir Edward Coke, Chief Justice in James it's reign was the originator of this
concept. In a battle against the King he maintained successfully that the King
should be under God and the Law, and he established the Supremacy of the Law
against the Executive. Dicey developed this theory of Coke in his classic work
'the Law and the Constitution, published in the year 1885.

MEANING
 According to Dicey, the rule of law is one is one of the fundamental
principles of the English Legal System. In the aforesaid book, he attributed the
following three meanings to the said doctrine;

1) Supremacy of law

2) Equality before law

3) Predominance of legal spirit.

1) Supremacy of law:-

Explaining the first principle, Dicey stated that rule of law means the
absolute supremacy or predominance of regular law as opposed to the influence
of arbitrary power or wide discretionary power. It excludes the existence of
arbitrariness, of prerogative or even wide discretionary power in the part of the
Government.

2) Equality before law:-

Explaining the second principle of the rule of law, Dicey stated that there must
be equality before the law or the equal subjection of all classes to the ordinary
law of the land administered by the ordinary law courts. According to him, in
England, all persons were subject to one and the same law, and there were no
separate tribunals or special courts for officers of the Government and other
authorities.

3) Judge-made Constitution:-

Explaining the third principle, Dicey stated that in many countries rights
such as right to personal liberty, freedom from arrest, freedom to hold public
meetings, etc. are guaranteed by a written Constitution. Thus, Dicey emphasized
the role of the courts of law as guarantors of liberty and suggested that t the
rights would be secured more adequately if they were enforceable in the courts
of law than by mere declaration of those rights in a document, as in the latter
case, they can be ignored, curtailed or trampled upon.

DROIT ADMINISTRATIF

Perhaps a few wards on the Droit Administratif as prevails in France may

be apposite as reference thereto has been made at several places in the few
pages. Droit Administratif is the name given to the Administrative Law
prevailing in France. The system is itself the product of the Doctrine of
Separation of powers in the sense that judicial power is kept separate from
administrative power. Accordingly, unlike the U.S.A the doctrine has meant in
France that there should be separation between the Courts and the
Administration. Thus the system of Droit Administratif in France has resulted in
non-interference by the courts in the working of administrative authorities.

France has developed a system of administrative tribunal's distinct form

the ordinary courts which have no jurisdiction on the Administration. A person
seeking any redress against the Administration has to go to an administrative
court and not to an ordinary court.

The most significant aspect of Droit Administratif is that the ordinary

courts exercise no control over the Administration which is supervised instead
by administrative tribunals. Although called administrative tribunals these are
independe3ndt bodies. All tribunals are subject to the supervision of Conseil
d'Etat posses which acts as the court of appeal from all administrative tribunals.

The most significant aspect of Droit Administratif is that the ordinary

courts exercise no control over the Administrative tribunals, theses are
independent bodies. All tribunals are subject to the supervision of C0onseil
d'Etat which acts as the court of appeal form all administrative tribunals.

The Conseil d'Etat has been characterized as the bulwark of civil liberties,
and also the guardian of administrative morality. The system has come to be
regarded as providing an effective protection to individual rights against the
despotism of public administration. The judges of conseil d'Etat posses a high
degree of administrative expertise and so they are better able to control the
Administration that the ordinary courts where the judges are general lists and
lack expertise in the administrative field. Accordingly, judicial control of
administrative action is peripheral and lacks depth. The most outstanding
contribution made by France to legal science has been separate system of
administrative jurisdiction and administrative law created by conseil d'eata.
Most European countries like Belgium Netherlands, Italy, Spain, Portugal and
Greece follow the French practice of double jurisdiction.

The Indian Administrative Law while basically common-law oriented as

the Administration is subject to judicial has also imbibed some features of Droit
Administratif as is evident from the increasing tribunalisation of the decision
making process. Further two doctrines of Droit Administratif, viz., legitimate
expectation and proportionality have also found acceptance, to some extent, in
Indian Administrative Law.

SEPARATION OF POWER AND DEVELOPMENTS IN THE UNITED

STATES
 If the "rule of law" hampered the recognition of Administrative law in
Britain for a awhile the doctrine of Separation of power had an intimate impact
on the growth of administrative process and Administrative law in the United
States. It has been characterized as the "principal doctrinal barrier" to the
development of Administrative Law in the U.S.A.

The doctrine of Separation of Powers is implicit in the American

Constitution. It emphasizes the mutual exclusives of the three organ of the
government. According to this is doctrine, the legislature or judicial power; and
the judiciary cannot exercise the other two powers.

The form of Government in the U.S.A., characterized as the Presidential,

is based on the theory that there should be separation between the executive ad
the legislature. This is different from the system prevailing in Britain or India
was the parliamentary form of Government operates and which is based on co-
ordination of the executive and the legislature.

Of course, the doctrine of separation of powers does not apply rigorously

even in the United States, and some exceptions thereto are recognized in the
Constitution itself. For instance, a bill passed by the Congress may be vetoed by
the President, and to this extent, the President may be aid to be exercising
legislative functions. Again, certain appointments of high officials are to be
approved by the Senate, and also the treaties made by the President so do not
take effect until they are approved by the Senate; to this extent, the Senate may
be said to be exercising executive functions. This exercise of some functions of
one organ by the other organ is justified on the basis of checks and balances, i.e.
the functioning of one organ is to be checked in some measure by the other.

The doctrine of Separation has influenced, and has itself been influence
by, the growth of Administrative Law in the U.S.A. in the face of new demands
on the Government to solve many complex socio-economic problems of the
modern society; trine of "separation" has been influenced and conditioned to
some extent by this doctrine.

The strict Separation theory was dented, to some extent, when the courts
conceded that legislative power could be confrere on the executive and thus,
introduced the system of delegated legislation in the U.S.A. but, because of the
Separation Doctrine, courts have laid down that the congress cannot confer an
unlimited amount of legislative power on tan administrative organ, and that it
must itself lay down the policy which the administration is to follow while
making the rules. But the non development of legislative control over delegated
legislation in the United States through o Legislative committee on the lines in
Britain or India is partly due to the constitution doctrine of Separation of
Powers.
 A further encroachment was made oh the Separation theory when
conferment of power of adjudication on the executive came to be recognized,
and a few administrative tribunals. like the Tax Court grew in the country.

A much more serious dent in the Separation theory was made with the
development of independent statutory commissions to handle and regulate new
areas of activities, endowed with the triple functions of legislation,
administration and adjudication along with powers of investigation and
prosecution. These commissions are to a large extent independent of the e
executive. For long, it continued to be debated whether such bodies were
constitutional or not. But as such bodies have been in existence for long, and
new bodies are being created from time to time, one would perhaps accept them
as a modern fact of life. The U.S Supreme Court has never held the vesting of
all the three kinds of powers in one agency as unconstitutional.

The aim of the doctrine of Separation of Powers is to guard against

tyrannical and arbitrary powers of the state. The rationale underlying the
doctrine has been that if all power is consternated in one and the same organ or
person, there would arise the danger that it may enact tyrannical laws, execute
them in a despotic manner, and interpret them in an arbitrary fashion without
any external control.

Though, in the face of the complex socio-economic problem demanding

solution in a modern welfare state, it may no longer be possible to apply the
Separation theory strictly, nevertheless, it has not become completely redundant
and its chief value lies in emphasizing that it is essential to develop adequate
checks and balances to prevent administrative arbitrariness. Thus, it has been,
stated about the doctrine: "Its object is the preservation of political safeguards
against the capricious exercise of power; and incidentally, lays down the broad
lines of an efficient division of functions. Its logic is the logic of polarity rather
than strict classification the great end of the theory is, by dispersing in some
measure the centers of authority, to prevent absolutism.

By force of circumstances, Administrative Law has inevitably grown in

the United States, but the Separation doctrine did not generate an attitude of
indifference towards it, as happened in Britain under the spell of the Dicean
concept of "rule of law". In the U.S.A the attitude was that of examination and
criticism of the advisability and propriety of the new development.

Many people criticized the growth of administrative process as doing

violence to the concept of Separation of Powers there was an insistent demand
that a full-fledged investigation be carried out in the new trends and that due
safeguards against abuse of powers be devised. As a result of this, the U.S
Attorney-General appointed a committee to review the entire administrative
process and to recommend improvements therein.

This committee made its report in 1941. it conducted a thorough probe

into the administrative procedures followed by the various agencies of the
Federal Government and came out with a number of recommendations to
reduce the chances of abuse of power. Because of the Second World War no
immediate progress could be made to give legal effect to these
recommendations, but after sometimes the most tangible result was the
enactment of the Administrative Procedure Act, 1946.

EFFECT

The doctrine of separation of powers as propounded by Montesquieu had

tremendous impact on the development of administrative law and functioning of
Governments. It was appreciated by English and American jurists and accepted
by politicians. In his book "commentaries on the laws of England", published in
1765, Blackstone obsetrved that if legislative, executive and judicial, functions
were given to one man, there was an end of personal liberty. Madison also
proclaimed: "The accumulation of all powers, legislative, executive and
judicial, in the same hands, whether of one, a few or many and whether
hereditary, self-appointed or elective may justly be pronounced the very
definition of tyranny." The Constituent assembly of France declared in 1789
that there would be nothing like a Constitution in the country where the doctrine
of separation of powers was not accepted.

DEFECTS

Though, theoretically, the doctrine of separation powers was very sound

many defects surfaced when it was sought of be applied in real life situations.
Mainly, the following were found in this doctrine:

a) Historically speaking, the theory was incorrect. There was no separation of

powers under the British Constitution. At no point of time, this doctrine was
adopted in England.

As Prof .Ullamn says: "England was not the classic home of separation of
powers." Donoughmore Committee also observed: "in the British Constitution
there is no such thing as the absolute separation of the legislative, executive and
judicial powers.". it is said: "Montesquieu completely misconstrued what he
saw".

b) This doctrine is based on the assumption that the three functions of the
Government, viz, legislative, executive and judicial are independent of
distinguishable from one another. But in fact, it is not so. There are no
watertight compartments. It is not easy to draw a demarcating line between own
power and another with mathematical precision.

As Paton stated "it is extraordinary difficult to define precisely each

particular power." President Woodrow rightly said: "the trouble with the theory
is that Government is not a machine, but a living thing. No living thing can have
its organs offset against each other as checks, and live. On the contrary, its life
is dependent upon their quick cooperation, their ready response to the
commands of instinct or intelligence, their amicable community of purpose.
Their cooperation s indispensable, their warfare fatal'

According to Friedmann and Benjafield, 'the truth is that each of the three
functions of the Government contains elements of the other two and that any
rigid attempt to define and separate those functions must either fail or cause
serious inefficiency in Government.

c) It is impossible to take certain actions if this doctrine is accepted in its

entirety. Thus, if the legislature can only legislate, then it cannot punish anyone,
committing a breach of its privilege; nor can it delegate any legislative function
even though it does not know the details of the subject-matte of the legislation
and the executive authority has expertise over it; nor could the courts frame
rules of procedure to be adopted by them for the disposal of cases. Separation of
Powers, thus. Can only be relative and not absolute.

d) Modern State is a welfare State and it ahs to solve complex socio-economic

problem and in this state of affairs also, it is not possible to stick is this doctrine.
Justice Frankfurter said; "Enforcement of a rigid conception of separation of
power is a theoretical absurdity and practical impossibility.

e) The modern interpretation of the doctrine of separation of Powers means

that discretion must be drawn between 'essential' and 'incidental' powers and
one organ of the Government cannot usurp or encroach upon the essential
functions belonging to another organ, but may exercise some incidental
functions thereof.

f) Fundamental object behind Montesquieu's doctrine was liberty and freedom

of an individual; abut that cannot be achieved by mechanical division of
functions and powers. In England, theory of Separation of Powers is not
accepted and yet it is known for the protection of individual liberty. For
freedom and liberty, it is necessity that there should be Rule of Law and
impartial and independent judiciary and eternal vigilance on the part of the
subjects.
SEPARATION OF POWERS IN INDIA

On a casual glance at the provisions of the Constitution of India, one may

be inclined to say that the doctrine of Separation of Powers is accepted in India.
Under the Indian Constitution, executive powers are with the President,
legislative powers with Parliament and judicial powers with Judiciary. The
President holds his office for a fixed period. His functions and powers are
enumerated in the Constitution itself. Parliament is competent to make any law
subject to the provisions of the Constitution and there is no other limitation on
its legislative power. It can amend the law prospectively or even retrospectively
but it cannot declare a judgment delivered by a competent court void or of no
effect. Parliament has also inherited all the powers, privileges and immunities of
the British House of Commons. Similarly, the judiciary is independent in its
field and there can be no interference with its judicial functions either by the
Executive or by the legislature. The Supreme Court and High Courts are given
the power of judicial review and they can declare any law passed by Parliament
or Legislature ultra vires or unconstitutional.

In I.C. Golak Nath V. State of Punjab, Subba Rao, C.J. observed

"The Constitution brings into existence different constitutional entities, namely,

the Union, the State, and the Union territories. It creates three major instruments
of power, namely, the Legislature, the expects them to exercise their respective
powers without overstepping their limits. They should function within the
spheres allotted to them.

CLASSIFICATION OF ADMINISTRAIVE ACTIONS

There are three organs of Government

1) Legislature

2) Executive

3) Judiciary

These three organs essentially perform three classes of government functions

1) Legislative

2) Executive or Administrative

3) Judicial
The function of the legislature is to enact the law; the executive is to administer
the law and the judiciary is to interpret the law and to declare what the law is.

1) LEGISLATIVE FUNCTIONS

Legislative functions of the executive consists of making rules,

regulations, bye-laws, etc. it is, no doubt, true that any attempt to draw a distinct
line between legislative and administrative functions is difficult in theory and
impossible in practice. Though difficult, it is necessary that the line must be
drawn as different legal rights and consequences ensue.

In the leading case of Bates v. Lord Hailsham, Megarry, J. observed

that "the rules of natural justice do not run in the sphere of legislation, primary
or delegated". Wade also said; "There is no right to be heard before the making
of legislation, whether primary or delegate, unless it is provided by statute".

Fixation of price, declaration of a place to be a market yard, imposition of

tax, establishment of Municipal Corporation under the statutory provision,
extension of limits of a town area committee, etc. are held to be legislative
functions.

2) JUDICIAL FUNCTIONS

According to the Committee on Ministers' Powers, a pure judicial function

presupposes an existing dispute between two or more parties and it involves
four requisites:-

a) The presentation of their case by the parties to the dispute

b) If the dispute is a question of fact, the ascertainment of fact by means of

evidence adduced by the parties to the dispute and often with the assistance of
argument by or on behalf of the parties, on evidence;

c) If the dispute between them is a question of law, the submission of legal

argument by the parties

d) A decision which deposes of the whole matter by finding upon the facts in
dispute and 'an application of the land to the facts as found, including, here
required, a ruling upon any disputed question of law.

Thus, these elements are present, the decision is judicial decision even
though it might have been made by any authority other than a court, e.g. by a
Minister, Board, Executive Authority, Administrative Officer or Administrative
Tribunal.
JUDICAL AND QUASI-JUDICAL FUNCTION

DISTINCTION

A quasi-judicial function differs from a purely judicial function in the

following respects;

i) A quasi-judicial authority has come of the trappings of a court, but not all of
the; nevertheless there is an obligation to act judicially.

ii) A leis inter parts is an essential characteristic of a judicial function, but this
may not be true of a quasi-judicial function.

iii) A court is bound by the rules of evidence ad procedure while a quasi-

judicial authority is not.

iv) While a court is bound by precedents, a quasi-judicial authority is not

v) A court cannot be a judge in its own cause, while an administrative vested

with quasi-judicial powers may be a party to the controversy but can still decide
it.

ADMINISTRATIIVE FUNCTIONS

Thus, administrative functions are those functions which are neither

legislative nor judicial in character. Generally, the following ingredients are
present in administrative functions:

1) An administrative order is generally based on government policy or

expediency.

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

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

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

procedure unless the relevant statute specifically imposes such an obligation.

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

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

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

is a specific bar or prohibition in the statute.
6) While taking a decision and administrative authority may not only
consider the evidence adduced by the parties to the dispute, but may also use its
discretion.

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

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

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

unreasonableness.

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

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

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

ADMINSTATIVE DIRECTIONS

In addition to rules and other forms of delegated legislation, an increasing

modern trend is the issuing of direction of instructions by the Administration.
Directions are issued for a variety of purposes. Administrative authorities churn
out directions through letters, circulars, order, memoranda, pamphlets; public
notices, and press notes etc. at times, directions may even be published in the
Government Gazette.

DIRECIONS V. RULES

Superficially, a "direction" of a general nature may resemble of rule or

delegated legislation, in form, as both are of general applicability. But, the two
differ basically in concept and essence. To underline the difference between
directions and delegated legislation, at times, designated as "administrative
quasi-law" or "administrative quasi-legislation'.

Delegated legislation can be issued only when the authority concerned has
statutory power to do so. This aspect has been discussed in the previous
Chapter. But statutory power I s not necessary for issuing detections. Generally,
directions are issued under the general administrative power of the Government
conferred by Arts. 73 and 162 of the Constitution. According to Art. 73 of the
Constitution, the executive power of the Union extends to the matters with
respect to which Parliament has power to make laws. Similarly, according to
Art. 162, the executive power of the State extends to the matters with respect to
which the State Legislature has power to make laws. These provisions do not as
such confer any legislative power. These provisions describe the extent and
scope of executive power of the Central and State Governments. Accordingly,
what that Government does under Art. 73/162 cannot be regarded as a rule, as
rules can only be issued by the Administration under legislature power
conferred on it by a statutory or constitutional provision.

