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Administrative Law Notes For Exam PDF
Administrative Law Notes For Exam PDF
Please note that I have not written down notes for 3.4 (Administrative Appeal), 4.4.2
(Constitutional imperatives and use of discretionary authority), 4.4.4 (Non-exercise of
discretionary power), 5.3 (Exclusion of judicial review), 5.4 (Suits against administration),
6.2.6 (Doctrine of legitimate expectation). For 3.4, you just need to know the meaning of
administrative appeal, for 4.4.2 you just have to show how administrative discretion must be
used to carry out constitutional directions, for 4.4.4 just write how discretion may be
questioned on the ground of non-exercise of such power. With respect to 5.3, you need write
down that HC’s power of judicial review cannot be excluded and mention L. Chandra Kumar’s
case, for 5.4 you need to write down how the government and other authorities can be brought
under the writ jurisdiction of the courts. Please remember that the writs to be used here are
Habeas Corpus, Mandamus and Quo Warranto. Certiorari and Prohibition deal with judicial
authorities primarily. As far as 6.2.6, the doctrine of judicial expectation means that when the
executive declares that it shall do a particular thing, there is a legitimate expectation on the part
of the public that the government shall do the same with reasonable care and caution. Also, my
notes under the RTI Act are incomplete. For this part you need to know about the information
which may be disseminated as such, authorities and basic procedure under the act. Also, as
regards the functions of ombudsman, just mention general functions and nothing more. Further,
the important chapters for the examination are Chapter 1 (2 questions), 2( 2 questions), 4 (1
question), 1 or 2 short notes with respect to the writs and 1 question with respect to the RTI
Act.
The source of my notes is MP Jain and class notes. The reading material consists of a total of
59 pages. Kindly let me know incase any doubt arises.
Regards
Ankita
ADMINISTRATIVE LAW
Unit I- Evolution, Nature and Scope of Administrative Law
1.1 Change in the concept of state-from laissez faire to Social Welfare state
1. Administrative law is recognised as the most outstanding legal development of the 20th
century.
2. The 19th century was characterised by the welfare state wherein there was minimum
government control, free enterprise, contractual freedom, etc. Individualistic theories
flourished in this period.
3. The state played a negative role. It was primarily a police state which helped in
maintenance of law and order, protecting the nation from external aggression,
dispensing justice to its citizens and collecting taxes for financing such activities.
4. However, in the 20th century, the evils of this system were realised. Due to contractual
freedom and freedom of enterprise, there was unequal distribution of wealth. This led to
several socialist movements specially ones in which the grievances of labourers was
voiced.
5. Thus, a need was felt that the state shall be more than a police state. It shall help in
alleviating the poor, regulating individual enterprise and most importantly bringing
about social justice. This led to the establishment of the social welfare state.
6. This may be seen even in case of India. Before independence, India was essentially a
police state as the British were more interested in furthering their own interests rather
than working for the welfare of the people.
7. However, the concept of social welfare was taken up immediately after independence
especially after the adoption of the constitution.
8. The preamble to the constitution states that India shall be a socialist, secular,
democratic, republic and must provide justice, equality, rights, freedom, etc. to all.
9. Other examples are that given in Part IV wherein it has been provided that there shall
be no concentration of wealth towards the common detriment. There shall be equitable
distribution of wealth.
10. Also, right to free and compulsory education for children upto 14 years is now a
fundamental right.
11. There is also provision of equal pay for equal work under Part IV.
12. Further, various social legislations such as the Factories Act, Minimum Wages Act, etc.
have come into the picture.
It deals with the organs and functions of the It deals with the organs and such functions in
state at rest. motion.
It deals with the structure of the various It deals with the functions of various organs of
organs of the state and regulates their relation the state and controls the exercise of powers
with each other and with individuals. by the executive.
15. However there are similarities between the two such as availability of constitutional
remedies, concern with affected rights of individuals or fundamental rights, etc.
16. As per several American and English authors the difference between the two is more of
degree, convenience and custom rather than that of logic and principle.
6. However, it has been stated by the Committee on Ministers’ Powers that the test to
differentiate between the two is that the power to formulate general laws, rules, etc. is
legislative while the power to apply such rules and make orders with respect to specific
cases is administrative.
