B.A.LL.B.

(H) SEMESTER – VI, EXAMINATION, 2020

ADMINISTRATIVE LAW

Duration – 10 days

Max. Marks – 75 marks

Name – AAMIR RAZA KHAN

Course – ADMINISTRATIVE LAW

Examination Roll no. –17BLW002

Class Roll no. – 02

GENERAL INSTRUCTIONS:-

- All questions are compulsory.

- Maximum word limit for each question is 800 words.
- Where there are two parts in one question, for each part, word limit is 400 words each.
- Read all questions carefully and write answers very specifically to whatever is asked in the
question.
- Any kind of copy-pasting is strictly prohibited.
- Do not change the font or pattern of the paper.
- For the student’s convenience, it is advisable to use this word sheet and write the answers in this
sheet only.
UNIT – 1

1. “The rule of law has given to the countries following the common law system, a philosophy to
court the governmental power and to keep it within bounds; it has provided a sort of
touchstone to judge and test administrative law providing in the country at a given time”.
Analyze the statement with the help of radical interpretation and judicial precedents.

Ans(1): Rule of law

Rule of law according to dicey is one of the basic feature of the English constitutional system. It has a
number of different meanings and corollaries. The origin of the concept of the rule of law is ascribed to
Edward coke in England when he remarked that the king must be under the God and law.

DICEY’S MEANING

Dicey attributed the following three meanings of rule of law-

 I. Supremacy of law: In the words of dicey it means the absolute supremacy or predominance of
regular law as opposed to the influence of arbitrary power and excludes the existence
arbitrariness.
II. Equality before law: it means equality before law and equal protection of law as it impies equal
subjection of all persons to to the ordinary law of courts. There is complete absebce of any
special privilege for a government official or any other person.
III. Predominance of legal spirit: rule of law may be used as a formula for expressing the fact that
with us the laws of the constitution are not the source but the consequence of the rights of the
individual as defined and enforced by the courts.

Criticism of dicey’s definition

It has been criticized mainly on the ground of his notion of equality before law which according to him
negatives the existence of administrative law with regard to the first meaning (no man is punishable
etc.) it can be said that principle applies generally in criminal law.

Other views on rule of law

For Prof E.C.S Wade:the basic assumption of the rule of law is the absence of arbitrary power on the
part of the government. According to him its primary meaning is that everything must be done in
accordance with law.

Prof. A.L.Goodhart: public officers are governed by law which limits their powers. It means government
under law and the supremacy of law over the government is distinct from government by law.

Ivor Jennings: He would equate the rule of law with democracy as understood by the liberal tradition. It
demands in the first place that the powers of the executive should not only be derived from the law but
they should be limited by law.

The rule of law hitherto has been regarded largely to concern with the negative ideals example
protecting the individuals from arbitrary powers but it has recently moved on to positive plane mainly
because of the report of the international Commission of jurists which met in 1959 at New Delhi.

The report may be summarized as follows:

(a) The function of the legislature in a free society under the rule of law is to create and maintain
the conditions which will uphold the dignity of man as individual.
(b) The rule of law depends not only on the provision of adequate safeguard against the abuse of
power by the executive but also on the existence of effective government capable of
maintaining law and order.
(c) An independent judiciary and free legal aid is the indispensable for a free society under rule of
law.

Rule of law under the Indian Constitution

In India constitution is supreme the preamble of our constitution clearly sets out the principle of rule of
law when it lays down the objective of social, economic, and political justice, equality of status and
opportunity and fraternity and dignity of individuals in India.

The law of preventive detention which is obnoxious to the rule of law must however conform the
procedure established by law under article 21 of the Indian constitution.

Case: Smt Indira Nehru Gandhi vs Raj Narain

Mathew J. stated that according to majority opinion in the kesavananda bharti case rule of law is a basic
structure of the constitution apart from democracy. The rule of law postulates the pervasiveness of
spirit of law throughout the whole range of government in the sense of excluding arbitrary official
action.

Case: A.K.Karaipak vs union of India

It was observed that under our constitution rule of law pervades over the anti-field of administration. As
every organ of the state is regulated and controlled by the rule of law.

Case: Minerva mill vs Union of India

Chief justice Chandrachud observed Fundamental rights occupy an unique place in the lives of civilized
society and have been described in the judgement as transcendental, inalienable and primordial.

Case: National Legal service authority vs union of India

In this case it was held that rule of law is not merely public order but it is a rule social justice based on
the public order.