The basic distinguishing feature between a direction and delegated

legislation is this; while delegated legislations binding on both, the
Administration and the individual, and is enforceable through a court of law at
the instance of either the individual or the Administration, a direction, generally
speaking, is not so binding and enforceable. Barring certain exceptions, a
direction does not confer any enforceable right on an individual. Or impose an
obligation on the Administration or the individual. Even if a direction is
misapplied or ignored by the Administration, the affected individual can hardly
claim a remedy through a court of law against the Administration. On a parity
of reasoning, a direction cannot jeopardize a right of an individual and the
Administration cannot enforce it against him.

IDENTIFICATION OF DIRECTIONS

Government is continuously engaged in the process of "legislation" in the

sense of laying down general norms of public behavior or administrative
behavior. From our discussion so far it is clear that Government "legislation"
may be classified as either delegated legislation or directions. As this
differentiation leads to significant result for an administrative lawyer, it
becomes very important to identify whether a piece of government "legislation"
is a direction or a rule.

This may, at times, prove to be a complicated exercise as no definitive

test distinguishing directions from rules has yet been laid down. I doing so, at
the threshold, an administrative lawyer may be faced with a problem arising
from terminological inexactitude. Expressions like "code", "rules", "regulations"
which are appropriate for being used in the area of delegated legislation are also
use haphazardly and indiscriminately for directions, and, therefore, the label
which is appended to a particular piece of Government "legislation" is not
always determinative of its true character.

In a number of cases, though the provisions in question were called

"rules", yet the same were judicially characterized as being "administrative
instructions". In State of Uttar Pradesh v. Kishori lal, the U.P Excise Rules were
reared as administrative instructions as they were never published in the Gazette
as required by the statute. A few other cases of so-called rules being held as
administrative directions are noted below:
i) The Madhya Pradesh pre-medical Examination Rules 1972 regulating
admission to medical

colleges;

ii) The Karnataka medical colleges Rules 1978

iii) Conduct and Discipline of the Employees of Aided Educational Institutions

Rules.

iv) The provisions of the Education Grant-in-aid ode of Maharashtra.

v) Paragraph ;;516-B of the Punjab jail manual laying down ;provisions for
commutation of

sentences has been held to be an administrative direction.

Usually a rule is made by the Administration in pursuance of the statutory

rule making power conferred on it by a statutory or a constitution provision.
Directions on the other hand, are issued by the Administration in the exercise of
its general administrative power conferred by Art 73 of the constitution on the
central government or Art 162 on the state government. These constitution
provisions describe the extent and scope of the executive power; of the central
or the state government. These provisions do not confer any legislative power.
Art 73 or 162 does not confer any rule making power as such on the concerned
government and therefore, what a government does under any of these
provisions cannot be regarded as a rule, statutory or a constitutional provision.

In Nivedita upholding a state directive on admission of scheduled castes

and scheduled tribes candidates to medical colleges the Supreme Court said that
there were no law or rules covering the field regulating admission of candidates
of medical colleges, and as the matter fell within its administrative power, the
state would be competent to pass executive orders in this regard.

A Statute may; delegate to the Administration power to promulgate

delegated legislation. But the Administration may yet seek to issue direction
under its general administrative power rather than rules under the statutory
power.

Service Matters

Art. 309 of the constitution empower the president, or the governor as the
case may be to make rules too regulate the recruitment and conditions of service
of persons appointed to the public services and posts in connection with the
affairs of the union or the state. But many a time, government issues directions
rather than rules to regulate service matters. These directions are issued by the
central government under Art 73 and by a state government under Art 162 of
the constitution.

The service rules made by the Government did not provide for any
reservation of posts for scheduled castes and scheduled tribes. In fact the
relevant service rules were silent on the subject of reservation. The Supreme
Court therefore ruled that the government could issue directions providing for
reservations the court observed. The administrative orders cannot be issued in
contravention of the statutory rules but it could be issued to supplement the
statutory rules. In the instant case the administrative direction issued to make
reservation for S/C and S/T was held validly issued as the relevant rules were
silent on the subject of reservations.

Once the rules have been made under Art 309 administrative directions
will have no force in relation to the matters covered by the rules. Thus, when a
service rule provides for merit alone as the basis of promotion to a higher post, a
direction providing for seniority cum-merit as the basis for the purpose was held
to be inconsistent with the rule.

IN O.P. Lather v. Satish Kumar Kakkar, the Supreme Court has accepted the
position that even when service rules have been made under Art.309 direction
can still be issued by the Government to clarify or supplement the existing rules.
There thus exist an amalgam of rules and directions to lay down service
conditions of Government servants. ; Directions and rules form an intertwined
web in the area of serviced jurisprudence. In this area, directions and rules inter
play with each other. Questions often arise whether a direction is supplementary
to a rule or is inconsistent therewith. The courts are often called upon to decide
these questions.

In I.N Saxena v. Madhya Pradesh, the question arose whether a

memorandum issued by the government of Madhya Pradesh fixing the age of
retirement of civil servants should be characterized as a rule as having been
issued under Art 309 or only a direction as having been issued under its general
administrative power.

The court ruled that it was merely an executive direction and not a rule
citing the following considerations:

i) The memorandum in question had not been publisher in the gazette

ii) It was in the form of a letter issued by the government to the collectors
iii) Its form showed that the government was conveying an executive decision
to the collectors to be

followed by them.

Even when the Administration has power to make rules as well as

directions, it may prefer to issue directions instead of the rules. In V. T
Khanzode v. Reserve Bank of India, the reserve bank of India had statutory
power to issue regulations, Nevertheless, the staff regulations issued by the
reserve bank of India through an administrative and office order fixing the basis
of seniority of its employee were held to be merely administrative instructions
and not statutory regulations

The Supreme Court recognized that the bank could issue such regulations
under its general regulation making power under s. 58 of the Reserve Bank of
India Act. Such regulations could however be made with the previous sanction
of the central government and they were required to be laid before each house
of parliament. The regulations in question, according to the court were made not
under section 58 but under the administrative power of the bank given to it by s.
7(2) of the Act for the following reasons:

Firstly, the regulations were not made with the previous sanction of the
government.

Secondly, while issuing the regulations, the source of power under which
they were made was not mentioned.

Presumably the bank issued directions and not statutory regulations

because of flexibility in the sense that there was no need to take previous
consent of the government and no need to lay them before parliament and
directions could be amended from time to time without following these
formalities.

In Kumari Regina v. St. A.H.E schools the so-called rules laying down
certain norms for recognition of schools were held to be merely administrative
instructions for the following reasons:

i) The rules under the relevant statute could be made for carrying
out the purposes of the act. That was the condition precedent, but the so-called
rules fin question could be related to no purpose or provision of the concerned
statute;

ii) The government did not claim to have made them under its
statutory power;
 iii) Under the Act, pre-publication of the rules was necessary but the
so-called rules in question had not been pre-published.

ENFORCEABILITY OF DIRECTIONS

The question whether a direction is legally enforceable or not keeps

arising before the courts form time to time. The basic rule is that while rules
made under statutory power are binding a non-statutory direction is not
enforceable in; court of law against either an individual or the Administration.
Direction does not fall in; the category of legislation direct or subordinate. The
rue of non-enforceability of directions is quite well established

The principle of non enforceability of directions is exemplified by J.R.

Raghupathy v. State of Andhra Pradesh the state government had statutory
power to decide location of mandal headquarters. The government asked the
collectors to send proposals for this purpose for consideration of the
government. The government issued certain guidelines to the collectors to keep
in view while making their proposal.

In union of India v. S.L Abbas, it was held that executive instructions for
transfer of government servant are in the nature of the guidelines and do not
confer any legally enforceable right.

Exceptions to the rule on non-enforceability

However the rule of non-enforceability of directions is not an absolute

principle. As no legal principle is immutable, and every principle admits of
some exceptions, so is the case regarding the rule of non-enforceability of
general directions? Accordingly, the courts have enforced some directions on
some grounds and in some situations. The difficulty however is that no clear
principle emerges from the case law as to when a direction may be held binding.
The judicial approach on this question is pragmatic and ad hoc in nature and
depends on the specific fact situation of the case.

Need for Direction

The technique of issuing directions is and integral part of the modern

administrative process. The administration resorts to directions to serve a
variety of purposes. Mostly the purpose of directions is to inform the people of
the policy decisions which government takes from time to time in various areas
and which may affect the public.

As we shall see later, it is not always necessary for the government to

make ka law to enforce each to-day government operates without any statutory
powers. The government doesn't and any statutory power to do many things it
usually does. In area the government exercises a general administration so long
as it does not infringe a constitutional or legal provision or any person's rights,.
The extent of the modern Government wishes to lay down any general norms in
its administrative area, it has to take recovers to directions; it cannot make rules
in this area in the absence of any statutory legislative power.

Directions are more flexible, and can be issued much more expeditiously
and with much less formality than rules. The Administration resorts to
directions to serve a variety of purposes. By and large, directions are used to
inform the people of the people of the policy decision taken by the Government
from time to time in various areas.

Directions are used to lay down procedures for various purposes to be

followed by the Administration or the public. Directions are also used to fill in
the gaps in the area of wide discretionary powers conferred on the
Administration. The Government may announce in advance as to how it seeks
to exercise its powers under a particular statutory provision.

Directions are a part and parcel of the internal administrative procedure of

a Government department. When a number of officials are engage in executing
a law and taking decisions there under, directions may serve the purpose of
laying down some criteria to be followed by these officials in discharging their
functions so that there may be some uniformity of approach in disposing of
similar cases by the various officials. The Government may lay down through
directions some norms, general principles, practices and policies within the area
of its operation under a statute for the guidance of officials and convenience of
the public.

UNIT II

DELEGATED LEGISLATION

A trend very much in vogue at the present time in all democratic countries
Is that only a relatively small part of the total legislative output emanates
directly from the Legislature. The bulk of the legislation is promulgated by the
executive as a delegate of the legislature, and this is known as delegated
legislation. Salmond defines the expression Delegated legislation as that which
proceeds form any authority other than sovereign power and is therefore
dependent for its continued existence and validity on some superior of supreme
authority.

Subordinate Legislation and Supreme legislation: Distinction.

 Whereas an Act, enactment of a statute is made by a legislature
subordinate or delegated legislation is created by an executive or Administrative
Authority. Both are the products of legislative function of the state having the
force of law in their application to subjects. But there is distinction between the
two.

As salmond states an Act of legislature proceeds from supreme power of

the state and has no rival in the field. It also does not derive its authority from
any other organ of the state. Subordinate legislation on the other hand, is framed
by the executive and owes its existence, continuance and validity on superior or
supreme authority i.e. legislature. An executive can make subordinate
legislation only if such power is conferred on it by competent legislature, not
otherwise. Again subordinate law making body is bound by the terms of its
delegated or derivative authority.

In Chief settlement commr v. Om prakash, the supreme court stated is

essential to emphasize that under our constitutional system the authority to
make the law is vested in the parliament and the state legislatures and other law
making bodies and whatever legislative power the executive administration
possesses must be derived directly from the delegation of the legislation and
exercised validly only within the limits prescribed. The notion of inherent or
autonomous law making power in the executive administration is a notion that
must be emphatically rejected.

Where parliament is supreme and sovereign, it is omnipotent and its

legislative power is unlimited, e.g. British parliament. There it has been said;
parliament can do every thing, but make a man a woman and a woman, a man.
A statute enacted by parliament is not open to judicial review and cannot be
declared ultra vires or unconstitutional by a court of law, though in India a law
made by parliament is open; to challenge on the ground that violates provisions
of the constitution. Delegated legislation on the other hand, has no such
authority and it can challenge not only as ultra vires being unconstitutional but
also as inconsistent with the parent, Act, i.e. the Act under which it was made.
Subordinate legislation does not carry the same degree of immunity that is
enjoyed by supreme legislation Subordination legislation can be questioned on
any of the grounds on which plenary legislation can be challenged. But in
addition, it may also be challenged on the ground that it does not conform to the
statute under which it is made or is inconsistent with any other statute. That is
because every subordinate legislation must yield to the plenary legislation.

Reasons for growth of delegated legislation

Many factors are responsible for the rapid growth of delegated legislation
in every modern democratic state. The traditional theory of laissez faire has
been given up by every state and the old police state has now become a welfare
state. Because of this radical change in the philosophy as to the role to be played
by the state its functions have increased. Consequently, delegated legislation has
become essential and inevitable

In the opinion of the committee, the factors responsible for the growth of
delegated legislation are:

a) Pressure upon parliamentary time

As a result of the expanding horizons of state activity, the bulk of

legislation is so great that it is not possible for the legislature to devote sufficing
time to discuss all the matters din detail. Therefore, legislature formulates the
general policy- the skeleton and empowers the executive to fill in the details
thus giving flesh and blood to the skeleton so that it may live by issuing
necessary rules, regulation bye-laws, etc. In the words of? Sir Cecil car
delegated legislation is a growing child called upon to relieve the parent of the
strain of overwork and capable of attending to minor matters, while the parent
manages the main business. If the 525 parliamentarians are to focus on every
minuscule legislative detail leaving nothing to subordinate agencies the annual
output may be both unsatisfactory and negligible.

b) Technicality

Sometimes the subject-matter on which on which legislation is required is

so technical in nature that the legislator, being himself a common man, cannot
be expected to appreciate and legislate on the same, and the assistance of
experts may be required. Members of parliament may be the best politicians but
they are not experts to deal with highly technical matters which are required to
be handled by experts. Here the legislative power may be conferred on experts
to deal with the technical problems, e.g. gas, atomic energy, drugs, electricity,
etc.

c) Flexibility

At the time of passing any legislative enactment, it is impossible to foresee

all the contingencies, and some provision is required to be made for this
unforeseen situation demanding exigent action. A legislative amendment is a
slow and cumbersome process, but by the device of delegated legislation, the
executive can meet the situation expeditiously e.g. bank rate police regulations,
export and import foreign exchange, etc. For that purpose, in many statutes a
removal of difficulty clause is found empowering the administration to
overcome difficulties by exercising delegated power.
d) Experiment

The practice of delegated legislation enables the executive to experiment.

This method permits rapid utilization of experience and implementation of
necessary changes in application of the provisions in the light of such
experience, e.g. in road traffic matters, an experiment may be conducted and din
the light of its application necessary changes could be made. Delegated
legislation thus allows employment and application of past experience.

e) Emergency

In times of emergency quick action is required to be taken. The legislative

process is not equipped to provide for urgent solution to meet the situation.
Delegated legislation is the only convenient indeed the only possible remedy.
Therefore in times of ware and other national emergencies such as aggression,
break of law and order, strike, bandh etc, the executive is vested with special
and extremely wide power to deal with the situation. There was substantial
growth of delegated legislation during toe two World Wars. Similarly in
situation of epidemics, floods inflation, economic depression, etc. Immediate
remedial actions are necessary which may not be possible by lengthy legislative
process and delegated legislation is the only convenient remedy.

f) Complexity of modern administration

The complexity of modern administration and the expansion of the

functions of the state to the economic and social sphere have rendered it
necessary to resort to new forms of legislation and to give wide powers to
various authorities on suitable occasions. By resorting to traditional legislative
process, the entire object may be frustrated by vested interests and the goal of
control and regulation over private trade and business may not be achieved at
all.

DELEGATED LEGISLATION IN INDIA

The discussion can be divided din to two stages-

a) Pre-constitution period:

Rv. Burah is considered to the leading authority on the subject. By Act

XXII of 1869 the area of Garro Hills was removed from the jurisdiction of civil
and criminal courts, and by section 9, the lieutenant Governor was empowered
to extend mutatis mutandis al or any of the provisions of the Act applicable to
Khasi, Jaintia and Naga Hills an the Garro Hills and to fix the date of such
application. By a notification dated October 14, 1871, the lieutenant Governor
extended all the provisions of the Act to the District of Khasi and Jaintia Hills.
The appellants, who were convicted of murder and sentenced to death,
challenged the notification.

The High court of Calcutta by a majority upheld the contention of the

appellants and held that section 9 of the Act was ultra vires the powers of the
Indian legislature. According to the court, the Indian legislature was a delegate
of the Imperial parliament and therefore, further delegation was not permissible.

On appeal, the Privy Council reversed the decision of the Calcutta high
court. It held that the Indian legislature was not an agent or delegate of the
imperial parliament and it had plenary powers of legislation as those of the
Imperial parliament itself. It agreed that the governor General in council could
not, by legislation, create a new legislative power in India not created or
authorized by the council Act. But in fact it was not done. It was only a case of
conditional legislation, as the Governor was not authorized to pass new laws,
but merely to extend the provisions of the Act enacted by the competent
legislature upon fulfillment of certain conditions.

b) Post-constitution period

The question of permissible limits of delegation of legislative power

became important in Independent India. The constitution of India is neutral on
this point as there is nothing in the Indian constitution either by way of
expressly prohibiting, or , permitting the legislature to delegate its legislative
power to the Administration. Therefore if the courts had to find any restrictions
on the legislature in the matter of delegation, it had to be on; the basis of some
general theories and principles of constitutional law, and not on the basis of any
specific provision in the constitution. The Supreme Court of India was faced
with all these questions in the famous case of

IN RE DELHI LAWS ACT it was the first leading case decided by the
Supreme Court on delegated legislation after the constitution came into force. A
reference was made to the Supreme Court by the president of India under
Article 143 of the constitution in the following circumstances:

The central government was authorized by section 2 of the part C" states
Act 1950 to extend to any part "C" state with such modification and restrictions
as if thinks fit any enactment6 in force in a Part "A" state; and while doing so it
could repeal or amend any corresponding law which might be in force in the
Part "C" state

The Supreme court was called upon to decide the legality of the aforesaid
provision. All the seven judges who heard the reference gave their separate
opinions exhibiting a cleavage of judicial opinion on the question of limits to
which the legislature in India could be permitted to two limitations-

i) The executive cannot be authorized to repeal a law in force and thus, the
provision which empowered the central government to repeal a law already in
force fin Part "C" state was bad,

ii) By exercising the power of modification, the legislative policy should not
be changed and thus, before applying any law to the Part "C" state, the central
Government cannot change the legislative policy.