7. This has been stated in the Generality and Prospectivity test as given in Union of India
v. Cynamide India Ltd. wherein an order of the Central Government fixing the
maximum prices for sale of certain bulk drugs was challenged on the grounds of
violating the principles of natural justice as it was an administrative action. The HC on
the other hand held that fixing prices here affects the rights of the general public and
not just particular drug manufacturers and hence it was a piece of delegated legislation
and the principles of natural justice would not apply.
8. In K.I. Shepherd v. Union of India, the application of this rule was rejected. Herein the
rights of particular bank employees were affected due to termination of services caused
by the merger of certain banks.
2. In Bagla v. Madhya Pradesh, it Ss. 3, 4 and 6 of the Essential Supplies Act, 1946 were
challenged. S.3 laid down that the Central Government may lay down rules for regulation
of production, distribution and prices of essential commodities. This was challenged on the
ground of excessive delegation stating that the legislature had not laid down any policy or
standards. But, the SC held otherwise and stated that the basic policy has been provided in
the form of maintenance or increase in supply and maintenance of prices in public interest.
S.4 stated that the Central Government may further delegate its powers to its subordinate
officers or such officers working under the State Government. This was challenged on the
basis of the fact that a delegate may not sub-delegate. However, the SC held that as the
officers to whom power may be sub-delegated have been mentioned in a list under S.4,
there is infact delegation by the legislature and not the executive as the latter cannot
merely appoint anyone to perform the duty. S.6 provides that orders made by Centre under
S.3 would have effect even if they were inconsistent with any other act in force. This
amounted to repeal of such other act or its provisions. It was thus challenged on the ground
of repeal of a legislative act by way of delegated legislation (as discussed in the Delhi
Laws Act case). However, the SC upheld the validity of this section and stated that it was
provided only to by-pass any other law in force and not to repeal it. Also, even if any act
gets repealed in the process, it is due to an act of the legislature and not of the delegate as
S.6 was declared by the legislature itself.
3. In Bhatnagar and Company v. Union of India, it was held that the power of the Central
Government under the Imports and Exports Act to restrict or prohibit the import or export
of products of a specific category is valid even if no guidelines for deciding as to how such
commodities are to be chosen is provided in the parent legislation. This is because the
policy has been laid down in a preceding legislation- the Defence of India Act. Also,
owing to the dynamic nature of imports or exports, it becomes impossible for the
legislature to predict as to which goods need to be put into such category.
4. In DS Garewal v. Punjab, the provisions of the All India Services Act which empowered
the Centre to make rules to regulate conditions of service was challenged as amounting to
excessive delegation. However, it was also stated that the rules which would have already
been in existence at the time of enactment of the statute would be deemed to be part of the
act itself. Thus, the rules were held to be valid as they were adopted by the act itself and
thus the underlying policy was established.
5. Also, it is generally used when a particular law forays into an entirely new area where
socio-economic or other conditions are different.
6. All the above may be carried out by inserting a ‘removal of difficulties’ clause or a
Henry VIII clause in the statute.
7. It was named Henry VIII clause after King Henry VIII who was called the
‘impersonation of executive autocracy’ by the Committee on Ministers’ Powers
Report, 1932.
8. There are generally 2 types of ‘removal of difficulty’ clauses, one which is narrower
and another which is broader.
9. A narrower clause allows removal of difficulty without any modification to the parent
act. It must always be in consonance with the parent act. An example may be given of
the Reorganisation of States Act wherein it has been stated that in order to remove any
difficulty, the President may by order do anything NOT inconsistent with the
provisions of the Act which he considers are necessary for the removal of such
difficulty.
10. The broader clause allows removal of difficulty even if the same modifies the parent
act. An example may be given of Art.s 372 and 392 of the Constitution which
empowers the President to make adaptations and modifications in the existing law.
11. In Jalan Trading Company v. Mill Mazdoor Union, the Payment of Bonus Act under
S.37(1) empowered the Central Government to make any orders for removal of any
difficulty not inconsistent with the purposes of the Act and S.37(2) make such orders
made by the Government binding. Clause 1 was regarded as being constitutional as it
merely sought to advance the purposes of the act while Clause 2 completely excluded
judicial review and thus was unconstitutional due to excessive delegation.
6. Power to impose taxes or duties may even be extended to municipal bodies taking into
consideration the nature of the body to whom such authority is being delegated.
It does not affect the rights of private It affects the rights of private individuals
parties. and binds such individuals.
