3/6/08 –

Definition, nature and scope of administrative Law

Initially the state was a Laissez Faire state, the only function being protection of the subjects from
external attack.
However, the mid 20th century saw the emergence of the Welfare state with expansion of
administrative activities.

Administrative law –
Separate branch of legal discipline – Recognized only by the middle of 20 th century in India.
Growth – By-product of establishment of welfare state – New functions – Administrative explosion.
A.L. – Based on the assumption of existence of politically organized society.

Definitions
Dicey – Admin Law denotes that portion of a nation’s legal system which determines the legal
status and liabilities of all state officials, which defines the rights and liabilities of private
individuals in their dealings with public officials, and which specifies the procedure by which those
rights and liabilities are enforced.

Dicey’s definition has been criticized as being too narrow a definition – Excludes many
administrative authorities – Eg. Certain public corporations and public undertakings.

Ivor Jennings - “A.L. is the law relating to the administration. It determines the organization,
powers and duties of administrative authorities”.

Griffith and Street – A.L. is concerned with 3 questions.

(i) What sort of powers does the administration exercise?
(ii) What are the limits of those powers?
(iii) What are the ways in which the administration is kept within those limits?

Indian Law Institute – 2 more questions must be added to have a complete idea of present day A.L.
(iv) What are the procedures followed by the administrative authorities?
(v) What are the remedies available to a person affected by administration?

Diversity in the definitions – Every specialist tries to lay emphasis on any one particular aspect of the
whole administrative process.

I.P. Massey – A.L. is the law relating to the administrative operation of government. It deals with
the powers and duties of administrative authorities, the procedure followed by them in exercising
the powers and discharging the duties and the remedies available to an aggrieved person when his
rights are affected by any administrative action.

Massey v. Dicey – the term ‘administrative authorities’ is wider than ‘public authorities’ as used by
Dicey.

NATURE AND SCOPE OF A.L. –

  Law in the realist sense, not in the lawyer’s sense.
 Branch of public law – Deals with the relationship of the individual with organized power of
the sovereign.
 Deals with the organization and powers of administrative and quasi- administrative agencies.
 Includes the study of existing principles and also of development of certain new principles to
be followed by the administrative and quasi-administrative agencies.
 Primarily concerned with the official action – Rule making (quasi-legislative), decision
making (quasi-judicial) and also rule application (pure administrative or executive) action.
 Procedure by which the official action is reached.

(i) The procedure may be laid down in the constituent instrument of the tribunal or the
authority in question.
(ii) The procedure may be laid down in a general legislation. Eg. Legislation in the United
States - Administrative Procedures Act, 1946. The procedure to be followed by the
administrative authorities is laid down.

 Includes the control mechanism – By courts, higher authorities, public opinion and mass
media, consumer organizations, ombudsman etc.
 Focal point is the reconciliation of power with liberty. – balance b/w the power of the
executive and protection of liberty of the people.

Reasons for growth of Administrative Law

 Change in the concept of government.
 Demand of people – people look forward to the government to solve the problems.
 Maximum good of maximum number – no concentration of wealth in one hand –
distribution of wealth.
 Socialistic pattern of society – laws of socialistic nature need more stringent
implementation since rights of private individuals are concerned – thereby contributing to
the growth of A.L.
 Inadequacy of judicial system – led to delegation of judicial power to the executive – need
for regulating the same.
 Inadequacy of legislative process – led to delegation of legislative power to the executive-
again, A.L. regulates such delegation.
 Flexibility of administrative process – problems arising out of legislations can be solved by
the legislature only when it is in session – this problem is solved by delegation of such
power to the executive – role of A.L.
 Non-technical character of administrative process. – the administrative authorities can
dispense with stringent procedures in cases of urgent nature etc.
 Adoption and enforcement of preventive measures – eg. Cancellation of licence is a
preventive measure.

7/6/08 –

Constitutional Law and A.L.

Two schools of thought
  No difference between the two – “It is logically impossible to distinguish A.L. from
constitutional law and all attempts to do so are artificial” (Keith).
 Difference between the two – “The constitutional law describes the various organs of
government at rest, while A.L. describes them in motion)” (Holland).
“While constitutional law deals with structure and the border rules which regulate the
functions, the details of the functions are left to A.L.” (Maitland, who does not accept
Holland’s proposition, says that if it is accepted, A.L. would supersede constitutional law.)
“The dividing line b/w consti and A.L. is a matter of convenience because every student of
A.L. has to study some constitutional law” (Benjafield & Whitmore)

Control Mechanisms – Art. 32, 226, 227, 136, 300, 311.

The above are all part of administrative and constitutional law (both).

French Position
Maintains clear distinction – Due to the presence of A.L. since long time.
Separate courts to deal with administrative matters.
Droit Administratif – Body of Rules (which defines the organization and the powers and functions of
the administrative authorities).
Before 1789 – Struggle for power – Conscil du Roi was advising the King – Also discharged judicial
functions.
After revolution – Revolutionists curtailed the power of the executive by using S.O.P. – Conseil du Roi
was abolished.
Napoleon favoured freedom for administration – 1799 – Conseil d’ Etat was established – Started
exercising judicial powers in the matters involving administration.
1872 – Conseil d’ Etat’s formal power to give judgment was established – Now its jurisdiction is final
in all matters involving administration – Can receive direct complaints from citizens.
Droit Administratif does not represent principles and rules laid down by the French Parliament.
Consists of rules developed by the judges of administrative courts.

Droit Administratif:
 Rules dealing with the administrative authorities and officials.
 Rules dealing with the operation of public services to meet the needs of citizens.
 Rules dealing with administrative adjudication.
Conflict b/w ordinary courts and administrative courts regarding jurisdiction – Tribunal des Conflicts
to decide the case.

Government officials – Protected from the control of ordinary courts.

Sources of A.L.
 Constitution – Provides for functional organizations and also for control mechanism.
 Statutes – Exercise of administrative power must conform to statutory patterns
 Ordinances – President/Governor.
 Delegated legislation.
 Case Laws
 Reports of committees
 Administrative directions (directions issued by higher authorities to lower ones).
9/6/08 –
RULE OF LAW

A.L. – Gained importance recently – Mistrust of people regarding the growth of A.L. – Rule of Law
was used against its growth.
French phrase la principe de legalite (the principle of legality) – Government based on the principle
of law & not of men – Opposed to arbitrary power.
Old origin – Sir Edward Coke – King must be under God & Law.
Upanishad – law is the king of kings.
A.V. Dicey – no wide powers in the hands o govt. officials – wherever there is discretion there is room
for arbitrariness.
Viable and dynamic concept – not capable of exact definition – Said to be the modern name for
natural law.
Rule of law can be used in 2 senses:
(i) Formalistic sense – Organized power as opposite to rule by one man.
(ii) Idealistic sense – Regulation of the relationship of the citizens and the government –
Ethical code for the exercise of public power in any country – Equality, freedom and
accountability.
Dicey’s concept of Rule of Law
(i) Absence of discretionary power in the hands of the govt. officials (Supremacy of Law) –
Police action.
Wade – “The R.O.L. requires that the govt. should be subject to the law, rather than the
law subject to the government.”
(ii) No person should be made to suffer in body or deprived of his property except for a
breach of law established in the ordinary legal manner before the ordinary courts of the
land (Equality before law).
(iii) The rights of the people must flow from the customs and traditions of the people
recognized by the courts in the administration of justice – If the source of fundamental
rights is the Constitution, rights may be abrogated by amendment (Predominance of
legal spirit).
Compared English system with that of French
France – Sepcial administrative courts – Negation of rule of law.
England – No A.L. – Secret of English men’s liberty.

Criticism of Dicey–
Prof. Cosgrove discovers in Dicey a somber, uncompromising and artless figure, lacking in confidence
as a scholar and frustrated in his political ambitions.
Dicey never fully grasped the merits of A.L. – By A.L. he meant only a single aspect of Droit
Administratif, namely administrative jurisdiction to the exclusion of ordinary courts – Administrative
adjudication is also not inferior to judicial adjudication, if the safeguards which protect the exercise
of judicial functions are applied.
Dicey Misconceived A.L. – thought that the French system (Droit Administratif) is A.L. – A.L. is more
than that (For instance, judicial review is not in Droit Administratif but very much part of admin law).
Failure to recognize A.L. in England – Crown and its servants enjoyed special privileges – King can do
no wrong – Special courts i.e. ecclesiastical and admiralty courts – Special tribunals established under
the Poor Law Amendment Act 1834 (law passed for giving relief to the poor people.)
Failure to distinguish arbitrary power from discretionary power.
No essential contradiction between R.O.L. and A.L. – Absence of arbitrariness and equality do not
counter A.L. – A.L. doesn’t sanctify executive arbitrariness but checks it and protects the rights of
people – Reconciliation of liberty with power.

Modern Concept of Rule of law is farily wide – Functions of the govt. in a free society should be so
exercised as to create conditions in which the dignity of man as an individual is upheld – Creation of
political, social, economic, educational and cultural conditions.
Runs like a golden thread throughout the Indian Constitution
Justice, liberty and equality – Fundamental rights
 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
The Rule of Law is an ‘aspect of the doctrine of basic structure of the Constitution, which even the
plenary power of Parliament cannot reach to amend’.

 A.D.M. Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207.

Detention orders during emergency – Art. 21 inoperative – Challenged on the ground of violation of
R.O.L.
Whether the persons detained can move the court?
Whether the persons have a right to life and personal liberty other than Art. 21? – this would
determine the above question, since if the answer is no, then the petitioners did not have a right to
move the court since Part III was suspended in the emergency.
Contention was accepted in the observations o fthe judges – But not in the final order – Some judges
were of the opinion that during an emergency, the emergency provisions themselves constitute the
rule of law.
Ray, C.J., Beg, J., Chandrachud, J. and Bhagwati, J. – “The Constitution is the mandate. The
Constitution is the Rule of Law. There cannot be rule of law other than the constitutional rule of law.
There cannot be any pre-constitutional or post constitutional rule of law which can run counter to
the R.O.L. embodied in the Constitution, nor can there be any invocation to any R.O.L. to nullify the
constitutional provisions during the time of emergency. Art. 21 is our rule of raw regarding life and
liberty. No other rule of law can have separate existence as a distinct right.”

J. Khanna – “R.O.L. is antithesis of arbitrariness. In all civilized societies … (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
got no power to deprive a person of his life or liberty without the authority of law. This is essential
postulate and basic assumption of R.O.L. and not of men in civilized nations. Without such sanctity of
life and liberty, the distinction b/w a lawless society and one governed by laws would cease to have
any meaning”

P. Sambamurthy v. State of A.P. (1987) 1 scc 362.

Art. 371-D(5) (proviso) – Authorised the state govt. of A.P. to nullify any decision of the
Administrative Services Tribunal – Held – violative of R.O.L. – Exercise of power by the executive must
be conditioned by the Constitution and also in accordance with the law – Subject to judicial review,
which keeps every organ of the state within the limits of law.

13/6/08 –
Judiciary – Insisting on fairness in every aspect of exercise of power by the state
Sheela Barse v. State of Maharashtra AIR 1983 SC 378
Court insisted on fairness to women in police lockup and drafted a code of guildelines for the
protection of prisoners (female) in police custody.
Judicial activism to establish rule of law society – No matter how high the person may be, the law is
always above him.

Veena Sethi v. State of Bihar AIR 1983 SC 339.

Unjustified and illegal detentions about 2 to 3 decades – Letter from Free Legal Aid Committee Bihar
– R.O.L. does not exist merely for those who have the means to fight for their rights.
R.O.L. still exists – Every state organ is regulated.

SEPARATION OF POWERS
Traceable to Aristotle.
Writings of Locke and Montesquieu gave base
Locke provided for:-
(i) Discontinuous legislative power.
(ii) Continuous executive power – Executive + judicial.
(iii) Federative power – Conducting foreign affairs.

Montesquieu – Espirit des Lois

(i) General legislative power.
(ii) 2 kinds of executive powers – (i) pure administrative power etc., (ii) federative power.
(iii) Judicial power.
Both derived from the British constitutional history of 18 th century – War between the Parliament
and the king – Bill of rights.

“When the legislative and executive powers are united in the same person or in the same body of
magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or
senate should exact tyrannical manner. Again there is no liberty if the judicial power be not
separated from the legislative and the executive. Where it joined with the legislative, the life and
liberty of the subject would be exposed to arbitrary control; for the judge would be then a legislator.
Where it joined to the executive power, the judge might behave with violence and oppression.
There would be an end of everything, were the same man or the same body, whether of the nobles
or of the people, to exercise those three powers, that of enacting laws, that of executing the public
resolutions and of trying the causes of individuals.”

Wade & Philips

- The same person should not form part of more than one of the 3 organs.
- One organ of the government should not interfere with another organ.
- One organ of the govt. should not exercise the functions assigned to any other organ.
Montesquieu’s theory attracted many English and American jurists.
Blackstone – “If the legislative, the executive and the judicial functions were given to one man, there
was an end of personal liberty”.
Madison – “The accumulation of all powers, legislative, executive and judicial, in the same hands,
whether of one a few or many and whether hereditary, self-appointed or elective may justly be
pronounced the very definition of tyranny.”
Criticism
- Historical inappropriateness – No separation of powers in England – King is integral part of
legislature – His ministers are the members of one or other houses of Parliament – Lord
Chancellor is a member of the govt.
- No watertight compartments – Practical difficulty – Not possible in welfare state.
- As per D.D. Basu, what is possible is only organic separation of powers – a distinction has to be
made between the Essential powers and incidental powers of the organs – the essential
functions should have a clear separation of powers, but the incidental functions can be exercised
by another organ.

14/6/08 –
America – Doctrine forms the foundation of whole structure of the Constitution – “Checks and
balances”
SC has no power to decide political questions – No power of judicial review is provided in the
Constitution – But usurped by the Court.
Strict classification is found impossible – President exercises veto in the Congress – Exercises law-
making power in the from of exercise of his treaty making-power – Interferes with judiciary by way of
appointing the judges of SC.
Judiciary exercises the power of judicial review.

Panama Refining Company v. Ryan, (1935) US 388.

Oil overproduction – The National Industry Recovery Act, 1934 authorized the President to impose
ban on shipment – Held as invalid – Congress did not establish “primary standard” i.e. did not lay
down the framework – excess delegation.
J. Cardozo was the sole dissenter – Statute was framed to meet the national disaster.
“SOP is not a doctrinaire concept to be made use of with pedantic rigour. There must be sensible
approximation, there must be elasticity of judgment in response to practica necessities of govt.
which cannot foresee today the development of tomorrow in their nearly infinite variety.”

India – No constitutional status apart from A. 50

Ram Jawaya Kapur v. State of Panjab AIR 1955 SC 549

School books – Published and supplied by private publishers subject to the approval of the govt.
Govt. started to publish – Challenged as violative of Art. 19(1)(g)- Also, Whether the executive can
carry on any functioning independent of legislation?
Held- A. 162 clearly indicate that powers of state executive do extend to matters upon which state
legislature is competent to legislate and are not confined to matters over which legislation has been
passed already.

“The Indian Constitution has not indeed recognized the doctrine of separation of powers in its
absolute rigidity but the functions of the different parts or branches of the Government have been
sufficiently differentiated and consequently it can very well be said that our Constitution does not
contemplate assumption, by one organ or part of the State, of functions that essentially belong to
another.”

Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299

C.J. Ray – “in the Indian Constitution, there is SOP in a broad sense only. A rigid SOP as under the
American or Australian Constitution does not apply to India.”
SC has the power to declare void the laws and actions of the executive – this applies even to
Constitutional Amendments.

President – Ordinance making power –

Plus Art. 103(1) and A. 217(?) – questions regarding disqualification of m.p.’s and appointment of
judges.

Council of Ministers – selected from legislature and responsible to it.

Legislature – Impeachment of the President and removal of judges.

CLASSIFICATION OF ADMINISTRATIVE ACTION

Administrative action – Comprehensive term

Cuts across the traditional classification of powers.
4 categories
Rule – making action/Quasi-legislative
American constitution expressly confers to the legislature – Implied under the Indian Constitution
(Arts. 107-111 etc.)
Impossible to provide quality and quantity of laws.
Rule-making action partakes all characteristics of legislative action.
Characteristics of legislative action:
(i) Generality
(ii) Public interest
(iii) Rights and duties of people.
(iv) Prospectivity.

State of Punjab v. Tehal Singh (2002) 2 SCC 7.

Declaration determining the territorial area of a Gram Sabha and thereafter establishing the gram
Sabha – Is it quasi-legislative?
Where the provisions of statute provide for legislative activity.
 (i) Where the provisions of the statute provide legislative authority to the executive.
(ii) Where the power exercised does not concern an interest of the individual or relate to
particular situation but relates to public in general.
(iii) Where it lays down future course of action.

Rules of natural justice do not apply except reasonableness and fair play.

Rule of decision action/Quasi-judicial

More decisions from administrative agencies
Power to perform acts administrative in character, but incidentally requires some judicial traditions –
Disciplinary proceedings, cancellation, suspension or refusal to renew license.
Donoughmore Committee on Ministers’ Powers (1932) – “True judicial decision” – Presupposes a lis
between 2 or more parties +4 requisites.
Pure administrative action – No legal obligation to consider and weigh submissions and arguments –
Grounds of action and procedure are left to the discretion of the administrative authority.

Approach seems to be fallacious – Judges not only apply law – They consider policy, socio-economic
& politica factors, expediency and also exercise discretion – Administrative authorities may apply law
& dispose of the case – Ex: Tax.
Quasi-judicial need not follow strict procedure.
I.P. Massey – The distinction between quasi-judicial and administrative action is very thin – Where
the law requires enquiry before decision.

Rule-application action/Administrative action

Though the distinction is narrow – Relevant in determining the measure of N.J.
Neither legislative nor judicial.
Ex: S. 10 and 11A of I D Act – Power to make reference to tribunals, Fact finding action, Issuing
directions to subordinate authorities etc.
Devoid of generality – No procedural obligations – Minimum Natural Justice requirement
Does not decide a right – May affect a right.

Ministerial action
Action as a matter of duty – Devoid of discretion or judgment – Ex: Collection of revenue, Annual
report etc
Area of action – Very limited.

19/6/08 –
ADMINISTRATIVE INSTRUCTIONS
Flow from the general executive power – Due to unprecedented increase in govt. functions.
Superior administrative authority to subordinate authority – Efficacious technique for achieving some
uniformity and also to manipulate in a new and dynamic area
Flexibility – Devoid of technicality
Types of administrative directions: Specific or general. Also, Directory or mandatory
Whether such instructions are enforceable? – Difficult question.
Instructions generally issued without statutory authority – Directory.

Fernandez v. State of Mysore, AIR 1967 SC 1753.

Tenders submitted to Chief Engineer P.W.D. – Petitioner’s was the lowest among unconditional – 3 rd
respondent’s was the lowest conditional – Letter to 3 rd respondent to withdraw conditions and
others to reduce amount within a particular date – 3 rd respondent withdrew after the stipulated
time.
Petitioner wrote to Chief Engineer that his tender being the lowest should have been accepted –
Refused to reduce the amount.
Challenged the acceptance of 3rd Respondent’s tender.
All tenders were rejected.
Later, the 3rd respondent’s tender was accepted.
Challenged:
 Rules of Mysore P.W.D. Code were not followed.
 Violation of Art. 14 – Acceptance beyond the period and favoured the 3 rd respondent.
Held: No authority to issue rules in matters with which the code was concerned – Administrative
instruction – Appellant had no right to apply to court.
No discrimination.
Though cannot be enforced, disciplinary action can be taken against the officer concerned.