The importance of the Delhi Laws Act cannot be under estimated

inasmuch as on the one hand, it permitted delegation of legislative power by the
legislature to the executive, while on the other hand, it demarcated the extent of
such permissible delegation; of power by the legislature.

Principle formulated in Delhi Laws Act - As noted above all the seven
judges gave their separate opinions. Many a time a question is asked whether
any principle was formulated by the majority opinion. The answer is not simple
as there is difference of opinion amongst jurists on this point.

According to patanjalij sastri C.J. Undoubtedly certain definite

conclusions were reached by the majority of the judges it is difficult to say that
any particular principle was laid down, which can be of assistance in the
determination of other cases.

On the other hand, Bose J. and Basu observed that in spite of separate
opinions, certain principles have been laid down by the Supreme court in Delhi
Laws Act A First, ;keeping the exigencies of the modern government in view,
parliament and state legislatures in India need to delegate legislative power it
they are to be fable to face the multitudinous problems facing the country for it
is neither practicable nor feasible to expect that each of the legislative bodies
could turn out complete and comprehensive legislation on all subjects sought to
be legislated upon. Second since the legislatures derive their powers from the
written constitution which creates them, they could not allowed the same
freedom as the British parliament in the matter of delegation some limits should
be set on their capacity to delegate.

DOCTRINE OF EXCESSIVE DELEGATION

In course of time through a series of decisions, the Supreme Court has

confirmed the principle that the legislature can delegate its legislative power
subject to its laying down the policy. The legislature must declare the policy of
the law, lay down legal principles and provide standards for the guidance of the
delegate to promulgated delegated legislation, otherwise the law will be bad on
account of excessive delegation.

The India Legislature cannot delegate unrestrained unqualified and

unqualified legislative power on an administrative body. The legislature can
delegate legislative power subject to the condition of laying down principles,
standards and policy subject to which the delegate is to exercise its delegated
legislative power. In case the legislature fails to do so, the law made by it
delegating, legislative power would be invalid.

In applying the test of excessive delegation apart from considering the

breadth of the discretion conferred by an Act to promulgate delegated
legislation the courts also examine the procedural safeguards contained in the
Act against misuse of power as for example, lying of the ruled before the
legislature, consultation with the interests affect. A completely unlimited
blanket power where there is neither any guidance to the delegate, not any
procedural safeguards against improper exercise of power by the delegate can
be held invalid as excessive delegation.

In H.R. Banthia v. Union of India Section 5(2)(b) of gold (control) Act,

1968 empowered the Gold Administrator so far as it appeared to him to be
necessary or expedient for carrying out the purposes of the Act, to regulate the
manufacture, distribution use disposal, consumption, etc of gold. The Supreme
Court declared the provision invalid because it was very wide and suffered from
the vice of excessive delegation. The court also took into consideration the fact
that under section 144 of the Act power of delegated legislation was also
conferred on the central government. But while the rules made by the
government were required to be laid before each house of parliament, there was
no such obligation in respect of the rules made by the administrator under
section 5(d2)(b). The power of the Administrator was not subject to any
procedural safeguard while that of the government was, and thus the power
conferred on the former was even broader than that conferred on the
Government.

In a large number of cases the courts have considered the validity of

various delegating provisions with reference to the doctrine of excessive
delegation. Some of these cases are noted below. The cases have been classified
from the point of view of the nature of the power conferred under the following
broad heads:

i) Skeleton legislation

ii) Power of inclusion and exclusion;

iii) Power of modification of the statute and

iv) Removal of difficulties;

v) Power to impose tax.

i) Skeleton Legislation

In Bhatnagars and Co v.Union of India, Section 3 (1) (a) of the Imports

and exports Act 1947 authorizing the central Government to prohibit or strict
the import or export of goods of any specified description by order. The statute
is skeletal and gives no indication as to what considerations and policies are to
be kept in view by the Government in controlling Imports and exports. The
whole regulatory process over import and export of goods has been developed
by the administration through delegated legislation under this the underlying
policy was to be found in the preceding statute, the Defense of India Act 1939
whose provisions the statute in question purported to continue.

In Makhan Singh v. State of Punjab the Supreme Court upheld,

against the attack of excessive delegation section 3 of the Defence of India Act
1962 Section 3 empowered the central government to make rules as it appears
expedient to it, for defence of India and Maintenance of public order and safety.

The All India Services Act 1951 is an extremely brief statute of four
sections of which the key provision is Section 3 which authorizes the central
Government to make rules to regulate conditions of service in the all India
Services. Pending the making of the rules under the Act, the rules existing on
the date the law was enacted, were to be deemed to be the rules made under the
Act.

ii) Power of Exclusion and Inclusion

A common legislative practice is to confer power on the Government to

bring individuals, bodies or commodities within, or to exempt them from the
purview of a statute, several formula are in vogue for the purpose.

A usual legislative formula is to say that the Act applies to the items
mentioned in the schedule annexed by Government has power to alter the
schedule by adding thereto or removing therefore some items. Thus the range of
operation of the Act can be expanded or reduced by making alterations in the
schedule through delegated legislation. To some extent, this provision involves
delegation of power ok modify the parent Act, but invariably such a provision
has been upheld as valid.
 The Minimum wages Act 1948 has been enacted as stated in its preamble
to provide for fixing minimum wage in certain employment. The Act applies to
employment mentioned in the schedule, but government is giver power to add
any other employment thereto and thus to extend the Act to that employment.

There Act lays down no norms on which government may exercise it s

power to add any employment to the schedule. Nevertheless, in Edward Mills
Co. v. State of Ajmer the Supreme Court upheld the provision arguing that the
policy was apparent on the face of the Act which was to fix minimum wages in
order to avoid exploitation of labour in those industries where wages were very
low because of unorganized labour or other causes.

iii) Power of modification of Schedule

In a number of cases, the power to amend the schedule has been upheld
because the policy to give guidance to the government was discernible from the
Act. It is not unconstitutional for the legislature to leave it to the executive to
determine details relating to the working of taxation laws, such as selection of
persons on whom tax is to be laid the rates at which it is to be charged, in
respect of different classes of goods and the like.

At time a statute may confer on the executive the power to modify or

amend the parent statute itself. Though prime facie a drastic power as it makes
the executive supreme even over the legislature in practice such a power may
have to be conferred in certain situations to provide for flexibility of approach
to meet the changing circumstances. For example when some complicated
scheme is introduced it is thought advisable to confer such a power on the
executive to enable it to make necessary adjustments in the legislation itself so
as to meet any unforeseen difficulty. The power is conferred on the Executive
because if the matter is taken to the Legislature it may delay the making of
necessary changes in the statute. There is thus a necessity of balancing two
factors-

a) The danger of the executive misusing its power, and

b) The need for delegating the power.

In Baburam Jagdish Kumar and Co. it was held that power by the
legislature to a local authority or to executive Government to vary or modify an
existing law would not be unconstitutional so long as such delegation does not
involve abdication of essential legislative power by the legislature i.e. necessary
guidelines are provided.
 Am Act imposing sales tax said that the goods mentioned the Schedule
appended to the act would be exempt from taxation. But the Government can
modify the schedule by giving a three months' notice. Further, the Government
can make such modifications in the act as it thinks fit. The Government sought
to modify the provision in the statue regarding modifying the schedule by
eliminating the requirement of three months notice.

The Supreme Court declare this modification ultra vires on the ground that
it changed the "essential feature" and "legislative policy" inherent in the Act.
The requirement of three months' notice was a matter of legislative policy which
could be changed only by the legislature and not by the delegate.

iv) Removal of difficulty

Statues usually contain a removal of difficulty clause, nick-named in

Britain a the Henry VIII clause because "that king is regarded popularly as the
impersonation of executive autocracy.

The provision s used usually when the legislature passes a statue

implementing a new socio-economic scheme. Not being sure of the difficulties
may crop up in the future implementation of the provisions of the law; the
Legislature introduces therein a "removal of difficulty" clause envisaging that
government may make provision to remove any difficulty that may arise in
putting the law into operation.

Generally, two types of "removal of difficulty" clause call are identified in

the Indian statutes.

a) A narrow power under which "power to remove difficulties" thus to be

exercised consistent with the provision of the parent Act. In such a case, the
Government cannot modify any provision of the statute itself.

Such a provision is valid vis-à-vis the doctrine of excessive delegating but

the resultant order made by Executive to remove the difficulty ought not to
change the basic policy of the parent Act. The removal of difficulty order
cannot change any provision of the parent Act; the order is to give effect to the
Act.

b) The other, a broader version, any authorize modification of the parent Act,
or any other Act, in the name of removal of difficulties. Usually such a power is
limited in point of time, say two or three years. In principle, such a power is
objectionable s it vests a vast arsenal of power in the Executive.

v) Power to impose tax

 In a democratic system, levying the is exclusively the function of the
Legislature. Such a power is a strong weapon at eh disposal of the Legislature to
control the Executive. But, in modern times, a dent has been made in this
principle as well, as delegation has permeated even the tax area. After the
Legislature enacts the statute to levy a tax, if many leaves some elements of
taxing power to the Executive. No tax, fee or other pecuniary imposition can be
levied by subordinate legislation, unless the statute under which it is made
specifically authorized its imposition. General authorization for carrying out
purposes of the Act does not include taxation.

In Devi Das v. State of Punjab, the law empowering the Executive to

levy sales tax at a rate not exceeding 2% was held valid. The Supreme Court
stated that it was alright to confer a reasonable area of discretion on the
Government by fiscal statute, but a large statutory discretion placing a wide gap
between the minimum and the maximum rates, and thus, enabling the
government to fix an arbitrary rate might not be sustainable.

V. Nagappa v. Iron Ore Mines Cess Commissioner. A Central Act

authorized the Central Government to levy a cess up to 50 paisa per metric
tonne on iron and spend the many so collected on labour welfare. The
delegation of power was held valid because the provision laid down the
purposes for which the duty collected was to be utilized and these purposes
were neither vague nor indefinite. The policy of the Act was thus clearly stated.
Further, the maximum rate at which the tax might be collects was also fixed.
Since the area within which discretion was t be exercised was clearly
demarcated, it was not possible to argue that blanket power to fix rate had been
delegated to the government.

A difficult case as Shama Roa v. Union Territory of Pondicherry, but

the Supreme Court distinguished the same in Gwalior Rayon. In Shama Ra, the
pondicherry Assembly passed the Pondicherry General Sales Tax Act, 1965
providing that the Madras General Sales Tax act, 1959, as in forces in the State
of Madras immediately before the commencement of this act, would apply to
Pondicherry; and date of the commencement S of the Act was left to the
Pondicherry Government. The result was that all the amendments to the Madras
Act passed by the Madras Legislature during the period of enactment and
commencement of the Pondicherry Act automatically became applicable to
Pondicherry. The Supreme Court ruled that this amounted to abdication of its
power by the Pondicherry legislature in favour of the Madras legislature, and
therefore the Pondicherry Act was bad on account of excessive
delegation.

CONTROL OVER DELEGATED LEGISLATION

 At present, in almost all countries, the technique of delegated legislation is
resorted to and some legislative powers are delegated by the legislature to the
executive.

As the Committee on Ministers' Power stated, though the practice of

delegated legislation is not bad, 'risks of abuse are incidental to it' and,
therefore, safeguards are required 'if the country is to continue the advantages of
the practice without suffering form its inherent dangers'. Hence, 'today the
question is not whether delegated legislation is desirable or not, but what
controls and safeguards can and ought to be introduced so that the rule-making
power conferred on the Administration is not misused or misapplied.

Controls over the delegated legislation may be divided into three categories:

a) Judicial control

b) Legislative control

c) Other controls

JUDICIAL CONTROL

Delegated legislation does not fall beyond the scope of judicial review
and in almost all democratic countries it is accepted that courts can decide the
validity or otherwise of delegated legislation mainly applying two tests:-

a) Substantive ultra vires

b) Procedural ultra vires

'Ultra vires' means beyond power or authority or lack of power. An act

maybe said to be 'ultra vires' when it has been done by a person or a body of
persons which is beyond his, its or their power, authority or jurisdiction.

a) SUBSTANTIVE ULTRA VIRES

When an Act of Legislature enacts in an excess of power, conferred o the

Legislature is he Constitution, the legislation is said to be ultra vires the
Constitution. On the same principle, when a subordinate legislation goes beyond
what the delegate is authorized to enact, it acts ultra vires. This known as
substantive ultra vires.

CIRCUMSTANCES
 A delegated legislation may be held invalid on the ground of substantive
ultra vires in the following circumstances;

i) Where parent Act is unconstitutional

ii) Were parent Act delegate's essential legislative functions

iii) Where delegated legislation is inconsistent with parent Act

iv) Where delegated legislation is inconsistent with general law

v) Where delegated legislation is unconstitutional

vi) Unreasonableness

vii) Mala fide; Bad faith

viii) Exclusion of judicial review

ix) Retrospective effect

x) Sub- delegation

i) Where Parents Act Is Uncondtitutional

For delegation to be valid, the first requirement is that the parent Act or
enabling statute by which legislative power is conferred on the executive
authority must be valid and constitutional. If the delegating statute itself is ultra
vires the Constitution and is bad, delegated legislation is necessarily bad.

In Chintamanrao v. State of M.P., the parent Act authorized the Deputy

Commissioner to prohibit manufacturing of bidis in some areas during certain
periods. The order passed by the Deputy Commissioner under the Act was held
ultra vires in as much as the Act under which it was made violated the
Fundamental Right to carry on any occupation, trade or business, guaranteed by
Article 19(1) (g) of the Constitution.

In Sarbananada Sonowal (I) v. Union of India, it was held by the

Supreme Court that if Parliament makes a law exclusively for one State, such
law has to satisfy and pass the test of Article 14 of the Constitution. Mere
geographical classification is not enough. T must have nexus with the object
sough to be achieved by the Act. In absence thereof that Act as also delegated
legislation under the Act must be held ultra vires.
 In Naga People's Movement of Human Rights v. Union of India, the
constitutional validity of the parent Act was challenged inter alia on the ground
that it conferred arbitrary and unguided power on the executive in the matte of
declaration of an area as 'disturbed area'. The supreme Court, however,
negative the contention observing that before declaration of any area as
'disturbed area' there must exist a grave situation of law and order on the basis
of which an opinion ca be formed. The Act, hence, cannot be held ultra vires
Article 14 of the Constitution.

ii) Where Parent Act Delegates Essential Legislative Funcitons:-

It is well settled principle of Administrative Law that primary and essential

legislative functions must be performed by the Legislature itself and they cannot
be delegated to any other organ of the State. To put it differently, under the
scheme of our Constitution, a Legislature cannot create, constitute or establish a
parallel Legislature.

iii) Where Delegated Legislation Inconsistent With Parent Act:-

Validity of delegated legislation can be challenge on the ground that it is

ultra vires the parent Act or enabling statute. It is well settled that the rule
making power conferred by the parent Act does not enable the rule-making
authority to make a rule which may travel beyond the scope of the Act or may
be inconsistent with or repugnant to the enabling Act. If the rule cannot be
reconciled with the parent Act, it must be struck down.

In Mohad. Yasin v. Town Area Committee, under the parent Act, the
municipality was empowered to charge fee only or the use and occupation of
some property of the committee, but the Town Area Committee framed bye-
laws and imposed levy on whole sellers irrespective of any use or occupation of
property by them. The Supreme Court held that he bye-laws were beyond the
powers conferred on the committee and were ultra vires.

Likewise, in Indian Council of Legal Aid & Advice v. Bar Council of

India, a rule was framed by though Bar Council barring enrolment as advocate
of persons who had completed 45 years of age. The parent Act enabled the Bar
Council to lay down conditions subject to which an advocate "shall have right to
practice". Declaring the rule ultra viers, the Supreme Court held that the Bar
Council can make the rule only after a person is enrolled as an advocate, i.e. at
post-enrolment stage. It cannot frame a rule barring persons form enrolment.
The rule was thus inconsistent with parent Act.

Similarly, in State of T.N. v. Hind Stone, the parent Act empowered the
State Government to make rules for regulation the grant of mining leases. Rule
8-C framed by the State Government totally prohibited quarrying in black
granite by private enterprise. It was contended that the rule was ultra vires the
parent Act and was, therefore, bad.

iv) Where delectated legislation is inconsistent with general law:-

A subordinate legislation, apart from being intra vires the Constitution and
consistent with the parent Act, must also be in consonance wit general law, I.e.,
any other law enacted by the Legislature. This is based on the principle that a
subordinate or delegated legislation made by the executive cannot be contrary to
the law of the land.

In Hindustan Times v. State of U.P., Parliament, by an Act provided

pension to working journalists. The State Government, by executive instructions
imposed levy on government advertisements on newspapers and deducted such
levy from pension fund of working journalists. The directive of the State
Government was held beyond legislative competence and ultra vires the
Constitution.

v) Where delegated legislation is unconstitutional:-

Sometimes a parent Act or delegation statute may be constitutional and

valid and delegated legislation may be consistent with the parent Act, yet the
delegated legislation may be held invalid on the ground that it contravenes the
provisions of the Constitution.

In D.S Nakara v. Union of India, the Apex Court held that a pension
scheme providing higher pension to a government servant retiring before a
particular date and lower pension to others to others retiring after such cut-off
date was arbitrary, discriminatory and ultra vires. "The classification does not
stand the test of Article 14".