It does not follow any particular procedure It must necessarily follow the principles of
unless provided by the parent statute. natural justice as part of its procedure.
It may not be provided for under an statute It must necessarily involve a statutory
as such. exercise of power.
3. There are however two main problems associated with it namely, the authorship of the
decision is unknown and secondly it leads to division in the decision making process.
4. In Local Government Board v. Alrdige, the borough council declared a house unfit for
human habitation and asked for its closure. The landlord approached the Local
Government Board to conduct investigations and help him. The Board asked an
inspector to carry out the task who in his final report stated that the house was infact
unfit for habitation. This was challenged by the landlord who stated that he had not
been given a fair hearing as he was not allowed to be heard by the officer who had
actually examined the case. The court held otherwise stating it to an institutional
decision. Herein it is not necessary to identify the officer who had conducted the
enquiry as the decision is deemed to be that of the department. Further, in this case it is
not necessary that the official conducting enquiry must hear the case as well as is seen
in case of judicial decisions.
5. Another point of difference between institutional decision and a judicial decision is that
in an institutional decision not all evidence against the person may be provided to him.
6. Institutional decision is different from the decision of a single official or administrative
tribunal as it is the decision of the department.
7. In the US, the Administrative Procedure Act has provisions for regulation of
institutional decisions. In UK as well, it is an accepted fact that when a decision is to be
taken by a minister it means that such decision is to be taken by the department as a
whole.
8. In Union of India v. Shripati Rajan, the respondent was dismissed from service by the
collector of customs. As per the law, he appealed to the President but his appeal was
dismissed by the Finance Minister without consideration by the President. The SC held
such decision as being valid as the Finance Minister disposed off the case in accordance
with the rules of business and the President is a mere constitutional head. It was thus an
institutional decision.
9. In Mahavir Prasad Santosh Kumar v. State of UP, it was held that an executive
authority can exercise power through their subordinates.
10. Generally speaking, the report made by the hearing officer which is submitted before
the authority which sits in judgment is not necessary unless it prejudices the case to a
great extent.
3.4 Administrative Appeal
3.5 High Court’s superintendence over Tribunals
1. According to Art. 227(1) of the Constitution, the High Court has the right of
superintendence over tribunals within its territorial jurisdiction except for those
established under the armed forces.
2. This power is wider than Art. 226 as the HC not only exercises administrative but
judicial control as well on the tribunal. Under Art. 226, a writ of certiorari may be
issued quashing the decision of a tribunal. However, under Art. 227 the same may be
done with something else added to it.
3. Under Art. 226, the tribunal is a necessary party but this is not the case under Art. 227.
The tribunal is a necessary party in case of a writ petition as the court requires a record
of the proceedings of the tribunal to decide on the matter.
4. The SC has stated that the decision of the HC under Art. 227 is binding on the tribunal.
5. The grounds for instituting a suit under both Art.s 226 and 227 are the same such as
arbitrary exercise of power, abdication of powers, exceeding its jurisdiction, etc.
6. However, Art. 227 has a narrower approach as compared to Art. 226 in one matter. Art.
227 can be used to superintend only courts and tribunals while Art. 226 applies to
administrative bodies as well.
7. Art. 227 empowers the court to intervene suo moto while in case of Art. 226, a petition
is required to be filed first.
8. In Gujarat v. Vakhatsinghji, it was held that the HC may exercise its jurisdiction under
Art. 227 even when the decision of the tribunal is deemed to be final and conclusive.
9. In L.Chandrakumar’s case and Sampath Kumar’s case, the same aspect as that in the
above case was discussed. The rule as it stands now is that the HC’s jurisdiction cannot
be excluded in any case and the HC can exercise its powers under Art. 227 even when
the decision of the tribunal is final.
3. Never the less, there are certain disadvantages of this system. The same may be listed as
follows-
(a) The case to case approach may take an individual by surprise who will not know
what to expect considering nothing is laid down as to what should or should not be
done.
(b) It may lead to discrimination against many individuals.
(c) It is a time consuming process and involves multiplicity of cases.
(d) It might lead to arbitrariness on the part of the executive.
Other factors based on which administrative discretion may be challenged and judicial
review be conducted-
1. Art. 32(1) of the Constitution guarantees the right to move the Supreme Court for
violation of fundamental rights while Art. 32(2) empowers the SC to issue writs in the
nature of habeas corpus, certiorari, prohibition, mandamus and quo warranto for the
same.