Jagjit Singh v. State of Punjab (1978) 2 SCC 196.

Punjab civil service and allied services examination – the appellant got 3 rd rank among S.C. – Only 2
vacancies for S.C.– First 2 got the appointment letter – Subsequently One Selected for IAS – Appellant
applied based on 1961 circular.
Claim rejected – to be included in the normal pool of vacancies – H.C. dismissed the suit – fresh
competitive exam.
S.C. – Resultant vacancy should go to appellant – Govt. instruction clearly stipulate that the vacancy
resulting from the termination of services of SC/ST should not be included in normal pool – Must be
filled on ad hoc basis from the candidates belonging to that category.
Administrative instructions, not contrary to statutory rules – Binding.

V.T. Khanzode v. Reserve Bank of India, AIR 1982 SC 917.

Grouping of employees – Promotion within the group – Change in the group – Affected seniority.
Whether the staff regulations issued by RBI fixing the basis of seniority of its employees could be
modified by a circular issued by it later on?
Administrative instructions cannot modify the statutory rules – Staff regulations were not issued
under S. 58 of RBI Act, 1934 – Not rules – Could be amended.

Amitabh Shrivastava v. State of M.P. AIR 1982 SC 827.

Rule 7 of Rules relating to admissions to Medical Colleges in M.P., 1979 – Reservation – 21 seats to
sons/daughters of military personnel.
Rule 20 – Qualifying marks 50% - Board can lower by 5% if seats are not filled.
Rule 9 – Further vacancy – combined merit list of all candidates on waiting list regardless of category.
Appellant – Son of a military personnel – 43.6%
Marks lowered to 45% - 7 seats were still vacant in the military personnel category.
1980 executive order- Minimum aggregate reduced to 43% - Board applied Rule 9 & prepared a
combined list – Appellant was refused admission.
Whether the selection should be based on the combined list under Rule 9 or taking 43% as qualifying
marks?
Held: Minimum qualifying marks was reduced by executive order – Rule 9 is not applicable –
Appellant should be admitted.

C.L. Verma v. State of M.P. AIR 1990 SC 463.

M.P. State Municipal Service (Executive) Rules, 1973 – 58 years as superannuative age – Govt.
notification stated last day of the month during which the employee is going to be superannuated.
Held ultra vires – Administrative instruction cannot compete with the statutory rule.

Bishambhar Dayal Chandra Mohan v. State of U.P. (1982) 1 SCC 39.

The U.P. Foodgrains Dealers (Licensing & Restriction of Hoarding) Order, 1976 (Under E.C.A.) –
Licensing of trade in food grains.
The U.P. Foodgrains (Procurement and Regulation of Trade) Order, 1978 – Permitted stock quantity
and search seizure.
No restriction on intra-state & inter-state movement of food grains – Teleprinter message by the
Secretary to the govt. to regional food controllers prohibited inter-district movement – Wheat Seized.
Conflict between the administrative instruction & Art. 19(1)(g) – Neither the Act nor the orders
impose restrictions.

If an administrative direction has been following a particular practice for a long period, then the
same cannot be deviated from – legitimate expectation. If however, a reasonable reason is given for
the deviation, the direction can held to be valid.

21/6/08 –
ADMINISTRATIVE DISCRETION
Discretion – Choosing from various alternatives without reference to any predetermined criterion – A
person writing his will.
When qualified by administrative – Rules of reason and justice must be followed.
Humanly impossible to lay down a rule for every conceivable eventuality
Absolute discretion v. reasonable exercise of it – the authorities always insist for an absolute
discretion, but the people demand a reasonable exercise of the same.
Judicial Behaviour and Administrative Discretion in India
Few effective parameters – Lacks activism of American courts.
(1) Control at the stage of delegation of discretion.
Constitutionality of law delegating the discretion – Vague and wide discretion – Art. 14 and
Art. 19.
State of Punjab v. Khan Chand, AIR 1974 SC 543
 East Punjab Requisition of Movable Property Act 1947 – Truck of Khan Chand was
requisitioned by the D.M. for famine work.
 Challenged on the ground of violation of Art. 14 as no guideline was set out.
  Such discretion is bound to result in discrimination which is a negation of Art. 14 – Even the
term “public purpose” is not used.

Manohar Lal v. State of Maharashtra AIR 1971 SC 1511.

S. 187-A of the Sea Customs Act – Power to the authorities to either refer a case of smuggled goods
to a magistrate or to look into the matter themselves.
Challenged as violative of Art. 14.
Court upheld the discretion – This discretion is to be exercised by senior officials, that will stand as a
guarantee against its misuse.
Change in the judicial behaviour – criticized.

State of Madras v. V.G. Row, AIR 1952 SC 196.

 S. 15(2)(b), Criminal Law Amendment Act, 1908 as Amended by Madras Act, 1950 – Power to
state govt. to declare any association as unlawful without giving any reasons.
 Unlawful – Allows the exercise of discretion on subjective satisfaction without permitting the
grounds to to be judicially tested.

State of M.P. v. Bharat Singh, AIR 1967 SC 1170

 April 24, 1963 – Order under S. 3(1)(b) of the M.P. Public Security Act, 1959 – Direction to the
respondent (i) to not to be in any place in the Raipur District; (ii) to proceed to & reside in
Jhabua; (iii) to report daily to a police station.
 Challenged as violative of Art. 19(1)(d) and (e)
 Contentions of the Appellant S. 3(1)(b) was a reasonably restriction – Security of state - So
long as the emergency was in force, the respondent could not move to the court for
violation of fundamental right – Even if S. 3 was void, Art. 358 protects the legislative and
executive action taken after proclamation of emergency – Cannot be challenged.
 Held – Unreasonable restriction – No opportunity of being heard – No stipulation as to the
availability of residential accommodation and measn of subsistence.
 Act was brought into force before the emergency – Art. 19 can be invoked – Clause was void
when enacted and was not revived.
 Executive action which operates to the prejudice of any person must have the authority of
law to support it – Art. 358 do not detract from the rule – No arbitrary power.

23/6/08 –
(2) Control at the stage of exercise of discretion
US Administrative Procedure Act – Judicial review of exercise of administrative discretion.
India – Constitutional configuration of courts – Judge – Proof discretion is a negation of R.O.L.
Control mechanism - 2 groups – (i) failure to exercise discretion, (ii) improper exercise of
discretion.

Failure to exercise the discretion:

Abdication, putting fetter on the exercise or jurisdictional facts being wrongly
determined. Authority can be compelled to exercise discretion – But cannot be
compelled to exercise in a particular manner.
Purtabpore Co. Ltd v. Cane Commissioner of Bihar, AIR 1970 SC 1896.
 Clause 6, Sugar Cane (Control) Order, 1955 – Central govt.’s power to reserve any area where
sugar cane is grown to a particular factory – Delegated to Cane Commissioners by the Central
govt. under cl. 11.
 Appellant’s factory– had supply from 208 villages allotted by the Cane Commissioner – 5 th
respondent’s representation to C.M.
 Directions from C.M. – Cane Commissioner allotted 121 to appellant and 99 to 5 th
respondent.
 Challenged - *Order made on the directions of C.M. and not by the Cane Commissioner.
 Quasi-judicial proceeding – Opportunity of being heard is not given.
 Held – Statutory power – Can only be exercised by the person to whom it is conferred –
C.M.’s interference was not proper – Failure of the Cane Commissioner to exercise the
discretion.
 As soon as the 5th respondent made request to alter reservations, a lis commenced – Quasi
judicial – Hearing should have been given.
 Appellant’s interest adversely affected – Administrative direction cannot take away a right.

24/6/08 –
Improper exercise of discretion
Unreasonable, arbitrary or capricious exercise of discretion – Irrelevant considerations, acting for
improper purpose, bad faith, asking wrong questions, neglecting the relevant factors etc.

The Indian Supreme Court, has a matter of convenience has distinguished b/w failure to exercise
discretion, and improper discretion – there are no watertight compartments. No such distinction is
made in the United States and Britain.

G. Sadanandan v. State of Kerala & Another, AIR 1966 SC 1925.

Emergency – Rule 30(1)(b) of the Defence of India Rules, 1962 – Kerosene dealer detained – Likely to
act prejudicial to the maintenance of supplies and services essential to the life of the community.
Challenged – D.S.P. made a false report in order to benefit his relative.
Held: Proclamation of emergency bars the judicial scrutiny in respect of violation of fundamental
rights – Possible to urge for the statutory safeguards as arer permissible under the Rules – Can ask to
set aside the order.
Under the Rules, if a prima facie claims is made as to mala fideness or as to the casual approach, the
authority should place sufficient material in the form o f affidavit – Not made.
Even during emergency freedom of citizens cannot be taken away without justifying necessity
specified in the Rules themselves.

S.R. Venkataraman v. Union of India, AIR 1970 SC 49.

Joint Director, Family Planning in the Directorate General of AIR – Prematurely retired –Presidnet was
of the opinion that it was in “public interest” [Rule56(j)(i)]
Challenged – Baseless allegations – Malicious vendetta of the then Chairman of the Central Board of
Film Censors – Adverse remarks – Had a long and clean record before – Order was arbitrary &
capricious – Retiring authority had not applied its mind to the record.
Respondent conceded there was nothing on record to justify the order.
Held: No Malice in fact – There was nothing on the record to show the influence of the Chairman of
Central Board of film Censors.
The court observed the meaning of malice in law – Doing some wrongful act intentionally without
just cause or excuse. However, this was not examined.
The court held that it was not necessary to examine the question of malice in law – If discretionary
power has been exercised for an unauthorized purpose it is generally immaterial whether its
repository is acting in good faith or bad faith. The order can be set aside on those grounds itself .

Lord Esher – The Queen on the Prosecution of Richard West brook v. The Vestry of St. Paneras,
(1890) 24 QB 375 – “If people who have to exercise a public duty by exercising their discretion take
into account matters which the courts consider not to be proper for the guidance of their discretion,
then in the eye of the law they have not exercised their discretion.”

*Mistaken belief – Error of fact – Almost be said to be done in bad faith – When nothing was on th
record, respondent is presumed to be influenced by extraneous matter.
*Gross abuse of power to punish a person or to destroy service career – Against the purpose of the
rule.

R.D. Shetty v. International Airport Authority and Others, AIR 1979 SC 1628.
Tenders were invited from ‘registered second class hoteliers’ having atleast 5 years experience for
running a second class restaurant and 2 snack bars at the International Airport, Bombay.
Acceptance of the tender- Left to the Airport Director – Not bound to accept any tender and has the
right to reject all or any without assigning reasons.
Out of 6, only the 4 th respondent’s was complete – Not a registered second-class hotelier having 5
years’ experience – Call for producing documentary evidence – 4 th respondent stated about his
considerable experience – Tender was accepted.
Writ by a person who was neither a tenderer nor a hotelier – Contended to be in the same position
as successful tenderer. (4th respondent)
 1st respondent was bound to give effect to the most important condition of eligibility.
 Had the appellant knew that the condition of eligibility would be no bar, he would have
competed.
th
4 Respondent – Term second-class hotelier is meaningless – Grading is given to hotels and not to
the persons running them.
 Notice had no statutory force – 1 st respondent was competent to depart from the standard
of norm of eligibility.
 Airport Authority had the right to reject all or any of the tenders – Can give contract to
anyone.
HELD
 Exercise of discretion is an inseparable part of sound administration and, therefore, the State
which is itself a creature of the Constitution, cannot shed its limitation at any time in any
sphere of State activity.
 It is indeed unthinkable that in a democracy governed by ROL the executive govt. or any of
its officers should possess arbitrary powers over the interests of an individual. Every action of
the executive govt. must be informed with reason and should be free from arbitrariness.
That is the very essence of ROL and its bare minimal requirement.
  The govt. cannot be permitted to say that it will give jobs or enter into contracts or issue
quotas or licences only in favour of those having gray hair or belonging to a particular
political party or professing a particular religious faith. The govt. is still the govt. when it acts
in the manner of granting largesse and it cannot act arbitrarily. It does not stand in the same
position as a private individual.

 Action was discriminatory – Excluded others from tendering for the contract – Violated Art.
14.

 Though the 1st respondent had the power to negotiate directly, he did not exercise the power
– Process of awarding a contract by inviting tender was not terminated.

Air India ltd. v. Cochin International Airport Ltd.

WITH
Cochin International Airport Ltd. v. Cambata Aviation Ltd. , (2000) 2 SCC 617.

Respondent’s letter to some firms asking quotations for ground handling services – Combatta
Aviation quoted higher offer – Recommended by the Evaluation Committee – B.O.D. decided to
negotiate with Air India (PSU) – Offer made beneficial – Contract awarded to Air India.
Challenged by Combatta:
 Having accepted the limited global competitive bidding norm and having fixed the last date,
it was not open to negotiate with Air India behind the back of Cambatta.
 CIAL had not acted fairly and impartially – No opportunity was given to Cambatta to give
better offer.
Held:
 Decision of the Committee was not binding on B.O.D. – Discretion is with the B.O.D.
 CIAL bona fide believed that involving a P.S.U. & a national carrier would be more beneficial.
 Commercial transaction – Commercial considerations are paramount – State can choose its
own method – Not open to judicial scrutiny, unless dire public interest so requires.
 Even if some defect is found in the decision making process, the decision should not be
interfered with unless it is unreasonable, mala fide or arbitrary and overwhelming public
interest requires so.
 Decision making process and not the decision, which is amenable to judicial review.
 R.D. Shetty was relied upon.

ENGLISH POSITION – Similar to India

Padfield v. Minister of Agriculture (1968) All ER 694.
Milk Marketing Scheme under Agricultural Marketing Act, 1958 – Milk Marketing Board to fix the
prices to be paid to milk producers in different areas.
2 remedies for the person aggrieved by the Board’s action – Arbitration and Minister’s power to
appoint consumers committee and committee of investigation (S. 19).
Producers near London were of the opinion that the price paid to them did not reflect the higher
value of their milk – Request to the minister to refer the matter to committee of investigation.
Refused – Minister has unfettered discretion to decide whether or not to refer a particular complaint
to the committee of investigation – Minister would be in a difficult political position if, despite the
committee’s acceptance of the complaint, the minister should take no action.
Held:
 Not unfettered discretion – “Parliament must have conferred the discretion with the
intention that it should be used to promote the policy and objects of the Act; the policy and
objects of the Act must be determined by construing the Act as a whole and construction is
always a matter of law for the court. In a matter of this kind it is not possible to draw a hard
and fast line, but if the Minister, by reason of his having misconstrued the Act or for any
other reason, so uses his discretion as to thwart or run counter to the policy and objects of
the Act, then our law would be very defective if persons aggrieved were not entitled to the
protection for the court.”
 The purpose of the Act – Every genuine complaint must be forwarded to the committee and
anything contrary to this would frustrate that purpose.

R v. Metropolitan Police Commissioner ex parte Blackburn (1968) 1 All ER 763.

Increase in illegal gambling in London – Shortage of police – Confidential instructions from Police
Commissioner to stop observation – Policy of not prosecuting the clubs – Writ from a private
individual – Lapsed as the Commissioner reversed the policy
Held – Discretion was not absolute and uncontrollable – Should perform the duty.

United States
Judicial activism – Courts not only substitute their discretion to administrative decision, but
sometimes exercise discretion vested with an administrative authority.

Boreta Enterprises v. Department of Alcoholic Beverage Control 84 Cal Reptr 113 (19700
Topless waitresses – Dept. revoked liquor license – Contrary to public welfare and morals.
Held: Exercise of discretion was not legal – Not covered under the stipulated clause.
Mere nudity does not constitute a form of sexual activity – The “good casue” clause prohibits the
Dept. from acting arbitrarily or capriciously.

“It seems that the ‘public welfare’ is not a single, platonic archetypal idea, as it were, but a construct
of political philosophy embracing a wide range of goals including the enhancement of majority
interests in safety, health, education, the economy, and the political process, to name but a few . In
order intelligently to conclude that a course of conduct is ‘contrary to public welfare’, its effects must
be canvassed, considered and evaluated as being harmful or undesirable…”

United States v. Professional Air Traffic Controllers’ Organisation 438 F 2d 79 (1970)

25th March 1970 – Large number of air traffic controllers of FAA absented – Illness and other reasons
were given – Strike – Application for injunction against employees.
District Court – Granted injunction – Barred FAA from taking disciplinary actions – Rules are not
proper.
Appeal against the bar for taking action.

Circuit Court lifted the bar

 The FAA has the power to discipline its employees without judicial interference.
Mc Tiernan v. Gronouski 337 F.2d 31, 34 (2d Cir. 1964), - “The taking of disciplinary action against
government employees, including the invocation of the sanction of dismissal, is a matter of executive
discretion, and is subject to judicial supervision only to the extent required to insure ‘substantial
compliance with the pertinent statutory procedures’ provided by Congress, … and to guard against
arbitrary or capricious action”
No proper ground to suggest FAA’s action as arbitrary or capricious – Disciplinary action based on
unlawful stoppage of work is within the power.
 “It is not the business of the courts to substitute their untutored judgment for the expert
knowledge of those who are given authority to implement the general directives of
Congress”
 J. Waterman – dissented.
 “FAA admits that it intends to dismiss only a small number of controllers who were leaders in
the strike and to suspend or otherwise discipline certain others. This proposed course of
action which indeed ‘flies in the face of the statute’, … The congress has told the FAA that, if
the controllers are found to have participated n a strike, the agency is compelled by the
statute to discharge all controllers who are found to have participatedin the strike… Although
the above interpretation admittedly puts the FAA in the dilemma of discharging all the
controllers involved in the work stoppage or dropping its contention that there was such a
stoppage, we cannot, as judges, scrap the meaning of so clear a statute in order to resolve
the agency’s dilemma for it. That task belongs to Congress, which, in light of increasing
concerted action by public employees, should enact a more realistic statutory provision …”

RULE-MAKING POWER OF THE ADMINISTRATION

Tremendous importance – Bulk of the law from the administrators.
Legislation of Parliament is not complete, unless read with rules and regulations.
Delegated legislation – “that which proceeds from any authority other than the sovereign power
and is, therefore, dependent for its continued existence and validity on some superior or supreme
authority” (Salmond)
Need for delegated legislation
Exigencies of the modern state – Social and economic reforms.
Parliament only passes skeletal legislation.
Between 1973 to 1977 – 302 laws approximately 25, 414 orders and rules.
 Pressures upon the Parliament – Even if in continuous session, the Parliament cannot give
the quantity and quality laws required.
 Technicality – Subject matter of legislation may be technical and require consultation with
experts.
 Flexibility and experimentation – Cannot foresee all contingencies – Power is given to
executive meet unforeseen contingencies – Rapid amendment.
 Emergency – Quick action is required.
 Confidential matters – If public interest demands the nondisclosure until coming into
operation – Ex: Imposition of restriction on private ownership.
 Direct participation in the structuring of law.
Though useful and inequitable, cannot be more – Administration may take away the right – Norm of
jurisprudence of delegation must be followed.

Classification of Delegated Legislation

(1) Title based classification.
Rule, regulations, order, bye-laws, directions and scheme.
 The Committee on Minister’s Powers –Simplification of nomenclature
‘Rule’ to statutory instrument regulating procedure.
‘Regulation’ to describe substantive administrative rule-making.
‘Order’ to be confined to instruments containing executive and quasi-judicial decisions.
(2) Discretion-based classification
 Subordinate legislation – Discretionary elaboration of rules and regulations.
 Contingent/Conditional legislation – Only when the administrative authority finds the
existence of the condition specified in the statute – Not exactly the delegated legislation –
Not open to attack on the basis of excessive delegation.

