Professional Documents
Culture Documents
Administrative law –
Separate branch of legal discipline – Recognized only by the middle of
20th 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.
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.
7/6/08 –
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.
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
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.
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.
“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.”
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.”
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.”
(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.
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.
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.
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 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.
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.
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.
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 4th respondent’s was complete – Not a registered second-class
hotelier having 5 years’ experience – Call for producing documentary evidence –
4th 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. (4 th 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 – 1st 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.
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.
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.
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 aa course of conduct is ‘contrary to public welfare’, its effects must
be canvassed, considered and evaluated as being harmful or undesirable…”
Prof. Cushman
Major premise: legislative power cannot be constitutionally delegated by
Contress.
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.
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.
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 18 th 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
In re Linhan- “If, however, ‘bias’ and ‘partiality’ be defined to mean thte 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.
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.
….
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.
Oral hearing – Not an integral part of fair hearing – Effective defence test –
Complex legal and technical questions.
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.
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.
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.
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.
2/8/08 –
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 2 nd opportunity.
Right to represent against the conclusion of the Inquiry officer is untouched –
Furnishing a copy is necessary.
Scheme of judicial review (Art. 32, 136, 226 and 227) – Implied requirement of
the reasons – Scrutiy of reasons and not the decisions per se.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Held: The provision does not bar the constitutional modes of judicial review.
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.
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.
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.
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)
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.
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”.
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
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
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?
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.