2. Art. 226 on the other hand empowers the HC s notwithstanding anything contained in
Art. 32 to issue writs or orders within such territories wherein it exercises jurisdiction
to individuals or authorities including the government for the enforcement of
fundamental rights or any other purpose.
3. The concept of writ jurisdiction has been borrowed from England however the SC has
declared that it shall only follow the British system in its broad sense and avoid any
technicalities as may be there. Nevertheless the system of judicial review in both India
and England is more or less the same.
4. The power of the courts under such jurisdiction is very broad. They may not only issue
writs but may also give directions or orders or any other appropriate remedy in order to
provide relief. However, the court will not reject a case merely on the ground that the
appropriate writ has not been prayed for.
5. Art. 32 being a fundamental right in itself cannot be whittled down by legislation and
does not get restricted by administrative order even when such order is final.
6. It may be filed directly with the SC and the person need not go through the entire
procedure of approaching the lower courts, etc.
7. In AK Gopalan v. Madras, the SC struck down S.14 of the preventive detention act
which prohibited the person detained from disclosing grounds for detention as
provided to him by the detaining authorities before the court. This did not really
deprive the detenu the right to move the court under Art. 32 for issuing a writ of habeas
corpus but it rendered the role of the court somewhat illusory as the court could not
examine the grounds of detention and thus could not determine as to there was any
actual violation of fundamental rights or not.
8. In Prem Chand v. Excise Commissioner, it was held that a security was not required to
be given before filing a writ petition as it posed a hindrance to the court’s function of
determining whether there is a violation of fundamental rights or not.
9. However, Art. 32 empowers the court to only go into questions concerning violation of
fundamental rights. Where there is no violation of fundamental rights, Art. 32 cannot
be invoked. Similarly in Ramjilal v. ITO, it was held that illegal levying of tax does not
violate any fundamental right but is merely contradictory to the provisions of Art. 265.
10. In Ujjam Bai v. Uttar Pradesh, it was held that a mere error of law committed by a
quasi judicial body cannot be challenged under Art. 32. The court can strike down an
order passed by such body only when such power is exercised without jurisdiction or
without conforming to statutory provisions or without following the principles of
natural justice, etc.
11. Executive orders are also open to be challenged under Art. 32 and it is immaterial
whether there is an error of law or error of jurisdiction involved.
12. The error of law here refers to a ‘patent error of law’.
13. Art. 226 is broader in its scope than Art. 32. It allows for moving the HC not just for
the protection of fundamental rights but also for the protection of legal rights provided
that the error of law complained of is a patent error of law.
14. However, the writ jurisdiction of both the SC as well as the HC is independent of the
other. A person may go straight to the SC to enforce his fundamental rights rather than
going to the HC. However, he may also go to the HC first and if his petition is
dismissed, go to the SC on appeal. However, in such case he cannot invoke Art. 32
again due to res judicata.
15. Art. 226 being a constitutional provision, its ambit cannot be curtailed by way of
legislation or administrative order even when such order is regarded as being final.
This is different from the situation in England wherein the Parliament may curtail the
writ jurisdiction of the courts.
16. Never the less these constitutional remedies may be restricted by way of other
constitutional provisions. However, the courts have a general tendency to strictly
construe such exclusionary provisions and uphold its power of judicial review inspite
of such exclusion. In India v. JP Mitter, it was seen that Art. 217(3) states that the
decision of the President with respect to age of the judge shall be final. In this case, the
SC held that such orders made could be struck down if decisions are taken on the basis
of collateral considerations or without following the principles of natural justice or are
coloured by executive advice or representation or are based on no evidence.
17. In Sangram Singh v. Election Commission, it was held that although Art. 329 bars the
jurisdiction of courts with respect to election disputes, it does not bar the courts from
dealing with such a dispute once the petition was disposed off by an election tribunal.
18. In Madhav Rao Scindia v. India, it was held that although Art. 363 bars interference of
the courts in matters concerning treaties or agreements between the government of
India and rulers of Indian states before commencement of the constitution, it does not
bar the court to review an order of the President derecognising such rulers under Art.
32.
19. Art. 226 empowers the HC to exercise jurisdiction within its territorial limits.
However, if a part of such dispute is outside its territorial jurisdiction, it may still
exercise power under this provision.