Union of India v. Shree Gajanan Maharaj Sansthan (2002) 5 SCC 44.

Registered charitable trust – ‘Industry’ – S. 2(j) of I.D. Act and interpretation in Rajappa Case.
Industrial Disputes (Amendment) Act, 1982 – Definition amended by S. 2(c).
S. 1(2) – Act shall come into force on the date specified by the Central Govt. – Most of the provisions
were brought into force in 1984, but not S. 2(C).
Challenged as arbitrary – Writ of mandamus.
Govt. – Implementation would result in depriving the remedies to the employees working in the
hospitals, schools and temples – Alternative must be provided.
Held: Conditional legislation – Power did not enable the govt. whether or not to bring the provision
into force – Only power to bring into force when the favourable circumstances are present.
Attitude Criticized by the court– However must be left to the best judgment of the executive.
(3) Purpose-based classification
 Enabling Act – Power to appoint a day for the enforcement of a legislation – Aimed at giving
the time for the executive to equip itself.
 Extension and application of Act – For a duration of time – Extension to other territories,
objects or persons.
 Dispensing and suspending Acts – Power to make exemptions from all or any provision –
Meant to relieve the hardship to the administrative authorities – Must satisfy the tests of Art.
14.
Eg: Indian Registration Act, 1908 delegated power to the state govt. to exempt any district or
tract of land.
 Alteration Acts – Legislation by reference – Ex. S. 21 of the Excess Profits Act – Provisions of
Income Tax Act shall be applicable with such modifications as prescribe by rules.
 Amendment to the schedule – Power to remove difficulty – Exceptional type of delegation.
 Taxing Acts – Delegation of taxing power is allowed, if policy is laid down.
 Supplementary Acts – Making rules.
 Approving and sanctioning Acts – Power to approve the rules made by other authority.
 Classifying & fixing standard Acts – Purity, quality or fitness for human consumption.
 Penalty for violation Acts – Punishment for violation of rules – In US only Congress fixes –
Can be delegated in UK and India – Ex: London Traffic Act, 1924.

(4) Authority-based classification.

Sub-delegation – ‘Delegatus non potest delegare’ – Express or implied authorization by the parent
legislation.
Exception to prohibition of sub-delegation: The essential Commodities Act, 1955 – Power to make
rules (S. 3).
  A.K. Roy v. State of Punjab, (1986) 4 SCC 326.
 S. 20(1) of Prevention of Food Adulteration Act, 1954 – No prosecution for an offence under
the Act shall be instituted except by, or with the written consent of the Central Government
or the State Government or a person authorized in this behalf, by general or special order.
 S. 24(1) – State govt. to frame rules for giving effect to the provisions of the Act.
 S. 24 (2)(e) – Rules may provide for the delegation of the powers and functions conferred by
this Act on the State Government or the Food (Health) Authority to subordinate authorities
or to local authorities.
 Rule 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958 – Empowered the sate
govt. to delegate.
 Notification dated 10 October 1968 – Delegation to the Food (Health) Authority – 7 th
September 1972 Notification from the Food (Health) Authority authorized the Food
Inspector – Challenged – R. 3 is ultra vires.
 Sub-delegation makes parliamentary control illusory – Only in unavoidable circumstances.

(5) Nature based classification (Normal and Exceptional)

 Normal Delegation (Positive or Negative): (a) Positive – Where the limits of the delegation
are clearly defined in the Act. (b) Negative – Where the power delegated prohibits doing
certain things.
 Exceptional Delegation – Henry VIII clause – Ex: A. 372(2) – Immune from the scrutiny of the
courts. (Sandeepa insists that there is a blanket immunity … no clue how this is possible)

Constitutionality of Administrative Rule-making

Welfare state – Enhancement of the power of the govt. – Constitutional limits must be followed.

England – Parliamentary supremacy – Can confer wide legislative power – Excessive delegation
has no application – Parliamentary control is the only way of controlling.
USA – Doctrine of SOP and ‘delegatus non potest delegare’ – Power cannot be delegated.

Prof. Cushman
 Major premise: legislative power cannot be constitutionally delegated by Congress.
 Minor premise: It is essential that certain power be delegated to administrative officers and
regulatory commissions.
 Conclusion: Therefore, the powers thus delegated are not the legislative powers.

Much stricter norm of delegation

 Panama Refining Co. v. Ryans 293 US 388 (1935) – already done earlier – scroll up and check.

India
(a) When the Privy Council was the highest court of appeal:
R v. Burah (1878) 3 AC 889.
 1869 Act by Indian legislature – Removal of Garo Hills from the civil and criminal jurisdiction
of Bengal – Vested the power with an officer appointed by Lt. Governor of Bengal.
 S. 9 – Lt. Governor was authorized to extend with incidental changes to Naga, Khasi and
Jaintia Hills.
 Burah was tried for murder by the Commissioner of Khasi and Jaintia Hills and was
sentenced.
  Cal HC – S. 9 is unconstitutional – ‘delegatus non potest delegare’ (Held that the Indian
Legislature is a delegate of the Imperial Parliament)
 Privy Council – Indian Legislature is not a delegate – Conditional legislation – Valid.

(b) When Federal court became the highest court of appeal:

Jatindra Nath Gupta v. Province of Bihar, AIR 1949 FC 175
 s. 1(3) OF THE Bihar Maintenances of Public Order Act, 1948 – Provincial govt. may extend
the life of the Act for one year with such modifications as it may deem fit – Challenged.
 Federal Court: Power of extension with modification is an essential legislative act – Cannot
be delegated.
(c) When the S.C. became the highest court of appeal:
 Doubt created by the above decision.
Re Delhi Laws Act, AIR 1951 SC 332.
 S. 7 OF THE Delhi Laws Act, 1912 – The Provincial Government may … extend, with such
restrictions and modifications as it thinks fit, to the Province of Delhi or any part there-of any
enactment which is in force in any part of British India at the date of such notification.
 S. 2 of the Ajmer Merwara (Extension of Laws) Act, 1947 – The central Government may …
extend to the Province of Ajmer –Merwara, with such restrictions and modifications as it
thinks fit, any enactment which is ni force in any other Province at the date of such
notification.
 S. 2 of the Part C States (Laws) Act, 1950 – The Central Government may … extend to any Part
C State … or to any part of such State, with such restrictions and modifications as it thinks fit,
any enactment which is in force in a Part A State at the date of the notification and provision
may be made in any enactment so extended for the repeal or amendment of any
corresponding law … which is for the time being applicable to that Part C State.
 Delegation made at different periods – Argued from two extreme positions – S.C. struck a
balance.
 S.O.P. is not expressly mentioned in the Indian Constitution.
 Indian legislature was never an agent of anybody – ‘delegatus non potest delegare’ is not
applicable (R v. Burah)
 Parliament cannot abdicate or efface itself by creating a parallel legislative body – Two tests:
(i) So long as the legislature has power to control and (ii) so long it has the power to revoke
the action, there is no abdication or effacement.
 Power of delegation is ancillary to the power of legislation – Necessary in the modern world.
 The limitation on delegation is that the legislature cannot part with its essential legislative
power vested in it by the Constitution.
 S. 7 of the Delhi Laws Act, 1912 is valid.
 S. 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947 is valid.
 S. 2 of the Part C States (Laws) Act, 1950 is valid except that part of the section which
delegated the power of repeal and amend any existing law.

5/7/08 –
Excessive delegation – Unconstitutional – Presumption in favour of vires – If 2 interpretations are
possible, court favours the one, which makes it constitutional.
Courts on extent of permissible delegation
Legislature must declare the policy of the law:
Rajnarain Singh v. Chairman, Patna Administration Committee AIR 1954 SC 569.
Petitioner was the secretary of Rate Payers’ Association, Patna – Originally outside the municipal
limits of Patna – On 18th April 1951, the area was brought in to the limit – Subjected to municipal
taxation – Challenged.
Background -
1911 formation of province or Bihar and Orissa – Patna City, Patna Administration and Patna Village –
Bengal Municipal Act, 1884 applied to the provinces – Only Patna City was under the municipality
created by the Act.
Expansion of Patna – Plan to bring Patna Administration under the municipal limits – Instead of
subjecting it to the existing one, the Patna Administration Act of 1915 was enacted to establish
municipality – State did not draw a new municipal act, nor did it apply the 1884 Act.
S. 3(1)(f) – Empowered the local govt. to extend any provision of the 1884 Act subject to restrictions
and modifications.
S. 5 – Local govt. is empowered to cancel or modify any order S. 3.
S. 6(b) – Power on the local govt. to include any local area within Patna.
Patna Administration Committee was established – Certain provisions of 1884 Act were extended – 2
parallel systems (Patna City – 1884 Act whereas Patna Administration -some provisions of the 1884
Act) – Village was outside the ambit.
Bihar and ‘Orissa Municipal Act, 1922 – 1884 Act was substituted – Affected only Patna city’.
S. 4, 5, and 6 – Hearing objections before taxing.
Local govt. was authorized only to extend the provisions of 1884 Act and not the 1922 Act under S.
3(1)(f) – Patna Administration (Amendment) Act of 1928 – Only for the future extension.

S. 4 of the 1928 Act – Any section already extended under S. 3(1)(f) continues until expressly
cancelled by notification – Governor cancelled in 1931 – Substituted by certain sections of 1922 Act
with modifications – S. 4, 5, 6, 84 and 104 were omitted.

(Situation continued till 1951)

Constitution – Power conferred to local govt. under S.(1)(f) and section 6(b) of the Patna
Administration Act, 1915 was transferred to Governor of Bihar.
Patna village expanded – Plan to place under Patna administration municipality – Governor issued
order under S. 6(b) of the 1915 Act – S. 104 of 1922 Act was picked & modified by the Governor and
applied to Patna administration and village [ S. 3(1)(f)].
Whether the Notification of the governor (1931) can be challenged by the Petitioners?
Whether the 1951 notification can be challenged?
(1) Whether the notification travels beyond the impugned portion of the Act, and
(2) If not, whether S. 3(1)(f) is itself ultra vires.

 The 1931 notification could not be challenged since the petitioners, being from Patna village,
lacked locus standi.
 S. 3(1)(f) was held to be valid, applying the ration of In Re Delhi Laws Act.
 However, the notification was held to be invalid, since the provision regarding taxation was
extended and the safeguard (hearing being given) was omitted – Against the legislative
policy.

Harishankar Bagla v. State of M.P., AIR 1954 SC 465

S. 3 of the Essential Supplies (Temporary Powers) Act, 1946 – Central govt. empowered to make rules
for the purpose of maintaining or increasing supplies of essential commodities and for securing
equitable distribution at fair price.
S. 4 – Can be delegated by the Central govt (the above power to make rules).
S. 6 – Orders made there under shall have effect notwithstanding anything contained in any law in
force.
Cotton Textiles (Control of Movement) Order, 1948 was passed under S. 3 – General or Special permit
of the Textile Commissioner to be obtained for transportation (Clause 3).
Cotton clothes weighing over 6 maunds was confiscated – Challenged.
Petitioner –
 Clause 3 of the Control order is ultra vires of Art. 19(1)(g) and (f)
 S. 3 of the Act amounts to delegation of the legislative power outside the permissible limits –
No framework for the exercise of power.
 S. 4 is against ‘delegatus non potest delegare’
 S. 6 is already declared invalid by the H.C. – S. 3 is inextricably mixed with it and should also
be declared invalid.
Held:
 Clause 3 is not ultra vires – Did not deprive the citizen to dispose of the property or to carry
on the trade – Only permit is required – Reasonable restriction.
 S. 3 of the Act is not excessive delegation – Legislature cannot delegate its power to lay down
the policy – In the present case, the legislature has laid down the policy – “the maintenance
or increase in supply of essential commodities and of securing equitable distribution and
availability at fair prices”.
 ‘delegatus non potest delegare’ is not applicable when the clear policy of law is laid down.
 S. 6 is not invalid – Neither expressly nor by necessary implication it repeals or abrogates the
existing laws – Object is to by-pass them in case of any inconsistency – S. 6 reflects the will of
the Parliament – Not an authority delegated to the Central govt. – No question of invalidity.
(S. 6 cannot empower the central govt. to supersede any state legislation under List II. A delegate
enjoys only as much power as the original body itself. Indian Oil v. Municipal corp. jalandhar)

Edward Mills v. State of Ajmer, AIR 1955 SC 25.

S. 27 of the Minimum Wages Act, 1948 – Power of appropriate Government to add to the schedule
any employment in respect of which it is of opinion that minimum wages shall be fixed – Challenged
as excessive delegation without the legislative policy.
Held: Not invalid – Legislative policy is apparent – “Avoiding exploitation of labour due to unequal
bargaining power or other reasons”.

Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 (the case is an exception to the rule).
The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 – To check the mischief
being done to the innocent patients suffering from certain incurable diseases through
advertisements claiming magic remedies.
S. 3 – Laid down the list of diseases – Authorized the Central govt. to include any other disease in the
list.
Petitioner faced difficulty in the publicity of certain products – 4 th December 1958, the Drugs
Controller, Delhi intimated to the petitioners that the provisions of S. 3 of the Act had been
contravened by them and called upon them to recall their products sent to Bombay and other States
– Correspondence between the petitioner and authorities – 40 products were stopped from sale –
Challenged.
Held: Excessive delegation – Legislature has not laid down any policy for guidance to the govt. in the
matter of selection of diseases.
Decision criticized – Not in line with earlier decisions – Certain diseases in the list could have
provided standard – Title and preamble.

8/7/08 –
Avinder Singh v. State of Punjab, AIR 1979 SC 321
S. 90(1) of the Punjab Municipal Corporation Act, 1976 – Certain items for taxation by the
corporation – Taxes so levied are to be utilized for the purposes of the Act.
Under S. 90(4) , the State of Punjab asked the municipal bodies to impose a tax at Rs. 1 per bottle of
Indian made foreign liquor – Municipalities failed to implement – State itself issued notification
under S. 90(5).
Petitioner:
 No guidelines provided for the imposition of the tax – excessive delegation – Abdication by
the legislature.
 No opportunity of being heard is given to the residents.
 Double taxation – Sales tax is already imposed.
Held:
 No excessive delegation – Policy is laid down – “collection for the purpose of the Act” –
Sufficient, as the municipality has limited functions – May not be in case of state.
 Opportunity of being heard has to be given only when the municipal authorities impose tax –
Not required, when the state govt. imposes tax under S. 90(5).
 Nothing in the Constitution prevents double taxation – Sales tax imposed is not a bar on the
tax for the municipal corporation.

Norms of jurisprudence of delegated legislation:

 Power of delegation is a constituent element of legislative power.
 Essential legislative functions cannot be delegated – Legislative policy required.
 Non-essential powers may be delegated, however numerous and significant they may be.
 Essential legislative functions are to be determined on case to case basis.
 Very broad general statements may constitute legislative policy.
 Delegated legislation must be consistent with the parent Act.
 Delegate cannot have more power than that of the delegator.
 Sub-delegation must be authorized by the act.
 Delegated legislation must not be unreasonable and must not violate any procedural
safeguards.

Control of Delegated Legislation

(1) Parliamentary Control
Every delegate is subject to the authority and control of the principal – Exercise of the power can
be directed, corrected or cancelled by the principle.
 Jain & Jain – “it is the function of the legislature to legislate, but if it seeks to give this power to
the executive in some circumstances, it is not only the right of the legislature, but also its duty, as
principal, to see how its agent carries out the agency entrusted to it. Since it is legislature which
delegates legislative power to the administration, it is primarily for it to supervise and control the
actual exercise of this power, and ensure against the dagner of its objectionable, abusive and
unwarranted use by the administration”
(a) Direct general control – Proceedings in Parliament
 Debate on the delegating bill – Necessity, extent, type of delegation etc.
 Asking questions and giving notice for discussion
 Moving resolution on urgent matter, when the reply of the govt. is unsatisfactory.
 Vote of grant – member may propose a cut on the budget demands of a ministry.
 Directions by the speaker to refer to a committee to examine the extent of powers sought to
be delegated.
(b) Direct special control – Laying on the table of the legislature.
 Extensively used in England – Statutory Instruments Act, 1946 – Administrative rule making is
subject to the supervision of the Parliament – Immediate effect but subject to annulment by
either House.
 Laying with no further direction – Simply to inform the Parliament
 Laying subject to negative resolution – Effect soon after laying on the table of the House, but
shall cease if annulled.
 Laying subject to affirmative resolution –
(i) Rules having no effect until approved.
(ii) Cease to have effect unless approved by any affirmative resolution
 Laying in draft subject to negative resolution – Draft rules to be placed on the table, which
shall come into force after a specified period, unless disapproved.
 Laying in draft subject to an affirmative resolution – Power of modification.

India – No statutory provision for laying all delegated legislation – May be provided in the individual
statute – Ex: Representation of the Peoples Act, 1951 (S. 169(3) – laying before the Parliament),
Indian Services Act 1951, Indian Development and Regulation Act, 1951, Indian Tariff (Amendment)
Act 1950 etc.
Legal consequences of non-compliance with laying provision
Void in England
India – Depends on the nature of provisions in the enabling Act.
Jan Mohammad Noor Mohammad Begban v. State of Gujarat and another, AIR 1966 SC 385.
S. 26(5) of the Bombay Agricultural Produce Markets Act, 1939 – Laying before the legislature.
Rules framed in 1941 – Not laid before the legislature in its first session – World War II emergency –
Placed in the 2nd Session.
Held: the Act did not prescribe that the rules acquired validity only from the date on which they were
placed before the Houses of Legislature – Laying was not mandatory.

Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149.

S. 3(6) of the Essential Commodities Act, 1955 – Laying before the Houses of the Parliament as soon
as may be after order is made u/s. 3- Order was not placed.
Appellants were prosecuted for an offence of acquiring controlled commodity (iron) at a rate higher
than maximum statutory price – Argued against the validity of the order, since it was not placed
before the legislature.
Whether S. 3(6) is directory or mandatory?

Held:
 Two considerations for regarding a provision as directory – (i) Absence of any provision for
the contingency of a particular provision not been complied with & (ii) Serious general
inconvenience and prejudice to the general public, if rules are declared invalid.
 S. 3(6) does not stipulate negative or affirmative resolution by either Houses – Not subject to
the approval or disapproval of Parliament – No period is stipulated – No penalty for
nonobservance of the norm – Not a condition precedent.
 Essential commodity – Serious inconvenience and prejudice would be cause – laying is
directory.

Hukum Chand v. Union of India, AIR 1972 SC 2427.

S. 40 of the Displaced Persons (Compensation) Act, 1954 – Central govt. to make rules – To be placed
before the Parliament subject to negative resolution.
Rules framed – Placed before Legislature.
An Explanation was added to Rule 49 – Retrospective operation was given.
Held: Rules were ultra vires of the powers of the administrative authority – Mandatory laying.

(c) Indirect control – Scrutiny committees.

