Administrative Law

UNIT - I
NATURE AND SCOPE OF ADMINISTRATIVE LAW

Definitions of Administrative law -
I) Iver Jennings: According to him Administrative Law as follows:
“Administration law is the law relating to the administration. It determines organization,

powers and duties of the administration authorities”.
Criticism:
a) It does not distinguish between constitutional law and Administrative law.
d) It does not speak about remedies available to an aggrieved person when his right
is adversely affected by the administration.
c) It does not deal with Procedure which is to used while exercise
administrative powers by administration.
II) Wade: He defines; Administrative law is the law relating to the “ Control” of
Administration powers or Government powers.
Criticism :It does not deal with the powers, function and procedure to be followed by the
Administrative authorities.
III) K.C Davis “Administrative law is the law concerning the powers and procedure of
administrative agencies, including especially the law governing judicial review of
administrative action”.
Criticism: a) Though this definition is proper, yet it is not acceptable, because it does not
include many non-adjudicative and other administrative functions of administration, which
cannot be treated as legislative or quasi-judicial.
b) This definition emphasized only on the control of the judiciary, but it does not deal with
other equally important controls like parliamentary control of delegated legislation, control
through administrative appeals and revisions etc.
M.P.Jain:
“Administrative Law deals with the structure, powers and functions of the organs of
administration, the limits of their powers, the methods and procedures followed by them in
exercising their powers and functions, the methods by which their powers are controlled
including the legal remedies available to a person against them when his rights are infringed
by their operation”.
Scope of Administration Law;
1.It limits the discretionary powers of administrators by prescribing proper procedure

and remedy.
2.It eliminates or excludes the arbitrariness.
3.It provides remedies
4.It provides procedure to be followed in exercise of their powers.
Notes on Administrative Law Adarsha Law College 1
Nature of Administrative Law:
The Administrative Law deals with the powers of the Administrative authorities, the
manner in which the powers are exercised and the remedies with are available to the
aggrieved persons, when those powers are abused by these authorities. Now 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
the society are prepared and administered by the Government. Thus the actual problem is to
reconcile social welfare with the rights of individual subjects. In this regard LORD
DENNING observes “Properly exercised, the new powers of the executive lead to the Welfare
State; but abused they lead to the Totalitarian State”. Therefore the main object of the
Administrative Law is to unravel the way in which these administrative authorities could be
kept within their limits so that the discretionary power may not turned into arbitrary power.
Reasons For Growth of Administrative Law:
1. Emphasis on public welfare activities namely, urbanization and industrialization.

2 Judicial system proved inadequate, overburdened and time consumed.
3 Technicalities can be avoided in quasi - judicial system to speed up the disposal of
the cases.
4 Legislative process is also inadequate and time consuming.
5 It allows to take preventive measures Eg.1.Suspension 2.Removal
Difference between Constitution Law and Administrative Law
Previously Administrative law has considered to be a branch of constitutional law.

Now administrative law is recognized as a separate branch. Thus, it has become necessary to
distinguish administrative law from constitutional law.
According to Proof Keith – “It is logically impossible to distinguish administrative law from
constitutional law and all attempts to do so are artificial”.
According to I.P.Messary “If one draws two circles of administrative law at a certain place
they may overlap and this area may be termed as the “watershed” in Administrative Law.
In India, in the watershed one can include the whole control mechanism provided in the
constitution, Viz. Arts 32,136,226,227,300 and 311, for the control of Administrative
authorities.
Proof Jennings - Says, “Constitutional Law deals with general principles relating to the
organization and powers of various organs. Where as administrative law deals with
organization functions, power and duties of authorities. In other words constitutional law
deals with fundamentals while administration deals with details. However, for convenience
sake distinction between Constitutional law and Administrative Law can be studied as under:

Constitutional law Administrative Law
1. It deals with various organs of the state 1. Organs at motion.
at rest. 2. It deals with functions of the state
2. It deals with structure of the state 3. It provides procedure in detail manner.
3. It gives only guidelines to the 4. It provides their rights and liabilities
Administrative authorities and procedure to be followed while
4. It will give constitutional status to the discharging their duties.
ministers and public servants. 5. It deals with public need and their
E.g. 1. Finance Commission – 280 welfare.
2. Inter State Council – 263
3. Election Commission – 324
4. U.P.S Art 315
5.It deals with rights including F.Rs of the
People.
Evolution of Administrative Law:
The following reasons are responsible for the growth of development of Administrative Law.
1. Due to emphasis on public welfare activities, which are increased day by day.
2. Due to urbanization and industrialization
3. Due to administrative interference in public life and consequential apprehension.
4. Due to the problem of scientific and technological developments and resultant problems.
5. Due to the requirement of speedy and simpler modes of social justice, the administrative
law is required to grow.
6. To ensure economic and social justice administrative law is required and ultimately it has
become one of the reasons for the growth of administrative law
7. The inadequacy of the traditional type of courts and law making organs to give the quality
and quantity of performance, which is required for these days, has become a cause for the
growth.

UNIT - II
BASIC CONCEPTS OF ADMINISTRATION LAW
I. RULE OF LAW:
Rule of law has been originated by Sir. Edward Coke C.J. He opined that “the king
must be under God and the law and he established the supremacy of the law against the
executive. According to him the object of rule of law is to exclude the arbitrary authority of
Government and to protect the individuals from unlawful action of the state. This concept of
Edward Coke was developed by Professor A.V. Dicey in his classic book” the law and the
constitution.
According to Professor A.V. Dicey, the rule of Law is the fundamental principal of the
British constitution. Dicey formulated the concept of Rule of Law in to three principles.
1. Absolute supremacy of Law:-
No man is punishable or can be lawfully made to suffer in body or goods, except for a
distinct breach of law establish in the ordinary legal manner before the ordinary courts of
the land. Thus, he emphasized on the absolute supremacy of law, which opposes
discretion power and arbitrary power of executive.
It means that no man can be punished or made to suffer in body or goods (imprisoned
or fined) except if it is established in the ordinary courts of law that he is guilty of a
distinct breach of law. That is top say, justice must be done through principles of law and
no discretion should be given to administrative authorities. According to him discretion
implies absences of rules, thus in every exercise of discretion there is room for
arbitrariness.
2. Equality before the law:-
“Equality before the law of the equal subjection of all classes to the ordinary law of
the land administered by the ordinary courts” this implies;
a) Absence of special privileges for a government officials or any other person.
b) All the persons irrespective of their status must be subjected to the law of the land
administered by the ordinary courts of the land.
Therefore, public officials do not hold a privileged position in Great Britain. If in their
public acts, they exceed their authority and behave in an unlawful manner, they can be
sued in the ordinary courts tried under the ordinary law. This distinguished the rule of law
from the system of administrative law prevails in France, where in separate administrative
tribunals for deciding cases between the officials and the citizens. According to
A.V.Dicey, Droit administrative system negates equality.
3. Predominance of legal spirit:-
According to Dicey legal rights of the people e.g., the freedom of speech, assembly
etc., are not guaranteed by a constitutional code. On the contrary, they are safe guarded by
the operation of ordinary laws against those, whether public officials or private persons,
who unlawfully interfere with these liberties. Thus any person aggrieved by the action of
another, whether a public official or a private individual can file a complaint, against the
offender in an ordinary court of law. Moreover, he suggested that the rights would be
secured adequately if they inferable in the court of law them by mere declaration of those
rights in a document (I.e. constitution) he further stated that mere incorporation (or)

inclusion of certain rights in the written constitution is of little value in the absence of
effective remedies of protection and enforcement.
Criticism:-
1. Rule of Law of Dicey was never fully accepted in England even in his time, as it is
evident from statutes which were existed in his period permitted the executive to use
discretionary powers which could be called in question by courts. Moreover he crown
enjoyed the immunity under the maxim” king can do no wrong”
2. Dicey failed to distinguish arbitrary power from discretionary power.
3. Dicey misunderstood the real nature the French droit administrative, though the
French system in all respects proved to be effective in controlling the misuse of
administrative powers by administrative authorities than the common law system.
Rule of Law under Constitution of India:
According to the Indian Constitution, the executive and legislative powers of the states and
the union have to be exercised in accordance with provisions of the constitution. More over
Art.14 of the constitution provides that no one is above the law, and it also explains equality
before the law and equal protection of laws. In India Constitution is supreme and all the three
organs of the state, Viz., legislative, executive and judiciary are subordinate to act in
accordance with it. As per Art.13 of the Constitution all rules, regulations, ordinances, bye-
laws, notifications are “laws”, so, if they are contrary to any of the provisions of constitution
of India, they can be declared as ultravires by the Supreme Court and by High Courts.
Therefore, it is said that the doctrine of rule of law is embedded in the Constitution of India.
A.D.M Jabalpur Vs Shivakanth Shanker AIR 1976 SC 1207
On June 25 1975, the President on account of “internal disturbance” proclaimed

Emergency. In pursuance of the proclaimation, on June 27 of 1975,the President issued an
order under Art.359 suspending the enforcement of Art 14,21,22. Due to this a large number
of persons were detained under MISA (Maintenance of Internal Security Act, 1971), with out
informing them of the grounds for which their detention.
The issue before the Supreme Court was whether there was any rule of law in India apart
from Art 21of the Constitution of India (i.e., the written Constitution).
The majority of the Bench (Ray C.J. Beg, Chandrachud and Bhagawati) held that
“Constitution is the rule of law. There cannot be any rule of law other than the constitutional
rule of law. Art 21 is our rule of law regarding life and liberty. No other rule of law can have
separate existence as distinct right. It is not a law of nature consistent and invariable at all
times and in all circumstances”. However, Justice Khanna, in his dissenting view, did not
agree with the majority view. He observed that “Rule of law is the antithesis of arbitrariness.
It has come to be regarded as the mark of free society. It seeks to maintain a balance between
the opposite notions of individual liberty and public order. Even in the absence of Art 21 in
the constitution, the state has no power to deprive a person of his life or liberty without the
authority of law”. He further observed that“ Absence of rule of law would nevertheless be
absence of rule of law even though it is brought about by law to repeat all laws”.

Indira Nehru Gandhi Vs Raj Narain AIR 1975 SC 2299: In this case, Supreme Court
observed that “In India, the meaning of rule of law has been much expanded and it is regarded
as a part of the basic structure of the constitution and therefore it cannot be abrogated or
destroyed even by parliament”.
D.C Wadhwa & Others Vs State of Bihar AIR1980 SC 579: In this case, Justice Bhagawati
observed that “the rule of law constitutes the core of our constitution and it is the essence of
the rule of law that the exercise of the power by the state whether it be legislative on the
executive or any other authority should be within the constitutional limitations and if any
practice is adopted by the executive which in flagrant any systematic violation of its
constitutional limitations, a member of the public would have sufficient interest to challenge
such practice by filing writ petition and it would be constitutional duty of the Supreme Court
to entertain the writ petition and adjudicate upon the validity of such practice”.
Modern Concept of Rule of Law:
According to Wade and Philips modern concept of law is as follows:

1.Absence of arbitrary power on personal opinion or impulse not on reasons.
2.Effective control of and proper publicity for delegated legislation.
3.When discretionary power is granted, the manner in which it is to be exercised should
as far as is practicable be defined.
4.Every man should be responsible to the ordinary law whether he be private citizen or
public officer.
5.Fundamental private rights are to be safeguarded by the law of the land.
According to K.C Davis modern concept of Rule Of Law is that state has to follow and
observe the following:
1. Law and order

2. Fixed rules
3. Elimination of discretion
4. Fairness
5. Observation of P.N.J
6. Judicial review of Administrative actions.
The Indian Law Institute gives the following meaning to Rule of Law:
a. Powers of executive may be increased only in unavoidable circumstances.

b. Discretionary powers of the executive should be limited.
c. Power handed over to executive is not its inherent power, it is granted to it by law.
d. Administrative decisions should be subject to judicial review.
e. There should be proper publicity in case of delegated legislation and it should be subject
to control of parliament and judiciary.
f. Principles of Natural Justice should be observed by administration while decisions are
taken.
II. Doctrine of Separation of powers
This concept was originated by “Aristotle” and was developed by Lock. But it was
given a base and made popular by French jurist, Montesqeu. The theory of separation of

powers divides the governmental functions into three categories, namely, 1.Legislative power;
2.judicial power; 3. Administrative power. According to this theory these three powers should
be held by different bodies and should not be vested in one body and should not be fused one
with the other. Actually, this concept was originated by “Aristotle” and was developed by
Lock. However it was given a base and made popular by French jurist, Montesqeu through his
great work Esprit Des Lois (The spirit of Laws) in the year1748.
As per Montesque:
Executive, judiciary, legislative is the three organs of state. None of these three organs
should control or interfere with the exercise of the functions of the other organs i.e., one organ
should not exercise the functions of another organ.
Wade and Phillips: says that the doctrine of separation of powers means the following three
things, they are:
1.That the same set of persons should not compose more than one department of
the three organs E.g.: that minister should not sit in parliament.
2.That one department should not exercise the functions of the other two
departments. E.g. that minister should not have legislative power.
3.That one department / organ should not control or interfere with the exercise of
its function by another department / organ
It is to be noted that the basis of the doctrine of separation of power is that merger of all
the powers in one body will result in negation of individual liberty. In this regard
Montesquieu observes that “when the legislative and executive powers are united in the same
person or body there can be no liberty because apprehensions may arise lest the same monarch
or senate should enact tyrannical laws to enforce them in a tyrannical manner”. Even
according to the Black Stone “if the legislative, the executive and the judicial functions were
given to one man, there was end of personal liberty. The Lord Acton also observes the same
view of point that is “every power tends to corrupt and absolute power tends to corrupt
absolutely”.
Draw back of the theory of separation of powers:
It is said that the strict application of the doctrine is impossible because three functions
of the Government Viz., legislative, executive and judicial are inter dependent and it is not
easy to draw a demarcating line between one power and another with accurate precision.
According to Friedman and Benjafield “each of the three function of the Government contains
elements of other two and that any rigid attempt to define and serious inefficiency in
Government”. Thus, it is impossible to stick to this doctrine, as the modern state being a
welfare state has to solve many complex socio-economic problems. Justice Frankfurter also
states “enforcement of a rigid concept of separation of powers would make modern
government impossible.
According to Basu , the theory of separation of powers means an organic separation

and a distribution must be drawn between “essential” and “incidental” powers and that one

organ of the Government can not usurp or encroach upon the essential functions belong to
another organ , but may exercise some incidental function thereof.
Thus, it is rightly pointed out by the C.K.Takwani in his book that “on the whole, the
doctrine of separation of powers in the strict sense is undesirable and impracticable and,
therefore, it is not fully accepted in any country. Nevertheless, its value lies in the emphasis
on those checks and balances which are necessary to prevent and abuse of enormous powers
of the executive. The object of the doctrine is to have a government of law rather than of
official will or whim”.
Indian constitution and doctrine of separation of powers:
Through not in strict sense, the doctrine of separation of powers has been accepted in
the constitution of India. In general under Indian constitution, the executive powers are with
the President, the legislative powers with Parliament and the judicial powers with the
Judiciary (i.e., the Supreme Court, High Court and subordinate courts).
In Kartar Sing Vs State of Punjab, A.I.R 1995 S.C 1726. Supreme Court held that
“It is basic postulate under Indian Constitution that the legal sovereign powers has been
distributed between the legislature to make the law, the executive to implement the law and
the judiciary to interpret the law with the limits set down by the Constitution.”
In Indira Nehru Gandhi Vs Raj Narain, A.I.R 1975 S.C 2299. Supreme Court held
that “the doctrine of separation of powers has been accepted in the Constitution of India and is
apart of basic structure of the Constitution”.
U.S.A: The doctrine of separation of power has been firmly embedded and incorporated in
the constitution of U.S.A. In U.S.A Legislative powers are vested in the congress, the
executive powers are vested in the congress and the judicial powers are vested in the Supreme
Court and the courts subordinate thereto.
Though, in 1787, when the American Constitution Legislation
DROIT ADMINISTRATIF:
The system of droit administratif is very old; it was regularly put into practice by
Napoleon Bonaparte in the 18th century. He wanted to establish an institution within the
administration to give relief to the citizens against the excess of the administration. Under this
system of droit administratif, there are two types of laws and two sets of courts. That is to
stay;
1.The ordinary courts administer the ordinary civil law as between subjects & subjects.
2.The Administrative courts or Tribunals administer the law as between the subject and the
state / administrative officer.
COUNSE L - D’ETATE: It is the highest administrative tribunals in “France and it was

established by Napoleon Bonaparte in the year 1799with the object to protect the citizens
against the excesses of the administration. It, being a part of the French administrative system,
consists of civil servants. In the initial stages, it was not given any independence and its main
function was to advise the minister and could not give judgment. But gradually its powers and
functions were increased and it started exercising judicial functioning apart from giving
advises to ministers. Thus, Counsel-d’ etate is, at present, not only adjudicatory but also
consultative body.
TRIBUNAL - DES - CONFLICTS (COURT OF CONFLICT):
In case of conflict between the ordinary courts and the administrative courts the matter
will be decided by the “Tribunal - des - conflicts”, therefore it is called as a court of conflict.
This Tribunal consists of equal number of judges of both ordinary courts and administrative
courts.
MERITS OF FRANCE ADMINISTATIVE SYSTEM:
1. Counsel-d’ etate, being a highest administrative tribunal, is presided over by eminent civil
servants. It is an independent body, which reviews every administrative action.
2.It can examine administrative actions on the ground of error of law, lack of jurisdiction,
irregularities and abuse of power.
3.Aggrieved party can be provided with immediate and efficient remedy by this system.