20. The five writs may be discussed as follows-
(a) Habeas Corpus-
i) It literally means to have the body and is issued primarily to secure the release
of a person who has been unlawfully detained or without any jurisdiction.
ii) However, issuance of such a writ largely depends on the statute or other
circumstances under which detention has taken place. For example, habeas
corpus cannot be granted when a person has been detained by a competent
court even when such detention may appear to be wholly illegal.
iii) The scope of this writ has been extended by the court to include inhuman and
cruel treatment to prisoners as well. (Sunil Batra v. Delhi Administration)
iv) The aggrieved person or anyone on his behalf might approach the court. When
a prima facie case has been established for the issuance of the writ, the court
shall ask the detaining authority by issuing a rule nisi, to show cause why the
writ should not be issued. If the court is then convinced that such cause shown
is not sufficient, it shall issue the writ.
v) The detaining authority has to meet the grounds on which detention has been
challenged by the detenu as well as prove that detention was under the
procedure established by law as provided in Art. 21.
vi) In Kanu Sanyal v. District Magistrate(I), the court held that it is not necessary
to produce a person during writ proceedings as the objective of the writ is to
secure freedom for the detenu as soon as possible and not production before the
court. This rule may however be changed by the court in compelling
circumstances.
(b) Quo Warranto-
i) It literally means ‘what is your authority’.
ii) It is generally used by the courts asking the holder of a public office (not private
office) to show as to why he is entitled to such office. It acts as a judicial control
over administrative action with respect to making appointments as well as
protects individual rights from being violated by a person who has no authority
to hold such office.
iii) The writ is with respect to a public office of substantive character.
iv) This writ will not be issued if there is an alternate remedy available.
v) In PL Lakhanpal v. AN Ray, it was seen that AN Ray who was appointed the
CJI by superseding 3 other judges was challenged as the seniority principle was
not applied. The Delhi HC rejected such a petition stating that the writ
jurisdiction of the court involves technicalities and is based on the discretion of
the court whether or not to accept such petition. Further, it was also stated that if
an irregularity which was challenged was cured during the pendency of
proceedings, the writ need not be issued. In this case after the appointment of
Justice Ray as CJI, he automatically became the senior most judge thereafter
and thus there was no irregularity. Thirdly, the case was challenged on the
grounds of malafide on the part of the appointing authority but the court stated
that a writ of quo warranto can be issued against the holder of the office and not
the appointing authority.
vi) In another important judgment of Gokaraju Rangaraju v. Andhra Pradesh, it was
held that after quashing the appointment of a public officer, such acts of the
officer which were for the benefit of third persons or the public and not for
personal benefit shall remain valid as if they were passed by officers entitled to
such office.
(c) Mandamus-
i) It is a command issued by the court directing an authority to do its public duty
as laid down by the law.
ii) It may be issued to any authority performing any kind of function.
iii) Mandamus is used to enforce a duty which is obligatory under the law and is not
merely optional or discretionary.
iv) A mandamus may also be issued to compel an authority to carry out the
decision of a tribunal.
v) A mandamus may also be issued in case of a non-statutory duty.
vi) However, generally the courts do not grant such a writ in cases where there is a
general duty to be performed such as improving railway services, etc.
vii) The writ cannot be used incase of civil liability arising under torts or contracts.
viii) In Jivan Mal Kochar v. India, it was held that the petitioner could not claim
damages under Art. 32 for the humiliation, indignity and loss suffered by him
due to governmental action.
ix) In order to issue a writ of mandamus, it must first be shown by the petitioner
that he has a right to compel the authority to act in a particular manner.
x) The person asking for issuing the writ must first demand justice from the
concerned authority (and no other authority) and only on rejection of the same
can he approach the court.
(d) Certiorari and Prohibition
i) These writs are mainly used to prevent excesses on the part of public
authorities.
ii) Earlier, it could be used only against judicial or quasi-judicial bodies but now it
has been extended to all public authorities exercising any kind of public
function.
iii) Both these writs are issued for the same purpose and in similar circumstances.
The only difference is with respect to the stage at which they are used. A writ
of certiorari is used to quash an order which has already been passed as in
when a decision has already been rendered. While a writ of prohibition is used
when proceedings are going on so as to stall such proceedings.
iv) The various grounds based on which such writs may be issued are when there
exists an error apparent on the face of the record, incase of any jurisdictional
error, an order made under an invalid law, contravention of the principles of
natural justice, an order made based on no evidence, etc.
v) However, a writ of certiorari cannot be used to disguise an appeal in order to
discuss the merits of a case already dismissed by a lower authority. Its main
aim is to exercise supervision.