The Lok Sabha Committee on Subordinate Legislation, 1953 & The Rajya Sabha Committee on
Subordinate Legislation.
_____GET NOTES _____
15/7/08 –
ADMINISTRATIVE ADJUDICATION
Bulk of the cases are decided by the administrative bodies.
Earlier – With the executive (King).
Wade and Philips – “Modern govt. gives rise to many disputes which cannot appropriately be solved
by applying objective legal principles or standards and depend ultimately on what is desirable in the
public interest as a matter of social policy”.
Need for administrative adjudication
 Expansion in the governmental activities – Impossible to carry on the new programs with the
courts as the sole agency for the determination of legal questions.
 Desire to provide a system of informal, cheap and quick adjudication.
Mahabir Jute Mills v. Shibban Lal Saxena, AIR 1975 SC 2057.
Dismissal of workers – Decision after 25 years – Most of 400 workmen, who claimed justice had died
–New appointees had 25 years service.
 Policy considerations – Cannot be solved only on the basis of law.
 Need to explore new public law standards based on moral and social principles – Expertise in
the field is required – Tribunals contain the experts – “Leaving the technical matters to the
decision of the court is like giving surgery to a barber and medicine to an astrologer” (S.C.).
 Adoption of the give and take approach – Helpful in labour matters.
  Pending cases before courts – The mass of administrative litigation would make the courts
virtually collapse.
 Administrative agency vested with the power of adjudication and courts of law – Procedure,
Precedent and Res judicata.

Problems of administrative adjudication

(a) Number and complexity – Every statutory rule contains its own machinery – Parallel bodies
adjudicating on the same kind of dispute giving different decisions – No uniform principles.
(b) Bewildering variety of procedure – Agency’s power to draft the procedure.
(c) Unsystematic system of appeal – Possibility of no appeal – Ex: S. 6 of the Land Acquisition Act
– Decision of the Controller regarding public purpose is final.
(d) Invisibility of the decisions – No publication – Keeps them out of public criticism.
(e) Unpredictability of decisions – Non application of doctrine of precedent.
(f) Anonymity of decision – Hearing by someone and decision by other – Rule of fair hearing.
(g) Combination of functions – In most of the disciplinary proceedings the functions of a
prosecutor and the judge are either combined in one person or in the same department.
(h) No evidence rule – Evidence Act do not apply.

State of Haryana v. Rattan Singh, AIR 1977 SC 1512.

Bus with the conductor was taken over by flying squad- Inspector found 11 passengers without
ticket though they had paid money – The statements of the persons were not recorded – Formal
enquiry – Services of the conductor terminated.
Courts up to H.C. quashed the decision – S.C. reversed the order – Held that the important question
is “was there some evidence or was there no evidence?” not in the technical sense but in a fair
common-sense way.
Evidence in the strict legal sense is not required in the administrative decision making.
(i) Official perspective – Presumption of guilt rather than innocence in the disciplinary
proceedings.
(j) Official bias – Being a person who initiates the scheme, sitting as a judge in hearing
objections.
(k) Plea bargaining – Plea of guilt with lesser charges and punishment – Poor employee may be
bullied by an overbearing superior to accept the charge against him.
(l) Political interference.
(m) Off-the-record consultation – S. 5(c) of the Administrative Procedure Act, 1946 – One party
cannot be consulted without the notice and opportunity to all parties to participate – No law
in India.
(n) Decisions without reasons – No obligation unless stipulated in the parent legislation – Recent
shift in the trend (judiciary is now in favour of reasons being given – issue not fully resolved).
(o) Legal representation and cross examination – Not mandatory.

Modes of administrative adjudication

Art. 323-A and 323-B – Tribunals under the Constitution – Enjoy the status and powers of H.C. –
amenable only to the jurisdiction of S.C. under Art. 136.
(1) Statutory tribunals.
Established under a statute
Some of the trappings of the court – No uniform procedure – May be laid down in the statute or left
to the will of the tribunal – Subject to the writ jurisdiction.
Art. 227 – Supervision of H.C.
Mallapa Murigeppa Sajjan v. state of Karnataka, AIR 1960 Kant 53.
Tribunal under Karnataka Land Reforms Act, 1961 – Members from Congress (I) Party (Non-official) –
Congress (U) issued an order directing the suspension of working – Challenged the order as mala
fide.
Held: The Act did not confer the power of superintendence to govt. – Subject to supervision of H.C.
England - Council on Tribunals to supervise – Established under Tribunals and Enquiries Act, 1958 –
16 members (5 + 11) – Ombudsman, an ex officio member – Open for public opinion
USA – Administrative Conference – 83 members – Chairman, Council and General Assembly –
Recommendatory body.

(2) Domestic tribunals

Designed to regulate professional conduct and to enforce discipline – Investigatory & adjudicatory
powers.
Contractual – Agency by a private club to decide disputes between the members – Not subject to
writ jurisdiction – Private law remedy may be available.
Statutory – Advocates Act 1961, Medical Councils Act, 1945 etc.
Minimum natural justice – Judicial review is limited (State of Haryana v. Rattan Singh).
Whether the disciplinary action can be taken against the person exercising quasi-judicial powers?

Union of India v. K.K. Dhawan (1993) 2 SCC 56.

Income Tax Officer – Nine assessments in the year 1982 – 1983 – Acted with undue haste and in
irregular manner to give benefit to the assesses – Charged for the failure to maintain absolute
integrity and devotion to duty.
Disciplinary proceedings – Promotion wasn’t given, though recommended by the Promotion
Committee before charge-sheet was served.
Challenged –
 Promotion was decided before the charge-sheet – Only sealed cover was to be open.
 Immunity from disciplinary proceedings.
Held – The departmental action was valid
If acted negligently or recklessly to confer undue benefit, not acting as judge – Subject to disciplinary
action.
(i) Where the Officer had acted in a manner as would reflect on his reputation for integrity
or good faith or devotion to duty.
(ii) If there is prima facie material to show recklessness or misconduct in the discharge of his
duty.
(iii) If he has acted in a manner which is unbecoming of a government servant.
(iv) If he had acted negligently or that he omitted the prescribed conditions which are
essential for the exercise of the statutory powers.
(v) If he had acted in order to unduly favour a party
(vi) If he had been actuated by corrupt motive however small the bribe may be.
(The above is not an exhaustive list, and more conditions may be added depending upon the facts
and circumstances of the case in hand).

RULES OF NATURAL JUSTICE

No statute in India laying down the minimum procedure to be followed by decision-making
administrative body – Must follow minimum procedure – N.J.
N.J. – Developed with the growth of civilization – Shows the level of civilization and Rule of Law.
Divine law or natural law to which all temporal law and actions must conform.
“Not the justice of nature where the lion devours the lame and the tiger feeds upon the antelope”
– Higher law of nature where “the lion and lamb lie down together and the tiger frisks with the
antelope”.
Fairness, reasonableness, equity and equality – Common sense justice- Principles ingrained in the
conscience of man – Universal ideas.
The form of the N.J. and its extent depends on the facts and circumstances of a given case and the
framework of the statute under which action is taken. (Canara Bank v. Debasis, (2003) 4 SCC 557.)

N.J. means many things to many writers – Has changing content – Criticized as unruly horse.

Lord Denning – “With a good man in the saddle, the unruly horse can be kept under control. It can
jump over obstacles. It can leap fences put up by fiction and come down on the other side of
justice”
J. Krishna Iyer – “It is not a bull in a china shop nor a bee in one’s bonnet. Its essence is good
conscience in a given situation: nothing more-but nothing less”
Rules of N.J. are imbibed in the Constitutions world over – No direct reference in the Indian
Constitution – Preamble, Arts. 14, 21, 311.
Complete waiver or N.J. – Results in the violation of fundamental rights.
D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259.
Termination of services under the Certified Standing Orders – Willingly absented from duty for more
than 5 days without intimation/permission.
Appellant’s plea that he was prevented entry at the gate and was not allowed to sign was not
accepted.
Labour Court: Dismissal is justified – No hearing is required under the Standing Orders.
S.C:
 Violation of Arts. 14, 21, and N.J. – Rules of N.J. must be read into the Standing Orders –
Otherwise becomes arbitrary, unjust and unfair violating Art. 14.
 No express exclusion in the Standing Orders.
 Quasi-Judicial function – Different from pure administrative – Needs to be followed in the
interests of justice.

Anglo-American courts – Follow 2 principles from 3 to 4 hundred years.

 Nemo in propria causa judex, esse debet – Nobody shall be a judge in his own cause
 Audi alteram partem - Hear both sides.

Rules against Bias

Operative prejudice to a party – Predetermination to decide the case in a manner – Factors
improperly influencing a judge.

Two principles:
 No man should be a judge in his own cause
  Justice should not only be done but seen to be done.
Biased decision is nullity – Not applicable in all the administrative matters.
(1) Personal bias
Relationship between the deciding authority & the parties – Direct/indirect – Personal/professional
hostility or friendship.

Mineral Development Corporation Ltd. v. State of Bihar, AIR 1960 SC 468.

Lease for 99 years to mine mica – Show cause notice for the cancellation of licence for violation of S.
10, 112, 14 of the Mining Act (show cause issued under S. 25)
Company asked for the particulars of alleged violation – Furnished after a reminder – Company sent
a written representation denying the allegations – Cancelled the licence after 2 years.
Challenged:
 Co. has invested large sum for securing mining lease + for prospecting and developing the
mines – Art. 19(1)(g) and (f) violated.
 No reasonable opportunity to show cause.
Held:
 Not an unreasonable restriction – S. 25 is valid.
 Reasonable opportunity from case to case – The Revenue Minister who initiated the inquiry
was supposed to hear – Personal bias.
 Property dispute
 Political rivalry
 Criminal case by the minister under S. 500 of the IPC.

S.P. Kapoor v. State of H.P., AIR 1981 SC 2181.

H.P. health services – Promotion list by the Departmental Promotion Committee – Confidential
reports of candidates by one of the aspirants for promotion – Biased.

“Real likelihood of bias”/ “Reasonable suspicion of bias”

Real likelihood focuses on the court’s own evaluation – Reasonable suspicion looks mainly to
outward appearance – Much common tests.
Question is not whether the person is really biased – Difficult to prove state of mind – Whether the
reasonable grounds for believing that a person biased exist? – Human possibilities and ordinary
course of human conduct.
Judge need not ask himself – Need to look into the mind of the party – Not mere apprehension and
vague suspicion of whimsical, capricious and unreasonable people – Reasonable man test.
Not what actually happens, but the substantial possibility of happening – May be disqualified even if
unbiased.
Lord Denning – “Justice must be rooted in confidence; and confidence is destroyed when right-
minded people go away thinking: ‘The judge was biased’.”

Metropolitan Properties Co. Ltd. v. Lannon, (1969) 1 QB 577.

Chairman of Rent Assessment Committee – Lannon was disqualified – Father was a tenant having a
pending case against the petitioner – No actual bias – Likelihood of bias.

Ramanand Prasad Singh v. Union of India, (1996) 4 SCC 64

Promotion of IAS from Bihar Admin Service – Brother of a candidate was the member of Selection
committee – Not selected – Did not vitiate other appointments.

A.K. Kraipak v. Union of India, AIR 1970 SC 150.

Special Selection Board – Selection of officers to Indian Forest Service in the junior and senior scale
from officers serving Forest Department of State of Jammu and Kashmir.
Acting Chief Conservator of Forests of State was the member of the Board (Appeal of earlier Chief
Conservator against supersession was pending) – Also a candidate for promotion.
Acting Chief Conservator’s name on the top of the table – 3 rival names dropped – Acting Chief
Conservator did not sit in the Board when his name was considered – Participated when the names
of rivals were considered.

List was sent to Ministry of Home Affairs – List with observations to the Union Public Service
Commission – UPSC examined the records and made recommendations – Govt. notified the list –
Challenged under Art. 32.
Questions:
 Whether the principles of N.J. apply to administrative proceedings? (If presumed to be
administrative)
 Whether there was a violation of N.J.?
 Whether there is any basis for grievances? (As the recommendations of the Board is
examined by Home Ministry and UPSC)
 Whether there was a ground for setting aside all selections? (Junior scale).
Held:
 N.J. is applicable to administrative proceedings, especially when it is not easy to distinguish –
Necessity to prevent the miscarriage of justice.
 N.J. violated – Acting Chief Conservator was likely to be biased – Conflict between personal
interest and duty – Other members of the Board did not know that the appeal of the
superseded conservator was pending/
 Board was a high powered body – Recommendations had considerable weightage – If the
selection by the Board is vitiated, recommendation by the UPSC is also vitiated.
 Selection to both senior and junior scale from the same possible – Not possible to separate
the 2 sets – All selections to be set aside.

G. Sarana v. University of Lucknow, AIR 1976 SC 2428.

Interview for the post of Prof. of Anthropology – Respondent No. 8 was recommended by the
Selection committee – Writ under Art. 226 – Appeal on failure.
Ground: Personal Bias – 2 of the experts in the committee had close relation with respondent no. 8 –
Instrumental in getting many remunerative assignments – Stayed in the house – Strained relationship
with the petitioner.

Held:
 No need to look into the likelihood of bias – Objection must have been taken soon after the
constitution of the Selection Committee – Cannot challenge once submitted to the
jurisdiction willingly.
 Mere recommendation – Executive Council is yet to take decision – Writ is not maintainable.
G.N. Nayak v. Goa University, (2002) 2 scc 721.
Prof. of Marine Science in the University of Goa – Appellant’s selection was challenged under Art.
226 – Bias contended – Held in favour of Respondent No. 5 – Appeal.
1991 advertisement – No one applied – 1994 advertisement – Both applied – Some days before the
interview, letter from the H.O.D. (Res. No. 2) to V.C. requesting urgent interview – Highlighted the
appointment letter received by appellant – Praised the qualities of appellant – Endorsed by the Dean
of the Faculty.
Res. No. 5 objected to the participation of Res. No. 2 – Writ was withdrawn – Premature – Res. No. 2
did not sit – Neither of them were selected.
1995 – Fresh advertisement – Relaxation in additional qualification – Fresh selection Committee
consisting of Res. No. 2- Committee recommended the appellant
Challenged-
 Eligibility criteria is illegally amended.
 Appellant was not qualified.
 Selection process is vitiated .
Held –
 Writ is maintainable – Earlier withdrawn writ was for apprehended bias – Now for the actual
bias – Subject matter different (2 advertisements)
 Cannot challenge the eligibility criteria – Willingly applied and appeared for the interview.
 Appellant was qualified – Teaching + Research.
 Not every kind of bias vitiates the decision – Must be unreasonable favour based on
extraneous factors.
“As the Head of the Department it would be but natural that he formed an opinion as to the abilities
of the Readers working under him. It is noteworthy that it was not respondent No. 5’s case that the
respondent No. 2’s praise of the appellant was unmerited or that the respondent No. 2 had any
extraneous reasons or reasons other than the competence of the appellant for selecting the
appellant as professor”.

(2) Pecuniary bias

Any financial interest, however small may be, vitiates the action – Cannot be avoided by mere non-
participation in the proceedings.
R v. Hendon Rural District Council, (1933) 2 K B 696.
One of the members of Planning Commission was estate agent – Did not participate in the
proceedings but participated when the decision was reached.
Permission granted to applicant to sell the land to a prospective developer – Held the agent was
acitng for the applicant – Decision was vitiated.

Bonham Case (1610) 8 Co. Rep. 113(b)

Fined by the college of Physicians for practicing in the city of London without licence – Half of the
fine to King and the other half to the College – Order was struck down.

Jeejeebhoy v. Asst. Collector, AIR 1965 SC 1096

Land acquired for housing scheme – Compensation on the basis of value on a prior date –
Claim from the date of notification.
C.J. reconstituted the Bench – One of the members of the Bench was a member of cooperative
society for which the land was allotted.

The rule is not applicable when the judge has no direct financial interest in the outcome of the case.
R v. Mulvihill, (1990) 1 All ER 436.
Conviction for robbery in a bank – Trial judge had shares in the bank – Challenged as biased.
No direct financial interest - No likelihood of bias.

(3) Subject matter bias

When the deciding officer is directly or otherwise involved in the subject matter – Real likelihood of
bias is important – Mere general interest would not disqualify – Rare instances.

R v. Deal Justices, (ex p. Curling) (1881) 45 LT 439.

Trial of case of cruelty to an animal – Magistrate was a member of the Royal Society for the
Prevention of Cruelty to Animals – Challenged.
Divisional Court – No responsibility or control over prosecution – No likelihood of bias – Not
disqualified.
Sub Committee of Judicial Accountability v. Union of India, (1991) 4 SCC 699.
Judges Enquiry Act, 1968 – Motion by the Speaker for the removal of a sitting judge of the S.C. for
the alleged misconduct when he was functioning as the C.J. of H.C. – Challenged to be influenced by
political factors.
Held:
 Ultimate authority rests with the Parliament – Before that the investigation committee must
decide – If the committee records that the judge is not guilty, the political element is
eliminated.
 Doctrine of necessity – Power is conferred only to the Speaker – No other person can take
decision under the Act.

Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation & Another, AIR 1959
SC 308.
Nationalization of road transport services – Secretary to the Home Department to hear the
objections – Bias contended.
Held: The Secretary was interested in the subject matter – Bias.

(4) Departmental Bias

- Inherent in the administrative process – Policy consideration.
- Gullapalli – I AIR 1959 SC 308 – Secretary – Part of the dept.
- Gullapalli – II, AIR 1959 SC 1376 – Minister- Only responsible for the disposal of business.
- Hari v. Dy. Commissioner of Police, AIR 1956 SC 559.
Externment order – Challenged – Initiation of the proceeding and hearing was by the same police
department.
Held: No bias – Functions were carried on by 2 separate officers.
State of U.P. v. R.S. Sodhi, AIR 1994 SC 38.
Alleged fake encounters – Can the investigation be done by the state police?
Held: Independent agency is desirable – CBI was directed.
(5) Preconceived notion bias
Delicate problem – Judge can neither sit as a blank sheet of paper, nor as a person with preconceived
notion.
T. Govindaraja Mudaliar v. State of T.N., AIR 1973 SC 974
 Nationalisation scheme – Ad hoc Committee to frame the scheme – Home Secretary was a
member.
 Objections heard by Home Secretary – No preconceived notion bias – Secretary, as a
member, did not finally determine any issue as to foreclose his mind – Only assisted the govt.
 Even if he happens to be a servant of the government he is not bound in any way to carry out
or endorse the policy of the Government without discharging his duties as contemplated by
the parent ct.
Inherent limitation of administrative process – Public officer cannot be accused for having some
favour to a policy.

In re Linhan- “If, however, ‘bias’ and ‘partiality’ be defined to mean that the total absence of
preconceptions in the mind of the judge, then no one has ever had a fair trial and no one will. The
human mind, even, at infancy, is no blank piece of paper. We are born with pre-dispositions…. Much
harm is done by the myth that, merely by taking the oath of office of a judge, a man ceases to be
human an strips himself of all predilections, becomes a passionless thinking machine.”

Unless preconceived notion has the capacity to foreclose the mind of the judge, action is not vitiated.
Doctrine of necessity – Bias would not disqualify – To allow a biased person to Act v. to stifle the
action altogether – Choice in favour of the former.

Audi Alteram Partem/Rule of fair hearing

No one should be condemned unheard – Opportunity to defend – Sine qua non of every civilized
society – Administrative difficulty cannot be an excuse.

R v. University of Cambridge, (1723) ER 698.

 Cancellation of Dr. Bentley’s degree - No opportunity to defend.
 No statutory requirement to hear – Held that the justice of the common law supplies to the
omission of the legislature. (Opportunity to be heard should have been given).
Legislature cannot take away except in cases of recognized exceptions – Would be violative of fair
hearing under Art. 14 and 21.
Refusal to participate – Cannot be a reason for pleading the violation of N.J.
In India, courts have developed the fine code of administrative procedure – Fair hearing.