UNIT -III
CLASSIFICATION OF ADMINISTRATIVE ACTIONS / FUNCTIONS

The State has three organs namely, 1) legislative 2) executive and 3) judiciary .The
functions of the legislature is to enact the law, the executive is to implement the law and the
judiciary is to interpret the law and to declare what the law is in the name of judicial review. It
is rightly stated by C.K Takwani in his book that howsoever “the executive” or “ the
administration” is employed, there is no implication that the functions of the executive are
confined exclusively to those of an executive or administrative character. According to him,
today, the executive performs variegated functions, Viz. to investigate, to prosecute, to
prepare and to adopt schemes, to issue and cancels, etc (administrative); to make rules,
regulations and bye-laws, to fix prices, etc (legislative); to adjudicate on disputes, to impose
fine and penalty, etc. (judicial). Thus, now the executive has to perform quasi-legislative (rule
making) and quasi-judicial (adjudication) functions apart from his main function of
administrative or executive function.
Need for classification:
As we discussed above, the executive now performs variegated functions like administrative,
quasi-legislative and quasi-judicial functions. So in particular case whether the functions
performed by the executive performed by the executive is purely administrative, quasi-
legislative or quasi-judicial in character is to be classified, because many consequences flow
from it. The possible consequences are as under:
1.If the executive authority exercises a judicial or quasi - judicial function, it must follow
Principles of Natural Justice and is amenable to the writ of prohibition or certiorari.
2.If it is an administrative function then writ of “Mandamus” can be filed or writ of

Habeas corpus can be filed. And this function can be delegated.
3.If it is a quasi-legislative or legislative function then the requirement of publication

laying on the table and consultation can be done.
4.If it is an administrative function, it can be delegated where as judicial function cannot
be delegated.
It is to be noted that legislative power may not be held invalid on the ground of unreasonable
but an administrative decision can be challenged as being unreasonable. Thus, it is necessary
to determine what type of function the administrative authority performs.
It is difficult to classify the functions of the executive, as there is no perfect and

scientific formula to distinguish the functions performed by the executive is whether a
legislative or an executive or a judicial in given case. Justice Hedge rightly states, “the
dividing line between and administrative power and quasi-judicial power is quit thin and is
being gradually obliterated ..”. But for sake of under standing, broad classification can be
done basing on the judgments of Hon’ble Supreme Court and High Courts of various states
respectively. They are as under:

Administrative functions:
The following functions are held to be administrative functions:
1. Issuing directions to subordinate officers not having the force of law.

2. Fact finding action
3. Power to investigate
4. An order of acquisition or requisition of property.
5. Power to issue licences or permit.
6. An order for preventive detection.
7. An order setting up a commission of enquiry.
8. Withdrawal from prosecution
9. Function of a selection committee.
10. Power to refuse to grant or refuse a licence.
Quasi - Judicial Functions:

The following functions are held to be quasi-judicial functions:
1. Disciplinary proceedings against students.

2. Dismissal of an employee on the ground of misconduct.
3. Confiscation of goods under the relevant statute.
4. Cancellation, suspension, revocation or refusal to renew licences or permit by
licensing authority.
5. Power to continue the detention or seizure of goods beyond a particular period.
6. Imposition fine and penalty.
7. Determination of citizenship.
8. Forfeiture of pension and gratuity.
9. An order of assessment under a taxing statue.
Legislative Functions:
The following functions are held to be quasi-legislative functions:
1. To make rules, regulations and bye-laws.

2. To fix prices.
Distinction between Legislative and Judicial functions
1. Green – “ The legislative function then is general and relates to the future, where as the
judicial function is specific, final and ordinarily relates to the post”.
2. Legislative function to make all substantive law and a judicial function finally to
determine constitutionality. Jurisdiction and the application of substantive law to specific
feet’s.
Distinction between Legislative & Administrative

1. Legislature event the laws and it determines the applicability of the Act / law.

2. A power to make rules of general application is a legislative power and the rule is a
legislative rule, while a power to give an order in specific cases is an executive power and
the order is an executive action.
Radheshyam Vs State of M.P
Bearer Municipalities Act, 1922 Sec 53 - A of this Act empowers the Government to
supersede a municipality for a temporary period not exceeding 18 months for securing “a
general improvement in administration of municipality”, while Sec 57 empowered the
Government to suspend the municipality for an indefinite period.
Court in majority held that the power under section 53 - A is an Administrative action
or administrative in nature and the power given under sec 57 is quasi-judicial power one. But
Subbarao dissented and held that the order was a quasi - judicial order and that P.N.J were not
complied with and so the order was liable to be struck down.
DELEGATED LEGISLATION
When the functions of legislation are entrusted to organs other than the legislature by the
legislature itself, the legislation made by such organs is called delegated legislation.
Reasons for the growth of delegated legislation:
According to C.K Takwani following are the reasons for the growth of delegated legislation:
1.pressure up on Parliament: In the welfare state, it is not possible for the legislature to
devote sufficient time to discuss al the matters in detail. Thus legislatures formulate the
general policy (the skeleton) and empower the executive to fill in details. That is to say the
task of providing flesh and blood to the skeleton (general policy) so that it may live.
In the words of Sir Cecil Carr, delegated legislation is “a growing child upon to relieve the
parent of strain of over work and capable of attending to minor matters, while the parent
manages the main business”.
2.Technicality: Sometimes, the assistance of experts may be required because all members of
parliament may not have technical knowledge so they are unable to legislate or deal with
highly technical matters which are required to be handled by experts. Thus, the legislative
powers may be conferred on experts (executive) to deal with the technical problems, like, gas,
atomic energy, drugs, electricity etc.
3.flexibility: At the time of passing enactment, it is impossible to foresee all the
contingencies, and some provisions are required to be made for these unforeseen situations
demanding exigent action. A legislative amendment is a very slow and cumbersome process,
but by device of delegated legislation, the executive can meet the situation expeditiously.
E.g. bank rate, police regulations, exports and imports, foreign exchange etc..
4.Emergency: In emergency (like National emergency and state emergency) quick action is
required, but legislative process is slow and cumbersome to meet the urgent situation. So in
these situations delegate legislation is only the possible remedy. Thus, the executive 0is vested
with power of legislate to meet the emergency situation.
5.Compexity of modern administration: Due to the expansion of the functions of the state
in the field of economic and social sphere, new forms of legislation is necessary to deal with
new problems. For this legislature are required to entrust more and more legislative powers to
the executive.
Permissible delegation [Functions can be delegated]
I) Commencement: Several statutes contain an “appointed day ”clause, which

empowers the Government to appoint a day for the Act to come into force.
Eg: Sec3 of Bombay Rent Control Act provides fixation of time to implement the said act
comes in to force when it is notified in official gazette.
II) Supplying details:

Main policy can be formulated by legislature s itself and the function of supplying
details may be delegated.
Eg: Sec 3 of All India Service Act 1951 authorizes the central Government to make
rules to regulate condition of service in the All India Service
III) Inclusion /Extension:
Eg: 1). T.P Act 1882
2) Sec 146 of the Indian Railway Act authorizes Government to extend this Act
to the Tramway also.
IV) Exclusion:
It means the executive can exclude any geographical area from the purview of law
if parliament allows by expressly.
Eg: payment of Bonus Act
V) Suspension: Some Acts authorize the Government to suspend (or) relax the provisions
contained there in.
Eg: sec 48(1) of the Tea Act, i953 empowers the central Government to suspend the operation
of all (or) any of the provisions of the said Act.
VI) Modification: Without guidelines power of modification of the Act cannot be delegated
to executive.
VII) Prescribing Punishment:
Maximum punishment will be “Provided in Main Act but discretion to prescribing
punishment with in the maximum limit will be given to the Executive.
Eg: Electricity Act
VIII) Removal of difficulties [Henry VIII clause]:

A power some times may be conferred on the executives to modify the provision of the
existing statutes for the purpose of removing difficulties, which may arise in implementing the
Act. This provision is necessary when the legislative extends a law to a new area where
conditions are different. This removal of difficulties is also called as Henry VIII clause to
indicate executive autocracy. Because, Henry VIII, the king of England, who ruled the
England from 1509 to 1547, has been described as a “despot under the forms of law”. He
used the law extraordinarily to his own personal ends and during his regime he enforced his
will and got his difficulties removed by using instrumentality of a servile parliament for the
purpose of removing the difficulties that may come in his way.
Two types of “removal of difficulties” are found, they are
1) Narrow view: This empowers the executive to exercise the power of removal of
difficulties consistent with the provisions and policy of the parent Act. That means executive
cannot modify the parent Act nor can it make any modification which is not consistent with
parent Act.
2) Wider view: Another type of “removal of difficulties” clause is very wide and authorizes
the executive in the name of removal of difficulties to modify even the parent Act (or) any
other Act.
Eg: Art 372(2) provides that for purpose of bringing the provisions of any law in to force
president can modify (or) amend any existing law and this modification cannot be questioned
before court of law
In Jalan Trading Co. Vs Mill Maz door sabha AIR1967 SC 691, Sec 37(1) and 37(2) of
Payment of Bonus Act were challenged under the ground of excess delegation and Supreme
Court called upon to decided legality of such clause, they are:
Sec 37(1) of the Payment of Bonus Act, 1965 empowered the central Government to make
some modification to remove difficulty while implementing.
Sec37 (2) it says order passed by Central Goverment under sec37 (1) is final and no question
of judicial review.
After taking in to account of above mentioned two sections, the Supreme Court held that sec
37(1) can be validated as it intended to remove the difficulty while implementing the payment
of Bonus Act.Whereas sec 37(2) is ultravires on the ground of excessive delegation in as
much as the Government was made the sole judge of whether any difficulty (or) doubt had
arises or not and it was made final
Gammon India Ltd VsU.I AIR 1974 SC 960:
Sec34 of the Contract Labour (Regulator & abolition) Act 1970 provided that if any
difficulties arise in giving effect to the provisions of the Act, the Central Government may
make such provisions, not inconsistent with the provisions of this Act, as appeared to it to be
necessary (or) expedient for removing the difficulty.
This section was challenged on the ground that it is an instance of excessive delegation.
S.C held that sec34 does not amount to excessive delegation, as it does not contemplate any
alteration in the Act. It simply authorizes the removal of difficulties which may arise in the
implementation of the law.
Impermissible delegation:
It is well settled principle that essential legislative functions of legislature cannot be

delegated by the legislature to the executive. It means legislative policy must be laid down by
the legislative itself and by entrusting this power to the executive; the legislature cannot create
a parallel legislature.
1. Repeal of law
2. Imposition of Tax
3. Modification without guidelines
4. Retrospective operation
5. Future Acts
6. Imposition of tax
7. Ouster of jurisdiction of courts
8. Offers and penalty
Delegation in favour of local authorities:
Gulabhchand Bapalal Vs Ahmedabad Municipal Corporation AIR 1971 SC 2100
The power to impose tax, to prescribe the maximum or minimum rate of tax, to fix class (or)
classes of persons or the description of articles (or) properties to be taxed and to lay down the
system of assessment and exceptions, if any, to be granted can be left to local bodies and
conferment of such power does not amount to excessive delegation, but it should not be
unguided (the legislatures have to take care to specify sufficient safeguards necessary in
fixing the rates).
Municipal Corporation of Delhi Vs Birla Cotton Mills AIR1968 SC1232
Wanchoo C.J
The nature of the body to which delegation is made is also a factor to be taken into
consideration in determining whether there is sufficient guidance in the matter of delegation
and further held “ Power to collect tax may confer on local bodies but it should not override
the constitutional limitations & with guidance (i.e unreasonable check by the courts and
breach of provisions and object of the Act).
Test for excess delegation:

In Vasanthlal Vs State of Bombay AIR 1961 SC 4 , Court held that when a statute
challenged on the ground of excessive delegation must be subjected to two tests.
1) Whether it delegates essential legislative function; and
2) Whether the legislature has enunciated its policy and principle for the guidance
and executive.
It is to be noted that legislative policy must be laid down by the Legislature itself
and by entrusting this power to the executive, the legislature cannot create a parallel
legislature.
CONDITIONAL LEGISLATION
In conditional legislation, legislatures makes the law .It is full and complete. No legislative
function is delegated to the executives. But the said Act is not brought in to force and it is left
to the executive to bring the Act into operation on fulfillment of certain condition or
contingent.
Emperor Vs Benorailal AIR 1945 PC 48:
Ordinance promulgated by Governor –General for setting up special courts. But the
operation of the ordinance was left to the provincial Government, after satisfying conditions.
H.C of Calcutta held that it was excess delegation and same was approved by Federal court.
But on appeal privacy council reversed the judgement of Federal court and held that it was
conditional legislation hence valid.

State of Bombay Vs Narottam Das AIR 1951 SC 69:
Bombay city civil court Act empowered the Govt to establish Addl. Civil Courts having
jurisdiction to try all suits not exceeding Rs10, 000 but same Act authorizes Govt to raise the
jurisdiction up to 25,000, after satisfying conditions.
Supreme Court held that the provision was merely a conditional legislation because the
legislature itself determined that the new court should be invested with jurisdiction up to
25,000 in value, but left it to the executive to determine when the said power could be
exercised.
Tulsipur Sugar Co, Ltd Vs Notified Area Committee 1980 SCC (2) p 306:
By issuing a notification u/s 3 of the U.P Town Areas Act, 1914, the limits of Tulsipur
Town were extended to village Shitalpur where the sugar factory of the plaintiff was situated.
The notification was challenged on the ground that the procedure under the Act was not
followed and the subordinate legislation was, therefore, bad. Negativing the contention and
holding the case to be one of conditional legislation, the Supreme Court held that “the effect
of making the Act applicable to geographical area is in the nature of conditional legislation”
and that it cannot be characterized as a piece of subordinate legislation.
Hamdard Dawakhana Vs U.I [AIR1960 SC554]
Parliament passed the Drug and Magic Remedies (objectionable advertisement) Act, 1954 to
check the mischief being done to innocent patient suffering from certain incurable diseases
through advertisements claiming magic remedies for such diseases. Sec 3 of this Act laid
down a list of diseases for which advertisement was prohibited and authorized the Central
Govt to include any other disease in the list.
This Sec3 of the said Act was challenged on the ground of excessive delegation. The
court held that no where in the Act the legislature laid down any policy for guidance to the
Govt in the matter of selection for being included in the list, and court further clarified and
distinguished the conditional legislation from delegated legislation, as under
Delegated Legislation Conditional Legislation
1) It is left to the discretion of 1) Duty of the executive is fact finding

the executive. i.e, it should enquire whether the
condition required is fulfilled or not
2) Her discretion is given when 2) Here the executive must see whether
it should be implemented and condition is fulfilled or not. They do
Rule making power is also not take independent view for
delegate to the executive. implementation of law.