UNIT –II

2. Examine the validity of the following and give cogent reasons for your answers:
(a) The State Road Transport Corporation of Uttar Pradesh prepared a scheme whereby only
the bus routes between Lucknow and Allahabad were nationalized. The scheme was drawn
up on the directions of the Chief Minster Mr. Shyam of U.P. Anand and Suresh whose buses
were running on the said routes alleged malafides on the part of Chief Minister as they
belonged to the party in opposition to Chief Minister’s party. As a proof of malafide Anand
and Suresh recorded conversation between Mr. Shyam and his friend whereby Mr. Shyam
Says: “I will teach a lesson to Anand and Suresh.” Both Also filed an affidavit affirming the
fact of malafide. Decide the case and also mention what kind of proof is required to prove
malafide. How is malafide different from bias?
 Ans 2(a): An action is mala fide if it is contrary to the purpose for which it was authorized to
be exercised. Where an authority vested with discretionary powers exercises it with an
intention to achieve an object other than that for which he believes the power to have been
conferred, it would amount to fraudulent exercise of power by which broadly speaking is an
incident of mala fide use of power.
It also covers the cases where the authority concerned is motivated by personal spite,
vengeance and animosity towards those who are directly affected by its exercise.
Case: Pratap Singh vs Stae of Punjab- The court quashed the the governmental order on the
ground that it was passed for satisfying a private or personal grudge of the authority against
the petitioner.
Case: State of Bihar vs P.P.Sharma- Ramaswami J observed mala fide means want of good
faith, personal bias, grudge, oblique, or improper motive or ulterior purpose.
An administrative authority must act in a bona fide manner and should never act for an
improper motive or ulterior purpose or contrary to the requirements of the statute or the
basis of circumstances, contemplated by law.
The determination of plea of mala fide involves two questions:
a) Whether there is a personal bias or an oblique motive
b) Whether the administrative action is contrary to the objects, requirements and
conditions of a valid exercise of administrative power.

Case: P.B.samant vs State of Mahrashtra: In this case the court held that distribution of cement against
the law and the circulars or guidelines issued by the government on that behalf as bad. The distribution
of cement was in favor of certain builders in return of giving donations to the certain organizations to
which chief minister is a trustee. It was a clear case of mala fide use of power.

Bias should be distinguished from mala fides. As mala fide intention does not invalidate the judicial or
quasi judicial proceedings only it affects the decision of the authority in any capacity.

MALA FIDE BIAS

Court insists on proof of mala fide
It moves with an inferior motive in the mind of
the official or the authority
The interest primarily is of the officer exercising
his power with such an intention
Proof of actual bias is not necessary
The decision is liable to be given in favor of one
or the other party on entirely different
consideration
The presiding officer is interested in the benefit
of one of the party which his own interest is
attached
 (b) A notice of re-entry upon forfeiture of lease of land was served on “Sahil” a newspaper
company, by Land & Development Officer purporting to act on behalf of Central
Government as the lessors of the land on which the building of “Sahil” was constructed. The
ground of forfeiture was stated as ‘unauthorised construction on the land’. Sahil challenged
the action contesting that Sahil has started the construction only after requisite sanction
from the lessor. The action of lessor is wholly malafide, as Sahil’s paper has been critical of
Governmental policies. The government did not specifically denied the allegation but stated
these allegations are not relevant to the matter in issue. Decide referring judicial decisions.

Ans 2(b): In connection with the acquisition of land under the land acquisition act,1894 :
Case: somati vs State of Punjab- the court laid down the following principles
 The purpose for which land is taken is for the public purpose or not is for the state
government to be satisfied. If there is colorable exercise of the power the
declaration would be open to challenge at the instance of the aggrieved party.
 If it is appear that what the government is satisfied about is not public but private
purpose or no purpose at all and the action of the government would be a nullity.

The above fact which is given in the question is of the case: Express News paper Pvt ltd vs union of
India

The petitioner challenged the validity of the notices contending that they are wholly mala fide and
politically motivated. It is further alleged that the impugned notices constitute an act of personal
vendetta against the express group of newspaper and are violation of Article 14, 19(1)(a) and 19(1)(g) of
the constitution.

The central government was not entitled to get evicted the express newspaper pvt ltd under section 5(1)
of the public premises (eviction of unauthorized occupants) Act,1971 as the land over which the express
building was constructed, was by a no means of public premises.