S.L. Kapoor v. Jagmohan and Others, AIR 1981 SC 136.

 The Punjab Municipal Act, 1911 – Power to Delhi Administration to supersede New Delhi
Municipal Committee on the ground of incompetency or persistent default in performance of
duties or exceeding or abusing the powers.
 Lt. Governor superseded – Persistent default and abuse of power resulting in wastage of
funds.
 Challenged – Non observance of N.J. and Fair-play.
Respondents
 Opportunity of being heard is not stipulated in the Act.
 Neither the Committee nor the members had any beneficial interest in the continuation of
the Committee – Suppression did not result in any civil consequence entitling a right to be
heard – No prejudice.
 Emergent situation – Quick action was necessary to avert the disaster.
Held:
 Violative of audi alteram partem – Opportunity of being heard need not be provided by an
express provision.
 Committee assumes certain office and status – Has rights and responsibilities commanding
respectful regard from the public – When stripped of the office and status in an
unceremonious way, civil consequences result.
 Proof of prejudice is not required – N.J. is not dependent on whether it would have made
any difference if N.J. had been observed – Non-observance of N.J. is itself prejudice to any
man.
 If a grave situation arises, public interest can be sufficiently protected by appropriate
prohibitory and mandatory order provided by the Act.

State Bank of Patiala and Others v. S.K. Sharma, AIR 1996 SC 1669.
Temporary misappropriation – 2 charges, one by Balwant Singh and the other by the Bank.
Preliminary enquiry by 2 officers – Examined the witnesses including Balwant Singh and Patwari of
the village, Kaur Singh – Gathered necessary documentary evidence.
Oral enquiry ordered – 6 witnesses on behalf of Bank and 3 on behalf of respondent – Balwant Singh
did not appear, in spite of efforts to procure his presence.

Enquiry officer’s report held both the charges established – Removed from service.
Challenged on the ground of violation of Regulation 68(b)(iii) – The inquiring authority shall record
an order that the officer may for the purpose of preparing his defence be … supplied with copies of
statement of witnesses, if any, recorded earlier and the Inquiring Authority shall furnish such copies
not later than 3 days before the commencement of the examination of the witnesses by the
Inquiring Authority.
2 June 1987 – Enquiry started – Witnesses were examined on 6, 7 & 27 July.
Questions:
 Is this a case of no evidence? (Because Balwant Singh was not examined)
 Whether regulation 68(b)(iii) has been violated?
Held:
 Not a case of no evidence – The 2 officers who conducted the enquiry and recorded the
statements of Balwant Singh were heard.
 Theory of substantial compliance – Test of prejudice.

(i) Disciplinary action should not be set aside automatically – Court should enquire whether
substantive or procedural provision is violated?
(ii) Substantial provision – Theory of substantial procedural provision is violated?
(iii) Procedural provision – Every violation does not vitiate – must be examined from the
point of view of prejudice in defending the case.
(iv) Two kinds of procedural provisions:
 (a) Procedural provision, not of mandatory character – Violation has to be examined
from the point of substantial compliance – Prejudice to be proved for setting aside
the order.
(b) Mandatory procedural provision (Ex: Opportunity to produce evidence/material in
support of evidence) – The question is whether the provision is conceived in the
interest of the person proceeded against or in the public interest? – Waiver in the
former is possible.

(v) Where the enquiry is not governed by any statutory provision & only obligation of the
administrative authority is to observe N.J., the court must make the distinction between
a total violation of natural justice and a violation of a facet of the said rule – Distinction
between ‘no opportunity’ and ‘no adequate opportunity’ – In the case of the former,
order would be invalid – In the latter case, has to be examined from the point of
prejudice – Whether in the totality of the circumstances, the delinquent officer did or did
not have a fair hearing?
(vi) Ultimate overriding objective of fair hearing is to ensure that there is no failure of justice.
(vii) State interest or public interest may curtail the rule of audi alteram partem.

Where did Regulation 68(b)(iii) fall? – Principle iii and iv(a) – Though the copies were not furnished 3
days before enquiry, they were not furnished more than 3 days before examination of witnesses – Of
the 2 witnesses 1 was examined – Substantial compliance.

The term ‘shall’ should not be interpreted always to mean as mandatory – Respondent did not raise
the objections during the enquiry – Even if mandatory, from the conduct he has waived – No
prejudice caused in defending.
Setting aside the punishment would result in the failure of justice and is not in the interest of justice
– Technical irregularities should not result in the escaping of guilty.

Duty to act judicially/Duty to act fairly

Quasi-judicial – Duty to act judicially – All principles of N.J.
Administrative – Duty to act fairly – Not arbitrarily and capriciously.
Dividing line has become thin after Kraipak – But still exists.

Keshav Mills Co. Ltd v. Union of India, (1973) 1 SCC 380.

 Sick textile Mill – Closed between 1966 – 1968 – Committee for the investigation appointed –
Report.

(Get notes for Saturday - 26th July, 2008)-

….
Order quashed – ‘debarring you as a defaulter’ did not give adequate notice to the appellant of the
fact that he would be debarred from the contracts with PWD.
Shiv Sagar Tiwari v. Union of India, (1997) 1 SCC 444.
Notice in the newspaper (instead of personal notice)– Allottees of the govt. quarters in Delhi to
represent before S.C. against the proposed cancellation of allotment.
Sufficient – Large no. of persons – All educated – Personal delivery is difficult.
Requirements of notice will not be insisted as a mere technical formality – Adequate notice – test of
prejudice.
If the service of notice is made impracticable or impossible, proceedings are not vitiated.

(2) Right to know the evidence against.

Evidence to be use against a person must be brought to his notice – Need not be original documents
– Summary of the contents is sufficient – Right to inspect and take note.

Dhakeshwari Cotton Mills v. Commr. Of IT, AIR 1955 SC 65.

 Income Tax Officer guessed the gross profit of sale by the appellant – The Tribunal accepted
that with a reduction of 5%.
 Appellant challenged – Assessment was made in complete violation of N.J. – Data supplied
by the Income Tax Department was relied on by the Tribunal – No opportunity to inspect and
rebut – Appellant’s materials in support of his case were not accepted.
 Failure to disclose the materials to assessee – Held to be violation of N.J.

(3)Right to present case and evidence.

Reasonable opportunity to present the case- Writing/oral.

Oral hearing – Not an integral part of fair hearing – Effective defence test – Complex legal and
technical questions.

Union of India v. J.P. Mitter, AIR 1971 SC 1093.

Age of the judge was in question – Respondent claimed to be 27 Dec 1904 and not 27 Dec 1901 –
Art. 217(3) – Documentary evidence before the Presidnet – Oral hearing requested – Not given –
Challenged the decision.
Held:
Oral hearing is not required – Opportunity to submit in writing is sufficient – No likelihood of bias or
prejudice – No complicated question to be decided by the President – Truth has to be determined on
his past conduct at various stages when he gave no evidence as to date of birth.

Dhakeshwari Cotton Mills v. Commr. Of IT AIR 1955 SC 65.

 Production of material evidence was not allowed.

N.M.T. Cooperative Society v. State of Rajasthan, AIR 1963 SC 1098

 Enquiry under the MV Act for nationalization of road transport – Objections – Witnesses
whose names were filed did not appear – Summons issued by the authority – Failed.
 Objectors asked for coercive process – Authority refused – Order of nationalization passed –
Challenged
 To what extent the authority should help the party In presenting the evidence?
Held:
  Authority is not bound to use the coercive process – Objectors’ duty to procure their
presence.
(4)Right to rebut adverse evidence.
May be oral or in writing at the discretion of the authority – 2 factors.
(a) Cross examination
Most powerful weapon to establish the truth – Need not be followed in all administrative
adjudications – Effective defense test.

Hira Nath Mishra v. Principal, Rajendra Medical College, (1973) 1 SCC 805
 Male students had entered quite naked to Girls’ Hostel and misbehaved with some girls – 36
girls filed report – Enquiry Committee appointed.
 Statement of the girls were recorded in the absence of appellants – Identified through the
photographs – Expulsion ordered – Challenged.
Held:
 Cross examination is impracticable – No girl would come forward to give evidence – College
authorities also cannot protect the girl students outside the college precincts – Retaliation
and harassment.

Town Area Committee v. Jagdish Prasad, AIR 1978 SC 1407

Charge-sheet to the officer by the Department – Officer gave explanation – Order of dismissal –
Challenged.
Held: Fair hearing includes opportunity to cross-examine the witnesses and also to lead the
evidence.

31/7/2008 –
(b) Legal Representation
Not an indispensable part of administrative proceeding- Lawyers’ tendency to complicate and
prolong – Might also give an edge to the rich over poor – Unless the agency itself provides, denial of
legal representation cannot be challenged generally.
Depends on the provisions of the statute – Factory law do not permit legal representation –
Industrial Disputes Act allows with the permission of the tribunal – Income Tax Act permits as a
matter of right.

Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripati, (1993) 2 SCC 115.
 Standing orders may restrict the right of legal representation of the employee.
Courts in India have stressed on professional assistance in different situations:
- Where the person is illiterate
- Where the matter is complicated and technical.
- Where the question of law is involved.
- Where the person is facing a trained prosecutor.

Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025.

Acquisition of property – Custodial interrogation – Accused must be allowed legal representation –
Police must wait for a reasonable time for the arrival of the lawyer.
USA – Person has a right to legal representation – Combined effect of due process clause and S. 6(a)
of the Administrative Procedure Act.

(5)No evidence to be taken at the back of other party.

Ex parte evidence violates fair hearing.
Errington v. Minister of Health, (1935) 1 KB 249.
Jarrow Corporation passed a clearance order – Demolition of buildings – Submitted for the
confirmation of the Minister of Health.
Enquiry held – Owners of the building were given a hearing – Officials of ministry again visited and
collected evidence – Owners were not informed – Order confirmed by the ministry by considering
the facts collected – Challenged.

Held:
Ex parte statements are against the principles of NJ – No opportunity to rebut – Order quashed.

1/8/08 –

This does not mean that the administrative agency cannot obtain information in the manner it
considers best – Must be disclosed and opportunity to rebut must be given.
Hira Nath Mishra v. Principal, Rajendra Medical College, AIR 1973 SC 1260.
Evidence collected behind – Brought to the notice of appellants.

USA – No off the record consultation [S. 5(c)]

(6) Report of the enquiry to be shown to the other party.

Administrative adjudication – Everything may not be done by same officer – Help of the subordinates
is taken.
Disciplinary actions – Inquiry by one and the decision by the other – Whether the copy of the report
of the inquiry must be furnished to the party? – No precedent till recently.

Union of India v. H.C. Goel, AIR 1964 SC 364

Charged of offering bribe to support his representation regarding his seniority – Inquiry officer found
not guilty – UPSC endorsed the conclusion on request.
Disciplinary authority rejected the conclusions of the inquiry officer- Respondent was dismissed-
Challenged – Not based on the evidence- Void.
Held: No evidence case.
 Inquiry officer holds inquiry as a delegate of the govt.
 The object of the inquiry is to enable the govt. to hold the investigation into the charges – To
decide in reasonable time.
 The findings on the merits recorded by the inquiry officer are intended merely to supply
appropriate material for consideration by govt. – Not binding.
 The inquiry report along with the evidence recorded constitutes the material on which the
govt. has to ultimately act.
When the disciplinary authority holds the delinquent guilty, contrary to the material and the
recommendation of the inquiry officer in his report, the Authority is acting on ‘no evidence’ –
Decision is not legal.

Shows the importance of supplying the report of the inquiry officer – Gives an opportunity to the
delinquent officer to address the mind of the disciplinary authority – But the court did not decide on
the question of failure to supply.
Indian Law Institute – 1962 study – The report of the inquiry officer in relation to the decision by the
disciplinary authority may take any 4 broad shapes:
 The inquiry report may indict and the disciplinary authority may exonerate.
 The inquiry report may exonerate and the disciplinary authority may indict.
 The inquiry report may indict and the disciplinary authority may also indict.
 The inquiry report may exonerate and the disciplinary authority may also exonerate.

In the 1st and 4th situations, supply of the inquiry report would be unnecessary.
2nd – If he report with comments is not supplied, principle of fairness would be violated – Decision
would be based on ‘no evidence’.
3rd – Supply may be necessary in the interest of fairness – Major penalty – Th report may contain
errors, misstatements or omissions.
Rules relating to disciplinary proceedings against civil servants working in CPWD – Major penalty like
dismissal, removal or reduction in rank can be imposed only after giving a show-cause notice along
with the copy of the inquiry report.

Premnath K. Sharma v. Union of India, (1988) ATC 904.

Central Administrative Tribunal – Failure to supply copy would vitiate the proceeding.

2/8/08 –

Union of India v. Mohd. Ramzan Khan, (1991) 1 SCC 588.

42nd Amendment Act – Art. 311(2) – Opportunity of showing cause against the proposed punishment
was dropped.

Whether the amendment has taken away the right to have the copy of the inquiry report?
Held: Only the 2nd stage of inquiry is deleted – It commences from the service of the notice proposing
one of the punishments prescribed by the authority among those mentioned in sub-Art. (1) –
Deletion of the 2nd opportunity.
Right to represent against the conclusion of the Inquiry officer is untouched – Furnishing a copy is
necessary.

S.K. Singh v. Central Bank, (1996) 6 SCC 415.

Non furnishing of the copy of the report would not invalidate the orders automatically – Test of
prejudice is applicable.
(7) Reasoned decisions/speaking orders
No particular statute requiring the reasons – Mandatory, if the statute under which the agency is
functioning requires – Must be clear statement providing the link between the material and the
conclusion – may be brief.

Important check on the abuse of power – Convinces those subject to the decision.
Implied constitutional perspective
Whether reasoned decisions is a constitutional requirement?
Kishan Chand Arora v. Commr. Of Police, Calcutta, AIR 1961 SC 705
 S. 39 of the Calcutta Police Act, 1866 – Commissioner of Police to grant licence for eating and
entertainment houses – Securing the good behavior of keepers and the prevention of
drunkenness.
 Petitioner’s application was rejected – Challenged – Violative of Art. 19(1)(g) – No
requirement of hearing and reasons for decision is stipulated.
Held:
 Not arbitrary power – Not an unreasonable restriction to Art. 19(1)(g)
 Commissioner is exercising administrative power and not quasi-judicial power – No duty to
act judicially – Reasons are not required.

Distinction has blurred after Kraipak – ‘Procedural fairness’ requires reasons – Reasons are the link
between the order and the mind of the maker – May violate Art. 14 & 21, if not given.

Scheme of judicial review (Art. 32, 136, 226 and 227) – Implied requirement of the reasons – Scrutiy
of reasons and not the decisions per se.

Implied statutory perspective

Can the requirement of the reasons be presumed in the face of legislative silence? – Shifting stand of
the courts.
In quasi-judicial decisions, where appeal or revision is provided, the need for reasons is implied.

Mahabir Prasad Santosh Kumar v. State of U.P. and Others, AIR 1970 SC 1302.
Licensed dealer in sugar and flour – Assistant Commissioner of Food and Civil Supplies called upon
the appellants to explain certain irregularities found during inspection – Appellants were directed to
handover all stocks to a cooperative society on the following day.

Representation against the order to DM – Not attended – Obliged to surrender the stocks – Letter
from DM cancelling the licence – Reason was not given.
Appeal to the state govt. – Rejected without recording the reasons – Challenged.

Held:
 Reckless disregard of the rights of the appellants by the authorities
 No attempt to disclose the source of power and necessity of exercising that power.
 Order of DM was quasi-judicial – Can be made only on the consideration of charges and
explanation of the appellants – Must give reasons, why he held the charges proved, and the
explanation is unacceptable.
  State govt. could have acted with some awareness – Citizens’ right need to be protected
against arbitrary actions of the subordinates- Reasons for rejection.
 The rules conferred a right of appeal to state govt. against the order of DM – Opportunity to
convince the state that the order was erroneous – Right an be effectively exercised only if the
reasons are given.
 Recording of reasons in support of a decision on a disputed claim by a quasi-judicial
authority ensures that the decision is reached according to law and is not the result of
caprice, whim or fancy or reached on grounds of policy or expediencey.

A.L. Kalra v. The Project and Equipment corporation of India Ltd., AIR 1984 SC 1361.
Deputy Finance Manager – (a) Advance of Rs. 16,050 for purchasing a plot of land (House Building
Advance) – (b) Advance of Rs. 11,000 for purchase of new motor cycle (Conveyance advance).
Advance Rules – Non-utilization within the time limit attracts the liability of refund with penal
interest.
Conveyance advance – Receipt of purchase of a scooter was accepted – Failed to utilize the House
Building advance – Coercive steps to recover the entire amount by stopping the payment of the
salary.

Memorandum – Disciplinary action for the mis-utilization of the advances – Enquiry Officer was
appointed.
Appellant replied pointing out various reasons for delay in repayment of advance – Pleaded no
misconduct and enquiry was uncalled for – The first advance is being adjusted by withholding the
salary and receipt was produced regarding the 2 nd.
Enquiry Officer reported the violation of the Rules and commission of punishable misconduct – No
reason recorded.

Committee of Management – Removed the appellant from service – Appeal rejected – Challenged on
the ground of violation of N.J.

Held:
 The enquiry report must include the findings on each article of charge and the reasons
therefore – Not followed.
 Committee of Management – Did not assign any reason for accepting the report of the
enquiry officer – Defect continued.
 Rule 35 – Appellate authority was obligated to consider whether the findings are justified or
whether the penalty is excessive or inadequate and pass the appropriate order – Appellate
authority must show that it has taken into consideration the findings, quantum of penalty
and other relevant factors – Reasons.
 Quasi judicial authority must give reasons even if statute does not provide for appeal or
revision – Less scope for arbitrary and partial exercise of power – Indicate the consideration
of extraneous factors.

Pure administrative function – No specific decision on the point of requiring reasons.

Appellate or revisional authority – Is there any implied requirement to give reasons?
M/S Harinagar Sugar Mills Ltd v. Shyam Sundar Jhunjhunwala and Others, AIR 1961 SC 1669.
Father of respondent had large no. of shares in appellant company – Transferred 2 blocks of 100
shares each to his son and daughter–in-law.

Application for the registration of transfers – Refused by the company directors under Art. 47B of the
Article of Association – Appeal to the Central govt. – Resolution of the company directors was set
aside without giving any reason – Special leave petition by the company.

Held:
 The Central Govt. while exercising the appellate power acts as a tribunal – Required to act
judicially – Need of confidentiality should not result in deviation from judicial approach
 Decision must be made objectively and not subject to subjective satisfaction – Must be on
the basis of law and not on the basis of policy or expedience.
 Decision of Central Govt. is subject to appeal to S.C. under Art. 136 – SC cannot exercise the
power effectively, if the reasons are not given.

When the decision of the authority is reversed wholly or partially in appeal or revision, the appellate
authority must give reasons.

What if the appellate authority simply affirms the decision

Higher authorities need not give reaons while affirming the decision of lower authority.
AIR 1966 SC 671
State of Jaipur v. Prabhu Dayal (1995) 6 SCC 279.
(1995) 1 SCC 434.

Higher authorities should give reasons while affirming the decision of the lower authority.
AIR 1967 SC 1606.
AIR 1976 SC 1785.
AIR 1978 SC 597.
The cases, therefore, are not clear on the point.