Sub –Delegation:
It means a delegate further delegates. When a statute confers some legislative powers on an
executive authority and that authority further delegates to another subordinate authority or
agency, it is called sub – delegation.
Sub – delegation is valid when the Parent Act or the Enabling Act authorizes the
delegate to its law making power to another authority or agency. Thus, through there is a
doctrine that a delegate cannot delegate further (i.e., Delegates non-protest delegate) sub –
delegation is valid when Parent Act authorizes to further delegate.
In India also sub - delegation will be valid only if it is authorized, expressly or

impliedly, by the Enabling Act or Parent Act (i.e., the Act by which the delegation has been
made). Thus, if the delegate is not authorized to delegate his powers and functions, the sub-
delegation by the delegate will be invalid.
Eg: Section 3 of the Essential Commodities Act of 1955 empowers the Central Government to
make rule (First state delegation and section 5of the same Act empowers the Central
Government to delegate powers to its officers, the state Governments and their Officers (the
second state delegation i.e., sub – delegation).
Ganapathi Vs State of Ajmer (AIR 1955 SC 188)
According to the facts of the case, under the relevant Parent Act the Chief
Commissioner was empowered to make rules for the establishment of proper system of
conservancy and sanitation at fairs. But the Chief Commissioner entrusted the rule making
power to District Magistrate. Accordingly, the District Magistrate framed the rules for
establishment of proper system of sanitation at fairs. When this was challenged, the Supreme
Court declared the rules Ultravires as the parent Act conferred the power on the Chief
Commission and not on the District Magistrate and, therefore, the action of the Chief
Commissioner sub delegating that power to the District Magistrate was invalid.
Central Talkies Vs Dwaraka Prasad AIR 1961 SC 606
The relevant section under U.P. (Temporary) control of Rent and eviction Act, 1947
provided that no suit shall be filed for the eviction of a tenant without permission either from a
District Magistrate or any
Officer authorized by District Magistrate to perform any of his function under the Act.
When the permission to file a suit under the said Act was granted by the Additional
District Magistrate was challenged on the ground of excess delegation (i.e., sub - delegation
improper), the Supreme Court held that the order granting permission by the Additional
District Magistrate is valid as enabling Act itself. Expressly provided that permission could be
granted either by a District Magistrate or any officer authorized by him.
It is to be noted that where a statute it self authorizes an administrative authority to sub
– delegate its powers, no difficulty arises as to its validity, since such sub – delegation is
within the terms of statute it self. But difficulty may arise when there is no specific or express
provision in the statute about sub – delegation of power by the delegate. In those
circumstances sub – delegation power may be inferred by necessary implication
Controls and Safeguards on delegated Legislation
To check the misuse of power of delegated legislation, controls over the delegated
legislation have been introduced. They are:
1. Judicial Control.
2. Legislative Control
I. Judicial Control: The courts established under the constitution can decide the validity or
otherwise of delegated legislation mainly applying two tests, they are:
a. Substantive ultra vires; and
b. Procedural ultravires (ultravires means beyond powers)
a) Substantive Ultravires : Substantive ultravires means that the delegated legislation goes
beyond the scope of the authority conferred on it by the parent statute or by the
constitution. Thus, a delegated legislation may be held to be invalid on the ground of
substantive ultravires in the following grounds.
1. Where Parent Act is unconstitutional

2. Where delegated legislation is inconsistent with the Parent Act.
3. Where delegated legislation is unconstitutional
4. Unreasonableness
5. Malafide /Bad faith
6. Sub – delegation
7. Exclusion of Judicial review
8. Retrospective effect
1) Where Parent Act is unconstitutional: To validate delegated legislation, the Parent Act
or enabling statute by which legislative power is conferred on the executive must be
constitutionally valid otherwise it can be declared in valid.
Eg: In Chintamanrao Vs State of M.P.AIR 1951 SC 118
C.P. Regulation of Manufacturers of Bidis Act, 1948(i.e., Enabling Act) authorised the
Deputy Commissioner to fix the agricultural season and prohibit the manufacture of “bidis” in
the notified areas in that season. According to The Deputy Commissioner imposed a ban on
the manufacture of “bidis”. The order passed by the Deputy Commissioner under the Act was
violating the Fundamental Rights to carry on any occupation, trade or business, guaranteed by
Art 19(1) of the constitution of India. Hence, therefore, Supreme Court declared the order of
Commissioner and the Act both the ultrawires the constitution.
ii) Where delegated legislation is inconsistent with parent Act

Delegated legislation can also be declared invalid if it is in direct conflict with any
provision of the enabling Act.
Indian Council of Legal Aid & Advice Vs Bar Council of India 1995(1) SCC 732
A rule was framed by the Bar Council barring enrolment as advocates 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”. While declaring the rule is
ultravires, Supreme Court held that Bar Council can make the rule only after a person is
enrolled as an advocate (i.e., Post – enrolment stage). It cannot frame a rule barring persons
from enrolment. The rule was thus inconsistent with the Parent Act.
Ramprasad Vs State of U.P AIR1952 All 84
The U.P Panchayat Raj, Act.1947 provided in Sec 49 that every case traible by
Panchayat Adalat must be tried by a bench consisted in a manner laid down in the Act. Rule
87 framed there under provided that three members of the bench would constitute a forum.
This number was less than that provided under the Act. The court held the rule invalid as
being indirect conflict with the enabling Act.
iii) Where delegated legislation is unconstitutional:
Some times it may happen that the parent Act may not be ultravires to the constitution,
but the rules and regulations framed there under may violate the provisions of the Indian
Constitution.
K. Panduranga Vs State of AP AIR 1985 AP 268
The court quashed the AP catering Establishment (fixation and Display) of prices of
Food Stuff(s) Order, 1978 which had made it compulsory for hoteliers to sell all the seven
items in the schedules court held that any rule or direction compelling a person to carry on a
business against his will violative of Art 19(1) of the constitution.
IV Unreasonableness:
Unreasonableness of delegated legislation cannot only be challenged on the ground of

unreasonableness but also on the ground that it violates Art 14 of the constitution.
A I R INDIA VS. NERGESHMEERZA 1981 4 SEC 335
The Supreme Court quashed the service regulation framed by Air India, which had
provided for the termination of services of an airhostess on the first pregnancy. The court held
this regulation as most unreasonable and arbitrary and interfering with the ordinary course of
human nature, and have violative of Art.14 of the constitution.
Kesavanandha Bharat Vs State of Kerala AIR 1973 SC 1461
In this case Supreme Court held that “Judicial review” has become an integral part of our
constitution and power has been vested in the Supreme Court and High Courts to decide about
the constitutional validity of the provisions of statute. If the provisions of the statute are found
to be violative of any of the Article of the constitution, the Supreme Court and High Courts
are empowered to strike down the said provisions.
31-C provides that no law will be questioned in court of law as against Art. 19(1)(f) and 14
& 31 it further held that amendment proposes to make the legislative declaration final and
conclusive and takes away the power of Judicial review it is abrogation of a basic feature of
constitution and so, that extent it is void

Retrospective Operation of Rule: As it essential power of legislature cannot be delegated
P.D Agarwal Vs U.P : The employee already promoted could not be reverted by amending
the rules retrospectively
Vijaya Laxmi Rice Mill Vs State of A.P.: Issuance of a licence with retrospective effect is
invalid when Parent Act did not permit to do so.
8. Sub – Delegation: Delegated Legislation means “Conferring one’s power of law making
to another, or extension of law making power to the executive by the legislature. If the
executive, i.e., the delegated further delegated such power to any subordinate authority or
agency, it is called “sub-delegation”.
Ganapathi Vs State of Ajmir
Sanitation system is to be made by Chief Commissioner as per relevant section of

municipality Act, then rules made for sanitation by Additional District Magistrate is said to be
ultravires.
Central Talkies Vs Dwaraka Prasad
Under Rent and eviction Act – suit can be filed by taking permission from District
Magistrate or any officer authorized by him. Permission given by Additional District
Magistrate is valid as parent Act itself giving authorization for sub – delegation.
Procedural Ultravives
1. Publication
2. Consultation
Publication: It is established principle of law that public must have access to the law and they
should be given an opportunity to know the law.
Wade: Says that “the whole of our law, written or unwritten, is accessible to the public”.
M.P.Jain: It is essential that adequate means are adopted to publicize delegated legislation so
that people are not caught on the wrong foot in ignorance of the rules, applicable to them in
given situation.
It is to be noted that as per as possible publication must be made in official language

and as well as in local language.
Raza Buland Sugar Co.Ltd Vs U.I
In this case Supreme Court held that provision requiring publication of Rules before
imposition of tax was mandatory.
Govindlal Chhanganlal Vs Agricultural Market Committee

As per Parent Act (i.e., Gujarath Agricultural Produce Market Act 1964) rules made
under that Act shall be published in “Gujarathi” language. But committee made rules and
published in official language. While disposing the case, Supreme Court held that when
Parent Act specifically mentioned about the mode of publication and language to be used for
publication of rules made under the Act, it is imperative on the part of subordinate legislatures
to follow the same with out any deviation.
2. Consultation
It is a process which requires meeting of minds between the parties to consultation on

material facts to come to a right conclusion.
Consult implies 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. Thus, consultation is
regarded as a valuable safeguard against misuse of legislative powers by the executive.
Types of consultation:
1. Official Consultation
Eg: Central Court is required to make rules under Banking Act must consult Reserve Bank of
India.
2.Consultation with statutory Bodies
Central Government is required to consult a statutory body i.e. “Drugs Technical Advisory
Board” while making rules U/s Drugs Act 1940.
3. Consultation with Advisory Bodies
Under Mines Act, 1901 any rules can be made with consultation of “Mining Board”.
Banwarilal Vs State of Bihar : Consultation with Mining Board is mandatory
Ibrahim Vs Regional Transport Authority: Consultation must be made with Transport

Authority before certain routes are going to be nationalised by Government under
Transportation Act.

UNIT _IV
PRINCIPLES OF NATURAL JUSTICE

“They are better known than described and easier proclaimed than defined” (Abbot Vs
Sulivan 1952 All ER 226)
“P.N.J are known as “Substantial Justice”, “Fundamental Justice”, Universal Justice or “fair
play in action”.
“These principles are said to be great humanising principles intended to invest law with
fairness, to secure justice and to prevent miscarriage of justice”.
- By de smith
Historical Growth
It has been recognised from the earliest times, it is not judge made law. In days post
bygones the Greeks had accepted the principle that “No man should be condemned unheard”.
In Indian context, we can trace P.N.J from the “Arthashastra” of Kautilya, which
explains minimum fair procedure to be followed while deciding or disposing the cases.
Wade States: That the rules of natural justice operate as implied mandatory requirements,
non - observance of which invalidates the exercise of the power. He further says “ the
presumption is, it (natural justice) will always apply, however silent about it the statute may
be.
In Wiseman Vs Borneman 1971 AC 297
The conception of natural justice should at all stages guide those who discharge
functions is not merely an acceptable but is an essential part of the philosophy of the law”.
Principles of Natural Justice and Indian Constitution:
The principles of natural justice are firmly grounded or embedded in Art 14 and 21 of
the Indian constitution Art 14 now applies not only to discriminatory class legislation but also
to arbitrary or discriminatory state action (i.e. Administration action) because arbitrariness
includes violation of P.N.J Art 21 provides fairness and due process of law this includes
principles of natural justice.
Recognised Principles of Natural Justices are:
1. Nemo debit esse index in propia cause = No one should be a judge for his own cause or
rule against bias.
2. Audi alterm partem = Hear other side or both sides (No man should be condemned
unheard).
I. Rule against Bias
a. Personal bias
b. Pecuniary bias
c. Official / subject matter / departmental bias.
Personal Bias:
a) Personal animosity / enmity:
Meenglass Tea Estate Vs Workman
A crude form of personal bias is when the manager of a factory himself conducts an
enquiry against the workmen who are alleged to have assaulted him.
Mineral Development Ltd Vs Bihar
The Revenue Minister had cancelled the petitioner’s license for the lease of certain
land. There was political rivalry between the petitioner and the minister who had even filed a
criminal case U/s 500 IPC against the petitioner. It was observed by the S.C that since there
was personal bias against the petitioner, minister was disqualified to act as a judge.
b) Personal friendship or good relation:
Maniklal Vs Dr.Premchand
In order to decide a complaint for professional misconduct filed by Dr. Premchand

against Manklal, an advocate of the Rajasthan the High Court, appointed a tribunal consisting
of a senior advocate, (Advocate-General of Rajasthan) as chairman. The decision of the
tribunal was challenged on the ground of personal bias arising from the fact that the chairman
had represented Dr.Premchand in an earlier case. The Supreme Court refused to quash the
action holding that the chairman had no personal contact and did not remember that he
appeared on his behalf, and that therefore, there seemed to be no “real likelihood of bias. But
still it held that the chairman was disqualified on the ground that “Justice not only be done but
must appear to be done to the public”. Hence court observed that reasonable suspicion of bias
is sufficient.
A.K.Kraipak Vs U.I
In this case, who was acting chief conservator of Forest, was a member of the selection
board and was also a candidate for the selection to the All India Cadre of Forest Service.
Though he did not take part in the deliberations of the board when his name was considered
and approved, the Supreme Court held that there was a real likelihood of bias for mere
presence of the candidate on the selection board may adversely influence the judgement of the
other members, though he did not participate in the final deliberation of board when his name
was considered.
2. Pecuniary bias
A direct pecuniary interest, how so ever small or in significant, will disqualify a

person from acting as a judge.
Dimes Vs Grant junction Canal Company

A company filed a case against a landowner in a matter largely involving the interest
of the company. The Lord Chancellor who was a shareholder in that company heard the case
and gave to the company the relief it bought.
The House of Lords because of the pecuniary interest of the Lord Chancellor in the
company quashed his decision.
3. Subject matter bias departmental bias or office bias
Gullapalli Nageshwar Rao Vs APSRTC (G – I)
In this case, the petitioner challenged the order of the Government nationalizing road
transport. One of the grounds of challenged was that the secretary of the Transport
Department who gave the hearing was biased, being the person who initiated the scheme and
also being the head of the department whose responsibility it was to execute it. The court
quashed the order on the grounds of Subject matter bias and Departmental bias and court
further observed that here no fair hearing could be expected.
There after, the Act was amended and the function of hearing the objection was given, to
the minister for Transport. The decision of Government again challenged by G.Nageshwar
Rao, in his second case on the ground of departmental bias, because the minister was the head
of the department concerned, who had initiated the scheme and was also ultimately
responsible for its execution. But Supreme Court rejected his plea on the ground that the
minister was not a part of the department in the same manner as secretary was.
Prior Utterances and Pre - determined, Pre - Judgement of issues or Pre conceived
notion
If an official or quasi judicial authority has already made up his mind regarding the
issues involved and to be raised at the hearing then the very purpose of hearing may be
frustrated as the purpose of hearing is to better inform the authority about the issues so that he
may take a correct decision.
In K.S.Rao Vs State of A.P
It was held that the enquiry officer was not qualified to conduct hearing the petitioner
for his removal from service. Since prior to the enquiry he had expressed a strong view that he
should be dismissed from service on account of his abnormal mental condition. The court
further held that it is fundamental principle of Natural Justice that the officer selected to make
an enquiry should be a person with an open mind and not one who already pre-judged the
issue.
Premchand Jain Vs Madhya Pradesh AIR 1966 MP 117
In an enquiry into objections to a scheme prepared by the Transport Department

U/s.68 (2) of Motor Vehicle Act, 1939 to laid down standards for the grant of person the
enquiry officer did not consider the objections raised but decided to approve the scheme on
the basis of consideration of policy.

The court quashed the scheme and held that the decision to approve the scheme (or)
not, should be based on the conclusion which he comes to with regard to the objections not on
consideration of policy itself .The court characterised the enquiry as a farce one because the
mind of the enquiry officer was foreclosed as regards the objections raised against the
scheme..
Acting Under Dictation:
Sometimes, the adjudicating authority may dispose of a case under dictation from a
superior authority .It is said the partiality arised out of the command of the superior authority,
in other sense it could be said that was no hearing at all.
Mahadayal Premchandra Vs Commercial Tax Officer AIR 1958 SC 667
The commercial tax officer, while assessing the appellant to tax on the facts, was of the
opinion that the assessee was not liable to sales tax. Even then, he referred matter for opinion
to a senior officer i.e., Asst. Commissioner and on instruction from him, the C.T.O imposed
the sales tax on assessee.
Supreme court pointed out that the C.T.O while passing the order merely acted
upon direction (or) dictation of Assistant Commissioner without applying his own
mind. The Supreme Court further held that the C.T.O where duty it was to decide
should have exercised his own mind and not left the judgement to others,
Orient Paper Mills Vs U.I 1970 (3) SCC 76
Supreme court quashed the order of the Deputy Superindent Levying excise duty
passed on the dictation of the collector.
Subsequent to these cases S.C adopted more liberal approach.
Kondala Rao Vs A.P Transport Corporation AIR 1960 SC 1073

.
The objections against the scheme of nationalization of bus route prepared by the
corporation was heard by the Minister of Transport. A few days earlier the minister had
presided over a meeting of the committee which had taken the decision of nationalization of
the routes. The court rejected the argument that the minister had pre – determined the issue
and therefore, he was disqualified to hear the objection. The decision of the committee was
not final. The committee only advised the Government for nationalization of the routes and
therefore, it did not involve a pre determination of the issue. Sometimes the functions of the
prosecutor and the adjudicator are combined in the same department. So as long as different
persons perform such functions, the proceedings are not vitiated on the ground of official or
departmental bias even if they are affiliated to the same department.
In its liberal view Supreme Court said that the minister or the officer of the
Government who is invested with the power to hear objections to the scheme is acting in his
official capacity and unless there is reliable evidence to show that he is biased his decision
will not be liable to be called in question.