5.2 Procedural Aspects-Locus Standi, Laches, Res Judicata, Exhaustion of alternate remedies
Locus Standi-
1. The provisions of Art.s 32 and 226 do not provide for any rule on standing as such.
This has largely been left on judicial discretion.
2. However, the general rule is that only an aggrieved person may move the court to
enforce his rights under the abovementioned provisions. This is primarily because
remedies are a correlative of rights and only those persons whose rights are infringed
might invoke the court’s jurisdiction to get the appropriate remedy.
3. This implies 3 things, namely-
(a) Only an aggrieved person may invoke the court’s jurisdiction.
(b) If such person belongs to a group or class of persons aggrieved by administrative
action, in order to file a suit, he must show that he has suffered special injury and thus
needs to be remedied.
(c) If the person challenging is a total stranger to the issue, the court would not
normally allow him to continue.
4. However, if the above rule were to be followed in a country like India where people
may not come up to file a case or would due to poverty, ignorance, illiteracy, etc. not
be in a position to file a case in court, administrative action could simply go
unchallenged.
5. Therefore, the courts have tried to provide a somewhat balance by liberally interpreting
the term ‘aggrieved person’ and in certain cases allowing strangers to a cause to file a
suit. However, this largely depends on the discretion of the court.
6. However there is a distinction between standing and justiciability. A person may have
standing to move the court for enforcement of his rights but at the same time his claim
may not be justiciable or enforceable.
7. Inspite of modifications in the rule of standing, the general rule still stands. This has
been stated in Bandhua Mukti Morcha v. India. Exceptions may be made to the rule
only when the courts exercise their discretion to do so and when certain conditions are
satisfied.
8. A person has standing when his personal or individual right has been infringed. He also
has a standing when another person’s rights from whom he derives a benefit or
otherwise have been affected.
9. Also, a person may have standing even when a personal or constitutional right is not
violated but the court is satisfied that he has suffered a genuine grievance due to action
or inaction on the part of an authority.
10. In Gurunanak Society v. State, it was held that even an unauthorised owner of land
may move the court incase he has been removed from such land in an unauthorised
manner as in Indian law even an unauthorised owner has to be evicted from land by a
process authorised by law.
11. In Peermohammed v. DFO Tenmala, it was held that a person had no standing to
challenge illegal activity or construction going on in an adjoining land unless there is
nuisance or trespass or the same affects his easement rights.
12. In Mallappa Murigeppa Sajjan v. Karnataka, it was held that the members of a tribunal
had the required standing to challenge suspension of the working of such tribunal as
being legally appointed members of the tribunal, their rights were adversely affected
by the decision.
13. In MS Jain v. Haryana, it was held that a person whose name was recommended for
appointment could not challenge a decision not to appoint him as he has no legal right
to get appointed.
14. In SP Subba Rao v. PP Veeraraghvaiah, it was seen that under statute there has to be a
minimum distance between a permanent cinema and a temporary cinema has to be that
of 1000m but the government could grant an exemption to the temporary cinema
owner. The court held that the permanent cinema owner had the right to challenge such
an exemption in order to protect his interests.
15. When a person does not at all participate in the proceedings, he has no standing to
challenge such proceedings later.
16. In Vijay Mehra v. Rajasthan, it was held that a member of a political party cannot
compel the government to constitute a commission for enquiring into certain floods as
it was a matter of executive discretion and the petitioner was not affected by such
floods.
17. In Karpoori Thakur v. Abdul Ghafoor, the court held that a member of Parliament
cannot ask for dissolution of the ministry on the ground of loss of confidence in the
house as the ministry is collectively responsible to the entire Parliament and not just
one legislator. Thus, only one of such members of Parliament does not have a standing.
18. A different view was taken by the court in Ramana Dayaram Shetty v. International
Airport Authority wherein it stated that while conferring a benefit, the executive cannot
act arbitrarily, illegally or in a discriminatory manner. Thus, the view that the
government has sole discretion in granting a benefit is no longer tenable.
19. If a person suffers an injury by virtue of being a member of an indiscriminate class, he
may file a suit only when he has suffered some sort of special injury which is over and
above the injury suffered by the others. This is to reduce the number of cases that
might be brought before the courts in such situations.
20. In Milap Ram v. Jammu and Kashmir, it was held that any member of a state might file
a petition challenging the grant of permanent residence of the state to a particular
person as the right of every such person is affected by such grant.
21. If a person’s legal right has been substantially affected, he will have a standing. What
shall be considered as being substantial or remote will depend on the facts and
circumstances of every case.
22. A determinate class of persons organised into a group or association also have
standing. In Warrangal Chamber of Commerce v. Director of Marketing, it was held
that a registered body corporate had the standing to file a case on behalf of its
members.
23. In Fertilizer Corporation Kamgar Union v. India, it was held that members of a trade
union have standing to file a petition.
24. Decisions of a municipality may also be challenged. In Ratlam municipality v.
Vardichand, it was held that the residents of the locality had the locus standi to move
the court asking for the municipality to construct drain pipes.
25. Even members of the municipality have the required standing to challenge a
governmental order when the rights of the municipality have been seriously affected by
such governmental action. (SL Kapoor v. Jagmohan)
26. There has however been a recent development in the form of Public Interest Litigation
which has led to a compromise in the general rule of locus standi.
27. By this rule, an individual or group of individuals might institute a case in court even if
they have no locus standi as per the general rule.
28. Such an exception is generally seen in 2 situations, namely-
(a) When an individual or group of individuals institutes a case wherein their rights are
only remotely affected or when their rights are affected equally being part of the group
due to administrative action.
(b) When any public spirited individual or body devoted to such cause brings a cause
of action before the court challenging administrative action which is prejudicial to the
interests of the general public or a section thereof.
29. This rule is generally allowed because at times the persons whose rights are affected
are not in a position to defend themselves due to illiteracy, ignorance, poverty, etc. or
simply when public interest at large is at stake.
30. However, such person or group of persons filing the case must have sufficient interest
in the case and must act bonafidely without any considerations such as personal
benefit, etc. Also, the court will not allow such petitions where the affected party itself
is disinterested.
31. Also, the courts consider only legal and justiciable issues when it comes to PIL s and
granting such PIL s is upto the court’s discretion.
32. A landmark case in this regard is that of SP Gupta v. India, wherein it was held that
lawyers have a locus standi to bring a case before the court which involved
appointment of additional judges in courts and frequent transfers of HC judges as such
lawyers are interested in the independence of the judiciary.
33. In Babubhai Jasbhai Patel v. India, it was seen that 2 opposition members of the
Gujarat legislature brought a case before the HC asking for reconsideration of payment
of royalty by ONGC to the state government in order to assert the claim of the state
government vis-a-vis the Union Government. This was rejected by the HC on the
ground that the matter involved here was that of high policy and individuals cannot be
allowed to take over governmental function. Further, the matter involved a question
under Art. 131 (Centre-state dispute) which could only be resolved by the SC.
34. In People’s Union for Democratic Rights v. India, it was held that the union had the
standing to file a case on behalf of construction workers whose rights were being
infringed by contractors who had hired them for such worker by contravening several
laws.
35. A similar case is that of Sanjit Roy v. Rajasthan, wherein it was held that the petitioner
who was a member of a registered social group could file a case bringing to light the
gross violations being committed by the state government in contravention of the
minimum wages act with respect to workers engaged in famine work.
36. Again in Bandhua Mukti Morcha v. India, the morcha, an organisation dedicated to the
cause of bonded labourers was decided as having standing to challenge inaction by the
government in implementing the provisions of the Bonded Labour System Act.
37. In DS Nakara v. India, it was held that a registered society which was a non-political,
non-profit and voluntary organisation had standing to bring a case with respect to
problems of old pensioners.
38. With respect to writs of habeas corpus and quo warranto, the rule of aggrieved person
is not applicable.
Laches-
1. This principle states that if a petitioner files his case after undue delay, his petition
shall be rejected on the ground of latches. This rule is applicable even in case of
violation of fundamental rights.
2. In RS Makashi v. IM Menon, the petition was filed 8 years after the alleged
infringement of fundamental rights under Art.s 14 and 16 by the executive and the
same was rejected on the ground of laches.
3. However, there is no hard and fast rule prescribed under Art.s 32 or 226 as to how long
would be considered enough to reject the petition on the ground of laches. This matter
is infact left to the discretion of the court as could be seen in RS Deodhar v.