Courts approach is very flexible.

England – S. 12(1) of the Tribunals and Inquiries Act 1958 – Duty to give reasons only where the
party requests for them on or before the decision.

USA – S. 8(b) of the Administrative procedure Act 1946 – Duty to give reasons.

5/8/08
(8) Institutional decisions/one who decides must hear.

Local Govt. Board v. Arlidge, 1915 AC 120.

Closing order in respect of a dwelling house – Hearing by the inspector, order from the Local Govt.
Board – Challenged as violative of N.J.
Held: No violation – Govt. departments are not expected to conduct their business like a court of law
– Can take the assistance of subordinates.
Tribunals and Enquiries Act – Inspector holding enquiry cannot take decision.

Morgan v. United States, 298 US 486 (1936)

S. 310 of the Packers and Stockyards Act – Secretary of Agriculture to make an order fixining the
maximum rates for dealings in stockyard.
Subordinate officer heard the parties – Secretary fixed the rates – Challenged.
Held: N.J. violated – When an official is vested with power by the law to decide, he has the duty to
exercise real deciding function – Evidence must be received and weighed – Duty cannot be
performed by one who has not considered the evidence or the arguments – Duty is akin to that of a
judge.

Effectively eliminated the separation between hearing and decision-making within the agency.

Gullapalli I – Secretary of Transport Dept. heard and CM made the decision.

Gullapalli II – Minister gave the hearing and CM decided – No violation

(9) Rule against dictation

Decision by the authority vested with power – Direction of outside agency – violates fair hearing.

(10) Financial incapacity to attend the inquiry

If cannot attend/procure the presence of evidence, decisions cannot be made ex parte.

Ghanshyam Das Shrivastava v. State of M.P., AIR 1973 SC 1184

Employee was suspended – No suspension allowance – Inquiry held away from appellant’s home –
Couldn’t attend – Ex parte orde r- Challenged.
Held: Violative of fair hearing.

Mumtaz Hussain Ansari v. State of U.P., AIR 1984 SC 1116

Deputy Superintendent of Police – Charged for willful absence from duty, providing fake medical
certificate and visiting Pakistan w/o valid passport.
Departmental Inquiry by U.P. Administrative Tribunal – Appellant named 8 witnessess on his behalf –
Asked to deposit Rs. 900 for the allowance to be paid to the witnesses – Not deposited.
Tribunal found the appellant guilty in the absence of witnesses – Dismissed from service by the
disciplinary authority – Challenged.

Held:
 Appellant was under suspension for nearly 5 years – Nothing on the record to show that he
was financially sound
 Failure to summon defence witnesses at the govt.’s expense was a violation of N.J. unless it
was decided by the authority that the evidence was not material.

(11) Decision post haste

Not to rush to a decision.
City Corner v. PA to Collector and Additional District Magistrate, AIR 1976 SC 143
Application for licence under the Places of Public Resort Act, 1888 for conducting games of skill and
dance – Executive Officer of Panchayat refused – Granted on appeal.
Appellant spent Rs. 27,000 to put up a temporary structure – Started business on 22 nd Jan 1975 – DM
issued a show cause notice on 25 Jan for the cancellation of licence due to the objection by the
Superintendent of Police and 2 other local associations.

Appellant wrote back on 27 Jan for the supply of original adverse material – Contended the summary
as misleading – Promised detailed explanation after receipt.
DM considered the explanation as a routine one and was not convincing – On 28 Jan licence was
revoked – Challenged.
Held: Decision post-haste – Either should have supplied the copies of adverse material or should
have intimated that the summary was sufficient.
Must have given an opportunity to give detailed representation as promised by the appellant.

7/8/08 –
POST DECISIONAL HEARING
Intended to strike a balance between the administrative efficiency and fairness to the individuals.

Maneka Gandhi v. Union of India, AIR 1978 SC 597.

 Passport was impounded under S. 10(3)(c) of the Passport Act 1967 – No reason was
provided on the ground of public interest (Presence was required before the Shah
Commission for emergency excesses) – No notice and hearing.
 Under the section, govt. can impound the passport in the interest of the general public – 2
safeguards.
 S. 10(5) – Recording of a brief statement of the reason and to furnish the holder of the
passport a copy on demand, unless the authority is of the opinion that it will not be in the
interests of the general public.
 S. 11 – Appeal to the appellate authority – No appeal in case of order by the Central Govt.
Petitioner
 Right to go abroad is part of personal liberty – No due procedure prescribed by the Act.
 Order is in contravention of N.J. – Null and void.

Govt.
 Audi alteram partem must be excluded – May have frustrated the very purpose of
impounding.
 Administrative action – No duty to act judicially.
Held:
 Art. 21 – Right to travel abroad – Due process clause is not violated.
 Reasons to be communicated – No injury to public interest.
 Rule of fair hearing is attracted by necessary implication – Cannot be excluded on the ground
of administrative convenience.
 Post-decisional hearing – Fair opportunity of being heard immediately after the decision –
Satisfies the N.J. – Accepted by the A-G.
Post decisional hearing in Maneka Gandhi
It is well established that the N.J. can be excluded when in the interest of public health, public
morality or public safety, prompt action has to be taken by the administration – Hearing would delay
the action & defeat the very purpose – Ex: Unhealthy food, obscene literature etc.
Some safeguards are required againt the abuse of power – Need for summary action v. protection of
public interest.

Schwartz – “Emergency permits instant destruction of the infected poultry, seizure and sale of the
taxpayers’ property, and takeover of the bank; any hearing comes after these drastic acts have taken
place.”

Clark Byse – “Between the extremes of no hearing and hearings on all applications is the widely
adpopted procedure of granting a hearing if, after the application has been refused, the applicant
seeks an opportunity to be heard”

In Maneka Gandhi – Need of immediate action arose – The petitioner would have moved abroad on
the strength of passport – Object of impounding would be frustrated – Subsequent fair hearing
would be sufficient.

Decision was not without parallel

- Defence of India Rules, 1962 – Order of detention to be reviewed every 6 months.
- Industrial (Development and Regulation) Act 1951 – Central govt. can take over the management
of the company without investigation – Owner may apply for cancellation.
- Income Tax Act 1961 – Hearing of the person whose assets are seized by the income tax officer
within 90 days of seizure.

Negatives:
 Likely to be based on incomplete information – Administrative errors.
 Pressure on time – Greater reliance on the subordinate staffs.
 Tendency to stick to the position once decided – Risk of bias in subsequent hearing.
 Injury inflicted by summary action may not be irreversible – Ex: Wrongful destruction of market
place, wrongful expulsion of the student at the eve of graduation, wrongful injury to the
reputation etc.
 Drastic nature – May be used to coerce the individual to agree to the recommendations of the
authority.
 No pressure to act expeditiously in giving a hearing after the order – Prolonged delay – 2
suggestions – Bhagwati, J. in Maneka Gandhi opined that the hearing should be given “as soon
as the order of impounding the passport is made”
 Property destruction leads to annihilation of the evidence, which would prove the individual’s
case.

Prior hearing should be the rule – Post hearing must be an exception – Post hearing is not a
substitute to prior hearing – Resorted to only when the latter is not possible.
2 alternatives in Maneka – No hearing and post decisional hearing – Court favoured the latter.

Statutory requirement to give reasons

Passport Act requires the statement of reasons to be recorded – Ordinarily “record” requires the
communication of the reasons – Would it be necessary in this case?
Demand and refusal in the interest of public – Subject to court’s scrutiny – No damage to public was
involved in the disclosure.

Effect of failure to observe natural justice

Quashing the administrative action? – Not done in Maneka Gandhi
Function was initially administrative and subsequently quasi-judicial – Statute did not require the
communication of the reasons along with the order of impounding – To be communicated only after
the request.

Initial order was valid – Govt. need not observe N.J.

If quashed on the mere technical grounds, there is nothint to prevent the authority to initiate the
proceeding again on the same grounds and pass order.
Noncompliance of N.J. need not make the order null and void – Void order is non est in law – Even an
adverse party cannot give validity to it by waiving N.J. – It is well-established that the party may
waive N.J.
Court may not quash the order when it is clear that the individual has no defence.

Glynn v. Keele University, (1971) 2 WLR 487.

Penalty by the V.C. on a student for moving naked within the precincts of the University –
Nonobservance of N.J. – Concept of nullity or voidness cannot be mechanically applied.
Assurance of the govt. to give post-decisional hearing is sufficient in Maneka Gandhi.

K.K. Shepherd v. Union of India, AIR 1988 SC 686

3 banks were amalgamated with 3 other banks by a scheme under the Banking Regulation Act 1949 –
125 employees were excluded from employment.
Some of the excluded filed writ before the H.C. – Single judge granted partial relief by proposing
post-decisional hearing – Division bench set aside the order – Appeal to S.C.

Contentions –
 No opportunity of begin heard – Authorities did not act fairly.
 None of them were responsible for fictitious or improper conduct of business resulting in the
near about bankruptcy of the banks – Employees against whom there are definite charges
and enquiry is pending are taken.
Respondents –
 Incorporation of the names were finalized on the basis of the scrutiny of the records –
Sufficient compliance of requirement of law – Statute did not confer any opportunity of
being heard.
 Scheme-making process was legislative (to be placed before the Houses of Parliament), at
the most administrative – N.J. need not be followed.
 Entire operation was to be finalized within brief period of time – Enquiry of each employee
cannot be implanted into the provisions of the Act.

Held –
  Administrative action – Rules of N.J. apply – Decision to exclude a certain section of the
employees cannot be made w/o following N.J.
 Duty to act fairly – Needs hearing – Civil consequences.
 Time frame – Detailed enquiry may not be possible – Simpler must be afforded
 Rule of post-decisional hearing would not apply – Normal hearing – Employees thrown out
are deprived of livelihood –Serious difficulties
 Once the decision is taken, there is tendency to uphold the decision – Representation would
yield no fruitful result.
Exceptions to the rules of N.J.
- More injustice rather than justice – Can be excluded.
(1) Exclusion in emergency..
Quick action – Notice and hearing may be obviated.
(2) Exclusion in case of confidentiality: Surveillance register – Confidential document.
(3) Exclusion in case of purely administrative matters.
Unsatisfactory academic performance – Expulsion without pre-decisional hearing.
(4) Exclusion based on impracticability.
R. Radhakrishnan v. Osmania University, AIR 1974 AP 283.
MBA entrance exam was cancelled- Mass copying – Notice and hearing of all students is not
possible.
(5) Exclusion in cases of interim preventive action.
Preventive action – N.J. may be excluded.

(6) Exclusion in case of legislative action.

Lay down the policy without reference to particular individual – Can exclude N.j. – Should not
be arbitrary, unreasonable and unfair.
Charan Lal Sahu v. Union of India, (1990) 1 SCC 613.
Constitutionality of Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985.
“For legislation by the Parliament no principle of N.J. is attracted, provided such legislation is within
the competence of the legislature”.
(7) Where no right of person is infringed.
Mere technical requirement – Cannot be a reason for setting aside the order.
(8) Exclusion in case of necessity.
Sole compenet person has to act.
(9) Exclusion in case of govt. policy decisions.
BALCO Employees’ Union v. Union of India, (2002) SCC 333.
Govt.’s policy to disinvest in PSU – Challenged by the workers.
Held: Cannot be challenged on the basis of violation of N.J.

(10)‘Useless Formality’ theory

Where on the admitted or undisputed facts only one conclusion is possible and only one penalty
is permissible under law, authority need not strictly follow N.J. – Result would not be different by
the following of N.U. – No defence on the merits of the case.

Dharmarathmakara Rai Bahadur Arcot Ramaswamy Mudaliar Educational Institution v.

Education Appellate Tribunal, (1999) 7 SCC 332.
Lecturer was granted leave for doing M.Phil. – Joined Ph.D. in violation of the Rules – Notice was
given – Accepted the fact in reply.
 Services were terminated – Challenged on the basis of violation of S. 6 & 8 of the Karnataka
Private Educational Institutions (Discipline and Control) Act 1975, which provide for enquiry
before termination.

Held: Opportunity to show cause was not necessary – Facts are undisputed – Affected person
could not put forth any valid defence.
Giving an opportunity of being heard is a check and balance – No one’s right can be taken away
without hearing – Not necessary to follow when one admits the violation.

Judicial Review of Administrative Action (get notes on this – missed on 12/8/08)

14/8/08 –
HC – Wider power to issue – Writ against ‘person and authority’ – Inconsistent practices.
Habeas corpus and quo warranto can be issued against anybody – What about the other writs?
Initially confined to state – New grounds are broken subsequently.

Raj Soni v. Air Officer-in-charge Administration, AIR 1990 SC 1305.

S. 208 of Delhi Education Code, 1965 – Age of retirement of an employee of an aided school was
fixed at 60 yrs – Delhi Education Act, 1973 reduced the retirement age to 58 yrs without effecting the
conditions of services of the already existing employees.
Petitioner, an earlier employee, was retired at 58 – Filed a writ before SC- Arbitrary and
discriminatory action.
Respondent –
 Management of the school is neither a state nor an authority under Art. 12 – Writ is not
maintainable.
 Education code had no force o flaw – No enforceable right under Art. 32.

Held:
 Petitioner’s claim is just – Entitled to be retired at 60.
 School is not receiving any aid from govt. – But recognized by Delhi Administration – Acts
and the Rules are applicable – Private body governed by a statute is bound to provide the
benefit under the statute – Writ would be available in case of violation
 As petitioner attained 60 yrs, respondents are directed to pay salary and allowance for 2 yrs
and retirement benefits accordingly.

Unni Krishnan and Others v. State of A.P., AIR 1993 SC 2178.

Term ‘authority’ under Art. 226 – Liberal meaning unlike in Art. 12 – Art. 12 is relevant only for the
enforcement of FRs under Art. 32.
Art. 226 is wider than Art. 32 – Must not be confined only to statutory authorities and
instrumentalities of the State – May cover any other person/body performing public duty.
Private medical/engineering college comes within the writ jurisdiction irrespective of the question of
aid and affiliation.

Where the public interest element is present, writ is maintainable.

Bodhisattva Gautam v. Subhra Chakraborty, AIR 1996 SC 922
Romance between the appellant and respondent – Assurance to marry -Became pregnant – Insisted
for marriage – Parents’ consent – Secret marriage by putting vermilion before God – Persuaded for
abortion.
2nd pregnancy – Aborted – Shifted the employment – Refused to take the respondent.
Criminal case before the Judicial Magistrate I Class – Challenged the summons before HC under S.
482, Cr.P.C. – Dismissed.
Special leave petition – Dismissed – Suo motu notice to the petitioner – Why he should not be asked
to pay reasonable maintenance per month to the respondent during the pendency of the
prosecution proceedings against him? – Challenged.
Held: Court has variety of jurisdiction – Art. 32 – FRs can be enforced against private bodies and
individuals – suo motu action.

Recent trend seems to be justified – Halting and variegated – Shellter behind technicalities – Threat
of injustice – Not only from the constitutional or statutory agencies.

Locus standi to challenge administrative action.

Habeas corpus – Any person can invoke- Hussainara Khatoon, (I) to (IV).
Quo warranto – Any one can file – Personal interest is irrelevant – “Everyone has the interest in the
public money”
Mandamus and certiorari – Only the person whose rights have been infringed can apply – Not
necessarily only the personal right of the person – Can be invoked when he holds a right common
with others – Ex: Taxpayers’ standing to prevent misappropriation of public funds, citizens’ standing
to challenge election held contrary to law.
Mere interest would not entitle to writ – Must show an interest more than that of an ordinary
member.

Maganbhai Ishwarbhai Patel v. Union of India, AIR 1969 SC 783.

Kutch Tribunal award- Certain territories to be handed over to Pakistan – Challenged the
implementation.
Cessation of territory – Violative of Art. 19(1)(d), (e) and (f).
Held:
 No cessation of territory – Settlement of uncertain boundary.
 None of the petitioners had any clear interest in the action of govt. – Neither did anyone live
there nor did they have any property there.

Prof. De Smith – In a developed legal system the professional litigant and meddlesome interloper
who invoke the jurisdiction of the court in matters that do not concern them must be discouraged.

Fertilizer Corporation Kamagar Union v. Union of India, AIR 1981 SC 344

Sale – Challenged by a member of the Union – ‘Locus standi’ is widened – J. Krishna Iyer
  If the public authorities are sufficiently honest and fair-minded – Norms to control
administration are not required – Corruption
 Civil remedies – At the cost of the individuals – Great financial burden
 A pragmatic approach to social justice – Art. 32 and 226 need to be interpreted liberally –
Effective policing of the power until ombudsman arrangements are made.
 Ubi jus ibi remedium must be enlarged to embrace all interests of public minded citizens.
 Restrictive rules of standing – Antithesis to a health system of administrative law – Good case
should not e turned away on the ground that the plaintiff is not sufficiently affected
personally – Effective access to justice – Basic human right.
 PIL – part of participative justice – Need for liberal reception at the judicial doorsteps.
 This doesn’t mean that the doors of the courts are open to a wayfarer or an intervener
without any interest or concern beyond 660 million people – If has some deeper concern or
belong to an organization, “he cannot be told off at the gates, although whether the issue
raised by him is justifiable may still remain to be considered”.
 Justifiability of the issues and the standing to agitate them are 2 different things.

Orthodox rule has gone sea change – Liberalization of locus standi.

(c) Standing in PIL

Courts’ approach as hanged – ‘Aggrieved person’ – Elastic concept – Vary from circumstances
to circumstances and statute to statute.
Expression ‘standing’ to include notional injury.
Not confined to direct personal injury – Taxpayers’ right to challenge the decision by the
municipality for erecting a privately donated statute – Maintenance charge.
‘Public duties’ standing
Every citizen ahs the right to enforce.

Municipal Council, Ratlam v. Verdichand, AIR 1980 SC 1622.

Class standing
Right of the member of a class to initiate action.
 Sunil Batra (II) v. Delhi Administration, AIR 1980 SC 1579.

‘Public Concern’ Standing.

Standing not because of belonging to a particular class or because of special interest or injury
suffered – Responsible citizen’s concern about a matter of public concern.
 Bandhua Mukti Morcha v. UOI, AIR 1984 SC 802.
 Parmanand Kataria v. UOI, (1990) 1 SCC 613.

(d) Laches or unreasonable delay

Delay in invoking the jurisdiction of the court – Court may refuse remedy – Power to refuse must be
exercised judiciously and reasonably.

(e) Alternative remedy.

Relief under Art. 32 and 226 for violation of FRs – Cannot be refused – Other reliefs under Art. 226 –
HC can refuse – Discretionary power.
A.V. Venkateswaran v. R.S. Wadhwant, AIR 1961 SC 1506.

 Import of gold plated pens from Australia – Higher rate of duty was charged by the customs
authorities – Writ before HC.
 Respondent – Petitioner has not exhausted the alternative remedy, review by C. Govt. – Writ
is not maintainable.
Held: Rule of exhaustion of the alternative remedy does not bar the jurisdiction of the court – It is for
the exercise of discretion.
USA – Exhaustion of the alternative remedy is invariably insisted upon.

(f) Res judicata

Also applies for the implementation of FRs – Free to approach HC or SC – Once the choice is made,
cannot agitate the same matter before the other forum.
If dismissed otherwise than on the merits, person may file a fresh writ in the other forum.
Not applicable in case of habeas corpus – Even if dismissed on the merits by HC, one can move to
SC.
Summary dismissal of the petition without recording the reasons – Res judicata is not applicable.