Audi Alteram Par tem (or) Hear the other side or both sides (or) no one should be
condemned unheard
Byles . J, in Cooper Vs Wands worth Board of works
Observed that even from the Bible it is seen that before God punished Adam for eating
the forbidden tree fruits he asked that “Adam” did you eaten the fruits of the forbidden tree?”
so it is said that the laws of God demand that no one shall be condemned unheard.
Fair hearing is the essence of natural justice. The present rule is that a person whose
legal right or civil right or interest is going to be effected hearing must be given. The essential
ingredients of a fair hearing are
1. Right to notice
2. Right to present case and evidence
3. Disclosure of evidence
a) No evidence should be taken behind parties
4. Opportunity to cross examine
5. Right of legal representation.
1. Right to Notice:
It means adequacy of notice that it should contain
1. Time, place and nature of hearing

2. Legal authority under which hearing is to be held
3. Statement of specific charges which the person has to meet.
4. Reasonable time should be given in notice be other party to make his
defense.
Case Laws
R Vs University of Cambridge or Dr. Bentley Case (1723)
Dr Bentley was a qualified Doctor. His degree was given by Cambridge University
and after giving the degree, the same university cancelled his degree alleging that he
misbehaved and did some fraud with the University. They did not give any notice to him. The
King’s Bench quashed the university order.
State of J & K Vs Hajiwali Mohd
When only 24 hours were given to demolish a structure alleged in a dilapidated

condition. Court held that notice is not proper.
State of Bombay Vs Atmaram
The constitution of India requires that the detenue must be furnished with the grounds
of detention and if the grounds are vague, the court may quash the detention order.
2) Right to present case and evidence

The right to present the case with evidence is not considered then one will not be able
to prove ones innocence.
Dhakeshwari Cotton Mills Ltd Vs CITAIR 1955 SC 65
The S.C quashed the decision of the income tax tribunal on the ground that the
Appellant was not allowed to produce some evidence which he was entitled to produce.
R.B Shreeram Durga Prasad Vs Settlement Commissioner 1989(1) SCC.878
Where the commissioner only allowed assessee opportunity to make submission or

objection of commissioner of income tax regarding settlement of assessment the S.C court
held that mere opportunity to make submission is not enough and clear opportunity must be
given to demonstrate that the reporting authority was not justified is making objections
3) Disclosure of Evidence
Materials or evidences on records are to be disclosed then only one can rebut or
explain the evidence recorded or collected against him.
In Dhakeshwari Cotton Mills Vs Income Tax Department
In this case, the income tax authorities relied upon certain confidential information
given by the departmental representatives. This was not disclosed to the petitioner even after
demand. It was held that it was a clear violation of Principles of Natural Justice.
(a) No evidence should be taken back of petitioner or in his absence
Hiranath Mishra Vs Principal Rajendra Medical College
36 girls filed a report with principal regarding misbehavior of the boys in the girls
hostel at midnight. The enquiry committee appointed, committee recorded the statement of the
girls, but in the absence of the appellant. The girls through photographs also identified them.
The committee issued expulsion order of the student to the boys. This order was challenged
before Supreme Court on the ground evidence was taken at their absence/ The court rejected
the contention holding that the girls would not have ventured to make the statement is the
presence of appellants (boys) as there was a great risk of retaliation and harassment.
In this case, whatever evidence was collected at the back of the appellants was brought
to their notice in gist and they were provided with an opportunity to rebut the evidence. But
not provided with right to cross-examination. Supreme Court held the right to cross-examine
may be given up when circumstances warranted.
4) Right or Opportunity to Cross Examine
Cross - Examination is a most powerful weapon to elicit and establish truth. However,
the courts do not insist on cross - examination in administrative adjudication unless the
circumstances are such that in the absence of it person cannot put up an effective defense.
State of J & J Vs Bakshi Gulam Mohammed
An enquiry was instituted against Gulam Mohammed, who was former Chief Minister
of J & K, under commission of Inquiry Act. In enquiry, the request of Bakshi Gulam
Mohammed to cross-examine the witnesses who had filed affidavits against him was denied
by commission.
The decision of the commission was challenged before the Supreme Court and one of
the grounds of challenge was that the denial of the opportunity to cross examine witness
violates the rule of fair hearing. But the court did not allow his claim on the ground that
evidence was not given orally but only affidavits were filed and the enquiry was only a fact
finding one.
5) Right to legal Representation or Right of Counsel
The right of representation by a lawyer is not considered to be a part of natural justice

and it cannot be claimed as of right, unless the said right is conferred by the statute or Act.
However, the court in India held that in situations where the person is illiterate, or the matter
is complicated, and technical or expert evidence is on record or a question of law is involved
or the person is facing a trained prosecutor, some professional assistance must be given to the
part to make his right to defend himself meaningful.
Nandini Setpathy Vs P.L.Dani AIR 1978 SC 1025
The court held that the accused must be allowed legal representation is custodial
interrogation and the police must wait for a reasonable time for the arrival of a lawyer.
Post decisional Hearing:
The idea of post -decisional hearing has been developed to maintain a balance between
administrative efficiency and fairness to the individual.
This principle was developed by justice Bhagavathi in his famous judgement given in
Menaka Gandhi AIR 1978 SC 597 case and in Mohinder Singh Gill AIR 1958 SC 851 case.
Justifying the idea of post decisional hearing professor De Smith writes, “ A prior hearing
may be better than a subsequent hearing but a subsequent hearing is better than no hearing at
all”.
Swadeshi Cotton Mills Vs U.I 1981 (1) SCC.644
The court validated the order of the Government for taking over the management of
the company which had been passed in violation of the Audi Alteram Partem rule, because the
government had agreed to give post - decisional hearing. (But this judgement was criticized).
K.I.Shephard Vs. U.I 1987 (4) SCC 431
In this case in terms of the scheme drawn under section 45 of the Banking Regulation
Act 1949, three banks were amalgamated pursuant to the scheme, certain employees of the
amalgamated banks were removed from the services.
The employees filed writ petition before Supreme Court. The contention of the
Banking authority was that we were ready to give post - decisional hearing.
But Supreme Court held that post - decisional hearing in this case will not do justice
especially where normal rule of fair hearing should apply. The court pointed out that there is
no justification to throw a person out of employment is that he should have opportunity as a
condition precedent to action. Court further observed that it is a common experience that once
a decision is taken there is a tendency to uphold it and the representation may not yield any
fruitful result. Therefore, even in cases of emergent situations Pre - decisional hearing is
necessary which may not be an elaborate one especially in cases where action has grave
consequences such as loss of livelihood.
Trehan Vs U.I 1989 1sec 764 AIR 1989 SC 568
Supreme Court observed, “In our opinion, the post - decisional opportunity of hearing
does not sub serve the rules of Natural Justice. The authority who embarks upon a post-
decisional hearing will normally proceed with a closed mind, so no justice will be done. Thus
in every case where the pre-decisional hearing is warranted post-decisional hearing will not
validate the action except in very exceptional circumstances.
Hearing at appellate stage:

Whether a hearing afforded at the appellate stage can be treated as an acceptable
substitute for a hearing not afforded at the initial stages? Or Can failure of natural justice at
the initial stage be cured by complying with natural justice at the appellate stage? Answer is
“no”. Even jurists like Prof. Wade also observed the same “ If natural justice is violated at the
first stage, the right of appeal is not so much a true right of appeal as a corrected initial
hearing”.
Farid Ahmed Vs Ahmedabad Municipal Corporation:
Before compulsory acquisition of land of the appellant, he was not granted personal
hearing which was required to be afforded to him. When the acquisition proceedings were
challenged, it was submitted on behalf of the corporation that an appeal was provided under
the Act (Bombay Municipal Corporation Act, 1949), which was a complete substitute for
personal hearing provided under the Act.
Supreme court rejected the contention of Municipality and observed “If the order is at
inception, invalid, its invalidity cannot be curved at appellate stage by observing Principles
of Natural Justice”.
Speaking orders or reasoned decision

It means an order speaking for itself that is to say order must contain reasons in support
of it. Giving reasons in support of an order is considered to be the third P.N.J
According to this principle the party has right to know not only the result of the
inquiry but also the reasons in support of the decision.
Lord Dennings says, “The giving of reasons is one of the fundamentals of good
administration”. The condition to record reasons introduces clarity and excludes arbitrariness
and satisfies the party concerned against whom the order is passed.
In India if statute under which the agency is functioning requires reasoned decision,
the courts consider it mandatory.
In cases where the statute does not provide for reasoned decisions the courts in India
claims for that, as it is implied constitutional perspective.

Sunil Batra Vs Delhi Administration
‘Reasoned decisions’ also involve a question of procedural fairness. That a law which
allows any administrative authority to take a decision affecting the rights of the people
without assigning any reason cannot be accepted as it is unfair, just and reasonable hence, it is
violate of Art 14 and 21.Thus, Supreme Court held that section 56 of the Prisons Act, 1894
provides an implied duty on the jail superindent to give reason for fetters on a prisoners.
S.N. Mukherjee Vs U.I
An administrative authority exercising judicial or quasi - judicial functions must

record reasons in support of their decisions. The considerations for recording reasons are:
1. Such decisions are subject to the appellate jurisdiction of the Supreme Court U/Art
136 as well as supervisory jurisdiction of H.C U/Art 227
2. It guarantees consideration by the authority.
3. Introduce clarity in the decisions
4. Minismise chances of arbitrariness in decision-making.
Most important advantage of giving reasons is that, the party can exercise effectively
the right of appeal.
Shrilekha Vidyarthi Vs State of U.P
The State Government by a circular terminated appointment of all Government

counsel. When the validity of the said circular was questioned is the Supreme Court, it was
contended that the appointments liable to be terminated at any time “without assigning any
cause”.
The Supreme Court observed that “the non - assigning of reasons or non -
communication there of may be based on public policy, but termination of an appointments
without the existence of any agent reason should be treated arbitrary and against public policy
also.
Maneka Gandhi Vs India
Under the passport Act, 1963 the authority is to record its reasons and furnish a copy
of the same to the concerned individual on demand while impounding his / her passport. The
authority may refuse to give reasons in public interest among other grounds. It was held that
the authority is not final authority in determining the question that non – disclosure of reasons
in a particular case is in public interest.
The recommendation of the 1959 Delhi Congress of International Commission of
Jurists suggested as under
Rule of law in free security: A report of the International congress of jurists, Delhi in 1959
“It will further the Rule of Law if the Executive is required to formulate, its reasons when
reaching its decisions of a judicial or administrative character and affecting the right of
individuals and at the request of a party concerned to communicate them to him.

Exclusion of Principles of Natural Justice:
1. Exclusion in Emergency or Necessity or When prompt action is needed
In emergency cases where prompt action either preventive or remedial is needed the
requirement of notice and hearing may be dispensed with
Eg: 1. In situations where a dangerous building is to be demolished
2. A company has to be wound up to save depositors
3. Where there is imminent danger to peace.
2. Exclusion in cases of Confidentiality
Malak Singh Vs State of Punjab AIR 1981 SC 760
S.C held that the maintenance of surveillance (a close watch over another) register by
the police is a confidential document. Neither the person whose name is entered in the register
nor any other member of public can have access to it. Court further observed that the
observation of P.N.J in such situation might defeat the very purpose of surveillance (and there
is very possibility of the ends of justice being defeated instead of being served.
4. Exclusion in case of routine matters: It is well settled principle that in routine matters
also principles of natural justice cen be excluded
5.
Jawaharlal Nehru University Vs B.S Narwal AIR 1980 SC 1666
Facts: Student of university was removed from the roll on the ground of unsatisfactory
academic performance without giving him the opportunity of being heard.
It is held that, if the competent academic authorities examine and assess the work of a
student over a period of time and declare his work unsatisfactory, at that time the rule of P.N.J
may be excluded. S.C further held that the very nature of the academic adjudication appears to
negative any right of hearing.
Karnataka Public Service Commission Vs B.M.Vijayshanker
When the commission cancelled the examination of the candidate because, in violation
of rules, candidate wrote his roll number on every page of the answer. Candidate challenged
the order of the commission on the ground of violative of the P.N.J (i.e., without giving notice
& hearing) But S.C held that P.N.J not attracted.
4. Exclusion based on impracticability: Where circumstances suggest that it is

impracticable to follow the natural justice then application of principal of natural justice for
that cases my be relaxed.
R.Radhakrishna AIR 1974 AP 283 Vs Osm
Where the entire M.B.A entrance examination was cancelled by the university because
of press complying the court held that notice and hearing to all the is not possible in this
situation. Thus the court excluded the rules of natural justice on the ground of administrative
impracticability.
5.Exclusion by the Constitutional Provisions:
Art.310 (Doctrine of pleasure)
Every person who is a member of a defence service or any civil post hold office during
the pleasure of the president or governor as the case may be
Art 311: specifically provides protection to civil servants, they are as under:
Art 311(1): No person who is a member of a civil service (either may be in Central or State or
All India Service) shall be dismissed by an authority subordinate to that by which he has been
appointed.
Art 311(2): No person (civil servant) shall be dismissed or removed or reduced in rank except
after on inquiry in which he has been informed of the charged and given a reasonable
opportunity of being heard in respect of these charges.
Some Exceptions have been provided under this clause
a) Where a person is dismissed or removed or reduced in rank on the ground of conduct,

which has led his conviction on a criminal charge.
b) Where an authority empowered to dismiss or remove a person or to reduce him in rank is
satisfied that for some reason to be recorded by that authority is writing, it is not
reasonably practicable to hold such inquiry. Of course the finality given to the decision of
the disciplinary authority is not binding upon the court so as its power of judicial review is
concerned.
Union of India Vs Tulsi Ram Patel AIR 1985 SC 1416
Art 311(2) c : Where the president or Governor, as the case may be, is satisfied that in the
interest of the security of the state is not expedient to hold such inquiry.
 It is to be noted that the satisfaction as to dispensation of inquiry is not required to be
personal satisfaction of the president or Governor but on his satisfaction arrived at
with the aid and advice of the council of ministers.
 Union of India Vs Tulsi Ram Patel : Court further held in this case that Art 14 cannot
be invoked to imply natural justice in the three clauses stated above, however, if any of
them is applied on extraneous ground or on a ground having no relation to the vitiation
envisaged in that clause, the action taken as malafied and therefore invalid and in such
condition / invalidity factor may be referable to Art 14.
Delhi Transport Corporation Vs D.T.C (Mazdoor Congress) AIR 1991 SC 101
The court has observed that the rule of audi alteram partem can be excluded where
having regarded to the nature of the action to be taken, its object and purpose and scheme of
the relevant satisfactory provisions, fairness in action does not demand its application and
even warrant its exclusion. If imposing the right to be heard has the effect of paralysing the
administrative process or the urgency of the situation so demands, natural justice can be
avoided.