Maharashtra, wherein a case filed for enforcement of rights even after a period of 10
years was held as being valid. However, in certain case even a gap of 6 months could
attract dismissal on the ground of laches.
4. In Nirmal Khosla v. India, it was held that if the government itself is responsible for
delay in disposal of the case of the petitioner and the same resulted in inordinate delay
in filing of the petition, the case will not be dismissed as it would then act to the
detriment of the petitioner who is not at fault in such a case.
5. Sometimes when the government is one of the parties, a delay may be taken into
consideration by the court owing to the involvement of public interest in such a
situation. This was also held in UP v. Bahadur Singh.
6. The doctrine of laches is generally brought into the picture when a delay in filing the
case might adversely affect the interests of the other party or third parties. Incase there
exists no such situation, generally the provisions of the Limitation Act are taken into
consideration. This has been seen in the case of Madhya Pradesh v. Bhailal Bhai.
7. In the case of Tilokchand, the court held that the question of laches is one left to the
discretion of the court. Also, it is upto the court’s discretion whether to follow the
provisions of the limitation act or not.
Res Judicata-
1. The principle of res judicata provides that when courts of competent jurisdiction give
binding decisions, the petition cannot be moved in the same court on the same cause of
action.
2. This is a principle of private law and is applicable to writ proceedings as well.
3. Similarly, in Devilal v. ITO, it was held that when a tax assessment order has been
unsuccessfully challenged in the court, it cannot be challenged again through another
writ petition before the same court.
4. The reason for this principle is that the party will go on filing petitions thereby causing
harassment to the other party.
5. In Lallubhai Jogibhai v. India, it was held that a habeas corpus petition could be filed
again if the grounds for granting such writ are different. However, again in Kavita v.
Maharashtra, it was held otherwise. Never the less the general rule followed is that of
the former case.
6. Also, another rule emerges with respect to withdrawal of cases. However, it has been
observed that incase a case is withdrawn, there is no res judicata.
7. Also, where a writ petition is dismissed without speaking order, there is no res judicata
and there may be subsequent petitions filed. This is because on the absence of grounds
it is not possible to understand as to why such petition was dismissed.
8. Further, the HC cannot review its own decision based on its merits provided no new
evidence or matter is discovered.
9. If the HC dismisses a case on the basis of laches or availability of alternate remedies or
without passing a speaking order, there is no res judicata and the case may be filed
under Art. 32 before the SC.
10. The principle of res judicata has been made applicable between Art.s 32 and 226 due to
the reason that both the SC and HC have more or less similar writ jurisdictions.
11. This may be criticised on the ground that res judicata applies between courts of the
same jurisdiction. Never the less the SC has held that the SC and the HC are on the
same footing with respect to writ jurisdiction.
12. After dismissing a special leave petition, the SC will not accept a writ petition under
Art. 32 due to res judicata. However, exception may be made when the life of a person
is at stake.
13. When a special leave petition is dismissed by the SC, the case may not be entertained
under Art. 226 before the HC except when the former dismisses the case without
giving speaking order. However, if a special leave petition is withdrawn, remedy under
Art. 226 would still be available.
14. Res judicata operates even when the case is dismissed under a writ petition and is again
filed under a regular petition.
9. The creation of a system of ombudsman in India has been a failure so far atleast at the
centre.
10. In 1966, the Administrative Reforms Commission suggested the creation of such an
office in its report.
11. In 1968, a Bill was introduced in the Lok Sabha called the Lok Ayuktas Bill but before
it could be placed before the Rajya Sabha, the Lok Sabha was dissolved and the Bill
collapsed.
12. Another attempt was made with the Central Bill of 1971 but again the Lok Sabha was
dissolved.
13. A third and final attempt was made in 1977 with the Lokpal Bill but again it could not
be passed due to the dissolution of the Lok Sabha.
14. However, this system is being followed in several states of India like Orissa,
Maharashtra, Rajasthan, Gujarat, Karnataka, Bihar, Uttar Pradesh, Madhya Pradesh,
Himachal Pradesh and Andhra Pradesh on the model of the 1971 Central Bill.
15. It has been stated that such an institution may be created in countries with a small
population. In a nation like India which has a large population, the office of
ombudsman would be overburdened with cases of maladministration and hence the
system of judicial review is best.
16. Also, the ombudsman only has powers of investigation, reporting matters and imposing
functioning. It cannot act as a super administrator and enforce its decisions.