(g) No dismissal of the petition without speaking order.

Applicable to HCs and not to SC – Speaking order would help the SC in understanding the thought
process of HC – Facilitates in quick disposal of SLP – Builds public confidence in HC.

(h) HC must be approached first.

The cases where the writ can be filed before the HC, the parties should not approach SC
unnecessarily. P.N. Kumar v. Municipal Corp. Delhi, (1987) 4 SCC 609.

(i) Power to grant remedial assistance is implicit in public law review.

Art. 31(1) – Power to devise any procedure appropriate for the purpose of enforcing FRs – Not only
injunctive but also remedial power – Compensation – Confined to exceptional cases of gross and
patent violation.

(j) Greater good of greater number.

Social justice to prevail over the technical rules.
Sadhu Ram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 1471.
 Residenial complex, occupied by the tenants – Sold to the outsider – Persons actually living
were prepared to purchase even at a higher price.
 Held: Between 2 parties, if a deal is made with one party without serious detriment to the
other, the court would lean in favour of the weaker section of the society.

Major grounds of judicial review

Illegality – Incorrect understanding of the law and its improper implementation.
Irrationality – Outrageous in its defiance of logic or of accepted moral standards – If no sensible
person could have arrived at such a decision.
Procedural impropriety – Unjust and unfair procedure- N.J.
Proportionality – Irrational end and means relationship.
Unreasonableness – Facts do not warrant the conclusion reached or decision is partial and unequal.

Finality of administrative action

Extremely complex issue – Courts often shift the positions – Clause in the statute to make the
administrative action final – Finality clause, exclusion clause, ouster clause, conclusive clause etc.

Modes of conferring finality – 4 usual modes.

(i) Express bar on the jurisdiction of the court – S. 8(2) of the Foreigners Act, 1946 – A
decision as to nationality under Sub. S. (1) shall be final and shall not be called in
question in any court.
(ii) Statute neither expressly bars jurisdiction, nor confers finality – Finality may be inferred –
When the statute is a self-contained code which gives a right and also provides a
machinery for vindication of such right, eg. Industrial Disputes Act.
(iii) Power of the authority to take action may be rendered in subjective terms – Ex:
Satisfaction of the authorities, desirability, necessary, expedient etc. – Finality may be
assumed – Courts have held it as not conclusive.
(iv) Act may provide certain time-limit within which the administrative action can be
challenged – After the lapse of the time, action becomes final.

Administrative finality and Constitutional modes of judicial review.

Cannot bar judicial review under Arts. 32, 136, 226 and 227.

Deokinandan Prasad v. State of Bihar, AIR 1971 SC 1409.

S. 23 of the Pension Act, 1871 – Suits relating to matters mentioned therein cannot be entertained in
any court.

Held: The provision does not bar the constitutional modes of judicial review.

Non-constitutioanl modes of judicial review and administrative finality.

S. 9 of the CPC – Bar on the jurisdiction to try suits, where the cognizance is expressly or impliedly
barred.
Approach of the court – Express exclusion – Strictly interpreted.
Implied exclusion is very much limited- Where the statute creates a new right and also provides
machinery for the vindication of the such right, jurisdiction is barred.

Premier Automobiles v. K.S. Wadke, AIR 1975 SC 2238.

 2 unions – Sabha Union and Association Union – Some employees were members of neither
– A settlement was entered between Sabha Union and company under an incentive scheme.
 Increase in the membership of the Association union – Fresh settlement overruling the
agreement with Sabha Union – Challenged before the Court – Injunction.
 Held: Jurisdiction of civil cours is impliedly bared – Industrial dispute – Must move to the
machinery provided by the ID Act.

Doctrine of Legitimate expectation

Belongs to the domain of public law – Intended to give relief to the people when they are not able to
justify their claims on the basis of law in the strict sense – Civil consequences because of the
violation of legitimate expectation.
Schmidt v. Secretary of State for Home Affairs, (1969) 1 All ER 904.
Govt. cut short the period already allowed to an alien to enter and stay – Challenged.
Held: Legitimate expectation (Lord Denning)
- Violated without following fair and reasonable procedure.
Private Law – Person can approach the court only when the right based on statute or contract is
violated –Rule of locus standi is relaxed in public law.
Legitimate expectation provides the central space between ‘no claim’ and ‘legal claim’ – Ex: Govt.
scheme to provide drinking water to villages in certain areas – Subsequent exclusion of some villages.
Part of principles of N.J. – Cannot be deprived without fair hearing – Example of judicial creativity.

Fine principle to reconcile power with liberty – Public power is a trust which must be exercised in the
best interest of its beneficiaries, the people – Govt.’s action must be predictable and certain.
Still in the evolutionary stage – Flexible doctrine – Canot be claimed as a matter of course.

State of Kerala v. K.G. Madhavan Pillai, AIR 1989 SC 49.

Sanction to the respondents to open a new unaided school and to upgrade the existing ones – A
direction to keep the sanction in abeyance after 15 days – Challenged – Violation of N.J.
Held: Legitimate expectation – 2nd order without a fair hearing vitiated the administrative action.

Legitimate expectation of fair hearing may arise by a promise or by an established practice.

Union of India v. Hindustan Development Corporation, AIR 1994 SC 898.

Supply of cast steel bogies – Several suppliers – 3 big suppliers – Invitation of tender for 19,000 cast
steel bogies.
Big 3 quoted same price – Other quoted Higher.
Plan to break the – Estimation of price by the department – Fixed lower for the big 3 (Rs. 65,000) &
higher for the others (Rs. 76,000) – challenged.
Held:
 Govt in welfare state has wide powers in granting licences, leases and contracts – Not
expected to act like private individuals – Need to act fairly without any discrimination.
 Policy of the govt. is to provde an incentive to uneconomic units to achieve efficiency –
Prevention of concentration of economic power and to control monopoly – Common good.
 Govt. had the power to accept or reject the lower offer – Rs. 76,000 was found to be a
reasonable price.
 Cartel – Surrounding circumstances are not clear to provide the inference.
 Legitimacy of expectation can be inferred only if it is founded on a sanction of law, custom or
an established procedure followed regularly – Distinct from mere expectation or anticipation
– However earnest and sincere may be, cannot be ascertainable.
 Legitimate expectation is confined mostly to right of fair hearing before a decision – Does not
give scope to claim relief straight away, as no crystallized right is involved.
 Protection of legitimate expectation is not available, where an overriding public interest
requires otherwise.
  Court’s jurisdiction to interfere is much limited and much less in granting any relief in a claim
based purely on ‘legitimate expectation’
 Breaking of monopoly – Not an irrelevant consideration while making the decision.
Whether the expectation is legitimate or not is a question of fact – Has to be determined from the
perception of larger public interest.
Court’s interference must be limited – Unless the change in the policy is outrageous court should not
interfere.

Dr. Chanchal Goyal v. State of Rajasthan, (2003) 3 SCC 485.

1974 – Lady doctor under the Municipal Council – Temporary basis for 6 months or till the candidate
selected by Rajasthan Public Service Commission is available.
Working period extended from time to time – In 1988 the services were terminated, as the selected
candidate was available – Challenged.
Appellant: 28 years services are completed – Initial temporary appointment has assumed
permanency
Privilege of gratuity and pension are given – Legitimate expectation to continue.
Held:
 Temporary appointment – No scope for regularization as per the service rules.
 Legitimate expectation cannot be invoked – Nothing to show that the condition attached in
the appointment order is waived – Clear statutory words override any expectation.
Different from promissory estoppel – Person does not act on the expectation.

Doctrine of Public Accountability

In order to check the misuse of power – Power in the hands of administration to be public trust –
Trustee cannot enrich himself by corrupt means – If done, property acquired by him are held by him
as constructive trustee.

Attorney General of Hong Kong v. Reid, (1993) 3 WLR 1143.

Crown prosecutor in Hong Kong took bribes as an inducement to suppress certain criminal
prosecutions – Acquired properties in New Zealand in his name, in the name of his wife and his
solicitor.
Administration of Hong Kong claimed these properties – Argued that the owners are constructive
trustees for the Crown.
Privy Council:
 Bribery is an evil practice – Threatens the foundations of any civilized society – Benefit
obtained through breach of duty belongs to the beneficiary (State).
 If the property representing the bribe decreases in value, the fiduciary must pay the
difference between that value and the initial amount of bribe – Shouldn’t have accepted the
bribe and incurred the risk of loss.
 Increase in the value – fiduciary is not entitled to surplus – Cannot make profit out of a
breach of a duty.

Delhi Development Authority v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622.
Private Limited Company – Offered a bid of Rs. 9.82 crores for a plot of land – 25% was payable
immediately and the rest within 90 days – Deposited the initial amount and not the rest – Got the
extension repeatedly.
DDA proposed the cancellation of bid – Stay from HC – Skipper started selling the space in the
proposed building – SLP before SC – Selling continued contrary to the SC order – Rs. 14 crore was
made.

Held:
 Lifted the corporate veil of Skipper – Tejwant Singh, his wife and children – Sham companies
to defraud the people.
 All the monies and properties of the Skipper are to be attached – Burden of proof on them to
show that the property or money was not acquired by corrupt deals.
 Public accountability is applicable even when there is no fiduciary relationship or no holding
of public office is involved – Acquisition of property by defrauding the people attracts public
accountability.
 No requirement of a special law to protect the rights of the people – Courts in India are not
only the courts of law but also the courts of equity – Equity requires the persons defrauded
to be restored to their original positions.

Nilabati Behera v. State of Orissa, (1993) 2 SCC 746.

Concept of sovereign immunity is not applicable to the case of violation of right to life or personal
liberty under Art. 21.

Central and State Human Rights Commissions – A step in the direction of making the state
accountable for violation of human rights – Can receive complaint from people and take action suo
motu.

CBI is the prime instrumentality enforcing accountability – Was under the control of the executive –
SC direction – Central Vigilance Commission was established to take away the control of executie –
CBI does not require the govt. concurrent to investigate corruption cases.
Outstanding civil servants to be appointed in CVC – Acquittal order CBI to be reviewed.

(GET NOTES FOR MONDAY, 25/8/08)

26/8/08 –
Indian Practice:
Fundamental rights are expressly enumerated in the Constitution – Courts have used proportionality
in judging the reasonableness of a restriction on the exercise of FRs – Balance test is applicable –
Primary judgment in the Brind’s (a case) sense can be made.
If the action or the discretion is exercised under statutory powers, the application of proportionality
to make the primary judgment by the courts is unclear.
If no FR is involved, proportionality is not applied.

Union of India v. G. Ganayutham, (1997) 7 SCC 463

Misconduct – 50% of pension and 50% of gratuity was withheld – Challenged as excessive.
Central Administrative Tribunal concluded the punishment to be ‘too severe’ – Withholding of the
pension has to be restricted for 10 years instead of on permanent basis – Appeal to SC.
Held:
 The review is restricted to secondary judgment – Court/tribunal cannot substitute its own
views of the punishment.
 Power of review is limited – Wednesbury test shall be applicable.
 Even if the test is applicable, the matter has to be remitted back to the appropriate authority
for consideration – Only in rare situations can the court substitute its own view.

Interference is possible when the decision is shockingly disproportionate or when it shocks the
conscience of the nation – Only the extreme cases.

Ranjit Thakur v. UOI, (1987) 4 SCC 611.

Army officer did not obey the command of his superior by not eating the food offered by him –
Court-martial proceedings – Sentence of 1 yr. rigorous imprisonment and dismissal from service with
added disqualification – Challenged.

Held: “… The question of the choice & quantum of punishment is within the jurisdiction and
discretion of the court martial. But the sentence has to suit the offence and the offender. It should
not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the
conscience and amounts in itself to conclusive evidence of bias. The doctrine of proportionality, as a
aprt of the concept of judicial review, would ensure that even on an aspect which is, otherwise,
within the exclusive province of court-martial, if the decision of the court even as to sentence is an
outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality
and perversity are recognized grounds of judicial review.”

HC’s power under Art. 226 – Highly limited – Can only look into the questions of illegality, irrationality
and procedural impropriety – Cannot substitute the decision simply because the decision sought to
be substituted is a better one.
Adjudication under the ID Act – Proportionality applies – S. 11A – Industrial Tribunals and HC, on
perusal of charges and punishment imposed, can reduce the punishment if it is disproportionate.

Dwarka Das v. Board of Trustees, Bombay Port, AIR 1989 SC 1642 – Limits to the powers of the HC.
(Irrelevant)

Modes of public law review:

5 writs – Can be issued on various grounds
 Unlawful detention
 Lack of jurisdiction
 Excess of jurisdiction
 Abuse of jurisdiction
 Violation of N.J.
 Error of law apparent on the face of the record.
 Fraud
 Infringement of FRs
  Failure to comply with a public duty.
 Holding the office in contravention of law.

Modes of private law review

More speedy and flexible remedies.
Only difficulty is the 2 month’s notice under S. 80 of the CPC – 1976 Amendment empowers the
courts to waive the requirement.
(a) Injunction – S. 36 – 42 of the Specific Relief Act, 1963.
(b) Declaration.
(c) Suit for damages.
(d) Affirmative action for the enforcement of public duties.

29/8/08 –
LIABILITY OF THE ADMINISTRATION

Intensive form of govt. – Participation of state in the welfare and service activities – Govt. liability
may hinder – Delicate balance between the need and liability.

Wrong by the govt. officers – 2 course open to the injured – Early common law was in favour of the
liability of the officer as he was treated nothing more than an ordinary citizen – Shift towards state
liability – Recent trend shows a judicious mix of both the concepts.

Contractual Liability
Common law – Crown was exempted from a suit in a court on the basis of contract till 1947 – “King
can do no wrong” and Lord cannot be sued in his own courts.
Crown Proceedings Act, 1947 – Permitted the suits with few exceptions.
India - East India Company – Essentially commercial company – Did not enjoy immunity like the
Crown.

Bank of Bengal v. United Co. (1831)

Company was sued for the recovery of interest on 3 promissory notes on the basis of which company
borrowed money for the efficient prosecution of war for defending and extending the territories.

SC of Bengal – “It has been said that the Company has sovereign powers; bet it so, but they may
contract in a civil capacity; it cannot be denied that in a civil capacity they may be sued”.

Sovereign non-sovereign distinction came into existence.

Nobin Chunder Dey v. Secretary of State for India, (1876)

Ganja licence was auctioned – Plaintiff, the highest bidder, sued for the specific performance of the
contract.
Held: Auction of ganja licence was a method of collecting tax – Sovereign function – Suit is not
maintainable.
Constitutional Provisions
Art. 294 (Succession by the UOI), 298 (Power to enter into contracts), 299 (Essential formalities of the
Contract) & 300 (Suits and proceedings) – Supplemented by the Indian Contract Act, 1872.

Art. 30 – Extent of the liability is same as that of the Dominion of India under Govt. of India Act 1935
– Act makes reference to 1915 Act, which in turn refers back to 1858 Act.
Govt. cannot be equated to private individual – Special provisions prescribing the manner in which
the govt. contracts are to be made – Mandatory requirements – Incorporated in Art. 299 – Public
fund should not be wasted on unauthorized contracts.

MANDATORY REQUIREMENTS -
(1) Has to be expressed to be made by the President or the Governor, as the case may be
Safeguard the govt. as against the unauthorized contracts.
Karamshi Jethabhai Somayya v. State of Bombay, AIR 1964 SC 1714
Shankar Tukaram Karale obtained sanction to irrigate certain lands from a canal.

Govt. proposed to reserve certain area near the canal as factory area – Correspondence b/w the
govt. and Shankar – Superintending engineer agreed to exclude Shankar’s area and to give water
perpetually to him.
Partnership b/w appellant and Shankar to exploit the area – Dispute arose – Appellant became the
full owner based on a decree.
Appellant applied to the Canal Officer for the recognition of transfer – Refused – On appeal, held that
the supply of canal water be granted.
Suit for declaration of right to canal water and consequential relief – Dismissed – Appeal

Held:
 Superintending engineer had no power to exclude the land from factory area and give water
– Contract was not expressed in the name of the Governor – Void.
 Bombay Irrigation Act is violated – Every person requiring the supply of water must make an
application in the required form to the Canal Officer - Right to get the canal water cannot be
transferred.
Word ‘expressed’ does not require a formal document or in a particular form – If there is a statutory
requirement to be in a particular form, it must be complied with.
Presidnet or Governor is not personally liable, though the contract is in their name

(2) Contract must be executed on behalf of the President or the Governor, as the case may be
The terms ‘signed on behalf of the President/Governor’ must be included in the contract – Court has
mitigated the harshness of the rule.

Davecos Garments Factory v. State of Rajasthan, AIR 1971 SC 141.

Contract for supply of police uniforms – Signed by IGP – Failed to write after his signature, “signed on
behalf of the Governor”
Held: Competent authority – Signed the deed in the official capacity – The requirement of the
formality of the Art. 299 shall be deemed to have been complied with.
Manner of granting authority has not been specified under Art. 299 – May be through publication in
the official gazette –

(3) Contract must be executed by a person authorized by the President/Governor as the case
may be

Very fundamental requirement – No specific mode of authorization is specified – Normal

governmental procedure of notification in the Official Gazette.

Implied authorization may be sufficient.

 State of Bihar v. Karam Chand Thapar and Brothers Ltd., AIR 1962 SC 113.
 Construction contract with the govt. – Dispute in respect of the payments after the
completion of the contract – Referred to arbitration by an agreement between the parties –
Petition for decree in terms of award
 Govt. contested – Arbitration agreement was executed by the Executive Officer – Not
authorized – Secretary to the govt. for PWD was the only authorized person.
 Held: The whole process of correspondence and negotiations shows that the Secretary was
in picture all the time – Executive officer was impliedly authorized.

Ratification – Govt. cannot ratify a contract, if it does not comply with the requirements of Art. 299 –
Cannot enforce it against private party.

Can the party claim benefit under s. 70, 230(3) and 235 of the Indian Contract Act?

New Marine Coal Co v. UOI, AIR 1964 SC 152

Supply of the coal under a contract – Used by the govt. without making the payment – Suit for the
recovery of the amount.
Appellant- If the contract under which coal is supplied is not valid, respondent is liable to pay under
S. 70.
Respondent - Contract is illegal (since Art. 299 was not complied with) and S. 70 is not attracted.

Held: The contract is void – S. 70 is applicable Unjust enrichment is not allowed.

State of U.P. v. Murari Lal and Brothers, AIR 1971 SC 2210

Contract for a space in the cold storage for potatoes from the Agriculture Department – Signed by an
officer who was not authorized.
The space was not used – Rent was not paid. Suit for the damage suffered by keeping the space
vacant.
H.C. – Can be enforceable against the officer under S. 230(3) – Appeal.

Held:
 Contract was void – Art. 299 not complied with.
  S. 70 of the Contract Act is not applicable – Govt. had not derived any benefit.
 Officer cannot be held personally liable – S. 230 presupposes a valid contract.
S. 235 – Untruly representing as an agent – Presupposes a valid contract – Not applicable in case of
govt. contracts w/o authority.

I.P. Massey’s criticism:

Law of govt. contract seems to be unjustified – For no fault of his, a person may be compelled to
suffer a loss w/o remedy – Person may not be in a position to have an up-to-date list of govt. officials
authorized to negotiate public contracts.
Effect of law governing private contracts being applied to public contracts – France has 2 different
sets of laws.

Contractual obligation and the constitutional power

Contract cannot clog the constitutional power of the govt. or the legislature.
Secretary to Govt. Public Works and T.D. v. Adoni Ginning Factory, AIR 1959 A.P. 538.
Contract for the supply of the electricity – Law passed by the legislature to enhance the electricity
rate – Challenged on the ground of contract.
Held: Contract cannot foreclose the authority of the legislature to legislate.

Doctrine of waiver
Express or implied – Must be intentional act with the knowledge – Question of fact.
Requirement of Art. 299 cannot be waived – Mandatory.
Writ for the enforcement of contractual obligation
Art. 32 – Confined to FRs – SC cannot issue writs.

H.C. can exercise writ jurisdiction – Normally HCs do not exercise – Civil suit remedy.
R.K. Agarwal v. State of Bihar, (1977) 3 SCC 457
Lease to collect and exploit Sal seeds from forest area in 1970.
Clause 3 of the contract- Revision of rate of royalty at the expiry of every 3 years in consultation with
the lessee.
Clause 4 – Lessee must establish a factory in Bihar to extract oil within 5 years – If fails, agreement
can be terminated.
In 1974, State revised the royalty payable – In 1975 lease was cancelled on the ground that the
factory was not established.

Writ before HC – Malafideness involved in unreasonable hike in royalty and violation of N.J. – Breach
of contractual terms.
Held: Breach of contractual obligation by state – 3 categories of cases.
 Where promissory estoppel applies against the state.
 Where there is an alleged breach of a statutory rule under which the contract is entered.
 Where breach of a non-statutory contractual obligation is alleged which arises only out of
terms of contract.
In the first 2 cases, petitioner can invoke the writ jurisdiction of HC – Proper remedy in the 3 rd case is
a civil suit.
Gujarat State Financial Corporation v. Lotus Hotels, (1983) 3 SCC 370.
Contract for a loan of Rs. 30 lakhs for the construction of a hotel – Respondent incurred certain
liabilities on the basis of the agreement.
2 pseudonymous letters attacking the character of the respondent – Appellant refused the loan
sanctioned – Writ petition before HC – Entertained the matter, as it involves promissory estoppel –
Appeal.

Held: Too late for the govt. to come back from the promise – Mandamus can be issued against the
govt. for the enforcement of the contract (though not issued in this case).

Recent shift in the position – Where there is an alleged arbitration, absence of fair play and breach of
N.J., writ can be invoked.

Mahavir Auto Store v. Indian Oil Corporation, (1990) 3 SCC 752.

Petitioner was carrying on the business of sale and distribution of lubricants for 18 years –
Respondent abruptly stopped the supply, w/o notice and hearing – Challenged as discriminatory and
violative of N.J.

Held: The rights of the petitioner are in the form of pure contractual rights – Still subject to judicial
review on the grounds of reasonableness, fair play and N.J.

Liability of Administration in Torts

Vicarious liability – Sovereign – Non-sovereign distinction maintained.

Peninsular and Oriental Steam Navigation Company v. Secretary of State for India, (1861) 5 Bom
HC Report
Workers employed in Kidderpore Dockyard – Iron bars carried across the public way – Bars dropped
on the road.
Noise created scared the horses of the carriage in which the plaintiff was sitting – Sustained injuries –
Sued the state for the negligence of the workers.

Held: Vicarious liability – Not a sovereign function.

Peacock C.J. – It is clear that the state would not have been liable for any act done by a military or
naval officer in seizing as prize property of a subject, under the supposition that it was the property
of an enemy, nor for any act done by a military or naval officer, or by any soldier or sailor whilst
engaged in military or naval duty, nor for any acts of any of its officers or servants in the exercise of
judicial functions.

Secretary of State v. Hari Bhanji, (1882) 5 ILR Mad 273.

Suit for the recovery of excess excise duty collected by the state on salt – Contention of sovereign
function.
Held: Immunity is available only to the ‘act of state’ – Not to the act done under sanction of
municipal law.
The fact that an act is done by the sovereign power and is not an act which could possibly be doen by
the private individual does not oust the jurisdiction of the civil court.

Sovereign and non-sovereign distinction took a different shape – Subseuent cases again restored
back the earlier position.

State of Rajasthan v. Vidhyawati and Anthr., AIR 1962 SC 933.

Driver of Collector’s jeep – Knocked down a person while driving back the jeep from the workshop –
Suit for compensation by the wife and daughter of the deceased.
Trial court decreed against the driver and dismissed the suit against the state – Sovereign functions –
Appeal.
Appellant – Jeep was being maintained ‘in the exercise of sovereign polwers’ and not a part of
commercial activity – Not liable.
Held: Liability of the state is similar to that of East India Co. – Never enjoyed the immunity like the
Crown – State is liable.

Decision abolished the sovereign, non-sovereign distinction again – Govt. was made liable for the
torts committed by its servants in all cases except ‘act of state’.
Kasturi Lal v. State of U.P., AIR 1965 SC 1039.
‘P’ was going to Meerut to sell gold, silver and other goods – Taken into custody by Police – Silver was
returned on release – Gold was misappropriated by Head Constable, who fled to Pakistan.

Suit against the govt. of U.P. – Gross negligence on the part of the officer in charge of the police
station – Allowed the constable to keep the gold in his private custody, instead of depositing in the
local govt. treasury.
Held:
 State is not liable – Functions of arrest and seizure of the property are sovereign functions.
 If the act is sovereign, no act of negligence on the part of the employees of the state would
render the state liable.

Several attempts to come out of Kasturilal decision.

Lata Bishambar Nath v. Agra Nagar Mahapalika, AIR 1973 SC 1289.
2048 bags of attta unfit for human consumption – Sigh to this effect was pasted on the bags.
Intended to sell for the consumption of the animals and for other purposes – Seizure by the Health
officer under S. 244(1) of the Municipalities Act
“If in the course of the inspection of a place an article of food or drink for an animal appears to be
intended for consumption of man and to be unfit there for, the Board may seize and remove the
same or may cause it to be destroyed or to be so disposed of as to prevent its being exposed for sale
or use for such consumption”
Wrong interpretation of S. 244(1) by the Health Officer – Applicability to the case where an article of
food is for the consumption of animals also.

Held:
 The language of the section cannot be strained as to include what is not there – State is
liable for illegal acts, though made with good motive.
  Sovereign and non-sovereign distinction was discarded
Shyam Sunder v. State of Rajasthan, AIR 1974 SC 890.
Employee of Public Dept. – Travelling in the departmental truck in connection with the famine relief
work – Radiator was getting heated frequently – 9 hrs to travel 70 miles – Caught fire – Deceased got
stuck.
Widow sued the state – Negligence of the driver in the course of employment – Vicarious liability.
Respondent: No negligence – Truck developed mechanical problem in the middle sovereign
immunity.
Held:
Res ipsa loquitur – Truck was not road worthy – Driver was negligent.
Not a sovereign function – State is liable to pay compensation
K.K. Mathe, J. – Need for discarding the feudalistic doctrine of govt. immunity in exercise of sovereign
functions in view of the changed socio-economic conditions.

Khatri v. State of Bihar, (1981) 1 SCC 627.

Right to free legal services to the under trials – Illegal actions by police.
J. Bhagwati – “Why should the court not be prepared to forge new tools and devise new remedies for
the purspoe of vindicating the most precious of the precious FRs to life and personal liberty?”

Rudul Shah v. State of Bihar, AIR 1983 SC 1086.

Petitioner was detained in the jail for 14 years after an order of acquittal by the Sessions Court –
Asked for habeas corpus & compensation.
Released by the jail authority soon after the petition.

Held:
 Power of the court is not confined to order for the release under Art. 32 – Wide enough to
grant other remedies.
 One of the ways to prevent the violation of Art. 21 is to mandate for monetary compensation
– Refusal of compensation in this case would serve the mere lip-service of protecting the
right to liberty of the petitioner, which has been so grossly violated – Rs. 30,000
compensation.
N. Nagendra Rao and Co. v. State of A.P., (1994) 6 SCC 205.
Business in fertilizer and food grains – Vigilance Cell raided the premises and seized huge stocks –
Order for the disposal of stocks pending investigation – No action was taken.
Found no irregularity except in accounting – Stocks were to be returned to the appellant – Became
unusable – Suit for compensation – Decreed by the trial court.
HC relied on Kasturi Lal and held state is not liable.
SC –
 Doctrine of sovereign immunity stands diluted – Distinction b/w sovereign and non—
sovereign function no longer survives.
 State is immune only in the cases of acts of state.
 No civilized system can permit the executive to play with the people of its country and claim
that it is entitled to act in any manner as soverieng – No legal and political system can place
the state above the law.
  Negligent officer is also personally liable – (borrowed from France - Doctrine of Cumul –
proportional liability b/w the erring officer and the state in case of negligence).
State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659.
Driver of govt. vehicle allowed another govt. employee, having no driving licence, to drive the vehicle
in connection with official purpose – Accident due to the negligence of the driver – Suit for
compensation
Held: The govt. is responsible – Authorized act done in the unauthorized manner – State is
vicariously liable.

1967 Bill on Govt. Liability in Tort – Liability in following cases:

 Tort committed by the employee while acting in the course of employment.
 Tort committed by an employee while acting beyond the course of his employment if the act
was done on behalf of the govt. and is ratified by it.
 Tort committed by an independent contractor employed by the govt. provided –
(a) Govt. assumes the control of the act contracted.
(b) Govt. has ratified the tortious act.
(c) Govt. is under a duty to do the act itself.
(d) Govt. is under an absolute duty to ensure the safety of the person or property in the
doing of the act contracted to be done and there has been a failure to comply with that
duty.
 Where there is a breach of common law duties attached to the ownership, possession,
occupation or control of immovable property.
 Where the govt. is in possession of any dangerous thing which when escapes causes injury.
 Where there is a breach of duty to the employees which the govt. Owes by reason of being
the employer.
Exemption from liability –
 Acts done by the member of the armed force or police force in discharge of his duties and
acts done for the purpose of training or maintaining the efficiency of the armed forces as
also the acts done for the prevention of breach of peace or damage o the public property.
 Acts of state
 Act done by the President/governor in discharge of their constitutional functions.
 Judicial acts and acts done in the execution of the judicial process.
 Acts done under the proclamation issued under the provisions of the Constitution.
 Any claim arising in a foreign country.
 Claim arising from the injury done by doing an act authorized by law where such injury is a
natural consequence of the act.
 Claim arising form the act for which the immunity is provided under the Telegraph Act, 1885;
Indian Post Office Act, 1898 and the Indian Railways Act, 1890.
Wide escape clauses – Still was not accepted.
U.K. – Crown Proceedings Act, 1947 – Crown is subject to liabilities in tort similar to that of a private
person of full age and capacity.
Exceptions – Judges, post offices and its employees etc – No exception in case of negligent exercise of
discretion – No distinction b/w sovereign and non-sovereign functions.
USA – Federal Tort Claims Act, 1946 – Liability same as private individual – Extensive excape clauses.

 Exceptions for specific administrative functions or agencies and for all claims arising in
foreign countries.
  Claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution,
abuse of process, libel, slander, misrepresentation, deceit or interference with contractual
rights.
 Acts or omissions of the employees exercising due care in giving effect to statutes or
regulations, whether they be valid or not, and acts of discretion by govt. employees in
performance of their duties.
 Dalehite v. United State, 346 US 15 (1953)
Large cargo of ammonium nitrate (NH4)2NO3 fertilizer exploded on board a ship doced at
Texas city – 560 killed and 3000 injured – Damage to hundreds of million dollars of property.
Manufactured in the federal govt.’s plant – Being shipped to Europe at the govt.’s discretion
– over 300 suits against the govt. for negligence.
SC – Negligence may be involved – It did not make the govt. liable – Exercise of discretionary
authority.

Privileges and Immunities of Administration in Suits

Equality clause – Absence of special privileges – Certain privileges are enjoyed by the govt. –
Contrary to Dicey’s ROL
Privilege of Notice
S. 80(1) of CPC – 2 months expiry after the notice – Mandatory requirement – Can be waived either
expressly or impliedly.
Must state:
 The cause of action
 The time and place at which the damage or injury was sustained.
 Name and place of the house or business of the intended plaintiff.
Not required, if the officer has acted w/o jurisdiction or acted in a mala fide manner.
Purpose – To alert the govt. to negotiate a just settlement or at least to tell the person why the claim
is being resisted?
Misused – Hardships for the litigants.

State of Orissa v. Madan Gopal, AIR 1952 SC 12.

Notification stating the leases have become void – Order to remove their assets within a fortnight –
Problem of 2 month’s notice – Lessees moved to HC for writ.
HC found no alternative remedy at the moment – Mandamus directing the govt. to refrain from
disturbing the petitioners for 3 months or until one week after the institution of suit – Final remedy
in the form of civil suit – Appeal.
SC – An interim relief can be granted only in aid of, and as ancillary to, the main relief – Cannot be
granted when the main relief is not provided by HC
If HC has found no alternative remedy, it must have proceeded to investigate the case on its merits –
Existence of a right is the foundation of exercise of jurisdiction under Art. 226.

Law Commission – Recommended for the abolition of the requirement.

CPC Amendment Act 1976 – Court may grant exemption – Necessity of immediate/urgent need.

Privilege to withhold the documents

S. 123 of the Evidence Act – Unpublished official records relating to the affairs of the state –
Permission of the HOD is required for bringing it before the court – Can be withheld.
S. 124 – Confidential official communication – Privilege extended
Privilege is not conclusive.

State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493.

District Judge was dismissed by the President when he was in charge of the administration –
Challenged the validity of his dismissal.
Asked for the production of minutes of the meeting of the Council of Ministers and also a copy of the
recommendation of the Public Service Commission – Objected by the state under S. 123.

Held:
 The minutes are expressly saved by Art. 163(3) of the Constitution – Falls within the category
of documents relating to ‘affairs of state’
 The recommendation of PSC can be withheld – Disclosure would involve injury to public
interest.
 “Records relating to affairs of State” in S. 123 cannot be given a wide meaning so as to take in
every document pertaining to the entire business of State, but should be confined only to
such documents whose disclosure may cause injury to the public interest.
 Claim of privilege is not conclusive – Court is required to inquire into the nature of the
document in the light of the relevant facts and circumstances, though cannot inspect the
document.
 Norms to prevent the misuse of the privilege.
 Must be in the form of an affidavit signed by the minister concerned/the Secretary of the
Dept.
 Indicate the reasons why the disclosure would result in public injury – Assurance that the
document has been read carefully and considered.
 If affidavit is found unsatisfactory, authority may be summoned for cross examination.

R.K. Jain v. Union of India, (1993) 4 SCC 120

Letter to CJI – No president was appointed for Customs, Excise and Gold control Appellate Tribunal
(CEGAT) since 1985 – Functioning of the Tribunal was adversely affected.
Treated as a writ petition – Rule nisi was issued against the govt. asking for immediate appointment,
preferably a senior HC judge – The Vice – President (Judicial member) was made the President.
Petition for quashing the appointment.
 Appointment was in breach of judicial order- Sitting/retired judge of HC must have been
appointed.
 Appointed of the Vice-President as the judge of Delhi HC was turned down by the CJI
doubting his integrity – His appointment as President would undermine the efficacy.

Order to produce the file on which the decision of appointment of the President was made –
Privilege contended – Appointment was approved by the Cabinet Subcommittee headed by PM –
Protection under Art. 74(2) [‘Class doctrine’] and S. 123 – Finance secretary and Minister of State for
Finance filled affidavits.

Held:
 Claim through affidavits must be made by the minister/secretary concerned – PM
  When the court is not satisfied with the affidavit, it can look into the couments in camera –
Final decision as to the validity of the objection has to be made by the court – Found not
necessary to disclose to petitioner.
 Bar of the judicial review is only on the actual advise tendered by the minister to President –
But not on the material on which the advice is founded.
 Factors to be considered in deciding the public interest immunity:
(i) Interest affected by the disclosure of the document.
(ii) In case of ‘class’ protection – Whether the public interest immunity protects the
class?
(iii) The extent to which the interests referred to have become attenuated by the
passage of time or intervening events.
(iv) The seriousness of the issue by which production of the document is sought.
(v) The likelihood that the production of the document will affect the outcome of the
case.
(vi) The likelihood of injustice, if the document is not produced.

6/9/08 –
Immunity from statute operation
Common Law – King is not bound by the statute unless a clear intention appears from the statute
or from the express terms of the Crown Proceedings Act or by necessary implication – Exception in
cases of statute for public benefit.

Director Rationing and Distribution v. Corporation of Calcutta, AIR 1960 SC 1355.

S. 386(1)(a) of the Calcutta Municipalities Act – Person storing rice within the municipal limits to
obtain licence from the Corporation – Intended to prevent the spread of epidemics through rats –
Food Dept. of govt. of WB did not obtain the licence.
Pleaded that the state is not bound by a law of its own creation unless expressly mentioned therein
or by necessary implication.
Held: The common law principle is applicable – State is not bound by the statute.
Criticised – Feudalistic doctrine – Common law also recognizes the exception in cases of the statute
for public benefit.

Superintendent and Legal Remembrancer, State of Corporation of Calcutta, AIR 1967 SC 997.
S. 218 of the Calcutta Municipalities Act, 1951 – Person carrying on a business of running a market to
obtain licence from the Corporation.
Daily market run by the State of WB without the licence – Prosecution against the state – Contention
of immunity.

Held: ‘King can do no wrong’ was subversive of ROL – State is bound by its own law ‘unless excluded
either expressly or by necessary implication’
Overruled the Director of R & D case.

Immunity from promissory estoppel

Applies to govt. and public authorities – Some exceptions.
 Cannot compel the govt. to carry out a representation or promise which is prohibited by law.
  Promise which is beyond the power of the officer making it.
 When the representation by the person misled the authority to take a decision/make
promise.
 When the larger public interest demands.
Govt./public authority must disclose to the court the various events while claiming immunity – The
court must decide.

K. Ramadas Shenoy v. Chief Officer, Town Municipal Council, AIR 1976 SC 2177
Madras Planning Act, 1945 – Marked the areas for the business and residential purposes – S. 15
prohibited any commercial building in the residential area except with the permission fo acompetent
authority.
Application for the construction of a social-cum-lecture hall in the residential area – Allowed as it was
permissible – Subsequent application to convert the hall into a picture palace – Allowed by the
municipality by means of a resolution.
Work started – Challenged by a resident of the area.
HC – Cinema theatre cannot be constructed in the residential area as per the law – However, since
the respondent has already spent a large sum of money, govt. is estopped from stopping the work –
Appeal.

SC –
 Resolution of the municipality had no legal foundation – Construction of the commercial
building affects the right to or enjoyment of the prop. By the person residing in the area –
Municipality was supposed to prevent this.
 HC was not correct in invoking the promissory estoppels – Act done in excess of statutory
power cannot be alidated by the operation of estoppels.

Union of India v. Indo-Afghan Agencies Ltd., AIR 1968 SC 718

Scheme of Textile Commissioner to promote export – Represented to the exporters of woolen goods
that they would be entitled to import raw material of total amount equal to 100% of the value of the
export.
Respondent exported goods worth of Rs. 5 lakhs – Import licence was given only to the extent of Rs.
1.99 lakhs – Challenged.
Govt. – Scheme is merely administrative in character – No statutory force – Not binding on the govt.

Held:
 Even if the scheme has no statutory force, govt. is not entitled to break the promise at its
whim.
 Govt. cannot be the judge of its own obligations to the citizen on an ex parte appraisement
of the circumstances.