Union of India Vs Tulsiram Prasad AIR 1955 SC 1416
“The rules of natural justice may be excluded or avoided in the interest of the defence
of contrary or keeping of state secret. Therefore the authorities are not required to disclose the
information’s relating to the defence policy or defence matters because such disclosure may
seriously jeopardize the defence planning of the Government.
Maneka Gandhi Vs U.I 1978 AIR SC 597
It is to be noted that the public interest is a judiciable issue. The determination of the
authority that the exclusion of the rule of natural justice is in public interest is not final and the
court may examine whether the exclusion is necessary for the protection of the public interest
cannot.
Mangilal Vs State of M.P 2004(1) ACE 1
It is held that where the statute is silent about the observation of the P.N.J such
satisfactory silence is taken to imply compliance with the P.N.J where substantial rights of
parties are considerably affected. The application of natural justice become presumptive,
unless found excluded by express words of statute or necessary intendment (also see Swadeshi
Cotton Mills Vs U.I AIR 1961 SC 818). Its aim is to secure justice P.N.J do no supplant
(replace) the law, but supplement it. These rules operate only in areas not covered by any law
validly made. They are means to an end and not and end in themselves.
UNIT -V
Liability of the Government in England
As per the notion “the kind can do no wrong” in England concept of liability of the
Government has not appreciated properly. All the courts in the counting were his courts and
he could not be sued in his own courts without his consent. He could be plaintiff but never be
made defendant no writ could be issued nor could any order be enforced against him. But after
the Crown Proceedings Act, 1947 the crown can now be placed in the position of an ordinary
litigant.
In India The maxim “the kind can do no wrong” has never been accepted in India. Thus, the
union and the states are legal persons and they can be held liable for breach of contract and is
tort. They can file suits and suits can be filed against them.
Contractual Liability
Before commencement of the constitution also, the liability of the Government for the
breach of contract was recognized. The Government of India Acts 1858,1919,1935 contained
provisions prescribing the manner in which government contract were to be made.
Post-Constitutional Period
Art.298: It says that the Government can enter in to the contract for the purpose of carry out
the functions of state.

Liability of the Administration
Art 294: Succession by the present governments of the Union and the states property, assets,
rights, liabilities and obligations vested in the formed government.
Art 298: Lays down that for the purpose of carrying out the functions of the state, government
can enter into contracts.
Art 299(1): Contains essential formalities which a government contracts must fulfill.
Art 300:Provides the manner in which suits and proceedings against or by the government
may be instituted.
 Besides the satisfying the requirement of Act 299, must also fulfill the requirements of
Sec 10 of the Indian Contract Act.
 In the same manner the principles for determining the quantum of damages contained
in Sec73, 74 & 75 of Indian Contract Act.
 The contract must be expressed to be made by the President of the Governor as the
case may be
Chatturbhuj Vithaldas Jasani Vs Moeshwar Parashram AIR 1954 SC 236
This contract had been entered into by a person authorized in this behalf but was not
expressed in the name of the President. Court held that the contract is void.
299(2): though contracts expressed as on the name President and Governor the case may be
yet clause 2 state that they shall not be personally liable. It also grants immunity in favour of a
person making or executing any such contract on behalf of the President / Government.
Liability of the state in Tort
Like an ordinary master, the state as an employer is liable for the torts committed by its
servants. However State is not liable for all wrongful acts committed by its servants. State can
escape from its liability by taking the plea of “Sovereign Authority”, in certain circumstances.
In England, at common law, King could not be sued in tort either for wrong actually
authorized by it or committed by its servants, under the concept of “King can do no wrong”.
The result was that whereas an ordinary master was liable vicariously for the wrong done by
his servants, the government was not liable for a tort committed by its servants. But with the
increase in the functions of the state the Crown became largest employer of labour in the
country. In these circumstances the rule of immunity of
State become highly incompatible with the demands of justice. The position in England is
now chaged, after passing of the Crown proceedings Act, 1947. Now the Crown is liable for a
tort committed by its servants just like an individual master.
The doctrine of vicarious liability is based on the maxims.
1.Respondent superior
1. Qui – facet per alum facet per se (he who does an act through another does it himself).
1) Peninsular and Oriental Steam Navigation Co.V. Secretary of State
Justice Sir Barness Peacock

Carrying the goods from dockyard across the read by engaging private person is not
come under the perview of sovereign functions.
After Independence
State of Rajasthan Vs Vidyanath B.P.Sinha C.J
When the pedestrian was knocked down by the state of vicariously liable for the rash
& negligence act of the driver.
Kasturilal Vs State of U.P Gajandragadkar C.J
 Police functions are sovereign function hence state is not liable.

 Actually it was wrong decision because -> Facts of the case should that the officer
in charge of the police station allowed the constable to keep the gold in his private
custody. Where the law required its deposit in the local government treasury and
also violation of U.P. Police Regulation.
S.C held that the state was not liable as police authorities were expressing “sovereign
functions”.
N.Nagendra Rao & Co Vs State of A.P (1994) 650C205
Appellants were carrying on business in fertilizer and food grains. Vigilance cell raided the
premises of the appellants and seized huge stock. Orders were issued to dispose of the stocks
pending investigations. However no actions were taken, as no irregularity except in
accounting so the stocks were to be returned to the appellants but by then the stocks had been
rendered unusable. Trial court decreed the suit for compensation but the H.C reversed it on the
basis of Kasturilal case (1965). On appeal Supreme Court uphold the trial court decision and
held that the doctrine of sovereign immunity stands diluted, in the content of modern concept
of sovereignty and thus the distinction between sovereign and non - sovereign functions no
longer survives. In this case the court also confirmed the principle of personal liberty of the
negligent officer.
Effects of non Compliance of Art 299(1)
The provisions of Art 299(1) are mandatory and not directory and they must be
complied with therefore, if any Art 299(1) is not complied with the contract is not in
accordance with law and the same is not enforceable by or against Government.
In Laliteshwar Prasad Vs Bateshwar Prasad AIR 1966 SC
S.C held that non compliance with the provisions of Art299 (1), a suit could not be
filed against the Government as the contract was not enforceable but the Government could
accept the liability by ratifying it But in Mulamcha Vs State of M.P AIR1968 SC 1218, the
S.C held that if the contract was not in accordance with the constitutional provision, in the eye
of law there was no contract at all and the question of ratification did not arise. Therefore it
could not be enforced against the Government.

Quasi – Contractual Liability or Doctrine of Unjust Enrichment or Unjust Benefit
As the provisions of Art 299(1) of the constitution are mandatory and if they are not
complied with, the contract is not enforceable in court of law at the instance of any of the
contracting parties. In these circumstance, with a view to protect innocent persons, court have
applied the provisions of Sec70 of the Indian Contract Act 1872 and held the Government
liable to compensate the other contracting party on the basis of question contractual liability.
Sec 70 provides that if the goods delivered are accepted or the work done in voluntarily
enjoyed on the acceptance of the said work arises. (i.e., compensation is awarded U/s 70 not
on the basis of any subsisting contract between the parties, but on the basis of the fact that
something was done by one party for the other and the said work so done has been voluntarily
accepted by the other party.
State of W.B Vs Bk.Mandal & AIR 1962 SC 779 Hansraj Gupta Vs U.I 1973 2 Sec 637
At the request of a government officer, the contractor constructed a building. The
possession was obtained by the officer and the building was used by the Government, but no
payment was made to the contractor.
When contract approached the court, it was contended that as the provision of Art
299(1) the constitution had not been complied with the contract was not enforceable.
The Supreme Court held that the contract was unenforceable but the Government was
liable to pay the contract U/S70of the Indian Contract Act 1872 on the basis of quasi –
contractual liability.
Doctrine of Estoppel
According to Wade “A person who by some statement or representation of fact causes

another to act to his detriment in reliance on the truth of it is not allowed to deny it later, even
though it is wrong”. Thus, it works as a shield not as a sword
Sec.115 Indian Evidence Act says about Estoppel
Eg: A falsely and intentionally leads B to believe that certain lands belong to A, and there by
induces B to buy and pay for it. The lands afterwards become the property of A, and A seeks
to set aside the sale on the ground that at the time of sale he had no title. He must not be
allowed to prove his want of title according to this doctrine.
Estoppel against Government
State of West Bengal Vs B.K.Mondal & Sons 1962 AIR 779
On the request of State Government the plaintiff company constructed certain

buildings to civil supplies department. After completion of the building that were occupied by
Government when bill was submitted by plaintiff company for reimbursement, the bill was
rejected that contract between company and Government is legal as they have not complied
with the Art 299(1) of the constitution.
The S.C held that Government was estopped to invoke the provisions of Art 299
because it had occupied the building utilise the services of the plaintiff and further court held

that contract was enforceable but the Government was liable to pay to the contractor U/S 70
of the Indian Contract Act 1802 on the basis of quasi – contractual liability.
Robertson Vs Minister of Pension
First Government assured to given pension to the victim officer after wards
Government rejected on the ground that it was against military rules but court applied here
principle of estopple and granted pension.
U.I Vs Anglo Afghan Agencies AIR 1968 SC 718
Textile Commissioner assured exporter, Anglo Afghan Agencies, exemption in tax

payment under export promotion scheme later rejected. But court ordered for exemption by
applying principle of estoppel U/s 115 of I.E.A.
Doctrine of Public Accountability
All the three organs of the Government (legislature, Executive and Judiciary) are
subject to public accountability. Public accountability means, all discretionary powers must be
exercised reasonably and in larger public interest, if not used properly he will be answerable.
Lucknow Development Authority Vs M.K.Gupta (1994) Sec 243
In case of defective construction of houses by statutory authorities a complaint made

by “consumer” regarding use of substandard material and delay in delivering possession was
held maintainable and the instrumentality of state was held liable to pay compensation.
Harvinder Choudhary Vs U.I 1996 (8) SC 80
It was held that the administration was liable to pay compensation when illegal and
unauthorised electric supply resulted in breaking of fire causing death and destruction of
property.
Personal Liability Under Doctrine of Public Accountability

A branch of duty gives rise in public law to liability which is known as “Misfearence
in public office”. A public officer (or) Ministers who abuses his official position can be
directed to pay compensation.
Common Cause ,A Registered Society Vs 1996 (6) sec 521
Petroleum Minister mode allotment of petrol pumps arbitrarily in favour of his

relatives and friends. Supreme court directed the Minister to pay fifty lakh rupees as
exemplary damages to public exchequer and fifty thousand towards costs.
Shiv Sugar Tiwari Vs U.I (1996)6 SEC 599
Allotment of shops /stalls was made by the Housing Minister “out of quota” to her
relatives. The Supreme Court not only set aside the allotment but also ordered the minister to
pay six lakhs to Government exchequer.

UNIT – V
JUDICIAL CONTROL OF ADMINISTRATIVE ACTION AND

REMEDIES
WRITS:
Writs are known as prerogative writs because they had their origin in they King’s
prerogative power of superintendence over its officer and subordinate court. Thus, a writ is
said to be a formal letter of the King with a seal, directed to some judge, officer or Minister.
Writ Jurisdiction of S.C
The right to move the Supreme Court for the enforcement of F.R.S under Art32, is
itself a F.R and the court has no power to refuse in its discretion to grant appropriate remedy if
the violation of F.R. Art 32 reads as under;
Art 32(1): guarantees the rights to move the S.C for the enforcement of F.R.S
Art 32(2): provides that S.C has power to issue directions, orders or writs for the enforcement
of F.R.S
Writ Jurisdiction of H.C
Art 226: Empowers the H.C to issue directions, orders or writs for the enforcement of F.R and
for “any other purpose” also. Thus, the power of the H.C is wider than Supreme Court. Words
“for any other purpose” enable the H.C to exercise its power for the enforcement of ordinary
legal rights.
It is to be noted that the jurisdiction of the H.C U/226 for the enforcement of F.R is
mandatory where as for the enforcement of ordinary legal right is concerned it is
discretionary.
Locus -Standi: Standing requirement under Law
 In order to have locus - standi to file a petition the petition should be an aggrieved person.
In Fertilizer Corporation Kangar Union AIR 1981 SC 344 VR Krishna Iyer, J
Observed that “Locus standi must be liberalised to meet the challenges of the times,
ubi jus ibi remedied must be enlarged to embrace all interests of public minded citizen or
organizations with serious concern for conservation of public power so as to promote justice
in all its facts.
Against whom writ would lie
A writ would lie against the state and statutory bodies and persons charged with public
duties.

Sometimes writ can be issued against the private persons in exceptional circumstances,
it was hold in Andi Mukta Sadguru Trust Vs V.R Rudani 1989 (2) Sec 891
Art 32: says state

1.Central Government
2.State Government
3. and state includes “other authorities” or other entity.
Writ of Habeas Corpus:
This writ is used primarily to secure the release of a person who has been detained
unlawfully or without any legal justification.
The S.C has widened its scope by giving relief through the writ against in human and
cruel treatment meted out to prisoners in fail, in Smill Batra Vs Delhi Administration and in
this case Krishna Iyer, J opened new vistas for the issuance of this writ. He treated a letter as a
petition of habeas corpus filed on behalf of premchand though the letter had not demanded his
release from jail.
Object: the writ of Habeas corpus provides a prompt and effective remedy against illegal
restraint. The object of writ of Habeas corpus is to release a person from illegal detention and
not to punish the detaining authority. The question for habeas corpus is whether the subject is
lawfully detained. If he is, the writ cannot issue, if he is not, it must issue.
An application for the writ of habeas corpus my by made by the person illegally detained. But
if the prisoner himself is unable to make such application, any person having interest in the
prisoner can make it; a wife, a father or even a friend may in such circumstances make an
application for the writ of habeas corpus. He should not, however, be a total stranger.
Procedure: Every application must be accompanied by a affidavit stating the facts and
circumstances leading to the making of an application. if the court is satisfied that there is a
prima facie case for granting the prayer, it will issue a rule nisi calling upon the detaining
authority on a specified day to show cause as to why the rule nisi could not be made absolute.
On the specified day, the court will consider the merits of the case and will pass an
appropriate order.
Sheela Barse Vs Maharastra AIR 1983 SC 378
The court accepted the petition of a journalist alleging custodid violence on women
which is the police lock up as with the Bombay.
In AIR Gopalam Vs Act of Madras AIR 1950 SC 27
In this case court examined the constitutionality of the preventive detention act and
observed that in habeas corpus writ preceding not only the fact of detention but also the
constitutionality of the law can also be challenged.
If the petition has been heard and rejected by the H.C a fresh petition U/Art 32 can still
be filed in the S.C so therefore this is an exception.
To the principle of res judicate Ghulam Sarwar Vs. U.I AIR 1967 SC 1335

In Lallubhai Jogibhal Vs U.I AIR 1981 SC 728
In this case S.C held that when a writ petition challenging an order of detention is
dismissed by the court, a second petition can be filed on additional grounds to challenge the
legality of continues detention.
II Mandamus “a command “ by superior court to the Government, inferior court, Tribunal,

Public authority, corporation or any other person having public duty to perform.
Eg: If the order of the Tribunal is not implemented by the Government, the Mandamus may be
issued by the court directing the Government to do its legal duty by implementing the order.
Condition for the issuence of Mandamus
1. Public Duty: The duty will be public duty if it is created by a statute or rule of common
law. Thus the duty imposed by the constitution, statute, common law or rules or orders
having the force of law is regarded public duty. It cannot be issued to enforce the private
duties; therefore it cannot be issued for the enforcement of the obligations arising out of a
contract.
2. Praga Tools Corporation Vs Imanual
3. Vaish College Society Vs Lakshmi Narain AIR 1974 Act 1
For the issuance of writ of man dames, it is necessary that the authority against which
it is sought must be public authority. It may be issued even against a private body if the duty
last upon it is of a public nature. However, it cannot be issued against a private person or
private body which does not perform public duty but performs only private duties.
Vidadala Hari – Nadhababu Vs N.T.R AIR 1990 AP 20
Code of conduct for ministers evolved by the union and the states are not statutory is
nature they are in nature of guidelines. They do not have constitutional or statutory sanction.
Thus court rejected to issue mandamus to restrain the chief minister from participating in a
film on the ground of violation of code of conduct.
Government also rejected the argument that the chief minister should denote time to
his official work as he is a public servant, on the front that he office of the chief ministers an
elective office, there is no relationship of employee (or) master and servant; it is a political
office; how much time a minister denote to his political activities and how much to the official
duties is not a matter for the court to decide.
2) Duty must be mandatory one and not mere discretionary one. Eg: D.A
If the duty is merely discretionary, the writ of mandamus cannot be issued enforce it.
Eg: State of M.P Vs Mandawara AIR 1954 SC 493
Court held that the Government is given a discretion to grant dearness allowances to
its employees, therefore the writ of Mandamus cannot be issued compel the Government to
grant the D.A
State of Pahya’s Vs Hari Kishan AIR 1996 SC 1081:

But if the discretion is exercised arbitrarily (or) maliciously (or) without applying the
mind (or) in the irrelevant consideration the mandamus will lie.
S.C Advocates on record Assistance Vs U.I 1993 4 SEC 441
It was held that even if the discretionary a limited Mandamus can be issued directing
the public authorities to exercise the discretion with a reasonable time is accordance with law
3) Petitioner must have legal right to compel the performance of the duty (i.e public duty i.e
there must be aright to enforce the duty (or) to get the duty performed.
 Director of Settlements AP Vs M.R AppaRao : AIR 2002 SC 1598
Court held that in order to obtain the writ of Mandamus the application has to
satisfy that ha has a legal right to the performance of legal duty by the party against
when the Mandamus is sought and such right must be substituting on the date of
petition.
4)Demand of the Performance and it’sRefugal :
For the issue of the Mandamus it is necessary that the petitioner has called upon the
authority concerned to perform its concerned has refused to do so.
 Chammanlal Vs Haryana state w Act 1976 SC 1654.
Alternative Remedy :
1) Ramesh thapper Vs state of Madras AIR 1850 SC 124

2) Kailash Vs UP AIR 1957 SC 790.
It is the duty of the SC U\ Act 32 and also of the H.C U\ Act 226 to enforce PRS and
therefore alternative remedy would not be bar
3) Thansity Vs Superintndent .Police AIR 1964 SC 1419
Government held that in certain cases the court can refuse to issue the writ
U/ Act 226 on the front that their in statutory remedies provide in the Act . (Which
should to be resorted to in the absence of exceptional circumstances
4) Existence of Alternative Remedy is rule of discretion And Not Rule of law and thus, the
existency alternative remedy is not absolute bar. Md Nooh Vs U.P AIR 1958 SC 26.
Public Interest Litigation / Social Action Litigation [PIL\SAL] :
“ Class Actions” representative Actions and Public action litigation.” Public Welfare
Litigation”
Public interest movement generated by the judiciary to reach justice especially to the
weaker sections of the society for whom even after two and a half decades of independence
justice is merely a testing illusion.
The idea of PIL /SAL come from actio popularis of the Roman jurisprudence which
allows court access to every citizen matter of public wrongs.
This innovative idea provides easy acess to justice to the weaker sections of Indian
society and it also provides a powerful tool in the hands of public spiritual individual and
social action groups for combating exploitation and injustice caused against the weaker
sections.
Nature &Purpose:
PIL is innovated by the court not for the purpose of enforcing the right of one
individual against another individuals happens in the case of ordinary litigation’s, but it is
intended to promote the public interest which demands that violations of constitutioned (or)
legal rights of a large number of people who are poor, ignorant (or) in a socially (or)
economically disadvantaged position should not go un noticed and unredressed
According to I.P Massay “PIL litigation is not considered as a battle to be won but a
disease to be cured says it”.
Exclusion Of Local Standi Principal :
Traditional view of locus stand was that only as agreed person can file a petition for
the redressed of his grievance. Now this purpose has been liberally interpreted in the
field of PIL /SAL so as to allow public spirited persons, groups and organizations on
behalf of those who because of their poverty, illiteracy and ignorance cannot come
before the court and thus continue to suffer injustice and deprivation.
Whether This strategy Is Constitutional (or) Extra Constitutional :
It may be pointed out that in PIL the court is not exercising any extra-Constitutional
jurisdiction as this strategy is now firmly rooted in Act 14 and21of the constitutional Act 14
provides for protection of “life “ which embodies every thing that goes for a dignified living
including rightful concerns of others .
1) AB S.K Singh (rly) Vs U.I AIR 1981 SEC 293 :
It is held that an unregistered association could file a writ petition U\ Act 32 for
redressed congrievence. PIL is access to luster through “class action “ (Krishna
Ryaj )
Cases:
1) S.P Gupta Vs U.I AIR 1982 SEC 149 (Judges Transfer Case ) :
In this case the S.C entertained petitions by lawyers challenging the constitutionally
of law ministers circular regarding transfers of judges of H.C and non-confirmation
of sitting Additional judge of H.C S. Standing was allowed on the ground that
independence of the judiciary is a matter of grave public concern.
2) Peoples Union For Democratic Rights Vs 1982 (3) SEC 235 (Asiad Case ) :

S.C entertained petition from a public –spirited organization on behalf of labourers
belonging to socially and economically weaker sections and employed in the
construction work of various projects connected with Asian Games, 1982
complaining violation of various labour laws including payment of minimum wages
and court granted relief.
Bandhu Mukthi MorchVs U.I (oblition of bonded labour) 1984 (3) SEC 161
A Public –spirited organization allowed to file a petition for the release of bonded
labours working in state quarries.
Parmanand Katara Vs U.I 1990 (1) SEC 161 :
On a PIL petition the court directed the Government that every injured person
brought for medical treatment should instantaneously be given medical aid without
waiting for the completion of police procedural formalities in order to avoid
negligent death of an accident victim.
“Law Helps Injured To Die”
Banwasi Seva Ashram Vs State of U.P 1993 (2) SEC 612:
On a PIL petition the Supreme Court granted relief to Adivasis and

other backward people using forest as their habitat and means of livelihood against their
eviction from the forestland by the Government.
Misuse of PIL:
Public interest litigation cannot be used as a mask for frivolous litigation . The courts
should be cautious not to entertain such petitions
The court observed in State of Himachal Pradesh Vs Students of Medical College AIR
1985 SEC 910
PIL is a weapon, which has to be used with great care and circumspection and the
weapon which has to be extremely careful to see that under the guide o redressing a public
grievance it does not encroach upon the sphere reserved by the constitution to the Executive
and the legislative. .
Prohibition:
It is a writ, which is issued by a superior court to an inferior court or Tribunal court

(or) body from usurping jurisdiction which is not legally vested there in (or) from acting in
violation of the P.N.J (or) from acting under the constitutional law.
 It is a writ of right and court cannot refuse it in cases of excess of jurisdiction (or)
where jurisdiction is being exercised in violation of the law of the land (i.e, emonious
interpretation of law, especially statute of law)
Grounds For The Issue Of Prohibition :

Prohibition can be issued on the same ground on which certiorari can be issued
“except “ in case of error of law apparent on the face of record .The ground for the issue of
prohibition are;
1) Lack of jurisdiction
2) Excess of jurisdiction
3) Violation of P.N.J
4) Infringement of the F.R.S
5) Fraud
6) Contravention of the law of the land (i.e erroneous Interpretation of law,
especially statute law)
Distinction Between certiorari And Prohibition:

The main distinction between the two writs is that prohibition is issued before the
proceedings are completed while certiorari is issued after the decision is given by the inferior
court or Tribunal.
Sometimes these two writs may overlap .If an agency gives a decision, which does not
finally dispose of the matter, certiorari will lie to forbid the agency from further continuing
the proceedings.
Writ of Quo – Warrant = by what warrant or authority
By this writ a person who occupies or usurps an independent public office is asked to
show by what authority he claims it.
Supreme Court has made it clear that the person not entitled to the post can be asked
and the person entitled to the post can be allowed to occupying it.
Conditions for the grant of Quo-warrants
1.Office must be a public office
That is to say that a public office is one which is created by the constitution or a statute
and the duties of which must be such in which public is interested.
2. Public office must be substantive in nature
A substantive office is one which is permanent in character and is not terminable at

will.
In R Vs Speyer (1916) KB 595
The word “substantive” was interpreted to mean an “office independent of title”. In

other words, the official must be an independent official and not merely one discharging the
function of a deputy or servant at the pleasure of another officer. However quo – warrant
would be granted even when the office is held at the pleasure of the state provided it is
permanent in character.
3. The office must be held by a person without legal authority

To issue this writ, the public office is required to be held by a person who is not legally
qualified to hold the office or some statutory provisions must have been violated in making
the appointment of the person to the office (University of Mysore Vs Govind Rao,AIR 1965
SC 491)
Judicial Review of Administrative Discretion
Meaning of discretion
According to view of justice Loke in Rooke Case (1598)
“Discretion is a science or understanding to discern (perceive with the mind or sense)

between falsity and truth, between right and wrong, between shadows and substance, between
equity and colourable grosses and pretences (make believe or pretending) and not to do
according to their wills and private affections.
According to De smith “Discretion implies power to make a choice between
alternative courses of action”.
In the words of proff . Freud “when we speak of administration discretion, we mean
that a determination may be reached, in part at least, upon the basis of consideration not
entirely susceptive (easily affected or influenced) of proof or disproof therefore the discretion
includes or implies the case in which the ascertainment of fact in legitimacy left to
administrative determination”.
The legal maxim “Discretioest disccernere perlegem quidsit justum”. Apply described
discretion as to mean the faculty to know through law what is just. It is the faculty of deciding
or determining in accordance with circumstances and what seems just, fair, right, equitable
and reasonable in those circumstances. Therefore a question of discretion is accordingly a
question not determined, like a question of fact by a evidence nor one determined, like a
question of law, by authorities and argument, but one determined by an exercise of moral
judgement.
Degrees of Discretion
1. Discretio generalis
2. Discretio legalis
3. Discretio specialis
Discretion generalis: It is required for every one in everything that he is to do or attempt to do.
Eg: 1 A police constable would have to use his discretion at the cross roads while stopping the
traffic to allow other side traffic to move.
2.Principal of educational institution has to use his discretion while ordering closure of the
institution having regard to a crisis.
Discretio Legalis
Discretio legalis is that which inheres in every person exercising judicial functions to
administer justice according to prescribed rules of law .
3)Discreto Specials :

It is to be used where the laws have given no certain rules and the discretion is the
absolute judge of the cause and gives the rule.
Gronds Of Judicial Review :

In India, the courts will interfere with the discretionary powers exercised by the
administration in the following circumstances .
1) Excess or abuse of discretion.

(Or)
2) Failure to exercise discretion.
!) Excess (or) Abuse Of Discretion:

The discretionary power, is conferred on an administrative authority, should be
exercised according to law and it should not be used in excess than necessary in given
situation.
Exercise of the discretion may be challenged on the ground of abuse or excess of
discretion in the following circumstances:
a) Exceeding Jurisdiction:
Administrative authorities must exercise their discretion power within the limits prescribed
by the statute and if they exceed those limits, the action will be held to be ultravires by the
court of law.
In London County Council Vs Attorney General (1902) AC 165, the local authority was
empowered to operate tramways only. But the local authority also carried on a bus service,
which is not come under their purview. The court held that local authority exceeded its
jurisdiction hence not valid.
c) Taking in to account of irrelevant considerations or extraneous consideration:
If the authority, on which the power is conferred, takes in to account of irrelevant or
circumstances unconnected to those mentioned under the statue and decides the matter, than
his action will be declared abuse of power.
In Hukam Chand Vs Union of India (1976) 2 SCC 128, under the telegraphic rules,
the Divisional Engineer was empowered to disconnect any telephone on the ground of “public
emergency”. Accordingly, Hukam Chand telephone was disconnected on the ground that he
was used his telephone for illegal forward trading (satta). Supreme court after pursuing the
matter held that it was an extraneous consideration and arbitrary exercise of power by the
authority concerned. There fore court quashed the order holding that it was irrelevant ground.
In Barium Chemical Vs Company Law Board AIR 1970 SC 1728, The company law board
started investigation in to the affairs of the company under section 237 on the ground of delay
and faulty planning of the project, losses to the company, value of the shares fell down etc.
but the grounds are not falling under the said section. The Supreme Court held that the
grounds on which the company law board ordered the investigation were irrelevant to
statutory provisions. Therefore the order for investigation by the company law board declared
invalid.
d) Leaving out relevant considerations: The administrative authority is required to take into
account of all the relevant facts, while he exercising his discretion. If he leaves out relevant
consideration, his action will become in valid. It is very difficulty to show that the authority
has left out some relevant consideration. However it can be inferred from the detailed reasons
given in the impugned order. Some times the statute may prescribe relevant considerations,
which are to be taken account by the authority. If authority fails to take in to account of any of
them, the action will be declared invalid.
In A. Shanmugham Vs S.K.V.S Ltd AIR 1963 SC 1626, To issue permit the transport
authority has to consider certain factors like workshop, residence or branch office in the routes
etc. The authority did not consider the presence of branch office on the route and refused
permit. The Supreme Court quashed the decision on the ground that the authority had left out
some relevant considerations.
Rampure Distillary Vs Company Law Board AIR 1970 SC 1928
The company Law Board refused to approve of the managing Agency as the managing
Director of the Agency was guilty of misconduct in 1946 – 47. The court held that though the
Misconduct of the Managing Director was a relevant consideration in general, but it is not
relevant for the present case because the present activities of the Director should also be taken
as relevant consideration.
e) Mixed Consideration: Sometimes, the order of the quasi-judicial authority may be based
on relevant and irrelevant considerations. In such cases court will to examine weather or not
the conclusion of irrelevant or non-existent considerations would have effected the ultimate
decision. If the court is satisfied that the conclusion of the irrelevant consideration would have
affected the decision, the order passed by the executive in the exercise of the discretionary
power will be declared invalid but if the court is satisfied that the exclusion of the irrelevant
considerations would not have affected the decision, the order of authority will not be
declared invalid. But courts usually take the strict view in case of preventive detention and
will invalidate the order if the order is based on irrelevant consideration along with relevant
consideration (grounds).
In Dhananjay Vs District Magistrate AIR SC 1315, Supreme Court quashed the order since
the order was based on both relevant and irrelevant considerations. However the court
clarified that the vague or irrelevant grounds are such that if they excluded might reasonably
have affected the subjective satisfaction of the appropriate authority, then only the order of the
authority has to be quashed.
f). Unreasonable: If discretionary power on the administrative authority, he must exercise

that discretionary power reasonably. If the authority acts unreasonably then court will in
validate those acts. So where a administrator is conferred discretionary power, it should be
taken to mean that he has been empowered to do what he likes merely because he is minded to
do so.
In Roberts Vs Hopwood (1925) AC 578, the Local Authority was given power to pay “such
wages as it may think fit”. The court held that here “may think fit” could be taken to mean
“may reasonably think fit”. Court further clarified that here “think” is equivalent to
“reasonably think”.
In Sant Raj Vs O.P Singla AIR 1985 SC 677, The court observed that when it is said that the
authority to do something, it should be taken to mean that the authority must do it according
to the rules of reason and justice and not according to his private opinion.
g). Colourable Exercise of power: Where the discretionary power is exercised by the
authority on which it has been conferred ostensibly for the purpose for which it has been

given but in reality for some other purpose it is taken as colourable exercise of the
discretionary power.
Somanwanti Vs state of Punjab AIR 1963 SC 151: In this case, though the statute does not
empower the authority to exercise the power in a particular manner, the authority exercises the
power under the “colour” or guise of legality.
h) Malafide: Malafide means exercise of power maliciously or with dishonest intention. It is

of two types 1) malice in fact and 2) malice in law.
1) Malice in fact: When an administrative action is taken out of personal animosity, ill
will, vengeance or dishonest, the action necessarily requires to be struck down and
quashed.
In Rowjee Vs State of A.P AIR 1964 SC 962, The Road Transport Corporation had
framed a scheme for nationalization of certain transport routs. This was done as per the
direction of the then Chief Minister. It was alleged by the petitioner that the particular
routes were selected to take vengeance against the private transport operators of that area
as they were his political opponents. The Supreme Court upheld the contention of the
petitioner and quashed the order of nationalization.
2) Malice in law: When an action is taken or power is exercised with out just or
reasonable cause or for purpose foreign to the statute, the exercise of power would be bad
and action ultravires.
In T.N Sheshan Vs Union of India(1994) 4 SCC 611, the president of India , by an
ordinance made the Election Commission a multi-member Commission. The said action
was challenged by the petitioner as malafide. The Supreme Court held that the ordinance
issued by president is constitutionally valid and was not vitiated by malice in law.
In Express News Papers (P) ltd Vs Union of India AIR 1986 1 SCC 133, a notice of re-
entry upon forfeiture of lease granted by the Central Government and of threatened
demolition of the Express Building was held to be malfide by the party in power against
the Express Group Of News Papers.
H) Improper Object: Collateral purpose: A power conferred on the authority by
statute must be exercised for that purpose alone which is mentioned under statute and if it is
exercised for a different purpose, then it is to be treated as a abuse of power by the authority
and the action taken by that authority may be quashed.
In Banglore Medical Trust Vs muddappa (19910 4 SCC 54, a piece of land earmarked
for public park was allotted to a private trust for construction of nursing home at the instance
of the then Chief Minister. It was contended that action was taken in public interest and the
local authority would get income. The Supreme Court, however, held that the “exercise of
power was contrary to the purpose for which it was conferred under the statute.
2) Failure To Exercise Discretion:
If there is failure to exercise discretion on the part of that authority the action will be
bad. Such type of law impretation, spoil may arise in the following circumstances.
1) Sub –delegation:
The very object of conferring a power on a particular administrative authority is that the
power must be exercised by that authority only and cannot be sub delegated to any other
authority (or) official, unless and until he has been expressly empowered to delegate it to
another official by the relevant Act.
Central Talkies Vs Dwaraka Prasad AIR 1961 SEC 606 :
The U.P, control of rent and eviction Act of 1947 provide that no suit shell be filed for
the eviction of a tenant without permission either from Distinct Magistrate (or) any officer
authorized by him to perform any of his function under the Act. Here an order for granting
permission was passed by the Additional District Magistrate to whom the power was held
valid.
Ganapathi Vs State of Ajmer AIR 1955 SEC 188 :
The parent Act empowered the Chief Commissioner to make rules for the sanitation.
But Chief Commissioner delegated this rule making power to the District Magistrate.
Here S.C held that the parent Act conferred the power on the Chief Commissioner and
not on the District Magistrate and therefore the action of the Chief Commissioner sub-
delegating that the power to the District Magistrate was invalid.
It can be said that when parent Act says (or) empowers expressing for sub-delegation
then sub-delegation can be done and if parent Act is silent with regard to the sub-delegates his
power to his lower official than that sub-delegation is invalid.
2) Imposing Fetters On discretion By Self –Imposed Rules:
An authority entrusted with discretionary power must exercise with discretionary power
must exercise the same after considering individual cases. Instead of doing that if the
authority imposes fetters on its own discretion by adopting fixed rules of policy to be
applied in all cases coming before him, said to be failure to exercise discretion.
Keshavan Bhaskaram Vs State Of Kerala :
The relevant rule says that no school-leaving certificate would be granted to any
person unless he had completed 15 Yrs of age. The Director was empowered to grant
exemption from this rule in deserving cases. But the Director had made a rule of not granting
exception unless the deficiency in age was less than two years to any person.
Supreme Court held that this self-imposed restriction on his own discretionary power
is bad in law.
3) Acting Under Dictation:
If the authority is exercising its discretion under instructions from superior officer,
then it will amount to acting under dictation of superior.
Commissioner Of Police Vs Govardhandas AIR 1962 SEC 16 :
The Police Commission was empowered to grant license for construction of cinema
theatre, under the Bombay Police Act, 1902.According by Commissioner granted license for
construction of cinema theatre. But later on, he cancelled it at the direction of the state
Government.