In Air India v. Nergesh Meerza, a regulation framed by Air India

providing that services of an Air Hostess could be terminated if she became
pregnant was held arbitrary, unreasonable and voilative of Articles 14 and 15 of
the Constitution.

In Delhi Transport Corpn. V. D.T.C. Mazdoor Congress, a regulation

conferring power on the authority to terminate services of a permanent
employee by giving him three months' notice was held to be arbitrary and ultra
vires Article 14 of the Constitution.

vi) Unreasonableness:-
 It is well-settled that the bye-laws made by corporations, brought and
other local bodies may be declared ultra vires on the ground of
unreasonableness. This rule is based on a presumed intention of the legislature
that Common Law allows them to make only reasonable bye-laws.

Thus, in Air India v. Nerges Meerza, a regulation framed by Air India

providing termination of services of an Air Hostess on her first pregnancy was
held to be extremely arbitrary, unreasonable, and abhorrent to the notions of a
civilized society and interfering with the ordinary course of human nature. It is
"not a disability but one of the natural consequences of marriage and is an
immutable characteristic of married life".

vii) Mala fide; Bad faith

Indian Administrative law is based on the principle that every statutory

power must be exercised in good faith. Power to make delegated legislation
cannot claim immunity from judicial review if the power has been exercised by
the rule making authority mala fide or with dishonest intention.

In B D Gupta v. State of Bihar, the Supreme Court disapproved the

practice of issuing Ordinances on a large scale being arbitrary and colorable
exercise of power by the executive. If there is constitutional authority from
doing an act, such provision cannot be allowed to be defeated by adoption of
any subterfuge

viii) Sub-delegation.

As discussed above the maxim "delegated non potest delegate' (a delegate

cannot further delegate) applies to delegated legislation also and it is not
possible for the delegate to sub-delegate the power conferred on him unless the
parent Act authorizes him to do so either expressly or by necessary implication.

ix) Exclusion of judicial review.

The rule of law has always recognized power of judiciary to review

legislative and quasi-legislative acts. The validity of a delegated legislation can
be challenged in a court of law. Sometime, however attempts are made by the
legislature to limit or exclude judicial review of delegated legislation by
providing different modes and methods. Thus in an Act a provision may be
made that rules, regulation, bye-laws, ect. Made under it "shall have effect as if
enacted in the Act", Shall not be called in question in my court; "shall be final";
shall be conclusive" and the like are ultra vires.

x) Retrospective operation
 It is well-settled that delegated legislation cannot have any retrospective
effect unless such a power is conferred on the rule-making authority by the
parent Act.

In State of MP v. Tikamdas, the Supreme Court; observed: "There is no

doubt that unlike legislation made by a sovereign legislature, subordinate
legislation made by a delegate cannot have retrospective effect unless the rule-
making power in the concerned statute expressly or by necessary implication
confers powers in this behalf.

PROCEDURAL ULTRA VIRES

When a subordinate legislation fails to comply with procedural

requirements prescribed by the parent Act or by a general law, it is known as
procedural ultra vires.

REQUIREMENTS;

The following two procedural requirements may now be discussed;

1) PUBLICATION

Unlike England and America, there is no statutory provision requiring

publication of delegated legislation. Yet the courts have treated some sort of
publication of delegated legislation as an essential requirement for its validity.

Is the requirement of prior publication of delegated legislation mandatory?

What will be the effect of non-compliance with this requirement? What is the
effect in defect in defect of publication of delegated legislation? These are some
of the problems which are not free from doubt. Let us consider them in the light
of leading cases.

In Narendra Kumar v.Union of India, Section 3 of the Essential

Commodities Act 1955 required all the rules to be made under the Act to be
notified in the Official Gazatte. The principles applied by the licensing authority
for issuing permits for the acquisition of non-ferrous metals were not notified.

In State of Maharastra v. MH Georgea, in this case a notification, dated

November 8 1962 was published in the Gazette of India on November 24, 1962
prohibiting import of gold in India except on certain conditions. The respondent
left Zurich on November 27, carrying gold with him and was arrested at the
Bombay airport on an November28. He pleaded his ignorance of the
notification. Negative the contention the Supreme Court held that the
notification had been published and made known in India and the ignorance
pleaded by the respondent accused was wholly irrelevant.

Special reference may now be made to a two Judge Bench decision of the
Supreme Court in CCE v. New Tobacco Co. there a notification enhancing
higher rate of duty on cigarettes was published on November 30, 1982 in the
Official Gazette. The notification was placed for sale to public on December 8,
1982. It was contented on behalf of the assessee that enhanced rate could only
be livable from December 8, 1982 when the notification was made available for
sale. The Department, on the other hand submitted that once the notification
was no further action was nece3ssary. The department relied upon MH George
and Pankaj Jain Agencies. Emphasizing on the right to know and distinguishing
pankaj jain agencies, albeit erroneously, the Supreme Court held that a
notification can be said to be have been published only when it is made known
to public at large, Mere publication of notification in Official Gazette was not
enough.

MODE OF PUBLICATION

A question may also arise about the mode, manner and method of
publication. As a rule, a distinction must be drawn between publication of
delegated legislation and the mode, manner of publication.

In Govindlal Chhaganlal patel v. Agricultural Produce Market

Committee, the notification was issued under the parent Act and was required
to be published in Gujarati in a newspaper being circulated in that area. The
Supreme Court held that the requirement of publication in Gujarati was
mandatory and as the same was not complied with the notification was invalid.

2) CONSULTATION

The term consult implies a conference of two or more persons or an impact

of two or more minds in respect of a topic in order to enable them to evolve a
correct or, at least satisfactory solution of a problem.

In India there is no general statutory provision requiring consultation with

the affected interested in the making of delegated legislation. But some statutes
specifically provide for consultations which fall under the following heads.

a) Official Consultation;

The rule making power is delegated subject to a stipulation that is to be

exercised in consultation with a named official authority or agency e.g. the
Central Government is required to made rules under Section 52 of the Banking
Companies Act 1949 after consulting the Reserve Bank of India.

b) Consultation with Statutory Bodies;

In certain statutes the rule-making power is conferred on the Central

Government which can be exercised after consulting the Boards concerned e.g.
the Central Government is empowered to make rules under Section 6 and 12 of
the Drugs Act 1940 after consulting the Drugs Technical Advisory Board.

c) Consultations with Advisory Board;

Under some statutes, advisory bodies are constituted to assist the

Central Government or other subordinate authorities in framing rules. Thus
mining Boards are constituted under the Indian Mines Act, 1901 to assist and
advise the Government in making rules.

d) Draft Rules by Affected Interests.

In some cases the power to frame rules is directly conferred on the

Central Government or other Section 61 of the Indian Mines Act, 1961 the
power is conferred on the owner of a mine to frame and submit to the Inspector
of Mines a draft of bye law for the prevention of accidents and for the safety
convenience and discipline of those employed in the mine. Ultimately, the draft
rules may be approved by the central Government after hearing affected
interests.

LEGISLATIVE CONTROL

Legislative control can be effectively exercised by;

1) Laying on table;

There are several types of laying. The extent of legislative control

necessarily differs in these cases. The Select Committee on Delegated
Legislation summarized the procedure under seven heads.

i) Laying without further provision for control.

Here the parent Act merely provides that the rules shall be laid before the
House and in exceptional cases, even before they are so laid. This procedure is
only to inform p0arliament as to what rules were made by the executive
authorities

ii) Laying with deferred operation;

 The requirement of laying is linked with postponement of operation of
the rules and thus parliament gets more control..

iii) Laying with immediate effect but subject to annulment;

Here the rules come into force when laid before parliament but cease to
be in operation if disapproved by it within a specified period. As May
comments this is the most common form of parliamentary control and is known
as the negative resolution procedure.

iv) Laying in draft but subject to resolution that no further proceeding be

taken;

This is also a negative resolution procedure. Here draft of statutory rules

are required to be laid before parliament but the parent Act provides that the
rules should not be made effective until a particular period has expired.

v) Laying in draft and requiring affirmative resolution;

This belongs to the realm of positive resolution and provides a stringent

parliamentary supervision over delegated legislation unlike the negative
resolution procedure. The draft rules do not become effective until an
affirmative resolution approving the same has been passed by parliament. An
opportunity is provided to the members to discuss and react to the rules before
they can finally be given effect to by the executive.

vi)Laying with operation deferred until approval given by affirmative

resolution;

Here the rules are actually made but they do not come into operation until
approved by parliament. There is virtually no difference between this procedure
and a positive resolution procedure discussed under head.

vii) Laying with immediate effect but requiring affirmative

resolution as a condition for continuance;

This form of laying is used where prompt operation of delegated

legislation is essential but strict parliamentary supervision is as also necessary.
The confirmatory resolution keeps the delegated legislation alive, which would
otherwise die. It is often applied in cases of taxation or to rules made during
Emergency.

2) SCRUTINY COMMITTEES;
 The function of these Committees is to scrutinize and report to the
respective House where the powers to make regulation rules sub-rules, bye-laws
etc; conferred by the Constitution or delegated by Parliament are being properly
exercised within such delegation. They act as watch dogs which bark and arouse
their master from slumber when they find that an invasion on the premises has
taken place.

SUB-DELEGATION OF LEGISLATIVE POWER

Besides delegation, there also prevails the institution of sub-delegation of

legislative powers. Sub-delegation is used on an elaborate scale as an
administrative technique in modern times. What happens is that the statue
confers legislative power on an agency and that agency may further delegate the
rule-making power either to itself, its officers, or another person or agency.
There are thus times when the process of delegation from one level to another
level goes on four or five degrees removed from the parent Act.

The process may be illustrated by reference to the practices which have

emerged under the Essential Commodities Act, 1955. The Act confers rule-
making power on the Central Government under section 3. This may be
regarded as the first stage of delegation. Under section 5, the Central
Government is empowered to delegate powers to its officers, the State
Governments and their officers. This provision is frequently made use of and
delegation under it may be characterized as the second stage of delegation. The
third stage is reached when the power is further sub-delegated by the State
Government or the official concerned.

An important point to note here is that there is the well established maxim-
delegates non potest delegate which means that a delegate cannot further
delegate his power unless the parent law permits him to do so. Therefore, a rule-
making authority can sub-delegate its legislative power only when the parent
statute authorizes sub-delegation. Sub-delegation of legislative power when not
authorized by law is ultra vires. Thus, if a law confers power on the Central
Government to make rules, it cannot further delegate that power to any other
officer unless the parent law itself gives authority to the Government to that
effect. Sub-delegation of power of delegated legislation s justified only where
the parent statute expressly or impliedly authorizes the delegate himself to
further sub-delegate that power to anyone else. Delegates' non-protest delegate
is a well known maxim which means that in the absence of any power a
delegated cannot sub-delegate its power to another person.

PROBLEMS UNDERLAY SUB-DELEGATION

 Sub-delegation raises several problems. The first is whether it is necessary
for the delegate to lay shown lines of guidance for the sub-delegate to follow, or
can there be a plain and smile sub-delegation without laying seen any policy-
guidelines for the sub-delegate to observe? The matter has arisen before the
Indian courts on a few occasions. The basic principle in this respect is that the
sub-delegate should not be given uncanalised and unguided legislative power.
Like delegation, sub-delegation is also subject to the doctrine of excessive
delegation.

The Supreme Court adopted a similar approach later in Laxmi Khandsari

v. State of State of Uttar Pradesh

An order was made under the power delegated by cl. 8 of the Sugarcane
Control Order passed under s. 3 of the Essential Commodities Act, 1955. cl.8 of
the Sugar-cane order conferred on the Central Government power to make
orders, issue directions to various persons connected with the production of
khandsari sugar or crushers of sugarcane.

Power under the clause was delegated to the Cane Commissioner who
made the impugned offer. Cl. 8 was challenged a invalid on the ground that it
gave no guidance to the delegate.

The Supreme Court rejected the argument arguing that the Sugarcane
Control Order was made under s.3 of the parent Act which contained sufficient
guidelines, checks, and balancers to prevent any misuse or abuse of the power
conferred on the authorities under cl.8 in addition, the power could not be
deemed to be arbitrary or unguided because the impugned notification derived
its source form s. 3 of the parent Act which clearly laid down sufficient
guidelines. The notification under the Control Order must be read in the light of
the main Act.

ULTRA VIRES

The Lok Shaba Committee on Subordinate Legislation has emphasized

that sub-delegation should not be made in very wide language, or that it should
not be made when the parent statute is silent on the point. The Committee ahs
also stated that there should be some safeguard imposed before a delegate is
allowed to sub-delegate its authority to another functionary. It has objected to
wide language used in statutes to permit sub-delegation. There is a strong
presumption against conferring a grant of legislative power as impliedly
authorizing sub delegation, therefore sub delegation can be held to be
permissible only when power to that effect is expressly conferred or when it can
be inferred by necessary implication.
 There is the well established principle that a sub-delegate cannot act
beyond the scope of the power delegated to him. This is the principle of ultra
vires. Reference may be made in this connection to the Chittoor case. The
Essential Commodities Act, a stated above, confers rule-making power on the
Central Government. The Central Government sub-delegated this power to the
State Government subject the condition that before making any rules, the State
Governments subject to prior concurrence of the Central Government. The
Supreme Court ruled in the instant case that any rule made by a State
Government without the concurrence of the Central Government would be ultra
vires.

UNIT-III

PRINCIPLES OF NATURAL JUSTICE OR FAIRNESS

Natural justice has been described as "fairplay in action". The doctrine of

natural justice seeks not only to secure justice but also to prevent miscarriage of
justice. The concept of natural justice is of variable content and imposes
variable procedural norms from case to case. Natural justice depends on the
circumstances of the case, the nature of inquiry, the rules under which the
adjudicatory body is acting the subject-matter that is being dealt with and so
forth.

It needs to be reiterated that the rules of natural justice operate only in

those areas not covered by any law validly made. In other words, these rules do
not supplant the law of the land but supplement it. Many a time the statute under
which as adjudicatory body functions may itself lay down procedure and this
would naturally have to be and this followed. But, usually, statute are either
completely silent as to the procedure, or may merely ordain that the parties shall
be heard before an action is taken or may lay down some skeletal procedural
norms.

Natural justice has meant many thing writers, lawyers, jurists and system
of law. It has many colours, shades, shapes and forms. Rules of natural justice
are not embodied rules and they cannot be imprisoned within the strait-jacket of
a rigid formula.

In Russel. v. Duke of Norfolk, thicker, L.J. observed there are, in my

view no words which are of universal application to every kind of inquiry and
every kind of domestic tribunal. The requirements of natural justice must
depend on the circumstances of the case, the nature of the inquiry, the rules
under which he tribunal is acting the subject-matter that is being dealt with, and
so forth.
 In A.K Kraipak Hegde, J. right observed what particular rule of natural
justice should apply to a given case must depend to a great extent on the facts
and circumstances of that case, the framework of the law under which the
enquiry is held and the constitution of the Tribunal or body of persons
appointed for that purpose. Whenever a complaint is made before a court that
some principle of natural justice had been contravened the court had to decide
whether the observance of that rules was necessary for a just decision on the
facts of that case.

In R., S Dass .v. Union of India, the supreme court said; It is well
established that rules of natural justice are not rigid rules; they are flexible and
their application depends upon the setting and the background of statutory
provision, nature of the right which may be affected and the circumstances of
each case.

KINDS PRINCIPLES OF NATURAL JUSTICE:

The traditional English law recognizes two principles of natural justice are

a) Nemo Debet ese judex in propria cause: No man shall be a judge in his own
cause or no man can act as both at the one and the same time -a party or a suitor
and also as a judge, or thed4eciding authority must be impartial and without
bias and

b) Audi alteram partem: Hear the other side, or both the sides must be heard, of
no man should be condemned unheard, of that there must be fairness on the part
of the deciding authority.

ABSENCE OF BIAS, INTERESRT OR PREJUDICE

According to the dictionary meaning anything which tends or may be

regarded as tending to cause such a person to decide a case otherwise than on
evidence must be held to be biased. A predisposition to decide for or against
one party, without proper regard to the true merits of the dispute is bias.

The first requirement of natural justice is that the judge should be

impartial and neutral and must be free from bias. He is supposed to be
indifferent to the parties to the controversy. He cannot act as judge kop a cause
in which he himself has some interest either pecuniary or otherwise as it affords
the strongest proof against neutrality. He must be in a position to act judicially
and to decide the matter objectively.

Types of bias.
 Bias is of four types

i) Pecuniary bias,

ii) Personal bias,

iii) Official bias or bias as to subject-matter,

iv) Judicial obstinacy.

i) Pecuniary bias

It is well-settled that as regards pecuniary interest the least pecuniary

interest in the subject-matter of the litigation; will disqualify any person from
acting as a judge.

In Dr. Bonham case Dr. Bonham, a doctor of Cambridge University was

fined by the college of Physicians for practicing in the city of London without
the license of the college. The statute unde4r which the college acted provided
that the fines should go half to the king and half to the college. The claim was
disallowed by coke, C.J. as the college had a financial interest in its own
judgment and was a judge fin its own cause.

In Visakapatanam Coop. Motor Transport co. Ltd. v. G.

Bangaruraju, a cooperative society had asked for a permit. The collector was
the President of that society and he was also a chairman of the regional
Transport Authority who had granted the permit in fervor of the society. The
court set aside the decision as being against the principles of natural justice.

In J. Mohapatra and Co. v. State of Orissa, some of the members of;

the committee set up for selecting books for educational institutions were
themselves authors whose books were to be considered for selection. It was held
by the Supreme Court that the possibility of bias could not be ruled out. Madon,
J. observed It is not the actual bias in favor of the author member that is
material, but the possibility of such bias.

ii) Personal bias.