The material available on the case was sufficient to prove that the impugned notices of re-entry upon
forfeiture of lease and of the threatened demolition of the building are intended to silence the voice of
the Indian express against the government, its policies and working. These notices thus suffer from mala
fide, arbitrariness and non-application of mind as they are directly and immediately violation of Article
19(1)(a) that is freedom of press and Article 14 of the constitution.

Case: Collector Allahabad vs Raja Ram- a plot of land was sought to be acquired in 1975 for the
extension of the hindi sanghralaya of the hindi sahitya sammelan, prayag. It was pointed out that a piece
of land allotted for the above purpose in 1953 was lying vacant and no sanghralaya was established.

The land in question was purchased by the respondent for the construction of the theatre which was
objected by the sammelan. Since the respondent got the approval for the construction of theatre the
acquisition proceeding was initiated at the instance of the sammelan.
The court held that since a land allotted was already remain unused by the sammelan. So therefore
collector did not exercise the power for which it was given and the order suffered from the vice of
malafide.

UNIT – III

3. A State Legislation empowers the local bodies to levy a theatre tax “for the purpose of the Act”
which imposes various duties of compulsory and optional nature. A local body levies a tax on
cinema houses by classifying them into various categories based on their “seating capacity and
physical amenities”. The levying of tax was challenged on two grounds:
(i) Excessive delegation of power by the legislature, and
(ii) Rate of tax is arbitrary and violates Article 14 of the Constitution.

Discuss the constitutionality of delegated legislation and Decide whether power to levy taxed for
the “for the purpose of the Act” is valid delegation of power.

Ans (3): Introduction

Delegated legislation in India is generally expressed as statutory rules and orders but
expressions like regulations, notifications, bye-laws, etc. are also employed in the same context.

There is no such general power granted to the executive to make law but it only supplements
the law under the authority of the legislature. This type of activity the power to supplement
legislation has been described as delegated or subordinate legislation.

Meaning

The committee on minister’s power has pointed out that the expression delegated legislation is
used in two senses:

 Exercise of power of rule-making, delegated to the executive by the legislature

 Output of the exercise of that power viz. rules, regulations, orders etc.

Plainly speaking delegated legislation is legislation by the authorities other than the legislature. The
central government, state government and central authorities like central board of revenue and other
administrative bodies are given power to make rules for carrying out the purpose of enacted statutes.

Causes of the growth of delegated legislation

Pressure of work: Parliament is a too busy body and is overburdened with legislative work. Within the
short span of life it has to pass a number legislations and has to take up such intensive legislative work
that it can hardly enact the provision of law in details.

Technicality of subject matter: The legislature has to pass so many laws in modern times where teir
contents are technical in nature. The legislators not being experts or technicians can not work out
details of such laws.

To meet unforeseen contingencies: To need of amplifying the main provisions of social legislation to
meet unforeseen contingencies or to facilitate adjustments to new circumstances arises all too
frequently.

CONSTITUTIONALITY OF DELEGATED LEGISLATION

The Parliament of the United Kingdom which is free to make or unmake any law may either make a law
itself or may authorize an outside agency to do so.

Even in a country where the legislature is not supreme and possesses only such powers as are given to it
by a written constitution, delegation has been held to have valid.

Position of U.S.A—The American rule against non-delegability of legislative power is primarily based on
the doctrine of separation of powers. The united states does not expressly provide for separation of
power but it is implied from the provision of the constitution which vests the legislative, executive and
judicial power of the government in three different agencies.

In U.S vs Grimana the court held that a complete denial of delegation of legislative power by congress
would be to stop the wheels of government.

Position of India—Under the constitution of India Article 245 and 246 provide that legislative power
should be discharged by the parliament and the state legislature. There is nothing in the constitution
that legislation can-not delegate its legislative power to anybody else.

When parliament or state legislatures are not in sessions then President and governor of different states
are empowered to make laws under certain conditions.

It is well settled that the rules, regulations, orders, bye-laws are not made by the legislatures but by the
agencies other than the legislatures namely executive and local bodies under the delegated authority.

In re Delhi laws act case: it was observed that the complexity of modern administration and the
expansion of the function of the state to the economic and social sphere have rendered it necessary to
resort to new forms of legislation and give wide power to various authorities. Delegated legislation now
has become the necessity to both inevitable and indispensable.

In vasant lal magan bhai’s case: The supreme court reiterated that subordinate legislation has now
become well settled. There is nothing wrong in such legislation because the modern conditions have
compelled the legislature to entrust its duty to administrative agencies.
Avinder singh vs State of Punjab: Krishna Iyer J conceded to the indispensability of delegated legislation
by observing that the complexities of modern administration are so bafflingly intricate and bristle with
details, urgencies, difficulties and need for flexibility that our massive legislatures may not be get off to a
start if they must comprehensively handle legislative business.