The S.C set aside the order of cancellation of license as the Commissioner had acted
merely as the agent of the Government and his action can be treated as action under dictation,
so it is not fair.
Non–Application Of Mind or Acting Mechanically :
When a discretionary power is conferred on an authority, the said authority must

exercise that power after applying its mind to the facts and circumstances of the case hand and
he should not act mechanically.
Jaganath Vs State Of Orissa AIR 1966 SEC 1140 :
In the order of detention, the authority reproduced the relevant provisions as grounds
for detention.
The Supreme Court held that the authority had not applied its mind; hence order was
liable to be quashed.
4) Non-Compliance Of Procedure :
If there is any procedure to be followed while discretionary power by concerned authority,

if not followed that procedure then the order liable to be quashed.
Narayana Vs Kerala AIR 1974 S.C 175:
The state Government was authorized to revoke license for supply of electricity after
consulting the Electricity Brand. But the Government revoked license without consulting
the Board i.e not followed the procedure laid down in the Act.
It was held by the court that the condition to follow procedure must be satisfied before
exercising the power / since it was mandatory in nature.
Judicial Process of Administrative Tribunals

42nd Amendment Act,1976 Art 323 – A,323 – B say establishment Tribunals
Need for administrative adjudication
 State is now welfare state

 Today state exercise not only sovereign functions, but as a progressive democratic state.
 State must ensure social security and social welfare of common mass
 Government functions have increased and in reality, many judicial functions have come to
be performed by the executive
Eg: Imposition of fine, levey of penality confsication of goods
 It is not always possible for the ordinary courts of law to deal with all those socio –
economic problems. Eg: Industrial disputes like strikes & lockouts.
 Ordinary courts cannot decide these disputes expeditiously
 Therefore, administration tribunals are established to decide various quasi – judicial issues
in place of ordinary civil courts of law.

Definition & Nature of the Tribunal
It means “a seat of the judge or a court of justice”. Its wide meaning includes even the
ordinary court of law but administrative law expressly excludes the ordinary courts from
meaning of tribunal.
Eg: Tribunals
1. Industrial Tribunals
2. Tax Tribunals
3. Election Tribunals
4. Rent control Authority
5. Payment of wages Authority
6. Conciliation officer
The following are the characters or Nature of the Tribunals
1. Tribunal is to creation of the statue thus it is statutory organization.

2. It has some of the trappings of a court but not all.
3. It performs quasi – judicial functions – distinguished from pure administrative &
executive functions.
4. It has powers of civil court such as
a. Summon witnesses
b. Taking of oath
c. Compelling the production of documents.
5. It is not bound by strict rules of evidence.
6. It works like judiciary and it should see the matter objectively and judicially rather
stand point of policy.
7. It also decides disputes between two private parties.
Eg: 1. Rent tribunal
2.Industrial Tribunal
8. Prerogative writs of certify and prohibition are available against the decisions the
administrative tribunals.
Working of Tribunals
There are number of administrative tribunals in India for

Eg: 1. Industrial Tribunals
2.Labour courts
3.Election Tribunals
Industrial Tribunals
 appropriate Government constitute Industrial Tribunal consist of one or more members.

 Presiding officer may be H.C judge or District judge
 Member can be appointed on who having special knowledge in this regard.
 Tribunal vested with the power of civil court
 It main work is to prevent unfair labour practices and victimization and restore industrial
peace by ensuring the statutory principles of collective bargaining
 Decisions of this tribunal are subject to the writ jurisdiction of the H.C U/Art 226 of the
constitution.
 Supervisory jurisdiction of the U/Art 227 of the constitution
 U/Art 136 S.C with discretion can entertain appeals against the orders of the tribunal.
II Income tax Tribunal
 It is constituted U/ Income Tax Act 1961

 It consists of 10 years practice judicial and accountant members.
Prerogative writs are privileges of an extraordinary kind granted by the court in certain
cases, but never as a matter of right they being a direct intervention of the Government with
the liberty or property of the subject.
It is means a writ issued not as an ordinary writ of strict right, but at the discretion of
the sovereign acting through that court in which the sovereign is supposed to be personally
present.
“Ask or demand before land”
 appeal can file with in 60 days to appellate Assistant Commissioner.

 This Tax Tribunal can make its own regulation -> rules of evidence cannot be applicable
 It can take action against person who produce false evidence
 It can initiate contempt proceedings
 It can impound books of accounts.
III Railway Rate Tribunal
 Presided over by chairman who is or has been a judge of S.C or H.C

 Decision is final – it can be executed by a civil court as if it were a degree
Decisions of Tribunals & Judicial Review
The statute under which tribunal has been constituted expressly prohibits the appeal,
revision or reference against the decision of tribunal then it could be said decision of the
tribunal as “final”.
Provisions can also be made for outer of jurisdiction of civil courts and in all those
case the decisions rendered by tribunal will be treated as final.
But this statutory finally will not affect the jurisdiction of H.C U/Art 226 and of the
S.C U/Art 32 and 136 of the constitution of India. That means the power of “Judicial Review”
of the H.C and S.C is recognized by the constitution and the same cannot be taken away by
any statute.
When can judicial review lie on the decision of tribunal
1. If the tribunal has acted without jurisdiction.

2. Tribunal has failed to exercise jurisdiction rested in it.
3. If the order passed by the tribunal is arbitrary.
4. It has not observed the P.N.J
5. When there is an error an apparent on the face if the record.
6. The order or decision given by the tribunal is ultravires to the Act.
7. When there is no evidence in support of the order.
8. The order is based on irrelevant consideration.
9. The order is such that no reasonable man would have made it.
It above conditions are fulfilled the order can be set aside by the High Court or by S.C
by exercising the power of ‘judicial review’.
Denning L.J said
“If tribunals were to be at liberty to exceed their jurisdiction without any check by the
courts the rule of law would be at an end”.
Doctrine of Res Judicate
Res Judicate: Sec 11 of CPC says that if an issue had been made the subject – matter of the
previous suit and had been raised, tried and decided by competent court having jurisdiction to
try the suit, the same issue cannot again be rared, tried or decided by any court between the
same parties.
This principle applicable to even administrative adjudication.
An ward pronounced by the “Industrial Tribunal” operates as re judicate between the

same parties and the payment of wages authority has no jurisdiction to entertain the said
question again.
(or)
Bombay Gas Company Vs Jagannath pandurang AIR 1961 SC 1186
If in an earlier case, the labour court had decided that “A was not a workment with in
the meaning of the I.D.Act,1947, it operates as ‘resjudicate” in subsequent proceedings.
Administrative Tribunals: Whether bound by the decisions of S.C of H.C U/Art 141 of
constitution (Star decisis);
As per Art 141 of the constitution “the law declared by the S.C shall be binding on all
courts within the territory of India”.
It is said there is no provision corresponding to Art 141 with respect to the law
declared by a H.C. The question here is whether the law declared by H.C has similar binding
effect over all subordinate courts and inferish tribunals with in the territorial jurisdiction.
This question directly arise before the S.C in the case of East India Commercial Co
Ltd Vs Collector Customer AIR 1962 SC 1893
Collector of customer passed an order against company on the allegation that it had
violated the conditions of Licence and illegally disposed of goods and there by committed an
offence.
But District Court acquitted him from above charges saying that it cannot be said that
a condition of the licence amounted to an order under the Act, and therefore no offence was
committed by the company.
The confirming the judgement of District Court H.C also passed an order directing the
seized goods to be sold and the sale proceeds to be deposited in the courts after these
proceedings a notice was issued by the collable on the company to show cause why the
amount should not be confiscated and the penalty should not be imposed.
It was contended by the company that once the H.C had decided that the breach of a condition
of the licence cannot be said to be a breach of order, the collector had no jurisdiction of issue
the show cause notice. It was submitted that the decision of H.C on a point is binding on all
subordinate court and inferior tribunals within its territorial jurisdiction and the notice was,
therefore required to be quashed. Upholding the contention and quashing the show – cause
notice the majority observed the law declaimed by the highest court in the state and initiate
proceedings in direct violation of the law so declared U/A 227 it has jurisdiction overall
courts and tribunals thought the
territories in relation to which exercises jurisdiction .
Wheather tribunal has power to grant say
When tribunal is created by a statute, it possesses all the powers conferred on it by the
Act. Under which the tribunal is created. Not only conferred power, but it also has power to
grant interim relief during the pendency of proceedings before it.
ITO Vs Mohd Kushi (AIR 1969 SC 430)
In this case I.T tribunal refused to grant stay order during the proceedings on the
ground that it had no power to grant stay.
But S.C held that the tribunal had implied power to grant such relief.
Whether tribunals are bound to follow the P.N.J or not

Administrative tribunals functions are said to be judicial & quasi- judicial functions.
Tribunals have to decide the dispute independently, judicially, objectively and without any
bias. The Franks Committee has proclaimed three fundamental objectives.
1.Openner
2.Fairness
3.Imparidila
The Indian Law Commission in its,is & fourteen report,1958 has observed that
administrative tribunals perform quasi judicial powers and they must act judicially and in
accordance with the P.N.J. They must afford a reasonable opportunity to the parties to
represent their case and to adduce the relevant evidence.
Dhakeshwari Cotton Mills Vs CIT :
Supreme court set aside the order passed by the income tax appellete tribunal on the
ground that it did not disclose some evidence to the essessee produced (or)releaved upon by
the department .
British Medical Stores Vs Bhagirath :
On an application made by the tenant , the rent controller made a private enquiry and
visited the premises in the absence of the landlord. After enquiry it was held that the
contracted rent was excessive and fixed the standardrent, without giving an opportunity of
being heard to the landlord . So H.C set aside the order as violative of P.N.J.
Reasons For Decision (or)Reasoned Decision (or) Speaking Orders :
It is well established principle that every quasi-judicial authority including an

administrative tribunal is duty bound to record reasons in support of the orders passed by it.

Justice Krishna Iyer Said :
“ The tribunal like a court must pass reasoned judgements in other words quasi –judicial
authorities must pass a speaking order i.e giving reasons for its decisions “
Administrative Tribunals And Rules Of Procedure And Evidence :
In India tribunals do not allow any uniform procedure. The procedure is sometimes
laid down in the statute and sometimes the tribunal left free to develop its own procedure.
Eg(1) – The procedure for copyright Board is given in the copyright Act itself.
Eg(2) – The Tax Appellate Tribunal is left to decide its own procedure .
In the matter of general practice the tribunals exercise the powers of a civil
court relating to examination, discovery, inspection, production of documents, compelling
attendance of witness and issuing Commissions .It is held by Supreme Court in various
occasions that in absence of statutory procedure to be followed by the tribunals should follow
the principle of Natural Justice.
The proceedings of administration tribunals are deemed to be judicial
proceedings for the purpose of sec 193 (punishment for false evidence), 195(Giving false
evidence intended to procure conviction of offences punishable with life imprisonment) and
228 (interrupting the judicial proceedings) of I.P.C
Section 345 (procedure in certain cases of contempt) and 346 (cases not
covered U\S 345) of wpc also says that proceeding under above two sections deemed to be
judicial proceedings.
As per Evidence rules are concerned, the technical rules are concerned, the
technical rules of the Indian Evidence Act do not apply to tribunals. However, the rules of
procedure of tribunals. However ,the rules of procedure of tribunals should not violate the
requirement of fair procedure and they must observe ‘P.N.J’and “fair play”.
Sampath Kumar Vs Union Of India 1987 (1) SEC 124 :
By virtue of Act 323-(A) of the constitution , parliament enacted the Administrative

Tribunal Act,1985 section 28 of the Act excluded the power of judicial review exercised by
the H.C in service matters under Act226&227 .
But it is said that this Act has not excluded the judicial review entirely,because
jurisdiction of the S.C U\Act 32& 136 of the constitution was kept intact.
Here question before the court was whether 42n Ammendant substantially excluding
and curtailing the judicial review power of the HOC over Administrative actions (or) not?
The constitution bench speaking to the court Mishra J upheld the validity of the
Administrative Tribunals Act,1985 and observed that Exclusion of the jurisdiction of H.C
does not totally bar the judicial review and moreover it is possible to setup an alternative
institution in place of H.C for providing judiciasl review.Court further observed that the
Tribunal has been contemplated as a substitute and not as supplemental to the H.C in the
scheme of Administrative Justice.Thus, the Tribunal is the substitute of the H.C and entitled to
exercise the powers thereof by Ranganath Mishra .J
In concurrring judgement Bhagwathi C.J rightly observed “ If this constitutional
amendment were to permit a law made under clause (1) of Act 323A to exclude the

jurisdiction of H.C U\Act226&227 without setting up an effective alternative institute for the
judicial review , it would be violative of the basic structure doctrine.
Even inspite of above judgement the question remains same that were administrative
Tribunal really substitutes of H.C ?Did they fulfill the objects for which they had been set up
If we see the actual functioning of the Tribunals, it can be said that they failed to
inspire confidence in public mind and were not successful in creating an “effective alternative
institutional mechanism “.
The Arrears committee, after in depth study of all these problems stated .”Functioning
of Tribunals are not satisfactory and encouraging and further observed that excluding of H.C
appellete jurisdiction over Tribunal is improper”.
R.K Jain Vs Union Of India :
It was held that the sole remedy provided under Act 136 of the constitution was
ineffective and court suggested that an expert body like the law commission should study the
feasibility of providing an appeal to a Bench of two judges of the H.C concerned for the
orders of such Tribunals.
Chandra Kumar Vs U.I AIR 1997 SEC 1125 :
In this case S.C through that the decision given by the constitutional Bench (consist of
5 judges )is Sampath kumar case needed to be “ Comprehensive reconsidered “ by a large
Bench as the questions remained unsolved they are
1) Were administrative tribunals really substitutes of High court
2) Did they fulfill the objects for which they had been set up ? These questions were seen to
be resolved in the light of Area Committee(Malinath Committee) report submitted in the
year 1990 and decision rendered by S.C in R.K Jain Vs U.I in 1993
So, S.C placed the matter before a larger Bench of seven judges and this
Bench observed that
1) Clause 2(d) of Article 323-A and clause 3(d) of Act 32-B are unconstitutional
asthey are
2) excluding the jurisdiction of H.C & S.C U\ Act 226\227 and 32 of the constitution
and this exclusion judicial review is against Basic structure of the constitution.
3) Though parliament is empowered to amend the constitution , the power cannot be
exercised so as to damage the essential feature of constitution (or0 to destroy its
basic structure .
4) Court held at the Tribunals are supplemented to the H.C and they cannot be treated
as sa substitute the H.C.Thus their (Tribunals ) decisions will be subject to
Scrutiny of the respective H.C.
5)Party aggrieved by the decision of the Tribunal cannot directly approach the S.C
U\Act 136, instead ,the aggrieved party would be entitled to move the H.CX U\Act
226\227 to the division Bench of H.C and from H.C the aggrieved party could move
to S.C under Act 136 of the constitution .
It is submitted S.C curtailed the object of Act 136,which is against the constitution and
S.C had no jurisdiction to modify the constitution and this extent Chandra Kumar case
may be reconsidered .