The second type of bias is a personal one. A number of circumstances may

give rise to personal bias. Here a judge may be a relative friend or business
associate of a party. He may have some personal grudge, enmity or grievance or
professional rival against such party. In view of these factors there is every
likelihood that; the judge may be biased towards one party or prejudice towards
the other.
 In Rattan Lal v. Managing Committee, X was a witness as well as one
of the three members of an inquiry committee against A. At the inquiry, A was
found guilty and was dismissed. Setting aside dismissal and following Mohd.
Nooh, the Supreme Court held that the proceedings were vitiated because of
prejudice of one of the members of the committee.

In the leading case of A.K. Kraipak .v. Union of India, One N was a
candidate for selection to the Indian Foreign Service and was also a member of
the Selection Board. N did not sit on the Board when his own name was
considered. Name of N was recommended by the Board and he was selected by
the public Service Commission. The candidates who were not selected field a
write petition for quashing the selection of N on the ground that the principles
of natural justice were violated.

About the case, Bhagwati J. said; A.K. Kkraipak is a landmark in the

development of administrative law and it has contributed in a large measure of
strengthening of the rule of law in this country. We would not like to whittle
down in the slightest measure the vital principle laid down in this decision
which down which has nourished the rule of law and injected justice and fair
play into legality.

iii) Official bias

The third type of bias is official bias or bias as to the subject-matter. This
may arise when the judge has a general interest in the subject-matter.

According to Griffith and Street, only rarely will this bias invalidate
proceedings. A mere general interest in the general object to be pursued would
not disqualify a judge from deciding the matter. There must be some direct
connection with the litigation. Wade remarks that ministerial or departmental
policy cannot be regarded as a disqualifying bias.

In Gullapalli Nageswara Rao.v. A.P.S.R.T.C. The petitioners were

carrying on motor transport business. The Andhre state Transport Undertaking
published a scheme for nationalization of motor transport in the state and
invited objections. The objections filed by the petitioners in the state and heard
by the secretary and there after the scheme were approved by the chief Minister.
The Supreme Court upheld the contention of the petitioners that the official who
heard the objections was in substance one of the pastries to the dispute and
hence the principle of natural justice were violated.

But in Gallipoli, the Supreme Court qualified the application of the

doctrine of official bias. Here the hearing was given by the Minister and not by
the secretary was a part of the department but the minister was only primarily
responsible for the disposal of the business pertaining to that department.

In Institution of Chartered Accountants of India v. L.K. Ratna, a

member of the institution was removed on the ground of misconduct. The
question before the Supreme Court was whether the finding of the council
holding the members guilty can be said to be vitiated on account of bias because
the chairman and the Vice-president of the Disciplinary committee were ex
officio president and Vice-president of the Council and other members of the
committee were also drawn from the council.

iv) Judicial obstinacy

There may also be a judicial bias, i.e. bias on account of judicial

obstinacy. In State of W.B v. Shivananda pathak, a writ of mandamus was
wrought by the petition directing the Government to promote him. A single
judge allowed the petition ordering the authorities to promote the petition
forthwith. But the order was set aside by the Division Bench. After two years, a
fresh petition was filed for payment of salary and other benefits in the terms of
the judgment of the single judge. It was dismissed by the single judge. The
order was challenged in appeal which was heard by a Division Bench to which
one Member was la judge who had allowed the earlier petition. The appeal was
allowed and certain reliefs were granted. The state approached the Supreme
Court.

Allowing the appeal and setting aside the order the Apex court described
the case of a new form of bias. It said that if a judgment of a judge is set aside
by a superior court the judge must submit to that judgment. He cannot rewrite
overruled judgment in the same or in collateral proceedings. The judgment of
the higher court binds knot only the parties to the proceeding but also to the
judge who had rendered it.

Hear the other side (Audi altermpartem)

Audi alteram partem means hear the other side, or no man should be
condemned unheard or both the sides must be heard before passing any order. In
short, before an order is passed against any person, reasonable opportunity of
being heard must be given to him. Generally, this maximum includes two
elements:

i) Notice and

ii) Hearing.
i) Notice

Before any action is taken the affected party must be given a notice to
show cause against the proposed action and seek his explanation. It is a sine qua
non of the right of fair hearing. Any order passed without giving notice is
against the principles of natural justice is void ab initio.

In R v/ university of Cambridge Dr Bentley was deprived of his degrees

by the Cambridge University on account of his alleged misconduct without
giving any notice or opportunity of hearing. The court of Kings Bench declared
the decision as null and void.

In Ravi Naik v. Union of India, a member of Goa Legislative Assembly

was disqualified by the speaker. The relevant rules provided notice of seven
days or such further period as the speaker may for sufficient cause allow. In the
instant case, instant case, however notice gave only three days time.

Holding that there was no prejudice to the member and upholding the
action the Supreme Court stated that the principles of natural are flexible and
not immutable. Whether the requirements of natural justice have been complied
with or not has to be considered in the context of the facts and circumstances of
a particular case.

Elements of a valid notice

The notice to be valid and effective must be property served on the

concerned person. It must give sufficient time to enable the individual to
prepare his case. Thus to give one day's time to show cause against the proposed
action t a person who is out of station, or to call upon a delinquent employee to
show cause immediately and to permit his no time to consider the report against
him, amounts to a denial of notice. It depends upon the facts of each case
whether the individual was allowed sufficient time; to make representation
against the notice issued to him. In Canare Band, it was held that notice is the
first limb of the principle that no one should be condemned unheard. It must be
precise and unambiguous. It should apprise the party determinatively of the case
he has to meet and should give adequate time. In the absence of notice of the
kind and such reasonable opportunity, the order passed be comes wholly
vitiated. Again in Sohnlal Gupta it was observed that valid Notice is an essential
component constituting a reasonable opportunity.

In Satish Chandra's. Union of India. The Government of India gave a

seven days notice to Delhi Municipal Corporation for superseding the
corporation on a number of grounds. The Government turned down the request
of the corporation for extension of time be ten days to reply to the charges. In a
2 to 1 decision, the action of the Government was upheld by the Delhi High
court. The opinion of the dissenting judge in the instant case in more convincing
than the majority opinion. According to him; In considering the reasonableness
of the request for extension of time, it is not possible to ignore that the
corporation was not an individual, who had to act on it own and therefore,
involving a simple process of application of mind. It was a corporate body
composed of more; then 100 people and that the proposed suppression was a
very important matter for the body to deliberate.

In N.S. Transport v. State of Punjab a company had 33 stage carriage

permits of various routes. The transport commissioner, on receiving some
complaints against the company, issued a notice asking it to show cause why
action to cancel or suspend its permits should not be taken. The Supreme Court
held the notice to be bad. Reading the relevant statutory provision, the court
ruled that proposed penal action has to be particularized with reference to each
permit detailing the particular conditions for breach of which action is sought to
be taken in connection with a particular permit.

Service of notice

When a statute prescribes a particular mode to serve a notice, the

prescribed mode has to be followed. A statutory rule prescribed the following
modes to serve the notice;

(i) By delivering to him;

(ii) Sending it to him by registered post

(iii) Failing both by affixing it on the outer door of the residence.

A notice sent by registered post was returned undelivered. It was not then
served in mode.

ii) Hearing

The second requirement of Audi alteram partem maxim is that the person
concerned must be given an opportunity of being heard before any adverse
action is taken against him.

In the historic case of cooper v. Wandsworth Board of Works, the

defendant Board had power to demolish any building without giving any
opportunity of hearing if it was erected without prior permission. The Board
demolished the house of the plaintiff under this provision. The Board was not in
violation of the statutory provision. The court held that the Boards power was
subject to the qualification that no man can be deprived of his property without
having an opportunity of being heard.

Ridge v. Bldwin has rightly been described as the magna carta of natural
justice. In the case the plaintiff, a chief constable had been prosecuted but
acquitted on certain charges of conspiracy. In the course of the judgment,
certain observations were made by the presiding judge against the plaintiff's
character as a senior police. Taking into account those observation the Watch
committee dismissed the plaintiff from service.

The Court of Appeal held that the Watch Committee was acting as an
administrative authority and was not exercising judicial or quasi-judicial power,
and therefore, the principles of natural justice did not apply to their proceedings
for dismissal. Reversing the decision of the Court of Appeal, the House of
Lords by a majority of 4:1 held that the power of dismissal could not be
exercised without giving a reasonable opportunity of being heard and without
observing the principles of natural justice. The order of dismissal was, therefore,
held to be illegal.

Again, in Manika Gandhi v. Union of India, the passport of the

petitioner-journalist was impounded by the Government of India 'in pubic
interest'. No opportunity was given to the petitioner before taking the impugned
section. The Supreme Court held that the order was volatile of the principles of
natural justice.

In M.S. Nally Bharat Engineering Co. Ltd. v. State of Bihar, a senior

supervisor was dismissed form service by the Company for committing theft.
The dispute was referred to the Labour Court, Dhanbd, under the Industrial
Disputes Act, 1947. the workman made an application to the Labour Court
stating that since he was residing at Haripur, it would be convenient for him if
the case would be transferred to Labour court patna. That application was made
without intimation to the management. The Government also without issuing
notice or affording opportunity to the management acceded to the request of the
workman and transferred the case to Labour court, Patna. The petition filed by
the management against the said order was summarily dismissed by the High
court of Patna on the ground that no prejudice was caused to the company. The
management approached the Supreme Court.

Allowing the appeal and setting aside the order of the High Court as well
as the Government, the Supreme Court held that fairness required that an
opportunity of hearing ought to have been afforded to the company before
passing the impugned order.

CROSS-EXAMINATION
 Cross-examination was never considered to be part and parcel of the
doctrine of natural justice. It always depends upon the facts and circumstances
of each case whether an opportunity of cross-examination should be given to a
party against whom proceedings have been initiated.

If a statute permits cross-examination of witnesses examined at the

inquiry or adjudication, obviously, the opposite party can claim right to cross-
examine them. Normally, in disciplinary proceedings as also in domestic
inquiries, right of cross-examination is not denied.

In State of Kerala v. K.T.Shaduli, the returns filed by the respondent-

assessee on the basis of his books of account appearing to the Sales Tax Officer
to be incomplete and incorrect, since certain sales appearing in the books of
accounts of a wholesale dealer were not mentioned in the account books of the
respondent. The respondent applied to the S.T.O. for opportunity to cross-
examine the wholesale dealer which was rejected by him. Holding the decision
of the S.T.O. to be illegal, the Supreme Court held that the respondent could
prove the correctness and completeness of his returns only by showing that the
entries in the books of accounts of the wholesale dealer were false and bogus
and this obviously the respondent could not do unless he was given an
opportunity to cross-examine the wholesale dealer.

In Hira Nath Mishra v Principal, Rajendra Medical College, a

complaint was made that some male students entered quite naked into the
compound of the girls' hostel late at night. They were rusticated from the
college. Their prayer to cross-examine female students who had seen them was
denied. The Supreme Court the action observing that "the girl students would
not have ventured to male their statements in the presence of the miscreants
because if they did, they would have most certainly authorities are in no
position to protect the girl students outside the college precincts".

In Avinash Nagra v. Navodaya Vidyalaya samiti, a probationer teacher

in a co-education institution was charged with sexual advances to a girl student.
In spite of warning, he did not correct himself. At late night hours, he went to
girls' hostel and entered her room. Disciplinary authority terminated the services
of the teacher. He contends that he ought to have been granted an opportunity to
cross-examine the girl student. The Supreme Court, however, upheld the
termination observing that the facts of the case justified refusal of cross
examination by the school authorities.

Hearing would make no difference

It principles of natural justice are not observed and penal action is taken,
the action is liable to be set aside. A question, however may arise whether such
action can be sustained on the argument that even if notice would have been
issued or hearing afforded, it would have made no difference or no useful
purpose would have been served.

In Board of High School v. Kumari chitra Srivastave the board

cancelled the examination of the petitioner on the ground that there was
shortage in attendance at lectures. But no notice was given to her before taking
the action. On behalf of the Board it was contended that the facts were not in
dispute and no useful purpose would have been served by giving such notice.
The Supreme Court however did not uphold by contention.

In S.L. Kapoor v. Jagmohan, rejecting a similar argument, the Apex

court said; The non observance of natural justice is itself prejudice to any man
and proof of prejudice independently of proof of denial of natural justice is
unnecessary. It ill comes from a person who has denied justice that the person
who has been denied justice is not prejudiced.

In Aligarh Muslim University v. Mansoor Ali Khan, the relevant rule

provided automatic termination of service on unauthorized absence of employee
for certain period. Since M remained absent for more than five years, the post
was deemed to have been vacated. M challenged the order being volatile of
natural justice as no opportunity of hearing was afforded before taking thee
action. The court refused to set aside the order observing that there was no
prejudice to M. According to the court, the only conclusion which could be
drawn was that had M been given notice, it would not have made any
difference.

RIGHT OF CONUNSEL

The right of representation by a lawyer is never considered to be a part of

natural justice and it cannot be claimed a s of right, unless the said right is
conferred by the statute.

In Pett v. Geryhound Racing Assn. (II), Lyell, J. observed.

"I find it difficult to say that legal representation before a tribunal is an

elementary feature of the fair dispensation of justice. It seems to me that it
arises only in society which has reached some degree of sophistication in its
affairs".

But speaking generally, the right to appear through a counsel has been
recognized I Administrative Law. C.K.Allen rightly says, "Experience has
taught me that to deny persons who are unable to express themselves the
services of a competent spokes man is a very mistaken kindness".
POSITION IN INDIA

In India a few statutes, like the Industrial Disputes Act specifically bar
legal practitioners from appearing before the adjudicative bodies excepts under
certain conditioners, while certain others statutes recognize the right of being
represented through a lawyer.

In the case of disciplinary proceedings against civil servants, rules provide

that a civil servant may not engage a legal practitioner at the enquiry "unless the
Disciplinary Authority, having regard to the circumstances of the case, so
permits," thus, it is for the inquiry officer to permit or not legal representation to
the delinquent civil servant. But in certain circumstances, refusal by the inquiry
officer to permit legal representation to the employee may be challengeable in a
court on the ground of denial of natural justice, as for example when he is pitted
against a trained prosecutor.

The Supreme Court ruled in Johney D'Cuoto v. State of Tamil Nadu,

that the advisory board was wrong in rejecting detenu's request. He had a right
to be represented by a friend. The term 'friend' does not only mean "one who is
well know" by also one who is an "ally in a fight or cause supporter". A person
not being a friend in the normal sense could be picked up for rendering
assistance before the advisory board. Also, since the authority had the assistance
of high excise officials, the board has no justification to refuse detenu's request.

UNIT-IV

JUDICIAL AND OTHER REMEDIES

Administrative law provides for control over the administration by an

outside agency strong enough to proven injustice to the individual while leaving
the administration adequate freedom to enable it to carry on effective
Government. Due to increase in governmental functions, administrative
authorities exercise vast pores in almost all fields. But as has bee rightly
observed by Lord Denning, "properly exercised the new powers of the executive
lead to Welfare State, but abused they lead to the Totalitarian State". Without
proper and effective control and individual would be without remedy, even
though injustice is done to him. This would be contrary to the fundamental
concept in English and Indian legal systems in which the maxim 'ubi jus ibi
remedium' has been adopted since long. In fact, right and remedy are, but the
two sides of the same coin and they cannot be dissociated from each other.

CONSTITUTIONAL PROVISIONS
 The Founding Fathers of the Constitution of India were aware of the part
played by prerogative writs in England. They, therefore, made specific
provisions in the constitution itself empowering the Supreme Court and High
Courts to issue writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari for enforcement of Fundamental Rights (Articles 32 and
226) and also for other purpose (Article 226)

HABEAS CORPUS

The writ of habeas corpus is one of the most ancient writs know to the
common law of England. The Latin phrases 'habeas corpus' means 'have the
bodies'. This is a writ in the nature of an order calling upon the person who has
detained or arrested another to produce the latter before the court, in order to let
the court know on what ground he has been confined and to set him free id there
is no legal justification for the imprisonment. In other words, by this writ, the
court directs the person or authority who has detained another person to bring
the body of the prisoner before the court may decide the validity, jurisdiction or
justification for such detention.

In the leading case of A.D.M., Jabalpur v. Shivakant Shukla, Khanna, J.

stated: "The writ of habeas corpus is a process for securing the liberty of the
subject by affording an effective means of immediate relief from unlawful or
unjustifiable detention, whether in prison or private custody. By it the High
Court and the Judges of that court, at the instance of a subject aggrieved,
command the production of that subject an inquire into the cause of his
imprisonment. If there is no legal justification for that detention, the party is
ordered to release.

Who may apply?

An application for the writ of habeas corpus may be made by the person
illegally detained. But if the prisoner himself is unable to make such
application, it can be made by any other person having interesting the prisoner.
Thus, wife, husband, father, mother, sister, or even a friend may in such
circumstances make an application for the writ of habeas corpus. He should not,
however, be total stranger.

Habeas corpus and proclamation of emergency

Article 359 of the Constitution empowers the President to suspend the

right to move any court for the enforcement of such of the fundamental rights
conferred by Part III as may be mentioned in the Presidential Order.
 In Makhan Singh v. State of Punjab, the Supreme Court held that the
court cannot issue a writ of habeas corpus to set at liberty a person who has
been detained under the Defense of India Act, 1962 even if h is detention was
inconsistent with his constitutional rights guaranteed under Part III of the
Constitution if Presidential Order suspending fundamental fights under Articles
14, 21 and22 is in operation. But the Presidential Order does not debar the
jurisdiction of the court to decide as to whether the order of detention was under
the Defense of India Act, 1962 or rules made there under. It is open to the
petitioner to contend that the order was mala fide or invalid and in either of the
cases, he is entitled to move the court for the protection of his rights under
Articles 21 and 22 of the Constitution of India.

Unfortunately, however, in ADM v. Shivkant Shukla, the Supreme Court

by a majority of 4: 1 held that during the emergency and suspension of
Fundamental rights, no person has locus stand to move any court for a writ of
habeas corpus. As stated elsewhere, the majority judgment does not lay down
correct law. Fortunately, after the Constitution Act, 1978, rights conferred by
Articles 20 and 21 of the Constitution cannot be suspended even during
emergency.

Quo warranto

The term quo warranto means what is your authority. The writ of quo
warranto is used to judicially control executive action in the matter of making
appointments to public offices under relevant statutory provisions. The writ is
also used to protect a citizen form the holder of a public office to which he has
no right. The writ calls upon the holder

a public office to show to the court under what authority he is holding the
office in question.

In University of Mysore v. Govinda Rao, the Supreme Court observed:

"The procedure of quo warranto confers jurisdiction and authority on the
judiciary to control executive action in the matter of making appointments to
public offices against the relevant statutory provision; it also protects a citizen
being deprived of public office to which he may have a right".

Before the writ of quo warranto can be issued the following conditions
must be satisfied:

i) Such office must be of a public nature

ii) It must be of a substantive character

iii) It must be statutory

iv) The holder must be in actual occupation of the office

1) Public office

The office must be of a public nature,. By public office is meant an office

in which the public has a interest. Before the writ can be issued the court must
be satisfied that the office in question is a public office and the holder thereof
has no legal authority to hold the said office.

This writ will not lie in respect of office of a private nature, e.g. a
managing committee of a private school. On the other hand, the officers of the
Prime Minister, Chief Minister, Minister, Chief Justice Advocate General,
Speaker of a House of Legislature, Mayor, Councellor, etc. are public offices.

2) Substantive character

The office must be of a substantive character. The words 'substantive

character' means the office in question must be an independent official and not
merely a deputy of servant of others.

But the mere fact that office is held at pleasure will not make the office
one which is not substantive. Thus, the membership of the Privy Council, or the
office of an Advocate General of a State, or the Governor, through held during
the pleasure of the Crown can be said to be of a substantive character.

3) Statutory character

The office must be statutory or constitutional. Thus, a writ of quo

warranto may be issuer in respect of offices of the Prime Minister, Advocate
General, Judge of High Court Prosecutor, Speaker of a House of the State
legislature, members of a Municipal body, University officials, etc.

4) Actual occupation

The holder must be in actual occupation of the office and he must have
asserted his right to claim it. Mere claim to an office is not enough to justify
issuance of quo warranto. Such claim must be coupler with occupation and
usurpation.

Alternative remedy

If an alternative and equally effective remedy is available to the

applicant, a writ court may not issue quo warranto and relegate him to avail of
that remedy. Thus, when quo warranto may be refused when an alternative
remedy by making of an election petition is available to the applicant. But if the
objection taken by the petitioner falls outside the statutory remedy, the existence
of alternative remedy will be no bar to the writ of quo warranto. Existence of
alternative remedy, however, is not an absolute bar and a writ court has
distinction to issue quo warranto notwithstanding availability of alternative
remedy.

MANDAMUS

Nature and Scope

Mandamus means a command. It is an order issued by a court to a public

authority asking it to perform a public duty imposed upon it by the Constitution
of by any other law. Mandamus is a judicial remedy which is in the form of an
order from a superior court (the Supreme Court or a High Court) to any
Government, court, corporation or public authority to do or to forbear from
doing some specific act which that body is obliged under law to do or refrain
from doing, as the case may be, and which is in the nature of a public duty and
in certain cases of a statutory duty.

A writ of mandamus can be issued if the following conditions are

satisfied by the petitioner.

(i) Legal right

The petitioner must have a legal right. This is a condition precedent. It is

elementary that no one can ask for mandamus without a legal right. There must
be legally protected and judicially enforceable right before an applicant may
claim mandamus.

(ii) Legal duty

The second requirement for a writ of mandamus is that the opposite party
must have a legal duty to be performed. A legal duty must have been imposed
on the authority and the performance of that duty should be imperative, not
discretionary of some duty cast on the oppo In certain circumstances, however,
even if discretionary power is conferred on the authority and the statutory
provisions are made for such exercise of the said power, the writ of mandamus
can be issued for the enforcement of that duty. Such a duty must be a public
nature. If the public authority invested with discretionary power abuses the
power, or exceeds it, or acts mala fide, or there is non-applicant of mind by it, or
irrelevant considerations have been taken into account, the writ of mandamus
can be issued.
(iii) Good faith

An application for mandamus must have been made in good faith and not
for any ulterior motive or oblique purpose. A petition for mandamus albeit
made in good faith, will not be granted if designed to harass the respondent or
with a view to wreak personal grievances, or is really on behalf of some third
party.

(iv) Alternative remedy

Mandamus may be refused if alternative remedy is available to the

applicant.

(v) Against whom mandamus would not lie

A writ of mandamus will not lie against the President or the Governor of a
State for the exercise and performance of powers and duties of his office or for
any act done or purporting to be done by him in the exercise and performance of
those powers and duties. It will not lie against the State Legislatures to prevent
them from considering enacting a law alleged to be volatile of constitutional
provisions. It will not lie against an inferior or ministerial officer who is bound
obey the orders of his superior. "The writ of mandamus will not be granted
against one who is an inferior or ministerial officer, bound to obey the orders of
a competent authority, to compel him to do something which is part of his duty
in that capacity." It also does not lie against a private individual or any
incorporate body.

Mandamus is not issued to enforce civil liability arising under the law of
torts or contracts. In Sufanmal v. State of Madhya Pradesh, the Supreme
Court refused to issue mandamus to command the Government to refund money
illegally collected by it where the sole prayer was for the refund of money and
the statute had not expressly provided for its refund. However, the writ may be
issued to give consequential relief by ordering the refund of tax where the
petitioner is challenging the validity of the law imposing the tax, or the validity
f an order of assessment, or it may be issued where a statute expressly provides
for refund of the tax collected illegally. The writ is an inappropriate remedy
where a person claims damages against the Government for its tortuous action.

In S.I. Syndicate, the court refused to grant mandamus as there was no

such demand or refusal. Where a civil servant approached the court for
mansmus against wrongful denial of promotion, he was denied the relief
because of his failure to make representation to the Government against
injustice. The demand for justice is not a matter of form but a matter of
substance, and it is necessary that a "proper and sufficient demand has to be
made.

PROHIBITION

Prohibition is an extraordinary prerogative writ of a preventive nature. It

seeks to prevent courts, tribunals, quasi-judicial authorities and officers or
persons exercising judicial or quasi-judicial powers from usurping jurisdiction
or exercising jurisdiction no vest in them.

In East India Commercial Co. Ltd. v. collector of Customs, the Supreme

Court observed:

"A writ of prohibition is an order directed to an inferior Tribunal forbidding it

from continuing with a proceeding therein on the ground that the proceeding is
without or in excess of jurisdiction or contrary to the laws of the land, statutory
or otherwise.

Grounds

Essentially, both the writs of certiorari and prohibition can be issued when
an inferior court or tribunal acts without or in excess of its jurisdiction, or acts
in violation of principles of natural justice, or acts under a law which is ultra
vires or acts in contravention of fundamental rights or there is an error apparent
on the face of the record in exercising jurisdiction by the court or tribunal.

Absence or excess of jurisdiction

In case of absence or total lack of jurisdiction, writ of prohibition would

be available against a judicial or quasi-judicial authority prohibiting if from
exercising jurisdiction not vested in it. Thus, in case of levy of license fee
without authority of law, prohibition was issued. Again, if a taxing authority
proposes to impose tax on a commodity exempted under the Act, a writ of
prohibition can be issued.

Again, a distinction must be drawn between lack o jurisdiction and the

manner or method of exercising jurisdiction vested in a court or tribunal.
Prohibition cannot lie to correct the course, practice or procedure of an inferior
court or a tribunal or against a wrong decision on the merits.

Violation of natural justice

A writ of prohibition can also be issued when there is violation of the

principles of natural justice. In fact, is the principles of natural justice have not
been observed, e.g. if there is bias or prejudice on the part of the Judge or id no
notice was issued or hearing given to the person against whom the action is
sought to be taken, there is no jurisdiction vested in the court or the tribunal to
proceed with such matter.

Unconstitutionality of statute

A writ of prohibition will also be issued if a court or a tribunal proceeds to

act under a law which is ultra vires or unconstitutional. Thus, if the proceedings
are pending in a court or a tribunal under a statute which itself is ultra vires
Article 14, or Articles 25 and 26, of the Constitution or is beyond the
competence of the legislature, a writ of prohibition or is beyond the competence
of the legislature, a writ of prohibition can be issued against further
proceedings.

Infringement of fundamental rights

Prohibition may be issued where the impugned action infringes the

fundamental rights to petitioner. Thus, prohibition was issued against the
income tax assessment proceedings where the order by which the proceedings
were transferred to another officer was arbitrary and violative of Article.

Error of law apparent on the face of the record

Where there is an error of law, which is clear, patent and apparent on the
face of the record, a writ of certiorari lies for quashing and setting the order.
The same principle and reasoning applies where the proceedings are pending
before a court or tribunal. In such case, a superior court may restrain a
subordinate court or inferior tribunal from proceeding further in the matter
pending before it.

A writ of prohibition can lie only in cases where the proceedings are
pending before a judicial or qusi-judicial authority. Thus, when such authority
hears a matter over which it has no jurisdiction, the aggrieved person may move
a High Court for the writ of prohibition forbidding such authority form
proceeding with become functus officio, a writ of prohibition would not lie.
There the remedy may be a writ of certiorari.

Certiorari and prohibition

In Brij Khandelwal v. Union of India, the Delhi High Court refused to

issue prohibition to the Central Government to prevent it from entering into an
agreement with Sir Lanka regarding a boundary dispute. The decision was
based on the principle that prohibition does not lie against Government
discharging executive functions and that prohibition is intended to control
quasi-judicial, and not executive functions. But this view is no longer tamable.
With the expansion of the concept of natural justice, and the emergence of the
concept of fairness even in administrative functions, the frigidity about
certiorari and prohibition has also been relaxed. These writs can now issue to
anybody, irrespective of the nature of the function discharged by it, if any of the
grounds on which the writs are issued is present.

A writ of certiorari has been described as "one of the most valuable and
efficient remedies" derived from the Common Law.

Certiorari is essentially a royal command for information, the King

wishing to be certified of some matter, orders that necessary information be
provided to him. It is a method of bringing the record of a subordinate court or
an inferior tribunal before a superior court to correct errors of jurisdiction or of
law apparent on record and to decide whether the authorities had exceeded their
jurisdiction or errors of law committed by them had resulted in miscarriage of
justice.

Both prohibition an certiorari are judicial writs and are available against
subordinate courts and inferior tribunals. There is, therefore, no difference in
principle between certiorari and prohibition except in respect of timing of the
remedy; one before while the other after the decision. Prohibition and certiorari
are two complementary writs and frequently go hand in hand. A writ of
certiorari is corrective or remedial whereas a writ of prohibition is preventive.
Certiorari applies to a decision which is fait accompli; prohibition seeks to
prevent the fait from becoming accompli.

Sometimes both the writs might be necessitated. Thus, in a proceeding

before an inferior court, a decision might have been arrived at which case it
might be necessary to apply both certiorari and prohibition. Certiorari foe
quashing what has been decided; and prohibition for restraining further
continuance of the proceeding.

Grounds for issue of the writ

A writ of certiorari may be issued on the following grounds

i) Error of jurisdiction

When an inferior court or tribunal acts without jurisdiction, or in excess of

its jurisdiction or fails to exercise jurisdiction vested in it by law, a writ of
certiorari may be issued against it.
 In R. v. Minister of Transport, even though the Minister was not
empowered to revoke a license, he passed an order of revocation of license. The
order was quashed on the ground that it was without jurisdiction and, therefore,
ultra vires.

ii) Jurisdictional fact

Lack of jurisdiction may also arise from absence of some preliminary

facts, which must exist before a tribunal exercises its jurisdiction. They are
known as 'jurisdictional' or 'collateral' facts. The existence of these facts is a
sine qua non or a condition precedent to the assumption of jurisdiction by an
inferior court or tribunal. To put it simply, the fact the existence of which is
necessary to the initiation of proceedings and without which the act of the court
is a nullity can be said to be a 'jurisdictional fact'.

In State of M.P. v D.K. Jadav. Under the relevant statute all jagirs,
including lands, forests, trees, tanks wells, etc. were abolished and vested in the
State. However, all thanks tress, private wells and buildings on 'occupied land'
were excluded from the provisions of the statute. If they were on 'unoccupied
land' they stood vested in the State. The Supreme Court held that the question
whether the tanks, well, etc. was on occupied land or on 'unoccupied' land was a
jurisdictional fact.

Error apparent on the face of the record

If there is an error of law, which is apparent on the face of the record, a

decision of an inferior court or a tribunal may be quashed by a writ of certiorari.

But an error of fact, 'however grave it may appear to be' cannot be

corrected by a writ of certiorari. Where two views are possible, if an inferior
court or tribunal has taken one view, it cannot be corrected by a writ of
certiorari.

LIABILITY OF GOVERNMENT

In England, the Government was never considered as an honest man. It is

fundamental to the rule of law that the Crown, like other public authorities,
should bear its fair share of legal liability and be answerable for wrongs done to
its subjects. The immense expansion of governmental activity from the latter
part of the nineteenth century onwards made it intolerable for the Government
in the name of the Crown, to enjoy exemption from the ordinary law.

In India, history has traced different path. The maxim the King can do no
wrong has never been accepted in India. The union and the States are legal p-
persons and they can be held liable for breach of contract and in trot. They can
file suits and suits can be filed against them.

CONTRACTUAL LIABILITY

Constitutional provisions

Constitutional liability of the Union of India and States is recognized by

the Constitution itself. Article 298 expressly provides that the executive power
of the Union and of each State shall extend to the carrying on of any trade or
business and the acquisition, holding and disposal of property and the making of
contracts for any purpose.

Article 299(1) prescribes the mode or manner of execution of such

contracts. It reads as "All contacts made in the exercise of the executive powe4r
of the Union or of a state shall be expressed to be made by the president, or by
the Governor of the State, as the case may be and all such contracts and all
assurances of property made in the exercise of that power shall be executed on
behalf of the president or the Governor by persons and in such manner as he
may direct or authorize.

Requirements

Reading the aforesaid provision it becomes clear that Article 299 lays
down the following condition and requirements which must be fulfilled in
contracts made by or with the Union or a State:

1) Every contract must be expressed to be made by the president or the

Governor

2) Every contract must be executed by a person authorized by the

president or the Governor.

3) Every contract must be expressed in the name of President or the

Governor

WRITTEIN CONTRACT

A contract to be valid under Article 299(1) must be in writing. The words

expressed to be made and executed in this article clearly go to show that there
must be a formal written contract executed by a duly authorized person.
Consequently if there is an oral contract, the same is not binding on the
Government.
 In Union of India v. A.L. Rallia Ram, tenders were invited by the Chief
Director of purchases, Government of India. R's tender was accepted. The letter
of acceptance was singed by the Director. The question before the Supreme
Court was whether the provisions of section 175(3) of the Government of India
Act 1935 were complied with. The court held that the Act did not expressly
provide for execution of a formal contract. In absence of any specific direction
by the Governor-General, prescribing the manner or mode of entering in to
contracts, a valid contract may result from the correspondence between the
parties.

EXECUTION BY AUTHORISED PERSON

The second requirement is that such a contract can be entered in to on

behalf of the Government by a person authorized for that purpose by the
President or the Governor as the case may be. If it is singed b an officer who is
not authorized by the President or governor the said contract is not binding on
the Government and cannot be enforced against it.

In Union of India v. NK (P) ltd, the Director was authorized to enter

into a contract on behalf of the President. The contract was entered into by the
Secretary, Railway Board. The Supreme Court held that contract was entered
into by an officer not authorized for the said purpose and it was not a valid and
binding contract.

In State of Bihar V. Karma Chand Thapar, the plaintiff entered into a

contract with the Government of Bihar for construction of an aerodrome and
other works. After some work a dispute arose with regard to payment of certain
bills. It was ultimately agreed to refer the matter for arbitration. The said
agreement was expressed to have been made in the name of the governor and
was signed by the Executive Engineer. After the award was made, the
Government contended in civil court that the Executive Engineer was in a
person authorized to enter into contract under the notification issued by the
Government, and therefore, the agreement was void. On a consideration of the
correspondence produced in the case, the Supreme Court held that the executive
Engineer had been specially authorized by the Governor to execute the
agreement for reference to arbitration.

EXPRESSION IN THE NAME KOF PRESIDENT

The last requirement is that such a contract must be expressed in the name
of the President or the Governor as the case may be. Thus even though such a
contract is made by an officer authorized by the Government in this behalf, it is
still not enforceable against the Government if it is not expressed to be made on
behalf of the President or the Governor.
 In State of Punjab v. Om Prakash, The Executive Engineer PWD who
was authorized under the P"WD Manual to enter into a contract accepted the
tender of the contractor for construction of a bridge. The letter of acceptance
was signed by the Executive Engineer but was not expressed in the name of
Governor. The Supreme Court held that there was no valid contract. Reiterating
the principles laid down in earlier decisions and holding the provisions of
Article 299 mandatory and in public interest, the court ruled that the said
formalities could not be waived or dispensed with.

TORTIOUS LIABILITY

Doctrine of vicarious liability

Since the state is a legal entity and not a living personality it has to act
through human agency, i.e. through its servants. When we discuss the tortuous
liability of the state it is really the liability of the state for the tortuous acts of its
servants that has to be considered. In other words, it refers to when the state can
be held vicariously liable for the wrongs committed by its servants or
employees.

The doctrine of vicarious liability is based on two maxims:

i) Respondent superior (Let the principal be liable)

ii) Qui facit per alium facit per se(He who does an act through another does it
himself)

So far as Indian law is concerned the maxim "the King can do no wrong"
was never fully accepted. Absolute immunity of the government was not
recognized in the Indian legal system in past. Kings were always subject to rule
of law and to the system of justice prevalent at the relevant time. According to
Manu, it was the duty of the King to uphold the law as he himself was subject to
law like any other ordinary citizen. Brihspati had taken note of vicarious
liability of state and observed that wherever a servant did an improper act for
the benefit of his master, the latter could be held responsible.

Under Article 294(b) of the constitution, the liability of the union

Government or a state Government may arise out of any contract or otherwise.
The word otherwise suggests that the said liability may arise in respect of
tortuous acts also. Under Article 300(1) the extent of such liability is fixed. It
provides that the liability of the union of India and the provinces before the
commencement of the constitution.
 Peninsular &Oriental Steam Navigation Co. v. Secy. of State is
considered to be the first leading decision of the High court of Calcutta on the
point. There the distinction was made between sovereign and non-sover4eign
function of the state. In that case a servant of the plaintiff company was taking a
horse driven carriage belonging to the company. While the carriage was passing
near the government dockyard certain workmen employed by the Government
negligently dropped an iron piece on the road. The horses were startled and one
of them was injured. The plaintiff company filed a suit against the defendant
and claimed Rs 350 as damages. The defendant claimed immunity of the crown
and contended that the action was not maintainable. The High court of Calcutta
held the action against the defendant was maintainable and awarded the
damages.

In State of Rajasthan v. Vidhyawati a jeep was owned and maintained

by the state of Rajasthan for the official use of the collector of a district. Once
the driver of the jeep was bringing it back from the workshop after repairs. By
his rash and negligent driving of the jeep a pedestrian was knocked down. He
died and his widow sued the driver and the state for damages.

A constitution Bench of the Supreme Court held the state vicariously

liable for the rash and negligent act of the driver. The court after referring to the
P&O Steam Navigation Co. did not go into the wider question as to whether the
act was a sovereign act of not. But it held that the rule of immunity based on the
English law had no validity in India.

In Kasturi Lal, a certain quantity of gold and silver was attached by police
authorities from one R on suspicion that it was stolen property. It was kept in
Government malkhana which was in the custody of a Head Constable. The
Head Constable misappropriated the property and fled to Pakistan. R was
prosecuted but acquitted by the court. A suit for damages was filed by R against
the state for the loss caused to him by the negligence of police authorities of the
State. The suit was tested by the state. Following the ratio laid down in P & O
steam Navigation Co., the Supreme Court held that the State was not liable as
police authorities were exercising 'sovereign functions'.

Thus, in State of Gujarat v. Memon Mahomed Haji Hasam, certain

goods of the respondent were seized by the Customs Authorities under the
provisions of the Customs Act, 1962, inter alia on the ground that they were
smuggled goods. An appeal was filed against that order by the respondent.
During the pendency of the appeal the goods were disposed of under an order
by the Magistrate. The appeal filed by the respondent was allowed and the order
of confiscation was set aside and the authorities were directed to return the
goods. In an action against the Government, the supreme Court held that the
Government was in a position of a bailee and was, therefore, bound to return the
goods.

DOCTRINE OF PUBLIC AACCOUNTABILITY

The concept of public accountability is a matter of vital public concern.

All the three organs of the government viz. legislature, executive and judiciary
are subject to public accountability. Public offices, big or small are sacred
trusts. Every holder of public office is a trustee whose highest duty is to the
people of the country. Every act of the holder of public office should be for
public good. Emphasis now is on reviewability of every action of the state or its
instrumentalities. All powers possessed by a public authority are for public
good.

When illegal and unauthorized electric supply resulted in breaking of fire

causing death and destruction of property it was held that the administration was
liable to pay compensation. In Arvind Dattatraya Dhande v. State of
Maharashtra, the Supreme Court set aside an order of transfer of police officer
observing that the action was not taken in public interest but was a case of
victimization of an honest officer at the behest of person interested to target
such officials. It is most unfortunate that the Government demoralizes the
officers who discharge in black marketing and contra banding liquor.

Personal liability.

A breach of duty gives rise in public law to liability which is known as

misfeasance in public office. Exercise of power by ministers and public officers
must be for public good and to achieve welfare of public at large. Wherever
there is abuse of power by an individual he can be held liable. An action cannot
be divorced from the actor. A public officer who abuses his official position can
be directed to pay compensation damages or costs.

In Common cause A Registered society v. Union of India. The

petroleum Minister made allotment of petrol pump arbitrarily in favor of his
relatives and friends. Quashing the action the Supreme Court directed the
Minister to pay fifty lakh rupees as exemplary damage to public exchequer and
fifty thousand rupees towards costs.

It may, however, be stated that in a review petition, the Supreme Court

applying totally wrong principles of criminal law (sections 405-09, India Penal
Code), set aside the order of payment of damages holding that there was no
finding recorded in the main judgment that an action of allotment of petrol
pumps to 'Kiths and Kins' by the Minister was arbitrary, discriminatory and
mala fide.
Judicial accountability

The doctrine of public accountability applies to judiciary as well. Every

organ of the government is subject to criticism for its flaws and drawbacks and
judicial institution is not an exception to it. An essential requirement of justice
is that it should be dispensed as quickly as possible. It has been rightly said:
"Justice delayed is justice denied." Delay in disposal of cases can, therefore, be
commented. Whereas comment and criticisms of judicial functioning, on
matters of principle, are healthy aids for introspection and improvement, the
functioning of the Court in relation to a particular proceeding is not permissible.
There should not be biased mind on account of 'judicial obstinacy'. All judicial
functionaries must possess in flinching character to decide every case
objectively and with an unbiased mind.

Even on administrative side, the judiciary must act judiciously.

A Judge cannot act in public controversies nor can he make disparaging

remarks against the Chief Justice or against a Brother Judge.

The concept of public accountability is a matter of vital public concern.

Al, the three organs of the government, viz. legislate, executive and judiciary
are subject to public accountability.

Public offices, big or small, are sacred trusts. Every holder of public office
is a trustee whose highest duty is to the people of the country. Every act of the
holder of public office should be for public good. Emphasis now is on
reviewability of every action of the State or its instrumentalities. All powers
possessed by a public authority are for public good.

When illegal and unauthorized electric supply resulted in breaking of fire

causing death and destruction of property, it was hold that the administration
was liable to pay compensation. In Arvind Dattatraya Dhanade v. State of
Maharashtra, the Supreme Court set aside an order of transfer of a police officer
observing that the action was not tale in public interest but was a case of
victimization of an honest officer at the behest of persons interested to target
such officials. "it is most unfortunate that the Government demoralizes the
officers who discharge their duties honestly and diligently and brings to book
the persons indulging in black marketing and conrtabanding liquor."

GOVERNMENT PRIVILEGES IN LEGAL PROCEEDINGS

In England, the Crown enjoys the common law privilege that it is not
bound by a statute unless it is expressly named therein or is bound by necessary
implication. This common law principle emanates from the royal prerogative
that the King can do no wrong. The view is thus held that a statute enacted with
the Crown's assent is made for the subjects only and that the Crown is outside
its purview.

The Supreme Court in 1960 in Director of Rationing v. Corporation of

Calcutta. The facts of the case were as follows: S. 386(1) (a) of the Calcutta
Municipal Act, 1923 prohibited any person fro storing rice, flour, etc., in any
premises without a license bring granted by the Calcutta Corporation. The
Director of Rationing of the Food Department, West Bengal Government, was
sought to be prosecuted by the corporation for storing these commodities
without a license. The question for consideration arose whether the government
was bound by s. 386(1) (a). Answer to this question depended on the answer to
another question, viz., whether the rule that the state was not bound by a
statutory provision which depended on the concept of monarchy could still
apply in the republican India. The Supreme Court held by majority that the old
rule continued and that the state would not be bound by a statute unless it was
so laid down in express terms in the statue or unless that result arose by
necessary implication.

GOVERNMENT PRIVILEGE NOT TO PRODUCE DOCUMENTS

The government has privilege not produce its unpublished record in

courts. S. 123 of the Evidence Act, 1872, provide:

No one shall be permitted to give any evidence derived from unpublished

official records relating to any affairs of State, except with the permission of the
officer at the head of the department concerned, who shall give or withhold such
permission as he thinks fit.

This provision gives a great advantage to the government in any litigation

between it and any private person for it can withhold a document which may be
material and relent to the case. If the government is allowed to exercise
unchecked its privilege to withhold documents from the courts in the name of
secrecy, security or national interest, then it possible for it to use this power to
serve its own ends, e.g. to defeat even the legitimate claims of the other party,
or avoid adverse impact on itself, its ministers or the departmental heads.

Let us consider some important decisions on the point:

State of Punjab v. Sodhi Sukhdev Singh is the leading case on the

subject One S, a District and Sessions Judge was removed from service by the
President of India. In pursuance of the representation made by him, he was re-
employed. Thereafter, he filed a suit for declaration that the order of removal
was illegal, void and inoperative. He also claimed arrears of salary. He filed an
application for production of certain documents. The State claimed privilege.
The Supreme Court by majority held that the documents in question were
protected under Section 123 of the Evidence Act and could be withheld from
production on the ground of public interest.

In Amar Chand v. Union of India, the Supreme Court reiterated the

principle laid down in Sodhi Sukhdev Singh. There, A had filed a suit against
the Government for recovery of certain amounts. During the course of he trial,
A called upon the defendants to produce certain documents. The defendants
claimed privilege. Following Shodhi Sukhdev Singh, the Supreme Court
rejected the claim of the defendants.

DOCTRINE OF ESTOPPEL

The doctrine of estoppel is well settled in Administrative law and

Constitutional Law. It has been accepted in various legal systems. It is called
'promissory estoppel', 'equitable estoppel', or 'new estoppel'. It is a principle
evolved by importing equity into law.

Meaning

Stated simply, estoppel is a bar which prevents a party from prevents a

party from asserting a fact of putting up claim inconsistent with the position he
previously took either by words or by conduct, it is thus a rule which precludes
a person from saying one thing at one stage and another thing, totally
inconsistent with the earlier one, at another stage.

Essential elements

Estoppel is a complex legal notion, involving a combination of several

essential elements - statement to be acted upon, action on the faith of it,
resulting in detriment to the actor.

Before doctrine of estoppel can be pressed into service and benefit thereof
is claimed, the following conditions must be fulfilled:

(i) A representation or conduct amounting representation must have

been made;

(ii) The other party to whom representation was made have acted upon
such representation; and

(iii) He must have acted to his detriment or suffered as a result of such

representation.
 There are three distinct phases in the development of the doctrine of
estoppel, viz. the position before Anglo-Afghan; Anglo-Afghan and after,
Motilal Padamput and after.

(a) Phase I: Before Anglo-Afghan

The judicial opinion consistently took the position that no estoppel would
apply against the Government in the matter of operation of a statue. Thus, the
Patna High Court stated that admissions made by Government servants under a
misapprehension with regard to any legal consequence as to the true
interpretation of law would not bind the Government. In Amar Singh v. State of
Rajasthan, the Supreme Court refused to apply estoppel against the Government
in the following fact situation: the collector gave an assurance that the jagir of
the petitioner would not be acquired during her lifetime under the Rajasthan
Land Reforms Act, 1952. Later the Government initiated resumption
proceedings against the petitioner. The petitioner argued that the Government
was stopped from going back on the assurance and undertaking given by it
earlier. Refusing to accept the plea, the Supreme Court stated that the assurance
would not bind the Government because "its powers of resumption are regulated
by the statute, and must be exercised in accordance with its provisions. The Act
confers no authority on the Government to grant exemption from resumption,
and an undertaking not to resume will be invalid, and there can be no estoppel
against a statute.

In Municipal Corporation of the City of; Bombay v. Secretary of State.

The Bombay High court held that even in the absence of a formal contract as
required by the statute, the Government could be bound by a representation
made by it. In this case, the Government of Bombay wanted to requisition some
land on which stood a municipal fish and vegetable market. The municipality
offered to remove the structures it the Government would agree to rent to it
other land at a nominal rent. The Government accepted the suggestion and by a
resolution dated December 9, 1865, sanctioned the site for establishing the new
market and also agreed not to charge any rent from the municipality for the land
in question. The municipality constructed the market thereon. Twenty four years
later, the Government served notice on the municipality determining the
tenancy and asking it to deliver possession of the land occupied by the market,
and to pay in the meantime rent at a specified sum.

b) Phase II: Angol Afghan and after

In Union of India. V. Anglo afghan Agencies Ltd. The Supreme Court

applied promissory estoppels against the Government on equitable grounds. The
central Government notified in the Gazette an export promotion scheme under
which an exporter of wollen textiles and goods was to be entitled to import raw
materials equal to 100 per cent of the FOB value of exports. In case the Textile
Commissioner considered that the declared value of the goods exported was
higher than the real value of the goods, he could investigate the matter, assess
the correct value of the goods exported, and issue an entitlement certificate
accordingly. In the instant case, an exported claimed to have exported goods
worth 5 laces of rupees. The Textile Commissioner issued to him an export
entitlement of only 1.99 laces. He did not give any opportunity of hearing to the
exporter. The exporter challenged the order of the Textile Commissioner. The
Centre Government resisted the exporter's claim by arguing that the scheme was
merely administrative in nature and, therefore, created no rights in the exporter
and cast no obligation on the Government to issue the import license to him.
The court rejected the Government's contention and held that the scheme was
binding on the Government and that the exporter was entitled to get the benefit
promised by it. Assuming that the scheme in question had no statutory force and
was merely executive in character, the Government was not entitled at its mere
whim to ignore the promises made by it. The court refused to accept the plea
that the Textile Commissioner was the sole judge of the sole judge of the
quantum of import license to be grants to an exporter, and that the courts were
powerless to grant relief, if the promised import license was not given to an
exporter who had acted to his prejudice relying upon the representation.

The court made the following pithy observation: "Under our jurisprudence
the Government is not exempt from liability to carry out the representation
made by it as to its future conduct and it cannot out the promise solemnly made
by it, nor claim to be the judge of its own obligation to the citizen or an ex prate
appraisement of the circumstances in which the obligation has arisen.

c) Phase III: Resurrection of Estoppel

Motilal Padampat:- in motilal Padampat Sugar Mills V. State Of Uttar

Pradesh, the doctrine found its most eloquent exposition. Here the Government
of Uttar Pradesh gave an assurance through a statement published in the
newspapers, and also individually to the petitioners, that new industrial units in
the State would be exempt from sales tax for a period of three years to enable
them to find firm footing in the development stage. Acting on this assurance,
the petitioners established a mill in the state. Later, the Government retracted its
assurance and sought to impose sales tax on the petitioners on the ground of
equity. The Government had made a categorical representation knowing or
intending that it would be acted upon by the appellants and since they did act
upon the representation and altered their position, the factual basis for setting up
the doctrine of promissory estoppels was present and the Government was
bound to make good the representation made by it.
d) After Motilal Padampat

But the impact of Motilal Padampat was diluted by Jit Ram Shiv Kumar v.
State of Haryana. The Municipal Committee of Bahadurgah established a mandi
at Fateh. The committee resolved in 1916 that the purchasers of the plots in the
mandi would not be required to pay octroi duty on goods imported within the
mandi. Handbills were distributed for the sale of plots on this basis. In 1917, the
committee passed another resolution immunizing the mandi from payment of
octroi for ever. This State of affairs continued till 1953. in 1954, the committee
reiterated the same position in a resolution and the State Government confirmed
the resolution. Thereafter, the committee changes its mind and resolved to levy
octroi in the mandi, but the State Government annulled this resolution. In 1965,
again the committee resolved to levy the octroi and this time the Haryana
Government approved the resolution. There upon, the committee stated
charging octroi duty on the goods imported into the mandi. The petitioners
challenged the committee's resolution and Government's sanction as illegal,
ultra vires and without jurisdiction. The court ruled that the action of the
Government could not be questioned because

i) It was in exercise of its statutory functions and the ples of estoppel was not
available against the State in the exercise of its legislative or statutory functions;
and, further,

ii) Even on facts, the plea of estoppels was not available as against the
Government as it made no representations to the petitioners. The court also
ruled than the municipality could not estopped from levying octroi in the market
on the basis of its earlier resolution was ultra vires its powers. "When a public
authority acts beyond the scope of its authority the plea of estoppel is not
available to prevent the authority from acting according to law. It is in public
interest that no such plea should be allowed.

UNIT V

CORPORATION AND PUBLIC UNDERTAKINGS

In the modern democratic world, not all trade, commerce or business

activity is left to private enterprise. In every country to some extent,
Government also participates in this activity. In India, the trend of Government
entering into business and industrial activities, has been on the increase since
the independence. To-day the public enterprises play a pivotal role in the
economy of the country. This development has been facilitated by certain
constitutional provision and economic policies. As regards that Constitution for
example, Art, 298 extends the executive power of the Center and the States to
carrying on any trade or business.
 The Industrial Policy Resolution of 1956, defining the role of the
Government in the economic affairs of the country, laid down that all industries
of basic and strategic importance, or in the nature of public utility services,
should be in the public sector.

Since 1950 has been to make the public sector dominant vis-à-vis the
private sector. This has some of the existing private sector enterprises and
establishing monopoly position for the State in some areas. Thus, air transport
was nationalized in 1953; in 1956, life insurance business was taken over by the
Government form private hands; and in 1969, fourteen commercial banks were
nationalized. General insurance and coal mines were nationalized in 1972 and
1973 respectively.

In India, public corporations may be classified into four 'ill-assorted' main

groups:

i) Commercial corporations;

ii) Development corporations;

iii) Social services corporations

iv) Financial corporations

i) Commercial corporations

This group includes those corporations which perform commercial and

industrial functions. The managing body of a commercial corporation resembles
the Board of Directors of a public company. As their functions are commercial
in nature, they are supposed to be financially self-supporting and they are also
expected to earn profit.

ii) Development corporations

The modern State is a 'Welfare State'. As a progressive State, it

exercises many non-sovereign functions also. Development corporations have
been established with a view to encourage national progress by promoting
developmental activities. As they arena commercial undertakings, they may not
be financially sound at the initial stage and may require financial assistance
from the Government. Oil and Natural Gas Commission (now corporation),
Food Corporation of India.

iii) Social service corporations

 Corporations which have been established for the purpose of providing
social services to the citizens on behalf of the Government are not commercial
in nature and therefore, are not expected to be financially self-supporting. In
fact, as their object is to render social service, they are not required to conduct
their affairs for the purpose of earning profits.

iv) Financial corporations

This group includes financial institutions, like Reserve Bank of India,

State Bank of India, Industrial Finance Corporation of India, Life Insurance
Corporation of India and Film financing Corporation. They advance loans to
institutions carrying on trade, business or industry o such terms and conditions
as may be agreed upon. They may provide credit to those institutions which find
it difficult to avail of the same or which do not find it possible to have recourse
to capital issue method.

CORPORATION HAS A DISTINCT PERSONALITY

A Government company or a statutory corporation is regarded as a distinct

or separate entity from the government. Though a Government company is
owned by the government; its directors are nominated or removed by it, and the
company has to give effect to the directives issued by the Government,
nevertheless, in the eye of the law, the company or the corporation is regarded
as distinct personality having an existence and a juristic personality of its own,
separate form the concerned government. In the eye of the law, the company is
its own master and it cannot be regarded as an agent of the Government any
more than a company can be regarded as an agent of the shareholders. A public
Corporation is a Corporation formed for public purpose e.g. local Government
authorities.

In State Trading Corporation v. Commercial Tax Office,

The question was raised whether the state Trading Corporation

notwithstanding the formality of its incorporation under the Companies Act,
was in substance a department and organ of the Central Government?
Hidayatullah J answered this question in the negative. He pointed out that none
of the shareholders holds his shares for his personal beneficial enjoyment none
of them has paid for the share or shares held by him. The administration of the
affairs of the corporation though technically a company is the concern of the
Central Government. The legal and beneficial ownership of the corporation
vests in the Government of India. if the veil of the corporation is pierced one
would see the Government of India behind it. But he said that it was not
permissible to tear the veil. The corporation was to be regarded as a separate
entity from the government.
GOVERNMENT CONTROL

The Government exercises control over public undertakings through

various means, such as, appointment to top positions and removal of persons
from those positions; appointment of ministerial representatives on the board of
management; issue of directives and orders by the ministry concerned, and
approval of specific actions and policies of the board of an undertaking by the
ministry. In the case of all public undertakings, Government exercises power to
appoint and remove, the chairman, director of members of the board and the
managing Director. Appointment of senior executive officers in theses
enterprises is also to some extent controlled by the government.

PARLIAMENTRY CONTROL

It is for parliament to ensure that these enterprises are run efficiently and
monopoly condition do not tempt an undertaking to exploit the consumer.
Though parliamentary accountability of these enterprises is called for, yet it has
to be balanced with the requirements of autonomy and initiative of these
undertakings.

All statutory corporation owe their existence to their constituent statutes

which are enacted by parliament. It is for parliament to dentine in the
constituent statute the powers of the corporation and the degree of independence
it is allowed to enjoy.

Members of the two Houses of Parliament put questions to ministers to

elicit information on important matters. Since ministers have full control over
departments in their charge, questions can be asked of them with respect to any
mater of detail concerning their departments.

PARLIAMENTARY COMMITTEES

Parliament is too large and busy body to be able to probe adequately into
the details of the working of public enterprise. It cannot also examine senior
officials who advise ministers in the matter of formulation of Government
policies pertaining to these undertakings or who themselves take decisions on
various issues relating to them. In order to make its control over Government
undertakings somewhat meaningful, parliament has constituted the Committee
on Public Undertakings.

The committee came into existence on May 1, 1964, in pursuance of a

resolution passed by the Lok Sabha on November 20, 1963. it combines within
itself the function of both the Estimates Committee and the Public Accounts
Committee with respect to public undertakings. It consists of 22 mimbers-15
from the Lok Sabha and 7 from the Rajya Sabha. The members are elected
every year by each House according to the principle of proportional
representation by means of a single transferable vote. A minister cannot be a
member of the committee. The chairman is appointed by the Speaker from
amongst the members. The functions of the committee are:

a) To examine the reports and accounts of the specified public undertakings

b) To examine the reports, if any, of the Comptroller and Auditor-General on

the public undertakings

c) To examine, in the context of the autonomy and efficiency of the public

undertakings, whether their affairs are being managed in accordance with sound
business principles and prudent commercial practices

d) To examine such other functions vested in the Public Accounts Committee

and the Estimates Committee in their relation to the specified public
undertakings as are not covered by clauses (a),(b) and (c) above, and as may be
allotted to the committee by the Speaker from time to time.

JUDICIAL CONTROL

Public undertakings are subject to judicial control as well. These

numerous undertakings occupy a place of crucial importance in the country both
administratively as well a economically. The main problem therefore id to keep
these variegated bodies under some semblance of judicial control and to bring
these bodies under the discipline of public law.

Traditionally, judicial control on corporations is exercised through the

doctrine of ultra vires which is also applied in case of public limited companies.
A statutory corporation has to act, like any enter company, within the terms of
its memorandum of association. Therefore, if a corporation exceeds its
authority, the court may declare its action as ultra vires.

Ombudsman:

Historical development of Omudsman in India.

Ombudsman is an institution or public official appointed to investigate

citizen complaint against government agencies.

In India , the Ida of an independent authority for working into citizens

grievances really originated as part of the search for solution to the growing
corrupt practices in the fifties.
 In 1952, there was animate discussion in parliament on various fact of
the problem of corruption in government at the time of consideration of the
prevention of corruption bill, the criminal law amendment bill, and the
commission of enquiry bill.

The demand of the independent agency to enquire into complaints of

corruption prevalent at the higher level ( which was the forerunner to the
proposal for ombudsman type of institution in India) . was for the time
formally and authoritatively by the then chairman of UGC and former minister
of finance asked for the establishment of a higher level , impartial , standing
judicial tribunal to investigate and report on complaints are lying of information
and further promised a that if such a tribunal was set up. " I shall be happy to
make a beginning by lodging half a dozen report myself. Later on in this
private e corresponding with Pt. Jawaharlal Nehru, the then P.M of India , the
Desh much was willing to divulge the information only before and independent
judicial tribunal , if one was set up for the purpose.

Then after public opinion and parliamentary debate has been focused
increasingly on the desirability of setting up of effective missionary to look into
the grievances of individuals against the administration. but Pt.Nehru opposed
the formation of such a tribunal , at a press conference on 8 January 1960 , and
also in parliament. On the grounds that such a tribunal should be repugnant to
democratic practice and would create and atmosphere of distrust and mutual
accusation. He suggests the appointment of a judge for looking into the
allegation make by Dr.Deshmuch.

The importance of such machinery was urged by third all India law
conference held on 12-14 August 1962, during the debate the minister of law ,
Dr.L.M.Singhvi, stressing the need for the setting up of an ombudsman
institution.

In October 1963, the madras provincial bar asocial supported the

creation of institution of the ombudsman for India. In September 1963 the
administrative reform committee of Rajasthan recommended appointment of a
n ombudsman to look into the complaint against high court official and
ministers.

Addressing the all India congress committee on the working of the

kamaraj plan at jaipur on 3 November 1963 , the late P.M , Mr.Pt.Nehru
welcome the idea of the ombudsman who shout have the authority to deal with
the charges the P.M and command respect and confidence from all.

The appointment of an independent officers of parliament known as

ombudsman, which could deal with the public grievance , for eradicating
corruption at all level . For redressing administrative wrong and excesses. , for
securing the liberties of citizen's and generally for strengthening the basic
foundation of parliamentary democracy as a system of government was urged in
a private members resolution by Dr.L.M.Singhvi in loksabha in April 1964.
Dr. Sighvi moved second time a resolution in the loksabha for setting up an
ombudsman.

The loksabha discussed the resolution on the 3rd April and 22dn April
1964. During the course of debate all sections of the house expressed support to
the proposal. However the resolution was withdrawn by Dr. Singvi on an
assurance given by the minister of the state Home affairs that the government
would get the entire matter investigated in full detail.

In pursuance of a demand made in parliament the Government of India

constituted a special consultative group of members of parliament in early 1965
on administrative reforms. At it fourth meeting held on 8-9 June 1965, the
group appointed 3 sub-committee with specific reference to public grievance.

THE INSTITUTION OF LOKPAL

Section 3 of the lokpal bill deals about the establishment of lokpal.

The lokpal shall consist of-

a) A chairperson who is or has been a chief justice or a judge of the

Supreme Court.

b) Two members who are or have been the judges of the Supreme Court or
the chief justice of the high courts.

The chairperson and other members shall be appointed by the president by

warrant under his hand and seal. Provided that every appointment under this
section shall be made after obtaining the recommendation of a committee
consisting of-

a) the vice president of India

b) the prime minister

c) the minister in charge of the ministry of home affairs in the Government

of ;India

d) the leader of the house other then the house in which the prime minister is
a member of parliament.
e) The speaker of the house of the people

f) The leader of the opposition in the house of the people

g) The leader of the opposition in the council of state

Term of office.

The chairperson and every other member shall hold office as such for a
term of 3 years from the date on which he enters upon his office or until he
attains the age of seventy years whichever is earlier.

Provide that he may-

a) by writing under his hand addressed to the president , resign his office,
or

b) be removed from his office except by an order made by the president on

the ground of proved misbehavior or incapacity after an inquiry made by a
committee consisting of the chief justice of India and two other judges of the
Supreme court.

Salary and Allowance

The salary, allowance and other conditions of service of-

a) The chairperson shall be the same as those of the chief judge of India

b) Other members shall be the some as those of a judge of the Supreme

Court.

Power and function of lokpal

The lokpal Bill confers certain power and the function of lokpal in matter of
corruption are-

1) if the lokpal has reason to believe that any document which in its opinion
will be useful for or relevant to, any inquiry under this Act, are secreted in any
place, it may authorize any officer subordinate to it, or any officer of an
investigating agency referred to search for and to seize such documents.

2) Whoever intentionally offers any insult, or causes any interruption to the

lokpal while the lokpal or any of its members is making any verification or
conducting any inquiry under this Act. The lokpal may cause the offender to be
detained in the offence and after giving the offender a reasonable opportunity of
showing cause why he should not be punished under this section, and sentence
him to simple imprisonment for a term which may extend to one month, or with
fine which may extend to five hundred rupees or with both.

3) No suit, prosecution or other legal proceeding shall lie against the

lokpal or against any officer, employee, agency or person in respect of anything
which is in good faith done or intended to be done under this Act..

4) Lokpal shall have all the powers of a civil court while trying a suit
under the code of civil procedure, 1908. in respect-

i) Summoning and enforcing the attendance of any person and examine

him on

oath.

ii) Requiring the discovery and production of any document.

iii) Receiving evidence on affidavits.

iv) Requisitioning any public record or copy thereof from any court of
office.

v) Issuing commission for the examination of witnesses of document,

and

vi) Such other matters as may be prescribed.

5) The lokpal after completion of the investigation finds a complaint

proved or partly proceed, shall submit a report to the prime minister. The lokpal
shall present annually to the president a consolidated report.

6) The president may, by order in writing and subject to such condition

or limitation as may be specified in the order, require the lokpal to inquire into
any allegation specified in the order in respect of a public functionary.

INSTITUTION OF LOKAYUKTA

The Administrative Reform commission suggested in 1966 for

appointment of a lokpal at the center and lokayukta in each of the state. The
commission submitted its interim report. The report contains recommendations
for the setting up of two institutions to be designed as lokpal and lokayukta. The
lokayukta one to be appointed in each state and one at the center, will look ink
complaints against the administrative acts of other authorities. But even after a
lapse of so many years, nothing has been done substantially at the central level.
However many states have adopted this institution.

Appointment of lokayukta

For the purpose of conduction investigations and enquiries in accordance

with the provisions o f this Act, the Governor shall appoint a person to be
known as the lokayukta and one or more Upalokayukta

Term of Office

A person appointed as the lokayukta or upalokayukta shall hold office for

a term of 5 years from the date of which he enters upon his office.

Provided that-

a) the lokayukta or an upalokayukta may be wariting under his hand

addressed to the governor, resign him office.

b) The lokayukta or an upalokayukta may be removed form office by an

order of the government passed after an address by each House of the state
legislature supported by a majority of the total membership of that house
present and voting has been presented to the Governor in the same session for
such removal on the ground of proved misbehavior or in capacity

Salary and allowances :

The lokayukta and the upalokayukta shall be the same salary as those of
the chief justice of a high court and that of a judge of the high court
respectively. In prescribing the allowance payable to and other conditions of
services of the lokayukta and upalokayukta , regard shall be had to the
allowances payable to and other conditions of service of the chief justice of high
court , and that of a judge of the high court respectively.

Power and functions of Lokayukta :

1. For the purpose of any such investigation the lokayukta or an upalokaukta

shall have all the powers of the civil court while trying a suit under the code of
civil procedure 1908

2. Power to punish for contempt. the lokayukta or an upalokayukta shell

have the same jurisdiction , powers and authority in respect of contempt of itself
as a high court has an may exercise and for his purpose the provision of the
contempt of court act 1971shall have effect to the modification that the
reference therein to the high court shall e construed as including the a reference
tot the lokayukta or upalokyukta as the case may me.

3. Power to Prosecution: if after investigation into any complaint the

lokayukta or upalokayukta is satisfied that the public servant has committed any
criminal offence in a court of law for such offence , then he may pass an order
to that prior sanction of any authority is required for such prosecution, then
notwithstanding anything contained in any law, such sanction shall be deemed
to have been granted by the appropriate authority on the date of such order

4. power to search and seize : lokayukta and upalokayukta have power to

the following:

a) Enter and search any building or place where he has reason to suspect
that properly , documents , money , bullion , jewelry or other valuable article or
things is kept.

b) Break open the lock any door any box , locker, safe, almirah or other
receptacle for exercising , the powers conferred only where the keys thereof are
not available .

c) Seize any such property, document, money , bullion , jewelry or other

valuable article or thing found as a result of such search.

d) Place marks of identification on any property or document or make or

cause to be made extracts or copies there form.

5) After, Investigation of any action involving a grievances has been made,

the lokayukta or an uplokayukta is satisfied that such action has resulted in
injustice or undue hardship to the complaint or to any other person the
lokayukta or an upalokyata shall be a report in writing , recommend to the
competent authority concerned that such injustice or hardship shall be remitted
or redressed in such manner and within such time as may be specified in the
report. Lokayukta may make a special report upon a case to the governor and
also inform the competent authority concerned and the complainant.

CENTRAL VIGILANCE COMMISSION

A serious problem afflicting the Indian polity is that of corruption in the

administration. This distorts the decision making process ;by the administration
and gives rise to all kinds of vices. Incorruptibility is an essential requirement
for public confidence in the administration of Government departments. A word
may therefore be said on the subject of law and the machinery to fight
administrative corruption.
 To strengthen the existing mechanism for checking corruption amongst
Government servant the central vigilance commission was created in February
1964 by a resolution of the Government of India. The commission was
established as a result of the recommendation of the committee on prevention of
corruption which was appointed in 1962. The committee had recommended that
the commission should be concerned with two major problems facing the
administration namely a) prevention of corruption and maintenance of integrity
amongst Government Government servants and b) ensuring just fair exercise of
administrative powers vested in various authorities by statutory rules or by non-
statutory executive orders. Thus, the committee had recommended two major
matters to come with the purview of the commission, that is cases of corruption
and cases involving maladministration . The Government accepted the
recommendation of the committee as regards corruption but not
maladministration, because the latter problem was big enough to require a
separate machinery by itself.

LAW RELATING TO CORRUPTION IN INDIA

Anti-Corruption Provision in the Indian penal code 1860

Section 161:- Public servant taking gratification other then other legal
remuneration in respect of an official act

Section 162:- Taking gratification in order by corrupt or ;illegal means to

influence public servant

Section 164;- Punishment for abetment by public servant of offences defined in

section 162 or 163.

Section 165:- Public servant obtaining valuable thing, without consideration

from person concerned in proceeding or business transacted by such public
servant.

Section 165 "A" Punishment for abetment of offences defined in section 161 or
165.

Legislative development on corruption

The prevention of corruption Act 1947 was the first specific legislation on
corruption. Till 1947 there is no specific Act in India on Corruption. Where as it
is expedient to make more effective provision for the prevention of bribery a
corruption. For the purposes of this Act public servant means a public servant as
defined in section 21 of the Indian penal code 1860.
 In 1988 the Indian parliament replaced the legislation on corruption. This
Act be called the prevention of corruption Act 1988. It extends to whole of
India except the state of Jammu and Kashmir and it applies also to all citizens of
India, out side India, this Act is divided into Vth chapter and it has 31 section
regarding to prevention of corruption.