Power to levy tax or duty: The delegation of power to fix the rate if the tax is not valid, if the legislature
fixes a maximum rate and authorize the delegate to fix the rate not exceeding the maximum so fixed by
it according to exigencies of the public revenue. But if the maximum rate so prescribed leaves a wide
gap enabling the delegate to fix an arbitrary rate the delegation will be invalid.

The delegation of power to fix the rate will be valid if the statute lays down the legislative policies or any
guidance to the delegate regarding the exercise of the power if it provides checks to ensure that
reasonable rates are fixed by the delegates.

Case: Municipal corporation vs Birla cotton Mills: the supreme court reiterated the delegation of power
to the government to exempt excisable items from the duty but court in another case observed that the
delegation of power by the government to bring certain sale transactions under the sales tax act is valid.

Case: Delhi race club vs union of india: the supreme court further observed that delegation of non
essential legislative function of fixation of rate imposed is a necessity to meet the multifarious demands
of a welfare state.

UNIT- IV

4. “Ranbir” is an Engineer and also currently pursuing LL.B., evening Course from XYZ University
was dismissed from services on the charge of misconduct, after holding an enquiry. The
presenting Officer of the company was legally qualified person. “Ranbir” was denied legal
representation by the enquiry officer on the ground that he is qualified and can defend himself.
Is this decision of the enquiry officer valid? Discuss referring to judicial decisions.

Ans(4): As per the situation given above the decision of the enquiry is not valid because it is the
violation of the natural justice by the doctrine audi alteram partem which means no body should
be unheard.
As the term natural justice signifies fundamental rule of judicial procedure. It has been defined
to mean fair play in action.
Every administrative decision which have civil consequences against citizen of state the
authority making such decision is under obligation to record reasons because fairness or fair
play should be treated as fundamental principle of good administration to check the abuse of
power vested in the modern state.
 Case: Manohar manikrao anchal vs State of Maharashtra: Supreme court observed that
principle of natural justice has to also apply in the administrative matter. The court has also
observed that adjudicatory process essentially has to be in consonance with the principle of
natural justice in which hearing of parties and reasoned decision are the basic elements of the
natural justice.
Case: Ridge vs Baldwin :- In this case it was held that Chief minister who was dismissible only for
a cause was entitled to notice of a charge and an opportunity to be heard before being
dismissed.
Concept of natural justice
concept of natural justice has undergone a great deal of change in recent years. It may be
implied from the nature of the body to be performed under a statute. For applying rule of
natural justice it must look into the circumstances and facts of the case, the framework of the
statute under which enquiry is held.
Principle of natural justice: It is those rules which have been laid down by the courts as being
the minimum protection of the rights of the individual against the arbitrary procedure that may
be adopted by a judicial or quasi judicial and administrative authority while making an orders
affecting those rights.
They constitute a basic elements at fair hearing having the roots of innate sense of a man for a
fair play of justice which is not the preserve of a particular race or country but shared in
common by all men.
Rules of natural justice: The two rules of natural justice are now settled
 The rule against bias, (no body can be a judge in his own cause)
 The rule of audi alteram partem (right of hearing) or no body should be condemned
unheard.

DOCTRINE OF BIAS: One of the essential elements of judicial process is that an administrative authority
acting in a quasi judicial manner should be impartial, fair and free from bias. Supreme court observed
that the authority deciding the matter must be one without bias by which is meant an operative
prejudice whether conscious or unconscious towards one side or the other in the dispute.

Bias is usually of three types:

I. Pecuniary bias: where judge is shown to have pecuniary interest in the results of the
proceedings then that judge will be disqualified howsoever small the interest or clear it may be.
II. Personal bias: in this where presiding officer sometimes formed the opinion without finally
completing the proceeding and other where the officer is interested directly or indirectly as
being related to one of the parties.
III. Bias as to subject matter: in this judge himself a party or have some direct connection with the
litigation.

Audi alteram partem (hear the other side): The concept of this doctrine signifies the fact that no man
should be condemned unheard.
Case: National textile worker vs P.R Ramakrishnan- In this case it was seen that audi alteram partem
rule is one of the basic principle of natural justice.

This doctrine has received wide range of application in judicial and quasi judicial and administrative
decision.

Consequences of violation of natural justice

According to Prof. Wade any decision which is rendered in violation of natural justice is void.

According to Kelson a norm is always valid and is never a nullity but it can be made ineffective
accordingly which is in violation of natural justice.

Case: state of U.P vs Mohd Nooh- it is well settled that any order passed in violation of natural justice
will be void.

A void order can not be said non-existent in all cases and in all situations.

Case: union of India vs W.N.Chadha- it was rightly observed that rule of audi alteram partem is not
attracted unless a person is deprived of his personal liberty and property.

UNIT – V

5. Advice the following keep in the mind the right of issuance of Writ through Judicial Review.
(a) A minister of Aviation announced in the Parliament for starting a flight to Gulf from different
airports in India within 6 months period. However, no flight was started within the
stipulated time. A non-resident Indian wants to file a writ of Mandamus in the High Court
compelling the Minister to start the flight. Advice and give reasons.
ANS 5(a): In this case writ of mandamus cannot be issued in the high court under article 226
of the Indian constitution against a minister of aviation because merely pronouncement in
the parliament does not mean that it has become law or bill has been passed. So there was
no establishment of legal right and it is issued only when there is no alternative legal
remedy available to the person.
Nature and scope of mandamus
Mandamus literally means a command which is been directed to the inferior court or
tribunal from superior court for performing a specific duty fixed by law.
The chief function of this writ is to compel performance of public duties prescribed by the
statute and to keep subordinate tribunals and officers exercising public function within the
limits of its jurisdiction.
Case: Dr umakant saran vs State of Bihar- Supreme court held that mandamus may issue to
compel the authorities to do something it must be shown that statute imposed a legal duty
and the aggrieved party had a legal right.
Against whom writ of mandamus can be issued
 Case: Ajay hasia vs khalid mujeeb- a writ can be issued to enforce a public duty whether it
be imposed on a private individual or a public body.
This writ is available against any public authority but it can not be issued against President
and governor of the state for anything done by them in the exercise of their powers and
functions.
Grounds for issue if writ of mandamus
i. Petitioner must have a legal right
ii. There has been an infringement of the legal right of the petitioner
iii. That the infringement of right owing to non performance of the corresponding duty
by the public authority.
iv. There is no alternative legal remedy

Case: Daya vs joint chief collector- court would refuse a writ where it would be meaningless owing to
lapse or othwerwise.

Case: E.I.Commercial vs Collector- Calcutta high court held that where the application is premature for
instance where no action contrary to law has yet been done or proposed.

(b) An authority exercises jurisdiction in a matter which did not directly fall within its
jurisdiction. Which writ can be issued, Mandamus or Certiorari or both.

Ans 5(b): Writ of Certiorari would be issued on the ground of excess of jurisdiction or lack of
jurisdiction or error of law by the authority.
Definition and nature
Certiorari is a command or order to inferior court or tribunal to transmit the records of
cause or matter pending before them to superior court to be dealt with there and if the
order of the inferior court is found to be without jurisdiction or against the principle of
natural justice it is quashed.
The jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it the court
is not entitled to act as a court of appeal. It means that findings of fact arrived at by the
inferior court or tribunal are binding.
Case: Jagdish Parsad vs angoori devi- An error of law apparent on the face of the record
could be corrected by a writ of certiorari but not an error of fact however grave it may
appear to be.
Certiorari is a proceeding in personam unlike the writ of habeas corpus the petition of
certiorari should be by the person aggrieved not by any other person .
Case: Surya devi rai vs ramchandra rai- The supreme court has held that writ of certiorari
will be issued under article 226 of the Indian constitution for correcting gross errors of
jurisdiction that is when a subordinate court is found to have acted:
a) Without jurisdiction by assuming jurisdiction where there exists none
b) In excess of jurisdiction by overstepping or crossing the limits of jurisdiction
 c) Acting in flagrant disregarded of law or the rules of procedure or acting in violation
of natural justice

Necessary conditions for issuing writ- when anybody of persons:

 Having legal authority

 To determine questions affecting rights of subjects
 Having duty to act judicially

Case: Bharat bank vs Employees of Bharat bank- The object of the writ of certiorari is to keep the
exercise of power by judicial and quasi judicial tribunal within the limits of the jurisdiction assigned to
them by law and to restrain them from acting in excess of jurisdiction.

CONCLUSION

The court does not interfere in the case where there is a pure exercise of discretion and which is not
arbitrary if it is done in good faith. The do not ignore the legislative intention in the statute which might
give a wide aptitude of power to the administrative authority or the social needs which demands the
bestowal of some wider jurisdiction.