“The faith of the people is the bedrock on which the edifice of judicial review
and efficiency of the adjudication are founded.
Lokpal and Lokayukta:

1) OMBUDSMAN: It is a Scandinavian world. It is taken to mean officer or agent or
commissioner. Ombudsman is an officer if parliament whose main function is to investigate
the complaints or allegations against the administration. Thus, ombudsman may also be called
as “watch dog of the administration” or “public safety value against mal-administration.
Garner defined that Ombudsman is an officer of parliament, having his primary function of
safe guarding citizen against abuse or misuse of administrative powers by the executive.
Origin and growth:

This institution was established in Sweden in 1890, subsequently in Finland in 1919, in
Denmark in 1953 and in Norway in 1963. This system was adopted by New Zealand in 1962
and in England in 1966. In India it has been established in some States but has not established
at the Centre.
Purpose of the Ombudsman:

According to Jain and Jain the purpose of the Ombudsman is to control the
administration and therefore it provides protection to the citizens against injustice brought
about by faulty administration. Thus, its main function is to locate mal-administration or faults
in the administration.
Importance Of This System:

He is appointed by parliament and thus, he is not an officer in administrative hierarchy.
And no interference even by parliament can be seen in the discharge of his duties. Thus, it is
an independent body. His powers are as under:
1) He enquires and investigates into complaints made by citizen with regard to abuse of
discretionary powers and mal-administration and he takes action.
2) For the purpose of enquiry he can acess to departmental files
3) The complaint is not required to lead any evidence before the Ombudsman.
4) He can even act Suomotu.
5) He can grant relief to the aggrieved person as unlike the powers of a civil court, his powers
are not limited.
LOKPAL (Ombudsman in India):

In India several attempts have been made to establish the institution like Ombudsman,
called Lokpal, but unfortunately it has not been established so far. However, the institution of
Lokayukta in state level is functioning in some States in India.
Need to establish the institution like Ombudsman in India:

Today the administrative authorities enjoy wide discretionary powers. The increase in
powers and functions of the administrative authorities has also increased the opportunities of
misuse of power by them. This has necessitated the effective control of the administrative
authorities. The Judiciary and Parliament have not been successful in controlling
administrative authorities. However, the judiciary some extent expanded its supervision over
the administration but still it is not sufficient. Thus, Mr. M.C Setalvad, in this speech at the
All India Lawyer’s Conference held in 1962 suggested the idea of establishing an institution
similar to that of an “OMBUDSMAN”. Even the on the same lines the Administrative
Reforms Commission has also recommended for the adoption of Ombudsman system in India.
In 1968, a Bill called the Lokpal and Lokayuktas bill was introduced in the Lok Sabha but
before it could be passed, the Lok Sabha was dissolved and therefore the Bill lapsed. In 1971,
another Bill was introduced in the Lok Sabha but again the Bill lapsed on account of the
dissolution of the Lok Sabha, in 1977, a new bill called Lokpal Bill, 1977, was introduced in
the Lok Sabha, The Bill was referred to the Joint Select Committee of the Houses of
Parliament but the Bill again lapsed on account of the dissolution of the Lok Sabha. Again,
Lok Pal Bill, 1985 was introduced in the Lok Sabha and it also lapsed because before its
passage the term of the Lok Sabha ended. Again, the Lokpal Bill, 1989 was introduced in the
Lok Sabha.
Commission of Inquiry:
Entry No No.45 of List-III (Concurrent List) of the constitution of India empowers the
Union and State Government to make the laws on the appointment of commissions.
Accordingly the Central Government enacted an Act called as “The commissions of Inquiry
Act, 1952”
A commission of inquiry is appointed for the purpose of finding out the facts in respect of
definite matter of public importance and it is open to the Government (Center or State) to
declare by notification that the commission will cease to exist from such date as it may
specify on the notification.
The object of the inquiry is to take appropriate legislative administrative measures to

maintain the purity and integrity of political administration in the state. IT is only and purely a
fact-finding machinery. It has no judicial veil. It has no judicial powers.
Examples: Inquiry appointed in the event of police firings; lock-up deaths; bomb explosions;
aeroplane accidents; bus accidents; etc., etc.,
POWERS OF COMMISSIONS: The commission shall have the powers of a civil court,
while trying a suit under the C.P.C in respect of the following maters, namely;
(a) summoning and enforcing the attendance of nay person form any part of
India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses or documents;
(f) any other matter which may be prescribed.
Additional powers: the commission is treated as a public servant Sec 175,178,178,180 and
228 of the Indian Penal Code shall apply to the commission of Inquiry. It has no direct powers
of ‘Contempt of Court” but it can record the facts constituting the offences and the statements
of the accused, and then forward the case to the Magistrate having jurisdiction to try the same.
Any proceeding before the Commission shall be deemed to be a judicial proceeding within the
meaning of section 193 and 228 of I.P.C.

Public Corporation (Statutory Corporation)
A corporation is an artificial being created by statute or law possesses the following

main characteristics.
1. It possesses an independent corporate personality.

2. It is an entity different from the union or the state Government.
3. It is a body corporate with perpetual succession and a common seal.
4. It can sue and be sued.
5. A corporation can possess hold and dispose of property.
6. It is an autonomous body.
7. It possesses commercial qualities.
8. Statute may delegate the rule making power to a corporation and such rules
subjected to judicial review.
9. A corporation created by or under a statute can be said to be an agency of the
Government and state with in the meaning of Art 12 of the constitution. Hence it is
subjected to the jurisdiction of the S.C U/32 and of the H.C U/Art 226.
10. Employees of a corporation do not hold “civil post” under the union or the state.
As per Art 311 of the constitution.
11. A corporation is liable for breach of contract and also in tort.
12. Since corporation is neither a department nor an organ of the Government, the
doctrine of “crown privilege” cannot be claimed.
Types of Corporations
1. Commercial Corporations Eg: State trading Corporation.

2. Development Corporations Eg: ONGC, FCI
3. Social Service Corporations Eg: ESI, Housing Board
4. Financial Corporation Eg: RBI, SBI
Commercial Corporation
As the functions of this type of corporation are commercial in nature, they are
supposed to be financially self-supporting and they are also expected to earn profits. But they
are required to conduct their affairs in the interest of the public and do not operate mere by
with profit – earning motive.
Eg: 1. State Trading Corporation
2.Indian Air Lines
Development Corporation
They are established with a view to encourage national progress by promoting

development activities. These corporations are requires financial assistance from the
Government.
Eg: 1. ONGC
2.FCI
3. Warehousing Corporation
4. Damode Valley Corporation

Social Service Corporation
Their object is to render social service, they are not required to conduct their affairs for
the purpose of earning profits. Generally these corporation depend on the Government for
financial assistance.
Eg: 1. E.S.I Corporation
2.Housing Board
3.Rehabilitation of Housing Corporation
Financial Corporation
This type of corporation main aim is to given financial assistance on reasonable terms
to institutions and persons in order to enable them to settle in trade, business or industry.
Eg: 1. Assistance to institutions – 1. RBI 2.SBI Industrial financial corporation
of India.
2. Assistance to displaced Eg: Rehabilitation Finance Corporation.
Barium Chemicals Case & Benneot Coleman& Co Vs U.I :
Company /corporation is not a natural person, but merely an artificial person and
therefore cannot be said to be a citizen with is the meaning of the citizenship Act 1925,Hence
corporation cannot claim any FRS conferred by the constitution only on citizens they are Act
15,19,29 and 30. But all the same its shareholders, being a citizens, can claim protection of
those FRS. But company being a person it can enforce the FRS granted by the other Articles
.For example Act 14 guarantees to every person equality before the law (or) the equal
protection of the laws with in the Indian Territory
Controls Over Public Corporation :
1. Judicial control;
2. Parliamentary control;
3. Government control; and
4. Public control;
I Judicial control:
Public corporations are created by the statutes of Parliament or State legislature. They
are supplied money from the Government. Therefore, they are owned by the Government.
They are the instruments of the Government. Article 12 of the constitution defines ‘state’.
According to Article 12, “the state includes the government and parliament of India and the
Government and the Legislature of each of the states and all local and other authorities within
the territory of India or under the control of the Government. A.P.S.R.T.C is a creation of
statute of Andhra Pradesh state legislature. Therefore it is a state. The phrase :other
authorities” makes the judiciary to interpret it and to adopt it several bodies whether they
belong to state or not.
It is a fact that parliament could not control effectively over the large numbered public
sector. Therefore, the judiciary came into rescue and tried to control the maladministration so
far to its best of control. For this connection, the Supreme Court and High Courts used to issue
writs. Writ of Mandamus, Writ of Quo Warranto can only be issued against the Government
officers, Government departments, quasi-judicial authorities, etc., These writs can not be
issued against private persons and private companies. Therefore it is necessary to draw a line
whether the public corporations come to ‘state’ as defined under Article 12 or they remain as
private persons and private companies.
Whenever, the fundamental rights are violated by the public corporations, it is the real
authority vested in Courts to control them. Judicial control over public corporations has
become essential to ensure that it does not behave in an irresponsible manner.
Suchdev Singh Vs Bhagath Ram 1875 Sec 1331 .
S.C held that public corporations could be treated as a “State” with in the meaning of
Act 12 (i.e any other authority). Hence ONGC case also come under the per view of state.
Thus whenever a corporation violates its own regulation, FRS and P.N.J the Art 226
and 32 can be invoked. The writ of mandamus can be issued against any public corporation
including ONGC and further said that employees of the corporation are not the Government
employees and they cannot seek remedies U \ Act 311.
Government Control:
A public corporation being an instrument of the Government, the Government
appoints the Chairman and other important members, and delegates the legislative powers to
administer it. The Government provides funds, and delegates the legislative powers to
administer it. The Government has abundant control over the public corporations.
The Comptroller and Auditor – General also exercise control over the public
corporations through out the country. The public corporation has to get prior approval from
the Government. It is the most effective control of the Government over the public
corporation.
A Public Corporation has to submit various reports, returns etc., to different
Government agencies. By seeing these reports and returns, the highest officials of the
Government could known and assess the performance of the public corporation. It is also one
kind of Government control over the public corporations.
As the number of the public corporations has been increased tremendously, the Central
Government established Bureau of Public Enterprises in 1965. It provides managerial,
advisory and performance monitoring services in various field of public corporation
management. It concerns with all the divisions of the public corporations, viz. finance,
production, management, co-ordination, efficiency, etc.,
Parliamentary control:
Parliament and state legislature have the supreme legislative powers. They create the
corporations by the statutes, and delegate it to function and als9o delegate some of the limited
legislative powers. If a corporation exceeds its limits in nay manner, the parliament has the
power to correct it. It is not possible to correct the administration of corporation, the
parliament has the absolute rights to demolish it. Demolition is a dire consequence. Generally
this type of parliament has not been taken in India.
Debate is a most effective method of parliamentary controls over the public
corporations. The policy decisions, yearly accounts, audit reports, etc., of the corporation shall
be placed before the parliament. The members discuss about them. The comptroller and
Auditor-General used to submit his audit report on the public corporations before the
parliament. A full and detailed discussion takes place basing on this report.
As per the Menon Committee recommendations in 1959 the parliament constituted
‘the committee on public undertakings’ as a standing committee of it, to oversee, examine and
verify the working of the public undertakings.
Public Control:
Every administrative affair is ruled by democratic manner. Public corporations are
created by the statutes of parliament or state legislatures. They are fed with Government
money, which is extracted from the public by way of taxes. Therefore public also have an
important role in controlling the maladministration of public corporation.
The parent Act or the delegated Legislation may authorize to constitute a committee
with officials and private persons as the members for the supervision of the public
corporation, and for the better administration.
Each public corporation is a juristic person. It can sue or can be sued. Any private
person aggrieved with the act of the public corporation can bring an action against it. He can
also invoke writ jurisdiction against the public enterprises, in cases his fundamental rights are
violated.
Liabilities of Public Corporations:
(a) Liability in torts: - A Public Corporations liable in tort like any other person. It will
be liable for the tortuous acts committed by its servant’s and employees to the same
extent a private employer of full age and capacity would have been. A public
corporation cannot claim the immunity conferred on the Government under Article
300 of the Constitution.
A corporation may be held liable for libel, deceit or malicious prosecution though it
cannot be sued for tortuous acts of a personal nature, such as assault, personal
defamation, etc.
(b) Liability for crime:-A public corporation may also be held vicariously liable for
Offences committed by its servants in the course of employment. E.g. libel, fraud,
nuisance, contempt of court, etc.,

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UNIT - I

NATURE AND SCOPE OF ADMINISTRATIVE LAW

I) Iver Jennings: According to him Administrative Law as follows:

“Administration law is the law relating to the administration. It determines organization,

Scope of Administration Law;

1.It limits the discretionary powers of administrators by prescribing proper procedure

Reasons For Growth of Administrative Law:

1. Emphasis on public welfare activities namely, urbanization and industrialization.

Difference between Constitution Law and Administrative Law

Previously Administrative law has considered to be a branch of constitutional law.

Notes on Administrative Law Adarsha Law College 2

Evolution of Administrative Law:

Notes on Administrative Law Adarsha Law College 3

BASIC CONCEPTS OF ADMINISTRATION LAW

Notes on Administrative Law Adarsha Law College 4

Rule of Law under Constitution of India:

A.D.M Jabalpur Vs Shivakanth Shanker AIR 1976 SC 1207

On June 25 1975, the President on account of “internal disturbance” proclaimed

Notes on Administrative Law Adarsha Law College 5

Modern Concept of Rule of Law:

According to Wade and Philips modern concept of law is as follows:

1. Law and order

a. Powers of executive may be increased only in unavoidable circumstances.

II. Doctrine of Separation of powers

Notes on Administrative Law Adarsha Law College 6

Draw back of the theory of separation of powers:

According to Basu , the theory of separation of powers means an organic separation

Notes on Administrative Law Adarsha Law College 7

Indian constitution and doctrine of separation of powers:

Though, in 1787, when the American Constitution Legislation

COUNSE L - D’ETATE: It is the highest administrative tribunals in “France and it was

MERITS OF FRANCE ADMINISTATIVE SYSTEM:

Notes on Administrative Law Adarsha Law College 9

CLASSIFICATION OF ADMINISTRATIVE ACTIONS / FUNCTIONS

Need for classification:

2.If it is an administrative function then writ of “Mandamus” can be filed or writ of

3.If it is a quasi-legislative or legislative function then the requirement of publication

It is difficult to classify the functions of the executive, as there is no perfect and

Notes on Administrative Law Adarsha Law College 10

1. Issuing directions to subordinate officers not having the force of law.

Quasi - Judicial Functions:

1. Disciplinary proceedings against students.

1. To make rules, regulations and bye-laws.

Distinction between Legislative and Judicial functions

Distinction between Legislative & Administrative

Notes on Administrative Law Adarsha Law College 11

Radheshyam Vs State of M.P

Reasons for the growth of delegated legislation:

Permissible delegation [Functions can be delegated]

I) Commencement: Several statutes contain an “appointed day ”clause, which

II) Supplying details:

VIII) Removal of difficulties [Henry VIII clause]:

Two types of “removal of difficulties” are found, they are

Gammon India Ltd VsU.I AIR 1974 SC 960:

It is well settled principle that essential legislative functions of legislature cannot be

Delegation in favour of local authorities:

Gulabhchand Bapalal Vs Ahmedabad Municipal Corporation AIR 1971 SC 2100

Test for excess delegation:

Emperor Vs Benorailal AIR 1945 PC 48: